Filed 3/8/19; pub. order 4/5/19 (see end of opn.)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                     SECOND APPELLATE DISTRICT

                               DIVISION THREE

KENNETH K. YORK et al.,                             B278254

        Plaintiffs and Appellants,                  (Los Angeles County
                                                    Super. Ct. No. BS153326)
        v.

CITY OF LOS ANGELES et al.,

        Defendants and Respondents.


     APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard L. Fruin, and James C. Chalfant,
Judges. Affirmed.
     Ervin Cohen & Jessup and Allan B. Cooper for Plaintiffs
and Appellants.
     Michael N. Feuer, City Attorney, Terry P. Kaufmann
Macias, Assistant City Attorney, Charles D. Sewell and Jennifer
K. Tobkin, Deputy City Attorneys for Defendants and
Respondents.
       Kenneth and Annette York (plaintiffs) own a 40-acre parcel
of land in the Hollywood Hills. In 2011, they sought approval
from the City of Los Angeles (City) to build a large house, guest
house, and recreational area on the property. To do so, they also
sought approval of nearly 80,000 cubic yards of grading—more
than 24 times the amount of grading permitted by right. The
City granted permission to build the home and most of the
accessory structures, but denied the grading request. Plaintiffs
then filed a complaint in the superior court that sought a writ of
mandate and alleged causes of action for inverse condemnation
and violation of civil rights. The superior court denied the
mandate petition and granted judgment on the pleadings on the
inverse condemnation and civil rights causes of action. Plaintiffs
appealed.
       On appeal, plaintiffs characterize the City’s action as a
final decision limiting them to 3,300 cubic yards of grading—a
grading limitation that plaintiffs contend will foreclose any
development of the property. The record does not bear out these
characterizations. While the City denied plaintiffs’ request for
almost 80,000 cubic yards of grading, it neither definitively
limited plaintiffs to 3,300 cubic yards nor precluded plaintiffs
from submitting another, more modest, development proposal.
Moreover, nothing to which plaintiffs have directed our attention
supports plaintiffs’ contention that building a home of any size on
the property will require all, or nearly all, of the grading
requested. Accordingly, we find no error in the trial court’s
determinations, and thus we affirm the judgment in its entirety.




                                 2
           FACTUAL AND PROCEDURAL HISTORY
       A.    Plaintiffs’ Development Proposal
       Plaintiffs own a 40-acre parcel located at 6459 Innsdale
Drive, Los Angeles (the property), as well as a smaller adjacent
parcel on which they have lived for many years. The property is
bordered on three sides by publicly-owned land: Griffith Park to
the north and east, and the Department of Water and Power to
the west. The property currently is undeveloped with the
exception of a vineyard, orchards, and vegetable gardens. It is
zoned RE-40-1-H (residential estate—minimum lot size 40,000
square feet).
       On November 15, 2011, plaintiffs applied to the
Los Angeles Planning Department for approval to build an 8,000
square foot home, a 1,300 square foot guest house, a driveway,
swimming pool, tennis court, storage sheds, retaining walls, and
“wine caves” on the property. In connection with the proposed
project, plaintiffs requested approval for 79,700 cubic yards of
grading: 39,850 cubic yards of cut (excavated earth materials)
and 39,850 cubic yards of fill (deposit of excavated materials on-
site).
       B.    The Baseline Hillside Ordinance
       The Baseline Hillside Ordinance (BHO), which is codified
at Los Angeles Municipal Code (LAMC)1 section 12.21(C)(10),
sets out the maximum amount of grading allowable on a property
in a designated hillside area. At all times relevant to this appeal,
the maximum grading permitted by the BHO on the property as




1
    All subsequent undesignated section references are to the
LAMC.



                                 3
a matter of right was 3,300 cubic yards. (Former
§ 12.21(C)(10)(f)(1).)2
       A party may obtain relief from the BHO’s grading
limitations by applying to the Planning Department for a
deviation. A zoning administrator may grant a deviation from
“by-right” grading limitations to allow additional grading up to
an amount no greater than 500 cubic yards plus five percent of
the total lot size. (Former § 12.21(C)(10)(f)(4)(i).) It is
undisputed that plaintiffs’ property is approximately 40 acres, or
1,742,400 square feet, and thus that the zoning administrator
had discretion to grant up to 87,620 cubic yards of grading.
       In order to grant a deviation from the by-right grading
limitations, a zoning administrator must hold a public hearing
and make the following findings required by section 12.24(E):
       “(1) . . . the project will enhance the built environment in
the surrounding neighborhood or will perform a function or
provide a service that is essential or beneficial to the community,
city, or region;
       “(2) . . . the project’s location, size, height, operations and
other significant features will be compatible with and will not
adversely affect or further degrade adjacent properties, the
surrounding neighborhood, or the public health, welfare, and
safety; and
       “(3) . . . the project substantially conforms with the purpose,
intent and provisions of the General Plan, the applicable
community plan, and any applicable specific plan.”


2
      In March 2017, section 12.21(C)(10)(f)(1) was amended to
allow maximum grading of 1,000 cubic yards, plus 10 percent of
the lot size, not to exceed 6,600 cubic yards.




                                  4
       The zoning administrator must also make the following
additional findings required by section 12.24(X)(28)(b)(2):
       “[A]pproval . . . is in conformity with the public necessity,
convenience, general welfare and good zoning practice[;] . . . the
action will be in substantial conformance with the various
elements and objectives of the General Plan[;] . . . [¶] . . . [¶] . . .
the increase in the maximum quantity of earth import or export
will not lead to the significant alteration of the existing natural
terrain[;] . . . the hauling of earth is being done in a manner that
does not significantly affect the existing conditions of the Street
improvements and traffic of the Streets along the haul route[;]
and . . . potentially significant impacts to the public health,
safety, and welfare of the surrounding community are being
mitigated to the fullest extent feasible.”
       C.      The Zoning Administrator’s Determination
       On November 19, 2013, Associate Zoning Administrator
Charles Rausch (the zoning administrator) conducted a public
hearing on plaintiffs’ proposed project. Approximately 30 to 40
local residents attended the hearing, the majority of whom
opposed the project.
       On about August 8, 2014, the zoning administrator issued a
written determination approving the construction of the
requested single-family home and most of the accessory buildings
and retaining walls. However, the zoning administrator denied
the request for 79,700 cubic yards of grading. In connection with
the denial, the zoning administrator made a number of specific
findings, including the following:
       The project will not enhance the built environment in the
surrounding neighborhood or will not perform a function or
provide a service that is essential or beneficial to the community,




                                   5
city, or region (§ 12.24(E)(1)): “One of the intents of the [BHO]
was to control the mass of individual single-family homes in
hillside areas of the city. Along with controls on the size of
homes, an important section of the ordinance controlled grading
which would occur on individual lots. The intent of the grading
restrictions was to control the amount of flat areas on lots that
could be graded in order to include private recreational facilities
such as swimming pools, tennis courts, lawn areas and guest
houses. The construction of such uses often resulted in excessive
grading as well as the construction of retaining walls of excessive
heights in order to manufacture flat areas on hillsides which
could accommodate such uses.
       “The plan for the subject property included an extensive
auxiliary 12-foot wide driveway which extended from the main
20-foot wide driveway to the proposed house up the hillside to a
proposed tennis court. The driveway itself would cause extensive
grading in order to flatten the slope to the maximum of a 15%
grade required by the Fire Department for emergency vehicle
access. It would also require extensive grading of the easterly
and westerly slopes adjacent to the tennis court. It was
explained at the hearing that this extensive grading of up to
79,700 cubic yards of earth was needed in order to balance all of
the graded material on the site and avoid the need to haul dirt off
the site on the often narrow streets which surround the site.
       “The Zoning Administrator has decided to deny the
requested 79,700 cubic yards of grading and instead permit the
maximum of 3,300 cubic yards of grading permitted by Section
12.21(C)(10)(f) of the Municipal Code for an RE40 lot which is
approximately 40 acres in size. . . . [O]ne of the intents of the
Hillside Standards Ordinance was to control the amount of




                                 6
grading in hillside areas which often marred the views of the
scenic hillsides of the Santa Monica Mountains in the
Los Angeles region. Normally a 40-acre parcel of land is large
enough to accommodate grading because the ridges and valleys
which cross such large lots conceal the grading and other
development of the site. In this particular case, the property sits
on a prominent ridge leading up the side of Cahuenga Peak and
Mount Lee under the iconic Hollywood Sign which is prominent
to the east of the site. The property is famous for a large
vineyard which has been planted on it and is prominently visible
from the flats of Hollywood and very prominent in sight lines up
the hill from the Hollywood (U.S. 101) Freeway. The addition of
a large graded area on the westerly end of this prominent
property would be seen from large areas of the Central
Los Angeles Basin. In addition, the property is also very
prominent to those on the popular walking trail which the City
maintains around Lake Hollywood—especially from Mulholland
Dam at the foot of the lake. Though view protection is normally
not a concern in Individual Community Plan areas, the
Hollywood Community Plan’s objectives include Objective 3a[,]
‘In Hillside residential areas to minimize grading so as to retain
the natural terrain and ecological balance’ and Objective 7[,] ‘To
encourage the preservation of open space consistent with
property rights when privately owned and to promote the
preservation of views, natural character and topography of
mountainous parts of the Community for the enjoyment of both
local residents and persons throughout the Los Angeles region.’
. . . The prominence of the site as well as the grading of the site
well in excess of that permitted by the Zoning Code is contrary to
these objectives of the Hollywood Community Plan.”




                                 7
        The project’s size, height, operations and other significant
features will not be compatible with or will adversely affect or
further degrade adjacent properties, the surrounding
neighborhood, or the public health, welfare, or safety
(§ 12.24(E)(2)): “The request to grade 79,700 cubic yards of dirt
on the site would not be compatible with adjacent properties or
the surrounding neighborhood. Surrounding lots on Innsdale
Drive range in size from a quarter to one half acre in size. The
subject RE40 lot is to the north of Innsdale Drive and is 40+ acres
in size. The current development on Innsdale Drive is well
concealed from view from adjacent areas by ridgelines and the
low height of the structures so they do not dominate views from
surrounding areas. The subject development will result in a
graded road extending up a hillside to a private recreation area
. . . . Though the Code requires these graded slopes to be
landscaped to cover the grading scars in the hillside, the cut
slopes will still have an extensive system of concrete or riprap
interceptor channels which will cross the graded slope to channel
Stormwater runoff into a drain at the bottom of the slopes. This
water will be directed down the undeveloped slopes to the west of
the site which ultimately drain into Lake Hollywood or any
intervening storm drains.”
        The project does not substantially conform with the purpose,
intent and provisions of the General Plan, the applicable
neighborhood Community Plan and any applicable specific plan
(§ 12.24(E)(3)): “The Hollywood Community Plan includes the
following objective in the Plan text: Objective 3a[,] ‘In hillside
residential areas to . . . [m]inimize grading so as to retain the
natural terrain and ecological balance’; and Objective 7[,] ‘To
encourage the preservation of open space consistent with




                                 8
property rights when privately owned and to promote the
preservation of views, natural character and topography of
mountainous parts of the Community for the enjoyment of both
local residents and persons throughout the Los Angeles region.’
The proposed grading of 79,700 cubic yards of dirt on the site will
occur on a prominent ridge which is viewable from not only
Hollywood proper below the site but from throughout the
Los Angeles Basin in areas with a view of the Hollywood Sign.
       “The prominence of the site requires care in the
development of it. The existing vineyard is already prominent in
views. The proposed grading includes moving soil to grade a long
access road directly up a ridge line in order to access a tennis
court which is built into a hillside requiring grading both above
and below the court. Both will be prominent in sight lines from
below and to the sides of the property. The grading in this area is
not for the purpose of building the home and is contrary to the
intent of both Objective 3a and the Hillside Ordinance’s
limitation on grading on hillside lots which was to permit grading
for the home-site but not for extraneous recreation areas beyond
the stated limits of the ordinance. It was stated at the hearing
that the excess grading was requested so that the grading for the
home-site could be balanced on-site. While this is a worthwhile
goal in areas with narrow streets such as those accessing the site
from the south via Beachwood Canyon, the access from the west
from Barham Boulevard is over Lake Hollywood Drive which is a
standard hillside street with parking on both sides of the street
and two travel lanes. In the vicinity of Lake Hollywood, Lake
Hollywood Drive is free of parking except when accessing the
Lake where parking is permitted for hikers accessing the
lakeside walk. The excess grading is not justified in order to




                                9
avoid a haul route when adequate streets for the hauling of
graded material are available.”
       The requested grading in excess of the 3,300 cubic yards
permitted by the Municipal Code is not in conformity with the
public necessity, convenience, general welfare and good zoning
practice and the request will not be in substantial conformance
with the various elements and objectives of the General Plan
(§ 12.24(X)(28) (b)): “The request for 79,700 cubic yards of
grading on the site provides no public necessity . . . . It was
explained at the hearing that the excess grading was requested
in order to avoid the need to haul graded material off of the site.
The requested residence, however, is located and has access to
standard hillside streets leading down to Barham Boulevard
westerly of the site. Though balancing the graded material on
the site and avoiding dump trucks hauling material through
mountain roads may appear to be a public good, the excessive
grading required to balance the graded material on-site is
excessive and creates its own air pollution problems. The
excessive grading would not be in conformance with good zoning
practice as the Zoning Code was amended in 2011 by the Hillside
Development Standards Ordinance to limit excessive grading on
hillsides and to further limit grading and retaining walls which
would be used to create flat areas for further private recreation
areas in the City’s hillside areas. . . . The existing vineyard of the
property owner is already prominent in the viewshed of the
[Hollywood] Sign. The addition of the graded road, retaining
walls, graded slopes with Stormwater runoff channels would be
an additional private improvement, and in this case an
unnecessary one, to the public view.”




                                 10
      D.      Administrative Appeal to the Area Planning
              Commission
        The Municipal Code provides that a zoning administrator’s
decision and findings are appealable to an Area Planning
Commission, which is required to hold a public hearing.
(§§ 12.21(A)(2), 12.24(C) & (I)(3).) In reviewing the zoning
administrator’s decision, the APC “shall make its decision, based
on the record, as to whether the initial decision-maker erred or
abused his or her discretion.” (§ 12.24(I)(3).)
        On about August 20, 2014, plaintiffs appealed the zoning
administrator’s determination to the Planning Department’s
Central Area Planning Commission (APC). The APC held a
public hearing on the appeal on October 28, 2014.
        At the hearing, the zoning administrator testified, among
other things, that when he issued his decision, he misunderstood
the scope of his discretion under the LAMC. However, he said,
even had he correctly understood the scope of his discretion, he
would have made the same decision. He explained that plaintiffs’
proposal called for keeping the fill on-site, which would require a
secondary 12-foot-wide road to transport the fill to a new location.
The proposed road was on a prominent ridgeline that was visible
from the public land surrounding Lake Hollywood, Mulholland
Dam, and the flats of Hollywood. The zoning administrator did
not believe the ridge should be marred to avoid having to remove
fill from the property, noting that the proposed road “may be a
permanent instead of a temporary discomfort.” The zoning
administrator further explained that he had not approved
grading in an amount between 3,300 cubic yards and 79,000 cubic
yards because “all I had before me was 79,000 cubic yards. I did
not have any alternatives to this particular project.”




                                11
       Plaintiffs’ attorney told the APC that her clients had made
several changes to their proposal by eliminating the proposed
tennis court and sheds. Notwithstanding these changes,
plaintiffs did not reduce their grading request. To the contrary,
their counsel stated that the fire road and house pad required
approximately 35,000 cubic yards of cut (21,262 cubic yards for
the fire road and 14,277 cubic yards for the house pad), and
plaintiffs wished to keep all the grading material on site, which
would require an additional 42,239 cubic yards of grading (3,444
cubic yards for the fill road and 38,795 cubic yards for the fill
site).
       After further discussion, the Commissioners voted to deny
the appeal and sustain the decision of the zoning administrator.
       E.    Trial Court Proceedings
             1.      Complaint and Petition
       Plaintiffs filed a complaint and petition for writ of mandate
in January 2015. The first cause of action alleged that the City’s
action was arbitrary and capricious, and it sought a writ of
mandate directing the City to set aside its action and approve the
application “in a manner that will permit the construction of a
single-family home on the Property in a feasible and timely
fashion.” The second cause of action, for inverse condemnation,
alleged that the City had taken plaintiffs’ property by depriving
them of substantially all economically viable or beneficial uses of
the Property. The third cause of action, for violation of civil
rights, alleged that the City had arbitrarily and unlawfully
imposed restrictions on plaintiffs’ use of their property and
treated plaintiffs differently than other similarly-situated
homeowners.




                                12
            2.     Mandate Proceedings
      Following proceedings before the trial court, the court
denied plaintiffs’ mandate petition, concluding that the City’s
findings and decision were supported by substantial evidence.
Among other things, the trial court found that substantial
evidence supported the City’s finding that the project was
inconsistent with Hollywood’s Community Plan; plaintiffs never
reduced their grading request below 78,500 cubic yards;3 the
APC’s decision did not “prevent[] the construction of any home on
the Property;” plaintiffs received a “fair and impartial hearing;”
and the City was “not required to explain to the Yorks what
amount of grading they could perform for any project they might
build on the Property; the findings only had to explain why the
request for 78,500 cubic yards of grading was denied.”
            3.     Judgment on the Pleadings
      The City subsequently moved for judgment on the
pleadings, urging that plaintiffs’ inverse condemnation and civil
rights claims were not ripe because the City had denied a single
grading request, but had not made a final determination limiting
any potential grading on the property to 3,300 cubic yards. The
City urged that the extent of grading it would approve on the
property was uncertain because plaintiffs never presented the
City with an alternative grading proposal or asked the City to
consider any proposal for less than 79,700 cubic yards. In
support, the City sought judicial notice of various portions of the



3
       The trial court’s findings variously refer to plaintiffs’
grading request as for 78,500 and 79,700 cubic yards of cut and
fill. The discrepancy is not material for our purposes.




                                13
LAMC, the APC’s determination letter, and the zoning
administrator’s determination and findings.
      The court granted the request for judicial notice and the
motion for judgment on the pleadings, concluding, among other
things, that “the matter [is] not ripe as plaintiffs have not
proposed plans of reduced scope that would nonetheless allow the
proposed project. Plaintiffs, for instance, could propose plans
that would export all or some of the excavated soil from the site
or propose its deposit elsewhere on the site.”
      The trial court entered judgment on August 16, 2016.
Plaintiffs timely appealed.
                           DISCUSSION
      Plaintiffs challenge both the denial of the petition for writ
of administrative mandate and the grant of judgment on the
pleadings. As we now discuss, we find no error, and thus we
affirm.4



4
        In their opening brief, plaintiffs assert that they will not
repeat the arguments they made in the trial court because the
“[t]he documents in the record contain in detail the arguments
Appellants made below and the factual and legal basis for each
argument.” To the extent plaintiffs purport to incorporate by
reference the arguments they made below but have not included
in their appellate briefs, we decline to consider them because “[i]t
is well settled that the Court of Appeal does not permit
incorporation by reference of documents filed in the trial court.
(Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301,
fn. 2 [‘[I]t is not appropriate to incorporate by reference, into a
brief, points and authorities contained in trial court papers, even
if such papers are made a part of the appellate record’]; Estate of
Wiedemann (1964) 228 Cal.App.2d 362, 370–371 [incorporation
by reference of points and authorities filed in the trial court



                                 14
                                   I.
           The Trial Court Did Not Err in Denying the
                   Petition for Writ of Mandate
       A.     Standard of Review
       Under Code of Civil Procedure section 1094.5,
administrative mandamus is available for review of “any final
administrative order or decision made as the 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 the inferior tribunal,
corporation, board, or officer.”
       “ ‘In reviewing an agency’s decision under Code of Civil
Procedure section 1094.5, the trial court determines whether
(1) the agency proceeded without, or in excess of, jurisdiction;
(2) there was a fair hearing; and (3) the agency abused its
discretion. [Citation.]’ [Citations.] ‘Abuse of discretion is
established if the respondent has not proceeded in the manner
required by law, the order or decision is not supported by the
findings, or the findings are not supported by the evidence.’
 (§ 1094.5, subd. (b).) ‘The trial court and appellate court apply
the same standard; the trial court’s determination is not binding
on us. [Citation.]’ [Citation.]” (West Chandler Boulevard
Neighborhood Assn. v. City of Los Angeles (2011) 198 Cal.App.4th
1506, 1517–1518.)




violates Cal. Rules of Court . . .].)” (Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 295, fn. 20.)




                                 15
      B.     The City Did Not Abuse Its Discretion by Denying
             Plaintiffs’ Request for a Deviation from the BHO’s
             Grading Requirements
      Plaintiffs contend that the City abused its discretion by
denying their request for relief from the BHO’s grading
requirements. Specifically, plaintiffs urge the denial (1) was
based on the zoning administrator’s erroneous understanding of
the scope of his discretion, (2) precludes any development of the
parcel, and (3) was unsupported by the evidence. For the reasons
that follow, these contentions are without merit.
             1.    The Zoning Administrator’s Alleged
                   Misunderstanding of the Scope of His
                   Discretion Was Not Prejudicially Erroneous
      Plaintiffs contend that the City’s determination must be
reversed because the zoning administrator mistakenly believed
he had only two choices before him—to grant or to deny plaintiffs’
grading request in its entirety—and thus he never exercised his
discretion to grant plaintiffs’ request in part.5 Plaintiffs urge
that on this record, the APC should have reversed the zoning
administrator’s determination and ordered him “to re-hear the
matter and exercise discretion.” Because the APC did not do so,
plaintiffs suggest, the trial court should have granted the writ


5
      As the City correctly notes, the subject of a petition for writ
of administrative mandate is a final decision by the City—in this
case the decision of the APC. (Code Civ. Proc., § 1094.5 [writ may
issue for the purpose of inquiring into the validity of “any final
administrative order or decision”].) Nonetheless, an abuse of
discretion by the zoning administrator could be relevant to our
review if such abuse should have compelled the APC to reverse
the decision of the zoning administrator.




                                 16
and returned the matter to the City for further fact-finding and
decision.
       There are many problems with plaintiffs’ contention,
among them that an abuse of discretion results in reversible
error only if it is prejudicial. (E.g., Freeman v. Sullivant (2011)
192 Cal.App.4th 523, 527 [an abuse of discretion results in
reversible error only when it results in the denial of a fair
hearing or otherwise prejudices a party]; Coastside Fishing Club
v. California Fish & Game Com. (2013) 215 Cal.App.4th 397, 428
[abuse of discretion does not require reversal unless the appellant
shows the ruling was prejudicial—i.e., that it is reasonably
probable the appellant would have obtained a more favorable
result absent the error].) In the present case, while the zoning
administrator acknowledged that he had misunderstood the
scope of his discretion at the time he prepared his report, he told
the APC he would have made the same decision in any case. He
explained: “I must make a statement that I made a mistake in
my reading of the Code . . . . [¶] Nonetheless, in admitting the
error, I would have still come to the same conclusion.” (Italics
added.) Because the asserted abuse of discretion did not affect
the decision, it was not prejudicial.
             2.      The City Did Not Preclude Plaintiffs from
                     Building a Home on the Property
       Plaintiffs contend that the City’s outright denial of their
request for a deviation was an abuse of discretion because it
precludes them from building a home of any size on the property.
In support, plaintiffs suggest that the evidence was “undisputed”
that the proposed home “was located at the least intrusive
location on the Property” and that to build “any home on the
Property would require . . . more than 35,000 cubic yards of




                                17
‘cut,’ ” or more than 71,000 cubic yards of total (“balanced”)
grading—28,554 cubic yards for a house pad and 42,524 cubic
yards for a fire road.6 But the portions of the record on which
plaintiffs rely do not support this contention—either by
undisputed evidence or otherwise. Most of plaintiffs’ citations are
to the assertions of their attorneys, which are argument, not
evidence. (See South Sutter, LLC v. LJ Sutter Partners,
L.P. (2011) 193 Cal.App.4th 634, 668, fn. 14 [“We give no weight
to counsel’s statements, as arguments by counsel are
not evidence”]; Gdowski v. Gdowski (2009) 175 Cal.App.4th 128,
139 [“Statements and arguments by counsel are not evidence”].)
The remaining citations are to maps and aerial photographs that
depict the parameters of plaintiffs’ proposed project, but in no
way demonstrate that any alternative project would require as
much, or more, grading. We therefore agree with the trial court’s
assessment: “There’s no evidence that [plaintiffs] cannot build a
home on this property other th[a]n with the 78,500 cubic yards of
cut of fill. There’s no evidence of that.”7

6
      In a “balanced grading” plan, earth excavated from one
section of the property is deposited elsewhere on the property.
7
       At oral argument, plaintiffs’ counsel urged the court to
consider a declaration submitted by plaintiffs’ civil engineer,
Stephen Smith, as evidence that no house could be built on the
property with less grading than plaintiffs requested. We decline
to consider it. The declaration was submitted for the first time in
opposition to the City’s motion for judgment on the pleadings,
and thus it was not before either of the City’s decision makers
(the zoning administrator or APC) or the trial court reviewing the
petition for writ of mandate. It therefore is not properly before us
in connection with our review of the trial court’s order denying
the mandate petition.



                                18
      Plaintiffs appear to suggest that the City was required to
approve their project in the absence of evidence that the amount
of grading required to build a house on the property could be
reduced by building a smaller house or placing it elsewhere on
the property. But as the trial court correctly noted, the reason
there is no evidence concerning the necessary grading for a
smaller home, a different home location, or a different driveway,
is that plaintiffs failed to present it. Stated simply, the City had
no duty to present evidence concerning the amount of grading
necessary to build a home on plaintiffs’ property, and neither the
zoning administrator nor the APC had a duty to consider any
project other than the one plaintiffs presented to them. Instead,
as the applicants for the land use adjustment, plaintiffs bore the
burden of demonstrating their entitlement to the adjustment.
(See Hauser v. Ventura County Bd. of Supervisors (2018)
20 Cal.App.5th 572–576 [applicant for conditional use permit
bore burden of demonstrating entitlement to the permit];
BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th
1205, 1224 [same].) Accordingly, the absence of evidence
supports, rather than undermines, the City’s decision. If
plaintiffs believe that building a residence on the property
requires an identifiable amount of grading, it is their burden to
make that showing—not the City’s burden to demonstrate to the
contrary.
             3.     Plaintiffs Have Failed to Demonstrate that the
                    Zoning Administrator’s Findings Were
                    Unsupported by the Evidence
      Plaintiffs contend that the City’s denial of their grading
request is unsupported by the evidence. But plaintiffs ignore
most of the zoning administrator’s extensive findings, and




                                 19
instead offer just three examples of the purported gap between
the evidence and the decision. None is persuasive.
       First, plaintiffs suggest a fatal inconsistency between the
evidence that the project would replace a dead end on Innsdale
Drive with a turnaround for Fire Department emergency
equipment, and the zoning administrator’s conclusion that the
proposed project would not “enhance the built environment in the
surrounding neighborhood and perform a function or provide a
service that is essential or beneficial to the community.” We do
not agree. The evidence that some of the project’s features
benefitted the community did not require the conclusion that the
project, taken as a whole, was beneficial. Nor does the fact that
some of the City’s findings favor plaintiffs suggest, as plaintiffs
do, that the zoning administrator’s findings were incompatible
with the denial.
       Second, plaintiffs suggest that the denial “reflected a
misconception that all grading in excess of 3,300 cubic yard[s]
related to the tennis court and associated improvements on and
leading to the Fill Area.” Not so. The zoning administrator
stated—on the very same pages to which plaintiffs direct our
attention—that extensive grading would be needed to create a
driveway from the house to a proposed tennis court, as well as to
accommodate a 20-foot driveway from the property line to the
house and to “balance all of the graded material on the site.”
       Finally, plaintiffs suggest that the zoning administrator’s
rejection of “balanced grading” (placing the fill on-site) was
unsupported by the evidence because “there was no evidence to
support a finding that a haul route with thousands of truck trips
running up and down substandard residential streets for months
with dust, noise and vehicle pollution . . . would be preferable to




                                20
balanced grading.” This assertion misapprehends the burden of
proof. As the applicants, it was plaintiffs’ burden to demonstrate
that balanced grading was superior to removing the “cut” from
the project site—not the City’s burden to demonstrate to the
contrary. (Topanga Assn. for a Scenic Community v. County of
Los Angeles (1974) 11 Cal.3d 506, 521.) Plaintiffs’ unsupported
assertions that removing the excavated earth from the property
would “create[e] much greater environmental impacts” than
leaving it on-site does not satisfy that burden. The absence of
any evidence on this issue supports, rather than undermines, the
denial of plaintiffs’ application.
                                   II.
              Motion for Judgment on the Pleadings
       A.      Standard of Review
       “ ‘ “A judgment on the pleadings in favor of the defendant is
appropriate when the complaint fails to allege facts sufficient to
state a cause of action. [Citation.] A motion for judgment on
the pleadings is equivalent to a demurrer and is governed by the
same de novo standard of review.” [Citation.]’ ” (Travelers
Property Casualty Company of America v. Engel Insulation,
Inc. (2018) 29 Cal.App.5th 830, 834.)
       “Under the governing legal principles, ‘we take as true the
well-pleaded factual allegations of the complaint.’ (Construction
Protective Services, Inc. v. TIG Specialty Ins. Co. (2002)
29 Cal.4th 189, 193.) We construe the ‘complaint liberally to
attain substantial justice among the parties.’ (Long Beach
Equities, Inc. v. County of Ventura [(1991)] 231 Cal.App.3d
[1016,] 1024.) Nevertheless, we ‘may not consider conclusions of
fact or law, opinions, speculation or allegations which are
contrary either to law or to judicially noticed facts.’ (Ibid.) We




                                21
thus disregard any allegations of [a] complaint that conflict with
judicially noticed documents as well as those that represent bare
legal conclusions.” (McAllister v. County of Monterey (2007)
147 Cal.App.4th 253, 289; accord Bockrath v. Aldrich Chemical
Co., Inc. (1999) 21 Cal.4th 71, 83 [“a complaint’s allegations may
be disregarded when they conflict with judicially noticed
discovery responses”].)
       B.    Governing Law
       The second and third causes of action (for inverse
condemnation and violation of civil rights) both are premised on
an alleged regulatory taking. A regulatory taking occurs when
government regulation of private property is so onerous that it is
“tantamount to a direct appropriation or ouster.” (Lingle v.
Chevron USA Inc. (2005) 544 U.S. 528, 537.) “Where a regulation
places limitations on land that fall short of eliminating all
economically beneficial use, a taking nonetheless may have
occurred, depending on a complex of factors including the
regulation’s economic effect on the landowner, the extent to
which the regulation interferes with reasonable investment-
backed expectations, and the character of the government action.
[Citation.]” (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 617–
618.)
       The United States Supreme Court considered the ripeness
element of a regulatory takings claim in MacDonald, Sommer &
Frates v. Yolo County (1986) 477 U.S. 340 (MacDonald). In
MacDonald, the plaintiffs submitted a tentative subdivision map
to the county planning commission, seeking to subdivide a piece
of property into 159 single- and multi-family residential lots. The
planning commission rejected the subdivision plan, and the
Board of Supervisors affirmed the determination, concluding that




                                22
the tentative subdivision map was neither “ ‘consistent with the
General Plan of the County of Yolo, nor with the specific plan of
the County of Yolo embodied in the Zoning Regulations for the
County.’ ” (Id. at p. 342.) The plaintiffs filed a petition for writ of
mandate and a complaint for declaratory and monetary relief; the
complaint alleged that the county “ ‘restrict[ed] the Property to
an open-space agricultural use by denying all permit
applications, subdivision maps, and other requests to implement
any other use,’ ” thereby appropriating the “ ‘entire economic
use’ ” of the plaintiffs’ property “ ‘for the sole purpose of
[providing] . . . a public, open-space buffer,’ ” and that any further
application would be futile. (Id. at p. 344.)
        The County demurred, asserting that the complaint failed
to plead facts amounting to a regulatory taking. (MacDonald,
supra 477 U.S. at p. 345.) The superior court sustained the
demurrer, and the Court of Appeal affirmed. (Id. at pp. 345–347.)
The California Supreme Court denied review. (Id. at p. 348.)
        After briefing and oral argument, the United States
Supreme Court concluded that it was without jurisdiction to
address the merits of the plaintiffs’ regulatory takings claim.
(MacDonald, supra, 477 U.S. at p. 348.) It explained that to
establish a regulatory taking, an appellant must show that a
regulation “has in substance ‘taken’ his property—that is, that
the regulation ‘goes too far.’ ” (Ibid.) Thus, “[u]ntil a property
owner has ‘obtained a final decision regarding the application of
the zoning ordinance and subdivision regulations to its property,’
‘it is impossible to tell whether the land [retains] any reasonable
beneficial use or whether [existing] expectation interests [have]
been destroyed.’ ” (Id. at p. 349.) Similarly “a court cannot
determine whether a municipality has failed to provide ‘just




                                  23
compensation’ until it knows what, if any, compensation the
responsible administrative body intends to provide.” (Id. at
p. 350.) In short, the court said, its cases “uniformly reflect an
insistence on knowing the nature and extent of permitted
development before adjudicating the constitutionality of the
regulations that purport to limit it.” (Id. at p. 351.)
       In the case before it, the plaintiffs had “submitted one
subdivision proposal” and “ha[d] yet to receive the Board’s ‘final,
definitive position regarding how it will apply the regulations at
issue to the particular land in question.’ ” (MacDonald, supra,
477 U.S. at p. 351.) As a result, the plaintiffs had been denied
only “only one intense type of residential development.” (Id. at
pp. 351–352 & fn. 8.) Because the possibility existed “that some
development [would] be permitted” on the plaintiffs’ property,
plaintiffs could not establish a regulatory taking. (Id. at pp. 352–
353.)
       Applying MacDonald, California courts have held that
property owners “ ‘bear[] a heavy burden of showing that a
regulation as applied to a particular parcel is ripe for a taking
claim.’ [Citation.] The property owner can show that a final
decision has been made for ripeness purposes only when it can
set forth facts that are ‘ “clear, complete, and unambiguous
showing that the agency has “drawn the line, clearly and
emphatically, as to the sole use to which [the property] may ever
be put.” ’ ” (County of Alameda v. Superior Court (2005)
133 Cal.App.4th 558, 567; see also Long Beach Equities, Inc. v.
County of Ventura (1991) 231 Cal.App.3d 1016, 1032 [same].)
Stated differently, “[i]f the governmental agency has not
decisively acted to ban all development of the parcel, an owner’s
ability to use his or her property cannot be said with assurance to




                                24
have been irretrievably lost. Similarly, until the agency acts with
finality, it will not be known whether the development of
multiple contiguous but differently zoned parcels will be treated
together or separately by the agency.” (Twain Harte Associates,
Ltd. v. County of Tuolumne (1990) 217 Cal.App.3d 71, 89; see also
Surfrider Foundation v. Martins Beach 1, LLC (2017)
14 Cal.App.5th 238, 256 [“A takings claim that challenges the
application of regulations to particular property is not ripe until
‘the government entity charged with implementing the
regulations has reached a final decision regarding the application
of the regulations to the property at issue.’ ”]; Long Beach
Equities, Inc. v. County of Ventura (1991) 231 Cal.App.3d 1016,
1040 [applying ripeness analysis to due process and equal
protection claims based on alleged regulatory taking].)
       C.     The Trial Court Properly Granted the City’s Motion
              for Judgment on the Pleadings Because Plaintiffs’
              Claims Are Not Ripe
       Having independently reviewed the City’s findings, of
which plaintiffs sought judicial notice, we conclude that the City
has neither rendered a final decision nor precluded all
development of the property. Instead, the City granted plaintiffs
permission to build a single-family home, accessory buildings,
and retaining walls; and while it denied plaintiffs’ request “to
permit a maximum of 79,700 cubic yards of cut and fill grading,”
it neither definitively limited plaintiffs to 3,300 cubic yards of fill
nor precluded plaintiffs from submitting another, more modest,
development proposal.
       At the hearing before the APC, plaintiffs made the same
argument they make here, asserting that the zoning
administrator’s findings prevented them from building a home of




                                  25
any size on the property. The APC addressed this issue with the
zoning administrator, asking whether “if we deny the appeal,
then, can’t they come back with a different plan?” The zoning
administrator said that plaintiffs could come back with a
different plan. He also made clear that his findings were not a
final determination limiting plaintiffs to 3,300 cubic yards, but
rather were a rejection of the only plan before him: “[A]s I said
before, all I had before me was 79,000 cubic yards. I did not have
any alternatives to that particular project. So it was either ‘yea’
or ‘nay’ on that particular issue.” Accordingly, the City’s
determination cannot properly be characterized as “ ‘a final
decision regarding the application of the zoning ordinance . . . to
[plaintiffs’] property’ ” (MacDonald, supra, 477 U.S. at p. 349,
italics added), and it therefore cannot form the basis for a
regulatory takings claim.
       Similarly, plaintiffs’ due process and equal protection
claims are also not ripe, because the contention that the BHO is
being improperly, inconsistently, or discriminatorily applied,
cannot be evaluated until it is known how the City will apply
them to appellants’ property. Only a final determination by the
responsible agency enables a reviewing court to determine the
constitutional questions plaintiffs purport to raise in this action.
(Long Beach Equities, Inc. v. County of Ventura, supra, 231
Cal.App.3d at pp. 1040–1041; Kinzli v. City of Santa Cruz (9th
Cir. 1987) 818 F.2d 1449, 1455–1456.)
       Plaintiffs assert on appeal, as they did in the trial court,
that a determination of this kind cannot properly be made on a
motion for judgment on the pleadings because “it is not for the
trial court to argue with the facts alleged in the complaint.” But
as we have said, although on a motion for judgment on the




                                 26
pleadings we generally take as true the well-pleaded factual
allegations of the complaint, we may not accept as true any
allegations “that conflict with judicially noticed documents.”
(McAllister v. County of Monterey (2007) 147 Cal.App.4th 253,
289.) In the present case, the trial court took judicial notice of
the zoning administrator’s findings. Plaintiffs do not suggest the
trial court lacked discretion to do so—nor, indeed, could plaintiffs
do so, as the trial court took judicial notice at plaintiffs’ request.
As such, it is within our purview to reject the complaint’s
characterizations of the City’s findings that conflict with the
findings themselves. In short, because our independent review of
the City’s findings reveals that the City has not made a final
determination denying plaintiffs the right to build a house on
their property, we need not accept as true plaintiffs’ allegations
to the contrary.8

8
       The cases that plaintiffs cite for the proposition that a
landowner need not resubmit an application if it would be futile
to do so are factually distinguishable and, therefore, not
persuasive. In Palazzolo v. Rhode Island (2001) 533 U.S. 606, the
Supreme Court said the landowner’s takings claim was valid
based on futility where the landowners had submitted at least
five development proposals over the course of nearly 20 years,
each of which was rejected. (Id. at p. 619.) In Twain Harte
Associates, Ltd. v. County of Tuolumne, supra, 217 Cal.App.3d at
p. 91, the court found a triable issue as to futility where “the
County, on its own initiative, acted peremptorily to rezone”
appellant’s 8.7 acre parcel from light commercial to open space
specifically in response to appellant’s application to split the lot
into three parcels. In the present case, in contrast, plaintiffs
have submitted just one development proposal, and nothing
suggests that the City has adopted zoning regulations to foreclose
plaintiffs’ development of the property.




                                 27
       For the same reason, we reject plaintiffs’ suggestion that
the trial court abused its discretion by not allowing leave to
amend the complaint. We review the denial of leave to amend a
complaint for an abuse of discretion. (City of Dinuba v. County of
Tulare (2007) 41 Cal.4th 859, 865.) “If the court sustained the
demurrer without leave to amend . . . we must decide whether
there is a reasonable possibility the plaintiff could cure the defect
with an amendment. [Citation.] If we find that an amendment
could cure the defect, we conclude that the trial court abused its
discretion and we reverse; if not, no abuse of discretion has
occurred. [Citation.] The plaintiff has the burden of proving that
an amendment would cure the defect.” (Schifando v. City of Los
Angeles (2003) 31 Cal.4th 1074, 1081.)
       Plaintiffs contend they could amend their complaint by
“plead[ing] more facts that would support their claim that
additional applications would have been futile” and that the
City’s actions “were arbitrary, capricious, and irrational.”
Plaintiffs have not articulated what those alleged facts are, which
is, alone, a sufficient reason for us to find no abuse of discretion.
(E.g., Fuller v. First Franklin Financial Corp. (2013)
216 Cal.App.4th 955, 962 [“It is the plaintiff’s burden on appeal
to show in what manner it would be possible to amend a
complaint to change the legal effect of the pleading; we otherwise
presume the pleading has stated its allegations as favorably as
possible.”]; Community Cause v. Boatwright (1981)
124 Cal.App.3d 888, 902 [same].)9 But there is another, more

9
      Plaintiffs assert that they could have stated a claim had
they been permitted to conduct discovery. Because plaintiffs do
not contend the trial court abused its discretion by denying
permission to conduct discovery, we do not reach this issue.




                                 28
significant reason. As we have said, the City’s determinations
and findings, of which the trial court took judicial notice,
demonstrate that the City has not made a final decision
regarding the scope of development that it will permit on
plaintiffs’ property. Because a court will not accept as true
allegations that conflict with judicially noticed documents, no
amendment could overcome the defects we have identified in the
current complaint. Accordingly, the trial court did not abuse its
discretion by denying plaintiffs leave to amend.
                          DISPOSITION
       The judgment is affirmed. The City is awarded its
appellate costs.

    NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS



                                          EDMON, P. J.



We concur:



                  EGERTON, J.




                  DHANIDINA, J.




                                29
Filed 4/5/19
               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION THREE

KENNETH K. YORK et al.,                        B278254

       Plaintiffs and Appellants,              (Los Angeles County
                                               Super. Ct. No. BS153326)
       v.
                                               ORDER MODIFIYING OPINION
CITY OF LOS ANGELES et al.,                    AND CERTIFYING OPINION FOR
                                               PUBLICATION [NO CHANGE
       Defendants and Respondents.             IN JUDGMENT]



THE COURT:
      The opinion in the above referenced matter filed March 8,
2019, was not certified for publication in the Official Reports. For
good cause shown it now appears that the opinion should be
published in the Official Reports.
      In addition, it is ordered that the opinion is modified as
follows:




                                    30
       1.    On page 5, the first sentence is modified to read as
follows: “The zoning administrator must also make the following
additional findings required by section 12.24(X)(28)(b)(5)(ii):”
       2.    On page 24, the second sentence of the first full
paragraph is modified to read as follows: “As a result, the
plaintiffs had been denied ‘only one intense type of residential
development.’ ”
       3.    On page 27, footnote 8, the third sentence is modified
to read as follows: “In Twain Harte Associates, Ltd. v. County of
Tuolumne, supra, 217 Cal.App.3d at p. 91, the court found a
triable issue as to futility where ‘the County, on its own
initiative, acted peremptorily to rezone’ a portion of appellant’s
8.5 acre parcel from light commercial to open space specifically in
response to appellant’s application to split the lot into three
parcels.”

      There is no change in judgment.




__________________________________________________________________
________
EDMON, P. J.                EGERTON, J.
      DHANIDINA,




                                31
