Nemer v. City of Mill Valley CA1/2

Filed 10/16/20 Nemer v. City of Mill Valley CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

GARY NEMER, Individually and as
Trustee, etc.,
Plaintiff and Appellant, A157210

v. (Marin County
CITY OF MILL VALLEY et al., Super. Ct. No. CIV1701132)
Defendants and Respondents.

Homeowner Gary Nemer filed a petition for writ of mandate and
complaint against his local planning authorities over a home remodel project
undertaken by Nemer’s neighbors (the Geiszlers) that Nemer alleges was
constructed in a manner that exceeds the scope of work that had been
authorized, and violates both the conditions of its approval and the local
planning code in various ways.
His operative pleading is extremely detailed and difficult to parse, as is
his appellate briefing, but in substance Nemer alleges that city planning
authorities turned a blind eye to his complaints about the unauthorized and
illegal aspects of construction, and never held a hearing about his code
violation complaints or those aspects of the construction that he complained
were improper and required a variance under the local planning code. He
seeks a writ of mandate and related relief, asking the court to require the

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City, among other things, to void the certificate of occupancy it issued after a
final inspection of the completed construction and to hold properly noticed
hearings about those aspects of the construction that he challenges.
The trial court granted summary judgment for the local authorities,
respondents City of Mill Valley and the Mill Valley City Council (collectively,
the City), and Nemer timely appealed from the judgment. We reverse.
The parties articulate the principal issue on appeal in broad terms,
characterizing it as whether the City has a mandatory duty to “enforce” local
law. But the only question it is necessary for us to address is quite narrow:
whether the City has a mandatory duty under specific provisions of local law,
redressable by writ of mandate, to revoke the certificate of occupancy it
issued for the completed construction project if Nemer proves any of his
allegations that aspects of the construction violate either the law or the terms
and conditions of the Geiszlers’ building permit. Given the procedural
posture of this appeal, it is unnecessary to decide, and we do not address,
whether Nemer may compel the City to initiate any legal proceedings against
his neighbors. We hold that the City, on this record, did not meet its burden
as the party moving for summary judgment to demonstrate its entitlement to
judgment, because it did not demonstrate as a matter of law that mandamus
is not available for at least some of the relief that Nemer seeks: that is, to
overturn the City’s approval, through the issuance of the certificate of
occupancy, of completed construction that Nemer alleges violates the law.
Accepting the City’s position that it cannot be compelled by writ of mandate
to revoke, as null and void, a certificate of occupancy that it issued for
construction that violates the code or the terms of the permit would render
the entire planning and permitting process a pointless exercise, because
property owners could obtain a permit and then violate its terms and the

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planning code without recourse. The City’s position cannot be squared with
provisions of the Mill Valley Municipal Code that declare a certificate of
occupancy issued in such circumstances to be “void.”
We also hold that the City did not meet its burden to prove as a matter
of law that Nemer cannot prevail on his claim the City violated state and
local law by failing to hold a publicly noticed hearing concerning those
aspects of construction that Nemer alleges required a variance.
BACKGROUND
A. The Local Regulatory Framework
By way of context, we set out the applicable provisions of the Mill
Valley Municipal Code (MVMC or the Code).1
The City’s land use ordinance, set forth in title 20 of the MVMC, is
called the Zoning Ordinance of the City of Mill Valley (hereafter, the Zoning
Ordinance).2
The Zoning Ordinance requires certain construction projects to undergo
a “design review” process, governed by chapter 20.66 of the Zoning
Ordinance. The declared purpose is aesthetic: “to maintain . . . the City’s
attractiveness and character.” Pursuant to section 20.66.020, design review
is required “whether or not a building permit is required.” The process
entails an application, accompanied by drawings and plans and written
material “as may be required to clearly and accurately describe the proposed
work and its effect on the terrain and existing improvements,” followed by a
noticed public hearing.

1Unless otherwise noted, all statutory references are to the Mill Valley
Municipal Code.
2 A complete copy of title 20 is in the record as an exhibit to Nemer’s
request for judicial notice in opposition to the City’s motion for summary
judgment.

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 In addition, the City’s construction codes, contained in chapter 14.05 of
title 14 of the MVMC, require a building permit “for any work governed by
any of the Codes specified in this Chapter.”3 Section 14.05.032,
subdivision (F) states that “[t]he issuance of a permit or approval of plans,
calculations, specifications, diagrams, and computations shall not be
construed to be a permit for, or an approval of any violation of any of the
provisions of this chapter or of other ordinances, rules, or regulations of the
City . . . .”
Under section 20.64.060, variances may be granted “[w]hen, because of
special circumstances applicable to the property . . . the strict application of
the provisions of this Title [20] will deprive such property of privileges
enjoyed by other property in the vicinity and under identical zoning
classification, or deprive provision of solar access.” To obtain a variance, both
the Zoning Ordinance and state law (Gov. Code, § 65905) require a noticed
public hearing.
Finally, section 20.04.040 of the Zoning Ordinance requires a certificate
of occupancy in order to use or occupy any building that has been erected or
modified, and requires one to be issued “when a project complies with all
provisions of this Title [20] and all other titles applicable thereto, including
all health laws, and all conditions of any permits have been met.”
Section 20.04.042, prohibits the issuance of a certificate of occupancy for any
structure that violates the Zoning Code and declares any such certificate of
occupancy to be “null and void.”4 Similarly, section 20.68.010 requires all city

3 The full text of title 14, chapter 14.05, is not in the record.
4 In full, section 20.04.042 states: “Permit issued contrary to law is
void. No building permit or Certificate of Occupancy shall be issued by the
Building/Zoning Code Inspector for the use of any lot, or any part thereof, nor
for the use, erection or alteration of any building or structure, contrary to the

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officials to comply with the Zoning Code, and again declares that “Any permit
or license issued contrary to any of the provisions of this Title shall be void.”
Other provisions of the Code are discussed below, where relevant.
B. The Geiszlers’ Construction
In 2015, Nemer’s neighbors, the Geiszlers, secured approvals from the
City for their home renovation project. The City did not grant them any
variances.
First, the Geiszlers secured approval of their design review application
through a noticed public hearing process in which Nemer participated and
voiced various objections to the proposed project. Nemer appeared at the
initial hearing before the local Zoning Administrator who approved, “with
conditions,” the Geiszlers’ design review application over his objections.
Nemer then appealed the Zoning Administrator’s decision to the Planning
Commission, which held another noticed public hearing and, again over his
objections, upheld the approval. Finally, he appealed the Planning
Commission’s decision to the City Council which, in July 2015, adopted a
resolution that again denied his appeal and affirmed the Zoning
Administrator’s approval of the design review application.
Thereafter, on November 11, 2015, the City issued a building permit,
and construction began.
In the midst of construction, in June 2016, Nemer filed a code
enforcement complaint with the City alleging that various aspects of the
work had not been authorized by the planning process. He supplemented
that by letter on October 31, 2016, and filed another code enforcement
complaint in November 2016.

provisions of this Title. Any building permit or Certificate of Occupancy
issued contrary to the provisions of this Title shall be null and void.”

5
 In February 2017, after the Geiszlers had completed their renovation
project, the City conducted a final inspection of the property and did not find
any violations of the local code or the building permit. On February 23, the
City wrote to Nemer advising him of the final inspection and advised him it
was closing its investigation of his code enforcement complaints (“the closure
letter”). It issued the Geiszlers a certificate of occupancy.5
C. The Prior Lawsuit
This is the second lawsuit Nemer has filed against the City and the
Geiszlers concerning their home renovation project. The first lawsuit he
brought against them provides necessary context for a proper understanding
of the scope of Nemer’s current claims, and so we briefly describe that prior
litigation.
In October 2015, after the City Council had approved the project but
before the issuance of a building permit and commencement of construction,
Nemer filed a verified petition for writ of mandate against the City, and filed
an amended pleading in February 2016 to add the Geiszlers as defendants.
His original claims, as amended, sought to challenge the City’s approval of
the Geiszlers’ project and asserted related due process claims, and on
demurrer were held to be time-barred. His second amended pleading sought
a writ of mandate compelling the City to require the Geiszlers to halt
construction he alleged had not been approved. In October 2016, the trial
court sustained a demurrer without leave to amend, on the grounds the City
had no mandatory duty to require the Geiszlers to stop their construction,
and Nemer had failed to exhaust his administrative remedies, as his code

5 The parties have not directed us to any evidence of this in the
summary judgment record. But Nemer alleged that the City issued one (at
some unspecified date) and the City did not controvert or even address that
allegation in its summary judgment papers.

6
violation complaint had been filed just days before he filed his second
amended petition but he did not allege it had yet been acted upon.
D. This Litigation
Five months later, in March 2017, after the City sent its closure letter
to Nemer advising him of the result of its final inspections, Nemer
commenced this new action against the City and the Geiszlers.
His operative pleading is not a model of clarity, but we do not construe
it as challenging the design review approvals or issuance of the building
permit. Rather, he seeks to compel the City to void the certificate of
occupancy because of alleged code and/or permit violations, and to hold a
hearing about his Code violation complaints and the allegedly illegal aspects
of the completed construction.
His operative pleading, a verified first amended petition for writ of
mandate, alleges the Geiszlers installed many improvements that were not
covered by the design review approval, exceed the scope of the building
permit, violate the Code and would require a variance, and also that the City
violated procedural due process by allowing the Geiszlers to construct them
without any notice or public hearing. He also alleged the City knew about
these unauthorized improvements before it issued a certificate of occupancy
to the Geiszlers and allowed these various Code violations despite the filing
of Nemer’s Code violation complaints.
The allegedly unauthorized improvements encompass everything from
major aspects of the project—including alleged violations of the City’s size
and density requirements—to construction minutiae.6 Nemer also alleges the

6 They include allegedly unauthorized wood burning fireplaces; “off-lot
parking” that varied from the approved parking; “conversion of required on-
lot parking in the existing garage to another use that had to be maintained”;
“construction of a new wall and corresponding changes to the construction of

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Geiszlers failed to install “[v]arious improvements and elements” that the
City had required as a condition of its approval, “including required noise
reduction systems in the patio deck.”
Nemer alleges four causes of action against the City (the first through
third, and the fifth). They are somewhat obtuse, and we summarize them as
best we can. His first cause of action is for a writ of mandate (praying both
for administrative mandate pursuant to Code of Civil Procedure
section 1094.5 and ordinary mandate pursuant to section 1085). It alleges
“the City has failed to provide a hearing required by law, [and] is without
jurisdiction to permit the Unpermitted Improvements,” alleges the City’s
failure to comply with the “required notice and approval process is a violation
of the Code,” prays for a writ “requiring the City to comply with its duties
under the Code” and alleges that “any permit that is granted based upon an
approval that violates the Municipal Code is void.”
The second cause of action likewise seeks a writ of mandate. It overlaps
to some extent with the first cause of action, but in substance alleges the City
“apparently provided [the Geiszlers] a hidden approval procedure that
violates the Code, state law and due process,” and challenges the City’s

the patio deck”; elimination of a concrete wall beneath the patio; construction
of additional “developed space” that was never approved and that resulted in
the home exceeding both size and density limits under local law (including
new space under the deck, a “rumpus room,” and “other spaces within the
main building”); “additions of or improvements to ancillary structures” that
were never approved and “exceed the number of such structures permitted
under the Code”; unapproved doorways, windows, various utilities, fixtures,
appliances, foundation and framing (including electrical and gas subpanels,
smoke detectors, electrical outlets, vents, pipes and ducting); various facets of
ventilation, as well as underfloor access and chimney spark arrestors;
unauthorized demolition, including demolition of interior space; construction
that violates the density and square foot limitation of the Code; and new
patio tiling and lighting fixtures that violate the Code.

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denial of his Code violation complaints and the City’s approval of the
Geiszlers’ construction pursuant to the alleged “hidden process” as an abuse
of discretion, a violation of state law and procedural due process.
The third cause of action is brought pursuant to 42 U.S.C. section 1983
for violation of procedural due process. It alleges the City was required to
give adjacent property owners reasonable notice and an opportunity to be
heard before approving all of the construction, and violated procedural due
process by “grant[ing] rights to [the Geiszlers] that exceed[] the City’s
authority and jurisdiction including the right to construct Unpermitted
Improvements and granting variances without giving reasonable notice or
holding a public hearing or any findings in support thereof.”
His fifth cause of action seeks declaratory relief. He alleges the
existence of a dispute with the City as to whether the Geiszlers’ construction
exceeds the approvals and violates the Municipal Code and whether the City
has discretion to refrain from enforcing the Municipal Code.
Nemer requests an order requiring the City to void the Geiszlers’
certificate of occupancy; a writ of mandate commanding the City “to resolve
the Code violations on a date certain” and “to afford [him] all of the due
process protections required under the law”; as well as fines, damages and
other remedies, including “injunctions that will remedy the Code violations.”7
The City moved for summary judgment. It contended the first cause of
action (for writ of mandate) and the third cause of action (for violation of due

7 Nemer also prays for an order requiring the City to “void the
permits,” but in the context of his factual allegations we construe that merely
as a request to void the certificate of occupancy and not the building permit.
Moreover, Nemer concedes (at page 8 of his opening brief) that the building
permit issued by the City “did not expand the work approved in the [design
review] Approval” and the work it described “did not violate the Code.”

9
process) were barred because the City’s notice in connection with the
Geiszlers’ design review application satisfied due process.8 It argued the
second cause of action (for writ of mandate) failed, as did the fifth cause of
action for declaratory relief, because the City has no ministerial duty to
enforce the Municipal Code in the manner Nemer seeks.9 The trial court
agreed, and granted summary judgment on these grounds. Judgment was
entered, and this appeal by Nemer followed.
DISCUSSION
Appellate review of an order granting summary judgment is governed
by well-established standards. “ ‘Summary judgment is properly granted
when there is no triable issue as to any material fact and the moving party is
entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
A defendant seeking summary judgment bears the initial burden of proving
the “cause of action has no merit” by showing that one or more elements of
plaintiff’s cause of action cannot be established or there is a complete defense.
[Citations.] Once the defendant’s burden is met, the burden shifts to the
plaintiff to show that a triable issue of fact exists as to that cause of action.”
(Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67.)
On review of an order granting summary judgment, “ ‘[w]e review the trial

8 It also argued the first and third causes of action are barred by res
judicata, but it has not reprised that contention on appeal. Therefore we will
not consider that issue.
9 It also argued the second cause of action was barred because Nemer
could not prove the City approved any construction pursuant to a “hidden
procedure.” It asserted that all of the challenged improvements either had
been approved through the design review approval process or the City’s
issuance of the building permit or did not require any approvals. Again, it
has not reprised that argument on appeal as a reason it is entitled to
judgment as a matter of law.

10
court’s decision de novo, considering all the evidence set forth in the moving
and opposing papers except that to which objections were made and
sustained.’ [Citation.] We liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning the
evidence in favor of that party.” (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1037.) Summary judgment is no longer a disfavored
procedure, but “is now seen as ‘a particularly suitable means to test the
sufficiency’ of the plaintiff’s or defendant’s case.” (Perry v. Bakewell
Hawthorne, LLC (2017) 2 Cal.5th 536, 542.)
This summary judgment appeal presents some challenges, however.
The parties’ briefing is legally and factually complicated, and Nemer’s
(lengthy) briefing is particularly challenging. His opening brief asserts
dozens of points captioned under numerous headings and subheadings. And
much of it is difficult to understand, due both to his confusing and excessive
use of defined terms, and the lack of coherent legal arguments specifically
directed to the grounds upon which the trial court ruled. We will address
only those points raised by Nemer that are both intelligible and necessary to
our decision, and we will attempt to state his position where pertinent as
succinctly as we can as we understand it.10 (See United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [where appellate
briefing is “disorganized” and “often incoherent,” and appellant failed to
support many points with cogent argument, legal authority or specific
citations to the record, appellate court will consider only those arguments “for
which we can discern a legal or factual basis in the briefs” and disregard

10 We also do not consider arguments that Nemer raises for the first
time in his reply brief. (See Schmidt v. Superior Court (2020) 44 Cal.App.5th
570, 592.)

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“ ‘conclusory arguments that are not supported by pertinent legal authority
or fail to disclose the reasoning by which the appellant reached the
conclusions he wants us to adopt’ ”].)
Another difficulty is that the parties do not specify which causes of
action their appellate arguments pertain to, a task that is understandably
somewhat difficult given the degree of factual and legal overlap between
Nemer’s four claims. Nor has the City asserted that it is entitled at a
minimum to summary adjudication of some of Nemer’s claims, even though it
moved below for summary adjudication of each cause of action in the
alternative.
We will not attempt to parse Nemer’s causes of action, either.
Although his pleading is challenging to understand, the parties appear to
agree on appeal that its thrust is to compel the City to enforce the Municipal
Code with respect to the allegedly illegal and/or unauthorized improvements
and to provide a publicly noticed hearing regarding the allegedly illegal
improvements. For the following reasons, we conclude the trial court erred in
granting judgment on these claims.
I.
The City Has a Duty Under the Mill Valley Municipal Code to Declare
Void a Certificate of Occupancy Issued in Violation of the Law, and
Such Duty Is Redressable Through a Writ of Mandate.
The City did not move for summary judgment on the ground that the
undisputed material facts establish as a matter of law that, contrary to
Nemer’s allegations, the Geiszlers’ remodel project fully complies with the
Mill Valley Municipal Code and the terms of the design review approval and
the permit. It did not, for example, specifically address each alleged violation
enumerated in Nemer’s complaint and demonstrate that no such Code

12
violation exists. Nor does it do so on appeal. As Nemer says, “the City did
not disprove or even refute those factual allegations.”
Rather, the fundamental disagreement here is a legal one. Nemer
argues the City must enforce its zoning codes and that its “inaction” in the
face of illegal work and issuance of a certificate of occupancy is ultra vires
and void. The City argues that it has no mandatory duty to enforce the
zoning code because the decision whether to enforce the Code and revoke
permits is inherently discretionary, akin to the exercise of prosecutorial
discretion, and discretionary duties are not redressable through a writ of
mandate. Thus, it contends, Nemer’s arguments that the Geiszlers
constructed improvements that violate the Code “are beside the point.”11
“More importantly, it would not matter even if the record showed that the
Geiszlers constructed unapproved improvements. . . . Even if some elements
of the Geiszlers’ construction were illegal, [Nemer] nevertheless fails to
demonstrate he is entitled to the issuance of a writ of mandate.” We
disagree.
At least one aspect of Nemer’s causes of action does involve a
mandatory duty that is redressable by way of mandamus, and so the City did
not demonstrate its right to judgment as a matter of law on Nemer’s causes of
action in their entirety. That is Nemer’s request, stated in the first
paragraph of his complaint and incorporated by reference into every claim

11 The City also adds, in passing, “such arguments are unsupported by
the record.” It does not explain how, other than to assert tautologically that
any improvements that were depicted in the Geiszlers’ design review plans
were approved by the City. But Nemer alleged the Geiszlers’ project exceeded
the scope of the City’s approvals. As the party moving for summary
judgment, it was the City that bore the burden to show Nemer could not
prove those alleged violations and not the other way around.

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pled against the City, for an order requiring the City to void the certificate of
occupancy.
A writ of mandate “ ‘may be issued by any court . . . to compel the
performance of an act which the law specially enjoins, as a duty resulting
from an office, trust, or station . . . .’ (Code Civ. Proc., § 1085, subd. (a).).”
(Kavanaugh v. West Sonoma County Union High School Dist. (2003)
29 Cal.4th 911, 916 (Kavanaugh).) To be entitled to relief, the petitioner
must show “a clear, present and ministerial duty” on the part of the public
official and “a clear, present and beneficial right to performance of that
duty.” (Ibid.) “ ‘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.’ ” (Ibid.)
The existence of a ministerial duty is a question of statutory interpretation
that we review independently when, as here, it does not turn on disputed
facts. (Ibid.; accord, National Asian American Coalition v. Newsom (2019)
33 Cal.App.5th 993, 1007-1008.)
The City’s position that it has discretion to issue a certificate of
occupancy for construction that violates its local ordinance is not the law.
Horwitz v. City of Los Angeles (2004) 124 Cal.App.4th 1344 (Horwitz), a
decision Nemer has cited but the City has not addressed, upheld the issuance
of a writ of administrative mandate that required a municipality to revoke a
homeowner’s building permit and certificate of occupancy because the
remodeled home violated city setback requirements. Due to an erroneous
calculation of the setback, building permits were issued in error for the
project and the completed house was 14 feet closer to the street than allowed
by the local code. (Id. at p. 1347.) While construction was underway, the

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homeowner’s neighbors challenged the building permits through
administrative channels, but the city ultimately rejected their challenge and
later issued a certificate of occupancy. The neighbors then sought a writ of
administrative mandate to compel the city to void all of the homeowner’s
permits. (Id. at pp. 1347-1353.)
The trial court determined the city had prejudicially abused its
discretion, because, even giving appropriate deference to the city’s
interpretation of its own zoning code, the city had misinterpreted (and
therefore misapplied) its setback ordinance when issuing the building
permits and then rejecting the neighbors’ challenge to them. The court
issued a writ of mandate compelling the city to revoke both the building
permits and the certificate of occupancy. (Horwitz, supra, 124 Cal.App.4th at
pp. 1353-1354.)
The sole issue on appeal was whether the trial court had exceeded its
authority under Code of Civil Procedure section 1094.5, and the court of
appeal held it had not. (See Horwitz, supra, 124 Cal.App.4th at p. 1355.) It
reasoned that the house “must conform to the mandatory requirements of the
zoning ordinance. . . . [T]he remodeled house does not conform because the
prevailing front-yard setback was miscalculated by [the homeowner] and
mistakenly accepted by the City. Just as the City has no discretion to deny a
building permit when an applicant has complied with all applicable
ordinances, the City has no discretion to issue a permit in the absence of
compliance. [Citations.] It follows that [the] permits must be revoked.” (Id.
at pp. 1355-1356; accord, Summit Media LLC v. City of Los Angeles (2012)
211 Cal.App.4th 921, 940-941 [writ of mandate lies to compel city to revoke
permits issued in violation of local law; “permits issued in contravention of
municipal ordinances are invalid” and “the city does not and did not have the

15
discretion to issue permits that contravened existing municipal ordinances”].)
The court of appeal held the trial court had properly compelled the city to
revoke the permits, rather than remand the matter back to the city to
reconsider its action and recalculate the proper setback, because there was no
discretion to be exercised in determining the correct setback, which was
simply a matter of applying the setback formula to particular measurements.
(See Horwitz, supra, 124 Cal.App.4th at p. 1355.) But there was no question
that the erroneous decision had to be corrected somehow. (See id. at p. 1356
[rejecting city’s argument that it should be permitted to remedy the situation
itself after proper calculations are made; “While we agree that the proper
calculations have to be made, we do not see any basis in law, fact, or fairness
to allow the City or [homeowner] to keep the improperly issued permits in
place so that they become the foundation for decisions that will thereafter
have to be made”].)
To similar effect is Terminal Plaza Corp. v. City and County of San
Francisco (1986) 186 Cal.App.3d 814 [Kline, P.J.] (Terminal Plaza), a
decision cited in Horwitz. (See Horwitz, supra, 124 Cal.App.4th at p. 1356.)
In Terminal Plaza, this court reversed the denial of a writ of mandate
pursuant to Code of Civil Procedure section 1085 on the ground the City of
San Francisco and certain of its departments and officers had a ministerial
duty to enforce the clear, unambiguous portion of a planning commission
resolution that required a commercial developer, as a condition of developing
a 43-story office tower, to construct a pedestrian walkway. (See Terminal
Plaza, at pp. 830-836.) We held the local zoning administrator had no
discretion to decide whether the condition had been violated, in light of the
condition’s clear language. (Id. at p. 830.) We explained that, “ ‘[w]here a
statute or ordinance clearly defines the specific duties or course of conduct

16
that a governing body must take, that course of conduct becomes mandatory
and eliminates any element of discretion. [Citations.]’ [Citation.] In such
case, the functions of the officer are ministerial and the writ may be issued to
control his action.” (Id. at pp. 831-832.)
Moreover, nothing in the local planning code conferred discretion on the
zoning administrator to decline to enforce the development condition. (See
Terminal Plaza, supra, 186 Cal.App.3d at p. 834.) Examining various aspects
of the San Francisco’s planning code, we concluded: “While the zoning
administrator may have discretion in a wide range of technical areas to carry
out the intent of the code, particularly with respect to issues such as
variances and conditional use permits, we find it inconceivable that he has
the power to countermand particular conditions explicitly imposed upon a
development project by the commission and approved by the board of permit
appeals, such as are embodied in resolution 8877. There is no room for the
zoning administrator to interpret the resolution contrary to its express terms,
and we do not read these code sections so broadly as to grant to the zoning
administrator this remarkable authority. That the administrator may choose
among various enforcement mechanisms to secure compliance with the code,
does not grant him authority to ignore the express requirement of the
condition adopted by the commission.” (Id. at p. 834.) As in Horwitz, our
analysis in Terminal Plaza turned in large part on the fact that the
obligation was clear and obvious, with no room for disagreement or the
exercise of any discretion as to the manner in which the resolution should be
construed. (See id. at pp. 832-833; see also id. at p. 832, fn. 11,
distinguishing Blankenship v. Michalski (1957) 155 Cal.App.2d 672
(Blankenship).)

17
 In this case, the City contends it has no duty enforceable by way of writ
of mandate to enforce any part of its Municipal Code. That proposition
sweeps far too broadly. It might be the case that, on a fuller record, it could
be shown that because some or all of the alleged violations are not sufficiently
clear that, unlike in either Horwitz or Terminal Plaza, they do require the
exercise of some discretion to decide whether the Geiszlers’ construction
complies with the Code, in which case mandamus would not lie to compel the
City to exercise its discretion as to those violations in a particular way. But
because the City did not address the alleged violations (factually or legally), it
did not meet its summary judgment burden to show that Nemer cannot prove
the existence of a ministerial duty as to any of them.
As noted, the existence of a ministerial duty is a legal question of
statutory interpretation. (Kavanagh, supra, 29 Cal.4th at p. 916; accord,
AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health
(2011) 197 Cal.App.4th 693, 701) As in Terminal Plaza, we find nothing in
the Municipal Code that grants city officials discretion to issue a certificate of
occupancy for a construction project that violates the Code and/or exceeds the
scope of approvals granted through the design review and permitting process.
On the contrary, Nemer has cited a number of provisions of the Code
that, taken together, indicate no such discretion exists. Section 20.04.040
states that “The Building Official shall issue a Certificate of Occupancy when
a project complies with all provisions of this Title [20] and all other titles
applicable thereto, including all health laws, and all conditions of any
permits have been met.” Section 20.04.042 states that “[n]o . . . Certificate of
Occupancy shall be issued . . . contrary to the provisions of this Title” and

18
that “[a]ny . . . Certificate of Occupancy issued contrary to the provisions of
this Title shall be null and void.”12 (Italics added.)
The City does not address these provisions. Instead, it cites two other
provisions of the Municipal Code that it contends confer discretion on local
building officials to take the actions alleged here, and on that basis attempts
to distinguish Terminal Plaza. But neither provision it cites is pertinent.
One is section 20.64.140 of the Code, which the City says “governs the
City’s enforcement of the terms in building permits.” It does not. That
section provides that “[a]ny use permit or variance may be revoked” if its
conditions or terms are violated or for other good cause. (Italics added.)13 We
agree with Nemer, who asserts that the City has misquoted that provision in
its brief. Nemer is not alleging that the terms of a use permit or variance
have been violated, and so any discretion city officials may possess with
regard to revoking those entitlements is not relevant.

12 These provisions of local law declaring such permits to be “void”
differ from, and are stricter than, state law standards. The California
Building Standards Code states that a local building official “is authorized to,
in writing, suspend or revoke a certificate of occupancy or completion issued
under the provisions of this Code wherever the certificate is issued in error,
or on the basis of incorrect information supplied, or where it is determined
that the building or structure or portion thereof is in violation of any
ordinance or regulation or any of the provisions of this Code.” (Cal. Code
Regs., tit. 24, pt. 2, § 111.4, italics added.) Unlike local law, the state
regulations do not declare a certificate of occupancy to be “void” in these
circumstances.
13 Pursuant to section 20.64.010 of the Code, a conditional use permit
“may be issued for any of the uses or purposes for which such permits are
required by the various zoning district regulations” or “for any temporary
activity, including, but not limited to, any commercial or non-commercial
festival, exhibit, or other similar activity, provided that the total duration
thereof does not exceed two days.”

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 The City also cites section 8.01.020 of the Code, which likewise does not
apply. Here again, the City has quoted a portion of that ordinance out of
context, relying principally on a sentence governing the issuance of criminal
citations. Captioned “General Code Enforcement Authority,” it states: “The
City Manager and enforcement officers, as defined in Chapter 8.02 of this
Code, have the authority and powers necessary to gain compliance with the
provisions of this Code and applicable state codes. These powers include, but
are not limited to, the power to use whatever judicial and administrative
remedies are available under this Code and applicable state codes.
Enforcement officers, excluding peace officers (whose powers are otherwise
specified in the California Penal Code), have the power to issue criminal
citations, as authorized under California Penal Code Section 836.5, with
respect to provisions of this Code and applicable state codes it is their
discretionary duty to enforce.” (Italics added.) Section 8.01.020 does not
specify which provisions of the Municipal Code enforcement officers have a
“discretionary duty to enforce,” however. We do not construe it as in any way
conflicting with, or overriding, those provisions of the Zoning Ordinance that
flatly prohibit local officials from issuing a certificate of occupancy to a
construction project that violates the Code and declares as “void” any such
certificate of occupancy.
Accordingly, we conclude that, as a matter of statutory interpretation
under the Mill Valley Municipal Code, the City has a mandatory duty to void
the certificate of occupancy it issued to the Geiszlers if Nemer proves his
allegations that the construction violated the Code or the terms and
conditions of the permits.
Finally, the City argues that its decision whether to prosecute a
resident for a violation of its municipal code is inherently discretionary and

20
falls within its prosecutorial discretion. But here again we agree with
Nemer, who in substance asserts that the question here is not one of deciding
whether to “prosecute” the Geiszlers. To be sure, the Code gives City officials
the power to initiate abatement proceedings to redress Code violations as a
public nuisance, pursuant to section 20.68.030. And, pursuant to
section 20.68.020, violations of the Zoning Ordinance are an infraction,
punishable by a fine of up to $100 for every day the violation persists. But it
is unnecessary to decide whether Nemer is even seeking to compel the City to
take either step much less whether, if he is, mandamus will lie to compel the
City to do so.14 At a minimum, Nemer is seeking a writ to compel the City to
declare as null and void the certificate of occupancy that it issued to the
Geiszlers and to hold appropriately noticed hearings for those aspects of the
construction that, as we understand him, require either a variance and/or
design review approval. Whatever discretion local officials may possess to
initiate legal proceedings against a resident for violations of local planning
codes (see, e.g., Blankenship, supra, 155 Cal.App.2d at pp. 675-676), the Code
itself (1) declares in self-executing terms that offending permits and
certificates of occupancy are void, and (2) requires publicly noticed hearings
for construction that requires a variance. The City has cited nothing that

14 It is not clear from his pleading whether Nemer seeks a writ of
mandate compelling the City to levy fines against the Geiszlers, or whether
he merely seeks to recover fines directly from the Geiszlers himself, as
specifically prayed for in his fourth cause of action asserted against them.
Nor is it clear whether his request for “injunctions that will remedy the Code
violations” is intended as a request for a writ of mandate compelling the City
to initiate legal action against the Geiszlers, or whether it is merely
duplicative of his request for orders compelling the Geiszlers to cease further
construction he alleges is improper and to remove any allegedly improper
improvements.

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suggests its officials possess discretion to exempt any residential remodel
project from these provisions of local law.
The City’s analogy to prosecutorial discretion also is foreclosed by our
decision in Terminal Plaza. There, we specifically rejected the contention
that local planning officials must have discretion analogous to that of a
district attorney to decide, within limited public resources, which violations of
the city’s planning code warrant enforcement. (Terminal Plaza, supra,
186 Cal.App.3d at p. 835.) No case law supported granting such broad
prosecutorial discretion to a zoning administrator, and we reasoned that
cases upholding the right of a district attorney to exercise prosecutorial
discretion in the selection of cases to pursue were not analogous. (Ibid.) The
position and duties of the local zoning administrator, which in that case
operated within the local planning department and was answerable to the
local planning commission, was “fundamentally distinct from the position,
the duties and the necessary independence of a district attorney.”15 (Ibid.)

15 In Terminal Plaza, we confined our analysis of prosecutorial
discretion to the facts before us, making clear that the only question we
decided was in the context of a major commercial development. We
explained, “[t]he theory that a zoning administrator may ignore and not
enforce requirements of specific resolutions of the commission conditioning
development of major construction projects seems to us qualitatively very
different from and not supported by the fact that a zoning administrator may
choose not to pursue a nonconforming use or a minor nuisance. If we were to
accept respondents’ theory we would make a mockery of the planning
commission and the entire planning process.” (Terminal Plaza, supra,
186 Cal.App.3d at p. 835, fn. omitted.) We expressly did not decide whether a
zoning official enjoyed some limited prosecutorial discretion to refuse to
prosecute “these latter ‘minor’ nuisances” because the issue was not
presented. (See id. at p. 835, fn. 15.) The City does not argue, however, that
the facts of this case require us to answer the question left open in Terminal
Plaza. It simply argues that it enjoys blanket discretion to decline to enforce
its zoning laws. That proposition is at odds with both the letter and spirit of

22
The City’s prosecutorial discretion argument ignores this aspect of Terminal
Plaza.
For all of these reasons, we conclude the trial court erred in granting
judgment for the City as a matter of law on Nemer’s claims seeking a writ of
mandate to compel the City to declare the Geiszlers’ certificate of occupancy
null and void on the basis of violations of the Code and for violations of the
terms and conditions of its approvals. The City did not demonstrate as a
matter of law it has no duty to enforce those provisions of local law and
conditions of construction approval that Nemer alleges the Geiszlers’ actual
remodel project, as constructed, violated.
II.
The City Is Not Entitled To Judgment As a Matter of Law on Nemer’s
Claims That He Had a Right to Notice and a Hearing Concerning
Allegedly Improper Construction.
Next is the question whether the City is entitled to summary
adjudication of Nemer’s bid to secure a public, noticed hearing concerning
those aspects of the construction he alleges exceed the scope of approvals or
otherwise violate the Code. Among other things, Nemer contends the City
failed to meet its initial burden as the party moving for summary judgment
to establish he had no right to a hearing on the many violations alleged in the
first amended petition.16 This point is not well briefed by Nemer, but we
conclude he has met his burden to demonstrate error in one limited respect.

Terminal Plaza and would similarly “make a mockery of . . . the entire
planning process” undertaken here, beginning with the design review
application, followed by issuance of the building permit and culminating with
the City’s final inspection and issuance of a certificate of occupancy.
16 His opposition papers below do not clearly articulate this problem.
Nevertheless, the City does not argue the issue has been forfeited. And it
clearly presents a pure issue of law—i.e., the City either did or did not carry
its initial burden as the party moving for summary judgment. Moreover, it is

23
 A. State and Local Law
Nemer argues the City did not disprove or even refute the allegations
that some work was done without obtaining required variances. In
particular, he alleged that illegal work was done that required variances and
yet the City failed to provide “notice and a hearing as required by the
Municipal Code,” and that its procedures violated state law as well. As
summarized above, the Mill Valley Municipal Code requires notice and
hearing before a variance is granted.17 Yet, the City did not controvert
Nemer’s allegations that some aspects of the work violated the Code and
required a variance; its evidence did not address that issue.18 And Nemer
opposed summary judgment on the ground, inter alia, that no variance
hearing was held. The City’s motion merely attempted to shift the burden to
Nemer to prove that a variance was required: citing to various provisions of
state and local law, it simply argued that Nemer “falsely assumes that the
Geiszlers needed a variance for their construction project. He is wrong.” The

fundamental to our analysis under the framework governing summary
judgment. Accordingly, to the extent the problem was not directly raised
below, we exercise our discretion to consider it.
17Although Nemer does not cite the provision, so does state law. (See
Gov. Code, § 65906.)
18 The City introduced a conclusory declaration from the City’s
Building Official who opined that, at the City’s final inspection in February
2017 which she attended, “the City did not find any violations of the City
Municipal Code or the Building Permit.” But the City’s determination that
no Code violations exist is the very assessment Nemer seeks to challenge in
this lawsuit. The City did not introduce evidence demonstrating specifically
that every challenged aspect of the construction complied with the Code and
required no variance from the Zoning Ordinance (such as by way of Nemer’s
responses to discovery, for example, or some other method of competent
proof).

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City does not reprise that argument on appeal; its respondent’s brief does not
even address the variance issue.
Public officials cannot authorize a development that, by law, requires a
variance without holding properly noticed public hearings and making an
appropriate administrative record. The law does not permit circumvention of
these important procedural requirements for granting an exemption from
otherwise applicable zoning laws. (See Trancas Property Owners Assn. v.
City of Malibu (2006) 138 Cal.App.4th 172, 182 [invalidating settlement
agreement between municipality and developer that “functionally resembles
a variance”].) If local agencies could avoid judicial review of planning
decisions “simply by approving a project without any formal grant of a
variance, even though the project is not in compliance with the requirements
of the applicable regulations governing land use and development, those
regulations could be substantially amended or voided simply by ignoring
them and approving noncomplying developments.” (Orinda Assn. v. Contra
Costa County (1986) 182 Cal.App.3d 1145, 1162, fn. 10.)
The City’s failure to controvert Nemer’s allegations about required
variances, and the lack of notice and a hearing about them, is fatal. Nemer
had no burden to prove a variance was required. “The pleadings delimit the
issues to be considered on a motion for summary judgment. [Citation.] The
defendant must present facts to negate each claim as framed by the complaint
or establish a defense. Only when this prima facie showing is made must the
plaintiff demonstrate the existence of a triable, material issue.” (Turner v.
State of California (1991) 232 Cal.App.3d 883, 891, italics added; see, e.g.,
Varshock v. Department of Forestry & Fire Protection (2011) 194 Cal.App.4th
635, 651-652 [discussing moving party’s initial burden as defined by
complaint’s factual allegations]; see also AARTS Productions, Inc. v. Crocker

25
National Bank (1986) 179 Cal.App.3d 1061, 1064 [appellate court reviewing
grant of summary judgment must “identify the issues framed by the
pleadings since it is these allegations to which the motion must respond by
establishing a complete defense or otherwise showing there is no factual basis
for relief on any theory reasonably contemplated by the opponent’s
pleading”]; Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 885
[appellate court cannot affirm summary judgment on a ground not framed by
the pleadings], revd. on other grounds by Metromedia, Inc. v. City of San
Diego (1981) 453 U.S. 490.)
Accordingly, because the City did not negate Nemer’s allegations that
some aspects of the work required a variance, the City did not demonstrate
its right to judgment as a matter of law on Nemer’s allegations that he has a
right under the Mill Valley Municipal Code and state law to notice and a
hearing about those aspects of the construction.
B. Due Process
Nemer has not demonstrated the trial court erred in granting judgment
as a matter of law on his constitutional claims, however.
Scattered throughout his pleading across multiple causes of action (the
first through third), Nemer alleged that he had a procedural due process
right to notice and a hearing concerning the “Unpermitted Improvements,”
which included: (a) those aspects of construction he alleged violated the
scope of approvals granted pursuant to the design review approvals; (b) those
aspects of construction he alleged required a variance; and (c) the City’s
decision on his code violation complaints.
Addressing Nemer’s first cause of action (for writ of mandate) and third
cause of action (brought pursuant to 42 U.S.C. section 1983), the City moved

26
for judgment as a matter of law on the ground that it had satisfied due
process requirements, and the trial court agreed.
We are unable to discern an intelligible legal argument for reversal on
Nemer’s due process claims. His opening brief makes broad, sweeping
references to the requirements of due process, and he also cites legal
authority that land use decisions that “substantially affect” the property
rights of owners of adjacent parcels constitute deprivations of property within
the meaning of procedural due process, entitling the property owner to
reasonable notice and an opportunity to be heard. (Horn v. County of
Ventura (1979) 24 Cal.3d 605, 612, 615 [subdivision approval].) But Nemer
has not explained why any of his allegations in this case rise to that level.
(Compare, e.g., Drum v. Fresno County Dept. of Public Works (1983)
144 Cal.App.3d 777, 782 [granting a variance to construct two-story garage
requires notice and hearing] with Robinson v. City and County of San
Francisco (2012) 208 Cal.App.4th 950, 963-964 [no procedural due process
right to notice and hearing before city authorizes installation of wireless
antennas on utility poles near homes; “notice and a hearing . . . are [not]
constitutionally required before every planned alteration to a property, no
matter how insignificant”].)
For these reasons, it is unnecessary to address the City’s arguments
(raised for the first time on appeal) that Nemer’s due process claims fail
because there was no state action involved, and because he has no
constitutionally protected property interest in receiving notice and a hearing
on his code violation complaints.

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 DISPOSITION
The judgment is reversed with directions to vacate the order granting
summary judgment and to enter a new and different order denying summary
judgment and granting summary adjudication for the City on the third cause
of action for violation of procedural due process pursuant to 42 U.S.C.
section 1983, and on the first cause of action to the extent it alleges in
paragraph 80 a violation of procedural due process.

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 STEWART, J.

We concur.

KLINE, P.J.

MILLER, J.

Nemer v. City of Mill Valley (A157210)

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