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1 RACHEL VAN MULLEM, COUNTY COUNSEL
CHRISTINE M. MONROE, DEPUTY (Bar No. 304573)
2 COUNTY OF SANTA BARBARA
105 E. Anapamu St., Suite 201
3 Santa Barbara, CA 93101
(805) 568-2950 / FAX: (805) 568-2982
4 E-mail: cmonroe@countyofsb.org
5 Attorneys for Defendant
COUNTY OF SANTA BARBARA
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Exempt from filing fees [Gov. Code, § 6103]
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10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 FOR THE COUNTY OF SANTA BARBARA (ANACAPA DIVISION)
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13 ROBERT SCHWOB, an individual; Case No.: 23CV02404
CHRISTINE SCHWOB, an individual
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Petitioners and Plaintiffs, DECLARATION OF CHRISTINE M.
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MONROE IN SUPPORTY OF
16 DEMURRER TO PLAINTIFFS’
v. AMENDED VERIFIED PETITION FOR
17 MANDAMUS; COMPLAINT FOR
The COUNTY OF SANTA BARBARA, DAMAGES AND INJUNCTIVE RELIEF
18 CALIFORNIA, a political subdivision;
19 JEFF CROSBY, an individual; SUSAN
CROSBY, an individual; AND DOES 1- Assigned to Hon. Thomas P. Anderle
20 50, INCLUSIVE, Complaint filed: June 6, 2023
21 Respondents and Defendants. Date: December 20, 2023
Time: 10:00 a.m.
22 Dept. SB3
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25 I, CHRISTINE M. MONROE, declare as follows:
26 1. I am an attorney, duly licensed to practice law in the State of California, and a Deputy
27 County Counsel in the Office of County Counsel, attorneys of record for Respondent
COUNTY COUNSEL
County of Santa Barbara
105 East Anapamu Street
Santa Barbara, CA 93101
(805) 568-2950
28 DECLARATION OF CHRISTINE M. MONROE IN SUPPORT OF
DEMURRER TO PLAINTIFFS’ AMENDED PETITION
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1 County of Santa Barbara (“County”). The matters set forth in this Declaration are based on
2 my personal knowledge, and, if called as a witness, I could competently testify to the facts
3 contained in this declaration.
4 2. On September 20, 2023, the Court ruled on the County’s demurrer to petitioner and
5 plaintiffs Robert and Christine Schwob’s (“Schwobs”) initial pleading. A true and correct
6 copy of that decision is attached hereto as Exhibit A, and incorporated herein by reference.
7 3. On October 27 2023, I sent the Schwobs’ counsel, James F. Scafide (“Mr. Scafide”) a meet
8 and confer letter outlining the issues for the meet and confer call per Mr. Scafide’s request.
9 4. On November 1, 2023, I spoke with Mr. Scafide regarding a proposed demurrer. We spoke
10 at length, but did not reach an agreement resolving the County’s objections. Following our
11 call, I sent Mr. Scafide an email with additional legal authority.
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13 I declare under penalty of perjury under the laws of the State of California that the
14 foregoing is true and correct.
15 Executed on November 13, 2023, in Santa Barbara, California.
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17 Christine M. Monroe
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COUNTY COUNSEL
County of Santa Barbara
105 East Anapamu Street
Santa Barbara, CA 93101
(805) 568-2950
28 DECLARATION OF CHRISTINE M. MONROE IN SUPPORT OF
DEMURRER TO PLAINTIFFS’ AMENDED PETITION
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EXHIBIT A
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 09/20/2023 Time: 10:00 AM
Judicial Officer: Thomas P Anderle
Deputy Clerk: Veronica Robles Dept: SB Dept 3
Deputy Sheriff: Anthony Deleo
Court Reporter: Shelley Cockrell Case No: 23CV02404
Robert Schwob vs County of Santa Barbara California et al
Parties Present:
NATURE OF PROCEEDINGS: Demurrer
Counsel submits to the Court’s tentative; no appearances were necessary.
The Court adopted the tentative as follows:
HEARING
Demurrer by Respondent/Defendant County of Santa Barbara to petition/complaint
ATTORNEYS
James F. Scafide of Figueroa Law Group, LLP for Petitioners/Plaintiffs Robert Schwob and Christine
Schwob
Rachel Van Mullem / Callie Patton Kim of County Counsel’s Office for Respondent/Defendant County of
Santa Barbara
[Defendants Jeff Crosby and Susan Crosby have not yet appeared in this action]
Emails: Jim@Figueroa.law; Tyler@Figueroa.law; ckim@countyofsb.org;
RULING
For the reasons more fully articulated below, the Court will sustain County’s demurrers to the
causes of action for conspiracy and declaratory relief, with leave to amend. While the Court does
not find the allegations of the petition sufficient to state a claim for administrative mandamus, or
traditional mandamus based upon a ministerial duty of the County, it does find the petition
sufficient to state a claim for traditional mandamus review of County’s discretionary
determinations. Consequently, the Court will overrule the demurrer to the petition for writ of
mandamus.
The Court will permit Petitioners/Plaintiffs leave to file an amended pleading on or before October
11, 2023. To the extent that Petitioners/Plaintiffs believe they may be able to allege valid claims for
SC-2411 (Revised July 1, 2013) MINUTE ORDER
administrative mandamus or traditional mandamus arising from a ministerial duty, they may also
amend their cause of action for mandamus at that time.
Petition/Complaint
Petitioners/Plaintiffs Robert Schwob and Christine Schwob (the Schwobs) filed their Petition and
Complaint on June 6, 2023. They allege that they own property on 1422 East Valley Road in Santa
Barbara, and Defendants Jeff Crosby and Susan Crosby (the Crosbys) own property at 551 Santa Angela
Lane, which adjoins the rear of the Schwob property.
The Schwobs allege on information and belief that in 2020, the Crosbys constructed a pickleball “Sports
Court” on their property, without a permit. The 31’x 60’ Court is located in the rear setback of the Crosby
property, about 8 inches from the rear lot line, and 7’8” from the northern side lot line. The southeasterly
corner was raised more than 30” so that the Court sits level, and a 10’ fence was constructed around the
Court, with a permanent basketball hoop and backboard and pickleball net installed. It was later painted
with lines for pickleball play. The Schwobs allege that through 2020, 2021, and into 2022, the Crosbys
and their family and guests played pickleball at all hours of day and night, the noise from which caused
the Schwobs great disturbance, particularly given that their bedroom is located less than 30’ from the
Court.
In January 2022, after complaints to the County of Santa Barbara (County) by the Schwobs and others,
County staff visited the Crosby property. On February 11, 2022, County issued a Notice of Violation to
the Crosbys, arising from their construction of a pickleball Court in their back yard that exceeded the
cumulative square foot maximum of 30% of the area of the rear setback of all structures in a rear setback.
The Notice also found that the fence around the Court violated provisions of the Santa Barbara County
Code, Montecito Land Use and Development Code (MLUDC), which required that any such fence be no
higher than six feet. The Notice provided that the Crosbys could remedy the Court violation by removing
the Court or moving the Court out of the rear setback area so that it and the ADU which the Crosbys had
under construction combined totaled less than or equal to 30% of the rear setback and could remedy the
fencing violation by removing the fence, reducing its height, or applying for a permit. The Notice of
Violation is attached to and incorporated into the petition/complaint and establishes that the issuing
agency was County’s Planning and Development Department.
In response to the Notice of Violation, the Crosbys removed the permanent pickleball net, painted over
the stripes on the Court, and lowered the fence height to 6’, but continued to play pickleball by placing
tape on the surface in lieu of the painted lines. At some point they apparently restriped the Court and
reinstalled the permanent net.
The Schwobs again complained to the County about the continued pickleball play on the Crosby’s Court.
In response, the County conducted a site inspection on September 9, 2022, after which it issued a second
Notice of Violation, which provided that the Crosbys could remedy the violation by removing the Court,
relocating the Court, or converting the Court into a patio, through removal of all lines from the surface
indicative of use as a sports Court, and removal of the permanent net. In response, the Crosbys removed
the permanent lines and net, but continue to play pickleball by again placing tape where the pickleball
Court lines should be and using a “professional grade moveable Pickleball net.”
The September 9, 2022, Notice of Violation is attached to and incorporated into the petition/complaint.
Certain of its contents were not the subject of express allegations in the petition/complaint, including that
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the County had determined that the February 11, 2022 Notice of Violation had been abated by the
removal of the tennis net and sports Court lines, which converted the sports Court into a patio area, which
does not count as a structure and therefore did not contribute toward the 30% encroachment into the
setback. Because the Crosbys had reconverted the patio into a sports Court, the County determined them
to be in violation of MLUDC Chapter 35, §§ 35.400.040.A, 35.420.040.A, and 35.442.020.4.a.(1).(c). The
notice provided the Crosbys with the abatement options of either (a) removing the sports Court, or (b)
converting the sports Court into a patio, by removing all lines from the surface indicative of use as a ports
Court, and removal of the permanent net.
The petition contends that in issuing the Second Notice of Violation, which hung on the “thin distinctions
between a fixed and moveable net, and taped or painted lines,” County colluded with the Crosbys and
worked with them in an attempt to find a way around what the Code permitted. The petition alleges the
County arbitrarily redefined what constitutes a sports Court, “and is now playing make-believe that this
pickleball Court is just a funny looking patio.” They contend that nothing the Crosbys have done abated
the cumulative square foot maximum of 30% of the area of the rear setback of all structures in a rear
setback, and that violation still exists.
The Schwobs allege that they continue to be subjected to regular noise and disturbance from the playing
of pickleball seven days a week, and that such noise and disturbance unreasonably interferes with their
use and enjoyment of their property.
Based upon these facts, the Schwobs allege causes of action for (1) mandamus against the County, based
upon their contention that County has failed to enforce provisions of the MLUDC, for which they pray for
a declaration that they are the prevailing party and the Crosbys be directed to remove the Court and
fencing, abate the nuisance, and restore the prior permitted use, as well as compensatory damages,
attorneys’ fees, punitive damages, and prejudgment interest, and for (2) conspiracy against all Defendants,
(3) private nuisance against the Crosbys only, and (4) declaratory relief against all Defendants. For the
conspiracy, private nuisance, and declaratory relief causes of action, the Schwobs pray for a declaration
that the Crosbys are in violation of MLUDC §§ 35.400.040.A, 35.420.040.A, 35.442.020.4.a.(1).(c) as to
the sports Court, and §§ 35.400040.A, 35.430.070.C, and 35.430.070 table 3-2 as to the fencing, as well
as compensatory damages, attorneys’ fees, punitive damages, and pre-judgment interest.
Demurrer
Respondent/Defendant County of Santa Barbara has demurred to each cause of action set forth in the
petition/complaint. In support of its demurrer, it seeks judicial notice of Santa Barbara County Code,
Chapter 24A (Administrative Fines), and excerpts from the Santa Barbara County Code, Montecito Land
Use and Development Code.
Mandamus. County first contends that the Schwobs have failed to state facts sufficient to constitute a
cause of action for either administrative mandamus or traditional mandamus. Administrative mandamus
under Code of Civil Procedure section 1094.5 is inapplicable under its terms, because it only applies
where a hearing and the taking of evidence is required, and the petition does not include any allegations
that would require a hearing to determine whether violations have been abated, and the County Code does
not require a hearing.
With respect to traditional mandamus, County asserts that the allegations of the petition are insufficient to
show that County either failed to perform a ministerial duty, or abused its discretion. County notes that
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the MLUDC grants County discretion to investigate, to determine whether a code violation exists, and to
take any necessary or expedient measures to enforce compliance. County asserts that its staff exercised
discretion when it determined the Crosbys had converted the hardscape into a patio by removing
permanent recreational features. It asserts local zoning enforcement is generally considered discretionary,
citing Blankenship v. Michalski (1957) 155 Cal.App.2d 672, and that only when an enforcement
obligation is so clear and obvious that it leaves no room for disagreement or the exercise of any discretion
as to the interpretation of the requirement, may a writ be issued to compel enforcement. Here, the code
did not prescribe staff’s actions without regard to exercise of judgment and required staff to analyze the
facts and interpret the ordinance through exercise of discretion. There was no ministerial duty to enforce
the zoning violation through requiring removal of the hardscape “sports Court.”
County also contends that it did not abuse its discretion, noting that the scope of review for abuse of
discretion requires deference to the agency’s authority and expertise, prohibits the Court from reweighing
the evidence or substituting its judgment, and limits the inquiry to whether the decision was arbitrary,
capricious, or entirely lacking in evidentiary support. The Court considers whether the agency adequately
considered all factors, and has demonstrated a rational connection between those factors, the choices
made, and the purposes of the enabling statute. Deference it particularly important when reviewing zoning
enforcement decisions.
Here, the Schwobs contend the County made an arbitrary ruling that the distinction between a fixed and
movable net, and taped or painted lines, is sufficient to distinguish a sports Court from a patio. The facts
alleged in the petition and the documents incorporated therein show the County considered all of the facts
and demonstrated a rational reason for its determination that the Crosbys abated the setback violation.
MLUDC defines “sports Court” as a “structure” that consists of a hardscape of other service “devoted to
recreational purposes.” With removal of permanent features, County reasonably determined it was no
longer devoted to recreational uses, and was not a sports Court, but a patio area, which does not constitute
a “structure.” (§35.10, which defines sports Court to exclude bocce ball Courts, lawn bowling Courts,
patios, and areas used for driveways or parking.) The Schwobs contend County failed to enforce code
requirements related to fencing, but do not articulate any reason why lowering the fence to six feet did not
abate the fencing violation. They don’t dispute that the Code exempts fences no more than 6 feet in height
from permit requirements.
To the extent there is any ambiguity as to what the code requires, an agency’s view of its meaning and
scope is entitled to great weight unless it is clearly erroneous or unauthorized, and the amount of
deference depends on factors such as expertise in the subject of the regulation, the longevity and
consistency of the interpretation, and whether the entity is authorized to make such determinations.
County has “expertise and technical knowledge” of the MLUDC, which it authored, is intimately familiar,
and is sensitive to the practical implications of one interpretation over another. The Schwobs do not allege
that County adopted a different interpretation in the past or has inconsistently interpreted the provision.
Finally, County has authority to interpret its own code. (See Gov. Code, §§ 65800, 65850.) The MLUDC
provides County with authority to resolve questions about its meaning or applicability. (§§ 35.400.030(B),
35.402.020.) If County had to treat every surface on which a resident sometimes plays sports as an
accessory structure, that would prohibit driveways, because the code prohibits accessory structures in
front setbacks. (§35.442.020(B)(4)(a)(1).) County’s view of the meaning of its code is entitled to
deference.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
Finally, County contends that mandamus is inappropriate, because the Schwobs have an available
adequate remedy, which they are already pursuing, in the form of their private nuisance claim against the
Crosbys.
Conspiracy. County further contends that the petition fails to state facts sufficient to constitute a cause of
action for conspiracy, first because it is not a separate tort, but is only a legal doctrine imposing liability
on all who share with the tortfeasors a common plan or design in its perpetration. (Kidron v. Movie
Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581-1582.) Further, bare legal conclusions, inferences,
generalities, presumptions, and conclusions are insufficient to allege a conspiracy. (State of California ex
rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 419.) The Schwobs allege
County conspired with the Crosbys to allow an illegal pickleball Court to exist, which creates a nuisance
due to the noise which results. Since no public nuisance claim is alleged, there can be no conspiracy to
commit a public nuisance. As to private nuisance, County contends insufficient facts are alleged to render
County liable, because no facts are alleged to show County had actual knowledge a tort was planned, or
that it concurred in the tortious scheme with knowledge of its unlawful purpose of injuring the Schwobs.
There are no allegations of a relationship between County and the Crosbys, or any other interest that
would support an inference that County sought to assist the Crosbys to commit a nuisance or other tort.
Petition also does not allege facts that County committed a wrongful act in furtherance of the conspiracy,
given that its interpretation of the zoning code is reasonable and entitled to deference.
Declaratory relief. County contends that the petition fails to state facts sufficient to constitute a cause of
action for declaratory relief. The petition asks the Court to declare that the development in the Crosby’s
back yard is in violation of the MLUDC. The provisions allegedly violated are the same as those cited in
the NOVs, identifying the violations County later determined were abated. When read together, the
provisions simply mean that new accessory structures must comply with setback restrictions and fences
over six feet are subject to permit requirements.
County contends the judicial declaration the Schwobs seek is not necessary or proper for multiple reasons.
First, declaratory relief is not appropriate to challenge an agency’s adjudicatory application of an
ordinance to a specific parcel of land. (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223
Cal.App.4th 149, 154-155. Second, the cause of action raises issues identical to those in the mandamus
claim, and it is therefore unnecessary and superfluous. Third, because the mandamus cause of action is
insufficient as a matter of law, so is the derivative cause of action for declaratory relief. (Ball v.
FleetBoston Fin. Corp. (2008) 164 Cal.App.4th 794, 800 [“where a trial Court has concluded the Plaintiff
did not state sufficient facts to support a statutory claim and therefore sustained a demurrer as to that
claim, a demurrer is also properly sustained as to a claim for declaratory relief which is ‘wholly
derivative’ of the statutory claim,” quoting Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782,
794.].)
Opposition
Mandamus claim The Schwobs contend their petition states a claim for both administrative mandamus
and traditional mandamus. They contend administrative mandamus is applicable, because a permit was
required by law. They assert a sports Court is a sports Court, whether or not it is used as such, and what
the Crosbys have on their property meets the definition of a sports Court. (§ 35.500.020.) Under the
MLUDC, sports Courts are accessory residential structures or use, which require a permit. (§ 35.423.030.)
While County argues that no permits were required for the Court or heightened fence, Plaintiffs argue that
each requires a separate permit, and whether permits were required is a question to be determined at trial.
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The Schwobs also contend they have stated a claim for traditional mandamus, because County failed to
enforce a law it was required to enforce, and County offers no rationale for failing to do so. Mandate lies
to compel performance of an act which the law especially enjoins, the Petitioner must be beneficially
interested, and there must be no adequate remedy. (Code Civ. Proc., § 1085.) They contend they met their
burden to meet this standard for purposes of demurrer.
First, they contend the County does not get discretion in interpreting the MLUDC. Both the sports Court
and the fence violations had separate permitting requirements which were ignored by County, and County
cannot focus on the fence height to say no violation exists. The permanent recreational facilities were not
removed, and the basketball hoop and retractable net remain. The Crosbys did not perform any
conversion—the Court is a single, continuous poured smooth surface, of the dimensions to accommodate
a pickle ball Court. It was built before the Crosbys built their patio, out of a different material.
Second, they contend County abused its discretion, asserting that County miscited what the Court said in
Yamaha Corp. of America, giving it a different meaning. County’s position is that land use regulations are
so complex that no one ever has the right to challenge what it deems to be the meaning of the regulation,
because only it can understand such a complex Code, which the Schwobs characterize as “ludicrous.”
County argues further that it should be given deference in enforcing statutes, citing City Council of the
City of Santa Barbara v. Superior Court (1960) 179 Cal.App.2d 389, but the Schwobs are not asking the
Court to command specific legislative action, but to enforce that legislation. They assert that, under well-
established law, an agency’s view of the meaning and scope of its own ordinance is entitled to great
weight unless it is clearly erroneous or unauthorized but contend that failing to enforce a law is clearly
erroneous and an abuse of discretion. As alleged in the Petition, both the Court and the fence would,
require a permit. The MLUDC defines a sports Court as a “structure” that consists of a hardscape or other
surface devoted to recreational purposes. (§ 35.10) Because it has an elevation of greater than 30”, it is a
structure under the code, which requires a permit. As pleaded, a violation exists; resolution of the issue
should be decided upon presentation of evidence, not on demurrer.
Third, the Schwobs contend they have no adequate remedy at law, given that the County has conspired
with the Crosbys to permit the unpermittable. They first advised that no permit for the sports Court was
required, then worked with the Crosby’s builder to break the law, and now tries to paint this as a private
neighbor dispute, but this is a legitimate dispute between Schwobs and the County. The Schwobs contend
the MLUDC imposes a mandatory duty on County to commence enforcement proceedings, and
mandamus lies even though other remedies may also exist. (Board of Supervisors of Los Angeles County
v. Simpson (1951) 36 Cal.2d 671; Gov. Code, §§ 26500-26502.) The “adequate remedy” must be speedy
and capable of directly affording the relief sought; if it cannot result in performance of the specific act
sought by mandamus, it is not equally convenient, beneficial and effective, it will not supersede the
mandamus remedy. (Ross v. Board of Education of the City and County of San Francisco (1912) 18
Cal.App. 222, 225.)
Conspiracy. The Schwobs assert that the petition states facts sufficient to constitute a cause of action for
conspiracy. They contend the elements are (1) formation and operation of the conspiracy, (2) wrongful
conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct), citing
AREI II Cases (2013) 216 Cal.App.4th 1004, 1021. A Plaintiff must establish that the conspiring
Defendants knew of the wrongful plan and expressly or implied agreed to achieve it. Because of the
secretive nature of conspiracy, their existence can be inferentially and circumstantially derived from the
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character of the acts done, the relations of the parties, and other facts and circumstances suggestive of
concerted action.
They point to their allegations in ¶¶ 34 [that the Crosbys continued to play pickleball by putting tape
down to act as boundaries in lieu of painted lines, and putting in place a professional grade moveable
pickleball net], 49 [that beginning in February 2022, County acted in cooperation and conspiracy with the
Crosbys in allowing for an illegal pickleball Court to exist], and 50 [in allowing the illegal and
unpermitted Court to exist, County “advised, consented, looked the other way, overlooked violations, and
generally assisted” the Crosbys to have an unpermitted and illegal pickleball Court], and conclude that
accepting the facts pleaded as true, and drawing all reasonably inferences therefrom, the formation of a
conspiracy is sufficiently shown, based upon the nature of the acts, the relations of the parties, the
interests of the conspirators, and other factors, citing 117 Sales Corp. v. Olsen (1978) 80 Cal.App.3d 645,
649.
Declaratory relief. The Schwobs assert the petition states facts sufficient to constitute a cause of action for
declaratory relief. They contend County wants it both ways, first that the mandamus action is subject to
demurrer, and then that declaratory relief is subject to demurrer because it is duplicative of the mandamus
claim. Whether it is duplicative depends on what is shown at trial. The allegations must be liberally
construed, with a view to substantial justice between the parties. (Code Civ. Proc., § 452.) A general
demurrer to a declaratory relief cause of action must be overruled as long as an actual controversy is
alleged; the pleader need not establish it is entitled to a favorable judgment. (New Livable California v.
Association of Bay Area Governments (2000) 82 Cal.App.4th 592, 606.
Reply
County asserts that while the Schwobs contend the patio is still an unpermitted and illegal sports Court,
they fail to allege facts that would show that County’s interpretation and application of its own code is
clearly erroneous or unauthorized, or that they have authority to seek an order directing County to
exercise its discretionary powers in a particular manner. They have obfuscated the issues by making new
factual allegations in their opposition, citing numerous provisions in the County’s land use code that were
not relied on in the Petition, were not provided with their opposition, and of which they have not
requested judicial notice. The new allegations and new code provisions do not remedy the deficiencies,
and at most would entitle the Schwobs to file an amended pleading.
Mandamus (1) Administrative mandamus is inapplicable because no hearing was required by law. The
petition includes no allegations that a hearing was required by law. Consequently, Section 1094.5 does
not apply. While the Schwobs’ opposition contends a hearing was required because the Court and fence
required permits, citing Section 35.423.030, that section was not alleged in the petition, nor was judicial
notice of it requested. Further, there are no allegations of what type of permit was required, nor is any
provision cited that requires a hearing for that type of permit. Not all permits require hearings.
(2) With respect to traditional mandamus, the petition lacks facts to show the County did not have
discretion or abused its discretion. The Schwobs contend the County does not have discretion in
interpreting the MLUDC because it is a statute adopted by another agency, but the petition alleges no
facts to support that contention, and the contention is wrong in any event. MLUDC is part of the County
Code, adopted by the County.
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Petitioners argue County abused its discretion by failing to enforce its code, but County did enforce its
code, sending two Notices of Violation to the Crosbys, who abated the violations by converting the sports
Court into a patio and by lowering the fence height, which is exempt from permit requirements. The
second NOV explained that removal of the net and sports Court lines converted the Court into a patio,
which is not a structure under the code, and therefore does not impact the 30% encroachment into the
setback.
Petitioners also argue the County abused its discretion in determining the Schwobs converted the sports
Court into a patio, but the MLUDC gives the County, not the neighbors, the authority to interpret the code
and determine what measures are necessary to comply with it. Schwobs have failed to show that County’s
interpretation of the code to allow unobtrusive recreational features on patios is “clearly erroneous or
unauthorized.” They attempt to make new factual allegations not contained in the petition, by contending
it is a single, continuous poured, smooth surface, of a size appropriate for a pickleball Court, and was built
before and from a different material than the Crosby’s patio. They were not alleged and are irrelevant on
demurrer. Even if true, they would not require County to treat the hardscape as a sports Court rather than
a patio.
Petitioners further argue County abused its discretion because the Court and fence each had a distinct
permitting requirement that County ignored, citing 35.20.040.C and 35.30.070.C. Neither of those
provisions were cited in the petition, nor was judicial notice requested of them, nor do they even exist.
Even if a code provision requires a permit for a sports Court, Petitioners have not cited any provision
requiring one for a patio.
With respect to the fence, the first NOV stated that the 10’ fence exceeded the maximum exempt fence
height of 6 feet and enclosed a table showing that a rear setback fence 6 feet or less was exempt from a
planning permit. County advised the Crosbys could either remove the fence, lower its height, or obtain a
permit, and they to lower the fence to 6 feet. While the Schwobs argue it was lowered to an “illegal height
of six feet,” they offered no explanation for why it is illegal.
County concludes it should not be compelled to require abatement that it does not believe is necessary, “at
the whim or caprice of every taxpayer who disagrees” with it. Local code enforcement inherently involves
the exercise of discretion, and mandamus does not lie to compel a public agency to exercise discretionary
powers in a particular manner.
(3) The Schwobs have an adequate available remedy, in their private nuisance claim against the Crosbys,
to resolve the dispute among neighbors over noise. While they contend it is not adequate, they do not
explain why a private nuisance claim against the Crosbys is not as convenient, beneficial, and effective as
their mandamus claim against the County; that they have already filed the claim suggests it is not less
convenient. They fail to articulate any remedy they could not obtain from the Crosbys. The only way to
obtain the remedy they seek—the cessation of all pickleball noise—is through an injunction. Petitioners
have cited no provision in the MLUDC that would authorize County to prohibit use of the patio for any
personal recreational purpose, and Court cannot require County to force removal of the hardscape. The
only relief they could obtain in mandamus would be an order that the County reconsider the facts and
exercise its discretion in determining whether a violation exists and, if so, how the property may be
brought into compliance. Even a successful mandamus claim would not necessarily eliminate the Crosbys
playing of pickleball.
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Conspiracy. Petitioners fail to address that there is no such separate cause of action for conspiracy. Even
if there were, they have alleged insufficient conclusory allegations. County’s alleged knowledge that the
Crosbys were playing pickleball doesn’t support a conspiracy claim because the MLUDC does not
prohibit residents from engaging in sports or games in their backyards. No MLUDC provision is cited that
prohibits recreational activities on patios or other hard surfaces. The conclusory allegations are not
admitted on demurrer, including that the hardscape is “illegal.” There has been no showing that County
had actual knowledge of an unlawful purpose by the Crosbys, and that County concurred in the unlawful
purpose. While they suggest that the change in abatement options from the first NOV to the second prove
conspiracy, the options were not exhaustive, and the change reflected that Crosbys had abated the first
violation by converting the hardscape into a patio, which made conversion an obvious option for the
second NOV.
Declaratory relief. Declaratory relief is not appropriate to challenge an agency’s adjudicatory application
of an ordinance to s specific parcel of land. Further, it is superfluous to and derivative of the mandamus
claim. Petitioners cited cases in their opposition but failed to apply them to this case. Their conclusory
statement that they have alleged sufficient facts is insufficient to overcome the demurrer.
ANALYSIS
The Court will sustain County’s demurrers to the cause of action for conspiracy and declaratory relief,
with leave to amend. While the Court does not find the allegations of the petition sufficient to state a
claim for administrative mandamus, or traditional mandamus based upon a ministerial duty of the County,
it does find the petition sufficient to state a claim for traditional mandamus review of County’s
discretionary determinations. Consequently, the Court will overrule the demurrer to the petition for writ
of mandamus.
The Court will permit Petitioners leave to file an amended pleading on or before October 11, 2023, or
such other date as the Court might specify at the hearing on this demurrer. To the extent that Petitioners
believe they may be able to allege valid claims for administrative mandamus or traditional mandamus
arising from a ministerial duty, they may also amend their cause of action for mandamus at that time.
1. Judicial Notice
In support of its demurrer, County seeks judicial notice of Santa Barbara County Code, Chapter 24A
(Administrative Fines), and excerpts from the Santa Barbara County Code, Montecito Land Use and
Development Code, as legislative enactments by the County of Santa Barbara. (Evid. Code, § 452, subd.
(b).) The request attaches copies of the provisions for which judicial notice is requested, as required by
California Rules of Court, Rule 3.1306(c). Judicial notice of these local enactments is legally proper, and
the Court will take judicial notice of the provisions.
2. Demurrer standards
The Court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action.
(People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all
material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter
how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123
Cal.App.3d 593, 604), or how unlikely it will be that Plaintiff will be able to prove the claim (Committee
on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The Court also
SC-2411 (Revised July 1, 2013) MINUTE ORDER
assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts.
(Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to
contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A
demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only
where the defects appear on the face of the pleading or are judicially noticed. (Id.)
3. Mandamus cause of action.
A. Requirements and standards for a mandamus claim
i. Administrative mandamus
A petition for administrative mandamus under Code of Civil Procedure section 1094.5 is appropriate
when the party seeks review of a determination, finding, or decision of a public agency, made as a result
of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and
discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance
with the law—which is generally referred to as an “adjudicatory” or “quasi-judicial” decision. (Western
States Petroleum Association v. Superior Court (1995) 9 Cal.4th 559, 567.) An evidentiary hearing is
required “by law” within the meaning of Section 1994.5(a), if it is required by a statute, a regulation, or
constitutional due process. (Kirkpatrick v. City of Oceanside (1991) 232 Cal.App.3d 267, 279.)
Section 1094.5 is properly directed to formal adjudicatory proceedings, and not to informal administrative
actions. (See Wasko v. California Department of Corrections (1989) 211 Cal.App.3d 996, 1001.) The
distinction between adjudicatory proceedings and other types of decision-making (e.g. quasi-legislative or
ministerial) turns on the function being performed by the agency, rather than on the procedure by which
the decision was reached. (See 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 275.)
It is sometimes not entirely clear whether circumstances giving rise to review pursuant to Section 1094.5
exist. There exist some statutes, such as Water Code section 1126(c), which require that an adjudicatory
decision be reviewed under Section 1094.5 even where no evidentiary hearing is required. There also
exist some statutes, such as Business & Professions Code section 19870(f), which provide that Section
1094.5 does not apply to review of a decision after an agency hearing that is required by statute. Further,
some statutes have been construed by case law to imply a right to an evidentiary adjudicatory hearing, and
thus to Section 1094.5 review. Additionally, some cases imply a right to an evidentiary adjudicatory
hearing where the statute calls for an administrative appeal. (See, e.g., California Practice Guide—
Administrative Law (The Rutter Group 2023) Chapter 13, §§ 13:200, et seq.).
Where Section 1094.5 applies, the trial Court reviews the agency’s decision for abuse of discretion, which
is established if the Respondent has not proceeded in the manner required by law, the decision is not
supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5,
subd. (b).) Factual disputes are reviewed in the light most favorable to the judgment, on a substantial
evidence review. (Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249,
256-257.)
ii. Traditional mandamus
A traditional writ of mandate will issue to compel the performance of an act which the law specifically
enjoins, as a duty resulting from an office, trust, or station (Code Civ. Proc., § 1085), where there is not a
SC-2411 (Revised July 1, 2013) MINUTE ORDER
plain, speedy, and adequate remedy, in the ordinary course of law. (Id., § 1086.) Such writ will issue
against a county, city or other public body or against a public officer. (County of Los Angeles v. City of
Los Angeles (2013) 214 Cal.App.4th 643, 653.)
Traditional mandamus under Section 1085 is the proper form of action to challenge the reviewable
ministerial or quasi-legislative acts of a public agency. (California Water Impact Network v. Newhall
County Water District (2008) 161 Cal.App.4th 1464, 1483.) A trial Court must determine whether the
agency had a ministerial duty capable of direct enforcement or a quasi-legislative duty entitled to a
considerable degree of deference. (Weinstein v. County of Los Angeles (2015) 237 Cal.App.4th 944, 965,
quoting County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 653.)
A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience
to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s
propriety or impropriety, when a given state of facts exists. (Kavanaugh v. West Sonoma County Union
High School District (2003) 29 Cal.4th 911, 916.) Where a statute or ordinance clearly defines the
specific duties or course of conduct that a governing body must take, that course of conduct becomes
mandatory and eliminates any element of discretion. (Bullis Charter School v. Los Altos School District
(2011) 200 Cal.App.4th 1022, 1035.) A public entity has a ministerial duty to comply with its own rules
and regulations where they are valid and unambiguous. (Gregory v. State Board of Control (1999) 73
Cal.App.4th 584, 595.)
Further, while traditional mandamus will not lie to compel the exercise of discretion in a particular
manner, it is a proper remedy to challenge discretionary agency action as an abuse of the agency’s
discretion. (CV Amalgamated, LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 279.) When a Court
reviews a public entity’s decision for an abuse of discretion, the Court may not substitute its judgment for
that of the public entity, and if reasonable minds may disagree as to the wisdom of the public entity’s
discretionary determination, that decision must be upheld. Thus, the judicial inquiry addresses whether the
public entity’s action was arbitrary, capricious or entirely without evidentiary support, and whether it
failed to conform to procedures required by law. (California Public Records Research, Inc. v. County of
Stanislaus (2016) 246 Cal.App.4th 1432, 1443.) Petitioner must show the agency or official acted
arbitrarily, beyond the bounds of reason, or in derogation of applicable legal standards. (Ochoa v.
Anaheim City School District (2017) 11 Cal.App.5th 209, 223, fn. 3.)
iii. Standards when reviewing a question of discretion.
A trial Court’s review of an agency’s discretionary actions in the context of a petition for writ of
traditional mandate is multi-faceted and can be quite confusing, including at times to this Court. While a
more robust recitation and understanding of the law surrounding such review is understandably required
for purposes of performing the review, in this case a basic understanding of the process is required in
order for this Court to ascertain whether some of the issues raised by County are in fact amenable to
resolution on demurrer.
As noted, both administrative mandamus and traditional mandamus can be used, when appropriate, to
review an agency’s exercise of discretion. While the “abuse of discretion” standard—as articulated above
with respect to both administrative mandamus and traditional mandamus—applies overall, the trial Court
must use appropriate standards in reviewing the agency’s resolution of questions of fact, of questions of
law, and the application of law to the facts (whether undisputed, or as determined by the agency). (See,
SC-2411 (Revised July 1, 2013) MINUTE ORDER
generally, California Practice Guide—Administrative Law (The Rutter Group 2023) Chapter 17
[“Rutter”].)
(a) Review of agency’s resolution of questions of law.
The first step in reviewing an agency’s discretionary action is to resolve issues of law. (Rutter, Chapter
17, § 17:635.) When a statute (or ordinance) delegates discretionary authority to an agency, Courts review
whether the agency’s choice is legally permissible as a question of law. If the choice is legally
permissible, Courts then proceed to determine whether the agency’s discretionary choice is an abuse of
discretion. (Rutter, § 17:636; see 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 271.) Since
discretionary decisions often involve a balancing of factors, whether the agency took account of all
relevant factors or took account of irrelevant factors is a question of law on judicial review. (See Rutter, §
17:637, citing Morrison v. State Board of Education (1969) 1 Cal.3d 214, 220-230; Association of
Irritated Residents v. San Joaquin Valley Unified Air Pollution Control District (2008) 168 Cal.App.4th
535, 542-549.)
Questions of law are ordinarily determined by a reviewing Court under an independent judgment test,
under which the Court can substitute its judgment on a question of law for that of an agency even though
the agency’s interpretation is reasonable. (Rutter, §§ 17:10, 17:20, 17:369.) However, in the course of
exercising independent judgment over questions of legal interpretation, the Court gives “variable
deference” to the agency’s interpretation. (Yamaha Corporation of America v. State Board of
Equalization (1998) 19 Cal.4th 1, 7-8 [“Yamaha”].) Yamaha requires the reviewing Court to take account
of various factors in determining how much weight to give to an agency’s legal interpretation of a statute
it administers. (Yamaha, supra, 19 Cal.4th at ¶. 12.)
If the reviewing Court determines that the language being interpreted is unambiguous, it gives no
deference to the agency’s contrary interpretation, and should not make use of any other extrinsic aid to
interpretation. Rather, in the process of judicial interpretation of a statute, deference to the agency’s
opinion comes into play only if the language is ambiguous. (Bonnell v. Medical Board of California
(2003) 31 Cal.4th 1255, 1264-1265.)
Further, application of the variable deference factors is fundamentally
Preview
1 RACHEL VAN MULLEM, COUNTY COUNSEL CHRISTINE M. MONROE, DEPUTY (Bar No. 304573) 2 COUNTY OF SANTA BARBARA 105 E. Anapamu St., Suite 201 3 Santa Barbara, CA 93101 (805) 568-2950 / FAX: (805) 568-2982 4 E-mail: cmonroe@countyofsb.org 5 Attorneys for Defendant COUNTY OF SANTA BARBARA 6 7 Exempt from filing fees [Gov. Code, § 6103] 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SANTA BARBARA (ANACAPA DIVISION) 12 13 ROBERT SCHWOB, an individual; Case No.: 23CV02404 CHRISTINE SCHWOB, an individual 14 Petitioners and Plaintiffs, DECLARATION OF CHRISTINE M. 15 MONROE IN SUPPORTY OF 16 DEMURRER TO PLAINTIFFS’ v. AMENDED VERIFIED PETITION FOR 17 MANDAMUS; COMPLAINT FOR The COUNTY OF SANTA BARBARA, DAMAGES AND INJUNCTIVE RELIEF 18 CALIFORNIA, a political subdivision; 19 JEFF CROSBY, an individual; SUSAN CROSBY, an individual; AND DOES 1- Assigned to Hon. Thomas P. Anderle 20 50, INCLUSIVE, Complaint filed: June 6, 2023 21 Respondents and Defendants. Date: December 20, 2023 Time: 10:00 a.m. 22 Dept. SB3 23 24 25 I, CHRISTINE M. MONROE, declare as follows: 26 1. I am an attorney, duly licensed to practice law in the State of California, and a Deputy 27 County Counsel in the Office of County Counsel, attorneys of record for Respondent COUNTY COUNSEL County of Santa Barbara 105 East Anapamu Street Santa Barbara, CA 93101 (805) 568-2950 28 DECLARATION OF CHRISTINE M. MONROE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ AMENDED PETITION 1 1 County of Santa Barbara (“County”). The matters set forth in this Declaration are based on 2 my personal knowledge, and, if called as a witness, I could competently testify to the facts 3 contained in this declaration. 4 2. On September 20, 2023, the Court ruled on the County’s demurrer to petitioner and 5 plaintiffs Robert and Christine Schwob’s (“Schwobs”) initial pleading. A true and correct 6 copy of that decision is attached hereto as Exhibit A, and incorporated herein by reference. 7 3. On October 27 2023, I sent the Schwobs’ counsel, James F. Scafide (“Mr. Scafide”) a meet 8 and confer letter outlining the issues for the meet and confer call per Mr. Scafide’s request. 9 4. On November 1, 2023, I spoke with Mr. Scafide regarding a proposed demurrer. We spoke 10 at length, but did not reach an agreement resolving the County’s objections. Following our 11 call, I sent Mr. Scafide an email with additional legal authority. 12 13 I declare under penalty of perjury under the laws of the State of California that the 14 foregoing is true and correct. 15 Executed on November 13, 2023, in Santa Barbara, California. 16 _______________________ 17 Christine M. Monroe 18 19 20 21 22 23 24 25 26 27 COUNTY COUNSEL County of Santa Barbara 105 East Anapamu Street Santa Barbara, CA 93101 (805) 568-2950 28 DECLARATION OF CHRISTINE M. MONROE IN SUPPORT OF DEMURRER TO PLAINTIFFS’ AMENDED PETITION 2 EXHIBIT A SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA Dated and Entered: 09/20/2023 Time: 10:00 AM Judicial Officer: Thomas P Anderle Deputy Clerk: Veronica Robles Dept: SB Dept 3 Deputy Sheriff: Anthony Deleo Court Reporter: Shelley Cockrell Case No: 23CV02404 Robert Schwob vs County of Santa Barbara California et al Parties Present: NATURE OF PROCEEDINGS: Demurrer Counsel submits to the Court’s tentative; no appearances were necessary. The Court adopted the tentative as follows: HEARING Demurrer by Respondent/Defendant County of Santa Barbara to petition/complaint ATTORNEYS James F. Scafide of Figueroa Law Group, LLP for Petitioners/Plaintiffs Robert Schwob and Christine Schwob Rachel Van Mullem / Callie Patton Kim of County Counsel’s Office for Respondent/Defendant County of Santa Barbara [Defendants Jeff Crosby and Susan Crosby have not yet appeared in this action] Emails: Jim@Figueroa.law; Tyler@Figueroa.law; ckim@countyofsb.org; RULING For the reasons more fully articulated below, the Court will sustain County’s demurrers to the causes of action for conspiracy and declaratory relief, with leave to amend. While the Court does not find the allegations of the petition sufficient to state a claim for administrative mandamus, or traditional mandamus based upon a ministerial duty of the County, it does find the petition sufficient to state a claim for traditional mandamus review of County’s discretionary determinations. Consequently, the Court will overrule the demurrer to the petition for writ of mandamus. The Court will permit Petitioners/Plaintiffs leave to file an amended pleading on or before October 11, 2023. To the extent that Petitioners/Plaintiffs believe they may be able to allege valid claims for SC-2411 (Revised July 1, 2013) MINUTE ORDER administrative mandamus or traditional mandamus arising from a ministerial duty, they may also amend their cause of action for mandamus at that time. Petition/Complaint Petitioners/Plaintiffs Robert Schwob and Christine Schwob (the Schwobs) filed their Petition and Complaint on June 6, 2023. They allege that they own property on 1422 East Valley Road in Santa Barbara, and Defendants Jeff Crosby and Susan Crosby (the Crosbys) own property at 551 Santa Angela Lane, which adjoins the rear of the Schwob property. The Schwobs allege on information and belief that in 2020, the Crosbys constructed a pickleball “Sports Court” on their property, without a permit. The 31’x 60’ Court is located in the rear setback of the Crosby property, about 8 inches from the rear lot line, and 7’8” from the northern side lot line. The southeasterly corner was raised more than 30” so that the Court sits level, and a 10’ fence was constructed around the Court, with a permanent basketball hoop and backboard and pickleball net installed. It was later painted with lines for pickleball play. The Schwobs allege that through 2020, 2021, and into 2022, the Crosbys and their family and guests played pickleball at all hours of day and night, the noise from which caused the Schwobs great disturbance, particularly given that their bedroom is located less than 30’ from the Court. In January 2022, after complaints to the County of Santa Barbara (County) by the Schwobs and others, County staff visited the Crosby property. On February 11, 2022, County issued a Notice of Violation to the Crosbys, arising from their construction of a pickleball Court in their back yard that exceeded the cumulative square foot maximum of 30% of the area of the rear setback of all structures in a rear setback. The Notice also found that the fence around the Court violated provisions of the Santa Barbara County Code, Montecito Land Use and Development Code (MLUDC), which required that any such fence be no higher than six feet. The Notice provided that the Crosbys could remedy the Court violation by removing the Court or moving the Court out of the rear setback area so that it and the ADU which the Crosbys had under construction combined totaled less than or equal to 30% of the rear setback and could remedy the fencing violation by removing the fence, reducing its height, or applying for a permit. The Notice of Violation is attached to and incorporated into the petition/complaint and establishes that the issuing agency was County’s Planning and Development Department. In response to the Notice of Violation, the Crosbys removed the permanent pickleball net, painted over the stripes on the Court, and lowered the fence height to 6’, but continued to play pickleball by placing tape on the surface in lieu of the painted lines. At some point they apparently restriped the Court and reinstalled the permanent net. The Schwobs again complained to the County about the continued pickleball play on the Crosby’s Court. In response, the County conducted a site inspection on September 9, 2022, after which it issued a second Notice of Violation, which provided that the Crosbys could remedy the violation by removing the Court, relocating the Court, or converting the Court into a patio, through removal of all lines from the surface indicative of use as a sports Court, and removal of the permanent net. In response, the Crosbys removed the permanent lines and net, but continue to play pickleball by again placing tape where the pickleball Court lines should be and using a “professional grade moveable Pickleball net.” The September 9, 2022, Notice of Violation is attached to and incorporated into the petition/complaint. Certain of its contents were not the subject of express allegations in the petition/complaint, including that SC-2411 (Revised July 1, 2013) MINUTE ORDER the County had determined that the February 11, 2022 Notice of Violation had been abated by the removal of the tennis net and sports Court lines, which converted the sports Court into a patio area, which does not count as a structure and therefore did not contribute toward the 30% encroachment into the setback. Because the Crosbys had reconverted the patio into a sports Court, the County determined them to be in violation of MLUDC Chapter 35, §§ 35.400.040.A, 35.420.040.A, and 35.442.020.4.a.(1).(c). The notice provided the Crosbys with the abatement options of either (a) removing the sports Court, or (b) converting the sports Court into a patio, by removing all lines from the surface indicative of use as a ports Court, and removal of the permanent net. The petition contends that in issuing the Second Notice of Violation, which hung on the “thin distinctions between a fixed and moveable net, and taped or painted lines,” County colluded with the Crosbys and worked with them in an attempt to find a way around what the Code permitted. The petition alleges the County arbitrarily redefined what constitutes a sports Court, “and is now playing make-believe that this pickleball Court is just a funny looking patio.” They contend that nothing the Crosbys have done abated the cumulative square foot maximum of 30% of the area of the rear setback of all structures in a rear setback, and that violation still exists. The Schwobs allege that they continue to be subjected to regular noise and disturbance from the playing of pickleball seven days a week, and that such noise and disturbance unreasonably interferes with their use and enjoyment of their property. Based upon these facts, the Schwobs allege causes of action for (1) mandamus against the County, based upon their contention that County has failed to enforce provisions of the MLUDC, for which they pray for a declaration that they are the prevailing party and the Crosbys be directed to remove the Court and fencing, abate the nuisance, and restore the prior permitted use, as well as compensatory damages, attorneys’ fees, punitive damages, and prejudgment interest, and for (2) conspiracy against all Defendants, (3) private nuisance against the Crosbys only, and (4) declaratory relief against all Defendants. For the conspiracy, private nuisance, and declaratory relief causes of action, the Schwobs pray for a declaration that the Crosbys are in violation of MLUDC §§ 35.400.040.A, 35.420.040.A, 35.442.020.4.a.(1).(c) as to the sports Court, and §§ 35.400040.A, 35.430.070.C, and 35.430.070 table 3-2 as to the fencing, as well as compensatory damages, attorneys’ fees, punitive damages, and pre-judgment interest. Demurrer Respondent/Defendant County of Santa Barbara has demurred to each cause of action set forth in the petition/complaint. In support of its demurrer, it seeks judicial notice of Santa Barbara County Code, Chapter 24A (Administrative Fines), and excerpts from the Santa Barbara County Code, Montecito Land Use and Development Code. Mandamus. County first contends that the Schwobs have failed to state facts sufficient to constitute a cause of action for either administrative mandamus or traditional mandamus. Administrative mandamus under Code of Civil Procedure section 1094.5 is inapplicable under its terms, because it only applies where a hearing and the taking of evidence is required, and the petition does not include any allegations that would require a hearing to determine whether violations have been abated, and the County Code does not require a hearing. With respect to traditional mandamus, County asserts that the allegations of the petition are insufficient to show that County either failed to perform a ministerial duty, or abused its discretion. County notes that SC-2411 (Revised July 1, 2013) MINUTE ORDER the MLUDC grants County discretion to investigate, to determine whether a code violation exists, and to take any necessary or expedient measures to enforce compliance. County asserts that its staff exercised discretion when it determined the Crosbys had converted the hardscape into a patio by removing permanent recreational features. It asserts local zoning enforcement is generally considered discretionary, citing Blankenship v. Michalski (1957) 155 Cal.App.2d 672, and that only when an enforcement obligation is so clear and obvious that it leaves no room for disagreement or the exercise of any discretion as to the interpretation of the requirement, may a writ be issued to compel enforcement. Here, the code did not prescribe staff’s actions without regard to exercise of judgment and required staff to analyze the facts and interpret the ordinance through exercise of discretion. There was no ministerial duty to enforce the zoning violation through requiring removal of the hardscape “sports Court.” County also contends that it did not abuse its discretion, noting that the scope of review for abuse of discretion requires deference to the agency’s authority and expertise, prohibits the Court from reweighing the evidence or substituting its judgment, and limits the inquiry to whether the decision was arbitrary, capricious, or entirely lacking in evidentiary support. The Court considers whether the agency adequately considered all factors, and has demonstrated a rational connection between those factors, the choices made, and the purposes of the enabling statute. Deference it particularly important when reviewing zoning enforcement decisions. Here, the Schwobs contend the County made an arbitrary ruling that the distinction between a fixed and movable net, and taped or painted lines, is sufficient to distinguish a sports Court from a patio. The facts alleged in the petition and the documents incorporated therein show the County considered all of the facts and demonstrated a rational reason for its determination that the Crosbys abated the setback violation. MLUDC defines “sports Court” as a “structure” that consists of a hardscape of other service “devoted to recreational purposes.” With removal of permanent features, County reasonably determined it was no longer devoted to recreational uses, and was not a sports Court, but a patio area, which does not constitute a “structure.” (§35.10, which defines sports Court to exclude bocce ball Courts, lawn bowling Courts, patios, and areas used for driveways or parking.) The Schwobs contend County failed to enforce code requirements related to fencing, but do not articulate any reason why lowering the fence to six feet did not abate the fencing violation. They don’t dispute that the Code exempts fences no more than 6 feet in height from permit requirements. To the extent there is any ambiguity as to what the code requires, an agency’s view of its meaning and scope is entitled to great weight unless it is clearly erroneous or unauthorized, and the amount of deference depends on factors such as expertise in the subject of the regulation, the longevity and consistency of the interpretation, and whether the entity is authorized to make such determinations. County has “expertise and technical knowledge” of the MLUDC, which it authored, is intimately familiar, and is sensitive to the practical implications of one interpretation over another. The Schwobs do not allege that County adopted a different interpretation in the past or has inconsistently interpreted the provision. Finally, County has authority to interpret its own code. (See Gov. Code, §§ 65800, 65850.) The MLUDC provides County with authority to resolve questions about its meaning or applicability. (§§ 35.400.030(B), 35.402.020.) If County had to treat every surface on which a resident sometimes plays sports as an accessory structure, that would prohibit driveways, because the code prohibits accessory structures in front setbacks. (§35.442.020(B)(4)(a)(1).) County’s view of the meaning of its code is entitled to deference. SC-2411 (Revised July 1, 2013) MINUTE ORDER Finally, County contends that mandamus is inappropriate, because the Schwobs have an available adequate remedy, which they are already pursuing, in the form of their private nuisance claim against the Crosbys. Conspiracy. County further contends that the petition fails to state facts sufficient to constitute a cause of action for conspiracy, first because it is not a separate tort, but is only a legal doctrine imposing liability on all who share with the tortfeasors a common plan or design in its perpetration. (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581-1582.) Further, bare legal conclusions, inferences, generalities, presumptions, and conclusions are insufficient to allege a conspiracy. (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 419.) The Schwobs allege County conspired with the Crosbys to allow an illegal pickleball Court to exist, which creates a nuisance due to the noise which results. Since no public nuisance claim is alleged, there can be no conspiracy to commit a public nuisance. As to private nuisance, County contends insufficient facts are alleged to render County liable, because no facts are alleged to show County had actual knowledge a tort was planned, or that it concurred in the tortious scheme with knowledge of its unlawful purpose of injuring the Schwobs. There are no allegations of a relationship between County and the Crosbys, or any other interest that would support an inference that County sought to assist the Crosbys to commit a nuisance or other tort. Petition also does not allege facts that County committed a wrongful act in furtherance of the conspiracy, given that its interpretation of the zoning code is reasonable and entitled to deference. Declaratory relief. County contends that the petition fails to state facts sufficient to constitute a cause of action for declaratory relief. The petition asks the Court to declare that the development in the Crosby’s back yard is in violation of the MLUDC. The provisions allegedly violated are the same as those cited in the NOVs, identifying the violations County later determined were abated. When read together, the provisions simply mean that new accessory structures must comply with setback restrictions and fences over six feet are subject to permit requirements. County contends the judicial declaration the Schwobs seek is not necessary or proper for multiple reasons. First, declaratory relief is not appropriate to challenge an agency’s adjudicatory application of an ordinance to a specific parcel of land. (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 154-155. Second, the cause of action raises issues identical to those in the mandamus claim, and it is therefore unnecessary and superfluous. Third, because the mandamus cause of action is insufficient as a matter of law, so is the derivative cause of action for declaratory relief. (Ball v. FleetBoston Fin. Corp. (2008) 164 Cal.App.4th 794, 800 [“where a trial Court has concluded the Plaintiff did not state sufficient facts to support a statutory claim and therefore sustained a demurrer as to that claim, a demurrer is also properly sustained as to a claim for declaratory relief which is ‘wholly derivative’ of the statutory claim,” quoting Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794.].) Opposition Mandamus claim The Schwobs contend their petition states a claim for both administrative mandamus and traditional mandamus. They contend administrative mandamus is applicable, because a permit was required by law. They assert a sports Court is a sports Court, whether or not it is used as such, and what the Crosbys have on their property meets the definition of a sports Court. (§ 35.500.020.) Under the MLUDC, sports Courts are accessory residential structures or use, which require a permit. (§ 35.423.030.) While County argues that no permits were required for the Court or heightened fence, Plaintiffs argue that each requires a separate permit, and whether permits were required is a question to be determined at trial. SC-2411 (Revised July 1, 2013) MINUTE ORDER The Schwobs also contend they have stated a claim for traditional mandamus, because County failed to enforce a law it was required to enforce, and County offers no rationale for failing to do so. Mandate lies to compel performance of an act which the law especially enjoins, the Petitioner must be beneficially interested, and there must be no adequate remedy. (Code Civ. Proc., § 1085.) They contend they met their burden to meet this standard for purposes of demurrer. First, they contend the County does not get discretion in interpreting the MLUDC. Both the sports Court and the fence violations had separate permitting requirements which were ignored by County, and County cannot focus on the fence height to say no violation exists. The permanent recreational facilities were not removed, and the basketball hoop and retractable net remain. The Crosbys did not perform any conversion—the Court is a single, continuous poured smooth surface, of the dimensions to accommodate a pickle ball Court. It was built before the Crosbys built their patio, out of a different material. Second, they contend County abused its discretion, asserting that County miscited what the Court said in Yamaha Corp. of America, giving it a different meaning. County’s position is that land use regulations are so complex that no one ever has the right to challenge what it deems to be the meaning of the regulation, because only it can understand such a complex Code, which the Schwobs characterize as “ludicrous.” County argues further that it should be given deference in enforcing statutes, citing City Council of the City of Santa Barbara v. Superior Court (1960) 179 Cal.App.2d 389, but the Schwobs are not asking the Court to command specific legislative action, but to enforce that legislation. They assert that, under well- established law, an agency’s view of the meaning and scope of its own ordinance is entitled to great weight unless it is clearly erroneous or unauthorized but contend that failing to enforce a law is clearly erroneous and an abuse of discretion. As alleged in the Petition, both the Court and the fence would, require a permit. The MLUDC defines a sports Court as a “structure” that consists of a hardscape or other surface devoted to recreational purposes. (§ 35.10) Because it has an elevation of greater than 30”, it is a structure under the code, which requires a permit. As pleaded, a violation exists; resolution of the issue should be decided upon presentation of evidence, not on demurrer. Third, the Schwobs contend they have no adequate remedy at law, given that the County has conspired with the Crosbys to permit the unpermittable. They first advised that no permit for the sports Court was required, then worked with the Crosby’s builder to break the law, and now tries to paint this as a private neighbor dispute, but this is a legitimate dispute between Schwobs and the County. The Schwobs contend the MLUDC imposes a mandatory duty on County to commence enforcement proceedings, and mandamus lies even though other remedies may also exist. (Board of Supervisors of Los Angeles County v. Simpson (1951) 36 Cal.2d 671; Gov. Code, §§ 26500-26502.) The “adequate remedy” must be speedy and capable of directly affording the relief sought; if it cannot result in performance of the specific act sought by mandamus, it is not equally convenient, beneficial and effective, it will not supersede the mandamus remedy. (Ross v. Board of Education of the City and County of San Francisco (1912) 18 Cal.App. 222, 225.) Conspiracy. The Schwobs assert that the petition states facts sufficient to constitute a cause of action for conspiracy. They contend the elements are (1) formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct), citing AREI II Cases (2013) 216 Cal.App.4th 1004, 1021. A Plaintiff must establish that the conspiring Defendants knew of the wrongful plan and expressly or implied agreed to achieve it. Because of the secretive nature of conspiracy, their existence can be inferentially and circumstantially derived from the SC-2411 (Revised July 1, 2013) MINUTE ORDER character of the acts done, the relations of the parties, and other facts and circumstances suggestive of concerted action. They point to their allegations in ¶¶ 34 [that the Crosbys continued to play pickleball by putting tape down to act as boundaries in lieu of painted lines, and putting in place a professional grade moveable pickleball net], 49 [that beginning in February 2022, County acted in cooperation and conspiracy with the Crosbys in allowing for an illegal pickleball Court to exist], and 50 [in allowing the illegal and unpermitted Court to exist, County “advised, consented, looked the other way, overlooked violations, and generally assisted” the Crosbys to have an unpermitted and illegal pickleball Court], and conclude that accepting the facts pleaded as true, and drawing all reasonably inferences therefrom, the formation of a conspiracy is sufficiently shown, based upon the nature of the acts, the relations of the parties, the interests of the conspirators, and other factors, citing 117 Sales Corp. v. Olsen (1978) 80 Cal.App.3d 645, 649. Declaratory relief. The Schwobs assert the petition states facts sufficient to constitute a cause of action for declaratory relief. They contend County wants it both ways, first that the mandamus action is subject to demurrer, and then that declaratory relief is subject to demurrer because it is duplicative of the mandamus claim. Whether it is duplicative depends on what is shown at trial. The allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc., § 452.) A general demurrer to a declaratory relief cause of action must be overruled as long as an actual controversy is alleged; the pleader need not establish it is entitled to a favorable judgment. (New Livable California v. Association of Bay Area Governments (2000) 82 Cal.App.4th 592, 606. Reply County asserts that while the Schwobs contend the patio is still an unpermitted and illegal sports Court, they fail to allege facts that would show that County’s interpretation and application of its own code is clearly erroneous or unauthorized, or that they have authority to seek an order directing County to exercise its discretionary powers in a particular manner. They have obfuscated the issues by making new factual allegations in their opposition, citing numerous provisions in the County’s land use code that were not relied on in the Petition, were not provided with their opposition, and of which they have not requested judicial notice. The new allegations and new code provisions do not remedy the deficiencies, and at most would entitle the Schwobs to file an amended pleading. Mandamus (1) Administrative mandamus is inapplicable because no hearing was required by law. The petition includes no allegations that a hearing was required by law. Consequently, Section 1094.5 does not apply. While the Schwobs’ opposition contends a hearing was required because the Court and fence required permits, citing Section 35.423.030, that section was not alleged in the petition, nor was judicial notice of it requested. Further, there are no allegations of what type of permit was required, nor is any provision cited that requires a hearing for that type of permit. Not all permits require hearings. (2) With respect to traditional mandamus, the petition lacks facts to show the County did not have discretion or abused its discretion. The Schwobs contend the County does not have discretion in interpreting the MLUDC because it is a statute adopted by another agency, but the petition alleges no facts to support that contention, and the contention is wrong in any event. MLUDC is part of the County Code, adopted by the County. SC-2411 (Revised July 1, 2013) MINUTE ORDER Petitioners argue County abused its discretion by failing to enforce its code, but County did enforce its code, sending two Notices of Violation to the Crosbys, who abated the violations by converting the sports Court into a patio and by lowering the fence height, which is exempt from permit requirements. The second NOV explained that removal of the net and sports Court lines converted the Court into a patio, which is not a structure under the code, and therefore does not impact the 30% encroachment into the setback. Petitioners also argue the County abused its discretion in determining the Schwobs converted the sports Court into a patio, but the MLUDC gives the County, not the neighbors, the authority to interpret the code and determine what measures are necessary to comply with it. Schwobs have failed to show that County’s interpretation of the code to allow unobtrusive recreational features on patios is “clearly erroneous or unauthorized.” They attempt to make new factual allegations not contained in the petition, by contending it is a single, continuous poured, smooth surface, of a size appropriate for a pickleball Court, and was built before and from a different material than the Crosby’s patio. They were not alleged and are irrelevant on demurrer. Even if true, they would not require County to treat the hardscape as a sports Court rather than a patio. Petitioners further argue County abused its discretion because the Court and fence each had a distinct permitting requirement that County ignored, citing 35.20.040.C and 35.30.070.C. Neither of those provisions were cited in the petition, nor was judicial notice requested of them, nor do they even exist. Even if a code provision requires a permit for a sports Court, Petitioners have not cited any provision requiring one for a patio. With respect to the fence, the first NOV stated that the 10’ fence exceeded the maximum exempt fence height of 6 feet and enclosed a table showing that a rear setback fence 6 feet or less was exempt from a planning permit. County advised the Crosbys could either remove the fence, lower its height, or obtain a permit, and they to lower the fence to 6 feet. While the Schwobs argue it was lowered to an “illegal height of six feet,” they offered no explanation for why it is illegal. County concludes it should not be compelled to require abatement that it does not believe is necessary, “at the whim or caprice of every taxpayer who disagrees” with it. Local code enforcement inherently involves the exercise of discretion, and mandamus does not lie to compel a public agency to exercise discretionary powers in a particular manner. (3) The Schwobs have an adequate available remedy, in their private nuisance claim against the Crosbys, to resolve the dispute among neighbors over noise. While they contend it is not adequate, they do not explain why a private nuisance claim against the Crosbys is not as convenient, beneficial, and effective as their mandamus claim against the County; that they have already filed the claim suggests it is not less convenient. They fail to articulate any remedy they could not obtain from the Crosbys. The only way to obtain the remedy they seek—the cessation of all pickleball noise—is through an injunction. Petitioners have cited no provision in the MLUDC that would authorize County to prohibit use of the patio for any personal recreational purpose, and Court cannot require County to force removal of the hardscape. The only relief they could obtain in mandamus would be an order that the County reconsider the facts and exercise its discretion in determining whether a violation exists and, if so, how the property may be brought into compliance. Even a successful mandamus claim would not necessarily eliminate the Crosbys playing of pickleball. SC-2411 (Revised July 1, 2013) MINUTE ORDER Conspiracy. Petitioners fail to address that there is no such separate cause of action for conspiracy. Even if there were, they have alleged insufficient conclusory allegations. County’s alleged knowledge that the Crosbys were playing pickleball doesn’t support a conspiracy claim because the MLUDC does not prohibit residents from engaging in sports or games in their backyards. No MLUDC provision is cited that prohibits recreational activities on patios or other hard surfaces. The conclusory allegations are not admitted on demurrer, including that the hardscape is “illegal.” There has been no showing that County had actual knowledge of an unlawful purpose by the Crosbys, and that County concurred in the unlawful purpose. While they suggest that the change in abatement options from the first NOV to the second prove conspiracy, the options were not exhaustive, and the change reflected that Crosbys had abated the first violation by converting the hardscape into a patio, which made conversion an obvious option for the second NOV. Declaratory relief. Declaratory relief is not appropriate to challenge an agency’s adjudicatory application of an ordinance to s specific parcel of land. Further, it is superfluous to and derivative of the mandamus claim. Petitioners cited cases in their opposition but failed to apply them to this case. Their conclusory statement that they have alleged sufficient facts is insufficient to overcome the demurrer. ANALYSIS The Court will sustain County’s demurrers to the cause of action for conspiracy and declaratory relief, with leave to amend. While the Court does not find the allegations of the petition sufficient to state a claim for administrative mandamus, or traditional mandamus based upon a ministerial duty of the County, it does find the petition sufficient to state a claim for traditional mandamus review of County’s discretionary determinations. Consequently, the Court will overrule the demurrer to the petition for writ of mandamus. The Court will permit Petitioners leave to file an amended pleading on or before October 11, 2023, or such other date as the Court might specify at the hearing on this demurrer. To the extent that Petitioners believe they may be able to allege valid claims for administrative mandamus or traditional mandamus arising from a ministerial duty, they may also amend their cause of action for mandamus at that time. 1. Judicial Notice In support of its demurrer, County seeks judicial notice of Santa Barbara County Code, Chapter 24A (Administrative Fines), and excerpts from the Santa Barbara County Code, Montecito Land Use and Development Code, as legislative enactments by the County of Santa Barbara. (Evid. Code, § 452, subd. (b).) The request attaches copies of the provisions for which judicial notice is requested, as required by California Rules of Court, Rule 3.1306(c). Judicial notice of these local enactments is legally proper, and the Court will take judicial notice of the provisions. 2. Demurrer standards The Court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), or how unlikely it will be that Plaintiff will be able to prove the claim (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The Court also SC-2411 (Revised July 1, 2013) MINUTE ORDER assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) 3. Mandamus cause of action. A. Requirements and standards for a mandamus claim i. Administrative mandamus A petition for administrative mandamus under Code of Civil Procedure section 1094.5 is appropriate when the party seeks review of a determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with the law—which is generally referred to as an “adjudicatory” or “quasi-judicial” decision. (Western States Petroleum Association v. Superior Court (1995) 9 Cal.4th 559, 567.) An evidentiary hearing is required “by law” within the meaning of Section 1994.5(a), if it is required by a statute, a regulation, or constitutional due process. (Kirkpatrick v. City of Oceanside (1991) 232 Cal.App.3d 267, 279.) Section 1094.5 is properly directed to formal adjudicatory proceedings, and not to informal administrative actions. (See Wasko v. California Department of Corrections (1989) 211 Cal.App.3d 996, 1001.) The distinction between adjudicatory proceedings and other types of decision-making (e.g. quasi-legislative or ministerial) turns on the function being performed by the agency, rather than on the procedure by which the decision was reached. (See 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 275.) It is sometimes not entirely clear whether circumstances giving rise to review pursuant to Section 1094.5 exist. There exist some statutes, such as Water Code section 1126(c), which require that an adjudicatory decision be reviewed under Section 1094.5 even where no evidentiary hearing is required. There also exist some statutes, such as Business & Professions Code section 19870(f), which provide that Section 1094.5 does not apply to review of a decision after an agency hearing that is required by statute. Further, some statutes have been construed by case law to imply a right to an evidentiary adjudicatory hearing, and thus to Section 1094.5 review. Additionally, some cases imply a right to an evidentiary adjudicatory hearing where the statute calls for an administrative appeal. (See, e.g., California Practice Guide— Administrative Law (The Rutter Group 2023) Chapter 13, §§ 13:200, et seq.). Where Section 1094.5 applies, the trial Court reviews the agency’s decision for abuse of discretion, which is established if the Respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).) Factual disputes are reviewed in the light most favorable to the judgment, on a substantial evidence review. (Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249, 256-257.) ii. Traditional mandamus A traditional writ of mandate will issue to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station (Code Civ. Proc., § 1085), where there is not a SC-2411 (Revised July 1, 2013) MINUTE ORDER plain, speedy, and adequate remedy, in the ordinary course of law. (Id., § 1086.) Such writ will issue against a county, city or other public body or against a public officer. (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 653.) Traditional mandamus under Section 1085 is the proper form of action to challenge the reviewable ministerial or quasi-legislative acts of a public agency. (California Water Impact Network v. Newhall County Water District (2008) 161 Cal.App.4th 1464, 1483.) A trial Court must determine whether the agency had a ministerial duty capable of direct enforcement or a quasi-legislative duty entitled to a considerable degree of deference. (Weinstein v. County of Los Angeles (2015) 237 Cal.App.4th 944, 965, quoting County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 653.) A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists. (Kavanaugh v. West Sonoma County Union High School District (2003) 29 Cal.4th 911, 916.) Where a statute or ordinance clearly defines the specific duties or course of conduct that a governing body must take, that course of conduct becomes mandatory and eliminates any element of discretion. (Bullis Charter School v. Los Altos School District (2011) 200 Cal.App.4th 1022, 1035.) A public entity has a ministerial duty to comply with its own rules and regulations where they are valid and unambiguous. (Gregory v. State Board of Control (1999) 73 Cal.App.4th 584, 595.) Further, while traditional mandamus will not lie to compel the exercise of discretion in a particular manner, it is a proper remedy to challenge discretionary agency action as an abuse of the agency’s discretion. (CV Amalgamated, LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 279.) When a Court reviews a public entity’s decision for an abuse of discretion, the Court may not substitute its judgment for that of the public entity, and if reasonable minds may disagree as to the wisdom of the public entity’s discretionary determination, that decision must be upheld. Thus, the judicial inquiry addresses whether the public entity’s action was arbitrary, capricious or entirely without evidentiary support, and whether it failed to conform to procedures required by law. (California Public Records Research, Inc. v. County of Stanislaus (2016) 246 Cal.App.4th 1432, 1443.) Petitioner must show the agency or official acted arbitrarily, beyond the bounds of reason, or in derogation of applicable legal standards. (Ochoa v. Anaheim City School District (2017) 11 Cal.App.5th 209, 223, fn. 3.) iii. Standards when reviewing a question of discretion. A trial Court’s review of an agency’s discretionary actions in the context of a petition for writ of traditional mandate is multi-faceted and can be quite confusing, including at times to this Court. While a more robust recitation and understanding of the law surrounding such review is understandably required for purposes of performing the review, in this case a basic understanding of the process is required in order for this Court to ascertain whether some of the issues raised by County are in fact amenable to resolution on demurrer. As noted, both administrative mandamus and traditional mandamus can be used, when appropriate, to review an agency’s exercise of discretion. While the “abuse of discretion” standard—as articulated above with respect to both administrative mandamus and traditional mandamus—applies overall, the trial Court must use appropriate standards in reviewing the agency’s resolution of questions of fact, of questions of law, and the application of law to the facts (whether undisputed, or as determined by the agency). (See, SC-2411 (Revised July 1, 2013) MINUTE ORDER generally, California Practice Guide—Administrative Law (The Rutter Group 2023) Chapter 17 [“Rutter”].) (a) Review of agency’s resolution of questions of law. The first step in reviewing an agency’s discretionary action is to resolve issues of law. (Rutter, Chapter 17, § 17:635.) When a statute (or ordinance) delegates discretionary authority to an agency, Courts review whether the agency’s choice is legally permissible as a question of law. If the choice is legally permissible, Courts then proceed to determine whether the agency’s discretionary choice is an abuse of discretion. (Rutter, § 17:636; see 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 271.) Since discretionary decisions often involve a balancing of factors, whether the agency took account of all relevant factors or took account of irrelevant factors is a question of law on judicial review. (See Rutter, § 17:637, citing Morrison v. State Board of Education (1969) 1 Cal.3d 214, 220-230; Association of Irritated Residents v. San Joaquin Valley Unified Air Pollution Control District (2008) 168 Cal.App.4th 535, 542-549.) Questions of law are ordinarily determined by a reviewing Court under an independent judgment test, under which the Court can substitute its judgment on a question of law for that of an agency even though the agency’s interpretation is reasonable. (Rutter, §§ 17:10, 17:20, 17:369.) However, in the course of exercising independent judgment over questions of legal interpretation, the Court gives “variable deference” to the agency’s interpretation. (Yamaha Corporation of America v. State Board of Equalization (1998) 19 Cal.4th 1, 7-8 [“Yamaha”].) Yamaha requires the reviewing Court to take account of various factors in determining how much weight to give to an agency’s legal interpretation of a statute it administers. (Yamaha, supra, 19 Cal.4th at ¶. 12.) If the reviewing Court determines that the language being interpreted is unambiguous, it gives no deference to the agency’s contrary interpretation, and should not make use of any other extrinsic aid to interpretation. Rather, in the process of judicial interpretation of a statute, deference to the agency’s opinion comes into play only if the language is ambiguous. (Bonnell v. Medical Board of California (2003) 31 Cal.4th 1255, 1264-1265.) Further, application of the variable deference factors is fundamentally