Opinion
A167725
04-25-2024
BRIAN J. VESCE et al., Plaintiffs and Appellants, v. CITY OF LAFAYETTE, Defendant and Respondent.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. MSC-20-01130
CASTRO, J. [*]
Brian J. Vesce and Allyson Vesce (plaintiffs) appeal from a judgment dismissing defendant City of Lafayette (City) after the trial court sustained the City's demurrer without leave to amend, concluding that plaintiffs' claim was barred by the 90-day statute of limitations set forth in Government Code section 66499.37, and required an administrative writ-not a declaratory relief-action. We reverse.
All undesignated statutory references are to the Government Code.
I. BACKGROUND
We take the following facts from plaintiffs' operative third amended complaint and accept them as true. (See Brown v. Deutsche Bank National Trust Co. (2016) 247 Cal.App.4th 275, 279 (Brown).)
The subject residential property is located on Happy Valley Road in Lafayette. Set far off the road, the property includes an entry drive that connects to the road. From Happy Valley Road, that drive extends east towards the property, across a narrow path over a creek and through a wooded area, to its far eastern point where it meets Glen Road. This route, which is on the property, is known as the "Dips." Pedestrians use the Dips as a shortcut to connect between Happy Valley Road and Glen Road.Additionally, there are seven other properties nearby that have the right to use the Dips to access their property.
Based on facts alleged in the complaint, we infer that the Dips is accessed by pedestrians, not vehicles. (See Sonoma Luxury Resort LLC v. California Regional Water Quality Control Bd. (2023) 96 Cal.App.5th 935, 940 (Sonoma Luxury Resort) [we assume the truth of facts that may be implied or reasonably inferred from facts expressly alleged].)
In 2000, the property's prior owners applied to reconfigure the property from three parcels into two. The City approved the application and adopted a resolution containing conditions of approval. One such condition, the" 'S-3 Access Condition'" (S-3 Access Condition or condition), mandated the" 'private right-of-way easement shall be left open for pedestrian access between Happy Valley Road and Glen Road.'" The resolution did not detail the easement being addressed or identify which properties benefitted from the easement or who was entitled to access it. In 2002, the prior owners recorded their subdivision map, but it did not mention the condition.
Plaintiffs purchased the property in 2016, without notice of the S-3 Access Condition. Before they purchased the property, plaintiffs requested copies of property records from the City. We infer that the City provided some documents to plaintiffs, including the subdivision map. The City, however, did not provide a copy of the resolution that included the condition. When plaintiffs moved into the property in 2017, they saw people using the Dips to cross between Happy Valley Road and Glen Road. During a remodeling period, several pedestrians became confrontational, causing plaintiffs to call the police, who advised plaintiffs to place "no trespassing" signs and to install a fence at the end of their driveway to stop pedestrians from crossing their property. After plaintiffs did so, the fence was vandalized and thrown into a nearby creek.
See Sonoma Luxury Resort, supra, 96 Cal.App.5th at page 940.
In late 2017, the City's assistant planning director acknowledged the City's mistake in failing to provide plaintiffs with a copy of the resolution before they purchased the property. The assistant director also informed plaintiffs of his belief, based on his reading of the S-3 Access Condition, that the Dips should be left open for pedestrian access and that blocking the route with a fence would violate the condition. When plaintiffs inquired whether there were any limitations on which pedestrians had such access, the assistant director replied no definition existed but "it would be good to define [it]."
In 2020, plaintiffs filed a complaint against the City "to determine the proper interpretation of the S-3 Access Condition." The City demurred to plaintiffs' subsequent first and second amended complaints on multiple grounds including, as pertinent here, that plaintiffs' claim was barred by the 90-day statute of limitations set forth in section 66499.37, and that an administrative mandamus proceeding under Code of Civil Procedure section 1094.5 was the exclusive remedy for judicial review of the City's actions. The trial court sustained both prior demurrers with leave to amend.
In April 2021, as part of an interim arbitration award in a separate action against the property's prior owners, plaintiffs were awarded $1,587,334 for diminution in property value, loss of use and enjoyment, and remodel and renovation costs.
The operative third amended complaint (hereafter complaint) asserted a single cause of action for declaratory relief. Plaintiffs sought a declaratory judgment interpreting the S-3 Access Condition such that it "only required that the [prior owners] keep open pedestrian access between Glen Road and Happy Valley Road to those persons, if any, and their successors, who held easements of record granting them such access before the S-3 Access Condition was approved," and that the "Condition did not create in favor of Individual Defendants, a private right-of-way easement, or grant rights of any kind, allowing Individual Defendants access across the Dips." Plaintiffs, in other words, sought to exclude the use of, or access through, the property by persons without recorded easement rights.
In addition to the City, the complaint named as defendants" 'all other persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property not of record adverse to Plaintiffs' title, or any resulting cloud on Plaintiffs' title thereto.' "
The City again demurred, arguing, as relevant here, that plaintiffs' claim was barred by the 90-day statute of limitations under section 66499.37, and required an administrative mandamus proceeding, not a declaratory relief action. The City reasoned that the lawsuit was subject to the time bar under section 66499.37 because it sought a formal "review" of the S-3 Access Condition, and required an administrative mandamus proceeding because it purported to "challenge" the condition.
Over plaintiffs' opposition, the trial court sustained the demurrer without leave to amend. The court determined that the statute of limitations under section 66499.37 barred the action because plaintiffs' request to interpret the S-3 Access Condition was, in essence, an action to review or attack the condition, thus falling within the ambit of section 66499.37. The court also concluded plaintiffs' "challenge" to the condition "needed to be raised by a writ," not a complaint for declaratory relief. The court denied leave to amend, explaining this was "the third time these issues have been raised in demurrer and Plaintiffs have offered no additional facts that they can allege to address these issues." The court subsequently entered judgment dismissing the City.
After oral argument, we requested and received supplemental briefing addressing (1) which statute of limitations applies to plaintiffs' claim if we conclude section 66499.37 does not apply (see Schmier v. City of Berkeley (2022) 76 Cal.App.5th 549 (Schmier)), and (2) when plaintiffs' claim accrued, triggering the running of the 90-day limitations period, if we conclude section 66499.37 does apply (see Honchariw v. County of Stanislaus (2020) 51 Cal.App.5th 243 (Honchariw)).
II. DISCUSSION
The trial court sustained the City's demurrer on two grounds: (1) the action was barred by the 90-day statute of limitations set forth in section 66499.37, and (2) plaintiffs' claim required an administrative mandamus-not a declaratory relief-action. The City contends both grounds support the court's ruling. Plaintiffs disagree, as do we. Because we reach a determination in plaintiffs' favor on these two grounds, we need not address plaintiffs' additional arguments.
A. Standard of Review
We review the trial court's order sustaining a demurrer de novo and determine whether the complaint states a cause of action on any available legal theory. (Brown, supra, 247 Cal.App.4th at p. 279.) We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. (Ibid.) We affirm the judgment if it is proper on any grounds stated in the demurrer. (Shaw v. Los Angeles Unified School Dist. (2023) 95 Cal.App.5th 740, 754.) When, as here, the relevant facts are not in dispute, application of the statute of limitations may be decided as a question of law. (International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611-612.)
B. Statute of Limitations Under Section 66499.37
The Subdivision Map Act is" 'the primary regulatory control' governing the subdivision of real property in California." (Aiuto v. City and County of San Francisco (2011) 201 Cal.App.4th 1347, 1351.)
Section 66410 et seq.
Section 66499.37 establishes the statute of limitations governing subdivision-related decisions made under the act. (Aiuto, at p. 1356.) That section provides: "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 ...." (§ 66499.37.)
Section 66499.37 "applies broadly to 'any action involving a controversy over or arising out of the Subdivision Map Act.'" (Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1023 (Sumner Hill); Hensler v. City of Glendale (1994) 8 Cal.4th 1, 23 (Hensler).) To determine whether section 66499.37 applies, courts "identify the nature of the cause of action, i.e., the 'gravamen' of the cause of action. [Citations.] '[T]he nature of the right sued upon and not the form of action nor the relief demanded determines the applicability of the statute of limitations ....'" (Hensler, at pp. 22-23.)
The City contends that the limitations period under section 66499.37 bars plaintiffs' lawsuit because it commenced running on the date the City imposed the S-3 Access Condition. Plaintiffs contend their lawsuit does not come within the purview of section 66499.37 because they are not attacking the condition, only asking the trial court to interpret the condition to define which pedestrians are allowed to access the Dips. We agree with plaintiffs.
The complaint seeks a declaration interpreting the S-3 Access Condition to limit pedestrian access to the Dips to only those persons who held easements of record before the City approved the condition. Applying Hensler, we find that the gravamen of plaintiffs' action is a request for the court to interpret the condition to ascertain the extent of rights it creates, and for whom. Plaintiffs do not seek to "attack, review, set aside, void, or annul" the City's decision approving the property reconfiguration. Nor do they request a determination of "the reasonableness, legality or validity of" any condition imposed in connection with that approval. They do not, in other words, dispute that the condition is valid and enforceable. The fact that plaintiffs have a preferred interpretation does not fundamentally alter the nature of the complaint, which simply seeks to clarify what access rights are encompassed by the condition. Accordingly, we cannot conclude that section 66499.37 applies here. (See Schmier, supra, 76 Cal.App.5th at pp. 555-556 [§ 66499.37 did not apply where plaintiff did not contest the imposition of conditions of approval, but rather the dispute was over the meaning of language in lien agreements executed as a condition of approval, a dispute that could not have existed at the time of the condition's approval].)
The City's arguments to the contrary are unpersuasive. The City argues section 66499.37 applies because "the gravamen of [plaintiffs'] claim would change the S-3 Access Condition." (Italics added.) But plaintiffs do not seek to change the condition, which again states that a "private right-of-way easement shall be left open for pedestrian access." Instead, they simply seek to have the condition interpreted to provide-as it always has-an easement to neighbors but not the general public. While we take no position on the strength of this argument, we must conclude that plaintiffs are not barred from making it under section 66499.37.
The City's reliance on cases applying section 66499.37 to bar the claims at issue because they involved actions challenging the approval or validity of local agency decisions is misplaced. (See, e.g., Sumner Hill, supra, 205 Cal.App.4th at pp. 1023-1024 [cross-complaint alleged subdivision map was defective and sought judicial declaration to reform or amend the map]; Presenting Jamul v. Board of Supervisors (1991) 231 Cal.App.3d 665, 672 [action was an "attack upon the procedural validity and merits of" the agency's decision denying plaintiffs' tolling application, as plaintiffs challenged "the propriety or correctness of" the decision].) Here, in contrast, plaintiffs do not challenge the validity, enforceability, or correctness of the City's initial approval of the property reconfiguration application or its imposition of the S-3 Access Condition.
Even if section 66499.37 did apply, plaintiffs' lawsuit would not be time-barred. A "claim challenging an agency's interpretation of a condition of approval does not 'accrue' for purposes of the statute of limitations until it is clear what interpretation the agency has adopted and that the interpretation is the agency's final position-that is, further negotiations or attempts at clarification are unnecessary or would be futile." (Honchariw, supra, 51 Cal.App.5th at p. 256.) Here, the action did not "accrue" under Honchariw for two reasons.
First, it is not clear from the complaint what-if any-interpretation of the S-3 Access Condition the City adopted. The complaint alleges that the City adopted the condition in 2000, plaintiffs became aware that pedestrians used the Dips as a shortcut in the summer of 2017, and plaintiffs first learned of the condition in late 2017. In December 2017, the City's assistant planning director informed plaintiffs of the condition and his belief that "the Dips should be left open for pedestrian access and that blocking the route with a fence would violate" the condition. Even if we could construe this statement as constituting a formal decision by the City, which we do not, it merely acknowledges the condition's express requirement that the Dips be left open for "pedestrian access" without establishing which pedestrians fall within that mandate. Thus, despite the City's arguments to the contrary, the complaint does not include allegations that the City adopted a formal interpretation of the condition.
In prior pleadings, the City explained it was not arguing that the assistant planning director's comments constituted "a final administrative order or decision."
Second, even if plaintiffs alleged in the complaint-or in prior complaints-that the City had interpreted the S-3 Access Condition to require that the Dips be left open for access by the general public, there is no demonstration this interpretation was the City's final position such that "further negotiations or attempts at clarification [were] unnecessary or would be futile." (Honchariw, supra, 51 Cal.App.5th at p. 256.) To the contrary, plaintiffs allege that in December 2017, the City's assistant planning director informed them that "there was no existing definition" of which pedestrians had access, "but it would be good to define that." Thus, further negotiations or attempts at clarification would not be futile. For these reasons, we cannot conclude plaintiffs' action is time-barred. (See Schmier, supra, 76 Cal.App.5th at p. 554 [" 'for a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed' "].)
See Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1122 (when a demurrer is to an amended complaint the court may consider prior complaint allegations," 'which a plaintiff may not discard or avoid by making"' "contradictory averments, in a superseding, amended pleading" '"' ").
C. Administrative Mandamus
The City also contends plaintiffs were required to bring an administrative mandamus proceeding under Code of Civil Procedure section 1094.5. We disagree.
An administrative mandamus action under Code of Civil Procedure section 1094.5" 'is used to review the validity of quasi-judicial decisions resulting from a proceeding in which (1) a hearing was required to be given, (2) evidence was required to be taken, and (3) discretion in the determination of facts was vested in the agency.'" (Lafayette Bollinger Development LLC v. Town of Moraga (2023) 93 Cal.App.5th 752, 767.) Such a proceeding is the exclusive remedy for judicial review of a quasi-adjudicatory administrative action of a local agency. (City of Santee v. Superior Court (1991) 228 Cal.App.3d 713, 718.) When "the challenge is to a regulation's 'application to the lands of the complaining part[y], . . . the proper and sole remedy [is] administrative mandamus.'" (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 155, italics added by Tejon Real Estate.) "An action for declaratory relief is not appropriate to review the validity of an administrative decision." (City of Santee, at p. 718.)
Here, plaintiffs are not seeking review of a quasi-adjudicatory action, i.e., they are not challenging the City's approval of the property reconfiguration application or adoption of the S-3 Access Condition in 2000. Nor do plaintiffs challenge the validity of the condition. (See City of Santee v. Superior Court, supra, 228 Cal.App.3d at p. 718.) The City contends plaintiffs are "seeking judicial review of a quasi-adjudicatory administrative action of the [C]ity, namely its interpretation of the S-3 condition." But, as we discussed, plaintiffs do not allege that the City interpreted the condition. And even if there were allegations the City had provided its interpretation, the prerequisites for an administrative mandamus proceeding to review that interpretation-a hearing given, evidence taken, and discretion in factual determination vested in the agency-are not met. (See Lafayette Bollinger Development LLC v. Town of Moraga, supra, 93 Cal.App.5th at p. 767.) Therefore, we conclude plaintiffs were not required to bring an administrative mandamus proceeding.
The City does not argue that the other grounds on which it demurred- failure to exhaust administrative remedies and failure to join indispensable parties-provide an alternative basis for affirming the judgment. Those arguments are therefore waived. (See Potter v. Alliance United Ins. Co. (2019) 37 Cal.App.5th 894, 903 [" 'judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any grounds stated in the demurrer, whether or not the [trial] court acted on that ground' "]; Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 ["Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived."].)
III. DISPOSITION
The judgment is reversed. On remand the trial court is directed to vacate its order sustaining without leave to amend the City's demurrer to the third amended complaint and to issue a new order overruling the demurrer. Plaintiffs are entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
WE CONCUR: HUMES, P.J., BANKE, J.
[*] Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.