Judge James C. Chalfant, Case Number: 24STCP02168, Date: 2024-11-19 Tentative Ruling

Respondents City of Los Angeles and its City Council and Planning Department (collectively, “City”), jointly with Real Party-in-Interest Whitley Apartments, LLC (“Whitley”), demur to the Petition filed by Petitioner United Neighborhoods for Los Angeles (“United Neighborhoods”).

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

On July 8, 2024, Petitioner United Neighborhoods filed the Petition against Respondents City and Real Parties Whitley and Fariborz Moshfegh (“Mosfegh”) alleging violations of General Plan policies, failure to comply with the City’s 2021-2029 Housing Element, abuse of discretion, violation of the California Environmental Quality Act (“CEQA”) (Public Resources Code §21000 et seq.), and violation of Government Code section 66300.6.

Petitioner challenges a luxury hotel development project (“Whitley Hotel Project” or “Project”) proposed by Real Parties Moshfegh and Whitley at 1719-1731 North Whitley Avenue, Case No. DIR2016-4920-SPR-1A; ENV-2016-4921-CE (the “Property”). As part of the Project, Real Parties plan to remove 40 existing affordable housing units, all of which are regulated and protected under the City’s Rent Stabilization Ordinance. The City refused to conduct any CEQA review on the Project in violation of law. The City also erred in failing to require replacement of all 40 existing affordable housing units as required by state law.

As approved, the Project would demolish six multi-family residential buildings, comprised of 40 affordable housing units, to develop a 10-story, 156-room luxury hotel. The Property’s improvements, developed in 1920, not only currently serves as a vital source of affordable housing but also has potential value to the preservation of Hollywood history, given its age, architecture, and location within the boundaries of a proposed Multi-Family Residential Historic District.

On August 1, 2019, a planner in the City’s Planning Department (“Planning”) issued a determination that the Whitley Hotel Project is exempt from CEQA pursuant to CEQA Guidelines section 15322. Petitioner timely appealed.

At its October 22, 2019, meeting, the Central Los Angeles Planning Commission (“APC”) determined that the Project is exempt from CEQA pursuant to CEQA Guidelines section 15322. The APC also denied Petitioner United Neighborhood’s appeal, sustained the Planning Director’s determination to approve a Site Plan Review for the Project and adopted the Planning Director’s findings, thereby approving the Project. On November 15, 2019, Petitioner timely appealed the APC’s CEQA determination to the City Council.

On October 1, 2020, the City Council’s Planning and Land Use Management (“PLUM”) Committee considered Petitioner’s appeal, along with a separate appeal. After public comment and presentations from the Real Parties and the Petitioner, the PLUM Committee recommended denial of the appeals and approval of the CEQA categorical exemption for the Whitley Hotel Project. On October 20, 2020, the City Council adopted the PLUM Committee report, approved the CEQA categorical exemption, and approved the Project.

United Neighborhoods filed a mandate petition against Respondents in LASC 20STCP03844. The petition sought to overturn the Project approvals, claiming violations of CEQA and abuse of discretion under the City’s Site Plan Review requirements.

On June 22, 2022, Department 86, the Honorable Mitchell L. Beckloff presiding, ruled in favor of Petitioner and issued a writ of mandate requiring the City to set aside its approvals and CEQA exemption determination on the 2020 Project.

Respondents and Real Parties appealed the trial court’s decision to the Court of Appeal. On or around June 28, 2023, the Second District Court of Appeal, Division Five, affirmed the trial court’s judgment in a published decision.

On or around December 8, 2023, Planning issued a “Letter to Rescind Determination”, which referred to the trial court writ ordering the City to set aside the City’s approvals of the Project. The Letter to Rescind Determination states: “As such, the August 1, 2019, determination letter and the [CEQA] Categorical Exemption are hereby set aside and rescinded.”

On or around December 20, 2023, the Director of Planning issued a Determination Letter approving a Site Plan Review as required under the Los Angeles Municipal Code (“LAMC”) on the Project application for the Whitley Hotel Project, further finding that the Project qualifies for the Class 32 CEQA Guideline exemption.

On or around December 28, 2023, United Neighborhoods timely filed an administrative appeal from the Director of Planning’s Determination Letter.

On March 12, 2024, Planning issued a Staff Report recommending denial of United Neighborhoods’ appeal. The City primarily relied on its previous findings for the Project but added findings that the Project “does not meet or fulfill several goals, objectives and policies, including Objective 2.1 and 2.3, in the 2021-2029 Housing Element, which call for the preservation of housing and strengthening renter protections.” The Staff Report reasoned that because the City found that the Project is consistent with other General Plan policies, the CEQA exemption is justified.

At its meeting on April 9, 2024, the APC denied the appeal in part and granted the appeal in part, sustaining the Director of Planning’s Determination Letter and conditionally approving a Site Plan Review for the Project pursuant to LAMC section 16.05.

On or around April 24, 2024, United Neighborhoods timely administratively appealed the APC’s decision. United Neighborhoods argued that approving the Project would be an abuse of discretion and that the revised Project is not eligible for a CEQA exemption because it is not consistent with all General Plan policies and further would result in a number of significant impacts. The appeal also argued exceptions to the CEQA exemption made it inapplicable.

On or around June 18, 2024, the PLUM Committee recommended denial of United Neighborhoods’ appeal and sustaining the APC decision.

On or around July 2, 2024, City Council, on consent and taking no public comment, summarily affirmed the PLUM Committee’s recommendation to deny United Neighborhoods’ administrative appeal.

The Petition’s first cause of action alleges violations of the City’s General Plan policies, failure to act consistently with the City’s 2021-2029 Housing Element, and abuse of discretion.

The second cause of action alleges violation of CEQA and the Code of Civil Procedure.

Plaintiff seeks (1) a peremptory writ of mandate commanding the City to rescind its issuance of the CEQA categorical exemption and revoke all approvals, permits, and entitlements issued for the Whitley Hotel Project; (2) injunctive relief enjoining the City and Real Parties from taking any action to construct and implement the Whitley Hotel Project, (3) declaratory relief that the City’s finding that the Whitley Hotel Project categorically exempt from CEQA violates the substantive and/or procedural requirements of CEQA and that the City’s approval of the Project violated the City’s General Plan and Government Code section 66300.6, (4) litigation expenses and costs of suit, and (5) such other and further relief as the court may deem just and proper.

A proof of service on file shows that Petitioner served the City with summons and the Petition on July 11, 2024.

Proofs of service on file show that Petitioner served Real Party Whitley by substituted service on August 19, 2024 and served Real Party Moshfegh on August 18, 2024.

On October 3, 2024, the court denied Petitioner’s ex parte application for a temporary restraining order and order to show cause to prevent demolition of the existing rent stabilized multi-family residential buildings on the Property.

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) 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 section 411.35 or (i) by CCP section 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).

Respondents City and Real Party Whitley[2] jointly demur to the Petition’s first and third causes of action on the ground they are barred by the applicable statute of limitations.

On September 16, 2024, counsel for Real Party, the City, and Petitioner held a meet and confer and did not resolve the issues raised. The City and Real Party have satisfied their requirement to meet and confer.

Except as inapplicable, no action or proceeding shall be maintained to attack, review, set aside, void, or annul any decision on the matters listed in sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit “unless the action or proceeding is commenced and services is made on the legislative body within 90 days after the legislative body’s decision.” §65009(c)(1)(E). Section 65009(a)(3) provides in part that “[t]he purpose of this section is to provide certainty for property owners and local governments regarding decisions made pursuant to this division.”

The legislative intent for this provision “is to establish a short limitations period in order to give governmental zoning decisions certainty, permitting them to take effect quickly and giving property owners the necessary confidence to proceed with approved projects.” Wagner v. City of South Pasadena, (2000) 78 Cal.App.4th 943, 948-49. Strict compliance with the limitations period is required. Id., at 950; see §65009(e). This short limitation period serves the important legislative purpose of permitting the rapid resolution of legal challenges to local land use decisions and to provide certainty to local agencies and property owners alike. Honig v. San Francisco Planning Dept., (“Honig”) (2005) 127 Cal. App. 4th 520, 528. The intent is for permit decisions to take effect quickly and give property owners the confidence to proceed with approved projects. Wagner v. City of S. Pasadena, (2000) 78 Cal. App. 4th 943, 948–49.

To avoid keeping projects in “a state of perpetual limbo,” a challenger must file and serve the action within 90 days of the challenged decision. 1305 Ingraham, LLC v. City of Los Angeles, (“1305 Ingraham”) (2019) 32 Cal. App. 5th 1253, 1262-63. The term “legislative body” is interpreted broadly to include decisions by City zoning administrator, director, and/or boards of appeals. Id. at 1263-65. After expiration of the statute of limitations, “all persons are barred from any further action or proceeding”, and there are no exceptions. Travis v. County of Santa Cruz, (2004) 33 Cal. 4th 757, 768. A demurrer is properly sustained on statute of limitations grounds when the pleading discloses on its face, or on facts subject to judicial notice, that it is barred by the applicable statute of limitations. Honig, supra, 127 Cal.App.4^th at 524.

Even if a petition is timely filed, the petition must be dismissed if it is not timely served. Wagner v. City of South Pasadena, supra, 78 Cal. App. 4th at 948-51. The service deadline is important to achieving the statutory objectives because “[r]equiring an aggrieved citizen to file an action within 90 days but permitting him or her to withhold service for months or even years would effectively suspend the effective date of local land use and development decisions and leave such matters at the mercy of the complainant.” Honig, supra, 127 Cal. App. 4th at 526 (citation omitted).

Additionally, CCP section 389(a) provides for the compulsory joinder of necessary parties and CCP section 389(b) provides for the dismissal of the action if a necessary party is also indispensable and cannot be joined.[3] Failure to join an indispensable party is not a jurisdictional defect in the fundamental sense of jurisdiction. The court has the power to render a decision as to the parties before it in the absence of an indispensable party. It is for reasons of equity and convenience only that a court will not proceed with a case where it determines that an indispensable party is absent and cannot be joined. Save Our Bay, Inc. v. San Diego Unified Port District, (1996) 42 Cal.App.4th 686, 693. The controlling test for whether a necessary party is also indispensable under CCP section 389(b) is whether “the plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined. Id. at 692.

The City and Real Party Whitley argue that Whitley owns the Property and the relief sought in this action would impair its ability to protect its interests. They contend that Whitley is an indispensable party that Petitioner United Neighborhoods was required to serve within the 90-day limitations period. The Director of Planning issued a Determination Letter approving the Project’s Site Plan Review application and adopting a Class 32 exemption from CEQA on December 23, 2023. Pet., ¶26. Petitioner appealed and the APC issued its decision granting the appeal in part and denying it in part on April 9, 2024. Pet., ¶27. The APC specified that its decision is not further appealable and shall become final upon the mailing of this determination letter. Pet., ¶¶ 29, 30; RJN Ex. B.

Thus, to be timely, any challenge to the APC’s decision must have been filed and served on all required parties by July 23, 2024. Petitioner United Neighborhoods filed the Petition containing the first and third causes of action -- which section 65009(c)(1) governs for limitation purposes -- on July 8, 2024. Petitioner then timely served the City on July 8, 2024. Petitioner did not serve Real Party Whitley until August 19, 2024, 117 days after the APC’s decision was final. RJN Ex. D. Thus, the Petition is time-barred if Whitley was required to be served within the time limits of section 65009(c)(1)(E).

The City and Real Party rely on Templeton Action Committee v. Cnty. of San Luis Obispo, (“Templeton”) (2014) 228 Cal. App. 4th 427, 431-32. In Templeton, the governing statute, section 66499.37, required that an action or proceeding to set aside the decision of an appeal board or legislative body concerning a subdivision shall not be maintained unless the action or proceeding is commenced, and service of summons effected, within 90 days after the date of decision. Id. at 429. The petitioner timely filed a petition and served the respondent agency, but failed to timely join a developer whose rights could have been affected by the action. Id. The court held that the developer was an indispensable party and ordered dismissal of the case for failure to serve an indispensable party within the 90-day statutory period. Id. See also, Sierra Club, Inc. v. Cal. Coastal Comm’n, (“Sierra Club”) (1979) 95 Cal. App. 3d 495, 499-505; County of Imperial v. Sup. Ct., (“County of Imperial”) (2007) 152 Cal. App. 4th 13, 40. Dem. at 15-16.

Petitioner United Neighborhoods does not dispute that Real Party Whitley is an indispensable party. Nor can it. See Beresford Neighborhood Assn. v. City of San Mateo, (“Beresford”) (1989) 207 Cal.App.3d 1180, 1188 (where plaintiff seeks to set aside developer’s permit, developer is indispensable party). Petitioner argues that the City and Real Party gloss over the language in section 65009(c)(1), which expressly provides for dismissal “unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision…” (emphasis added). The statute refers to service on the legislative body only. Nowhere in the statute did the Legislature require service on a real party-in-interest in the 90-day period. The Legislature could have easily written the statute to include service on real parties and elected not to do so. Opp. at 7-8.

Petitioner notes that a court first looks to the plain language of the statute in interpreting at statute. When the language is clear and unambiguous, there is no need for further construction. Wells Fargo Bank v. Goldzband, (1997) 53 Cal.App.4th 596, 614. To interpret section 65009(c)(1) any differently would be to ignore its express language and lead to unintended and perverse consequences. Any developer who obtained a permit that would result in illegal development could get away scot-free so long as the developer evaded service of process for 90 days. The Legislature did not create such an easy loophole. Opp. at 6, 10.

Petitioner argues that Templeton, supra, 228 Cal.App.4th at 431-32, is inapposite because the governing statute in that case was Subdivision Map Act section 66499.37, not Planning and Land Use Code section 65009(c)(1). Unlike section 65009(c)(1), section 66499.37 contains no express limitation for service on the “legislative body.” Rather, it states that an action “shall not be maintained by any person unless the action or proceeding is commenced and service of summons effected within 90 days after the date of the decision.” Thus, section 66499.37 requires “service of summons to be effected” whereas section 65009(c)(1) requires service only on the legislative body. Opp. at 8.

Additionally, both Sierra Club, supra, 95 Cal.App.3d at 495 (developer was indispensable party to permit challenge under the Coastal Act), and County of Imperial, supra, 152 Cal.App.4th at 13 (water districts were indispensable parties to county’s challenge to state water board’s approval of water transfer agreement), are distinguishable because the petitioner sought to amend the pleading to add the indispensable party after the statute of limitations had run and neither case involved a legal challenge governed by section 65009(c)(1). Opp. at 9.

The City and Real Party also cite Salmon Protection & Watershed Network v. County of Marin, (“SPAWN”) (2012) 205 Cal.App.4th 195, 208. In SPAWN, at issue was intervenor landowners’ argument that the county and challenging petitioner could not enter into a statute of limitations tolling agreement without them for a CEQA challenge to the adoption of an amendment to the county’s general plan. Id. at 199-200. Therefore, the CEQA challenge must be dismissed. Id. at 200. The court stated that the intervenors were only incidentally affected by the general plan amendment, and the tolling agreement was effective to prevent running of the CEQA statute of limitations. Id. at 206. The intervenors argued that the action nonetheless was time-barred by section 65009(c)(1). Id. The court stated that it need not decide whether section 65009 could apply to an action based solely on CEQA because there was no reason the directly affected parties could not agree to toll that statute as well. Id. at 208. Section 65009 applies to suits challenging adoption of general plans and is intended to provide certainty to property owners as well as local governments. Id. Nonetheless, the general public (property owners) are only an incidental beneficiary of section 65009(c)(1) and the local government can waive or extend the limitation period without them. Id. “The 90-day time limit in Government Code section 65009, subdivision (c)(1)(A) requires service of a complaint only on ’the legislative body’ and the public body is the only party necessary to the suit challenging the adoption of the plan.” Id.

Petitioner United Neighborhoods argues that SPAWN undercuts the demurrer’s argument. There is no tolling agreement at issue here and SPAWN’s only mention on the service requirements of section 65009(c)(1) supports its position. Opp. at 9.

Petitioner makes a substantial argument about section 65009(c)(1)’s plain meaning. It expressly provides for dismissal unless service is made on the legislative body within 90 days after the legislative body’s decision and does not make any reference to real parties. This is distinct from section 66499.37, which concerns subdivisions and refers to service of summons within 90 days after the date of decision without reference to service on the legislative body. In interpreting a statute, the court first looks to the language of the statute, attempting to give effect to the usual, ordinary import of the language and seeking to avoid making any language mere surplusage. Brown v. Kelly Broadcasting Co., (1989) 48 Cal 3d 711, 724. “’The statute's words generally provide the most reliable indicator of legislative intent; if they are clear and unambiguous, ‘[t]here is no need for judicial construction and a court may not indulge in it. [Citation.]’” MCI Communications Services, Inc. v. California Dept. of Tax & Fee Administration, (“MCI”) (2018) 28 Cal. App. 5th 635, 643.

Petitioner’s argument ignores the fact that there must be some statute of limitations for naming and serving a real party developer that is indispensable to a permit challenge. The only viable limitations period besides the 90-day period in section 65009(c)(1) is the three-year period of CCP section 338(a) for action on liability created by statute. Similarly, CCP sections 583.210(a) and 583.250 are the only alternate service provisions and they only require that summons and complaint be served within three years after the action is commenced or be subject to mandatory dismissal.

Yet, a three-year limitation period to name and serve an indispensable real party would be directly contrary to the purpose of section 65009. The short limitations period in section 65009(c)(1) was adopted by the Legislature to (i) “reduce delays and restraints upon expeditiously completing housing projects…” (ii) avoid a “chilling effect on the confidence with which property owners and local governments can proceed with projects…” and, (iii) provide certainty for property owners and local governments.” §65009(a) (emphases added). “The clear legislative intent of this statute is to establish a short limitations period in order to give governmental zoning decisions certainty, permitting them to take effect quickly and giving property owners the necessary confidence to proceed with approved projects.” Ching v. San Francisco Bd. of Permit Appeals, (1988) 60 Cal.App.4th 888, 893 (emphasis added).

Thus, the express intent of section 65009 is to bring cases to a speedy resolution for local governments and property owners alike. The only interpretation of section 65009(c)(1) that effectuates this purpose is to require service on indispensable real parties in addition to “service…on the legislative body”. This interpretation does not rewrite or do violence to the plain language of section 65009(c)(1) because real parties are not respondents; they are interested parties who must be added as indispensable under CCP section 389. When they are added, real parties stand in the shoes of a respondent. It makes sense, therefore, that section 65009(c)(1) would not address them directly and that its 90-day period for commencement and service should apply to them as a matter of consequence.

SPAWN helps to explain why section 65009(c)(1) refers only to service on the legislative body. Some claims subject to section 65009(c)(1), including the general plan amendment at issue in SPAWN, will not have indispensable parties. For those claims, there is no need for service on any party other than the legislative body. Hence, the specific language of section 65009(c)(1) requires only service on the legislative body. Where there is an indispensable real party, however, section 65009(c)(1) requires service on both the legislative body and indispensable party within the 90-day period.

This interpretation is consistent with Beresford, supra, 207 Cal.App.3d at 1180, which dismissed a petitioner’s zoning claim under the 120-day limitations period in section 65009(c)(2) because the petitioner failed to name a real party-in-interest developer who was indispensable to the action. Id. at 1188. The developer could not be joined because the limitations period had run, and the action had to be dismissed. Id. at 119-90. See also Sierra Club, supra, 95 Cal.App.3d at 501 (same).

Real Party Whitley is the Property owner and an indispensable party. Under Bersesford and Sierra Club, it must be timely named and served. Petitioner United Neighborhoods distinguishes Sierra Club, and therefore Beresford, on the basis that the Petition does name Whitley as Real Party; Whitley simply was not served within the 90-day period. Opp. at 9. But partial compliance with section 65009(c)(1) by naming Real Party in the Petition is inadequate. It must also be timely served, and Petitioner served Whitley too late.[4]

Petitioner notes that “[a]nother ‘fundamental rule[] of statutory construction is that a law should not be applied in a manner producing absurd results…” San Jose Unified School Dist. v. Santa Clara County Office of Education, (2017) 7 Cal.App.5th 967, 982. A requirement that a petitioner must file and serve the real parties-in-interest within the 90-day abbreviated time limit of section 65009 puts all petitioners at the real risk of their lawsuits being dismissed from the outset by a real party who evades service. While a legislative body has a publicly accessible agent for service of process, a real party, particularly a private individual, can be exceedingly difficult to locate and serve. Taken to its extreme, even a petitioner who files their lawsuit one day after an agency’s final project approval may be deprived of their right to redress by a difficult-to-serve real party. Opp. at 10.[5]

Petitioner’s service efforts in this case are illustrative of this difficulty. Real Parties were aware of this lawsuit and actively avoided service. On July 9, 2024, Petitioner’s counsel contacted counsel for both Respondent and Real Parties, attached a copy of the filed Petition, and asked whether each would accept service electronically. Venskus Decl., ¶2, Ex. A. Real Parties’ counsel ignored the request. Ibid. Petitioner’s counsel reached out again, and Real Parties’ counsel only responded weeks later on July 24—the day of the expiration of the 90-day period to serve the legislative body—stating that he was unable to accept service on behalf of his clients. Venskus Decl., ¶3, Ex. B. Petitioner’s counsel immediately commenced formal efforts to personally serve Real Parties. Venskus Decl., ¶¶ 3-5, Ex. B. Petitioner’s counsel sent a notice and acknowledgment to each Real Party. Venskus Decl. ¶4, Ex. C. These also were ignored. Petitioner then personally served each Real Party in mid-August. It took three separate attempts over the course of three days to serve individual Real Party Moshfegh. Venskus Decl., ¶5. Opp. at 11.

The City and Real Party replies that Petitioner’s concern is unwarranted given that it had various methods of service available, including service on Real Party Whitley’s agent for service of process or substituted service upon the exercise of due diligence. Petitioner should not be allowed to wait until the 89^th day to file and then complain about missing the service deadline. Reply at 7.

The court agrees, also noting that Petitioner’s action would not be untimely if only Real Party Whitley was served because Moshfegh would not then be indispensable.

Finally, Petitioner argues that the court could have ordered service on Real Parties at the initial trial setting conference and Real Party Whitley waived any claim of tardy service by making a general appearance at the September 17, 2024 trial setting conference. Opp. at 11-12. An indispensable property owner should not have to rely on court-ordered service as the only means of ensuring inclusion in the lawsuit before mandatory dismissal is required after three years of non-service under CCP sections 583.210(a) and 583.250. The City and Real Party also correctly reply that a general appearance has no bearing on passage of the statute of limitations. Reply at 6-7. The pertinent section 65009(c)(1) requires naming and service within 90 days.

Real Party Whitley is an indispensable party and Petitioner was required to serve it within the 90-day period of section 65009(c)(1). The demurrer to the first and third causes of action is sustained without leave to amend.

[1] The City and Real Party Whitley request judicial notice of (1) the Petition (RJN Ex. A); (2) the APC’s Letter of Determination, mailing date April 24, 2024 (RJN Ex. B); (3) proof of service of summons on Real Party Moshfegh, filed on August 19, 2024 (RJN, Ex. C); (4) proof of service of summons and Petition on Real Party Whitley, filed on August 26, 2024 (RJN Ex. D). There is no need to judicially notice matters in the court file (Exs. A, C-D). Exhibit B is judicially noticed. Evid. Code §452(c).

[2] Real Party Moshfegh was served on August 18, 2024 but has not appeared in this action.

[3] CCP section 389(b) provides: “If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.”

[4] The matter would be different for a real party that is not indispensable. Dismissal of an action would not be required where a necessary but not indispensable real party has not been served.

[5] Petitioner argues that a petitioner’s only recourse would be service by publication, which requires a showing that the party to be served “cannot with reasonable diligence be served in another manner.” CCP §415.50. Even once service by publication is authorized, it is not effective until the notice has been published from one to four weeks. Govt. Code §6064. Opp. at 10.