Judge: Edward B. Moreton, Jr., Case: 20SMCV00149, Date: 2023-01-04 Tentative Ruling

Case Number: 20SMCV00149    Hearing Date: January 4, 2023    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

MOVING PARTY:                    Respondent Santa Monica Rental Board

RESPONDING PARTY:         Petitioner 1238 10^th Street, LLC

BACKGROUND

This action arises from a challenge to an administrative decision made by Respondent Santa Monica Rental Board.  Petitioner 1238 10^th Street, LLC, owns a residential apartment building located at 1238 10^th Street in Santa Monica, California (the “Premises”).  Richard Strom and Elena Kashtuyeva are tenants occupying Unit 6 of the Premises.  Petitioner challenges the Respondent’s decision to decrease Tenants’ rent from $1400 per month to $0 per month, while the Premises were under construction, arguing this decision violated Santa Monica Municipal Code §4.36.100(c)(2).  Petitioner argues that Tenants should not have been receiving rent reduction of $29,093, when they were already receiving $91,107 in relocation benefits pursuant to a Santa Monica City Council ordinance.    

This hearing is on Respondent’s demurrer to the second amended petition for writ of mandate.  Respondent argues that the petition is time-barred because any action to challenge its decision must have been filed by November 27, 2017, and Petitioner did not file the present action until April 13, 2020.                

REQUEST FOR JUDICIAL NOTICE

The Court GRANTS Respondent’s and Petitioner’s Requests for Judicial Notice (“RJN”) pursuant to Evid. Code §§452(b), 452(c), and 453. 

LEGAL STANDARD

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  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.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

DISCUSSION

The Court previously sustained a demurrer with leave to amend on the petition for writ of mandate.  The Court concluded that the petition was time-barred because the challenged administrative order was issued on August 16, 2017; the decision became final on August 26, 2017, and under Code Civ. Proc. §1094.6(b), Petitioner had 90 days after the order became final to challenge the order, or by November 27, 2017.  Petitioner did not file its petition until April 13, 2020.  (March 22, 2022 Minute Order at 4-5.)  Notwithstanding, the Court granted Petitioner leave to amend as it was not clear that the August 16, 2017 order was served upon Petitioner by first class mail as required by Code Civ. Proc. §1094.6(b).  (Id. at 6.)

Petitioner has now amended its petition to allege facts showing it was not served with the August 16, 2017 order by first class mail.  The petition alleges: “[Petitioner] received no notice of the decision dated August 16, 2017 in compliance with the provisional requirement” (Petition ¶52);  “Respondent mailed [the decision] by regular mail postage” (Petition ¶53); “Respondent provided no notice of the final decision to the Petitioner and the administrative record contains no such reference” (Petition ¶55); the “proof of service dated August 17, 2017 attached … as part of the administrative record does not state that the notice of decision was served by first class mail” (Petition ¶58); “the notice requirement of CCP 1094.6(b) requires that a verified statement attesting to the date the decision was mailed to the party by first class mail be mailed with the decision” and “Respondent’s proof of service does not specify who attests to the service of documents as it contains no name of the person executing the proof of service” (Petition ¶59). 

Based on these allegations, which the Court must accept as true on a demurrer, the Court cannot sustain the demurrer on grounds the petition is time-barred.  Respondent argues that the order was in fact mailed by first class mail.  But the judicially noticed documents only show that service was by e-mail and pre-paid mail, not first class mail.  (Ex. B to Motion; Ex. A to Petitioner’s RJN.)  There was also no verified statement.  (Ibid.)  Respondent is relying on an after-the-fact declaration by a support services supervisor to attest to the City’s practice of mailing by first class delivery.  The Court, however, cannot consider the declaration on a demurrer.  It is not subject to judicial notice.  On a demurrer, the Court can only consider defects that appear on the face of the pleading or facts that are subject to judicial notice.  (Code Civ. Proc., §§ 430.30, 430.70).  Extrinsic evidence including declarations may not properly be considered on a demurrer. (Smith v. Phillips, 2020 Cal. Super. Lexis 18915 at *4.)     

Donnellan v. City of Novato (2001) 86 Cal.App.4^th 1097 is on point.  There the Court held that §1094.6 requires that “when the local agency mails its written decision to the party seeking the writ, such mailing must include a written statement verified by oath or affirmation or a written statement attesting to the date that the decision was mailed to the party by first class mail, postage prepaid.  Only such verified or testimonial statement meets the requirements of section 1094.6.”  Id. at 1106.  In reviewing the legislative history, the court in Donnellan noted that the “since [section 1094.6] adopted a much shorter limitations period, it was crucial that the party have proper notice.”  Id at 1105.  Donnellan also held that an after-the-fact declaration like that submitted by Respondent here does not meet the requirements of §1094.6 because “under the express language of the statute the facts of the mailing must be attested to in a written statement included with the written decision.”  Id. at 1107.                     

CONCLUSION

Based on the foregoing, the Court OVERRULES Respondent’s demurrer. 

DATED: January 4, 2023                                                      ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court