Filed 1/26/21 Smith v. City of Santa Barbara CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

GREG SMITH ET AL.,

 Petitioners and Appellants,

v.

CITY OF SANTA BARBARA, 

ET AL.,

 Respondents;

HERBERT BARTHELS ET AL.,

 Real Parties in Interest.

2d Civil No. B301299

(Super. Ct. No. 18CV01590)

(Santa Barbara County)

Real Parties in Interest Herbert Barthels and the Herbert 

E. Barthels Trust (Barthels) bought the last undeveloped 

oceanfront lot in Santa Barbara (City) in 1976. Barthels’s plans 

to build a house stalled in 1989 when the City determined he 

lacked legal access to the property. The City recently changed its 

position and revived Barthels’s plans. Neighbors and appellants 
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Greg and Judith Smith (the Smiths) opposed development and 

sought a traditional writ of mandate challenging the City’s access 

determination. The trial court denied their petition.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Mesa neighborhood overlooks the Pacific Ocean from 

the bluffs above Santa Barbara Harbor. Barthel’s lot sits on the 

waterfront near the Mesa’s centerline, just a few hundred feet 

from the city’s historic lighthouse. One accesses the lot by taking 

El Camino de la Luz to its eastern cul-de-sac terminus, entering a 

driveway, then following a narrow private road that bends 

southward toward the ocean. At the end is 1837 1⁄2 El Camino de 

la Luz. The Smiths own the oceanfront house just west of 

Barthels’s lot at 1839 El Camino de la Luz.

The late Gertrude Eaton created 1837 1⁄2 by splitting off 

1837’s southern half in 1958. Eaton’s neighbors, including the 

former owner of the Smith’s property, sent letters to the Planning 

Commission supporting her split request. Minutes from the 

commission hearings, however, reflect concerns among its 

members about the private road’s width and service capacity. 

The Commission recommended the City Council deny the 

request. Eaton appeared personally at the next council meeting 

and explained why she believed the existing 15-foot easement 

would provide adequate access. The council granted her request 

despite the commission’s denial recommendation, noting “that 

several of the neighbors wrote letters . . . urging approval of the 

requested division of property, and the granting of a variance in 

this case.” Eaton eventually sold 1837 1⁄2. Barthels bought the 

undeveloped lot in 1976. 

Barthels first applied for a development permit in 1989. 

Neighbors objected on the grounds his project would further 
3

burden the already strained private road. He learned during this 

process that portions of his easement measured only 7.5 feet

wide. When the City refused to issue a building permit, Barthels 

sued his title insurer for negligence and obtained a damages 

award of $31,524 plus the lot’s purchase price adjusted for 

inflation.1

Barthels continued his development efforts after obtaining 

the damages award. He secured a water meter and worked with 

the fire department to resolve safety issues. The easement, 

however, remained the project’s Achilles heel. A letter from the 

City Attorney’s office in 1997 concluded that “the required legal 

access to the parcel is not clearly and definitely established from 

a legal standpoint.” The City reiterated its refusal to process his 

development application because the lot “[did] not appear to 

satisfy a fundamental condition of its original creation, the 

existence of the 15 foot wide access easement for the full length 

necessary for vehicular access from the public street to the 

parcel.” Barthels requested a conditional certificate of 

compliance stating exactly what was required to make his lot 

legal. The City issued a certificate in 1999 stating he would need 

to “provide evidence, satisfactory to the City Engineer that the 

owner . . . substantially possesses the required amount of legal 

access that formed the basis of the originally approved lot split.”

Barthels filed a second development application in 2002. 

Neighbors again voiced their belief that the existing easement 

would not support an additional home. They also accused the 

late Eaton of misrepresenting the easement’s width when she 

1 We affirmed the superior court’s calculation of Barthels’s 

damages in Barthels v. Santa Barbara Title Co. (1994) 28 

Cal.App.4th 674. The appeal did not address the substance of 

Barthels’s negligence claims.
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addressed the City Council in 1958 – an act they alleged would 

invalidate the lot split. These objections led Barthels to sue the

owners of the lots served by the private road as a way to perfect 

his access rights.

2 They settled the case after reaching an 

agreement about the easement’s precise boundaries: 15 feet wide 

along its northern half; 7.5 feet wide at a “pinch point” in the 

middle; and 10 feet wide along the southern half leading to 

Barthels’s lot. The court entered a stipulated judgment to this 

effect in 2009.

Barthels continued working through the environmental 

review process. The Smiths began resisting the lot’s development 

immediately after buying their house in 2010. Trenching 

performed at the behest of the project’s geotechnical engineers 

prompted the Smiths to file a complaint for injunctive relief in 

2012.

3 The case lasted two years. When work resumed, the 

Smiths submitted formal comments to the Planning Commission 

reiterating their concerns about access, the lot’s legality, and 

impacts to nearby Lighthouse Creek. They appeared at Planning 

Commission hearings and submitted a lengthy report from a land 

use expert opining that Barthels did not and could not satisfy 

specific conditions set forth in the City’s 1999 conditional 

certificate of compliance.

City Engineer Brian D’Amour decided Barthels satisfied 

the conditions. D’Amour explained his findings in a 

memorandum to the Planning Commission in February of 2018. 

He concluded Barthels now “‘substantially possesse[d] the 

2 Barthels v. Franco, et al. (Super. Ct. Santa Barbara 

County, 2008, No. 1268293).

3 Smith v. Barthels, et al. (Super. Ct. Santa Barbara 

County, 2012, No. 1414447).
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required amount of legal access that formed the basis of the 

originally approved lot split.’” D’Amour noted the easement 

boundaries established by Barthels and his neighbors in 2009 

matched those reflected in the lot split map submitted by Eaton 

when she applied for split in 1958. His memorandum cited 

several exhibits, including the certificate, records from the 1958 

lot split proceedings, the City Attorney’s 1997 letter, and the 

2009 stipulated judgment. 

The Smiths challenged D’Amour’s determination by 

petitioning for a traditional writ of mandamus. They contended

D’Amour erred by disregarding key evidence and assuming the 

accuracy of Eaton’s lot split map. In addition, they requested a 

finding that Barthels’s representations in his title insurance case

about his lack of legal access estopped him from later asserting 

those rights. The trial court denied the petition and entered 

judgment against the Smiths. 

DISCUSSION

A. D’Amour’s Discretionary Access Determination Is Not Subject 

to Traditional Writ Review

“A writ of mandate may be issued by any court . . . to 

compel the performance of an act which the law specially enjoins, 

as a duty resulting from an office, trust, or station.” (Code Civ. 

Proc., § 1085, subd. (a).) “Generally, mandamus is available to 

compel a public agency’s performance or to correct an agency’s 

abuse of discretion when the action being compelled or corrected 

is ministerial.” (AIDS Healthcare Foundation v. Los Angeles 

County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700, 

citing Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501.) A 

“‘ministerial act’” is one in which “‘a public officer is required to 

perform in a prescribed manner in obedience to the mandate of 

legal authority and without regard to his [or her] own judgment 
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or opinion concerning such act's propriety or impropriety, when a 

given state of facts exists.’” (Ibid., citing Rodriguez at pp. 501-

502.) “Mandamus does not lie to compel a public agency to 

exercise discretionary powers in a particular manner, only to 

compel it to exercise its discretion in some manner.” (Id. at pp. 

700-701.)

We categorize D’Amour’s access determination as a 

discretionary act performed in connection, and in compliance, 

with the City’s authority under the Subdivision Map Act (Act) to 

impose conditions on the development of local subdivisions. (See 

AIDS Healthcare Foundation v. Los Angeles County Dept. of 

Public Health, supra, 197 Cal.App.4th at p. 701 [whether duty 

imposed by statute is ministerial or discretionary “is a question of 

statutory interpretation”].) The Act vests local agencies with 

authority to determine whether real property complies with the 

Act’s provisions and land use ordinances. (Gov. Code, § 66499.35, 

subd. (a); see Save Mount Diablo v. Contra Costa County (2015) 

240 Cal.App.4th 1368, 1377 [“The Act ‘grants to local 

governments the power to regulate the manner in which their 

communities grow’”].) Issuing a conditional certificate of 

compliance notifies the owners of a non-compliant property how 

they can bring the property into compliance and thereby seek the 

permits or other grants required to begin development. (Gov. 

Code, § 66499.35, subd. (b).) 

The City issued Barthels a conditional certificate of 

compliance in 1999. The certificate identifies the City Engineer

as the official responsible for deciding whether 1837 1⁄2 “possessed 

the amount of required legal access that formed the basis of the 

City’s approval of the lot split in 1958.” The Smiths do not allege 

D’Amour declined to exercise his discretion or failed to perform a

ministerial duty. They allege he exercised his discretion
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incorrectly by, for example, relying on the lot split map and 

disregarding Eaton’s alleged lies to council members in 1958.

These allegations only highlight how D’Amour’s determination 

was a product of his judgment as City Engineer and not his 

“obedience to the mandate of legal authority.” As such, it lies 

outside the purview of traditional mandate under Code Civ. 

Proc., section 1085.

B. The Trial Court’s Denial of the Petition Was Supported by 

Substantial Evidence

Though the trial court need not have considered the 

petition on its merits, it ruled correctly when it did so. “‘In 

reviewing a trial court’s judgment on a petition for writ of 

ordinary mandate, we apply the substantial evidence test to the 

trial court’s factual findings.’” (Klajic v. Castaic Lake Water 

Agency (2001) 90 Cal.App.4th 987, 995-996, citing Kreeft v. City of 

Oakland (1998) 68 Cal.App.4th 46, 53.) “Thus, foundational 

matters of fact are conclusive on appeal if supported by 

substantial evidence.” (Klajic, at p. 996, citing Clark v. City of 

Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169-1170.) We 

conclude the trial court’s ruling met this standard. It correctly 

denied the petition and entered judgment against the Smiths. 

“[W]e need not disturb the ruling when it is correct in law on 

other grounds.” (Pogosyan v. Appellate Division of Superior Court

(2018) 26 Cal.App.5th 1028, 1036 citing People v. Smithey (1999) 

20 Cal.4th 936, 971-972.)

The absence of a verbatim transcript or precise references 

to identifiable demonstrative exhibits from 1958, such as the 

“plot map” mentioned by commissioners and council members, 

required D’Amour to reconstruct the basis of historic decisions 

and reconcile them with subsequent legal developments. The 

trial court carefully reviewed D’Amour’s decision and the 1600-
8

page administrative record lodged with the petition. Its

statement of decision cited all documents the Smiths used to

support their position, including the City Attorney’s 1997 letter, 

court filings, and most significantly, the minutes and reports 

relating to Eaton’s lot split request in 1958. D’Amour and the 

trial court did not reach a result contrary to the evidence, as the 

Smiths argue, but a result contrary to the Smiths’ interpretation

of this evidence. We resolve such conflicts of disputed fact in favor 

of Barthels as the prevailing party. (Public Employment 

Relations Bd. v. Bellflower Unified School Dist. (2018) 29 

Cal.App.5th 927, 939, citing Hayes v. Temecula Valley Unified 

School Dist. (2018) 21 Cal.App.5th 735, 746.) 

C. Judicial Estoppel Does Not Apply Under

These Circumstances

The Smiths contend the trial court erred by not addressing 

whether the doctrine of judicial estoppel prevents Barthels from 

asserting his legal access to 1837 1⁄2. The positions Barthels

asserted in his title insurance case, they allege, contradict those 

asserted in these writ proceedings. The contention is moot 

considering traditional writ review is not available. If it were, 

any error was harmless because Barthels positions were neither 

“inconsistent” nor taken “in judicial or quasi-judicial 

administrative proceedings.” (Jackson v. County of Los Angeles

(1997) 60 Cal.App.4th 171, 183.)

Barthels sued his title insurer after the City refused to 

process his first development permit application in 1989. The 

positions he took in that case predated the City’s conditional 

certificate of compliance by a decade and the stipulated judgment 

by two decades. His newfound optimism flows from an altered 

legal landscape. We do not consider Barthels’ current positions 

“inconsistent” with those taken under such different 
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circumstances so long ago. Nor were those positions taken in the 

context of a judicial or quasi-judicial administrative proceeding. 

Barthels asked the City Engineer to determine whether the 

conditions of the 1999 certificate of compliance were satisfied. 

The City Engineer answered in the affirmative. No 

administrative hearing occurred and none was required to make 

this discretionary decision.

That Barthels must defend his access rights 30 years hence

would only strengthen the younger Barthels’ claims against his 

title insurer. We doubt the trial court would consider his 

renewed attempts to establish access as behavior that could 

“‘“‘result in a miscarriage of justice’”’” and thereby warrant the 

extraordinary remedy of judicial estoppel. (Blix Street Records, 

Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 46-48, citing Levin v. 

Ligon (2006) 140 Cal.App.4th 1456, 1468 [applying doctrine is 

discretionary even when all factors present].)

DISPOSITION

The judgment is affirmed. Respondents shall recover their 

costs on appeal.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
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Colleen K. Sterne, Judge

Superior Court County of Santa Barbara

______________________________

Venskus & Associates, Sabrina Venskus and Rachael 

Kimball, for Petitioners and Appellants Greg Smith and Judith 

Smith.

No appearance for Defendants and Respondents City of 

Santa Barbara and Brian D’Amour.

Janet K. McGinnis for Real Parties in Interest and 

Respondents Herbert Barthels and Herbert E Barthels Trust.