Opinion
E065474
06-02-2017
FRIENDS OF FAWNSKIN, Plaintiff and Appellant, v. COUNTY OF SAN BERNARDINO et al., Defendants and Respondents; MARINA POINT DEVELOPMENT ASSOCIATES et al., Real Parties in Interest and Respondents.
Law Office of Babak Naficy and Babak Naficy for Plaintiff and Appellant. Jean-Rene Basle, County Counsel, Bart W. Brizzee and Jason M. Searles, Deputy County Counsel, for Defendants and Respondents. David A. Kay for Real Parties in Interest and Respondents.
ORDER MODIFYING OPINION; AND DENIAL OF PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
The petition for rehearing filed June 16, 2017, by Real Parties in Interest and Respondents Marina Point Development Associates et al., is denied. The joinder filed June 19, 2017, by defendant and respondent County of San Bernardino is denied. The opinion filed in this matter on June 2, 2017, is modified as follows:
The motion to take judicial notice filed June 16, 2017, by Real Parties in Interest and Respondents is also denied.
1. On page 8 of the opinion, section "F," "90-DAY DEADLINE" is deleted and replaced with the following:
"F. 90-DAY DEADLINE
"In sum, the permits concern a subdivision and the permits were issued by an advisory agency. As a result, any action attacking those permits needed to be brought within 90 days of the permits being issued. (§ 66499.37.) Friends filed its original petition on June 24, 2014. Friends contends the County violated the County Development Code by issuing (1) a grading permit on September 28, 2011; (2) a revised grading permit and a boundary wall permit on October 2, 2012; and (3) two demolition permits on April 22, 2014. The 2011 and 2012 permits fall beyond the 90-day deadline and are barred by the statute of limitations. (§ 66499.37.) The April 2014 demolition permits fall within the 90-day deadline and are not barred. (§ 66499.37.) Thus, Friends's petition is partially time-barred. The trial court erred by concluding the petition is entirely time-barred."
2. On page 8 of the opinion, a new subsection "G" is added, as follows:
"G. NOTICE
"At oral argument in this court, Developer asserted the statute of limitations for all of Friends's permit challenges began to run in 2011, when the first permit was issued, thus placing Friends on notice that the 1991 project approval had not expired. Developer asserted there is evidence reflecting Friends had notice in 2011 that the 1991 project approval had not expired. In particular, Developer referred to a letter that would provide proof of notice in 2011. This court cannot decide the evidentiary issue of whether Friends had notice in 2011. (Oildale Mutual Wat. Co. v. North of the River Mun. Wat. Dist. (1989) 215 Cal.App.3d 1628, 1634-1635.) Moreover, the parties did not brief the legal issue of whether notice in 2011 would trigger the statute of limitations so as to bar suits concerning subsequent acts. Accordingly, we will not examine the legal or factual issues related to notice. (See Flagship Theatres of Palm Desert, LLC v. Century Theatres, Inc. (2011) 198 Cal.App.4th 1366, 1386 [declining to discuss unbriefed issues due to "too many factual and legal indeterminancies"].)"
3. Subsection "G," "EXPIRATION OF THE PRIOR APPROVAL" is modified to reflect it is now subsection "H."
Except for these modifications, the opinion remains unchanged. The modifications do not effect a change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting. P. J. SLOUGH
J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1409159) OPINION APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Reversed in part; affirmed in part. Law Office of Babak Naficy and Babak Naficy for Plaintiff and Appellant. Jean-Rene Basle, County Counsel, Bart W. Brizzee and Jason M. Searles, Deputy County Counsel, for Defendants and Respondents. David A. Kay for Real Parties in Interest and Respondents.
The trial court denied the writ of mandate sought by Friends of Big Bear Valley (Friends). The trial court determined the petition was barred by the statute of limitations, i.e., Government Code section 66499.37, which provides a 90-day deadline for bringing an action to challenge an advisory agency's decision concerning a subdivision. Friends contends the trial court erred because Government Code section 66499.37 is not applicable to its petition. We reverse in part and affirm in part.
The trial court judgment names the petitioners as the Friends of Fawnskin. In an order from this court dated August 16, 2016, this court observed that "Friends of Fawnskin" and "Friends of Big Bear" were used interchangeably in the trial court. For the sake of keeping records consistent, in this opinion we will use the name reflected on the trial court judgment, i.e., Friends of Fawnskin.
FACTUAL AND PROCEDURAL HISTORY
A. PETITION
Friends filed a petition for writ of mandate on June 24, 2014, and a first amended petition in February 2015. The facts in this subsection are taken from the first amended petition (the petition). In 1991, the San Bernardino County Board of Supervisors (the Board) approved "a large-scale condominium and commercial development" project (the project) on the northern shore of Big Bear Lake. Irving Okovita and Marina Point Development Associates (collectively, Developer) were the project applicants. In the petition, Developer was listed as real parties in interest. San Bernardino County (the County) and the Board were listed as respondents.
In this appeal, Developer, as the real parties in interest, filed a respondents' brief. The County filed a joinder, joining in Developer's respondents' brief.
The project sat idle. Some construction commenced in the early 2000s, but was stopped by various agencies and a federal court injunction. On September 28, 2011, the County issued a grading permit for the project. A revised grading permit was issued for the project on October 2, 2012. Also in early October 2012 the County issued a boundary wall permit for the project. On March 18, 2014, Developer submitted a site plan revision to the County to obtain approval for various changes to the project.
In Friends's first cause of action, it alleged violations of the County's Development Code. Friends alleged Developer failed to record a tract map or obtain a building permit within five years of the project's approval, which, under the County's Development Code section 86.06.060, subdivision (a)(5)(B), caused the 1991 Planned Development Permit to expire. Friends asserted the County violated the County's Code by issuing grading and demolition permits for the project because the 1991 approval had expired. The grading permits were issued in September 2011 and October 2012; the boundary wall permit was issued in October 2012; and two demolition permits were issued in April 2014.
Friends sought (1) a writ requiring the County to set aside the demolition, grading, and boundary wall permits; (2) a declaration that the approvals for the project had expired, and that the County was prohibited from issuing permits for the project until new land use approvals were issued; (3) costs; (4) attorney's fees; and (5) any other relief the court deemed proper.
Friends sought dismissal of its second cause of action; the court granted the dismissal. In July 2015 the trial court sustained Developer's demurrer to Friends's third cause of action without leave to amend.
B. OPPOSITION
In Developer's opposition to Friends's petition, Developer asserted the petition was untimely. Developer asserted Friends had 90 days to bring its challenge. (Gov. Code, § 66499.37.) Developer contended Friends would have needed to file its petition "within 90 days of December 2005, the date [Friends] cite . . . as the date the Development Plan approval expired."
All further statutory references are to the Government Code unless otherwise indicated.
C. RULING
The trial court denied Friends's petition citing the statute of limitations. (§ 66499.37.)
DISCUSSION
A. CONTENTION
Friends contends the trial court erred by finding its petition was time-barred by section 66499.37.
B. STANDARD OF REVIEW
"The application of the statute of limitations on undisputed facts is a purely legal question [citation]; accordingly, we review the lower court['s ruling] de novo. We must take the allegations of the [petition] as true and consider whether the facts alleged establish [Friends's] claim[s are] barred as matter of law." (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.)
Section 66499.37 provides, in relevant part, "Any action or proceeding to attack, review, set aside, void, or annul the decision of an advisory agency, appeal board, or legislative body concerning a subdivision, or of any of the proceedings, acts, or determinations taken, done, or made prior to the decision, or to determine the reasonableness, legality, or validity of any condition attached thereto, including, but not limited to, the approval of a tentative map or final map, 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. Thereafter all persons are barred from any action or proceeding or any defense of invalidity or unreasonableness of the decision or of the proceedings, acts, or determinations."
D. SUBDIVISION
"'Subdivision' includes a condominium project." (Gov. Code, § 66424.) "A condominium project' means a real property development consisting of condominiums." (Civ. Code, § 4125.)
In 1991, the project was described as a "133-condominium and commercial 'destination resort,'" which would include recreational and spa facilities and expand the marina from 60 to 175 boat slips. In mid-2013, Developer advertised the condominium units to the public and described them as having different sizes and designs than in the previously approved 1991 development plan. In other words, in 2013, the project still consisted of condominiums.
The allegations in the petition describe the project as a large condominium development because the allegations reflect the primary feature of the project is 133 condominium units. Accordingly, we conclude the project concerns a subdivision because it is a condominium project.
Friends contends the grading, demolition, and boundary wall permits do not concern a subdivision because they are construction permits. Friends's argument is unpersuasive because it looks at the permits in a discrete manner, rather than looking at the larger project. The permits were issued as part of the permitting process for the subdivision. Accordingly, the permits concerned a subdivision. (§ 66499.37.)
E. ISSUING BODY
Section 66499.37 applies to decisions rendered by an advisory agency, appeal board, or legislative body.
In Friends's petition, it alleges "the County" issued the permits. In the "Parties" section of the petition, Friends defines "the County" as "a political subdivision of the State of California, acting through its various departments and officials." It is unclear from the facts alleged in the petition which person or what agency issued the permits.
Under the law, only the "Building Official" may "issue building, grading, or other construction permits." (San Bernardino County Development Code, § 81.01.050, subd. (b).) "Building Official" is defined as "[t]he Deputy Director of Land Use Services for Building and Safety, charged with the administration and enforcement of this Development Code, or an authorized designee." (San Bernardino County Development Code, § 810.01.040, subd. (v).)
Thus, the building official is a person—the deputy director of an agency. S/he is charged with administration and enforcement of the Development Code. Because nothing in that job description includes hearing appeals, the building official is not an appeal board. Additionally, nothing in the definition of the building official's role includes creating ordinances, so the building official is not a legislative body.
Next, we look to whether the building official is an advisory agency. Under the County Code, the "Advisory Agency" is the Land Use Services Department. (San Bernardino County Development Code, §§ 81.02.020, subd. (c)(1), 87.01.060, subd. (a).) The building official is the Deputy Director of Land Use Services for Building and Safety. (San Bernardino County Development Code, § 810.01.040, subd. (v).) An agency, like a corporation, acts through its employees. (See People ex rel. Herrera v. Stender (2012) 212 Cal.App.4th 614, 638-639 [corporations act through their employees].) Therefore, the building official acts on behalf of the advisory agency.
The April 22, 2014, demolition permits do not reflect, by name or title, who issued the permits. The permits reflect they were issued by "User Id: H1749," but that is the only identifying employee information we can find. Similarly, the boundary wall permit and the revised grading permit issued on October 2, 2012, reflect they were issued by "User Id: W0877."
We must presume the building official performed his/her duty and issued the permits. (Evid. Code, § 664.) Accordingly, the permits were issued by an agency employee, who had the authority to issue such permits, and the agency is an advisory agency. Therefore, the permits were issued by an advisory agency.
F. 90-DAY DEADLINE
In sum, the permits concern a subdivision and the permits were issued by an advisory agency. As a result, any action attacking those permits needed to be brought within 90 days of the permits being issued. (§ 66499.37.) Friends filed its original petition on June 24, 2014. Friends contends the County violated the County Development Code by issuing (1) a grading permit on September 28, 2011; (2) a revised grading permit and a boundary wall permit on October 2, 2012; and (3) two demolition permits on April 22, 2014. The 2011 and 2012 permits fall beyond the 90-day deadline and are barred by the statute of limitations. (§ 66499.37.) The April 2014 demolition permits fall within the 90-day deadline and are not barred. (§ 66499.37.) Thus, Friends's petition is partially time-barred. The trial court erred by concluding the petition is entirely time-barred.
At oral argument in this court, Developer asserted the statute of limitations for all of Friends's permit challenges began to run in 2011, when the first permit was issued, thus placing Friends on notice that the 1991 project approval had not expired. Section 66499.37 provides, in relevant part, "Any action or proceeding to attack, review, set aside, void, or annul the decision of an advisory agency . . . concerning a subdivision, or of any of the proceedings, acts, or determinations taken, done, or made prior to the decision, or to determine the reasonableness, legality, or validity of any condition attached thereto, including, but not limited to, the approval of a tentative map or final map, 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."
When interpreting a statute, we begin with the usual and ordinary meaning of the statute's words. The statute's plain meaning controls, unless the words are ambiguous. (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 860-861.) A court has no authority to insert omitted words into a statute. (Code Civ. Proc., § 1858.)
The term to be interpreted is "the decision." The statute reflects a decision can relate to "but [is] not limited to, the approval of a tentative map or final map." The statute reflects "the decision" does not have a limited definition. As a court, we do not have the authority to add limiting language into the statute by interpreting "the decision" as "the first decision where subsequent decisions share the same gravamen." Besides being beyond this court's authority, such an interpretation could cause practical problems.
For example, a petitioner might not be troubled by a "first decision," but ultimately sees a problem with the fourth decision made by the advisory agency, even when those decisions share similar gravamens. If the words "first decision" were read into the statute, then the petitioner might need to file a petition after the "first decision" in order to toll the statute of limitations for the sake of challenging future decisions by the advisory agency.
This could lead to unnecessary "placeholder" or "shell" petitions wherein a petitioner files a lawsuit within 90 days of the "first decision" in case there are future decisions the petitioner finds more troubling. Justice Corrigan wrote in a concurring opinion, "Shell petitions are not true petitions at all, but merely placeholders designed to toll the federal statute of limitations. Further, shell petitions serve no state interest. . . . [T]he practice of accepting shell petitions ill serves both defendants and the public." (In re Morgan (2010) 50 Cal.4th 932, 942 (conc. opn. of Corrigan, J.).)
In sum, this court does not have the authority to add words to section 66499.37, and there is a policy reason to not add such words as well, i.e., the possible filing of unnecessary petitions for the sake of tolling the statute of limitations. As a result, we are not persuaded that the statute of limitations, for all of Friends's permit challenges, began running in 2011.
Developer asserted this court previously interpreted section 664499.37 as requiring a challenge to be brought within 90 days of an agency's first decision, when all the subsequent challenges share the same gravamen as the challenge to the first decision. Developer cited to Friends of Riverside's Hills v. City of Riverside (2008) 168 Cal.App.4th 743, 750. In that case, this court considered whether the 90-day statute of limitations set forth in section 66499.37 "governs all actions 'concerning a subdivision,' even those grounded in alleged violations of CEQA." (Riverside's Hills, at p. 749.) This court held, "section 66499.37 applies to all causes of action brought to challenge a local body's decision under the [Subdivision Map Act]." (Id. at p. 751.) We are not persuaded that the Friends of Riverside's Hills case added "first decision" language into section 66499.37.
A case that supports Developer's position is Presenting Jamul v. Board of Supervisors (1991) 231 Cal.App.3d 665. In that case, the appellate court explained that section 66499.37 was created to expedite cases related to subdivisions so as to avoid increased development and housing costs. (Id. at pp. 670-671.) The opinion further provided, "The courts have not hesitated to apply section 66499.37 so as to require litigants to timely commence their litigation challenging subdivision-related decisions at the earliest reasonable opportunity." (Id. at p. 671.)
Under Presenting Jamul, arguably, if Friends had notice of the 2011 permit then Friends should have brought its lawsuit within 90 days of the 2011 permit being issued, because that would be the earliest reasonable opportunity to challenge the non-expiration of the 1991 approval. In Friends's petition, it alleged, "without providing public notice or opportunity to comment, the County issued a new grading permit for the Project site on September 28, 2011 and a revised grading permit on October 2, 2012. The County also issued a boundary wall permit for the site in early October 2012, again without any notice to the public."
Given the foregoing allegations concerning lack of notice, we cannot conclude Friends had notice of the 2011 and 2012 decisions, such that Friends should have brought its petition in 2011 or 2012. (See Aryeh v. Canon Business Solutions, Inc., supra, 55 Cal.4th at p. 1191 ["We must take the allegations of the [petition] as true"].)
At oral argument in this court, Developer asserted that "The first permit was in 2011, when they got this grading permit and that was accompanied by a letter from the County, [in] which these People had brought this up and had argued to the County that 'no this thing is expired.' And the County considered that. And they wrote a letter to the Developer saying 'your permit is still good, it is not expired, it's still good.' And they got the grading permit."
In Developer's opposition to the writ of mandate it cited a 2011 letter, which is included in the administrative record. The 2011 letter is addressed to Okon Development Co. The letter is from the County Land Use Services Department. The letter reflects carbon copies were sent to the planning director, county counsel, and "Site-Design Associates."
The letter reflects, "This letter is in response to your request for the record concerning the Environmental Impact Report (EIR) and Final Development Plan for the Marina Point Project." The letter reflects the County's conclusion that the project "remain[s] active." The letter does not discuss Friends, and does not reflect the letter was sent to Friends. Therefore, the letter does not support a finding that, in 2011, Friends had notice of the County's conclusion that the 1991 project approval had not expired.
In sum, we cannot conclude Friends had notice of the decisions in 2011 and/or 2012 such that, pursuant to Presenting Jamul, it should have brought its petition within 90 days of the County issuing the 2011 or 2012 permits.
G. EXPIRATION OF THE PRIOR APPROVAL
Friends contends the permits were void ab initio due to the expiration of the project approval. The trial court did not consider the merits of this contention because it denied the petition based upon its conclusion that the petition was entirely time-barred. We do not further address this contention because there is nothing for us to review due to the trial court not considering the issue.
Friends requests this court take judicial notice of a document entitled "Marina Point Planned Development Tract 12217—Chronology" (the document). Friends asserts judicial notice is proper because the document is "an 'official act' of a public agency." (Evid. Code, § 452, subd. (c).) In a declaration attached to the request, an attorney declares the document was produced by the County Land Use Services Department in response to a Public Records Act request. It is unclear who authored the document. For example, it is unclear if the document was given to the County or if the County created it. Because the author of the document is unclear, we cannot determine if the document constitutes an official act of a public agency. Therefore, we deny Friends's request for judicial notice. (State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1985) 40 Cal.3d 5, 10, fn. 3; Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1263, fn. 13.)
DISPOSITION
The judgment is affirmed in part and reversed in part. The judgment is affirmed as to the allegations regarding the September 28, 2011, and October 2, 2012, permits. The judgment is reversed as to the allegations concerning the two April 22, 2014, demolition permits. (See City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 773 [allegations may be parsed from a mixed cause of action]; see also Baral v. Schnitt (2016) 1 Cal.5th 376, 396 [same].) The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.