Judge James C. Chalfant, Case 22STCV22817 2022-12-13 Tentative Ruling

Respondents Successor Agency to the Compton Community Redevelopment Agency (“Successor Agency”), the City of Compton (“City”), the City Council of the City of Compton (“City Council”), Mayor Emma Sharif (“Sharif”) in her official capacity (collectively, “Compton Respondents”), and Olson Urban Housing, LLC, (“Olson”) demur to the First Amended Petition (“FAP”) filed by Petitioner Malloy Family Partners, LP (“Malloy”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Malloy filed the Petition against Respondents on July 15, 2022. The operative pleading is the FAP filed on September 26, 2022, alleging (1) violations of successor agency laws under Health and Safety Code (“H&S Code”) section 34177 et seq.; (2) violation of the Ralph M. Brown Act (“Brown Act”), Government Code (“Govt. Code”) section 54950 et seq.; (3) violation of the Notice of Public Hearings Laws, Govt. Code section 65090 et seq.; (4) violation of the California Public Records Act (“CPRA”), Govt. Code section 6250 et seq.; and (5) injunctive relief for invalid disposition of public property pursuant to CCP section 526 et seq.[1] The FAP alleges in pertinent part as follows.

Malloy is a limited partnership with its principal place of business in Riverside County. It transacts business and operates within the City and paid local taxes to the City within one year of the commencement of this action. FPA at ¶6.

On February 26, 2008, the Compton Community Redevelopment Agency purchased 2.55 acres of land at 250 N. Central Compton, California, 90220 (“Property”) for $3,750,000. FAP, ¶28.

The purpose of the state’s redevelopment agencies was to allocate public resources to stimulate economically depressed and disadvantaged communities with the use of increased property tax revenue. FAP, ¶14. Over time, redevelopment agencies shifted their focus from urban blight to the subsidization of commercial development in more prosperous communities. FAP, ¶14. In response, the Legislature dissolved all redevelopment agencies, including the Compton Community Redevelopment Agency, effective February 1, 2012. FAP, ¶¶ 14-15. Under H&S Code section 34172 et seq., the Successor Agency inherited all assets of Compton Community Redevelopment Agency, including the Property. FAP, ¶15.

On August 25, 2017, Malloy, the owner of adjoining land, offered to purchase the Property for $2,606,000, to be paid in full at the close of escrow. FAP, ¶¶ 25, 39, Ex. I. Malloy intended to use the Property for vehicle and truck parking for its adjacent business. FAP Ex. I, p. 203.

Notwithstanding the Legislature’s reasons for dissolving redevelopment agencies, the Successor Agency prioritized commercial development incentives at the expense of the City’s community. FAP, ¶16. In 2018, the Successor Agency posted a Request for Proposals (“RFP”) for the Property. FAP, ¶26, Ex. F. The RFP required that each proposal be to acquire and develop the Property as a commercial-retail development, a mixed-use commercial, retail and residential development, or ‘for-sale’ housing that results in a multi-family unit development. FAP Ex. F, p. 170. The RFP’s goal was to select the bidder that would build a development yielding the greatest combination of financial and community benefits for the City community. FAP, ¶26, Ex. F, p. 171. The RFP explained that the Successor Agency would dispose of the Property at 100% fair market value within six months from the date of the appraisal identifying that fair market value. FAP, ¶¶ 19, 29, Ex. F, p. 170. The bidder also needed to demonstrate a history of at least five successful projects. FAP Ex. F, p. 174.

Key factors in deciding which bidder to select would include: (1) optimal site development that maximizes land use and yielding financial returns to the City in the form of property taxes, sales taxes, utility user fees, and other financial benefits to the community; (2) relevant experience and qualifications of the development team to perform completion of the development project; (3)

demonstrated capacity and proof of capability to finance the construction and completion of the proposed development; (4) the demonstrated ability to develop and lease spaces (commercial or retail) in urban communities with demographics similar to the City or, alternatively, a housing development; and (5) proven ability to expedite the sale of the developed housing units. FAP Ex. F, p. 171. The Successor Agency would favor mixed-income development with at least 50% of units to be sold at market rates. FAP Ex. F, p. 172.

On information and belief, in October 2021, the Successor Agency, the City, and Olson entered into a Purchase and Sale Agreement (“PSA”) for Olson to purchase the Property. FAP, ¶¶ 16, 30-31, Ex. A. Mayor Sharif apparently did not sign the PSA in her official capacity. FAP, ¶27, Ex. A. Although an unsigned grant deed purports to convey the Property in 2021, the County of Los Angeles (“County”) recorded a signed grant deed on July 14, 2022 – after Malloy filed the Petition in this action. FAP, ¶31, Exs. B, K, p. 281.[2]

The PSA provides that Olson must develop the Property into an affordable housing project. FAP, ¶16, Ex. A. The PSA describes a project consisting of 57 townhomes, only three of which must be restricted for sale to low-income households at an affordable sales price. FAP, ¶17, Ex. A, pp. 45, 125, 128.

Although the Compton Community Redevelopment Agency purchased the Property for $3,750,000 in 2008 and it had appraised value of $2,618,000 in 2015, appraiser Roth & Associates valued the Property at only $610,000 on February 10, 2021. FAP, ¶19, Exs. C-D, J, pp. 162, 211. As a result, Olson’s purchase price was only $607,161. FAP, ¶¶ 19, 33, Ex. A, p. 135. Respondents did not disclose to Malloy the February 10, 2021 appraisal of $610,000 until a settlement conference in this action on September 1, 2022. FAP, ¶32. The appraisal was made more than six months before the purported execution of the PSA. FAP, ¶35.

The City also agreed to provide a $2,222,161 grant to Olson in exchange for building the project, resulting in a City deficit of $1,615,000. FAP, ¶¶ 20, 36-37, Ex. A, p. 123. The grant will come from the City’s low- and moderate-income housing asset fund. FAP, ¶36, Ex. A. The City acknowledged that the Project’s three affordable units are not financially feasible without this grant. FAP, ¶36, Ex. A, p. 123.

At a meeting of the Successor Agency’s Board of Directors and the City Council on October 5, 2021, both agencies passed the Resolution approving the sale of the Property pursuant to the PSA. FAP Ex. D, pp. 157-64. The Resolution claimed the Successor Agency was selling the Property at a purchase price equal to the fair market value determined pursuant to the February 10, 2021 appraisal. FAP Ex. D, p. 162.

In an effort to conceal their actions, Respondents did not provide proper Brown Act notice to the public or post agendas to the City Council website that contained brief descriptions of the actions pertaining to the sale of the Property. FAP, ¶21, Ex. L. These actions violate the Brown Act, which forbids action on any item not in the city agenda. FAP, ¶¶ 21, 41, 43. The City engaged in a secret sale of the Property without public participation. FAP, ¶21.

On June 24, 2021, and March 22 and May 17, 2022, Malloy filed CPRA requests for (1) any records regarding the Property from January 1, 2017 thereafter; and (2) any records regarding the Property by or between the Successor Agency and any entity seeking to develop or purchase the Property from January 1, 2017 thereafter. FAP, ¶¶ 23-24, 47-48, Ex. G, pp. 182, 184. The City’s Public Records Center responded to the March 22, 2022 request to suggest it would process the request within ten days. FAP, ¶49. As of July 5, 2022, the City has not produced the requested documents. FAP, ¶49.

On or before March 8, 2022, Olson requested that the City Council approve Resolution No. 4028, a proposed General Plan amendment that would change the Property’s land use designation from Mixed Use (“MU”) to General Commercial (“GC”). FAP, ¶50, Ex. H, p. 191. The City Planning Commission had voted to recommend approval of the General Plan amendment on December 8, 2021. FAP, ¶50, Ex. H, p. 198.

On March 8, 2022, the Council approved Resolution No. 4028. FAP, ¶50, Ex. H. Resolution No. 4028 will enable Olson to build the project, the proposed density of which exceeds the maximum density of MU areas. FAP, ¶50. Resolution No. 4028 claimed that a public hearing notice for the December 8 Planning Commission public hearing had been sent to those living with 500 feet of the Property and published in the local bulletin newspaper on November 10 and 17, 2021. FAP, ¶50, Ex. H, p. 198. Malloy was entitled to notice of any hearings about zoning or modified land use consideration of the Property as the owner of adjoining property; the City did not provide notice. FAP, ¶¶ 22, 44.

Malloy seeks a writ of mandate that (1) directs all Respondents to rescind and set aside all actions taken for the Property; (2) enjoins them from granting any authority, permits, or entitlements as part of Olson’s project with respect to the Property; and (3) commands them to immediately suspend all activities in furtherance of or implementation with respect to the Property. FAP Prayer for Relief ¶1. Malloy also seeks a preliminary and permanent injunction that enjoins Respondents from any further action pertaining to, or commencement of work on, the Property until they demonstrate compliance with the laws and regulations discussed in the FAP. FAP Prayer for Relief ¶2.

Malloy also seeks orders that (1) declare the PSAs, grant deeds, and other documents in connection thereto as unenforceable, unlawful, invalid, and void ab initio; (2) enjoin Respondents from any action that acknowledges or recognizes the PSA or Olson’s claim to ownership of the Property; (3) compel Olson to reconvey the Property to the Successor Agency and prohibit any action by any Respondent inconsistent with such reconveyance; and (4) declare the Successor Agency as the rightful owner of the Property. FAP Prayer for Relief ¶¶ 3-7. Malloy seeks attorney’s fees and costs for this action. FAP Prayer for Relief ¶¶ 8-9.

On July 18, 2022, Malloy served the Compton Respondents with the Petition and Summons. On July 19 and August 12, 2022, Malloy served Olson with the Petition and Summons.

On August 16, 2022, in lieu of a demurrer, the Compton Respondents filed a declaration that explained that the parties were still in the meet and confer process.

On September 14, 2022, the parties stipulated that Malloy would file an amended Petition by September 26, 2022. Respondents could then use the filing date of this amended Petition to calculate the deadline of a demurrer. The deadline for any Answer would be October 4, 2022.

On September 26, 2022, Malloy filed the FAP, having served it by email on September 24, 2022.

On October 12, 2022, the parties stipulated to transfer this action from Department 26 (Hon. Elaine Lu) to Department 1, which reassigned it to Department 85.

Demurrers are permitted in administrative mandate proceedings. CCP §§1108, 1109. A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face.

Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings. CCP §430.30(a); Coyne v. Krempels, (1950) 36 Cal.2d 257. The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading. CCP §430.10. A demurrer is timely filed within the 30-day period after service of the complaint. CCP § 430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318. The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339. The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court. Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47. The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709.

For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. CCP §430.31(a). As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies. CCP §430.31(a)(1). The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency. Id. The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met. CCP §430.31(a)(3).

“[A] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] 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.” State ex rel. Metz v. CCC Information Services, Inc. (“Metz”) (2007) 149 Cal.App.4th 402, 413.

If a demurrer is sustained, the court may grant leave to amend the pleading upon any terms as may be just and shall fix the time within which the amendment or amended pleading shall be filed. CCP §472a(c). However, in response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. CCP §430.41(e)(1).

Respondents demur to all five causes of action in the FAP. Petitioner Malloy opposes and alternatively requests leave to amend. Opp. at 7, 19.

On August 11, 2022, Respondents’ counsel sent a meet and confer letter to Malloy’s counsel that outlined the Petition’s perceived deficiencies. Maestri Decl., ¶2, Ex. 3. After the meet and confer, Malloy’s counsel agreed to amend the Petition and filed the FAP. Maestri Decl., ¶3.

On October 3, 2022, Respondents’ counsel sent another meet and confer letter to Malloy’s counsel that outlined the perceived deficiencies in the FAP. Maestri Decl., ¶4, Ex. 4. The meet and confer session occurred on October 10, 2022 but did not lead to resolution of the issues. Maestri Decl., ¶¶ 5-6.

Each of the FAP’s causes of action seeks a declaration that the PSAs, grant deeds, and other documents in connection thereto as unenforceable, unlawful, invalid, and void ab initio. Respondents argue that declaratory relief is unavailable because the sale has been completed and declaratory relief operates only prospectively, not to address past wrongs. Travers v.Louden, (1967) 254 Cal.App.2d 926, 931. There also is no justiciable controversy simply because a plaintiff disagrees with an action taken by a legislative body. Zetterberg v. State Dept. of Public Health , (1974) 43 Cal.App.3d 657, 662. Finally, no court can interfere with a purely legislative action. United Association of Journeymen v. City & County of San Francisco, (1995) 32 Cal.App.4^th 751, 759. Dem. at 11-12.

Malloy correct responds that mandamus permits a court to set aside a contract that is void due to illegal government conduct. Summit Media, LLC, v. City of Los Angeles, (“Summit”) (2012) 211 Cal.App.4^th 921, 937. Opp. at 15-16. Nor is this historical relief barred by case law that declaratory relief is prospective in nature; the void nature of a contract is a continuing nature that may be addressed by declaration. Finally, Malloy is not seeking to interfere with a purely legislative action. A public agency’s entry into a contract is quasi-legislative in nature and can be set aside through mandamus. See Summit, supra, 211 Cal.App.4^th at 937.

The FAP’s first cause of action alleges that the sale of the Property violated H&S Code section 34177 (“section 34177”), which provides that successor agencies shall dispose of assets and properties of the former redevelopment agency as directed by the oversight board. “The disposal is to be done expeditiously and in a manner aimed at maximizing value.” Id. Malloy contends that Respondents violated section 34177(a) because the Property was sold for $607,161 in 2022 when it was purchased for $3,750,000 in 2008. Pet. At ¶¶ 40, 58.

Respondents correctly point out that Malloy does not have standing to enforce the duties of successor agencies. Section 34177(a)(2) expressly accords to “[a]ny taxing entity, the department, and the Controller” standing to file a judicial action to prevent a violation of this part and to obtain injunctive or other appropriate relief.” The statute’s reference to the “department” means the Department of Finance. H&S Code §34171(m). Nothing in section34177(a)(2) gives a private party standing to enforce a successor agency’s duties under section 34177.

Malloy notes that section 31477(a) provides standing to the three identified government entities “to file a judicial action to prevent a violation under this part and to obtain injunctive or other appropriate relief.” (emphasis added). Malloy argues that it is not bringing the first cause of action under “this part” (section 31477(a)), but rather under a different part, which is section 31477(e). Malloy contends without citation or analysis that it has standing under section 31477(e). Opp. at 15.

Malloy is wrong. A reference to “part” in any California Code refers to a specific Part of a Division. As Respondents argue (Reply at 5), section 31477(a)’s reference to “this part” is to the entire Dissolution of Redevelopment Agencies statutory scheme located in Part 1.85 of Division 24 of the H&S Code. The reference is not to section 31477(a), which is a subdivision of section 31477, not a part of it. In fact, H&S Code section 34170 expressly states that “[u]nless otherwise specified, all provisions of this part shall become effective on February 1, 2012.” (emphasis added). Because section 31477(a)’s list of agencies that can enforce the provision is exclusive, Malloy lacks standing to enforce section 31477.

Respondents argue that, even if arguendo Mally had standing, the FAP fails to identify a violation of section 31477. Section 34177(a) requires a successor agency to dispose of assets “expeditiously” and “in a manner that maximizes value”. It does not require sale of property at a maximum sale price because value can be added by more than price. The RFP relied on several factors to maximize value to the community, including financial and community benefits, future property and sales taxes and utility user fees. The Consolidated Oversight Board considered these factors in approving the PSA with Olson. Dem. at 12-13. Finally, Respondents argue that section 31477 does not provide authority for voiding a property sale. Dem. at 13.

Malloy responds that the FAP alleges the unjustified sale of the Property for less than fair market value, combined with (a) Respondents’ failure to dispose of the Property for 100% of its fair market value within six months of appraisal as required by the RFP and (b) the City’s gift of $2,222,161 to Olson in return for building only three affordable units. Opp. at 14.

These allegations and numbers are troubling, but Respondents are correct that Malloy is conflating the requirements of section 34177 with those of the RFP. Reply at 5. Malloy did not submit a bid and has no standing to contest Olson’s compliance with the RFP. The court need not agree with Respondents that maximizing value means more than financial value, or that a remedy of voiding a contract would not be available to an agency with standing to enforce section 31477, to conclude that the first cause of action fails to state a claim by Malloy.

The Brown Act is codified at Govt. Code section 54950 et seq. The purpose of the Brown Act is to ensure the public's right to attend public meetings, facilitate public participation in all phases of local government decision making, and curb misuse of the democratic process by secret legislation of public bodies. Chaffee v. San Francisco Library Commission, (2004) 115 Ca1.App.4th 461. A major objective of the Brown Act is to facilitate public participation in all phases of local government decision-making and curb misuse of democratic process by secret legislation by public bodies. Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, (1968) 263 Cal.App.2d 41, 50.

At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. Govt. Code §54954.2(a)(1). A brief general description of an item generally need not exceed 20 words. Govt. Code §54954.2(a)(1). The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public and on the local agency’s Internet Web site, if the local agency has one. Govt. Code §54954.2(a)(1). For any meeting of a body with an internet web site that occurs on or after January 1, 2019, an online posting of an agenda shall be posted on its primary Internet Web site homepage in a way that is accessible through a prominent, direct link to the current agenda. Govt. Code §54954.2(a)(2)(A). The direct link to the agenda shall not be in a contextual menu; however, a link in addition to the direct link to the agenda may be accessible through a contextual menu. Govt. Code §54954.2(a)(2)(A).

Any interested person may commence an action by mandamus for the purpose of stopping or preventing violations or threatened violations of the Brown Act by members of the legislative body of a local agency, or to compel the legislative body to audio record its closed sessions. Govt. Code §54960(a). Prior to any action being commenced, the interested person must make a demand of the legislative body to cure or correct the action. Govt. Code §54960.1(b). The written demand shall be made within 90 days from the date the action was taken unless the action was taken in an open session but in violation of Govt. Code section 54954.2, in which case the written demand shall be made within 30 days from the date the action was taken. Govt. Code §54960.1(c)(1).

The FAP alleges that the City violated the Brown Act at meetings held in October and December 2021 and March 2022 by failing to comply with its notice requirements. See Opp. at 6. At a joint meeting on October 5, 2021, the Successor Agency’s Board of Directors and the City Council passed the Resolution to approve the sale of the Property under the terms of the PSA. FAP Ex. D, pp. 157-64. The agenda for that meeting includes an 81-word description of the resolution. FAP Ex. M, pp. 340, 342. The FAP alleges that Respondents did not post the agenda on the City Council website. FAP, ¶21, Ex. L, pp. 310-311.

Respondents argued that Malloy failed to make a demand to cure the defect within 30 days of the date the action was taken. Govt. Code §54960.1(c)(1). Because the meeting was on October 5, 2021, the deadline to demand a cure ran on November 4, 2021.

Malloy argues that the 30-day cure period in Govt. Code section 54960.1(c)(1) only applies when the meeting was an open session, and Malloy is asserting that the meeting was held in closed session. For closed sessions, there is a 90-day deadline for a demand to cure in Govt. Code section 54960.1(c)(1). Opp. at 11-12.[5]

Malloy adds that it did not know about the October 5, 2021 meeting until a title search revealed the grant deeds for the Property sale pursuant to the Resolution. Because the grant deeds were recorded on July 14, 2022, constructive notice of the October 5, 2021 meeting began on that date. FAP, ¶31, Ex. K, p. 281; Campbell v. Genshlea (1919), 180 Cal. 213. When combined with the 90-day cure period, Malloy cured the defect when it sent a demand to cure or correct on October 14, 2022. Opp. at 13.

This argument is untenable for several reasons. First, an agency’s failure to post an agenda does not turn an open public meeting into a closed session. Second, Govt. Code section 549601 expressly requires a written demand within 30 days where the “action was taken in open session but in violation of Section 54954.2.” Section 54954.2 provides that requires that an agenda be posted at least 72 hours before a regular meeting. That is exactly the situation alleged by Malloy: failure to post a proper agenda. Therefore, the 30-day demand for cure period applies.

Third, Respondents correctly note that Govt. Code section 54960.1(c)(1)’s deadline does not depend on Malloy’s discovery of the action, but when the action was taken. Reply at 8. The “action” was the joint vote on October 5, 2021 adopting the Resolution. FAP Ex. D, pp. 157-64. It was not the recording of the grant deeds months later, an act that was not even performed by the City Council or the Successor Agency’s Board of Directors. FAP, ¶31, Ex. K, p. 281. Although Malloy may have discovered the sale through the recorded grant deed, the deadline to send a demand to cure passed long before that discovery.[6]

Govt. Code section 54960.1(b) is clear that a demand to cure is a prerequisite to any action. Reply at 8. Therefore, the Petition itself cannot be a demand to cure. Even if it could, the Petition was not filed until July 14, 2022, far past either the 30- or 90-day deadline. Dem. at 14.[7] The Brown Act claim fails to state a claim because it is barred for failure to timely make a demand to cure.

Notwithstanding any other provision of law, whenever a person applies to a city, including a charter city, county, or city and county, for a zoning variance, special use permit, conditional use permit, zoning ordinance amendment, general or specific plan amendment, or any entitlement for use which would permit all or any part of a cemetery to be used for other than cemetery purposes, the city, county, or city and county shall give notice pursuant to Govt. Code sections 65091, 65092, 65093, and 65094. Govt. Code §65096(a).

Except as provided in Govt. Code section 65009(d), no action or proceeding shall be maintained to attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a general or specific plan unless the action or proceeding is commenced, and service is made on the legislative body within 90 days after the legislative body’s decision. Govt. Code §65009(c)(1)(A). Govt. Code section 65009(d) allows a party to commence an action or proceeding after this only if both (1) it brought in support of or to encourage or facilitate the development of housing that would increase the community’s supply of housing affordable to persons and families with low or moderate incomes; and (2) it is brought with respect to the adoption or revision of a housing element pursuant to Govt. Code section 65580 et seq. Govt. Code §65009(d)(1).

The third cause of action alleges that the City failed to give notice of the meetings in which zoning variances and CUPs were discussed for the Property, the sale should be made void ab initio. Pet., ¶¶ 44-46, 77. Specifically, Malloy contends that it did not receive notice of the Planning Commission’s December 8, 2021 meeting at which a General Plan amendment for the Property was discussed.

Respondents assert that Malloy’s notice claim fails on the merits. The FAP attaches the Resolution and it expressly states that public notice of the December 8, 2021 hearing was sent to those living with 500 feet of the Property and published in the local bulletin newspaper on November 10 and 17, 2021. FAP, ¶50, Ex. H, p. 198. Evid. Code section 664 creates a presumption that a government agency complied with its official duties and it is presumed that all necessary parties received notice. Respondents argue that the FAP’s conclusory allegations to the contrary are insufficient to overcome this presumption. Dem. at 15.

While conclusory allegations generally do not have much evidentiary value, a party’s contention that they never received notice differs because it necessarily must be made in a conclusory fashion. The court will not rule that the FAP does not allege sufficient facts to overcome the Evid. Code section presumption that notice was given.

However, Respondents are correct that the statute of limitations has passed for this claim.

On March 8, 2022, the City Council approved the Resolution, which amended the General Plan to change the Property’s land use designation from MU to GC. FAP, ¶50, Ex. H. The 90-day statute of limitations for an action to challenge a legislative body’s decision to amend a general plan. Govt. Code §65009(c)(1). Ninety days from March 8, 2022 is June 6, 2022. Malloy filed the Petition on July 14, 2022, more than a month after the limitations period had passed. Dem. at 16.

Malloy again relies on its delayed discovery of the General Plan amendment to excuse its claim’s untimeliness Opp. at 13, 17. The court already has rejected application of the discovery rule to Brown Act claims and it is equally inapplicable for land use entitlement challenges. See Govt. Code §65009 (property owners and agencies need prompt determination and confidence that projects can proceed)

Finally, Respondents point out that the failure of any person or entity to receive notice given pursuant to the Govt. Code or the procedures established by a chartered city shall not constitute grounds for any court to invalidate the actions of a local agency for which the notice was given. Govt. Code §65093; Dem. at 16. Malloy responds that Govt. Code section 65010(a) states that no action by any public agency or its legislative body shall be held invalid or set aside by reason of any error, irregularity, informality, neglect, or omission unless the court finds that the error was prejudicial and that the party complaining or appealing suffered substantial injury from that error and that a different result would have been probable if the error had not occurred. Opp. at 17.

These two provisions are easily reconciled. Under Govt. Code section 65093, the lack of notice is not a ground to invalidate any agency action. Under Govt. Code section 65010(a), no agency action shall be set aside by reason of error or neglect unless the error was prejudicial, harmed the petitioner, and a different result would have been achieved without the error. Hence, where lack of notice is the sole ground for attack, the action will not be overturned at all. Govt. Code §65093. Only where there is another error, whether separate or joined with lack of notice, does the prejudicial analysis of Govt. Code section 65010(a) come into play.

The third cause of action under Notice of Public Hearings Laws fails as a matter of law both because of the statute of limitations and because the remedy of invalidating the General Plan amendment is not available.

The CPRA’s purpose is to increase freedom of information by giving the public access to information in possession of public agencies. CBS. Inc. v. Block, (1986) 42 Cal. 3d 646, 651. The CPRA was intended to safeguard the accountability of government to the public, and it makes public access to governmental records a fundamental right of citizenship. Wilson v. Superior Court, (1996) 51 Cal.App.4th 1136, 1141. This requires maximum disclosure of the conduct of government operations. California State University Fresno Assn., Inc. v. Superior Court, (“California State University”) (2001) 90 Cal.App.4th 810, 823. In 2004, the voters endorsed the CPRA by approving Prop 59, which amended the state Constitution to declare that “the writings of public agencies…shall be open to public scrutiny.” Cal. Const. Art. I, §3(b). A CPRA claim to compel compliance with a public records request may proceed through either mandamus or declaratory relief. Govt. Code §§6258, 6259.

The fourth cause of action alleges that the City failed to comply with the CPRA. Malloy asked for documents on Jun 24, 2021, March 22, 2022, and May 17, 2022 and received no records despite the City’s response that the records would be provided. Pet., ¶¶ 47-49. The FAP prays that the sale of Property be set aside as a result of the City’s failure. FAP Prayer for Relief ¶¶ 1-9.

As Respondents note, the sole remedy for a CPRA violation is a writ of mandate or declaratory relief to enforce the right to inspect the requested documents. Dem. at 17. Malloy does not defend the adequacy of this claim. See Opp. at 14-18; Reply at 9-10.

The CPRA cause of action fails as a matter of law. Malloy could amend the FAP to seek the production of documents responsive to its CPRA requests.

The sixth cause of action seeks a preliminary and permanent injunction that enjoins Respondents from any further action pertaining to, or commencement of work on, the Property until they demonstrate compliance with the laws and regulations discussed in the FAP. FAP Prayer for Relief ¶2. This claim is based on the invalid disposition of property pursuant to CCP section 536a.

As Respondents argue, injunction is an equitable remedy, not a cause of action. Art Movers, Inc. v. Ni W., Inc., (1992) 3 Cal.App.4^th 640, 646; Batt v. City and County of San Francisco, (2007) 155 Cal.App.4^th 65. As such, a demurrer to a purported injunctive relief cause of action should be sustained. Shamisian v. Atlantic Richfield Co., (2003) 19-07 Cal.App.4^th 967, 984-85. The sixth cause of action for injunctive relief fails to state a cause of action.[8]

While Malloy raises potentially concerning issues about the value of the Property and a more than $2 million grant, the claims are procedurally barred. The demurrer to the FAP is sustained as to all claims, with leave to amend granted only for the CPRA claim.

[1] The FAP lists the remedy of injunctive relief as the sixth cause of action; there is no fifth cause of action.

[2] The signatures on the grant deed are dated in May 2022. Ex. K, p. 287-92.

[3] Respondents request judicial notice of (1) Resolution OB-2021-04, dated November 16, 2021 (Maestri Decl., ¶7, Ex. 1); (2) Grant Deed Document Nos. 20220723441 and 20220723442, which conveyed the Property to Olson (Maestri Decl, ¶8, Ex. 2); and (3) the Council Agendas for January 18 and February 1, 2022 (Maestri Decl., ¶9, Ex. 5). The request for Exhibit 1 is granted under Evid. Code sections 452(b), and the requests for Exhibits 2 and 5 are granted under Evid. Code sections 452(c).

Malloy submits a declaration by Brandon Barney (“Barney”). With the exception of the statutory meet and confer under CCP 430.41(a), the court ruling on a demurrer cannot consider evidence outside the pleadings.

[4] The FAP seeks both administrative and traditional mandamus. As Respondents argue (Dem. at 7), Malloy’s mandamus claims can only lie in traditional mandamus under CCP section 1085. Administrative mandamus is unavailable because Malloy is not seeking review of a quasi-adjudicative determination of facts made after a hearing required by law at which evidence was required to be taken. Helene Curtis, Inc. v. Los Angeles County Assessment Appeals Board, (2004) 121 Cal.App.4^th 29, 37.

[5] Malloy refers to the 30- and 90-day deadlines as “statutes of limitations”. Op. at 11. They are not. Statutes of limitations apply to bar an accrued cause of action. The deadlines of Govt. Code section 54960.1(c)(1) are prerequisites to filing an action.

[6] Even a 90-day deadline would not aid Malloy. The joint action was taken on October 5, 2021, and the deadline would have run in early January 2020.

[7] Respondents also argue that the October 5 agenda contained a brief general description of the proposed PSA with Olson. The agenda for the City Council’s October 5, 2021 meeting included an 81-word description of the resolution for the sale of the Property through the PSA. FAP Ex. M, pp. 340, 342. This description is sufficient.

Respondents further argue that, although the FAP alleges that this agenda was not posted on the website with the agenda for other meetings dated after 2019 (FAP Ex. L, p. 310), the City’s webpage instructed visitors to click on the “Meetings Link, then Meeting Types and Date Range” to access meeting agendas. FAP Ex. L, p. 310. The October 5, 2021 meeting agenda was properly archived on a separate page of the City’s website. Malloy simply pushed the wrong button on the website. Pet., Ex. L, p. 310. Reply at 7. The court need not address this argument concerning notice.

[8] Respondents also argue that CCP section 526a, which permits a taxpayer to bring an action restraining the illegal expenditure, waste, or injury to local agency funds or other property, authorizes prospective relief only and does not allow an action to unwind a consummated sale. Dem. at 18. Malloy does not respond to this issue and the court has no opinion on the issue.