Filed 1/15/14 Clearvue Opportunity II v. City of Los Angeles CA2/2 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 TWO 

CLEARVUE OPPORTUNITY II, LLC, 

 Plaintiff and Appellant, 

 v. 

CITY OF LOS ANGELES, 

 Defendant and Respondent. 

 B245626 

 (Los Angeles County 

 Super. Ct. No. BC449222) 

 APPEAL from a judgment of the Superior Court of Los Angeles County. Suzanne 

G. Bruguera, Judge. Affirmed. 

 Shulman Bunn and Richard A. Bunn for Plaintiff and Appellant. 

 Michael N. Feuer, City Attorney, Tayo A. Popoola and Alan W. Blackman, 

Deputy City Attorneys for Defendant and Respondent. 
2 

 Clearvue Opportunity II, LLC (appellant) appeals from a final judgment entered 

after the trial court sustained without leave to amend a demurrer to appellant’s fifth cause 

of action against the City of Los Angeles (City). 

CONTENTIONS 

 Appellant contends that the trial court erred in sustaining the City’s demurrer on 

the ground that appellant failed to exhaust its administrative remedies. Specifically, 

appellant contends that the doctrine of exhaustion of administrative remedies does not 

apply because no adequate administrative remedy is provided by the Los Angeles 

Municipal Code (LAMC). 

FACTUAL BACKGROUND 

 Appellant’s first amended complaint (FAC) contains the following allegations: on 

or about June 3, 2003, Community Bank transferred parcel No. 5183-027-006, commonly 

known as 2320 Rogers Avenue in Los Angeles (the Rogers property), to Martin and 

Theresa Marquez (collectively “Marquez”). The Rogers property is the north half of lot 

26. On or about June 1, 2004, Marquez, who owned the south half of lot 26, commonly 

known as 2323 Whittier Boulevard (the Whittier property), transferred lot 26 to Marquez 

and Jose Luis Rodriguez (Rodriguez) via a grant deed, effectively combining the Rogers 

and Whittier properties. 

 On May 2, 2005, a covenant and agreement to hold lot 26 as one parcel was 

recorded as document 2005-1036849. According to the allegations in the FAC, the 

covenant was executed by Marquez and Rodriguez in order to comply with building 

codes and be granted a permit to build on the lot. 

 On or about May 27, 2005, Marquez and Rodriguez secured a loan for $306,000. 

The deed of trust securing the indebtedness indicated that the security is parcel No. 5183-

027-005, the Whittier property. However, the legal description of the property in the 

deed of trust erroneously included the totality of lot 26, not just the south one-half of the 

property which is what was intended. The indebtedness was subsequently transferred to 

U.S. Bank. 
3 

 On or about March 22, 2006, Marquez and Rodriguez borrowed the sum of 

$210,609 from Ameriquest. The debt was secured by a deed of trust on the Rogers 

property. However, the legal description of the property in the deed of trust erroneously 

included the totality of lot 26, not just the northern one-half of the lot. The beneficial 

interest of the 2006 deed of trust was transferred to appellant. The assignment was 

recorded on June 11, 2010, as Instrument No. 20100799342. 

 Both the loan on the Whittier property and the loan on the Rogers property are 

now in default. 

PROCEDURAL HISTORY 

 On November 10, 2010, appellant filed an unlimited civil action with causes of 

action for (1) quiet title; (2) declaratory relief; (3) reformation of instruments; (4) judicial 

foreclosure; and (5) cancellation of instrument. The only cause of action alleged against 

the City was the fifth cause of action for cancellation of covenant. In that cause of action, 

appellant sought cancellation of the covenant and agreement to hold the property as one 

parcel. Appellant alleged that the covenant should be cancelled for two reasons: (1) it 

was entered into in error by all parties; and (2) it is invalid because not all necessary 

parties executed it. Appellant alleged that if the covenant is left outstanding, appellant’s 

security interest in the Rogers property is jeopardized. 

 On April 16, 2012, the trial court sustained the City’s demurrer to the fifth cause 

of action on the ground that appellant failed to exhaust its administrative remedies. 

Appellant was granted 10 days leave to amend. 

 On April 26, 2012, appellant served its FAC on the City. Appellant added an 

allegation that it was not required to exhaust any administrative remedy because the 

doctrine of exhaustion of administrative remedies is inapplicable where the 

administrative remedy is inadequate or where it is unavailable. Appellant claimed that 

LAMC sections 98.0403.2(b) and 12.26K contradict each other. Appellant argued that 

the “self-contradictory” provisions excuse appellant from exhausting its administrative 

remedy. 
4 

 On September 27, 2012, the trial court sustained the City’s demurrer to the fifth 

cause of action in the FAC without leave to amend. On October 9, the trial court entered 

judgment dismissing the City with prejudice. 

 On December 7, 2012, appellant filed its notice of appeal. 

DISCUSSION 

I. Standard of review 

 On appeal from a judgment of dismissal after a demurrer is sustained without 

leave to amend, we review the legal sufficiency of the complaint de novo. (Montclair 

Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) “The reviewing 

court gives the complaint a reasonable interpretation, and treats the demurrer as admitting 

all material facts properly pleaded. [Citations.] The court does not, however, assume the 

truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be 

affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’ 

[Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff 

has stated a cause of action under any possible legal theory. [Citation.] And it is an 

abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows 

there is a reasonable possibility any defect identified by the defendant can be cured by 

amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-

967.) 

II. Rule of exhaustion of administrative remedies 

 The rule of exhaustion of administrative remedies is well established in California 

jurisprudence. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 

320 (Campbell).) “In brief, the rule is that where an administrative remedy is provided 

by statute, relief must be sought from the administrative body and this remedy exhausted 

before the courts will act.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 

292 (Abelleira).) The rule “is not a matter of judicial discretion, but is a fundamental rule 

of procedure . . . binding upon all courts.” (Id. at p. 293.) “Exhaustion of administrative

remedies is ‘a jurisdictional prerequisite to resort to the courts.’ [Citation.]” (Johnson v. 

City of Loma Linda (2000) 24 Cal.4th 61, 70 (Johnson).) 
5 

 “The rule has important benefits: (1) it serves the salutary function of mitigating 

damages; (2) it recognizes the quasi-judicial tribunal’s expertise; and (3) it promotes 

judicial economy by unearthing the relevant evidence and by providing a record should 

there be a review of the case. [Citation.]” (Campbell, supra, 35 Cal.4th at p. 322.) 

 The administrative remedies exhaustion rule has exceptions, including an 

exception where the administrative agency does not provide an adequate remedy. 

(Campbell, supra, 35 Cal.4th at p. 322.) The administrative remedy must comport with 

due process. (Bockover v. Perko (1994) 28 Cal.App.4th 479, 486 (Bockover).) In 

addition, there is an exception to the exhaustion requirement where it is futile to pursue 

the administrative remedy. (Automotive Management Group, Inc. v. New Motor Vehicle 

Bd. (1993) 20 Cal.App.4th 1002, 1015 [automobile dealer which protested its termination 

as a franchised dealer was not required to pursue further administrative remedies where 

the administrative law judge stated “‘There shall be no further proceedings in this cause 

before the Board’” (italics added)].) 

 In Bockover, one of the plaintiff’s arguments was that her employer’s policy and 

procedure manual was ambiguous concerning grievance procedures. (Bockover, supra, 

28 Cal.App.4th at pp. 489-490.) Despite the possible ambiguity concerning the 

procedures, the court held “[w]here there is some ‘question about the applicability of [a] 

grievance procedure,’ the employee must ‘present the question to the [agency] so that [it 

can] decide the issue in the first instance.’ [Citation.]” (Id. at p. 490.) Thus, a plaintiff’s 

“‘preconception of the futility of administrative action [does] not permit [her] to bypass 

the administrative remedy. [Citation.]’ [Citation.]” (Ibid.) 

 The exhaustion doctrine operates as a defense to litigation commenced by persons 

who have been aggrieved by action but who have failed to exhaust the administrative 

remedy available to them. (Anthony v. Snyder (2004) 116 Cal.App.4th 643, 657 [holding 

that landowner had obligation to exhaust administrative proceedings before bringing 

litigation to enforce a subdivision improvement agreement].) 
6 

III. Administrative procedures available to appellant 

 The covenant at issue indicates on its face that the Los Angeles Department of 

Building and Safety (DBS) is the agency with authority over the subject matter of the 

covenant. First, the covenant specifies that it shall “continue in effect until released by 

the authority of the Superintendent of Building of the City of Los Angeles upon submittal 

of request, applicable fees and evidence that this Covenant and agreement is no longer 

required by law.” 1 In addition, the covenant was required to be approved by the DBS 

prior to recording. These references make clear that the agency in charge of the covenant 

is the DBS. 

 Administrative remedies are available to appellant. First, as set forth in the 

covenant itself, the Superintendent of Building has the authority to release the covenant 

upon submission of a request, applicable fees and evidence that the covenant is no longer 

necessary. Appellant has not alleged that it made any such request to the Superintendent. 

The LAMC further provides a means for review of the decision of the 

Superintendent. A party may appeal the decision of a DBS official to the Los Angeles 

Board of Building and Safety Commissioners (Board). The Board has the power to hear 

and determine appeals from “orders, interpretations, requirements, determinations, or 

actions of the Department pertaining to enforcement of specific ordinances, regulations, 

or laws in site-specific cases.” (LAMC, § 98.0403.1(b)(2).) 

Pursuant to the well-established doctrine of exhaustion of administrative remedies, 

appellant must pursue this administrative relief before the courts will act. (Abelleira, 

supra, 17 Cal.2d at p. 292.) 

IV. Appellant is not excused from pursuing administrative remedies in this case 

 Appellant has not alleged that it made any effort to pursue administrative relief in 

this matter. Instead, appellant argues that it should be excused from pursuing 

 1 According to the administrative organizational chart found on the DBS website, 

the Superintendent of Building is the general manager of the DBS. (See ladbs.org, 

“About Us” tab, Organization Chart; see also LAMC, § 98.0103(a).) 
7 

administrative relief due to the exception to the exhaustion doctrine that applies where 

the administrative agency does not provide an adequate remedy. 

 In support of this position, appellant points to alleged contradictions in the LAMC. 

First, in spite of the language contained within the covenant itself, appellant insists that it 

is the Office of Zoning Administration that is responsible for handling subdivision and 

merger of parcels.2 Thus, appellant argues, chapter I of the LAMC -- dealing with 

“General Provisions and Zoning,” including the Subdivision Map Act -- is the applicable 

chapter of the LAMC; not chapter IX, which governs the DBS. 

 According to appellant, since the dispute is governed by chapter I of LAMC, 

appellant is presented with an insurmountable conflict. Appellant points to LAMC 

section 98.0403.1(b),3 which states: 

 “[T]he Board4 shall have no authority to hear and determine appeals 

from orders, interpretations, requirements, determinations, or actions of the 

Department pertaining to enforcement of specific ordinances, regulations, 

or laws contained in Chapter I of this Code and in other land use 

ordinances. Any appeal concerning these requirements shall be made to the 

Director of Planning in accordance with the provisions set forth in Section 

12.26K.” 

 Appellant then cites LAMC, section 12.26 K, which reads, in part: 

 “An appeal to the Director of Planning may only be made after the 

Department of Building and Safety has rendered a decision in writing and 

 2 In spite of its insistence that the Office of Zoning Administration is the entity 

responsible for the covenant, appellant has failed to set forth any allegations that it ever 

applied to the Office of Zoning Administration for cancellation of the covenant. 

3 Appellant has cited to LAMC section 98.0403.2(b) throughout its opening brief. 

We assume appellant intended to cite to LAMC section 98.0403.1(b), which contains the 

quoted language. 

4 Adding confusion to its argument, appellant has included a parenthetical referring 

to the “Board” as the “Board [of Building and Safety].” Appellant confuses two distinct 

entities: the DBS, and the Board of Building and Safety Commissioners. (LAMC, 

§ 98.0103.) Under the statutory scheme, the Board has the authority to review decisions 

of the DBS except those concerning chapter I. (LAMC, § 98.0403.1(b).) 
8 

provided written justification and findings on an appeal made pursuant to 

Section 98.0403.2(a) of the Code.” 

 Appellant argues that these two provisions are contradictory, rendering the 

proposed administrative remedy futile. On the one hand, appellant asserts, the DBS has 

no jurisdiction to hear appeals concerning chapter I. On the other hand, one is barred 

from pursuing a grievance before the Office of Zoning Administration unless he has 

made an appeal to the Director of Planning, who has no power to hear issues falling 

under chapter I of the LAMC unless an appeal has been made to the DBS. 

Appellant cites to no case law suggesting that a perceived statutory conflict 

renders an administrative remedy inadequate.5 As set forth in Bockover, a party’s 

“‘preconception of the futility of administrative action [does] not permit [her] to bypass 

the administrative remedy. [Citation.]’ [Citation.]” (Bockover, supra, 28 Cal.App.4th at 

p. 490.) Appellant cannot know whether the administrative remedy is inadequate if 

appellant has never attempted to pursue that remedy. If appellant perceives a 

contradiction regarding the appropriate agency to handle a future administrative appeal, 

appellant must “‘present the question to the [agency] so that [it can] decide the issue in 

the first instance.’ [Citation.]” (Ibid.). Appellant has not done so, therefore the courts 

have no jurisdiction to consider appellant’s claim. (Johnson, supra, 24 Cal.4th at p. 70.) 

 5 Rosenfield v. Malcolm (1967) 65 Cal.2d 559 (Rosenfield) does not support 

appellant’s position. In Rosenfield, the court considered whether a county employee who 

claimed to have been wrongfully terminated exhausted his administrative remedies 

pursuant to Alameda County Charter sections 42 and 44. While those sections provided a 

general investigative power, they contained no “clearly defined machinery for the 

submission, evaluation and resolution of complaints by aggrieved parties.” (Rosenfield, 

at p. 566.) The Rosenfield court stressed that “[o]ur courts have repeatedly held that the 

mere possession by some official body of a continuing supervisory or investigatory 

power does not itself suffice to afford an ‘administrative remedy.’” (Ibid.) The City’s 

administrative scheme, in contrast, provides for more than supervision and investigation. 

It provides procedures for the submission and evaluation of complaints. Appellant must 

avail itself of these administrative procedures. 
9 

 Even if we had jurisdiction to consider the purported statutory conflict that 

appellant has raised, we would decline to address it because appellant has not presented a 

justiciable controversy regarding this purported statutory conflict. Appellant has not 

alleged that it ever made any attempt to pursue an administrative remedy with any 

agency. Therefore it goes without saying that appellant has never filed an appeal with 

any administrative entity. Nor has any administrative entity ever rejected an 

administrative appeal filed by appellant on the ground that it lacked authority to hear the 

claim. The courts do not decide purely academic questions. (B. C. Cotton, Inc. v. Voss 

(1995) 33 Cal.App.4th 929, 947-948 [“Courts are created to resolve cases and 

controversies and not to render advisory opinions or resolve questions of purely academic 

interest”].) Appellant’s argument is not relevant to any ripe controversy. (City of Santa 

Monica v. Stewart (2005) 126 Cal.App.4th 43, 59 [“According to the Supreme Court, ‘an 

action not founded upon an actual controversy between the parties to it, and brought for 

the purpose of securing a determination of a point of law . . . will not be entertained’”].)6

 6 While we will not resolve the purported statutory conflict, we note that we 

disagree with appellant’s position that the two statutes are necessarily contradictory. The 

LAMC clearly delineates powers of the DBS, which provides the first level of 

decisionmaking explained in LAMC section 98.0403.1(a). In section 98.0403.1(b), it 

then describes the power of the Board, which includes the power to review acts of the 

DBS, and requires that the DBS provide the Board with a written report on the appeal. 

 Similarly, LAMC section 98.0403.2(a) describes the procedures for bringing a 

claim before the DBS, and section 98.0403.2(b) describes procedures for bringing a claim 

before the Board. 

 LAMC Section 12.26K provides that the Director of Planning may investigate and 

make decisions upon determinations of the DBS concerning chapter I. As set forth in 

LAMC section 98.0403.1(b), the Board has no authority to review actions of the DBS 

falling under this chapter. However, as with an appeal to the Board, section 12.26K 

provides that the DBS must provide written justification and findings on the appeal. 

Section 12.26K specifies that the decision of the DBS must have been made pursuant to 

the procedures outlined in section 98.0403.2(a). 

 Given this statutory scheme, it appears that whether the claim arises from chapters 

I or IX, a party must present its claim to the DBS in the first instance pursuant to the 

procedures set forth in section 98.0403.2(a). The party must then receive a decision in 

writing setting forth the DBS’s findings. Those findings would likely dictate whether the 

review of the DBS’s decision is within the jurisdiction of the Director of Planning (on 
10 

 Because appellant has failed to allege facts showing that it exhausted its 

administrative remedy, and does not suggest that it can amend its complaint to allege any 

such facts, its claim against the City must fail as a matter of law. 

DISPOSITION 

 The judgment is affirmed. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

 _________________________, J. 

 CHAVEZ 

We concur: 

_________________________, P. J. 

BOREN 

_________________________, J.* 

FERNS 

 

issues arising under chapter I of the LAMC), rather than the Board. Under this 

interpretation of the statutory scheme, appellant’s hypothetical conflict would never arise. 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.