Judge: Carolyn M. Caietti, Case: 37-2023-00016581-CU-WM-CTL, Date: 2024-01-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 04, 2024

01/05/2024  01:30:00 PM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Writ of Mandate Demurrer / Motion to Strike 37-2023-00016581-CU-WM-CTL PROTECT OUR SCHOOLS VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Respondents City of San Diego and San Diego Development Services Department's Demurrer to Petitioners' Amended Verified Petition for Writ of Mandate is SUSTAINED WITHOUT LEAVE TO AMEND.

Real Party in Interest T-Mobile USA, Inc.'s Demurrer to Petitioners' Amended Petition for Writ of Mandate is MOOT in light of the ruling on the City's Demurrer.

Background In this Amended Petition for Writ of Mandate (FAP) under C.C.P. sections 1085 and 1094.5, Petitioners challenge Respondents City of San Diego and San Diego Development Services Department's (collectively, City) decision to grant Real Parties in Interest San Diego Rock Church and T-Mobile USA, Inc's. application to install cellular antennas. Petitioners assert Real Parties applied to the City for a permit to place nine cellular telephone antennas on the Rock Church property and improperly submitted the application pursuant to the City's 'Process 1' permitting. Due to both the mixed-use nature of the Rock Church's property and proximity to the proposed antennas installation to eight schools, Petitioners maintain the San Diego Municipal Code mandates the application be submitted and assessed at least pursuant to 'Process 2' permitting, which requires heightened review and provides for notice, hearing and appeal.

These matters first came before the Court on December 1, 2023. The Court requested discussion on the City's statute of limitations argument and ordered additional briefing. (ROA 112 – Tentative Ruling; ROA 119 – Minute Order dated December 1, 2023.) Preliminary Matters City's unopposed request for judicial notice is granted and notice will be taken to the extent permitted.

T-Mobile's unopposed request for judicial notice is granted and notice will be taken to the extent permitted.

Discussion A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, Calendar No.: Event ID:  TENTATIVE RULINGS

3060977  52 CASE NUMBER: CASE TITLE:  PROTECT OUR SCHOOLS VS CITY OF SAN DIEGO [IMAGED]  37-2023-00016581-CU-WM-CTL 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) In these demurrers, City argues the FAP is time-barred and fails to state sufficient facts. T-Mobile argues the FAP fails to state sufficient facts.

City first demurrers on the basis the FAP does not state sufficient facts as it is barred by the statute of limitations. A demurrer based on a statute of limitations 'will not lie where the action may be, but is not necessarily, barred.' (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.) In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. (Ibid.) The parties agree San Diego Municipal Code (SDMC) section 121.0102 sets a 90-day limitations period for this action. It reads: 'Any action or proceeding to challenge, review or void any decision made in accordance with the Land Development Code shall commence no later than 90 days after the date on which the decision becomes final. Thereafter; all persons are barred from taking any such action or invoking any defense of invalidity or unreasonableness of the decision.' The parties also agree Petitioners did not file the original petition within 90 days.

In opposition, Petitioners rely on the discovery rule exception, which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) The rule may be express by the Legislature or implied by the courts. (Communities for a Better Environment v. Bay Area Air Quality Management Dist. (2016) 1 Cal.App.5th 715, 722 (CBE).) It postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Ibid.) In actions where the rule applies, the limitations period does not accrue until the aggrieved party has notice, either actual or constructive, of the facts constituting the injury. (Ibid.) Here, there is no dispute SDMC does not expressly allow for the discovery rule exception to apply. (Cf., C.C.P., § 338 [In an action for relief on ground of fraud or mistake, the cause of action is not deemed to have accrued 'until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.'].) Rather, section 121.0102 clearly states that after 90 days after the date on which the decision becomes final, 'all persons are barred from taking any action...of invalidity or unreasonableness of the decision.' (See, Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 521, 527-529 (Regents) [30-day statute of limitations in which to sue to nullify a government act did not lend to exception where statute provided that '[a]ny action seeking such a judicial determination shall be commenced within 30 days from the date the [government] action was taken'].) Contrary to Petitioners' argument, this is a clear indication the legislature intended for any actions to commence no later than 90 days from the final decision and to exclude section 121.0102 from the scope of the discovery rule.

(Regents, supra, at p. 528 ['That section 11130.3(a) does not allow any type of extension of time by any type of means in express terms practically bars the conclusion that it does so by implication.'].) Petitioners' reliance on CBE does not change the result. CBE held the trial court properly dismissed the action without leave to amend because the discovery rule did not postpone the running of the limitations period. (CBE, supra, 1 Cal.App.5th at p. 722-26.) Despite acknowledging similar notice concerns like Calendar No.: Event ID:  TENTATIVE RULINGS

3060977  52 CASE NUMBER: CASE TITLE:  PROTECT OUR SCHOOLS VS CITY OF SAN DIEGO [IMAGED]  37-2023-00016581-CU-WM-CTL Petitioners do here, the court indicated those concerns were better directed to the Legislature. (Id., at p. 726.) Regents, supra, also addressed the issue of public notice and that it was a 'deliberate choice made in the face of the fact that, as stated, the provision concerns itself exclusively with actions that have been taken in violation of the act's notice or open-and-public meeting requirement, outside of the full light of day, implicating fraud in effect if not in intent. Had the Legislature meant to allow some extension of time of the limitations period at the same time at which it was shortening the limitations period itself, it would likely have made itself clear in the premises. It did not. What it did not speak we should not claim to hear.' (Regents, supra, 20 Cal.4th at p. 531.) The Court is also not persuaded by Petitioners' argument the claim is not time-barred because the City previously contended in a separate matter that any challenge to a site development permit was required to occur within 90 days of its issuance or at the latest when discovered the existence of the site development permit. (Citizens for Beach Rights v. City of San Diego (2017) 17 Cal.App.5th 230, 238 (disagreeing with the trial court's conclusion the lawsuit was not an attack on a 'decision' as the term is used in Government Code section 65009(c)(1)(e) and SDMC section 121.0102).) This reference appears to be merely argument and not a case holding. Petitioners do not provide any legal authority requiring City to be bound to this prior argument.

Thus, the discovery rule exception does not apply. As Petitioners did not file this action within 90 days after the date on which the decision became final, the action is time-barred. Leave to amend will not be allowed as Petitioners are 'not aware of any basis upon which the Petition could be amended around a time bar determination.' (Supp. Brief, at p. 7:9-11.) The Court appreciates Petitioners' concerns about how an improperly issued Process One permits with no notice or comment prevents the public from learning of the application until well after the permit is issued. However, as noted by CBE, 'the proper balance between the interests of public participation and of timely litigation are better directed to [the San Diego City Council], not this court.' (CBE, supra, 1 Cal.App.5th at p. 726.) Thus, City's demurrer to the FAP is SUSTAINED WITHOUT LEAVE TO AMEND.

Petitioners acknowledge this outcome ends the action against T-Mobile as well. (Supp. Brief, at p. 7:1.) The sole cause of action is for writ of mandate to review and set aside the City's approval of T-Mobile's application. The remedies Petitioners seek can only be accomplished by the City, not T-Mobile. Thus, this ruling renders the FAP against T-Mobile and its demurrer MOOT.

Concluding Orders Respondents City of San Diego and San Diego Development Services Department are ordered to prepare and submit a judgment of dismissal in accordance with any applicable laws and rules.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

City of San Diego is also ordered to serve notice of the Court's final order on all appearing parties by January 9, 2023.

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