Water Board Challenger Has Day in Court

• Local Attorney Filed Lawsuit over Civic Center Septic Ban

BY BILL KOENEKER

A Malibu Road attorney, who has filed a lawsuit against the local and state water boards and the California Environmental Protection Agency and the state concerning the Civic Center septic ban, which includes residential areas such as Malibu Road, has walked away from her first courtroom encounter with a mixed bag of results.

Attorney Joan Lavine, who owns a home on Malibu Road, sought to have the ban overturned and set aside and has also made a claim that the septic ban has resulted in an inverse condemnation, "due to the unconstitutional regulatory taking…of all viable economic value and use of her substantial property interests in her Malibu Road property and seeks the award of reasonable monetary damages."

Most of the state agencies asked the court to dismiss the complaint on technical grounds, what is legally called a demurrer.

For the most part, the court agreed with the state agencies and sustained the demurrers without leave to amend. "I will have to appeal that," said Lavine, who acknowledged the court stipulating "without leave to amend" left her with few options.

Lavine said not all was lost to her. Here is what the court said: "Petitioner requested that this court stay entry of an order dismissing these causes of action as to these respondents to allow her to seek appellate review. That request is denied. Writ proceedings should proceed promptly. As there remains a viable and underlying Petition that needs to be adjudicated, that proceeding should proceed with all deliberate speed."

The judge reviewed how the parties had argued. "Respondents State Water Board and Regional Water Board demur to the second cause of action on the grounds that the first amended petition fails to state a cause of action for Writ of Administrative Mandate because petitioner is seeking to over-turn the quasi-legislative action of Respondent Water Boards instead of any quasi-adjudicative action that would properly be the subject of a Writ of Administrative Mandate."

 "Water Boards thus extrapolate that the septic ban resolution being part of a basin plan (a.k.a. 'regulation' ) are quasi-legislative action, and therefore not amendable to being judicially reviewed on a petition for writ of administrative mandamus," Lavine wrote.

However, the judge said, "There is no doubt that respondent demurring water boards engaged in what was processed as a 'legislative act' when they amend the Regional Board's LA Regional Basin Plan.

Lavine countered, "It is these erroneously employed quasi-legislative procedures, required by law to be quasi-adjudicatory, that petitioner challenges in her petition for writ of administrative mandamus, as illegal, void and subject being restrained and prevented."

The judge disagreed. "The petitioner is incorrect."

The judge agreed with the state attorney general's office, which represents state agencies.

"A demurrer is appropriate when the complaint does not state facts sufficient to constitute a cause of action against a party," the legal brief from the AG's office states. "When the complaint lacks sufficiency, the court must decide whether there is a reasonable possibility that the plaintiff may cure the defect by amendment. The petitioner bears the burden of proving such reasonable possibility. Where the petitioner fails to meet this burden, the court may properly sustain a demurrer without leave to amend. In considering this demurrer, the court may accept all properly pleaded material facts in the first amended petition, but not its contentions, deductions or conclusion of fact of law."

In agreeing with the state, the judge wrote a brief summary citing case law. "When pleadings are defective a party may raise the defect by way of a demurrer. A demurrer tests the sufficiency of a pleading and the grounds. A demurrer may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment. Indeed, where the facts are not in dispute and the nature of the plaintiff's claim is clear, but no liability exists under substantive law and no amendment would change the result the sustaining of a demurrer without leave to amend is proper," the judge wrote.

Lavine asserts in her original complaint that by enacting a septic ban the agencies "illegally engaged in a regulatory taking and confiscation of her substantial real property and related interests."

The lawsuit calls the prohibition "an invalid underground regulation and is arbitrary, capricious, unreasonable, overbroad, confiscatory, is an exercise of authority in excess of and without jurisdiction, is a usurpation of power, authority and jurisdiction where respondents have none, is without any factual support, and is invalid as a matter of law and therefore is null and void."

Lavine said she was not notified that her property impermissibly discharged water, pollution or contaminants, violated any health, safety, environmental or clean water laws or in any way was non-compliant with any law, rule or regulation over which the water boards have jurisdiction.

She indicated in the legal brief she had not been notified that her property in any way created or caused a nuisance. She has never been cited for any said potential hazards described, she wrote in the lawsuit.

She said the water boards' actions make her property unsaleable and unmarketable and constitutes a per se regulatory taking.