Judge Mitchell L. Beckloff, Case 22STCP01433 2023-04-12 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP01433, Date: 2023-04-12 Tentative Ruling

SANTA CLARITA ORGANIZATION FOR PLANNING THE ENVIRONMENT v. COUNTY OF LOS ANGELES

Petitioners, Southern California Organization for Planning the Environment and Advocates for the Environment, filed their verified petition for writ of mandate seeking to set aside approvals by Respondent, the County of Los Angeles, for the real property development project proposed by Real Party In Interest, Williams Homes, Inc.

Real Party’s request for judicial notice (RJN) of Exhibits A through D is granted. (Evid. Code,

Real Party is the developer of the Canyon View Estates (the Project). The Project is sited on 94.38 acres of open space including “a large swath of parks and open space.” (Pet., ¶ 47.) The Project will “subdivide the [] site into 37 single-family lots, six public-facility lots and two open-space lots.” (Pet., ¶ 50.)

The Project requires the following entitlements: (1) a vesting tentative tract map; (2) a conditional use permit; (3) an oak tree permit; and (4) an environmental assessment. The County has already approved the necessary entitlements. (Pet., ¶ 53.)

Petitioners allege the Project will have substantial negative environmental impacts (greenhouse gas emissions, wildfire risk and biological resources). (Pet., ¶ 2.)

Despite the substantial negative environmental impacts, the County’s Department of Regional Planning released several versions of a mitigated negative declaration (MND) for the Project. (Pet., ¶ 55.) Ultimately, on March 15, 2022, Respondent’s Board of Supervisors adopted a final MND—after considering various appeals related to the Project—and approved the Project. (Pet., ¶¶ 54-64.)

Petitioners have alleged two causes of action. First, they allege Respondent’s Project approvals violated the California Environmental Quality Act (CEQA), Public Resources section 21000, et seq. Second, they claim Respondent’s approval violated the planning and zoning law at Government Code sections 65008 through 66035.

“[A] motion for judgment on the pleadings is the functional equivalent of a general

demurrer. . . . Indeed, the only significant difference between the two motions is in their timing.” (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691.) 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. (Code Civil Proc., § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State (2008) 161 Cal.App.4th 242, 247.)

A demurrer may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at 318.) Indeed, where the facts are not in dispute and the nature of the plaintiff's claim is clear, but no liability exists under substantive law and no amendment would change the result, the sustaining of a demurrer without leave to amend is proper. (City of Ceres v. City of Modesto (1969) 274 Cal. App. 2d 545, 554.) The burden is on the plaintiff to show how the complaint might be amended so as to cure the defect. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.)

Real Party argues Petitioners’ action is barred by the 90-day limitation period set forth in Government Code section 66499.37 (Section 66499.37). More specifically, Real Party asserts Petitioners failed to comply with the strict requirements for service of a summons as required by Section 66499.37.

“[a]ny action or proceeding to attack, review, set aside, void, or annul the decision . . . legislative body concerning a subdivision . . . or to determine the reasonableness, legality, or validity of any condition attached thereto . . . 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.” (Emphasis added.)

There is no dispute Petitioners did not serve Real Party (or the County) with a summons in this proceeding. There is also no dispute the 90-day period for service of a summons ran on June 13, 2022. Finally, the parties agree Real Party is an indispensable party to these proceedings and cannot be joined if Section 66499.37 applies here.

Petitioners argue Section 66499.37 is inapplicable to the Project for two reasons. First, Petitioners contend the statute does not apply because the claims are unrelated to a subdivision—that is, the challenged decision is not “concerning a subdivision” as required by the statute. Second, Petitioners report a summons is not required to issue in this proceeding seeking mandate relief.

Petitioners explain “claims brought under another statute, such as CEQA, ‘concern a subdivision’ only if they could have been brought under the [Subdivision Map Act (SMA)], or overlap with claims that were actually brought under the SMA.” (Opposition 8:4-6.) Petitioners argue none of their CEQA based claims could have been brought under the SMA—claims

“the [Project] MND inadequately analyzed various environmental impacts, and that mitigation measures discussed in the MND for impacts on the mountain lion and rare plants are inadequate and improperly deferred.” (Opposition 8:27-29.) As such claims do not allege a violation of the SMA, according to Petitioner, the claims could not have been brought under the SMA and do not fall within Section 66499.37.

Legacy Group v. City of Wasco (2003) 106 Cal.App.4th 1305 (Legacy Group) is illustrative. In Legacy Group, the trial court dismissed a developer’s breach of contract action against a city based on Section 66499.37. (Id. at 1309.) The Court of Appeal reversed finding “a cause of action for breach of a development agreement is not subject to the 90-day statute of limitations contained in section 66499.37 unless the act constituting the breach could have been challenged under the Subdivision Map Act.” (Id. at 1307.) The Court of Appeal explained a cause of action for breach of contract does not fall within Section 66499.37 “unless the gravamen of the claim concerns acts that could have been challenged as a violation of the SMA.” (Id. at 1313.)

Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, 750 makes clear “the 90-day requirement applies to all types of actions seeking review of a legislative or advisory body’s subdivision-related decisions under the SMA, regardless of the legal basis.” The 90-day requirement applies to “any action or proceeding” and “any challenges to a subdivision-related decision, regardless of the ‘legal stratagems” employed, whether the challenge is ‘procedural or substantive,’ and whether it ‘directly or indirectly’ attacks the legislative or advisory body’s ‘action or inaction.’ ” (Ibid. [quoting Presenting Jamul v. Board of Supervisors (1991) 231 Cal.App.3d 665, 671-672.) To reiterate, the 90-day requirement “applies to any type of action seeking review of a legislative or advisory body’s subdivision-related decision under the SMA.” (Id. at 751 [citing Hensler v. City of Glendale (1994) 8 Cal.4th 1, 32.)

The County’s Project approvals included those findings necessary to approve a Vesting Tract Map (VTM). (RJN, Ex. D, p. 9.) The approved project is a subdivision of “37 single-family lots, six public-facility lots and two open-space lots.” (Pet., ¶ 50.) Approval of the VTM necessarily required a finding of CEQA compliance. (RJN, Ex. D, p. 10, 12.) The County also imposed a mitigation monitoring and reporting program as a condition of approval of the VTM. (RJN, Ex. D, p. 10-11.) Thus, even though styled as a CEQA claim, the proceeding is an attempt to set aside, void and/or annul the County’s decision concerning a subdivision. In fact, Petitioners have requested the County be ordered to set aside and vacate its approval of the VTM—Petitioners’ CEQA claim is intertwined with the County’s decisions concerning a subdivision. Petitioners specifically challenge the County’s CEQA compliance conclusion in the context of the approval of a subdivision.

As concisely noted by Real Party, “Petitioners ignore that CEQA claims cannot exist independently, the SMA requires CEQA review, and the County’s [VTM] approval adopted mitigation measures pursuant to CEQA and a mitigation monitoring and report program to ensure the VTM would not cause environmental impacts.” (Reply 2:12-16.) The County’s CEQA consideration necessarily overlapped with its approval of the VTM and subdivision. (Pet., ¶¶ 53, 64; see also County’s RJN Ex. D.) The County could not approve the VTM as required for the Project without CEQA compliance. Challenging the County’s CEQA analysis is therefore an attack on the County’s decision concerning a subdivision.

The petition’s second cause of action alleges various violations to the County’s planning and zoning law. (Pet. ¶¶ 122-132.) While it is not entirely clear, Petitioners seemingly recognize Section 66499.37 bars their second cause of action[1] as they advise: “Petitioners could amend the Petition to remove the second cause of action, which contains all the SMA-based subclaims. Since the second cause of action was not briefed in the Opening Brief, deleting the second cause of action would not require re-drafting the Opening Brief.” (Opposition 13:7-10.)

Accordingly, Section 66499.37 applies to Petitioners’ claims brought under CEQA as well as those asserted under the planning and zoning law. The gravamen of Petitioners’ claim concerns acts that could have been challenged under the SMA. (Legacy Group, supra, 106 Cal.App.4hh at 1313.)

Petitioners contend despite Section 6499.37’s apparent application here, this proceeding does not require a summons. Accordingly, they contend they did not fail to comply with Section 6499.37’s 90-day requirement. In fact, Petitioners advise they elected not to have the court issue a summons. (Opposition 6:11-12.)

Petitioners explain they initiated this proceeding by filing a petition instead of a complaint and nothing required them to serve a summons in the context of a petition. Petitioners argue they are the masters of their case and elected to proceed by way of petition. Relying on secondary authority, Petitioners report “ ‘No summons issues or is served in an administrative mandamus proceeding.’ ” (Opposition 10:26 [quoting California Administrative Mandamus (3d ed. Cont. Ed. Bar) § 10.49].)

Petitioners’ position was rejected by Friends of Riverside’s Hills v. City of Riverside, supra, 168 Cal.App.4th at 753-754. [“Friends was required to comply with the SMA's 90–day service of summons requirement found at Government Code section 66499.37, even though it had already personally served a copy of the petition in compliance with CEQA at Public Resources Code section 21167.6, subdivision (a).”]) Like the petitioner in Friends of Riverside’s Hills v. City of Riverside, Petitioners “could easily have complied with the SMA service of summons requirement without running afoul of CEQA procedures; [they] simply failed to do so.” (Id. at 753.)[2] Accordingly, Petitioners “were required to comply with the SMA’s 90-day service of a summons requirement found at [Section 66499.37], even though [they] had already personally served a copy of the petition in compliance with CEQA at Public Resources Code section 21167.6, subdivision (a).” (Ibid. at 754.)

Petitioners also suggest Real Party cannot be heard to complain about Petitioners failing to comply with Section 66499.37 because it made a general appearance in this proceeding. Petitioners cite several authorities, including Kriebel v. City of San Diego (1980) 112 Cal.App.3d 693, 699, for the rule a “general appearance waives irregularities in the service of process.” (Opposition 11:26-12:3. [“Here, Real Party waived objections relating to process or service of process when it made a general appearance in the case by signing a stipulation extending the deadline for certification of the administrative record; the stipulation was filed on June 22, 2022. Signing the stipulation constituted a general appearance.”])

Sprague v. County of San Diego (2003) 106 Cal.App.4th 119 (Sprague) directly addresses the issue. While Petitioners label the case “a radical departure from the general rule,” its specificity makes the case controlling authority in this trial court.[3] In Sprague, the petitioners “appeal[ed] from the judgment of dismissal, contending (1) the court erroneously ruled that the service requirement in section 66499.37 is a statute of limitations; (2) the County made a general appearance when it filed its original answer to the complaint, and thus waived any defect in

the service of summons; (3) having generally appeared instead of taking issue with jurisdiction in this matter, the County is estopped to assert failure to timely serve the summons as a defense . . . .” (Sprague, supra, 106 Cal.App.4th at 123.) The court found a general appearance did not operate to waive the requirements of Section 66499.37 where the general appearance occurred after the applicable 90-day limitations period provided in Section 66499.37. (Sprague, supra, 106 Cal.App.4th at 131.)[4] There is no dispute Real Party did not appear until after June 22, 2022—more than 90 days after the County’s approval of the Project.

Finally, Petitioner argues Real Party’s motion is untimely under Code of Civil Procedure section 438, subdivision (e) which provides:

“No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.”

The court initially set trial in this matter for today’s date—April 12, 2023. Real Party filed its motion on March 16, 2023. Thus, Real Party filed the motion within 30 days of the date the court initially set for trial on the petition. Therefore, according to Petitioner, the court may not hear the motion based on Code of Civil Procedure section 438, subdivision (e).

While the motion appears to violate the clear language of Code of Civil Procedure section 438, subdivision (e), the court nonetheless has the “broadest of discretion” to hear it. (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1054.) That is, Code of Civil Procedure section 438, subdivision (e) “authorizes the trial court to permit late filings of such motions and does not specify any grounds which might serve to limit its power to do so.” (Sutherland v. City of Fort Bragg (2000) 86 Cal.App.4th 13, 25, n. 4; see Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1063 [section 438, subdivision (e) permits late filings of motions for judgment on the pleadings and does not impose a “good cause” requirement].)

Accordingly, despite Real Party’s failure to comply with the time deadlines of Code of Civil Procedure section 438, subdivision (e), the court exercises its discretion to hear the motion.

Based on the foregoing, the motion is granted. It appears any amendment would be futile based on Petitioners’ failure to serve a summons pursuant to the 90-day requirement of Section 66499.37.

[1] For example, the petition alleges the “Project is inconsistent with County Code § 21.24.020.” (Pet., ¶ 125.) Los Angeles County Code section 21.24.020 addresses subdivisions within the County and is authorized by the SMA. (RJN Exs. B [LACC § 21.04.020], C [LACC § 21.40.160.)

[2] Petitioners cite Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, 834 n. 2 to support its position: “the statutes do not appear to require that a summons be served in mandamus proceedings.” The case, however, did not address Section 66499.37 and whether CEQA’s service provisions could be harmonized with Section 66499.37.

[3] Real Party notes as much. (Reply 9:13 [“binding precedent of Sprague”].)

[4] Real Party effectively distinguishes cases cited by Petitioner: Kriebel v. City of San Diego, supra, 112 Cal.App.3d at 693 and Sierra Club v. Napa County Board of Supervisors (2012) 205 Cal.App.4th 162. (Reply 9:3-16.)