Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC091268, Linda K. Lefkowitz, Judge. Reversed.
Allen Matkins Leck Gamble Mallory & Natsis, George T. McDonnell, Robert R. Moore, James T. Burroughs and David H. Blackwell, for Plaintiff and Appellant.
Jenkins & Hogin, Christi Hogin and Gregg Kovacevich, for Defendants and Respondents.
ASHMANN-GERST, J.
Trancas-PCH, LLC (Trancas-PCH) filed a petition for writ of administrative mandate and traditional mandate against the City Council of the City of Malibu (Council) and the City of Malibu (City). In its first cause of action, Trancas-PCH asked the trial court to direct the Council to set aside its March 24, 2003, decision in Resolution No. 03-15 denying Trancas-PCH’s final subdivision maps (final maps) for a proposed development. According to Trancas-PCH, the Council committed a prejudicial abuse of discretion because the final maps were in substantial compliance with the tentative maps when the final maps were filed in 1993. In its second cause of action, Trancas-PCH sought an order directing the City to approve the final maps. The trial court sustained a demurrer based on the collateral estoppel effect of Trancas Property Owners Association v. California Coastal Commission (Dec. 18, 2001, B142315) [nonpub. opn.] (Trancas II) and dismissed the petition. On appeal, Trancas-PCH contends that the collateral estoppel doctrine does not bar the first or second causes of action, the first cause of action is not barred by the 90-day statute of limitations, and the second cause of action states sufficient facts. Contrary to the Council’s position, we conclude that whether the collateral estoppel doctrine or the 90-day statute of limitations apply involves factual issues that cannot be resolved on demurrer. Further, we agree that the petition alleges sufficient facts to demonstrate that the City has a present, ministerial duty to approve the final maps. We reverse.
FACTS
Tentative map approval
In 1985, the Los Angeles County Board of Supervisors gave tentative map approval to Trancas Town Ltd. for a proposed development on 35 acres and imposed conditions.
Trancas-PCH is the successor in interest to Trancas Town Ltd.
Trancas Town
The City was incorporated in 1991.
Trancas Town Ltd. submitted its final maps to the City for review on January 25, 1993. The City denied approval, claiming that Trancas Town Ltd.’s tentative maps had expired. The trial court disagreed and ordered the City to review Trancas Town Ltd.’s final maps. We affirmed the trial court in Trancas Town, Ltd. v. City of Malibu (May 10, 1995, B083587) [nonpub. opn.] (Trancas Town). Our decision did not state or discuss whether Trancas Town Ltd. had demonstrated that it fulfilled the tentative map conditions.
Trancas I
The City’s engineer approved the final subdivision maps of Lunita Pacific, L.L.C. (Lunita) on August 12, 1996. Only after litigation, and not until September 1997, did the Council approve the final subdivision map. The Trancas Property Owners Association (Owners Association) filed an action for declaratory and injunctive relief against the California Coastal Commission (Commission) and Lunita to halt Lunita’s proposed development on the grounds that the coastal development permit had expired on March 12, 1997, before the project or construction commenced. Owners Association lost and filed an appeal. In Trancas Property Owners Assn. v. City of Malibu (1998) 61 Cal.App.4th 1058, 1060 (Trancas I), Division One of the Court of Appeal, Second Appellate District affirmed. It adopted the Commission’s interpretation of the permit provisions in the California Coastal Act of 1976. The court explained: [“I]t is the Commission’s view that ‘where the applicant has diligently performed all the acts necessary to carry out the conditions of the permit, it would be unfair to require the applicant to obtain a permit extension [as permitted by the permit and also by section 13169].’ According to the Commission, the City engineer’s approval of Lunita’s final subdivision map is the date on which the project commenced, and the permit was therefore ‘effectuated’ before it expired.” (Trancas I, supra, at p. 1061.)
Lunita is not a party to the present appeal.
Trancas II
In 1998, the Owners Association sued Trancas-PCH and the City to enjoin Trancas-PCH’s proposed development. According to Owners Association, Trancas-PCH’s coastal development permit expired in 1996 and the City erroneously approved the final maps. The trial court granted summary judgment for Trancas-PCH. In reversing the trial court, the Trancas II court applied Trancas I and stated: “[A] project is commenced if the city engineer approves . . . final subdivision maps before the [coastal development permit’s] expiration date. At the time [Trancas Town Ltd.] submitted its final map to the City in 1993, it had not fulfilled several conditions of the tentative map: regional water quality control board approval of method of waste discharge, geology concept approval, environmental health concept approval, improvement bonds, parkland in-lieu fees, fire department approval, agreement relating to environmental mitigation, a variance from the City permitting grading in excess of 1,000 cubic yards per lot, and percolation testing.” (Trancas, supra, B142315.) The court went on to say that the instruction from the Commission’s chief counsel to the City to approve Trancas-PCH’s final maps conflicted with statutory requirements because final subdivision maps cannot be approved until they conform to the tentative maps.
Trancas III and Trancas IV
In 2003, Trancas-PCH filed (Trancas-PCH, LLC v. City of Malibu (Jan. 28, 2003, SC075668) (Trancas III) to enjoin the City from denying the final maps until Trancas-PCH had the opportunity to fulfill the tentative map conditions that had previously been secured but had subsequently been lost. The City adopted Resolution No. 03-15 disapproving the final maps based on a finding that Trancas-PCH had not satisfied tentative map conditions before they expired in 1993 or 1996. Trancas-PCH and the City entered into a settlement (April 30, 2003, settlement) in which the City agreed to process the final maps.
Owners Association filed a petition for writ of mandate and complaint for declaratory relief against the City and Trancas-PCH and claimed that the April 30, 2003, settlement was invalid. While the appeal in Trancas IV was pending, the Council approved an agreement tolling the statute of limitations on Trancas-PCH’s action (tolling agreement). Trancas-PCH dismissed Trancas III. Owners Association lost at trial. Division Eight of the Court of Appeal, Second Appellate District reversed in Trancas Property Owners Assn. v. City of Malibu (2006) 138 Cal.App.4th 172, 188 (Trancas IV). Remittitur issued on June 30, 2006.
Owners Association and the City entered into a confidential agreement (confidential agreement) that obligated the City to refrain from entering a new settlement with Trancas-PCH, rescinding Resolution No. 03-15, or initiating any amendments to its planning and zoning regulations to allow the Trancas-PCH development to proceed. It obligated the City to terminate the tolling agreement. The terms of the confidential agreement were not made public.
This representation of the facts is taken from Trancas-PCH’s petition for writ of mandate. Because we are reviewing a demurrer, we must assume the truth of the facts that Trancas-PCH alleged.
After Trancas IV was decided unfavorably to Trancas-PCH, it filed a petition for review with the California Supreme Court. That petition was denied on June 21, 2006. The Court of Appeal issued the remittitur on June 30, 2006. On August 8, 2006, the trial court issued a writ of mandate commanding the Council to set aside the April 30, 2003, settlement. On September 11, 2006, the Council adopted Resolution No. 06-59 rescinding approval of the April 30, 2003, settlement. Trancas-PCH filed the present action on September 29, 2006.
Some of these events and dates do not appear in the petition or elsewhere in the record. The City and Council did not ask the trial court nor us to take judicial notice of the events or dates referenced. But in the reply brief, Trancas-PCH acknowledges those dates and events. We will accept them as fact.
The petition in the present action
In its first cause of action, Trancas-PCH sought an order compelling the Council to set aside Resolution No. 03-15. In its second cause of action, Trancas-PCH requested an order directing the City to process and approve the final maps. With respect to the second cause of action, Trancas-PCH alleged: “62. The City has a ministerial duty under the Subdivision Map Act to approve [Trancas-PCH’s] final maps if the subdivision is substantially the same as it appeared on the Tentative Maps and if the subdivision complies with all [Subdivision] Map Act provisions and local ordinances at the time the Tentative Maps were approved. [¶] 63. When [Trancas-PCH] filed its final maps with the City in January 1993, the final maps were substantially the same as the Tentative Maps and they complied with all [Subdivision] Map Act provisions and local ordinances at the time the Tentative Maps were approved. [¶] 64. Instead of processing and approving the final maps, the City refused to process them based upon the erroneous claim that the Tentative Maps had expired in September 1992. This claim was refuted by the trial court and appellate court in 1994 and 1995, respectively, wherein the courts held that the Tentative Maps did not expire until late 1993. [¶] 65. The City was, and is, obligated to approve the final maps.”
The demurrer
The City and Council demurred based on the statute of limitations and the collateral estoppel effect of the statement in Trancas II that in 1993 the tentative map conditions were unfulfilled. Additionally, the City argued that it did not have a present ministerial duty to approve the final maps.
Relying on Trancas II, the trial court sustained the demurrer without leave to amend based on collateral estoppel. The minute order stated that Trancas II determined that Trancas-PCH “had not qualified for final approval” and that “a determination of whether [Trancas-PCH] had qualified for tentative map approval was necessarily decided in the prior proceeding.”
Trancas-PCH moved for a new trial. The motion was denied.
This timely appeal followed.
STANDARD OF REVIEW
When a trial court sustains a demurrer without leave to amend, we review the complaint de novo in order to determine whether it alleges facts sufficient to state a cause of action under any legal theory. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.) We give the complaint a reasonable interpretation and treat the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) A complaint’s allegations “must be liberally construed with a view to attaining substantial justice among the parties. [Citations.]” (Kotlar v. Hartford Fire Ins. Co. (2000) 83 Cal.App.4th 1116, 1120.)
DISCUSSION
Trancas-PCH argues that collateral estoppel does not apply, the petition is timely, and the second cause of action states sufficient facts. The City and the Council argue that this action is barred by the collateral estoppel effect of Trancas II and Trancas Town, the statute of limitations on the petition for administrative mandate expired in August 2006, and the petition for traditional mandate fails because the City does not have a clear, present, ministerial duty to approve the final maps.
The City and Council raise laches even though it was not argued in the trial court. Points not raised in the trial court will not be considered on appeal. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.)
Our analysis lies below.
1. Petition for administrative mandate.
On demurrer, it is impossible to determine whether the fulfillment of tentative map conditions was actually litigated, whether Trancas-PCH had a full and fair opportunity to litigate the issue, and whether the fundamental principles of collateral estoppel would be served by the application of that doctrine. Trancas Town was not argued below, and argument based on it was waived. On the merits, it does not trigger collateral estoppel.
There are factual issues regarding when the statute of limitations expired. Those issues were unresolved by the Council’s demurrer.
a. Collateral estoppel: Trancas II.
Trancas II contained a statement that when the final maps were submitted in 1993, they were not in compliance with the tentative maps. Approval of a final map is mandatory only if it is in substantial compliance with a previously approved tentative map. (Gov. Code, § 66474.1.) Thus, if the statement in Trancas II has preclusive effect, then Trancas-PCH is prohibited from requesting an order directing the Council to rescind Resolution No. 03-15. After applying the law, we conclude that there are factual issues that remain to be litigated.
All further statutory references are to the Government Code unless otherwise indicated.
(i) The law.
The elements of collateral estoppel are: “‘First, the issue sought to be precluded from litigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.’ [Citation.] Even if these threshold requirements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles.” (Gikas v. Zolin (1993) 6 Cal.4th 841, 849.)
When examining whether an issue was actually litigated, “the court in the subsequent action cannot rely exclusively on the findings in the underlying action but must ‘carefully scrutinize’ the pleadings and proof. [Citation.] This scrutiny includes looking behind the findings at the evidence presented to determine what was actually decided. [Citation.] The party asserting collateral estoppel must prove the issue was raised, actually submitted for determination and determined and that contrary evidence on the issue was not restricted. [Citation.]” (Schaefer/Karpf Productions v. CNA Ins. Companies (1998) 64 Cal.App.4th 1306, 1314.)
Courts examine whether the party subject to collateral estoppel had a full and fair opportunity to litigate the issue. (Roos v. Red (2005) 130 Cal.App.4th 870, 880.) “To that end, the courts have recognized that certain circumstances exist that so undermine the confidence in the validity of the prior proceeding that the application of collateral estoppel would be ‘unfair’ to the [party] as a matter of law. [Citation.] Such ‘unfair’ circumstances include a situation where the defendant had no incentive to vigorously litigate the issue in the prior action, ‘particularly if the second action is not foreseeable.’ [Citations.]” (Ibid.)
(ii) The issues actually litigated in Trancas II cannot be determined.
When it filed its demurrer, the Council bore the burden of establishing that the fulfillment of conditions in 1993 was actually litigated. In its reply brief, the Council argued that the Trancas II court recognized that Trancas Town Ltd. had not fulfilled the tentative map conditions when it submitted the final maps in 1993. The Council asked the trial court to take judicial notice of Trancas II and Trancas-PCH’s separate statement in support of its motion for summary judgment in Trancas II. The Council did not ask the trial court to take judicial notice of any of the papers submitted in connection with Owners Association’s motion for summary judgment, nor any of the appellate briefs in Trancas II.
In opposition to Trancas-PCH’s motion for new trial, the City and Council asked the trial court to take judicial notice of the appellate briefs, including Trancas-PCH’s petition for rehearing in Trancas II and the reply to it. The City and Council also asked the trial court to take judicial notice of documents related to Trancas Town. The City and Council asked us to take judicial notice of the documents it submitted to the trial court in connection with the motion for new trial. We hereby grant that request. But these documents were not considered by the trial court in connection with the demurrer. Also, there is no indication—either in the record or the appellate briefs—that the trial court took judicial notice of these documents when denying a new trial. “[D]ocuments not before the trial court cannot be included as part of the record on appeal and thus must be disregarded as beyond the scope of appellate review. [Citations.]” (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632 (Pulver).) Based on Pulver, these documents do not impact our decision.
To determine this issue, we are required to scrutinize the pleading and proof, and to assess whether evidence on the issue was restricted. On the demurrer record, we are precluded from carrying this scrutiny out. The opinion in Trancas II suggests what was actually litigated, but it verifies nothing. The separate statement in support of Trancas-PCH’s motion for summary judgment does not establish what was litigated in connection with Owners Association’s motion. As a result, we conclude that the trial court erred when it impliedly found that the issue of the fulfillment of the conditions in 1993 was actually litigated. This is a question of fact that cannot be resolved at the pleading stage. Its resolution will have to wait until the parties file motions for summary judgment or proceed to trial.
(iii) Full and fair opportunity to litigate; fundamental principles.
At the demurrer stage, the trial court was not in a position to determine whether Trancas-PCH had an incentive or a full and fair opportunity in Trancas II to argue the fulfillment of tentative map conditions in 1993. The City and Council did not participate in the motions for summary judgment or the appeal in Trancas II. Moreover, the trial court did not have the benefit of the summary judgment papers submitted by the parties in connection with Trancas II, nor did it have the benefit of the appellate briefs. Without knowing more, the trial court’s resolution of this issue was premature. Finally, we note that in the absence of a fully developed record, we cannot discern whether the fundamental principles of collateral estoppel are served by the doctrine’s application to this case.
We express no opinion as to whether the fulfillment of tentative map conditions was necessarily decided in Trancas II.
b. Collateral estoppel: Trancas Town.
In Trancas Town, the trial court ordered the City to review the final maps for substantial compliance with the tentative maps. It declined to tell the City to approve the final maps, which means it did not decide whether the tentative maps conditions had been satisfied in 1993. In affirming, the appellate court did not go further. Unlike Trancas II, Trancas Town did not even broach the subject.
c. Statute of limitations.
Pursuant to section 66499.37, Trancas-PCH had 90 days to challenge decisions made by the City and Council.
According to the City and Council, the 90 days began to run on March 24, 2003, the day of Resolution No. 03-15. The City and Council assume, for sake of this appeal, that the clock was frozen from the date of the April 30, 2003, settlement to June 21, 2006, when Trancas-PCH’s petition for review was denied, or June 30, 2006, when the Court of Appeal issued the remittitur in Trancas IV after holding that the April 30, 2003, settlement was invalid. The City and Council argue that 53 days were left on the clock and the statute of limitations expired sometime in August 2006.
Trancas-PCH argues that its claim is saved by the tolling agreement. For purposes of this appeal, we agree.
As alleged, the City did not publicize the confidential agreement to rescind the tolling agreement. Because we must accept the veracity of the allegations on demurrer, the pleading establishes a question of fact regarding when Trancas-PCH discovered this allegedly secret deal. Moreover, if the City gave notice of rescission to Trancas-PCH, there are questions regarding whether it was within 53 days of September 29, 2006, and whether the City had the power to rescind. Those questions are beyond the purview of the Council’s demurrer. Though the parties argue equitable tolling, we express no opinion as to whether it applies.
The petition states that Trancas-PCH did not know about the agreement to rescind the tolling agreement until it was written about in The Malibu Times. The date Trancas-PCH became aware of the agreement to rescind is not in the record, and we fail to perceive its relevance. More importantly, there is no allegation that the City ever attempted a rescission. Whether it did so is a question of fact that cannot be reached on demurrer. We note that Trancas-PCH asks us to take judicial notice of an August 17, 2006, letter from the City’s counsel purporting to rescind the tolling agreement. Though we have taken judicial notice of it, we give it no weight because it was not presented to the trial court. (Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184.) We granted Trancas-PCH’s August 16, 2008, request for judicial notice in its entirety.
2. Traditional mandate.
Trancas-PCH argues that the City has a duty to approve the final maps. The City contends that even if there was a duty to approve the final maps in 1993, the pleading does not establish a present duty. The City also argues that this claim is barred by the collateral estoppel effect of Trancas II and Trancas Town. We reject the collateral estoppel argument on the same grounds as discussed in part 1(a) of the discussion, ante. Based on a liberal construction of the pleading, this cause of action has merit and the dismissal must be reversed.
a. The law.
A legislative body must approve a final or parcel map if it is in substantial compliance with the previously approved tentative map. (§ 66474.1.) This statute recognizes that “[o]nce the tentative map is approved, the developer often must expend substantial sums to comply with the conditions attached to that approval. These expenditures will result in the construction of improvements consistent with the proposed subdivision, but often inconsistent with alternative uses of the land. Consequently it is only fair to the developer and to the public interest to require the governing body to render its discretionary decision whether and upon what conditions to approve the proposed subdivision when it acts on the tentative map. Approval of the final map thus becomes a ministerial act once the appropriate officials certify that it is in substantial compliance with the previously approved tentative map. [Citations.]” (Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 655–656.)
b. The pleading demonstrates a present, ministerial duty.
Code of Civil Procedure section 1085 establishes the authority for writs of mandate and “permits challenges to ministerial acts by local officials. To obtain such a writ, the petitioner must show (1) a clear, present, ministerial duty on the part of the respondent and (2) a correlative clear, present, and beneficial right in the petitioner to the performance of that duty. [Citations.] A ministerial duty is an act that a public officer is obligated to perform in a prescribed manner required by law when a given state of facts exists. [Citation.]” (Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 128–129.)
The petition alleges that the final maps filed in 1993 complied with the tentative maps. If that is true, then the City has a present, ministerial duty to approve the final maps. As provided by section 66458, subdivision (a), a legislative body must approve a map “if it conforms to . . . any local subdivision ordinance applicable at the time of approval or conditional approval of the tentative map and any rulings made thereunder.” (§ 66458, subd. (a).)
We express no opinion as to whether Trancas-PCH’s petition could have or should have been brought sooner. Issues regarding laches, estoppel and other equitable doctrines have not been considered.
DISPOSITION
The dismissal is reversed.
Trancas-PCH shall recover its costs on appeal.
We concur: BOREN, P. J., DOI TODD, J.