Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. BC338400, George H. Wu, Judge.
Christopher Sutton for Plaintiffs and Appellants.
Aleshire & Wynder and June S. Ailin for Defendants and Respondents.
MOSK, J.
INTRODUCTION
Plaintiffs and appellants Ivan and Barbara Newman (plaintiffs) appeal a judgment of dismissal entered after the trial court sustained without leave to amend demurrers to their second amended complaint. Defendants and respondents are the Community Redevelopment Agency of the City of Los Angeles (the Agency) and the City of Los Angeles (the City). J.H. Snyder Group, LLC (Snyder) was sued as a real party in interest. For the reasons stated below, we affirm.
BACKGROUND
A. Factual Background
As we must, we accept as true the well-pleaded factual allegations in the second amended complaint. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) Plaintiffs alleged the following facts:
In May 1996, the City approved the creation of the Mid City Recovery Redevelopment Project Area (the Project Area), consisting of 725 acres in central Los Angeles that encompasses hundreds of privately owned parcels. The Project Area is managed—along with 37 other redevelopment project areas in the City—by the Agency. By city ordinance, the City adopted a redevelopment plan for the Project Area (the Redevelopment Plan). The Redevelopment Plan provides that, subject to the Redevelopment Plan and rules adopted by the Agency, owners of real property in the Project Area “shall be given the opportunity to participate in redevelopment by rehabilitation, retention of improvements, or new development . . . .”
Plaintiffs own a piece of property (the property) within the Project Area, located at 5057 West Adams Boulevard. The property has been leased to AutoZone, a national chain of auto parts stores. It contains a 12,000 square foot commercial building and an external parking area. Its signage is visible from the Santa Monica Freeway.
In 2000, the Agency entered into an “exclusive negotiating agreement” (ENA) with Ronald A. Simms Commercial Development (the Simms ENA). An ENA is “an agreement entered into between the Agency and a private developer whereby the parties agree to negotiate for a set period of time, and to refrain from negotiating with others, for the development of a particular site.” In 2002, the Agency denied plaintiffs’ request for building permits, and “justified” its denial by citing “the pending status” of the Simms ENA. Plaintiffs sued the Agency, but subsequently dismissed their case without prejudice when the Simms ENA expired.
During 2004 and 2005, plaintiffs and AutoZone renovated the property at a cost of more than $1 million. The City and the Agency reviewed and approved the renovation plans and determined that the renovation conformed to the Redevelopment Plan. After the renovation work was completed, “employees of the City and/or Agency” inspected the property and approved the completed work. Based on the renovation, plaintiffs requested that the Agency issue them a certificate of conformance to certify that the property met “the requirements of the Redevelopment Plan.” Such a certificate, plaintiffs allege, would exempt the property from the Agency’s powers of eminent domain should the Agency later wish to redevelop the property. The Agency denied plaintiffs’ request in September 2006.
The Agency entered an ENA with Snyder (the Snyder ENA) with respect to redevelopment of a five-block portion of the Project Area that encompasses the property. One member of the Agency’s Board of Commissioners recused herself from the vote to approve the Snyder ENA. Plaintiffs allege that this Commissioner had an actual conflict of interest because a corporate entity with which she was affiliated had received funds from various labor unions “to facilitate the development of a Costco store” on the land subject to the Snyder ENA. The Snyder ENA was nevertheless approved, and Snyder deposited $155,000 with the Agency. The Agency’s Board of Commissioners extended the Snyder ENA in February 2006, but affected property owners received no notice of the meeting. The Snyder ENA expired in August 2006 with no formal development agreement between Snyder and the Agency.
B. Procedural Background
Plaintiffs filed their original complaint on August 16, 2005, seeking only a declaration that the Snyder ENA was invalid. The Agency and Snyder demurred. The trial court granted the demurrers with leave to amend. Plaintiffs filed a first amended complaint on March 21, 2006. The first amended complaint alleged seven causes of action for declaratory and injunctive relief. The Agency and Snyder again demurred. The trial court again sustained the demurrers with leave to amend.
Plaintiffs filed their second amended complaint on October 11, 2006, approximately two months after the Snyder ENA expired. Plaintiffs alleged eight causes of action for: (1) a declaration that the Snyder ENA was invalid; (2) an injunction prohibiting “any all [sic] further expenditures of public funds or resources pursuant to any [ENA] regarding the Adams-La Brea area” until the City and the Agency “fully comply with the provisions of law;” (3) a declaration that plaintiffs were entitled to a certificate of conformance for the property; (4) a writ of mandate compelling the Agency to issue a certificate of conformance; (5) a declaration adjudicating “the respective rights of the parties” regarding the “procedures and practices” of both the City and the Agency relating to ENAs, as wells as “any and all other matters which relate to [ENAs] within any or all of [the City’s] thirty-eight redevelopment project areas;” (6) a declaration adjudicating “the respective rights of the parties” regarding the “procedures and practices” of the City and the Agency relating to “any request or proposal for ‘owner participation’ . . . within each and every of the thirty eight [sic]redevelopment project areas” in the City, as well as “any and all other matters which relate to ‘owner participation;’” (7) an injunction compelling the City and the Agency “to handle their future considerations [of] any [ENA] and/or any request for ‘owner participation’ in full compliance” with various constitutional, statutory and regulatory provisions; and (8) administrative mandamus to compel the Agency to issue a certificate of conformance for the property.
The Agency and Snyder demurred to the second amended complaint. On January 25, 2007, the trial court sustained the demurrers without leave to amend. With respect to the first and second causes of action relating to the Snyder ENA, the trial court concluded that the claims were moot because the Snyder ENA had expired and “plaintiffs haven’t alleged any specific prospect of future injury based upon the expired ENA.” With respect to the fifth, sixth and seventh causes of action regarding “procedures and practices” relating to ENAs and owner participation, the trial court observed that there was no allegation that the Agency or the City had taken or were contemplating any action that would impact the plaintiffs’ ability to use their property. As a result, plaintiffs stated no justiciable claim. With respect to third, fourth and eighth causes of action regarding the certificate of conformance, the trial court concluded that the decision to issue the certificate was a discretionary decision, and plaintiffs failed to allege facts constituting an abuse of discretion. Plaintiffs timely appealed.
DISCUSSION
A. Standard of Review
An appeal from a judgment dismissing an action after the trial court sustains a demurrer without leave to amend presents a question of law that we review de novo. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415; Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 71; Morgan Creek Residential v. Kemp (2007) 153 Cal.App.4th 675, 683.) We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Evans v. City of Berkeley, supra, 38 Cal.4th at p. 6.) We also consider matters that may be judicially noticed. (Ibid.; see Code Civ. Proc. § 430.30, subd. (a).) The judgment must be affirmed if any one of several grounds of demurrer is well taken. (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 21; Franklin v. The Monadnock Co. (2007) 151 Cal.App.4th 252, 257.)
A trial court does not abuse its discretion by denying leave to amend if there is no reasonable possibility that the defect in the complaint can be cured by amendment. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810; see also Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 321.) “[W]hen a complaint contains allegations that are fatal to a cause of action, a plaintiff cannot avoid those defects simply by filing an amended complaint that omits the problematic facts or pleads facts inconsistent with those alleged earlier. [Citations.]” (Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044.)
B. Plaintiffs Have Failed to Demonstrate Error In Sustaining The Demurrers
1. Plaintiffs Forfeited Any Error in Sustaining the Demurrers
Plaintiffs assert that the trial court erred by sustaining the demurrers to plaintiffs’ “new supplemental causes of actions [sic]” in the second amended complaint. Plaintiffs do not identify which of their eight causes of action are the “new supplemental causes of action”; apparently, plaintiffs refer to all of them, as they ask us to “direct [the trial court] to overrule the demurrers as to some or all eight causes of action.”
Plaintiffs have forfeited any challenge to the merits of the trial court’s ruling sustaining the demurrers. California Rules of Court, rule 8.024(a) provides, “Each brief must: [¶] . . . [¶] (B) State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority . . . .” (Italics added.) “It is a fundamental rule of appellate review that the judgment appealed from is presumed correct and ‘ “ ‘all intendments and presumptions are indulged in favor of its correctness.’ ” [Citation.]’ [Citation.] An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. ‘Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.’ [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [italics added; fn. omitted]; accord, Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685; Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114; Golden Day Schools, Inc. v. Department of Education (1999) 69 Cal.App.4th 681, 695, fn. 9.)
Plaintiffs failed to include a table of authorities in their opening brief, in violation of California Rules of Court, rule 8.204(a)(1)(A).
In this case, plaintiffs’ point heading number 7 states, “IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO SUSTAIN THE DEMURRER TO PLAINTIFFS’ SUPPLEMENTAL CAUSES OF ACTION ALLEGED FOR THE FIRST TIME BASED ON NEW FACTS.” The argument that follows, however, makes no reference to the alleged error by the trial court in sustaining the demurrers—instead, plaintiffs merely assert that granting leave to amend is “especially favored” and that leave to amend is “liberally granted.” Plaintiffs do not cite or discuss the authorities upon which their claims were based; they make no attempt to explain how the facts alleged in the second amended complaint state a cause of action under each (or any) of those authorities; they do not specify how or why the trial court purportedly erred in sustaining the demurrers.
Plaintiffs at least refer to some relevant authorities in their reply brief, but “[i]t is too late. An appellant’s duty attaches at the outset. It would be unfair to permit an appellant to wait to argue his substantive points until after the respondent exhausts its only opportunity to address an issue on appeal. As a general rule, points not addressed until a reply brief will not be considered unless good reason is shown for failing to address them earlier. [Citation.] None has been shown here.” (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852, fn. 10.)
For example, plaintiffs’ eighth cause of action sought administrative mandamus to compel the Agency to issue a certificate of conformance with respect to the property. Plaintiffs asserted in the second amended complaint that, by denying plaintiffs a certificate of conformance, the Agency violated the “California Permit Streamlining Act (Government Code section 65920 et seq.);” the “goals and policies in Redevelopment Law, the Mid City Redevelopment Plan, the Mid City Owner Participation rules, and the California Permit Streamlining Act;” and Health and Safety Code sections 33212, 33121.5, 33339, 3339.5, 33345 and 33380. Yet, except in the course of reiterating or paraphrasing the allegations in the seconded amended complaint in their statement of facts, plaintiffs do not cite any of these authorities, let alone provide cogent legal argument to demonstrate how the facts alleged in the second amended complaint violated these provisions, or why these provisions entitle plaintiffs to the relief they request.
The same holds true for each of plaintiffs’ seven other causes of action. Plaintiffs’ second amended complaint is 47 pages long and contains seven causes of action and 251 paragraphs of factual allegations—yet plaintiffs’ argument that the trial court erred sustaining the demurrers consists of only 30 lines of text, half of which consists of a four-line subheading and an eleven-line block quotation. Plaintiffs cite four cases in that argument, all of which are cited for the settled proposition that leave to amend a pleading should be liberally granted. Plaintiffs cite and discuss none of the constitutional, statutory or regulatory provisions upon which they based their claims. Plaintiffs have not even attempted to state why there is any claim against Snyder.
“An issue merely raised by a party without any argument or authority is deemed to be without foundation and requires no discussion.” (Golden Day Schools, Inc. v. Department of Education, supra, 69 Cal.App.4th 681, 695, fn. 9.) Plaintiffs have forfeited any contention that the trial court erred by sustaining the demurrers.
2. In Any Event, the Trial Court Properly Sustained the Demurrers
Even if plaintiffs had not forfeited their assertions of error, the trial court properly sustained the demurrers without leave to amend. None of plaintiffs’ seven causes of action stated a legally sufficient claim.
a. First and Second Causes of Action Are Moot
Plaintiffs’ first and second causes of action seek declaratory and injunctive relief declaring the Snyder ENA void and prohibiting the expenditure of public funds with respect to “any [ENA] regarding the Adams-La Brea area . . . .” Plaintiffs alleged in the second amended complaint, however, that the Snyder ENA expired, and there is no allegation that the Agency has entered into another ENA with respect to the Project Area. The trial court correctly concluded that the first and second causes of action are moot. Declaratory relief is available only “in cases of actual controversy . . . .” (Code Civ. Proc., § 1060 [italics added].) “It would be an idle action on the part of a trial court to make a declaration of the rights and duties of the parties where the controversy is or has become moot and no actual controversy exists relating to their legal rights and duties [citations]. An action for declaratory relief should be dismissed where it appears that no justiciable controversy exists.” (Pittenger v. Home Savings & Loan Assn. (1958) 166 Cal.App.2d 32, 36; accord, Burke v. City etc. of San Francisco (1968) 258 Cal.App.2d 32, 34 [action for declaratory relief “will not lie to determine a matter which is or has become moot”].) Plaintiffs assert, without elaboration, that their claims are not moot because they are “likely to recur and involve important policy questions.” (See Gould v. Grubb (1975) 14 Cal.3d 661, 666, fn. 5.) There is no indication in the record, however, that any alleged illegalities with respect to any future ENA will evade meaningful judicial review (see Corrales v. Bradstreet (2007) 153 Cal.App.4th 33, 46), nor do we believe the issues presented by plaintiffs’ claims are of such broad public interest and sufficiently likely to recur that the trial court abused its discretion in declining to consider them. (See Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 172; MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214-215.)
b. Fifth, Sixth and Seventh Causes of Action Present No Justiciable Controversies
Plaintiffs’ fifth, sixth and seventh causes of action also do not present justiciable claims because they are not ripe. The fifth cause of action asks the court to “review all procedures and practices of the Agency and City regarding how they consider, approve, and extend the duration of any [ENA] for land within any of the thirty-eight (38) redevelopment project areas located throughout the City and encompassing thousands of privately owned parcels of land and thousands of residential, business, and non-profit tenants,” and to “declare and adjudge the respective rights of the parties regarding” those “procedures and practices,” as well as “any and all other matters which relate to [ENAs] within any or all of its [sic]thirty-eight redevelopment project areas.” (Italics added.) The sixth cause of action seeks a similar declaration regarding “all procedures and practices” and “any and all other matters which relate to” owner participation requests, “within each and every of the thirty-eight redevelopment project areas . . . .” The seventh cause of action seeks, in essence, a blanket injunction compelling the Agency and the City to comply with all applicable law—from the federal constitution to California statutory law to the Agency’s own rules regarding owner participation—with respect to both ENAs and owner participation requests.
“[A] basic prerequisite to judicial review of administrative acts is the existence of a ripe controversy.” (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 169.) “The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion.” (Id. at p. 170.) This requirement applies to actions seeking declaratory and injunctive relief. “‘The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.’ [Citation.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79; Levi v. O’Connell (2006) 144 Cal.App.4th 700, 706.) “ ‘The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. [Citation.] It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character . . . .’ ” (Pacific Legal Foundation v. California Coastal Com., supra, 33 Cal.3d at pp. 170-171.) “The court may sustain a demurrer on the ground that the complaint fails to allege an actual or present controversy, or that it is not ‘justiciable.’” (DeLaura v. Beckett (2006) 137 Cal.App.4th 542, 545.)
In their fifth, sixth and seventh causes of action, plaintiffs’ identify no specific, present controversy between plaintiffs and the Agency or the City with respect to any particular “procedures and practices” or any “matters” relating to ENAs or owner participation requests. The fifth, sixth and seventh causes of action do not seek to test the legality, under a specific provision of law, of a particular Agency practice or procedure that has caused or is likely to cause plaintiffs a concrete, identifiable detriment. Rather, those causes of action seek an advisory opinion regarding internal Agency procedures generally. To the extent the causes of action deal with the Snyder ENA, that agreement has expired so that the claims are moot. Consequently, plaintiffs’ claims do not concern a present, justiciable controversy. Instead, as plaintiffs’ counsel stated at the demurrer hearing, plaintiffs’ lawsuit is “about the ability [of plaintiffs] to plan in the future . . .,” (italics added) free from the threat that the Agency might—someday, under some set of circumstances that do not yet exist—exercise its power of eminent domain over the property.
In this respect, plaintiffs’ allegations in this case are little different than those at issue in Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110. In that case, a city adopted a development plan that showed proposed streets extending through the plaintiff’s property. (Id. at p. 115.) The plaintiff sought, inter alia, a declaration that the development plan was invalid. (Id. at p. 116.) The California Supreme Court held that the plaintiff had failed to allege a justiciable controversy. “We cannot discern in the foregoing allegations any concrete dispute between plaintiff and the county which admits of definitive and conclusive judicial relief. The county has taken no action with respect to plaintiff’s land except to enact a general plan . . . . The plan is by its very nature merely tentative and subject to change. Whether eventually any part of plaintiff’s land will be taken for a street depends upon unpredictable future events. If the plan is implemented by the county in the future in such manner as actually to affect plaintiff’s free use of his property, the validity of the county’s action may be challenged at that time.” (Id. at pp. 117-118, italics added.) The same is true in this case. The trial court properly sustained the demurrers to the fifth, sixth and seventh causes of action.
c. Third, Fourth and Eighth Causes of Action Fail to State a Claim
Plaintiffs’ third, fourth and eighth causes of action seek, in essence, to compel the Agency to issue a certificate of conformance with respect to the property. Plaintiffs alleged that the Agency considered and denied plaintiffs’ request for a certificate of conformance in September 2006. The trial court sustained the demurrers on the ground that the decision whether to issue a certificate of conformance was a matter within the Agency’s discretion, and plaintiffs had failed to allege facts constituting an abuse of that discretion. We agree.
Plaintiffs’ third cause of action seeks a declaration that plaintiffs were entitled to a certificate of conformance pursuant to Code of Civil Procedure section 1060; the fourth cause of action seeks a writ of mandate pursuant to Code of Civil Procedure section 1085; the eighth cause of action seeks administrative mandamus pursuant to Code of Civil Procedure section 1094.5.
Certificates of conformance are governed by section 700 of the Agency’s owner-participation rules for the Project Area. Section 700 provides, in relevant part, “[A]s an alternative to requiring a Participation Agreement for each property not to be purchased or subject to Agency acquisition by eminent domain, the Agency may determine that certain real properties within the Project Area meet the requirements of the Redevelopment Plan. The Agency may deem such properties to be conforming properties without a Participation Agreement with the Agency, provided the owners continue to operate, use, and maintain the real properties within the requirements of the Redevelopment Plan or of any design guidelines approved by the Agency pursuant to the Redevelopment Plan. A certificate of conformance to this effect may be issued by the Agency and recorded.” (Italics added.) It appears from the italicized text that, pursuant to section 700, a certificate of conformance is available only to owners of properties that the Agency has determined are “not to be purchased or subject to Agency acquisition by eminent domain . . . .” There is no allegation in the second amended complaint that the Agency has determined that the property will not be purchased or acquired by eminent domain. To the contrary, it appears plaintiffs sought a certificate of conformance because they feared the property would be purchased or acquired by eminent domain. Accordingly, the face of the complaint betrays a fatal defect in plaintiff’s third, fourth and eighth causes of action.
The text of section 700 was set forth by plaintiffs in the second amended complaint, and the trial court took judicial notice of the Agency’s owner participation rules for the Project Area. At oral argument, counsel for plaintiffs asserted that issuance of a certificate of conformance is governed by Health and Safety Code section 33399. Plaintiffs forfeited any such contention by failing to raise it in their opening brief. In any event, that section does not govern certificates of conformance of the sort referenced in Rule 700. Section 33399 sets forth a procedure whereby an owner in a redevelopment project area may make a written offer to sell his or her property to the redevelopment agency. (Health & Saf. Code, § 33399, subd. (a).) If the agency does not acquire the property within 18 months, the owner may then bring an action for inverse condemnation to recover damages or, in the alternative, petition for a writ of mandate to compel a redevelopment agency to declare a property exempt from eminent domain. (Health & Saf. Code, § 33399, subds. (a), (f).) That section does not use the term “certificate of conformance,” and plaintiffs alleged no facts indicating that section 33399 applies to this case.
Section 200, paragraph 8 of the owner participation rules defines a Participation Agreement as “an agreement entered into by an Owner with the Agency providing for such Owner to participate in the redevelopment of property within the Project Area in accordance with the provisions of the Redevelopment Plan and these Rules.”
Further, with respect to plaintiffs’ fourth cause of action for a writ of mandate pursuant to Code of Civil Procedure section 1085, “[t]raditional mandate is used to review adjudicatory actions or decisions when the agency is not required to hold an evidentiary hearing or when the duty is ministerial. [Citations.] A writ cannot be used to control a matter of discretion. [Citation.] Where a statute leaves room for discretion, a challenger must show the official acted arbitrarily, beyond the bounds of reason or in derogation of the applicable legal standards. [Citation.]” (Excelsior College v. Board of Registered Nursing (2006) 136 Cal.App.4th 1218, 1238-1239.) The relevant portion of section 700 repeatedly uses the word “may” to describe the Agency’s authority to grant a certificate of conformance. The word “may” denotes a grant of discretion. (California Teachers Assn. v. Governing Board (1977) 70 Cal.App.3d 833, 842-843.) Plaintiffs alleged that the Agency denied the certificate of conformance because it wanted to “preserve its options” to redevelop a larger area that encompassed the property, like the project contemplated by the Snyder ENA. The second amended complaint itself thus indicates that the Agency did not act arbitrarily or beyond the bounds of reason.
With respect to plaintiffs’ eighth cause of action, Code of Civil Procedure section 1094.5 does not apply in these circumstances. “[A]dministrative mandate pursuant to Code of Civil Procedure section 1094.5 is available ‘ “only if the decision [ ] resulted from a ‘proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency.’ ” ’ [Citations.]” (Excelsior College v. Board of Registered Nursing, supra, 136 Cal.App.4th at pp. 1237-1238; Code Civ. Proc., § 1094.5, subd. (a).) There is no requirement in section 700 that the Agency hold a quasi-judicial evidentiary hearing on an owner’s request for a certificate of conformance, and plaintiffs cite no other authority that requires such a hearing prior to denying plaintiffs’ request. Plaintiffs’ eighth cause of action fails as a matter of law.
3. The Trial Court Did Not Abuse Its Discretion in Denying Leave to Amend
Plaintiffs also have failed to demonstrate that the trial court erred by denying them leave to amend. To demonstrate error, “the burden falls upon the plaintiff to show what facts he or she could plead to cure the existing defects in the complaint. [Citation.] ‘To meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action.’ [Citation.]” (McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 792, italics added; accord, Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Holcomb v. Wells Fargo Bank, N.A. (2007) 155 Cal.App.4th 490, 495 [“ ‘ “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading” ’ ”]; People ex rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112 [to show abuse of discretion in denying leave to amend, plaintiff must “spell out in his brief the specific proposed amendments”].) “ ‘If the plaintiff cannot show an abuse of discretion, the trial court’s order sustaining the demurrer without leave to amend must be affirmed.’ [Citation.]” (Balikov v. Southern Cal. Gas Co. (2001) 94 Cal.App.4th 816, 820.)
Plaintiffs had three opportunities to state a cognizable claim. Even so, plaintiffs still fail on this appeal to identify any specific facts that they could or would allege that would cure the deficiencies in their pleading. Plaintiffs assert that “the failure of the Agency Board to act by majority vote [in denying a certificate of conformance] was a basis to remand the issue [of] a ‘certificate of conformance’ for a new hearing.” This assertion, however, is not new—it was alleged in paragraph 61 of the second amended complaint. In any event, plaintiffs’ conclusion that the Agency failed to act by majority vote is contrary to plaintiffs’ own allegations. Plaintiffs alleged in paragraph 61 that three of the five Agency commissioners present at the meeting voted to deny plaintiffs a certificate of conformance. Pursuant to section 508 of the Agency’s bylaws—which were before the trial court on the Agency’s request for judicial notice—four commissioners constitutes a quorum. Thus, plaintiffs own allegations establish that the Agency acted by majority vote in denying the certificate of conformance. At oral argument, plaintiffs claim they could base a cause of action on the now expired ENA. They do not explain how this could be a basis of a cause of action because plaintiffs no longer have to deal with an ENA. Plaintiffs have failed to satisfy their burden of demonstrating how they could amend their pleading to state a claim. The trial court did not abuse its discretion in denying plaintiffs leave to amend.
DISPOSITION
The judgment is affirmed. Respondents are to recover their costs on appeal.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.