Judge Mitchell L. Beckloff, Case Number: 23STCP03548, Date: 2024-03-08 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP03548, Date: 2024-03-08 Tentative Ruling

Respondents, City of San Gabriel and City Council of the City of San Gabriel, demur to the petition for writ of mandate and complaint for declaratory and injunctive relief filed by Petitioner, Supporters Alliance for Environmental Responsibility, on the grounds is barred by the applicable statute of limitations.

Respondents’ Request for Judicial Notice (RJN) of Exhibits A through E is DENIED. Petitioner’s objections are sustained. Respondents do not show the relevance of the exhibits as to any issue raised by the demurrer, and they do not show the various correspondence submitted as Exhibits A through D are subject to judicial notice pursuant to Evidence Code section 452, subdivision (h). A demurrer cannot be converted to a motion for summary judgment.

Petitioner challenges the City’s approval of the 330 West Las Tunas Drive Project (Planning Case No. PPD21-008) (the Project), including a Precise Plan of Design for the Project, under the California Environmental Quality Act (CEQA), Public Resources Code section 21000. The Project “involves the demolition of an existing one-story, 5,032-square foot medical office building and associated surface parking lot and the construction of a new five-story, 74,490- square foot medical office building with two levels of subterranean parking on a 63,779-square foot site, totaling approximately 1.46 acres, located at 330 West Las Tunas Drive in the City of San Gabriel.” (Pet. ¶¶ 1-2.)

Petitioner contends Respondents “unlawfully determined that the Project was exempt from CEQA pursuant to the Class 32 In-Fill Development Categorical Exemption (‘In-Fill Exemption’), 14 Cal. Code Regs., § 15332.” (Pet. ¶ 1.)

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 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.)

Respondents contend the petition is barred by CEQA’s 35-day statute of limitations set forth in Public Resources Code section 21167, subdivision (d).[1] (Memo 9.) “Section 21167(d) makes clear that suits claiming a project was ‘improperly’ approved as exempt from CEQA must be brought within the 35-day period after an [Notice of Exemption] is filed and posted.” (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 505.)

“On August 17, 2023, the City filed a Notice of Exemption with the Los Angeles County Clerk, noticing exemption of the Project from CEQA review pursuant to the In-Fill Exemption.” (Pet. ¶ 49.) Petitioner filed this action on September 26, 2023—40 days after August 17, 2023. (See electronic file stamp.) Accordingly, it appears clearly from the face of the petition—based on the current allegations—the petition is barred by the 35-day statute of limitations.

Petitioner admits “that the last day to file the Petition for Writ of Mandate and Complaint to challenge the City of San Gabriel’s adoption of the In-Fill Exemption on CEQA grounds was September 21, 2023.” (Opposition 9:14-16.) Petitioner argues “consistent with the California Code of Civil Procedure and Rules of Court, Petitioner did in fact submit for filing an otherwise compliant Petition for Writ of Mandate and Complaint in the Northeast District of the Los Angeles County Superior Court through the Express Network electronic filing service [on September 21, 2023] . . . as explained . . . in the declaration of Toyer Grear.” (Opposition 9:17-19 [emphasis added].)

Petitioner’s defense to the statute of limitations depends on the factual information provided in the Grear declaration.[2] Specifically Petitioner “requested that Express Network file the initiating documents at the Pasadena courthouse in the Northeast District of the Los Angeles County Superior Court on September 21, 2023” and “[o]n Monday, September 25, 2023, [Grear] became aware for the first time that the Los Angeles County Superior Court’s Northeast District had rejected Petitioner’s entire filing of all the initiating documents at approximately 2:52 p.m. that day” on the grounds either that a CEQA box was not checked or Petitioner was required to file the petition in the Central District of Los Angeles County Superior Court. (Grear Decl. ¶¶ 4-9 and Exh. 3.)

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 [emphasis added].) Petitioner has not pleaded an excuse from the statute of limitations or included the relevant information and exhibits from the Grear declaration in the petition. Petitioner does not cite any authority suggesting the court may consider this extrinsic evidence when considering a demurrer based on the statute of limitations.

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 311, 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 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 for granting leave to amend. In addition, Petitioner has opposed the demurrer and requested leave to amend. Based on the information provided in the Grear declaration, Petitioner has made an offer of proof that arguably supports a defense to the statute of limitations on the grounds the petition should be deemed timely filed on September 21, 2023, pursuant to Code of Civil Procedure sections 402, subdivision (a)(3) and/or 1010.6, subdivision (e)(4)(E).[3] As also suggested by Petitioner, it may be able to amend the petition to state a defense to the statute of limitations based on equitable tolling. Respondents argue Code of Civil Procedure sections 402, subdivisions (a)(3), and 1010.6(e)(4)(E), and equitable tolling do not provide a defense to the statute of limitations under the circumstances of this case.

The court need not rule on the merits of Petitioner’s defenses, or Respondents’ arguments in response, in order to grant leave to amend. The court concludes only that Petitioner has shown at least some reasonable possibility of successful amendment. Accordingly, the court grants leave to amend. (See Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [“even if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings’ ”].) Respondents may challenge any amendment to plead around the statute of limitations in a subsequent demurrer or by other appropriate motion.

[1] Section 21167, subdivision (d) states in pertinent part: “An action or proceeding alleging that a public agency has improperly determined that a project is not subject to this division pursuant to subdivision (b) of Section 21080 shall be commenced within 35 days from the date of the filing by the public agency, or person specified in subdivision (b) or (c) of Section 21065, of the notice authorized by subdivision (b) of Section 21108 or subdivision (b) of Section 21152.”

[2] Grear states he is a paralegal employed by Petitioner’s counsel.

[3] Code of Civil Procedure section 402, subdivision (a)(3) provides: “A superior court may not dismiss a case, and the clerk may not reject a case for filing, because it is filed, or a person seeks to file it, in a court location other than the location specified by local rule. However, the court may transfer the case on its own motion to the proper court location.” (Emphasis added.)

Code of Civil Procedure section 1010.6, subdivision (e)(4)(E) provides, in pertinent part: “If the clerk of the court does not file a complaint or cross complaint because the complaint or cross complaint does not comply with applicable filing requirements or the required filing fee has not been paid, any statute of limitations applicable to the causes of action alleged in the complaint or cross complaint shall be tolled for the period beginning on the date on which the court received the document and as shown on the confirmation of receipt described in subparagraph (A), through the later of either the date on which the clerk of the court sent the notice of rejection described in subparagraph (C) or the date on which the electronic filing service provider or electronic filing manager sent the notice of rejection as described in subparagraph (D), plus one additional day if the complaint or cross complaint is subsequently submitted in a form that corrects the errors which caused the document to be rejected.”