Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2009-00125363, Ronald L. Bauer, Judge.
Darling & Risbrough and Ronald E. Darling and Sherilyn Learned O’Dell for Plaintiffs and Appellants Paul Douglas, Carl F. Grewe, and Two Doheny, LLC.
Rutan & Tucker and Robert S. Bower for Defendant and Respondent City of Dana Point.
OPINION
ARONSON, J.
Plaintiffs Two Doheny, LLC (Doheny), Paul Douglas, and Carl F. Grewe appeal from a judgment of dismissal entered after the trial court sustained without leave to amend defendant City of Dana Point’s (City) demurrer. We conclude Doheny, Douglas, and Grewe failed to allege sufficient facts to state a cause of action regarding the City’s decision to deny Doheny’s application for a conditional use permit and a coastal development permit to demolish the structures on its property. Accordingly, we affirm the judgment.
I
Facts and Procedural History
Because this appeal follows a sustained demurrer, we summarize the underlying facts as alleged in the complaint. (Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 240.) Our summary also includes facts subject to judicial notice. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)
This action arises from efforts to develop real property located on a coastal bluff overlooking the Pacific Ocean. In 1928, the owner subdivided the property into five separate lots, but only one home - commonly referred to as the “Doheny House” - has been built on the property. The Doheny House occupies two of the five lots and a three-car garage occupies a third. The remaining two lots have landscaping and fencing.
In 2001, the City designated the property as historically significant and placed the Doheny House on the City’s Historic Resources Register (Historic Register). Typically, the City places properties on the Historic Register only upon the property owner’s request. The City, however, placed the Doheny House and one other property on the Historic Register without the owner’s request because the two properties were potentially eligible for inclusion on the National Register of Historic Places. To remove these two properties from the Historic Register, the property owner must obtain a conditional use permit from the City.
The trial court granted the City’s request that it judicially notice the City’s Historic Resources Ordinance - Dana Point Ordinance No. 01-02 and Municipal Code section 9.07.250. We take judicial notice of all matters properly noticed by the trial court. (Evid. Code, § 459, subd. (a).) The ordinance is properly subject to judicial notice under Evidence Code section 452, subdivisions (b) and (h).
Doheny purchased the property in 2005. Douglas and Grewe are Doheny’s co-managing members. In 2006, Doheny submitted an application seeking a coastal development permit to move the Doheny House to two different lots on the property. It also sought a coastal development permit to develop single-family homes on the property’s two vacant lots. The City, however, refused to process this application because it was incomplete.
In January 2007, Doheny submitted a new land use application seeking a conditional use permit to remove the Doheny House from the Historic Register and a coastal development permit to demolish the structures on its property. Doheny alleged it sought these permits to facilitate developing five single-family homes, but the land use application only sought permits to remove the Doheny House from the Historic Register and to demolish the existing structures. The application did not request permits authorizing Doheny to develop single-family homes on the property.
The City determined the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) required an environmental impact report (EIR) to evaluate the impact of removing the existing structures and developing five single-family homes on the property. The City prepared a draft EIR, circulated it for public comment, responded to all public comments, and prepared a final EIR.
In March 2009, the City’s planning commission denied Doheny’s application for a conditional use permit and coastal development permit. The commission found the Doheny House to be historically and culturally significant to the community and its demolition would be inconsistent with the goals and policies established by the City’s Local Coastal Program/General Plan. The commission further found the Doheny House’s demolition would be detrimental to and irrevocably change the local neighborhood’s character. The planning commission’s resolution did not mention the EIR the City prepared.
Doheny appealed the planning commission’s decision and, in May 2009, the city council conducted a public hearing to consider Doheny’s appeal. The city council denied the appeal and upheld the planning commission’s decision. The city council’s resolution stated it considered the final EIR, but did not act on it because the city council denied the land use application.
The trial court granted the City’s request that it judicially notice both the planning commission and city council resolutions. Again, we take judicial notice of all matters properly noticed by the trial court. (Evid. Code, § 459, subd. (a).) The resolutions are properly subject to judicial notice under Evidence Code section 452, subdivision (h).
In June 2009, Doheny, Douglas, and Grewe filed this action. The original petition and complaint sought a writ of mandate compelling the City to set aside its decision denying Doheny’s land use application and to enter a new decision granting the application. Doheny, Douglas, and Grewe alleged that, in denying the application, the City violated its own Historic Resources Ordinance, the Housing Accountability Act, and CEQA. The complaint and petition also sought monetary damages against the City based on causes of action for inverse condemnation, deprivation of equal protection guarantees, denial of procedural due process, civil rights violations under title 42 United States Code section 1983 (Section 1983), and civil rights violations under Civil Code section 52.1.
The City demurred to the original petition and complaint and the trial court sustained the demurrer on all causes of action. The trial court denied Doheny, Douglas, and Grewe leave to amend on the causes of action for inverse condemnation and civil rights violations under Civil Code section 52.1, but granted them leave to amend on the remaining causes of action.
In October 2009, Doheny, Douglas, and Grewe filed a first amended petition and complaint, which again sought a writ of mandate against the City and also added a declaratory relief claim. The first amended petition and complaint also sought monetary damages against the City on causes of action for deprivation of equal protection guarantees, denial of procedural due process, and civil rights violations under Section 1983. In December 2009, the trial court sustained the City’s demurrer to the first amended complaint and petition without leave to amend, and thereafter entered judgment dismissing all claims asserted by Doheny, Douglas, and Grewe.
In January 2010, a trust deed holder foreclosed on the property and recorded a trustee’s deed upon sale transferring the property to the trust deed beneficiary. Doheny, Douglas, and Grewe filed their notice of appeal in February 2010.
The City requested we judicially notice the trustee’s deed upon sale recorded with the Orange County Recorder’s Office. Doheny, Douglas, and Grewe filed no opposition or objection to the request. Recorded deeds may properly be judicially noticed. (See, e.g., Lockhart v. MVM, Inc. (2009) 175 Cal.App.4th 1452, 1460-1461.) Accordingly, we grant the request.
II
Discussion
A. Standard of Review
We review the first amended petition and complaint de novo to determine whether it alleged facts sufficient to state a cause of action under any legal theory. (Koszdin v. State Comp. Ins. Fund (2010) 186 Cal.App.4th 480, 487.) In doing so, we look past the pleading’s form to its substance and ignore any erroneous or confusing labels the pleader attached. (Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 266.) “‘“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]...” Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]’” (Sprinkles v. Associated Indemnity Corp. (2010) 188 Cal.App.4th 69, 75.)
B. Doheny Lacks Standing to Appeal the Denial of Its Writ of Mandate
The first cause of action alleged the City violated its Historic Resources Ordinance, the Housing Accountability Act, and CEQA by denying Doheny’s application for a conditional use permit and coastal development permit. Doheny sought a writ of mandate directing the City to vacate its decision denying Doheny’s application and to enter a new decision granting the application.
On appeal, the City for the first time asserts Doheny lacks standing. The City acknowledges Doheny had standing to assert the alleged causes of action during the trial court proceeding, but contends Doheny lost standing when the trust deed holder foreclosed on the property shortly before Doheny filed its notice of appeal.
“A litigant’s standing to sue is a threshold issue to be resolved before the matter can be reached on the merits.” (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1000 (Blumhorst).) Standing must exist at all times during a lawsuit, not just at the time the plaintiff files the complaint. (Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 232-233.) “Lack of standing may be raised at any time in the proceeding, including at trial or in an appeal.” (Blumhorst, supra, 126 Cal.App.4th at p. 1000.)
“Code of Civil Procedure section 1086 provides in pertinent part that a writ of mandate ‘must be issued upon the verified petition of the party beneficially interested.’ This provision has been held to establish a standing requirement - the writ will issue only at the request of one who is beneficially interested in the subject matter of the action. [Citation.]” (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1232 (Waste Management).)
“To establish a beneficial interest, the petitioner must show he or she has some special interest to be served or some particular right to be preserved or protected through issuance of the writ. [Citation.] Stated differently, the writ must be denied if the petitioner will gain no direct benefit from its issuance and suffer no direct detriment if it is denied. [Citation.]” (Waste Management, supra, 79 Cal.App.4th at pp. 1232-1233.) “The petitioner’s interest in the outcome of the proceedings must be substantial, i.e., a writ will not issue to enforce a technical, abstract or moot right.” (Braude v. City of Los Angeles (1990) 226 Cal.App.3d 83, 87.) “Also, it generally must be special in the sense that it is over and above the interest held in common by the public at large.” (Waste Management, supra, 79 Cal.App.4th at p. 1233.)
In County of San Luis Obispo v. Superior Court (2001) 90 Cal.App.4th 288 (San Luis Obispo), a landowner applied to the county for certificates of compliance confirming a prior owner subdivided the property into 577 developable lots decades earlier. The county denied the application and the landowner sought a writ of administrative mandate compelling the county to issue the certificates. Shortly after the landowner filed the action, a trust deed holder foreclosed on all interests the landowner held in the property. (Id. at pp. 290-291.) The trial court nonetheless issued the writ of mandate.
The Court of Appeal reversed because the foreclosure divested the landowner of all interest in the property and the county could issue certificates of compliance only to a property owner. (San Luis Obispo, supra, 90 Cal.App.4th at p. 292.) The San Luis Obispo court explained: “[M]andamus can only bring appropriate relief to someone who has an interest in the land subject to the certificates. Because loss of the property by foreclosure prevents the trial court from granting [the landowner] any relief by administrative mandate, [the landowner] has no standing to maintain his mandamus action.” (Id. at p. 295; see also Goldman v. County of Santa Barbara (1962) 203 Cal.App.2d 454, 456-457 [“the appeal must be dismissed because the sale of that property [during the pendency of the appeal] rendered moot the question of injury to a property interest of the appellants as alleged in their pleading”].)
Here, as in San Luis Obispo, a trust deed holder foreclosed on all interests Doheny held in the property. As a result, Doheny no longer has any beneficial interest in the property. Thus, issuing the requested writ of mandate to Doheny would not directly benefit Doheny in any way. Assuming we issued the writ, and the City granted the conditional use permit and coastal development permit, Doheny still would have no right to demolish the structures on the property because it holds no interest in the property. If granting the permits increased the property’s value, that increase would not directly benefit Doheny because it holds no interest that could increase in value. Issuing the writ would not restore any rights Doheny had in the property because it lost the property to foreclosure, not because the City denied Doheny’s land use application. Similarly, Doheny would not suffer any detriment if the writ is denied. Doheny already lost the property and the right to develop it through the foreclosure. Denying the writ would not cause Doheny any further harm. In short, any direct benefit in issuing the writ, or detriment caused by denying the writ, now falls on the property’s new owner - not Doheny - and the new owner did not seek to intervene or otherwise join in this appeal.
San Luis Obispo rejected the contention that any delay by the city in processing the owner’s land use application provided the owner with standing to pursue a mandamus action even after the owner lost the property to foreclosure. San Luis Obispo explained the owner could have filed a writ of mandate against the city if the owner believed the city unreasonably delayed processing the application, but the owner failed to do so. (San Luis Obispo, supra, 90 Cal.App.4th at p. 295.)
Doheny provides no explanation why San Luis Obispo does not compel the conclusion the foreclosure deprived Doheny of all beneficial interest in the property and therefore standing to pursue this mandamus action. The beneficial interest arising from owning the property is the sole basis for standing Doheny alleged in the first amended petition and complaint. Standing is a threshold element required to state any cause of action and a plaintiff must allege facts to satisfy the standing requirement. (Drum v. San Fernando Valley Bar Assn. (2010) 182 Cal.App.4th 247, 252; Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031.) The City presented facts and authority showing Doheny lost its standing, and Doheny failed to file a reply brief to respond to the City’s challenge or otherwise argue any exception to the beneficial interest requirement.
We therefore conclude Doheny no longer has standing to pursue its first cause of action for a writ of mandate. Although the trial court sustained the demurrer and declined to issue the writ of mandate on other grounds, we affirm the dismissal based on the lack of standing and therefore do not reach the parties’ other contentions on this claim. (See Blumhorst, supra, 126 Cal.App.4th at pp. 1000, 1005.)
The City contends Douglas and Grewe lack standing because they never held title to the property. In the trial court, Douglas and Grewe conceded they lacked standing because they did not own the property. Only Doheny initially had standing to pursue any claims against the City because it was the sole property owner. (See PacLink Communications International, Inc. v. Superior Court (2001) 90 Cal.App.4th 958, 964, fn. omitted [“Because members of the LLC hold no direct ownership interest in the company’s assets (Corp. Code, § 17300), the members cannot be directly injured when the company is improperly deprived of those assets”].) Douglas and Grewe do not claim on appeal they had standing to bring the first amended petition and complaint.
The foregoing cases address standing to seek a writ of mandate only; they do not address standing to assert monetary damage claims. Consequently, we determine Doheny lacks standing to assert its mandamus claim, but analyze the remaining causes of action based on the adequacy of the allegations.
C. Declaratory Relief Cause of Action
The second cause of action seeks a judicial declaration that the property’s five lots are legal, nonconforming lots exempt from the City’s minimum lot size requirement because they are preexisting lots and Doheny did not seek to further subdivide the property.
To state a claim for declaratory relief a plaintiff must allege specific facts establishing an actual and present controversy exists between the parties. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80.) “‘A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties under a written instrument or with respect to property and requests that the rights and duties of the parties be adjudged by the court. [Citations.]’” (Lockheed Martin Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, 221, disapproved on other grounds in State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1036, fn. 11.) “[D]eclaratory relief ‘“operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them.”’ [Citations.]” (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1403.)
Here, no actual and present controversy exists between Doheny and the City regarding the property. As explained above, Doheny no longer holds any interest in the property due to the foreclosure. Without some interest in the property, Doheny has no actual or present controversy with the City regarding how many homes can be built on the property. The trial court properly dismissed this cause of action.
D. Equal Protection and Due Process Causes of Action
The third and fourth causes of action sought monetary damages against the City under both the United States and California Constitutions. The third cause of action alleged the City violated Doheny’s equal protection rights by denying Doheny’s land use application while granting other landowners permits to demolish structures listed on the Historic Register and permits to construct new homes on lots failing to meet the City’s minimum lot size requirement. The fourth cause of action alleged the City violated Doheny’s procedural due process rights by allowing a planning commissioner with a known bias against Doheny’s managing member to vote on the land use application.
No cause of action for monetary damages, however, generally exists directly under the United States Constitution. (Azul-Pacifico, Inc. v. City of Los Angeles (9th Cir. 1992) 973 F.2d 704, 705 [“Plaintiff has no cause of action directly under the United States Constitution. We have previously held that a litigant complaining of a violation of a constitutional right must utilize 42 U.S.C. § 1983”] (Azul-Pacifico); see also, e.g., Carlsbad Aquafarm, Inc. v. State Dept. of Health Services (2000) 83 Cal.App.4th 809, 815-816 (Carlsbad); Hearth, Inc. v. Dept. of Public Welfare (5th Cir. 1980) 617 F.2d 381, 382-383.)
California courts similarly refuse to recognize monetary damage claims directly under the California Constitution: “It is beyond question that a plaintiff is not entitled to damages for a violation of the due process clause or the equal protection clause of the state Constitution.” (Javor v. Taggart (2002) 98 Cal.App.4th 795, 807; see also Carlsbad, supra, 83 Cal.App.4th at p. 823, fn. omitted [“We conclude Aquafarm did not have a right to monetary relief under the procedural due process clause of the California Constitution”]; Gates v. Superior Court (1995) 32 Cal.App.4th 481, 516, fn. omitted [“we determine plaintiffs may not sue for personal injury damages under article I, section 7, subdivision (a) for a violation of their equal protection rights”].)
We conclude the trial court properly sustained the City’s demurrer to the third and fourth causes of action. To the extent Doheny has any right to recover monetary damages based on the City’s alleged violation of its constitutional rights, Doheny must assert a claim under Section 1983. (See Azul-Pacifico, supra, 973 F.2d at p. 705; Carlsbad, supra, 83 Cal.App.4th at p. 822 [“Aquafarm did have an equally effective monetary remedy - a federal 42 United States Code section 1983 action against the individual Department employees”].)
E. Section 1983 Cause of Action
The fifth cause of action sought monetary damages against the City under Section 1983, which provides a private right of action for a citizen deprived of any right, privilege, or immunity secured by the United States Constitution or federal law. (Stone v. City of Prescott (9th Cir. 1999) 173 F.3d 1172, 1174.) Conduct violating state law, which does not also violate federal law, is insufficient to support a Section 1983 claim. (Ybarra v. Bastian (9th Cir. 1981) 647 F.2d 891, 892 [“Only federal rights, privileges, or immunities are protected by the section. Violations of state law alone are insufficient”].) This cause of action alleged the City deprived Doheny of its due process and equal protection rights under the United States Constitution.
1. Due Process Claim
“The Fourteenth Amendment due process clause states that no state may ‘deprive any person of life, liberty, or property without due process of law.’ The procedural component of the due process clause ensures a fair adjudicatory process before a person is deprived of life, liberty, or property. [Citations.] Not every denial of a fair hearing for which a remedy may be available under state law implicates constitutional due process. [Citation.] ‘The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.’ [Citation.] The range of interests protected by procedural due process is limited. [Citation.]” (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 852 (Las Lomas).)
“A person seeking a benefit provided by the government has a property interest in the benefit for purposes of procedural due process only if the person has ‘a legitimate claim of entitlement to it.’[] [Citation.]” (Las Lomas, supra, 177 Cal.App.4th at p. 853, fn. omitted.) “‘When analyzing whether a plaintiff presents a legitimate claim of entitlement, we focus on the degree of discretion given the decisionmaker and not on the probability of the decision’s favorable outcome.’ [Citation.] ‘Under this approach, whether a property-holder possesses a legitimate claim of entitlement to a permit or approval turns on whether, under state and municipal law, the local agency lacks all discretion to deny issuance of the permit or to withhold its approval. Any significant discretion conferred upon the local agency defeats the claim of a property interest.... Under this standard, a cognizable property interest exists “only when the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured.”...’ [Citations.]” (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1180-1181, fn. omitted (Clark).)
In Las Lomas, a developer applied to a city for various land use approvals required for a large scale development project, but the city voted to reject the project before completing a previously commissioned EIR. (Las Lomas, supra, 177 Cal.App.4th at pp. 843-844.) The developer sued seeking, among other things, monetary damages because the city deprived the developer of its procedural due process rights by denying the project without completing and considering the EIR. (Id. at p. 845.) The trial court sustained the city’s demurrer without leave to amend. (Id. at pp. 846-847.)
The Court of Appeal affirmed, concluding the developer had no procedural due process claim because the developer lacked a federally protected property interest in the approvals. The Las Lomas court explained the city’s considerable discretion in deciding whether to issue the land use approvals prevented the developer from asserting any “claim of entitlement” to the approvals. (Las Lomas, supra, 177 Cal.App.4th at p. 854.) Consequently, “[t]he city’s denial of those benefits and decision not to proceed with the project... was not a deprivation of property for purposes of procedural due process under the Fourteenth Amendment.” (Ibid., fn. omitted; see also Clark, supra, 48 Cal.App.4th at p. 1180 [property owner seeking development permits to demolish a duplex and replace it with a two-unit condominium lacked a property interest sufficient to support a procedural due process claim because the municipal code vested the city with discretion in determining whether to issue the permits].)
Here, Doheny’s application sought a conditional use permit to remove the Doheny House from the Historic Register and a coastal development permit to demolish the structures on its property. As pointed out in Clark, “‘a conditional use permit... is, by definition, discretionary.’” (Clark, supra, 48 Cal.App.4th at pp. 1182-1183.) Indeed, the Municipal Code granted the City considerable discretion in deciding whether to issue Doheny the conditional use permit and, if so, on what conditions. (See Dana Point Mun. Code, §§ 9.65.010 – 9.65.060.) Similarly, the Municipal Code granted the City discretion in deciding Doheny’s application for a coastal development permit. (See Dana Point Mun. Code, §§ 9.69.010 – 9.69.070.) Because Doheny had no entitlement to these permits, it could not state a claim for deprivation of procedural due process.
Doheny asserts it adequately alleged a procedural due process claim by alleging the City violated its Historic Resources Ordinance, the Housing Accountability Act, and CEQA, and improperly allowed a planning commissioner with a known bias against Doheny’s managing member to vote on the application. Assuming the City violated these local and state laws and the planning commissioner should have recused himself, Doheny still failed to allege a procedural due process claim. As explained above, not every denial of a fair hearing or violation of state law gives rise to a procedural due process claim. To state a claim, the property owner must allege approval of its land use application was “‘virtually assured.’” (Clark, supra, 48 Cal.App.4th at p. 1180; Las Lomas, supra, 177 Cal.App.4th at p. 853.) The discretion vested in the City precludes Doheny’s procedural due process claim, even if Doheny could show valid state law claims based on the City’s conduct.
Doheny also argues it adequately alleged a substantive due process claim against the City. Doheny’s first amended petition and complaint, however, made no attempt to allege a substantive due process claim. Rather, it alleged a procedural due process claim only. Nonetheless, assuming Doheny attempted to allege a substantive due process claim, its attempt failed.
“Substantive due process protects against arbitrary government action. [Citation.]... A substantive due process violation requires some form of outrageous or egregious conduct constituting ‘a true abuse of power.’ [Citation.]” (Las Lomas, supra, 177 Cal.App.4th at pp. 855-856.) “‘“[R]ejections of development projects and refusals to issue building permits do not ordinarily implicate substantive due process. [Citations.] Even where state officials have allegedly violated state law or administrative procedures, such violations do not ordinarily rise to the level of a constitutional deprivation. [Citation.] The doctrine of substantive due process ‘does not protect individuals from all [governmental] actions that infringe liberty or injure property in violation of some law. Rather, substantive due process prevents “governmental power from being used for purposes of oppression, ” or “abuse of governmental power that shocks the conscience, ” or “action that is legally irrational in that it is not sufficiently keyed to any legitimate state interests.”’ [Citations.]”’ [Citations.]” (Las Lomas, supra, 177 Cal.App.4th at p. 856.)
Las Lomas again defeats Doheny’s claim. The developer in Las Lomas alleged a city council member made misleading public comments regarding the proposed project’s environmental impacts and persuaded the city council to cease all work on the project. The developer further alleged the city initially supported the project and initiated environmental studies only to stop midstream. Finally, the developer alleged the city violated CEQA by failing to complete and consider the EIR before rejecting the project. In affirming the trial court’s decision sustaining a demurrer without leave to amend, the Las Lomas court “conclude[d] that these allegations [were] insufficient to establish a substantive due process violation. These allegations, if true, do not amount to an outrageous or egregious abuse of power of constitutional dimension.” (Las Lomas, supra, 177 Cal.App.4th at p. 857.)
Here, Doheny alleged the City violated its Historic Resources Ordinance by listing the Doheny House on the Historic Register without any request from the property owner and then refusing to remove it on Doheny’s request. Doheny also alleged the City violated CEQA by failing to approve and consider the EIR before denying Doheny’s land use application. Finally, Doheny alleged the City violated the Housing Accountability Act and CEQA by failing to make statutorily-mandated findings regarding Doheny’s project before rejecting it. As in Las Lomas, these allegations do not show “an outrageous or egregious abuse of power of constitutional dimension.” (Las Lomas, supra, 177 Cal.App.4th at p. 857.)
2. Equal Protection Claim
The federal equal protection clause provides that “persons who are similarly situated with respect to the legitimate purpose of a law must be treated alike under the law.” (Las Lomas, supra, 177 Cal.App.4th at p. 857.) “Equal protection challenges typically involve claims of discrimination against an identifiable class or group of persons, ” but “[t]he United States Supreme Court... [has] held that a plaintiff who does not allege membership in a class or group may state a claim as a ‘“class of one.”’ [Citation.]” (Las Lomas, supra, 177 Cal.App.4th at p. 857.)
“[A] ‘class of one’ equal protection claim is sufficient if the plaintiff alleges that (1) the plaintiff was treated differently from other similarly situated persons, (2) the difference in treatment was intentional, and (3) there was no rational basis for the difference in treatment. [Citations.] The third element is essentially the same rational basis test typically applied in some other types of equal protection cases.” (Las Lomas, supra, 177 Cal.App.4th at p. 858.)
“The rational basis test is extremely deferential and does not allow inquiry into the wisdom of government action. [Citation.] A court must reject an equal protection challenge to government action ‘if there is any reasonably conceivable state of facts that could provide a rational basis for the [difference in treatment]. [Citations.]’ [Citations.]... Under the rational basis test, courts must presume the constitutionality of government action if it is plausible that there were legitimate reasons for the action. In other words, the plaintiff must show that the difference in treatment was ‘“so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [government’s] actions were irrational.”’ [Citation.] Proving the absence of a rational basis can be an exceedingly difficult task. In some circumstances involving complex discretionary decisions, the burden may be insurmountable.” (Las Lomas, supra, 177 Cal.App.4th at pp. 858-859.)
In Las Lomas, the Court of Appeal concluded the developer could not state a “‘class of one’” equal protection claim because the city’s discretion to deny the land use approvals negated the allegation it acted in a “wholly irrational” manner when it rejected the developer’s project. (Las Lomas, supra, 177 Cal.App.4th at p. 860.) As the Las Lomas court explained, “‘[t]here are some forms of state action... which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be “treated alike, under like circumstances and conditions” is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.’ [Citation.]” (Las Lomas, supra, 177 Cal.App.4th at pp. 859-860.)
Here, Las Lomas is again fatal to Doheny’s attempt to allege a cause of action. As explained above, the City’s Municipal Code gave the City considerable discretion in deciding whether to grant Doheny a conditional use permit and a coastal development permit. The City exercised its discretion and denied Doheny the permits based on the City’s determinations regarding the Doheny House’s historical significance and the impact its loss would have on the community. The City’s discretion to weigh the project’s benefits and the impact caused by losing a historic resource fails to establish the City’s decision “was wholly irrational.” Doheny therefore cannot state a “‘class of one’” equal protection claim. (Las Lomas, supra, 177 Cal.App.4th at p. 860.)
F. Inverse Condemnation Cause of Action
The original petition and complaint alleged a cause of action for inverse condemnation based on a regulatory taking. The trial court sustained the City’s first demurrer to that cause of action without leave to amend. Doheny contends the trial court erred in doing so.
A regulatory taking occurs “where [a land use] regulation deprives the owner of all economically viable use” of its property. (Charles A. Pratt Construction Co., Inc. v. California Coastal Com. (2008) 162 Cal.App.4th 1068, 1080 (Charles Pratt).) Whether a regulatory taking occurs cannot be determined until the property owner exhausts all administrative and judicial remedies available for challenging the land use regulation’s application to the property at issue. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 10-11 (Hensler).)
Specifically, the property owner must obtain a final administrative decision from the public agency regarding the regulation’s application to the owner’s property. (Hensler, supra, 8 Cal.4th at pp. 10-11.) “The final administrative decision must be one that affords the administrative agency the opportunity to amend its decision or grant a variance to avoid paying should it be judicially determined that the particular application of the regulation constitutes a taking.” (San Luis Obispo, supra, 90 Cal.App.4th at p. 292.) The owner also must seek judicial review of that administrative decision through a petition for writ of administrative mandamus. (Hensler, supra, 8 Cal.4th at pp. 13-14.)
Only after exhausting these administrative and judicial remedies may a property owner seek compensation through an inverse condemnation claim. (Hensler, supra, 8 Cal.4th at pp. 10-14.) The reason for these requirements is they “‘assure[] that the administrative agency will have the alternative of changing a decision for which compensation might be required. If no such early opportunity were given, and instead, persons were permitted to stand by in the face of administrative actions alleged to be injurious or confiscatory, and three or five years later, claim monetary compensation on the theory that the administrative action resulted in a taking for public use, meaningful governmental fiscal planning would become impossible.’ [Citation.]” (San Luis Obispo, supra, 90 Cal.App.4th at p. 292.)
Here, the original complaint and petition alleged the City committed a regulatory taking by denying Doheny’s land use application because the denial deprived Doheny of any “meaningful use of the Property.” This claim fails, however, because Doheny did not exhaust all administrative and judicial remedies before proceeding with its inverse condemnation claim.
Doheny’s land use application, which Doheny allegedly submitted because it hoped to build five single-family homes on the property, constituted the first development proposal Doheny submitted to the City. The City’s denial of Doheny’s single development proposal fails to establish a regulatory taking claim. The claim is not ripe until the agency makes a final administrative determination regarding the level of development it will allow on the property. (Charles Pratt, supra, 162 Cal.App.4th at pp. 1081-1082.) In denying Doheny’s land use application, the City made no final determination regarding the level of development it would allow on the property. Rather, the City merely rejected Doheny’s first attempt to remove the Doheny House from the Historic Register and demolish all structures on the property.
Doheny’s original petition and complaint acknowledged potential alternative uses for the property, but Doheny failed to seek the City’s administrative determination regarding those uses. Specifically, the petition and complaint admitted Doheny had submitted an earlier application seeking permits to move the Doheny House to two different lots on the property and develop single-family homes on the property’s vacant lots. Doheny, however, never completed that application and abandoned it in favor of the application at issue in this appeal. Consequently, Doheny’s own pleading acknowledged it never obtained the final administrative determination necessary to establish an inverse condemnation claim.
Moreover, Doheny’s opening brief in this appeal completely abandons the foregoing basis for the inverse condemnation claim in favor of a new, unpleaded theory. Specifically, in its brief, Doheny argues the City committed a regulatory taking when it placed the Doheny House on the Historic Register without the property owner’s consent. This new theory, however, also fails because Doheny did not, and cannot, exhaust the administrative and judicial remedies necessary to establish an inverse condemnation claim.
The City adopted its Historic Resources Ordinance and listed the Doheny House on the Historic Register in 2001. Any action challenging the ordinance and its specific provisions relating to the Doheny House had to be filed within 90 days of the City adopting the ordinance. (Gov. Code, § 65009, subd. (c)(1)(B) [an action “[t]o attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance” must be filed and served within 90 days of the legislative body’s decision].) Doheny did not file this action until 2009 - eight years after the City adopted the ordinance. Consequently, any challenge to the City’s ordinance imposing special requirements on the Doheny House and listing it on the City’s Historic Register is time-barred.
The Supreme Court’s decision in Hensler made clear that an inverse condemnation action cannot be used to circumvent the time limits for challenging a land use regulation. Thus, the statute of limitations for challenging a land use regulation also applies to an inverse condemnation claim. (See Hensler, supra, 8 Cal.4th at pp. 6-7.) Here, after the City adopted its Historic Resources Ordinance in 2001, the property’s owner failed to timely challenge the ordinance or the restrictions it placed on the property. Consequently, Doheny’s inverse condemnation claim based on those restrictions is time-barred.
G. Leave to Amend
Doheny bore the burden to establish a reasonable possibility that it could amend its pleading to state a cause of action. To satisfy that burden, Doheny had to “‘show in what manner [it could] amend [its pleading] and how that amendment [would] change the legal effect of [its] pleading.’” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44.) Doheny, however, made no request for leave to amend in either the trial court or this court. Accordingly, we affirm the trial court’s decision denying Doheny leave to amend.
III
Disposition.
The judgment is affirmed. The City shall recover its costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P.J., MOORE, J.