Filed 9/6/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

SUZANNE J. BLACK et al.,

Plaintiffs and 

 Appellants,

v.

CITY OF RANCHO PALOS 

VERDES,

Defendant and 

Respondent.

 B285135

 (Los Angeles County

 Super. Ct. No. BS159447)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Amy D. Hogue, Judge. Affirmed.

Crockett & Associates and Robert D. Crockett for Plaintiffs

and Appellants.

Aleshire & Wynder, David J. Aleshire, and June S. Ailin for 

Defendant and Respondent.

____________________________
2

The appellants (landowners) own eight lots in an area of 

Rancho Palos Verdes that is the subject of a 1978 building 

moratorium based on the resurgence of an ancient landslide.1 In 

the trial court, the landowners sought relief from the building 

moratorium and damages for inverse condemnation primarily on 

the basis of our opinion in Monks v. City of Rancho Palos Verdes

(2008) 167 Cal.App.4th 263 (Monks II). Based on their erroneous 

interpretation of Monks II, the landowners did not first apply to 

the city for permission to build on their lots. 

The landowners argued that Monks II absolved them of the 

need to exhaust administrative remedies or, alternatively, that 

exhausting administrative remedies would be futile. The trial 

court rejected those arguments and entered judgment for the city. 

We also reject those arguments and affirm the trial court’s 

judgment.

 

1 This litigation was initiated by Jason and Laura Parks, 

Suzanne Black and Michael Griffith, Andrea Joannou, Arizona 

Land Associates, Subhash and Jennifer Mendonca, Jerry and 

Sandra Johnson, George and Leeane Twidwell, Judith King, Neil 

Siegel and the Siegel and Friend Trust, Charles Parks, Jr., the 

S.J. Parks Trust, and Michael and Norma Nopper. Andrea 

Joannou dismissed her complaint on July 26, 2016. Laura and 

Jason Parks, Charles Parks, Jr., and the S.J. Parks Trust 

dismissed their complaint on August 25, 2016. Arizona Land 

Associates dismissed its complaint on February 14, 2017. 

Melinda Politeo filed a complaint in intervention and petition for 

writ of mandate on June 28, 2017. The Third Amended Petition 

and the Complaint in Intervention—the basis of the trial court’s 

hearing—together represented eight parcels located in the area 

described below as “Zone 2.” 
3

BACKGROUND

Because much of the landowners’ argument relies on 

Monks II and because our holdings in Monks II were dependent 

on the background of that case, we draw on that opinion for 

background here.

A. The Landslides

Between approximately 100,000 and 120,000 years ago, 

there was a landslide in what is now the City of Rancho Palos 

Verdes. The landslide covered two square miles on the south 

central flank of the Palos Verdes Peninsula. Until relatively 

recently, the landslide was inactive and presented no problems. 

The area became populated with homes.

In August 1957, an area in the ancient landslide, east and 

southeast of the landowners’ lots, began to move; this area is 

commonly known as the Portuguese Bend landslide. Between 

January 1974 and March 1976, another area in the ancient 

landslide, south and southwest of plaintiffs’ lots, began to move; 

this area is commonly known as the Abalone Cove landslide. 

Both remain active.

B. The City’s Response to the Landslides

1. The Moratorium

On September 5, 1978, the city council enacted an urgency 

ordinance prohibiting the development of property in the ancient 

landslide area. The ordinance and subsequent amendments 

created categories of exceptions to and exclusions from the 

moratorium. (See Rancho Palos Verdes Mun. Code, §§ 15.20.040, 

15.20.100.)

2. The Ehlig Memorandum

On May 26, 1993, Perry Ehlig, the city geologist, sent a 

memorandum to the city’s director of public works proposing that 
4

the moratorium area be divided into eight zones for purposes of 

discussing remediation efforts and residential development. 

Ehlig explained that each zone has its own unique 

characteristics. “Zone 1” consists of about 550 acres of 

“[u]nsubdivided land unaffected by large historic landslides and 

[is] located uphill or to the west of subdivided areas.” It is the 

northern most zone and curves downward to the southwest, 

extending to the ocean. Zone 1 is the western border for the 

entire moratorium area. Zone 2, which covers approximately 130 

acres, consists of “[s]ubdivided land unaffected by large historic 

landslides”; it is located below Zone 1. “Zone 6” occupies the 

eastern portion of the moratorium area, covers about 210 acres, 

and includes parts of the Portuguese Bend landslide; it touches 

Zone 2’s eastern border where Zone 2 is approximately 425 feet 

from north to south. “Zone 3,” the smallest zone with about 15 

acres, is “[u]nsubdivided land unaffected by large historic 

landslides and [is] located seaward of Sweetbay Road”; at its 

northern most point, Zone 3 abuts about one-fourth of the 

southeastern line of Zone 2. “Zone 5,” approximately 90 acres in 

size, is “[l]and affected by the Abalone Cove landslide and 

adjacent land where minor movement has occurred due to loss of 

lateral support”; the northern portion of Zone 5 runs along the 

south central line of Zone 2. In short, Zone 2 is bounded by Zone 

1 to the north, Zone 6 to the east, Zone 3 to the southeast, Zone 5 

due south, and Zone 1 to the southwest and the west. (Zones 4 

and 8 are to the east of Zone 6 and do not touch Zone 2; Zone 7

runs along the shoreline, below Zone 6.)

Ehlig’s memorandum stated that certain lots in Zone 2 

“could be developed without adversely affecting the stability of 

the large ancient landslide. In fact, if development were 
5

combined with installation of additional wells, stability would be 

improved. Most lots can be developed with minimal grading and 

without a net import or export of earth. Such grading would have 

no impact on the stability of the deep-seated slide. [¶] Ground 

water is the only variable within Zone 2 which affects its 

stability. Zone 2 currently contacts one monitoring well and four 

producing[, or dewatering,] wells. Eight to ten more monitoring 

wells are needed to provide a detailed picture of ground water 

conditions within Zone 2. Four to six more producing wells are 

needed to better control ground water conditions. If the costs of 

the needed wells were funded from fees paid for permission to 

develop vacant lots, development would improve the stability of 

the large ancient landslide.”

3. Zone 2 and the Factor of Safety

Discussions between city officials and lot owners in Zone 2 

sometimes focused on the “factor of safety,” a geotechnical term 

used to explain the stability of a parcel of land. The factor of 

safety is expressed as a number reflecting the relationship 

between the physical factors that cause instability and those that 

aid stability. A safety factor of 1.0 indicates that the instability 

forces are equal to the stability forces, and the property is 

therefore considered “barely stable or almost unstable.” A safety 

factor of 1.5 means that the forces of stability are at least 50 

percent greater than the forces that cause instability. An area 

with a factor of safety greater than 1.0 is stable by definition. 

Nevertheless, because a safety factor cannot be calculated with 

precision, a factor of at least 1.5 provides an important margin of 

error and is accepted as the standard factor of safety by 

geotechnical professionals for residential construction. A smaller 

margin of error—a lower factor of safety—may be appropriate for 
6

construction if more is known about the geology of a particular 

area, for example, that the groundwater is under control. For 

purposes of our opinions in the Monks cases and this case, a 

“local” or “localized” factor of safety refers to the stability of a 

single lot in Zone 2; a “gross” safety factor refers to Zone 2 in its 

entirety.

As outlined in more detail in Monks II, the city continued to 

study Zone 2 and the potential for development after passing the 

moratorium, and eventually installed utilities for the vacant lots 

in Zone 2, namely, gas, electric, and water. The sewer system 

was completed in late 2001. On January 16, 2002, the plaintiffs 

in the Monks case filed an application with the city’s department 

of planning, building, and code enforcement, requesting an 

exclusion from the moratorium.

4. Approval of Resolution No. 2002-43

On June 12, 2002, while the Monks plaintiffs’ application 

was pending, the city council approved resolution No. 2002-43. 

The resolution, which flowed from the city’s continued study of 

Zone 2’s landslide issues, provided that “the City Council is 

directing City Staff to continue to deny requests for development 

permits for new homes in the Zone 2 area . . . until an applicant 

submits a complete Landslide Moratorium Exclusion application” 

that established a gross safety factor of 1.5 or higher. City 

officials understood that a geological study to determine the 

safety factor of Zone 2 would cost somewhere between $500,000 

and $1 million, if not more.

C. The Monks Litigation

1. Monks I

In light of resolution No. 2002-43, the Monks plaintiffs 

decided not to pursue their pending application for an exclusion 
7

from the moratorium. Instead, on July 10, 2002, they filed a 

petition for writ of administrative mandate and a complaint for 

inverse condemnation.

The Monks plaintiffs argued that the city council had 

abused its discretion in approving resolution No. 2002-43 and 

that the resolution constituted a “taking” within the meaning of 

article I, section 19 of the California Constitution. The Monks 

plaintiffs stated that they “have had no opportunity to testify, to 

offer opinions of their own experts, or to question City officials 

and consultants,” and if “ ‘the administrative record is not an 

adequate basis on which to determine if the challenged action 

constitutes a taking’ . . . , plaintiffs reserve their right to take 

discovery and introduce additional evidence, particularly in the 

form of their own testimony, the testimony of experts, and the 

examination of City officials.”

Based only on the administrative record—documents 

related to the May 20, 2002 hearing before the city council—and 

oral argument, the trial court denied the writ petition and 

determined that resolution No. 2002-43 did not constitute a 

taking. 

On appeal, the city argued that the takings claim was not 

ripe because the plaintiffs had not exhausted their 

administrative remedies. (Monks v. City of Rancho Palos Verdes

(Feb. 23, 2005, B172698) [nonpub. opn.] at pp. 17-19 (Monks I).) 

We reviewed exhaustion of administrative remedies and 

exceptions to that requirement in detail. In the context of the 

Monks plaintiffs’ challenge to “the requirement that they show a 

safety factor of 1.5 for the entire zone” and their argument that “a 

lower safety factor should be used and that the safety factor of an 

individual lot, not the zone, should be determinative,” we found 
8

that resolution No. 2002-43 and the moratorium, taken together, 

rendered exhaustion of administrative remedies futile. (Monks I, 

supra, at p. 19.) We reversed the trial court’s judgment and 

remanded the case for a trial on the takings claim. (Monks I, 

supra, at pp. 7-9; Monks II, supra, 167 Cal.App.4th at p. 284.)

2. Monks II

On remand, the trial court tried the plaintiffs’ takings 

claim. During the trial, the parties settled the plaintiffs’ 

temporary takings claim, leaving the permanent takings claim 

for determination. (Monks II, supra, 167 Cal.App.4th at p. 293.) 

The trial court “ultimately concluded that plaintiffs’ claim of a 

permanent taking failed because, under state nuisance law, ‘the 

potential for significant land movement in Zone 2, however 

minor, can only be deemed to constitute . . . a substantial and 

reasonable interference [with collective social interests].’ The 

[trial] court also found that the moratorium did ‘not go too far in 

regulating plaintiffs’ . . . interests’ in light of its important 

nature, its negligible effect on permitted uses, and its lack of 

interference with plaintiffs’ reasonable investment-backed 

expectations.” (Ibid.)

On the second appeal, which resulted in the published

opinion the landowners here rely upon so heavily, we again 

reversed the trial court’s judgment. We concluded that by 

requiring the plaintiffs to establish a gross (rather than local) 

safety factor of at least 1.5, “the city deprived plaintiffs’ land of 

all economically beneficial use without proving a justification 

therefor under state principles of nuisance or property law,” and 

had therefore violated the state takings clause. (Monks II, supra, 

167 Cal.App.4th at p. 303.) We remanded and directed the trial 
9

court to “determine an appropriate remedy for the permanent 

taking exacted by the city.” (Id. at p. 310.)

3. Monks III

We issued our opinion in Monks II in October 2008. On 

January 21, 2009, the city repealed resolution No. 2002-43. The 

city also amended the moratorium to except the Monks plaintiffs 

from the moratorium “provided[] that a landslide moratorium 

exception permit is approved by the director, and provided that 

the project complies with the criteria set forth in Section 

15.20.050 (Landslide Mitigation Measures Required) . . . .” The 

new Monks exception required that “[s]uch projects shall qualify 

for a landslide moratorium exception permit only if all applicable 

requirements of this code are satisfied,” and only after the 

particular Monks plaintiff “submit[ted] to the director [of city 

planning] any geological or geotechnical studies reasonably 

required by the city to demonstrate to the satisfaction of the city 

geotechnical staff that the proposed project will not aggravate the 

existing situation.” (Rancho Palos Verdes Mun. Code, § 

15.20.040, subd. (P).)

Although the city opted on remand “to allow plaintiffs to 

build homes on their lots[, p]laintiffs asserted they were also 

entitled to compensation for the decline in the fair market value 

of their properties. The trial court disagreed, stating that the city 

had remedied the permanent taking by repealing [resolution No. 

2002-43] and enacting a new resolution allowing plaintiffs to 

develop their properties.” (Monks v. City of Rancho Palos Verdes

(Mar. 28, 2013, B237221) [nonpub. opn.] (Monks III).) We agreed 

with the trial court and affirmed.
10

D. The Landowners’ Dispute – The Instant Case

In October 2014, Andrea Joannou applied for permission to 

build a single-family residence on a lot she owned in Zone 2. The 

city responded with a completed “Geotechnical Investigation 

Report Review Checklist” that required “additional input” from 

Joannou.2 The record does not disclose any further action on 

Joannou’s application, and no other landowner ever applied for 

permission to build.

3

On November 15, 2015, the landowners filed their original 

petition for writ of mandamus and complaint for inverse

condemnation. After a series of demurrers and amendments to 

 

2 The checklist the city provided to Joannou states: “It is 

unclear from the report if the applicant is submitting the report 

for an exception or exclusion to the Moratorium Land Use Section 

of the Building Code. Please clarify.” 

3 Joannou is no longer a party to this litigation. In June 

2014, Joannou and the city settled a separate lawsuit regarding 

property Joannou owned in a different zone with a single-family 

residence that had “moved over the years since [it was built in] 

1956” to a location “several hundred feet away from its original 

location” and onto a neighboring lot. As part of the settlement, 

the city agreed to credit Joannou for fees she had paid for permits 

to rebuild on the original lot in the event she chose to seek 

permits to rebuild either on that lot or on the lot she owned in 

Zone 2. Joannou submitted an application for permission to build 

on her Zone 2 property in October 2014. The landowners 

continue to rely on her application for permission to build on her 

Zone 2 property and the city’s geotechnical investigation report 

review checklist as evidence of the futility of exhaustion of 

administrative remedies. The city’s response, however, can be 

construed as nothing more than a request for more information 

from Joannou.
11

the petition and complaint spanning about a year, the parties 

stipulated to the filing of a third amended petition and 

complaint—the operative complaint—in March 2017 requesting a 

writ of mandamus ordering the city to take certain actions 

regarding undeveloped lots in Zone 2 and alleging a single cause 

of action for inverse condemnations ordering the city to take 

certain actions regarding undeveloped lots in Zone 2.

In November 2016, after the litigation had been pending for 

more than a year, Jennifer Mendonca “approached the [c]ity’s 

planning department desk, [and was told] that in order to qualify 

for an exclusion to build [her] home on [her] lot in Zone 2, 

[Mendonca] would need to submit a geotechnical report analyzing 

the impact [her] home would have on the region-wide Portuguese 

Bend landslide, showing the proposed structure would satisfy a 

safety factor of 1.5.” An e-mail from an assistant city planner to 

Mendonca dated November 29, 2016, and specifically regarding 

Mendonca’s lot explains that “[n]o other new developments are 

allowed [in Zone 2], unless the applicant can demonstrate they 

fall under one of the Exceptions listed in [Rancho Palos Verdes 

Municipal Code] Chapter 15.20.” The record contains no 

application and reflects no city response to any application 

submitted by or on behalf of Mendonca for any exception or 

exclusion.

The record also contains a November 2016 e-mail that 

purports to be from an associate city planner to a commercial real 

estate broker regarding his client’s property in Zone 2. The

e-mail states: “Please . . . note that because the property is 

within the City’s Landslide Moratorium Area, you would not be 

able to construct a new house anywhere on this lot, even with the 
12

proper geotechnical reports.”4 The record discloses no application 

regarding the property about which the broker stated he 

inquired.

In August 2016, the city responded to a special 

interrogatory the landowners propounded regarding exclusions 

under Rancho Palos Verdes Municipal Code, section 15.20.100, 

with the following statement: “To date, [the city] has not found 

any Landslide Moratorium Exclusions granted under Municipal 

Code section 15.20.100.” In February 2017, Ara Mihranian, the 

city’s director of community development, testified that since the 

Monks case no applications for exclusion from the moratorium 

had been filed.

5

 

4 The e-mail is undated, contains no information in the 

“from” field, and offers no identifying information about the 

specific lot to which it refers. The trial court sustained the city’s 

objection to the e-mail and to the portion of the real estate 

broker’s declaration purporting to contextualize and authenticate 

the e-mail. The landowners have not appealed the trial court’s 

evidentiary ruling.

5 The record is silent regarding whether there were any 

applications before our Monks opinions. The record indicates that 

Neil Siegel purchased his property in the early 1990’s and 

“periodically re-engaged . . . over the years” with the city’s 

director of planning regarding permission to build on his lot. 

“The substance of those communications,” according to Siegel, 

“was that ‘his hands were tied[,]’ and that the City Council would 

be establishing requirements for how to go about obtaining 

permission to develop, that at present no procedure existed for 

obtaining permission to develop this lot, but that the City Council 

would eventually establish such procedures; but that no 

application for development of this lot could be accepted by his 

office at this time.” Siegel’s declaration, dated February 9, 2017,
13

On July 28, 2017, the trial court conducted a hearing on the 

petition for writ of mandamus and complaint. The trial court 

denied the petition for writ of mandate and found that the 

landowners had failed to demonstrate that the moratorium 

constituted an unlawful taking. In the trial court’s view, the 

landowners did not demonstrate that the moratorium, “on its 

face, prevent[ed] all economic use of properties located in Zone 2.” 

The trial court further noted that the landowners needed to 

“exhaust administrative remedies before the [trial court could] 

determine whether, as applied to the[ landowners’] properties 

and their intended uses for the properties, there is an unlawful 

taking.” 

On August 22, 2017, the trial court entered judgment for 

the city. The landowners timely appealed.

DISCUSSION

The landowners contend that they do not challenge the 

trial court’s determination regarding exhaustion of 

administrative remedies. They “instead challenge the 

constitutionality of the moratorium.” In so doing, however, the 

landowners necessarily challenge the trial court’s determination 

that they must exhaust administrative remedies. We explain 

below.

A. Constitutional Challenge

Assuming the landowners do not challenge the trial court’s 

determination that they must exhaust, but have not exhausted, 

administrative remedies, the landowners’ constitutional 

 

does not specify when “at present” and “at this time” were in the 

context of Siegel’s “periodic re-engagement” over the three 

referenced decades.
14

challenge to the moratorium is a facial challenge. (See Hensler v. 

City of Glendale (1994) 8 Cal.4th 1, 11 (Hensler).) Unless and 

until there is an administrative application of the moratorium or 

evidence establishing the futility of exhaustion, we have no 

means to determine the constitutionality of that application.

But the basis of the landowners’ facial challenge to Rancho 

Palos Verdes Municipal Code, chapter 15.20 is not clear from the 

landowners’ briefs. The challenge appears to be based on our 

finding in Monks II that the moratorium coupled with the city’s 

then-existing resolution No. 2002-43 constituted a categorical 

taking. (See Monks II, supra, 167 Cal.App.4th at p. 305.) 

The Rancho Palos Verdes Municipal Code lays out a

detailed administrative procedure by which an applicant can seek 

an exclusion from the city council. To grant an exclusion the city 

council must determine, among other things, that “[t]he exclusion 

shall not aggravate any existing geologic conditions in the area.” 

(Rancho Palos Verdes Mun. Code, § 15.20.100, subd. (C)(3).) This 

is the portion of the moratorium that the landowners contend 

makes the moratorium facially unconstitutional. In Monks, 

however, we were considering that language in the context of 

resolution No. 2002-43, which provided that the city’s final 

decision on an application for an exclusion would be to “continue 

to deny requests for development permits for new homes in the 

Zone 2 area . . . until an applicant submits a complete Landslide 

Moratorium Exclusion application” that established a gross 

safety factor of 1.5 or higher. The city has repealed resolution 

No. 2002-43, and the record contains no indication of how the city 

would ultimately decide an application for exclusion. 

Furthermore, there is nothing about the language of the
15

statute—absent the offending and repealed resolution—that 

commands the outcome the landowners urge.

Monks II is not dispositive, and application of our finding in 

Monks II to a changed set of circumstances is not appropriate or 

persuasive. Furthermore, neither the landowners’ arguments nor 

our review of the moratorium in the city’s municipal code reveal 

facial constitutional infirmity. (See also Tobe v. City of Santa 

Ana (1995) 9 Cal.4th 1069, 1084.)

B. Exhaustion of Administrative Remedies

1. Stare Decisis

Although the landowners claim to be challenging only the 

constitutionality of the moratorium, they argue at length about 

exhaustion of administrative remedies.6 The landowners contend

that Monks II absolves them of the responsibility for exhausting 

administrative remedies under the doctrine of stare decisis. We 

disagree.

Our holding in Monks II was about the moratorium in the 

context of a city council resolution that required Zone 2 property 

owners to establish a gross (or region-wide as opposed to local, or 

single-lot only) safety factor of 1.5 or higher as a condition of 

construction. (Monks II, supra, 167 Cal.App.4th at pp. 278-279.) 

“[I]n Monks I, we held that plaintiffs were excused from 

 

6 The landowners reiterate in their reply brief that their 

challenge to the moratorium is a facial challenge. However, 

having found no facial constitutional infirmity on our own review 

and having no facial constitutional infirmity identified for us, we 

can only conclude that the landowners’ challenge is to the city’s

potential future application of the moratorium (absent the 

resolution at issue in Monks II) if a fact-specific application for 

exclusion is ever presented.
16

exhausting their administrative remedies—from having to 

establish a gross safety factor of 1.5—on the ground of futility. 

The city council had already decided that Zone 2 had a safety 

factor less than 1.5 and was not going to be persuaded otherwise. 

We stated that plaintiffs should not be required to pay between 

$500,000 and $1 million to conduct a study in an attempt to prove 

what the city would not believe. Thus, the use of the 

administrative process was pointless.” (Id. at p. 304, original

italics.)

In Monks II, we noted that the evidence about the 

administrative requirements had not changed, and we therefore 

applied Monks I’s futility determination as the law of the case in 

Monks II. (Monks II, supra, 167 Cal.App.4th at p. 304.) We said: 

“The gist of the evidence did not change. At the trial, plaintiffs 

simply offered more evidence that a local safety factor was 

geologically acceptable and that their lots had a safety factor of at 

least 1.5; the city asserted again that, under the resolution, 

plaintiffs had to prove a gross safety factor and offered more 

evidence that the safety factor of Zone 2 was less than 1.5. And 

no one [citation] provided any additional evidence about the cost 

of determining the gross safety factor of Zone 2. In these 

circumstances, it would make a mockery of the principle of 

finality . . . if, after we remanded the takings claim for a trial on 

the merits, the trial court found instead that plaintiffs should 

seek an exclusion under the resolution a second time, using the 

same administrative process as before.” (Ibid.)

On January 21, 2009, the city repealed the resolution that 

commanded the outcomes in our Monks I and Monks II opinions. 

Neither the record nor our review of the city’s municipal code 

reveals any evidence that the city continues to require property 
17

owners to demonstrate a gross safety factor of at least 1.5 as a 

condition of construction. Our opinion in Monks II dealt almost 

exclusively with resolution No. 2002-43 and how it implemented 

the moratorium. We did not in that case consider the 

moratorium outside the context of that resolution. Because 

“ ‘cases are not authority for propositions not considered,’ ” (In re 

Marriage of Cornejo (1996) 13 Cal.4th 381, 388) Monks II is not 

dispositive of the exhaustion of administrative remedies question 

here.

2. Futility of Exhaustion of Remedies

“The Ninth Circuit ‘recognizes a limited futility exception to 

the requirement that a landowner obtain a final decision 

regarding the application of land use regulations to the affected 

property. . . . Under this exception, the resubmission of a 

development plan or the application for a variance from 

prohibitive regulations may be excused if those actions would be 

idle or futile. . . . The landowner bears the burden of 

establishing, by more than mere allegations, the futility of 

pursuing any of the steps needed to obtain a final decision. . . . 

Moreover, before claiming the exception, the landowner must 

submit at least one development proposal and one application for 

a variance if meaningful application and submission can be 

made. . . .’ [Citation.] [¶] . . . [¶]

“The futility exception as articulated in California cases 

has largely followed the pattern described by the [Ninth]

Circuit . . . . That is, our cases have recognized that the exception 

is narrow and that it requires some development proposal by the 

landowner and that only when, by way of its response to the 

proposal, a governmental agency has as a practical matter 

defined what development will be allowed may a court then 
18

determine whether there has been a taking. ‘The futility 

exception is extremely narrow: “[T]he mere possibility, or even 

the probability, that the responsible agency may deny the permit 

should not be enough to trigger the excuse. . . . . To come within 

the exception, a sort of inevitability is required: the prospect of 

refusal must be certain (or nearly so).” . . .’ ” (Calprop Corp. v. 

City of San Diego (2000) 77 Cal.App.4th 582, 593-594.)

The landowners’ stated justifications for not exhausting 

remedies here are unconvincing. The landowners rely on 

Joannou’s application for permission to build on her Zone 2 

property. But the record contains no information about whether 

the city approved or denied that application, which followed a 

settlement between Joannou and the city regarding another of 

Joannou’s properties that had slid several hundred feet onto a 

neighboring lot.

The remainder of the landowners’ evidence is no more 

convincing. The record contains no decisions by the city council 

on the ultimate question of whether anyone might build on a

property located in Zone 2. And the statements the record does 

contain appear to have all been elicited by the landowners and 

their counsel after the landowners had already filed suit. It is 

specious to contend that it would be futile to exhaust 

administrative remedies neither having attempted to do so nor 

having developed a record establishing futility before filing suit.

We cannot determine based on the record before us that the 

city’s response to any given application for exclusion is a foregone 

conclusion. We cannot, therefore, conclude that exhaustion of 

administrative remedies would be futile.
19

3. Expense of Exhaustion of Remedies

The landowners also correctly point out that “courts may 

consider the expense of the administrative process as one factor

in determining whether exhaustion is appropriate.”7 (Monks I, 

supra, B172698 at p. 18, italics added.) But it is not the only

factor. We found it a very persuasive factor in Monks I, where 

the parties agreed that exhausting administrative remedies 

would cost an individual homeowner hundreds of thousands of 

dollars, if not more than $1 million to reach a conclusion that

resolution No. 2002-43 necessarily foreordained.

Here, however, the expense of exhaustion is summarized in 

the landowners’ argument that they “did not want to hire 

architects and engineers and pay fees only to see an application 

for an exclusion rejected.”8 Fees to hire architects and engineers

to work with a single parcel are not the “unusual expense” to 

which we referred in Monks I, where the lot owners were facing 

the expense of establishing the gross safety factor for a 130-acre 

piece of the city. Nor are they unusual expenses at all in the 

 

7 The landowners rely heavily on this language from our 

published opinion in Monks II, where it appears in the 

background section as a quote from Monks I. This language in 

the background section of Monks II should not be relied upon in 

any other case as anything other than background for the issues 

we were deciding and the law of the case in Monks II.

8 At oral argument, the landowners argued that building on 

a Zone 2 lot would cost approximately $35 million to essentially 

“dig out” of the landslide. That cost, however, assuming the city 

would even require “digging out” of the landslide, would be a 

building cost, not an application cost. The evidence is relevant, 

therefore, not to the question of futility of applying for permission 

to build, but to the cost of building, which is not before us.
20

process of acquiring a building permit. We cannot conclude from 

the record before us that the expense of applying for an exclusion 

from the city’s building moratorium excuses the landowners from 

that administrative process.

DISPOSITION

The judgment is affirmed. The city is entitled to its costs 

on appeal.

CERTIFIED FOR PUBLICATION.

CHANEY, Acting P. J.

We concur:

BENDIX, J.

CURREY, J.

 



Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.