Opinion
B305255
10-23-2020
LOS ANGELES TENANTS UNION: HOLLYWOOD LOCAL et al., Plaintiffs and Appellants, v. CRE-HAR CROSSROADS SPV, LLC, et al., Defendants and Respondents.
Los Angeles Center for Community Law and Action, Noah Grynberg, Tyler Anderson, Gina Hong, and Sarah Walkowicz for Plaintiffs and Appellants. DLA Piper, A. Catherine Norian, Kyndra Joy Casper, Andrew Brady, and Karen L. Hallock for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19STCV44867) APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara M. Scheper, Judge. Affirmed in part, reversed in part. Los Angeles Center for Community Law and Action, Noah Grynberg, Tyler Anderson, Gina Hong, and Sarah Walkowicz for Plaintiffs and Appellants. DLA Piper, A. Catherine Norian, Kyndra Joy Casper, Andrew Brady, and Karen L. Hallock for Defendants and Respondents.
Plaintiffs Rosemary Fajarit, Daniel Hernandez, Jaime Sanchez, and Los Angeles Tenants Union: Hollywood Local (Los Angeles Tenants Union) (collectively, plaintiffs) appeal from the trial court's sustaining a demurrer and dismissing their action against defendants CRE-HAR Crossroads SPV, LLC (developer) and Cross Roads Properties I, LLC (owner) (collectively, defendants).
Plaintiffs are, or represent, tenants of rent-stabilized apartments that defendants intend to demolish to make way for a new development. Plaintiffs alleged that defendants, in exchange for approval of the development from the City of Los Angeles (the City), agreed to certain conditions. At issue in this case is Condition 14, which requires defendants to provide the tenants with a right of first refusal to units in the new development at favorable rental rates. Plaintiffs alleged defendants have not complied with this condition. Instead, defendants have presented tenants with agreements purporting to grant a right of first refusal, but that are unapproved by the City and that impose additional terms and conditions conflicting with the language and intent of Condition 14. The individual plaintiffs refused to sign the agreements, and filed suit seeking a declaration that they had an unconditional right of first refusal under Condition 14 independent of the agreement offered by defendants.
Plaintiffs further alleged that, in an effort to encourage tenants to vacate, defendants violated Los Angeles Municipal Code section 151.31 (section 151.31) by failing to provide the notice of tenant rights required by that ordinance before making buyout offers. Plaintiffs also asserted causes of action for negligence per se and violation of the Unfair Competition Law based on the purported violations of Condition 14 and section 151.31.
The trial court sustained a demurrer to the entire action, concluding that until the City completed its approval process for the development, the litigation was premature.
We agree with the trial court that the claims based on Condition 14 are premature. Condition 14 does not set forth the scope of the tenants' right of first refusal; instead, it contemplates a subsequent process through which defendants and the City develop a plan to grant that right of first refusal. A court must measure defendants' conduct against that final approved plan, not Condition 14 itself. Plaintiffs allege the City has yet to approve defendants' plan. Until the City does so, a court cannot resolve the controversy presented here.
The trial court erred, however, in dismissing the claims based on section 151.31. Those claims are unrelated to Condition 14 or development approvals, and are instead based on an ordinance applicable to any landlord extending a buyout offer to a tenant of a rent-stabilized unit. Those claims may proceed.
Having concluded the claims under Condition 14 are unripe and properly dismissed, we reverse the trial court's order applying special rules for challenges to approvals for environmental development leadership projects.
FACTUAL BACKGROUND
Plaintiffs alleged the following in the First Amended Complaint (FAC), the operative pleading.
Defendant developer is the developer of a planned eight-building complex at the " 'Crossroads of the World' " site in Hollywood (the project). Defendant owner is the owner of the property on which the project is to be built (the property). Plaintiffs Fajarit, Hernandez, and Sanchez are current tenants of rent-stabilized apartments located at the property. Plaintiff Los Angeles Tenants Union is an unincorporated civic association comprised of tenants living in the Hollywood area, some of whom reside at the property, including Fajarit, Hernandez, and Sanchez.
The FAC alleged that developer and owner are agents, employees, principals, officers, partners, joint venturers, representatives, coconspirators, and assigns of one another. Accordingly, with few exceptions, the FAC does not specify which defendant was responsible for what conduct, instead alleging that defendants acted in concert.
1. The project's approval proceedings
In May 2015, developer petitioned the City for an entitlement to construct the project. In September 2018, the City's Planning Commission approved the entitlement subject to 70 conditions of approval. Condition 14 required defendants to provide existing tenants of rent-controlled units at the property with a right to return to a new unit in the proposed development at favorable rental rates.
In November 2018, a group called Livable LA appealed the project's approval to the City Council's Planning and Land Use Management Committee (PLUM Committee), challenging the adequacy of the project's environmental impact report and the legality of Condition 14 as written. On January 15, 2019, the PLUM Committee granted in part and denied in part the appeal and, inter alia, recommended the City Council adopt the findings of the Planning Commission and sustain the approval of the project subject to conditions of approval as modified by the PLUM Committee.
The modified Condition 14 provided, "The applicant [developer] shall coordinate with the Department of City Planning, in consultation with the Council Office of District 13, to ensure that qualified tenants residing in the Courtyard Apartments located at 6200 Selma Avenue and 1535 Las Palmas Avenue [the property] are given first right of first refusal to return to a new unit once the proposed development has been constructed. Returning tenants, if qualified, shall be offered a unit reserved for Very Low Income Households. All other qualified tenants shall be offered a new unit at a rate no higher than their last rent payment in their [Rent Stabilization Ordinance] unit at the site with allowable 3% increase per year. These requirements shall apply to a minimum of 40 units. The applicant shall procure written approval of their first right of refusal plan from Council District 13 at the time of condition clearances."
The PLUM Committee further concluded that under policies of the City's Housing and Community Investment Department, defendants could not segregate the units subject to Condition 14 from the rest of the building.
On January 22, 2019, the City Council adopted the recommendation of the PLUM Committee.
2. Defendants make buyout offers to tenants of the property
In approximately March 2017, while developer's petition for approval of the project was pending, defendants hired a firm, DRA, Inc. (DRA) to "pressure [tenants] to leave their rent-controlled apartments." DRA opened an office at the property "in order to more easily access tenants as it attempted to pressure them to vacate."
DRA "persistently" provided flyers to tenants "with offers for 'early move options' and 'incentive programs.' " "DRA frequently represented that tenants would have to act fast to receive these supposed deals, for example, stating that they would be available 'for the next 30 days only.' " DRA also "held regular meetings" at the property, with food provided, at which DRA "explained that the coming demolition of the tenants' homes was inevitable, and therefore the tenants should sign early moveout agreements."
DRA also conducted "door-to-door solicitations" asking tenants "to attend one-on-one meetings" at DRA's office at the property "where tenants would be pressured to accept early moveout agreements." "One such set of offers was titled 'Tenancy Termination Agreements,' " which "laid out three different options for tenants . . . including free or discounted rent and advanced payment of relocation fees."
Plaintiffs alleged that DRA failed to provide a written notice of tenant rights before making these "buyout offers," in violation of section 151.31.
Approximately half of the tenants accepted DRA's offers and vacated. Approximately 50 tenants remain.
3. Defendants' offer of right to return to remaining tenants
In 2019, defendants informed the tenants remaining at the property "that they would have a right to return to the Property after the completion of the Project." Defendants did not provide this information to the tenants who had already vacated.
In March 2019, defendants provided the remaining tenants with a " 'Right to Return Agreement,' " which plaintiffs alleged was never vetted or approved by Council District 13, and which contained terms "inconsistent with the language and intent of Condition 14." In the FAC, plaintiffs identified some of the allegedly inconsistent terms, including: The tenant only has 30 days to accept an offered new unit; the property owner has discretion as to all aspects of the "Return Premises" apart from number of bedrooms, parking spaces, and nonsegregation from the rest of the building; the property owner may revoke the right of return if the tenant is convicted of a violent or sexual criminal offense; the tenant waives the right to sue or to challenge the project, or to assist anyone else who challenges the project; the owner and tenant agree not to disparage each other; the owner and tenant waive any right to attorney fees and costs related to enforcing the agreement; and the agreement will terminate if the property owner abandons the project.
Plaintiff Sanchez signed the Right to Return Agreement after crossing out many provisions, and stated in a cover letter that he would accept the modified agreement. Defendants did not accept the modifications.
Plaintiffs Hernandez and Fajarit did not sign the Right to Return Agreement, instead sending letters to defendants stating their intent to return to comparable units. Defendants did not respond to the letters.
In August 2019 both the City's Housing and Community Investment Department and defendants' law firm notified the tenants that they would be evicted pursuant to the Ellis Act, Government Code section 7060 et seq. In September 2019, defendants notified the tenants that they would have until October 25, 2019 to accept the Right to Return Agreement. On or about October 26, 2019, defendants served the tenants with notices of eviction.
The Ellis Act "allows landlords who comply with its terms to go out of the rental business by evicting their tenants and withdrawing all units from the market even if doing so would otherwise violate a local rent control ordinance." (Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 156, fn. 1.)
On or about October 29, 2019, DRA announced at a meeting at the property that any tenants exercising their right of return would be placed in units segregated from the rest of the building.
PROCEDURAL HISTORY
1. Complaint
Plaintiffs filed a complaint against defendants on December 13, 2019, and the FAC on January 6, 2020, alleging four causes of action.
The first cause of action was for declaratory relief. Plaintiffs sought "a declaration that Defendants have not complied with Condition 14" by "failing to develop a right of first refusal plan in collaboration with the City Planning Commission and Council District 13," "failing to have the 'right of return' agreement approved by the City Planning Commission and Council District 13," and "failing to provide an unconditional right of first refusal to each of the tenants at the Property." Plaintiffs also sought a declaration "that Defendants cannot segregate the units subject to Condition 14 from the rest of the building pursuant to the PLUM Committee's January 15, 2019 finding that such segregation would violate Los Angles Housing and Community Investment Department Policies."
The second and third causes of action alleged negligence per se and violation of the Unfair Competition Law, Business and Professions Code section 17200 et seq. (UCL). Both causes of action were premised on defendants' failure to comply with Condition 14, the PLUM Committee's determination regarding unit segregation, and section 151.31.
For the negligence claim, plaintiffs alleged damages including "diminution in value of the leasehold, out-of-pocket costs, lost wages and benefits, reasonable medical expenses, and property damage," as well as emotional distress. Plaintiffs also sought punitive damages and an injunction against defendants' "negligent practices."
For the UCL claim, the individual plaintiffs alleged "economic injury" consisting of "loss of a future leasehold in the Project, the costs associated with recovering statutory damages to which they are entitled under the Los Angeles Rent Stabilization Ordinance, diminution in the value of their leasehold, and time and wages lost to deal with Defendants' unfair business practices." The individual plaintiffs also claimed to have suffered "uncertainty, mental anguish, and harm to their reputation, standing, and credit." Los Angeles Tenants Union claimed economic injury "both through its members, . . . and by reason of the expenses and costs it has incurred in running tenants' rights clinics and visiting the Property." Plaintiffs sought both restitution and an injunction against defendants' unfair business practices.
The fourth cause of action sought damages and statutory penalties under section 151.31 itself.
2. Demurrer
Defendants filed a demurrer to all causes of action. Defendants also filed a motion for a court order confirming the case was subject to California Rules of Court, rule 3.2220 et seq. governing challenges to environmental leadership development projects (ELDP rules).
The trial court sustained the demurrer in its entirety without leave to amend. The court found that plaintiffs' action was premature, and it would be "wholly inappropriate" to rule on defendants' compliance with Condition 14 before the City's approval process was complete. The court stated, "[P]laintiff[s] ha[ve] not exhausted the processes within the City before challenging any final decision the City may make with respect to the compliance with this [C]ondition 14."
As to the claims based on section 151.31, the trial court stated, "I think the entirety of the action is premature, and . . . since I can't make a finding on the central issue, in my view, regarding whether [Condition 14] has been properly complied with, I think that it's not proper to get into any of the other evidence or causes of action at this time."
The trial court granted the motion to apply the ELDP rules to the case, including California Rules of Court, rule 8.700 et. seq. governing appeals.
The trial court entered an order of dismissal on March 12, 2020. Plaintiffs timely appealed from the judgment of dismissal, noting in the notice of appeal that the appeal was subject to the ELDP rules.
STANDARD OF REVIEW
" 'In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.' [Citation.] ' " ' "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law." ' " ' [Citation.] We 'adopt[ ] a liberal construction of the pleading and draw[ ] all reasonable inferences in favor of the asserted claims.' [Citation.] We are not bound by the trial court's reasoning and may affirm the judgment if correct on any theory." (Robertson v. Saadat (2020) 48 Cal.App.5th 630, 639 (Robertson).) "[I]f any part of a cause of action is properly pleaded, the demurrer [to that cause of action] will be overruled." (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452 (Fire Ins. Exchange).)
A trial court's decision to sustain a demurrer without leave to amend is reviewed for abuse of discretion. (Phoenix Mechanical Pipeline, Inc. v. Space Exploration Technologies Corp. (2017) 12 Cal.App.5th 842, 846.) "If the complaint does not state facts sufficient to constitute a cause of action, the appellate court must determine whether there is a reasonable possibility that the defect can be cured by amendment." (Id. at p. 847.) The plaintiff bears the burden on appeal of showing how the complaint may be amended to state a cause of action. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 36.) The plaintiff may make that showing in the reviewing court even if not made below. (Ibid.)
DISCUSSION
Plaintiffs' first cause of action is based on Condition 14, and the fourth cause of action is based on section 151.31. The second and third causes of action (negligence per se and UCL) are premised on both. We therefore will discuss the first and fourth causes of action first, then proceed to the second and third.
As discussed, plaintiffs also alleged in their first, second, and third causes of action that defendants intended to segregate the units subject to Condition 14 from the rest of the building, contrary to the PLUM Committee's determination that such a segregation would violate City policies. The trial court did not address those allegations expressly when sustaining the demurrer; because, however, the trial court's sole stated basis for sustaining the demurrer was unripeness, we may presume the trial court concluded the claims based on the PLUM Committee's determination also were unripe. On appeal, plaintiffs do not challenge that implicit finding. We therefore consider the issue forfeited and express no opinion on it. (Robertson, supra, 48 Cal.App.5th at p. 650 [argument forfeited if not raised in appellate briefing].)
A. The first cause of action for declaratory relief is not ripe
A person may bring an action for declaratory relief to resolve an "actual controversy relating to the legal rights and duties of the respective parties." (Code Civ. Proc., § 1060.) Plaintiffs' cause of action for declaratory relief centers on defendants' compliance with Condition 14. The controversy plaintiffs wish to resolve, as they characterize it in their appellate briefing, is whether tenants are "entitled to a right to return under Condition 14 even though they did not sign the Right to Return Agreements," which plaintiffs allege did not comply with Condition 14. In other words, plaintiffs ask for a declaration of tenant rights under Condition 14, specifically that tenants have an unconditional right to return that cannot be abrogated by the Right to Return Agreements or their failure to sign those agreements.
We agree with the trial court that this cause of action is premature. Plaintiffs presume Condition 14 is the final word on the tenants' right of first refusal. This is incorrect. Condition 14 does not grant tenants an unconditional right of first refusal. Rather, it requires defendants to "coordinate" and "consult" with the City and to develop a "first right of refusal plan" subject to the City's approval. Thus, Condition 14 itself does not dictate the scope of tenants' right of first refusal, but contemplates a subsequent process through which defendants and the City determine that scope.
Whether defendants' Right to Return Agreement complies with Condition 14 must be assessed based on the plan ultimately developed with, and approved by the City, not Condition 14 itself. Plaintiffs themselves alleged the City has yet to approve a plan, thus making clear there is nothing against which to judge the Right to Return Agreement or to determine plaintiffs' rights. (See Santa Barbara County Flower & Nursery Growers Assn. v. County of Santa Barbara (2004) 121 Cal.App.4th 864, 875 ["a controversy is not ripe for adjudication until the administrative process is completed and the agency makes a final decision that results in a direct and immediate impact on the parties."].)
This is not to say that Condition 14 has no bearing on the elements of the final plan. A plan that fails to provide, at minimum, a right to return to a new unit at the favorable rates specified in Condition 14, might indeed be subject to challenge. We note, however, that plaintiffs did not allege that defendants' Right to Return Agreement lacked the right of first refusal specified in Condition 14. Instead, they alleged the agreement improperly imposed additional terms and conditions. Again, in the absence of an approved plan, it is premature to assess whether the additional terms and conditions violate Condition 14.
We express no opinion whether an action for declaratory relief would be the proper mechanism to bring such a challenge.
It is also premature to determine that defendants have violated Condition 14 by not obtaining approval of their plan, because the City may yet approve the plan. Plaintiffs have not alleged that the deadline for doing so under Condition 14—"the time of condition clearances"—has passed.
Defendants requested we take judicial notice of documents purportedly establishing that they have already obtained approval of a right of first refusal plan and the Right to Return Agreement from Council District 13. We denied the request in a separate order.
Plaintiffs, citing Urban Habitat Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, 1580, argue that their claim is ripe because the controversy is "definite, concrete, and admits of specific relief," and "plaintiffs will continue to suffer hardship from the withholding of court consideration." Assuming arguendo this is the appropriate test for ripeness here, we disagree the controversy is definite and concrete in the absence of an approved plan from the City. That plan is a necessary backdrop to the resolution of this controversy.
We reiterate that plaintiffs' cause of action for declaratory relief asks only for a declaration of the scope of the tenants' right of first refusal under Condition 14. Plaintiffs are not challenging the alleged eviction notices, defendants' right to proceed with the project, or the City's approval of the project. We express no opinion as to whether our ripeness analysis would differ under those or other circumstances, nor do we express an opinion as to whether a declaratory relief action would be an appropriate means to address those circumstances.
B. Plaintiffs adequately pleaded the fourth cause of action for violation of Los Angeles Municipal Code section 151.31
Plaintiffs' fourth cause of action alleged violation of section 151.31. That section of the Los Angeles Municipal Code "provides for regulation, monitoring and enforcement of voluntary vacancies of [rent-stabilized] rental units occurring pursuant to a Buyout Agreement." (§ 151.31, subd. (A).) It requires that "[b]efore making a Buyout Offer," the landlord must provide to the tenant a "[Rent Stabilization Ordinance] Disclosure Notice of tenant rights," which both the landlord and the tenants must date and sign. (Id., subd. (C).) "Buyout Offer" is defined as "[a]n offer, written or oral, by a landlord to a tenant to pay money or other consideration to vacate a[ ] [rent-stabilized] unit." (Id., subd. (B).) A tenant may "recover damages and a penalty of $500" from a landlord who violates any provision of section 151.31. (Id., subd. (F).)
Plaintiffs adequately pleaded the fourth cause of action, alleging that defendants failed to provide tenants with the required notice before making buyout offers.
The trial court nonetheless sustained the demurrer to the cause of action, concluding that the unripeness of the "central issue" of Condition 14 rendered the entire lawsuit premature. This was error. Section 151.31 is a city ordinance applicable to landlords of rent-stabilized units, and is unrelated to Condition 14 or any aspect of the City's approval process for the project. Accordingly, it is unaffected by any determinations the City might make regarding the project.
Defendants attempt to offer alternative bases to dismiss the fourth cause of action. Defendants request that we take judicial notice of tenancy termination agreements signed by tenants, as well as a letter from the City's Housing and Community Investment Department, which purportedly establish that defendants provided the required notice. We denied this request in a separate order.
Defendants argue plaintiffs conceded in their opposition papers to the demurrer "that each tenant who had signed [the tenancy termination] agreement had received the proper notice." (Italics omitted.) The record indicates that in summarizing defendants' arguments on demurrer, plaintiffs described the documents for which defendants sought judicial notice. We reject the contention that summarizing an opposing party's arguments and offered evidence somehow concedes those arguments or the veracity of that evidence.
Defendants also argue that the plaintiffs alleged that defendants' representative DRA merely "solicited tenants to enter into negotiations" and provided information about their buyout options. Defendants contend these cannot constitute "offers" for purposes of section 151.31. Without knowing the content of DRA's solicitations and information, we cannot determine on demurrer whether those solicitations and constitutions legally constituted offers. Also, defendants concede that, at minimum, the tenancy termination agreements referred to in the FAC constituted buyout offers. Thus, plaintiffs pleaded the fourth cause of action adequately.
C. Plaintiffs did not adequately plead the second cause of action for negligence per se
Plaintiffs contend that defendants' violations of Condition 14 and section 151.31 constitute negligence per se. " 'The doctrine of negligence per se is based on "the rule that a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm that the plaintiff suffered as a result of the violation." ' " (David v. Hernandez (2014) 226 Cal.App.4th 578, 584.)
This presumption of negligence is codified in Evidence Code section 669, subdivision (a): "The failure of a person to exercise due care is presumed if: [¶] (1) He violated a statute, ordinance, or regulation of a public entity; [¶] (2) The violation proximately caused death or injury to person or property; [¶] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [¶] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted."
The trial court dismissed the second cause of action along with the rest of the lawsuit based on the City's ongoing approval process. This was error, because even if the claims based on Condition 14 were unripe, the second cause of action was also premised on section 151.31.
We nonetheless conclude the trial court properly sustained the demurrer to the second cause of action. (Robertson, supra, 48 Cal.App.5th at p. 639 [reviewing court may affirm judgment after sustaining of demurrer "if correct on any theory"].) As plaintiffs recognize in their briefing, negligence per se "does not provide a private right of action for violation of a statute. [Citation.] Instead, it operates to establish a presumption of negligence for which the statute serves the subsidiary function of providing evidence of an element of a preexisting common law cause of action." (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285-1286 (Quiroz).) "Even if the four requirements of Evidence Code section 669, subdivision (a), are satisfied, this alone does not entitle a plaintiff to a presumption of negligence in the absence of an underlying negligence action. (Quiroz, at p. 1285.) Thus, a plaintiff may not establish negligence merely by showing the defendant violated a statute; rather, "the Evidence Code section 669 presumption of negligence applies only after determining that the defendant owes the plaintiff an independent duty of care." (California Service Station etc. Assn. v. American Home Assurance Co. (1998) 62 Cal.App.4th 1166, 1180 (California Service Station), italics added.)
Here, plaintiffs have not alleged a "preexisting common law cause of action" based on a duty of care independent of Condition 14 and section 151.31. (Quiroz, supra, 140 Cal.App.4th at p. 1286; California Service Station, supra, 62 Cal.App.4th at p. 1180.) Instead, the FAC alleges that "Defendants are responsible for abiding by the Conditions of Approval for the Project, the breach of which constitutes negligence per se," and "Defendants are responsible for abiding by . . . Section 151.31, the breach of which constitutes negligence per se." (Italics omitted.) In other words, plaintiffs are alleging nothing more than violations of Condition 14 and section 151.31. Again, negligence per se "does not provide a private right of action for violation of a statute" (Quiroz, at p. 1285) in the absence of a duty of care independent of that statute. Having not pleaded an independent duty of care, plaintiffs have failed to state a cause of action for negligence per se.
We express no opinion as to whether under other circumstances, a violation of a condition of approval of a development project can support the presumption under Evidence Code section 669.
D. Plaintiffs adequately pleaded the third cause of action for violation of the Unfair Competition Law
"The UCL prohibits unfair competition, defined as 'any unlawful, unfair or fraudulent business act or practice.' " (Abbott Laboratories v. Superior Court (2020) 9 Cal.5th 642, 651, quoting Bus. & Prof. Code, § 17200.) Plaintiffs who prevail on a UCL claim may obtain restitution and injunctive relief, as appropriate. (See Clark v. Superior Court (2010) 50 Cal.4th 605, 610.) "A business practice is unlawful 'if it is forbidden by any law,' " but "[a] business practice . . . may be unfair or fraudulent in violation of the UCL even if the practice does not violate any law." (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 827 (Olszewski).)
Plaintiffs allege UCL claims based on defendants' violations of Condition 14 and section 151.31. The claims based on Condition 14 are unripe for the same reasons as they are unripe under the first cause of action: Until the City approves a right of first refusal plan, the trial court cannot determine whether defendants have complied, and therefore cannot determine if defendants' conduct is unlawful, unfair, or fraudulent. We express no opinion as to whether plaintiffs could state a cause of action under the UCL once the City approves (or disapproves) defendants' plan.
As set forth earlier in our discussion, the unripeness of plaintiffs' Condition 14 claims does not extend to their section 151.31 claims. Defendants' alleged conduct of failing to provide the required notices of rights to tenants before making buyout offers is " 'forbidden' " by section 151.31, and therefore is "unlawful" for purposes of the UCL. (Olszewski, supra, 30 Cal.4th at p. 827.)
The allegations in the FAC, construed liberally, could support injunctive relief barring defendants from making further buyout offers without the required notice under section 151.31. It is not entirely clear if plaintiffs are alleging that defendants are still making buyout offers, but the FAC does not foreclose the possibility, and we are required to take all inferences in plaintiffs' favor. Defendants make no arguments to the contrary, focusing instead in their briefing on the Condition 14 allegations. We therefore conclude plaintiffs have adequately pleaded a UCL claim, and the trial court should not have dismissed this cause of action. (Fire Ins. Exchange, supra, 116 Cal.App.4th at p. 452 [improper to sustain demurrer "if any part of a cause of action is properly pleaded"].) We express no opinion as to whether plaintiffs are entitled to restitution.
E. This action is not subject to the ELDP rules
Plaintiffs contend the trial court erred in determining this lawsuit was subject to the ELDP rules. Those rules "govern actions or proceedings brought to attack, review, set aside, void, or annul the certification of the environmental impact report or the grant of any project approvals for" environmental leadership development projects. (Cal. Rules of Court, rule 3.2220(b).) Plaintiffs do not dispute that the project is an ELDP, but argue they are not challenging the project itself or its approvals, and thus the ELDP rules do not apply.
Unspecified rule citations are to the Rules of Court.
Defendants argue plaintiffs forfeited this challenge by not including the trial court's ELDP order in the notice of appeal. On the merits, defendants argue the FAC seeks review of Condition 14, and attacks defendants' compliance with that condition, and therefore falls within the language of rule 3.2220(b).
We reject defendants' contention that plaintiffs forfeited this challenge. A notice of appeal from a judgment encompasses nonappealable orders prior to that judgment, which do not have to be specified in the notice. (Eisenberg et al., Cal. Prac. Guide: Civil Appeals and Writs (The Rutter Group 2019) § 3:119.) Defendants cite no authority that an order determining an action is subject to the ELDP rules is independently appealable, nor have we located any.
Assuming arguendo that plaintiffs' claims based on Condition 14 fall within the language of rule 3.2220(b), those claims are all unripe, as set forth above. The only viable matters in the FAC pertain to section 151.31, which are unrelated to "the certification of the environmental impact report or the grant of any project approvals." (Rule 3.2220(b).) In light of our holding on the Condition 14 claims, the ELDP rules would no longer apply to this litigation.
DISPOSITION
The judgment of dismissal is affirmed as to the first and second causes of action, and reversed as to the third and fourth causes of action. The order applying California Rules of Court, rules 3.2220 et seq. and 8.700 et seq. to this lawsuit is reversed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.