Judge Mitchell L. Beckloff, Case Number: 22STCV24417, Date: 2023-08-25 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCV24417, Date: 2023-08-25 Tentative Ruling

Respondent, the City of Los Angeles, demurs to the fourth cause of action for writ of mandate in the second amended complaint and petition for writ of mandate (SAP) filed by Petitioner, Horace Heidt, Jr.[1]

Respondent’s Request for Judicial Notice (RJN) of Exhibits 1 and 2 is granted.

“Plaintiff is the owner of real property consisting of five lots located at 14241 – 14261 West Magnolia Boulevard in Sherman Oaks, CA, 91423, property that falls under the land use jurisdiction of the City of Los Angeles (the ‘Property’). Beginning in or around July 2015, Plaintiff submitted an application to the City to develop the Property into a 29-unit apartment building (the ‘Development Application’). In 2016, at the urging of the City, Plaintiff amended the Development Application to reduce the size of the project to a 21-unit apartment building. The City of Los Angeles’ Planning Department assigned the Development Application Case No. APCSV-2015-2554-VZC. Among the approvals sought by Plaintiff was a zone change, which required discretionary approval from the City.” (SAP ¶ 6.)

“In or around April 2019, in connection with the Development Application Mr. Heidt had submitted which sought the City’s approval for the 21-unit apartment building, the City’s Planning Department required Mr. Heidt to pay a ‘park mitigation fee’ of $108,234.00 to the City’s Department of Parks and Recreation (the ‘Park Mitigation Fee’). The Park Mitigation Fee was imposed by the City pursuant to the authority of the Mitigation Fee Act, codified at California Government Code Section 66000, et seq., and the purpose of the fee was to defray the additional cost of public facilities (in this case, the need for parks and recreation space) attributable to the development project. Mr. Heidt paid the Park Mitigation Fee on April 4, 2019. The City collected the Park Mitigation Fee before any final inspection of the development project had occurred, and before any certificate of occupancy for any of the proposed housing units had been issued. Indeed, the City collected the fee before any construction of the 21-unit apartment building ever took place, and before Mr. Heidt ever applied for a building permit. Upon information and belief, the fee charged by the City was the proper fee associated with the development of a 21-unit apartment building. In other words, if Mr. Heidt had ultimately built the 21-unit apartment building as planned, he does not contend the $108,234.00 he paid for the Park Mitigation Fee would have exceeded the reasonable cost of providing the additional public park facilities necessitated by the construction of a 21-unit apartment building.” (SAP ¶ 7.)

“In or around November 2019, Mr. Heidt submitted an application to the City to modify the proposed conditions of approval for the Development Application (the ‘Q Clarification Request’) . . . .” (SAP ¶ 8.)[2] “In March 2021, a full 15 months after Mr. Heidt first submitted the Q Clarification Request, the City’s Planning Commission denied Mr. Heidt’s Q Clarification Request.” (SAP ¶ 9.)

“In or around May 2021, Mr. Heidt withdrew the Development Application entirely, because he believed that without the Q Modification he sought, the project was no longer economically feasible. Instead, Mr. Heidt subsequently applied for and received building permits to construct one single-family residence per lot on the Property (the ‘New Development’). Upon information and belief, the New Development (consisting of five single family residences) would either not be subject to a Park Mitigation Fee at all, or it would be subject to a much smaller Park Mitigation Fee than the $108,234.00 the City charged Mr. Heidt for the 21-unit apartment project.” (SAP ¶ 10.)

“On or around August 4, 2021, pursuant to the City’s internal process for obtaining refunds of park mitigation fees, Mr. Heidt submitted a request to the City for the refund of the $108,234.00 Park Mitigation Fee.” (SAP ¶ 11.) “On September 28, 2021, the City notified Mr. Heidt by written correspondence that his request for a refund of the Park Mitigation Fee had been denied.” (SAP ¶ 12.) “On February 23, 2022, Mr. Heidt submitted a claim with the City Clerk that satisfied the requirements of Section 350 of the City’s Municipal Code. The City denoted Mr. Heidt’s claim as Claim No. C22-04879 (the ‘Claim’).” (SAP ¶ 13.) “On March 31, 2022, the City notified Mr. Heidt by written correspondence to his legal counsel that it had denied the Claim.” (SAP ¶ 14.)

“The City failed to collect the Park Mitigation Fee in the manner required by law – on the date of the final inspection or the date the certificate of occupancy is issued, whichever occurs first. The City’s premature collection of the Park Mitigation Fee did not cause damage to Mr. Heidt until, after he had withdrawn the Development Application, the City later refused to refund the Park Mitigation Fee, which had been collected (prematurely) for the purpose of defraying the public facility costs associated with a development project that would no longer be constructed.” (SAP ¶ 35.)

Petitioner seeks a writ directing Respondent to refund the Park Mitigation Fee to Petitioner. (SAP Prayer ¶ 4.)

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 of California (2008) 161 Cal.App.4th 242, 247.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The allegations in the petition must be liberally construed in favor of a petitioner on demurrer. (See Mobil Oil Corp. v Exxon Corp. (1986) 177 Cal.App.3d 942, 947.)

“A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred.’ [Citations.] It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)

Respondent contends Petitioner has not stated a cause of action for a writ of mandate for three reasons. First, Petitioner did not timely comply with the protest procedure of Government Code[3] section 66020 and did not file this proceeding within the 180-day statute of limitations in section 66020, subdivision (d)(2). Second, Petitioner waived any right to a refund of the Park Mitigation Fee because he failed to apply for a refund within one year of payment, as required by Los Angeles Municipal Code (LAMC) section 12.33, subdivision (I). Finally, Petitioner has not alleged any ministerial duty on Respondent to refund the Park Mitigation Fee.

Petitioner alleges the “Park Mitigation Fee was imposed by the City pursuant to the authority of the Mitigation Fee Act, codified at California Government Code Section 66000, et seq.” (SAP ¶ 7.) Petitioner further alleges “the City prematurely required Mr. Heidt to pay the Park Mitigation Fee on April 4, 2019.” (SAP ¶ 29.) Petitioner contends the fee was not yet due on April 4, 2019 because “at that time, no final inspection of the development project had occurred, and no certificate of occupancy had been issued for the 21-unit apartment building.” (SAP ¶ 29.) Petitioner relies on section 66007, subdivision (a) which provides “any local agency that imposes any fees or charges on a residential development for the construction of public improvements or facilities shall not require the payment of those fees or charges, notwithstanding any other provision of law, until the date of the final inspection, or the date the certificate of occupancy is issued, whichever occurs first.” (SAP ¶ 29.)

Section 66020 provides the exclusive method for challenging fees imposed pursuant to the Mitigation Fee Act. (See California Ranch Homes Development Co. v. San Jacinto Unified School District (1993) 17 Cal.App.4th 573, 577 [California Ranch Homes].) Pursuant to section 66020, subdivision (a), “[a]ny party may protest the imposition of any fees, dedications, reservations, or other exactions imposed on a development project, as defined in Section 66000, by a local agency” by complying with the statutory protest procedure. “Any party who files a protest pursuant to subdivision (a) may file an action to attack, review, set aside, void, or annul the imposition of the fees, dedications, reservations, or other exactions imposed on a development project by a local agency within 180 days after the delivery of the notice” required by section 66020, subdivision (d)(1).[4] (§ 66020, subdivision (d)(2).)

“The timely filing of a written protest is a mandatory prerequisite to any later action to challenge the imposition of the fees, and any such action must be filed within 180 days after the imposition of the fees.” (California Ranch Homes, supra, 17 Cal.App.4th at 577.) “Thereafter, notwithstanding any other law to the contrary, all persons are barred from any action or proceeding or any defense of invalidity or unreasonableness of the imposition.”

Under section 66020, subdivision (a), a party may protest the fees imposed by the Mitigation Fee Act by: “(1) Tendering any required payment in full or providing satisfactory evidence of arrangements to pay the fee when due or ensure performance of the conditions necessary to meet the requirements of the imposition” and “(2) Serving written notice on the governing body of the entity” of a statement of payment under protest and “informing the governing body of the factual elements of the dispute and the legal theory forming the basis for the protest.”

“A protest filed pursuant to subdivision (a) shall be filed at the time of approval or conditional approval of the development or within 90 days after the date of the imposition of the fees, dedications, reservations, or other exactions to be imposed on a development project.”

(§ 66020, subdivision (d)(1).) “Approval or conditional approval of a development occurs, for the purposes of this section, when the tentative map, tentative parcel map, or parcel map is approved or conditionally approved or when the parcel map is recorded if a tentative map or tentative parcel map is not required.” (§ 66020, subd. (g).) “The imposition of fees, dedications, reservations, or other exactions occurs, for the purposes of this section, when they are imposed or levied on a specific development.” (§ 66020, subd. (h).)

Respondent contends Petitioner’s development application was approved within the meaning of section 66020 on July 10, 2018 when the City Council passed Ordinance 185570, which changed the zoning for the subject property from [Q]R1-1 to (T)(Q)RD1.5-1. (Memo 7:8-25; RJN Exh. 1-2.) Petitioner has not disputed Respondent’s position approval of the development occurred on July 10, 2018. (Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].) Further, Petitioner admits he paid the Park Mitigation Fee on April 4, 2019. (SAC ¶ 7.) Since the fee could not be paid before it was “imposed or levied,” the SAP therefore reveals the fee was “imposed” by April 4, 2019, at the latest. Accordingly, Petitioner had 90 days after April 4, 2019 or until July 3, 2019 to file his protest.

Petitioner does not allege in the SAP he filed a protest, pursuant to section 66020, subdivision (a), at the time of the project’s approval or by July 3, 2019. As noted earlier, “[t]he timely filing of a written protest is a mandatory prerequisite to any later action to challenge the imposition of the fees.” (California Ranch Homes, supra, 17 Cal.App.4th at 577; see § 66020, subd. (d)(2).) Accordingly, as pleaded, Petitioner’s cause of action for a writ of mandate is barred because he failed to comply with the statutorily mandated protest procedure of section 66020—the “exclusive method” for challenging fees imposed pursuant to the Mitigation Fee Act. (See California Ranch Homes, supra, 17 Cal.App.4th at 577-579.)

Only a party who has filed a protest pursuant to section 66020, subdivision (a) may file a legal action to challenge the imposition of the fee. (§ 66020, subd. (d)(2).) Moreover, even if Petitioner could allege filing a timely protest, he was required to “file an action to attack, review, set aside, void, or annul the imposition of the fees . . . within 180 days after the delivery of the notice” required by section 66020, subdivision (d)(1). (Ibid.)

Petitioner does not allege in the SAP Respondent failed to provide the notice required by section 66020, subdivision (d)(1) when it approved the project or imposed the Park Mitigation Fee on April 4, 2019. Accordingly, even if Petitioner complied with the protest procedure (which has not been alleged), he was required to file his legal action within 180 days of imposition of the fee (April 4, 2019) which was October 1, 2019. Petitioner filed this proceeding on July 28, 2022, well after October 1, 2019. Thus, as the SAP is pleaded, the fourth cause of action for a writ of mandate is barred by the 180-day statute of limitations in section 66020, subdivision (d)(2).

Petitioner Has Not Shown An Exception to the Protest Procedure and Statute of Limitations in Section 66020

Petitioner does not dispute this proceeding is an action to “attack, review, set aside, void, or annual the imposition of fees.” (§ 66020, subd. (d)(2).) Petitioner has not developed an argument he complied the statutory protest procedure in section 66020, or that he filed the complaint within 180 days “after the delivery of the notice” required by section 66020, subdivision (d)(1). Nor has Petitioner developed an argument his legal challenge to the fee, on the basis Respondent “required” him to pay it “prematurely,” falls outside the scope of section 66020. The law is clear—section 66020 is the exclusive statutory procedure for challenging fees imposed under the Mitigation Fee Act. (See California Ranch Homes, supra, 17 Cal.App.4th at 577.) Petitioner does not address California Ranch Homes or any conflicting authority. Indeed, Petitioner appears to concede his claim must be enforced under section 66020. (See Opposition 6:15-18, 7:7-12, 11:2-3 [Petitioner seeks refund of an unlawfully collected fee pursuant to section 66020, subd. (e)].)

Nonetheless, Petitioner contends the Mitigation Fee Act “never expresses any intent to displace or supersede the common law rule that a statute of limitations begins to run when the cause of action accrues.” (Opposition 7-8 [citing Poosh v. Philip Morris USA, Inc. (2011) 51 Cal. 4th 788, 797].) Petitioner alleges “although the City collected the Park Mitigation Fee prematurely, [Petitioner] did not suffer any [actual] damages until, after he had withdrawn the Development Application, the City subsequently refused to refund the Park Mitigation Fee on March 31, 2022.” (SAP ¶ 34.) Petitioner states “the fee charged by the City was the proper fee associated with the development of a 21-unit apartment building.” (SAP ¶ 7.) Accordingly, Petitioner allegedly had no reason to challenge the Park Mitigation Fee at the time of approval of the development application or when the fee was imposed. Acknowledging the statutory basis for his claim, Petitioner contends that section 66020 “should be interpreted in a manner to avoid absurd results.” (Opposition 7:18.)

Petitioner raises an issue of statutory construction. “The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.)

The court “must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” (People v. Jenkins (1995) 10 Cal.4th 234, 246.) “When interpreting statutory language, [the court] may neither insert language which has been omitted nor ignore language which has been inserted.” (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.)

Here, section 66020, subdivisions (a) and (d) outline a specific protest procedure and limitations period for filing an action to challenge a fee subject to the Mitigation Fee Act. The protest “shall be filed at the time of approval or conditional approval of the development or within 90 days after the date of the imposition of the fees.” (§ 66020, subd. (d)(1).) The relevant terms—“approval or conditional approval of a development” and “imposition of fees”—are clearly defined in the statute. (§ 66020 subds. (g), (h).)

The statute also states a party may file an action “to attack, review, set aside, void, or annul the imposition of the fees, dedications, reservations, or other exactions imposed on a development project by a local agency within 180 days after the delivery of the notice” specified in subdivision (d)(1). The statute clearly provides: “Thereafter, notwithstanding any other law to the contrary, all persons are barred from any action or proceeding or any defense of invalidity or unreasonableness of the imposition.” (§ 66020, subd. (d)(2).) Petitioner has not identified any ambiguity in the statutory language as applied to this case. “Where, as here, the plain text is unambiguous, it is controlling.” (People v. Sanchez (2019) 38 Cal.App.5th 907, 916.)

The only authority cited by Petitioner, Pooshs v. Phillip Morris USA, Inc., supra, 51 Cal.4th at 797, does not support Petitioner’s interpretation of section 66020. Specifically, Pooshs v. Phillip Morris USA, Inc. states that “[g]enerally, a plaintiff must file suit within a designated period after the cause of action accrues.” For this general rule, Pooshs v. Phillip Morris USA, Inc. cites Code of Civil Procedure section 312, which provides:

Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute. (Emphasis added.)

Here, a different limitation is specifically prescribed by statute—section 66020, subdivision (d). Accordingly, Pooshs v. Phillip Morris USA, Inc. supports a conclusion the general accrual principles of Code of Civil Procedure section 312 do not apply.

Petitioner argues: “The MFA simply does not address the present situation before the Court, which is one of changed circumstances.” (Opposition 7:14-15.) Relatedly, Petitioner poses the following rhetorical questions:

After withdrawing the 21-unit apartment building, what if Mr. Heidt had instead decided to build a public park on the five lots? Would the City still seriously contend it has the right to impose a park fee in connection with the development of a new public park? Of course not. Similarly, if the 21-unit apartment project was modified and a new 42-unit project was subsequently approved, would the City contend it has the right to increase the fee? Of course it would. Both of these would be logical results. When the scope of a development project changes, the corresponding fees will almost certainly change. (Opposition 10:10-17.)

These contentions are unpersuasive for two reasons. First, Petitioner raises policy arguments that are properly directed at the Legislature—not the court. Since the statute is clear and unambiguous, the court is bound to apply the plain language of the statute.

Second, Petitioner concedes in the SAP and his opposition to Respondent’s demurrer that the alleged wrongful conduct by Respondent was not the amount of the fee, but when City required Petitioner to pay the fee. The SAP alleges “[t]he City failed to collect the Park Mitigation Fee in the manner required by law—on the date of the final inspection or the date the certificate of occupancy is issued, whichever occurs first.” (SAP ¶ 35.) In his opposition, Petitioner states “[h]ad the City followed the [Mitigation Fee Act] and waited until after building permits were issued or a final inspection had occurred before imposing the Park Fee, this entire situation would have been avoided.” (Opposition 10:19-21.)

Under the facts as alleged by Petitioner, Petitioner does not demonstrate Respondent’s interpretation of section 66020 leads to absurd results. As noted earlier, Respondent approved the development and imposed the fee, within the meaning of section 66020, subdivisions (g) and (h), by April 4, 2019, at the latest. Petitioner has not alleged Respondent did not serve the notice required by section 66020, subdivision (d)(1) at the time of the project’s approval or imposition of the fees. Accordingly, as the SAP is pleaded, Petitioner had clear notice of the dates upon which the 90-day protest procedure and the 180-day statute of limitations commenced.

The SAP alleges Respondent unlawfully required Petitioner to pay the fee on April 4, 2019. (See SAP ¶¶ 7, 12-15, 29.) As Petitioner acknowledges, “[u]nder Section 66007(a) of the Mitigation Fee Act, the City cannot require Mr. Heidt to pay the Park Mitigation Fee ‘until the date of final inspection, or the date the certificate of occupancy is issued, whichever occurs first.’” (SAP ¶ 29.) Petitioner alleges Respondent violated an express provision of the Mitigation Fee Act. Accordingly, as the SAP is alleged, Petitioner suffered appreciable harm on April 4, 2019, when he was allegedly “required” to pay a fee that he contends is unlawful under the law. Petitioner does not allege he paid the Park Mitigation Fee under protest pursuant to section 66020, subdivision (a). Petitioner also filed this action more than 180 days after April 4, 2019.

In opposition, Petitioner argues Respondent laid a “trap for the unwary” to the extent it “offered him . . . the opportunity” to pay the Park Mitigation Fee early and “ ‘lock in’ the cost of the Park Fees in 2019 before they increased.” (Opposition 9:2-5.) However, Petitioner also contends Respondent never presented Petitioner such “offer” and “City never informed Mr. Heidt that if he did not proceed with the 21-unit apartment project, the City would subsequently refuse to return any portion of $108,234.00 Park Fee.” (Opposition 9:5-8.)

Petitioner does not plead these facts in the SAP.[5] “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Accordingly, the court has not considered these extrinsic factual statements in opposition, or any related factual statements in the demurrer. (See Demurrer 3, fn. 5 [lengthy factual statement outside four corners of the SAP or judicially noticed record].) For purposes of this demurrer, the court has assumed the truth of Petitioner’s allegation Respondent “required” Petitioner to pay the fee “prematurely” on April 4, 2019. (SAP ¶¶ 7, 29-35.)

Based on the foregoing, it appears clearly from the SAP that the fourth cause of action, as currently pleaded, is barred for failure to comply with the protest procedure and statute of limitations set forth in section 66020, subdivisions (a) and (d). Accordingly, Petitioner has not stated a cause of action for mandate.

Respondent contends Petitioner also waived a refund of the Park Mitigation Fee because he failed to apply for the refund within one year of payment as required by LAMC section 12.33.

The Mitigation Fee Act authorizes local agencies to impose certain development fees and limits local agency discretion in some respects. (See e.g., § 66001 [requirements on local agency to impose fee].) In the City of Los Angeles, which has jurisdiction over the subject property, park mitigation fees are imposed by LAMC section 12.33. (See First Amended Complaint (FAC) ¶ 33 [“Pursuant to Section 12.33 of its own Municipal Code, the City was only permitted to charge the Park Mitigation Fee in connection with residential subdivision projects containing 50 or fewer units.”]; RJN Exhibits 1-2; Pacheco Decl. Exh. A.)

LAMC section 12.33, subdivision (I) governs refunds of recreation and park fees. In relevant part, LAMC section 12.33, subdivision (I) states:

(a) Park fees collected pursuant to this section shall be committed by the City within five years of receipt of payment for a residential development project to serve or benefit residents of the project for which the fees were collected.

(b) If the fees are not committed as specified in this section, Quimby fees shall be refunded in accordance with California Government Code Section 66477 or successor section. All other park fees shall be refunded in accordance with California Government Code Section 66001 or successor section.

4. Other Refunds. In the event that an applicant requests a refund for reasons not set forth in Government Code Sections 66001 or 66477, or their successor sections, if any, the applicant shall submit a claim for a refund with the Department of Recreation and Parks. Upon the department's determination, the fee payer may receive a refund, without interest, of the fees paid pursuant to this section; however, the portion of any fee revenue received by the City as reimbursement of its costs in administering the provisions of this section shall not be refunded. The fee payer shall submit an application for a refund to the City within one year of payment. Failure to timely submit the required application for refund shall constitute an absolute waiver of any right to the refund. (Emphasis added.)

As discussed below, Petitioner does not allege Respondent has a ministerial duty to refund the Park Mitigation Fee pursuant to sections 66001 or 66477. Petitioner also does not allege he made the refund request pursuant to those statutes. Thus, as the SAP is pleaded, LAMC section 12.33, subdivision (I)(4) applies to Petitioner’s refund request. Petitioner submitted his request to Respondent to refund the fee on August 4, 2021. (SAP ¶ 11.) The SAP discloses that Petitioner failed to submit a request for refund within a year of payment, as required by section LAMC section 12.33, subdivision (I)(4). As a result, it appears from the SAP Petitioner waived any right to refund based on his failure to comply with the LAMC.

Petitioner contends LAMC section 12.33, subdivision (I)(4) does not apply because he is seeking a refund under Government Code section 66020, subdivision (e). (Opposition 11:2-3.) Section 12.33, subdivision (I)(4) applies “[i]n the event that an applicant requests a refund for reasons not set forth in Government Code Sections 66001 or 66477.” Petitioner does not allege, or argue in opposition, he requested a refund under sections 66001 or 66477. Accordingly, LAMC section 12.33, subdivision (I)(4) applies even if Petitioner seeks a refund under section 66020, subdivision (e).

Moreover, section 66020, subdivision (e) applies only “[i]f the court finds in favor of the plaintiff in any action or proceeding brought pursuant to subdivision (d).” A party is permitted to bring an action pursuant to subdivision (d) if he or she filed a protest pursuant to subdivision (a).

(§ 66020, subd. (d)(2).) As discussed, Petitioner does not allege he filed a protest pursuant to subdivision (a). Accordingly, Petitioner has not alleged section 66020, subdivision (e) applies to this proceeding.

Petitioner also argues “the City’s ‘within one year’ requirement for seeking a refund suffers from the same problem as its statute of limitations argument—it would require Mr. Heidt to request the refund before his cause of action ever accrued.” (Opposition 11:7-9.) Petitioner does not explain why he construes LAMC section 12.33, subdivision (I)(4) as a statute of limitations rather than the waiver provision it expressly purports to be. Moreover, even if LAMC section 12.33, subdivision (I)(4) is a statute of limitations, Petitioner’s argument is unpersuasive for those reasons discussed earlier. Specifically, Petitioner does not show the general rule of accrual (see Code of Civil Procedure section 312) applies, and, as alleged in the SAP, Petitioner incurred damages when he paid the allegedly unlawful and “premature” fee on April 4, 2019—the date Respondent allegedly violated the Mitigation Fees Act and Petitioner suffered a harm.

For purposes of leave to amend, the court notes the SAP does not mention or cite section 66020, subdivision (e) as the basis for the fourth cause of action. If Petitioner relies on section 66020, subdivision (e), the statute should be pleaded as the basis for relief in the petition. Further, while not discussed in the parties’ briefs, the court also questions whether section 66020, subdivision (e), standing alone, provides a substantive basis to challenge a fee.

Section 66020, subdivision (e) states “[i]f the court finds in favor of the plaintiff in any action or proceeding brought pursuant to subdivision (d), the court shall direct the local agency to refund the unlawful portion of the payment, . . . or return the unlawful portion of the exaction imposed.” Thus, section 66020, subdivision (e) provides a remedy if the court finds, in an action brought pursuant to subdivision (d), that the fee or any part thereof was unlawful. It appears a challenge to the validity of the fee must be based on some statutory provision other than section 66020, subdivision (e). Petitioner should specify any statute upon which he seeks a refund in an amended pleading.

Based on the foregoing, it appears from the SAP that the fourth cause of action, as currently pleaded, is barred because Petitioner waived the right to refund pursuant to LAMC section 12.33, subdivision (I)(4). Accordingly, Petitioner has not stated a cause of action for mandate.

Petitioner Has Not Alleged a Ministerial Duty for City to Refund the Park Mitigation Fee

Respondent contends Petitioner has not pleaded a ministerial duty owed by Respondent to refund the Park Mitigation Fee. Specifically, Respondent contends: “Government Code sections 66001 and 66477 are the only statutes that require refund of park fees in any circumstance [and] Petitioner does not allege in the [SAP] any of the circumstances that require a refund under Government Code sections 66001 or 66477. Therefore, any ‘right’ of Petitioner to a refund, and any corresponding ‘duty’ of the City to pay a refund, must be found, if at all, in LAMC section 12.33, subdivision (I) . . . . LAMC section 12.33, subdivision (I)(4), however, is entirely discretionary . . . .” (Demurrer 10:7-13.)

“Generally, mandamus is available to compel a public agency's performance or to correct an agency's abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.) “ ‘[T]he writ will not lie to control discretion conferred upon a public officer or agency.’ ” (Collins v. Thurmond (2019) 41 Cal.App.5th 879, 914.)

“A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists.” (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)

As argued by Respondent, section 66001, subdivisions (d)(1) and (2) and (e) of the Mitigation Fee Act requires a refund of fees in two circumstances, neither of which has been alleged in the SAP. (See Demurrer 10:18-11:4.) Specifically, under section 66001, subdivision (d)(2), a local agency “shall refund the moneys in the account” if the local agency fails to make the findings regarding unexpended funds required by section 66001, subdivision (d)(1). Second, under section 66001, subdivision (e), when sufficient funds have been collected to complete financing on certain incomplete public improvements, but the public improvements remain incomplete, the local agency is required either: (1) to identify, within 180 days of the determination that sufficient funds have been collected, the approximate date by which the construction of the public improvement will be commenced, or (2) refund to the then-current owner of the properties, on a prorated basis “the unexpended portion of the fee. . . . .” Petitioner does not allege either circumstance applies.

Section 66477 discusses refunds of fees imposed under the Subdivision Map Act. Petitioner alleges his fees were imposed under the Mitigation Fees Act, not the Subdivision Map Act. Petitioner does not allege in the SAP or in opposition that Respondent has a ministerial duty to refund the Park Mitigation Fee pursuant to section 66477.

Because Petitioner has not alleged a ministerial duty under section 66001 or 66477 to refund the Park Mitigation Fee, it appears Petitioner’s statutory basis for a refund is in LAMC section 12.33, subdivision (I)(4), which applies “[i]n the event that an applicant requests a refund for reasons not set forth in Government Code Sections 66001 or 66477.” However, LAMC section 12.33, subdivision (I)(4) states that “upon the department's determination, the fee payer may receive a refund, without interest, of the fees paid pursuant to this section . . . .” (Emphasis added.) “It is a well-settled principle of statutory construction that the word ‘may’ is ordinarily construed as permissive, whereas ‘shall’ is ordinarily construed as mandatory, particularly when both terms are used in the same statute.” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443.) LAMC section 12.33, subdivision (I)(4) uses both “may” and “shall” in the same subsection. Accordingly, Respondent’s determination of whether to grant a refund request not made under section 66001 or 66477 is reasonably interpreted to be discretionary in nature.

Contrary to Respondent’s assertion, Petitioner is not categorically precluded from challenging a discretionary decision or action by mandate. “ ‘While, of course, it is the general rule that mandamus will not lie to control the discretion of a court or officer, meaning by that that it will not lie to force the exercise of discretion in a particular manner . . . [it] will lie to correct abuses of discretion, and will lie to force a particular action by the inferior tribunal or officer, when the law clearly establishes the petitioner's right to such action.’ ” (Flores v. Dept. of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 208.) Nonetheless, Petitioner has not alleged facts supporting a theory that the “law clearly establishes” Petitioner’s right to a refund. As discussed earlier, Petitioner’s refund claim under the Mitigation Fees Act, as currently pleaded, is barred for failure to comply with the protest procedure of section 66020 and for failure to file this action within the 180-day statute of limitations. Petitioner has not identified any other statutory basis for a refund based on the circumstances alleged in the SAP.

For all reasons discussed above, Petitioner has presently not stated a cause of action for a writ of mandate. The demurrer to the fourth cause of action is SUSTAINED. In any amended pleading, Petitioner should clearly identify the statute under which he seeks a refund. If Petitioner seeks a refund under LAMC section 12.33, subdivision (I)(4), Petitioner must allege how Respondent’s denial of the refund was an abuse of discretion that may be challenged by ordinary mandate.

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.) Courts generally allow at least one time to amend a complaint after sustaining a demurrer. (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303.) In assessing whether leave to amend should be granted, the burden is on the complainant to show the court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348-349.)

This is the court’s first ruling on demurrer, which weighs in favor of granting leave to amend. In opposition, Petitioner has not made an offer of proof for amending the petition to address the defects discussed above. Nonetheless, at this early stage, the court cannot conclude that granting leave to amend would be futile here. Subject to oral argument, and considering that the court has not previously ruled on a demurrer, the court is inclined to grant leave to amend.

The demurrer to the fourth cause of action is SUSTAINED WITH 21 DAYS LEAVE TO AMEND.

[1] The matter is assigned to this department for adjudication of the fourth cause of action only. (See Minute Order dated 5/5/23.)

[2] “Specifically, Mr. Heidt requested the following modifications in the Q Clarification Request: (1) an increase in building height for the proposed apartment building from 28 feet, 3 inches to 33 feet, 3 inches; (2) to provide parking in conformity with the requirements of the City’s Zoning Code, and not based upon a 29-unit design, as Mr. Heidt was no longer proposing to build 29 units; and (3) to provide affordable housing units on-site in lieu of payment to a housing trust fund.” (SAP ¶ 8.)

[3] All undesignated statutory references are to this code.

[4] Section 66020, subdivision (d)(1) states: “Each local agency shall provide to the project applicant a notice in writing at the time of the approval of the project or at the time of the imposition of the fees, dedications, reservations, or other exactions, a statement of the amount of the fees or a description of the dedications, reservations, or other exactions, and notification that the 90-day approval period in which the applicant may protest has begun.”

[5] The court makes no suggestion such facts are relevant to whether Petitioner may state a cause of action for a writ of mandate.