Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV013255
Duffy, J.
Preston and Lois Avery (collectively, the Averys), through their revocable family trust, are the owners of approximately 6.56 acres of real property in Santa Clara County located on the east side of Monterey Road and with a street address of 150 Kirby Avenue (Property). In November 2001, the Planning Commission of respondent County of Santa Clara (County) voted to revoke a long-existing, oft-modified, use permit relative to the Property (use permit). The Averys’ administrative appeal of that revocation ultimately resulted in an October 2003 decision of the County Board of Supervisors (hereafter, sometimes Board) granting the appeal but referring the matter back to the Planning Commission for further consideration of whether the use permit should be revoked, modified, or reaffirmed. The Averys filed in the superior court a combined mandate petition and complaint in January 2004 challenging the Board’s decision and seeking, inter alia, damages for inverse condemnation. The trial court granted summary judgment in favor of the County and the Averys appeal from a judgment entered on that order.
On appeal, the Averys argue that the court erred in granting summary judgment because (1) their petition for writ of mandamus was properly maintainable, (2) there were triable issues of material fact supporting their inverse condemnation claim, (3) their claim for declaratory relief was not subject to summary adjudication, and (4) summary adjudication of the Averys’ claim for injunctive relief was improper. We conclude that there was no error by the court in granting summary judgment. Accordingly, we will affirm the judgment entered on the order granting summary judgment.
PROCEDURAL BACKGROUND
I. The Complaint
On January 26, 2004, the Averys, as trustees of their revocable family trust, filed in the superior court a petition for writ of mandate and complaint (Complaint) against the County, its Board of Supervisors, and individual defendants. The Complaint alleged four causes of action. The first cause of action was a petition for writ of mandate pursuant to Code of Civil Procedure section 1094.5; the second through fourth causes of action of the complaint were for inverse condemnation, declaratory relief, and injunctive relief.
The individual defendants were Michael M. Lopez, a County employee (Lopez), and the members of the County Board of Supervisors, Donald F. Gage, Blanca Alvarado, Pete McHugh, James T. Beal, Jr., and Liz Kniss. Although allegations in the Complaint referred collectively to the defendants and the motion for summary judgment at issue in this appeal was filed on behalf of all defendants, for purposes of simplicity, we will refer to the chief litigant, the County, as the moving party and defendant in this action.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
The Averys’ Complaint contained over 10 pages of allegations that were incorporated into each of the causes of action. The Averys alleged that they acquired the Property in 1977, and that the County granted them a use permit, effective October 17, 1986, that “provided for the manufacture, sales and service of recreation[al] vehicles, greenhouses/solar systems, farm equipment supplies, and a general engineering contracting operation.” There was “[c]ontemporaneous site and architectural approval [that] authorized manufacturing, sales and service of boats and motor scooters as well as recreational vehicles.” The County Planning Commission modified the use permit on November 10, 1987, “to authorize the outside storage and display of vehicles and materials and the wholesale nursery operation, including warehousing, processing and distribution of flowers within an existing building.” The Averys alleged further that “[i]n 1993, the use permit was extended and continues in effect.” They averred that they had expended over $100,000 to maintain and improve the Property in reliance on the use permit, including the expenditure of funds for the installation of fire hydrants and a fire sprinkling system, and a 30,000 gallon water storage tank and monitoring system. They also dedicated to the County a section of their Property valued at not less than $250,000 to comply with a condition of the permit.
The Averys alleged further that following the recommendation of the County’s planning staff, on November 1, 2001, the Planning Commission voted to revoke the Averys’ use permit. In a letter to Preston Avery dated November 9, 2001, Lopez confirmed that revocation by the Planning Commission, and noted that the Commission had made findings that the Averys had not complied with four conditions of the use permit relating to providing for nine off-street parking spaces with lines (“Condition #8”); the paving of parking spaces and driveways with oil and screenings or better (“Condition #9”); wheel bumper guards in the parking areas (“Condition #10”); and landscaping along Monterey Road frontage (“Condition #12”). As to the last condition, the letter stated that landscaping had not been maintained and that “over 50 [percent] of the plant material ha[d] been lost [due] to neglect.” Lopez advised further that “[t]he Planning Commission disagreed with [the] . . . statement [of the Averys’ representative] to the effect that once improvements associated with the Use Permit are installed, the applicant is not required to maintain them. Staff noted that the installation and maintenance of improvements constituted the requirements established by the County.”
It was alleged in the Complaint that the Averys filed a timely administrative appeal from the Planning Commission’s decision. The Averys averred that a hearing on their appeal did not occur until nearly two years later, on October 23, 2003, notwithstanding the fact that the Averys requested no extensions. They alleged that the County had “refused to process applications for legitimate uses on [the] Property during the pendency of the appeal” because, inter alia, the use permit had been revoked. In the preceding paragraph of the Complaint, the Averys claimed that Planning Commission staff had advised that no action would be taken on an application to modify the use permit for the construction of a taller cellular tower “ ‘until the existing uses on the Property [were] found to [have been] in conformance with the existing use permit.’ ” At the conclusion of the hearing on the appeal, the Board of Supervisors voted to grant the Averys’ appeal; however, it held that the prior actions of the Planning Commission were proper and directed “that the use permit should be returned to the Planning Commission for re-evaluation.”
In the petition for writ of mandate, the Averys claimed that the Board of Supervisors’ decision was invalid because (1) the findings were not supported by the evidence, including its finding that the Planning Commission’s prior revocation of the use permit was founded on substantial evidence; (2) the Board did not have jurisdiction to order further hearings concerning the revocation, modification, or reaffirmation of the use permit; (3) the conclusion that the Planning Commission had acted appropriately was in conflict with its order granting the Averys’ appeal; and (4) there was insufficient support for the Board’s order requiring further hearings to reevaluate the use permit. They further complained about the County’s treatment of a pending permit application to construct a new taller wireless communications antenna on the Property (hereafter, the cellular tower application), claiming that the County intended to deny it based upon stated reasons which were unjustified. The Averys alleged that they had exhausted their administrative remedies, and that they would be irreparably harmed if the Board’s decision were not stayed, in that the Averys would be forced to engage in further efforts “in responding to unjustified administrative proceedings and further delays and/or refusals to act on [the Averys] legitimate request for permits to use the [P]roperty.”
The second cause of action of the Complaint was captioned as a claim for inverse condemnation. The Averys alleged that the County “refused to process applications for lawful businesses on [the] Property” because of the revocation of the use permit by the Planning Commission that was appealed by the Averys. They alleged that the County’s actions resulted in a taking or damaging of their Property in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, section 19 of the California Constitution.
The Averys alleged in the third cause of action that there was an actual controversy between the parties that required resolution. They sought declaratory relief that their property had been damaged or taken as a result of the County’s conduct.
The fourth cause of action of the Complaint was captioned “Injunctive Relief.” The Averys averred that unless the County was restrained by the court “from refusing to process applications for the legitimate use of the Property,” they would sustain irreparable harm in that they would be deprived of income derived from such legitimate uses.
II. Summary Judgment Motion and Entry of Judgment
On August 16, 2006, the County moved for summary judgment, or, in the alternative, for summary adjudication of claims (the summary judgment motion). It argued that the claims in the writ of mandate petition were moot. The County contended that there was no “taking” of the Property relative to any actions it took relative to use permits and that therefore the inverse condemnation claim and the related declaratory relief claim were meritless. Lastly, the County asserted that the fourth cause of action for injunctive relief was moot and, to the extent it sought relief relative to any future applications that might be filed by the Averys, it was not ripe for adjudication. The Averys opposed the summary judgment motion. The court granted summary adjudication as to each of the four causes of action of the Complaint and therefore granted summary judgment. The court entered judgment on the summary judgment order on December 27, 2006. The Averys filed a timely notice of appeal. The matter is a proper subject for appellate review. (Code Civ. Proc., § 437c, subd. (m)(1); see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) ¶ 10:384, p. 10-134 [order granting summary judgment not itself appealable, but appeal lies from judgment entered on such order].)
DISCUSSION
I. Issues On Appeal
The issues presented in this appeal, all concerning the propriety of the court’s granting summary judgment, are as follows:
1. Whether summary adjudication of the petition for writ of mandate was proper.
2. Whether the Averys’ claim for inverse condemnation lacked merit, thereby warranting summary adjudication.
3. Whether there was an existing controversy between the parties appropriate for declaratory relief such that summary adjudication of that claim was inappropriate.
4. Whether it was proper for the court to have granted summary adjudication as to the fourth purported cause of action for injunctive relief.
We address each of these contentions below.
II. Standard of Review
“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) As such, the summary judgment statute (§ 437c), “provides a particularly suitable means to test the sufficiency of the plaintiff’s prima facie case and/or of the defendant’s [defense].” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) A summary judgment motion must demonstrate that “material facts” are undisputed. (§ 437c, subd. (b)(1).) The pleadings determine the issues to be addressed by a summary judgment motion. (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 885, revd. on other grounds Metromedia, Inc. v. San Diego (1981) 453 U.S. 490.)
“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (§ 437c, subd. (f)(1).) Like summary judgment, the moving party’s burden on summary adjudication is to establish evidentiary facts sufficient to prove or disprove the elements of a claim or defense. (§ 437c, subds. (c), (f).)
The moving party “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) A defendant moving for summary judgment must “ ‘show[ ] that one or more elements of the cause of action . . . cannot be established’ by the plaintiff.” (Id. at p. 853, quoting § 437c, subd. (o)(2).) A defendant meets its burden by presenting affirmative evidence that negates an essential element of the plaintiff’s claim. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) Alternatively, a defendant meets its burden by submitting evidence “that the plaintiff does not possess, and cannot reasonably obtain, needed evidence” supporting an essential element of its claim. (Aguilar, supra, 25 Cal.4th at p. 855.)
Since both summary judgment and summary adjudication motions involve pure questions of law, we review the granting of summary judgment or summary adjudication de novo to ascertain from the papers whether there is a triable issue of material fact. (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438; Travelers Casualty & Surety Co. v. Superior Court (1998) 63 Cal.App.4th 1440, 1450.) In doing so, we “consider[ ] all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
In our independent review of the granting of summary judgment, we conduct the same procedure employed by the trial court. We examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party’s favor, and (3) the opposition—assuming movant has met its initial burden—to “decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]” (Chavez v. Carpenter, supra, 91 Cal.App.4th at p. 1438; see also Burroughs v. Precision Airmotive Corp. (2000) 78 Cal.App.4th 681, 688.) We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
III. The Petition for Writ of Mandate
A. Denial Was Proper Due to Mootness
The County argued below and urges on appeal that summary judgment was appropriate to dispose of the writ of mandate petition because the issues raised therein were moot. It contended that the issues pertaining to the Averys’ challenge to the Board’s October 2003 ruling granting their appeal and referring the matter back to the Planning Commission had been resolved by subsequent events; the Planning Commission, in fact, reconsidered compliance issues concerning the use permit in September 2005 in a hearing in which the Averys participated fully. We agree that the controversy tendered in the writ petition was moot and that therefore the summary adjudication of that claim was proper.
“ ‘A judicial tribunal ordinarily may consider and determine only an existing controversy, and not a moot question or abstract proposition. . . . [A]s a general rule it is not within the function of the court to act upon or decide a moot question or speculative, theoretical or abstract question or proposition, or a purely academic question, or to give an advisory opinion on such a question or proposition. . . . Accordingly, a court ordinarily will not entertain an action or proceeding merely for the purpose of passing on a moot question or abstract proposition, unless . . . the determination of such question or proposition is necessary to the disposition of an actually pending controversy or unless some question of general public interest is involved.’. . . ‘[A]lthough a case may originally present an existing controversy, if before decision it has, through act of the parties or other cause, occurring after the commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court. [Citations.]’ ” (Wilson v. Los Angeles County Civil Service Com. (1952) 112 Cal.App.2d 450, 452-453.)
Thus, for example, in Consumer Cause, Inc. v. Johnson & Johnson (2005) 132 Cal.App.4th 1175, 1179 (Consumer Cause), the appellate court on its own motion raised the question of whether the entry of a consent judgment was proper due to the absence of a justiciable controversy. There, while the plaintiff took the position initially in the litigation that the defendants—manufacturers of implantable surgical devices—had violated Proposition 65 (Health & Saf. Code, § 25249.5 et seq.) by failing to warn consumers that their products contained chemicals known to cause cancer, it later admitted that the defendants had committed no such violation. (Consumer Cause, supra, at pp. 1180-1181.) Accordingly, the appellate court held that entry of the consent judgment was improper because, although the case was ripe when it was originally filed, “[t]he ripeness status of this case changed once [the] plaintiff discovered that the allegations of the complaint were wrong, that [the] defendants had not violated and were not violating the law. At that point, there was no longer a controversy before the trial court, and the court should have exercised its discretion by refusing to decide it. [Citation.]” (Id. at p. 1183, fn. omitted.)
The doctrine of mootness also applies to mandamus proceedings. (Crestlawn Memorial Park Assn. v. Sobieski (1962) 210 Cal.App.2d 43, 47.) For instance, a challenge to a county’s improvements that involved the removal of a number of trees on the basis that no environmental impact report had been prepared was properly rejected as moot where by the time of trial, removal of the trees had already occurred. (Hixon v. County of Los Angeles (1974) 38 Cal.App.3d 370, 378; see also California Teachers Assn. v. Ingwerson (1996) 46 Cal.App.4th 860, 873-874 [trial court erred in granting teachers’ unions’ mandamus petition to compel county to adopt budget, inter alia, because by the time of the hearing, county had already adopted budget, thereby rendering controversy moot.].)
Here, as presented in the County’s summary judgment motion, after the Board’s October 2003 action challenged herein by the Averys, the Planning Commission staff in June 2005 submitted a detailed history and assessment concerning the Averys’ use permit. At a meeting in July 2005, the Planning Commission set a further hearing and directed staff and County Counsel “to draft a motion for Commission consideration for the purpose of 1) clarifying allowed uses under the 1987 Use Permit and 2) recommending modifications to address existing uses on the [P]roperty that are not covered under the 1987 Use Permit.” At a hearing on September 1, 2005, the Planning Commission adopted a motion that modified the use permit to clarify its terms and established a 10-year term. The Averys—who participated along with their counsel in the Planning Commission proceedings—appealed the Commission’s decision on September 14, 2005. The Board of Supervisors heard the Averys’ appeal on February 28, 2006, voting to reject the appeal and reaffirm the use permit modifications approved by the Planning Commission with one exception: the new cellular tower (approved in April 2005 as discussed below) was to be exempt from the 10-year term of the use permit. The Board adopted a resolution confirming that vote on April 11, 2006.
In fixing a 10-year term, the Planning Commission noted that “due to the long history of noncompliance on the [P]roperty, a time limitation on the use permit is warranted.”
The County has advised this court that there is a separate lawsuit below involving the same parties, Property, and use permit. (See Avery v. County of Santa Clara (Super. Ct. Santa Clara County, 2006, No. 1-06-CV066922).) On our own motion—because it is appropriate to do so and it “help[s] complete the context of this case” (Flatley v. Mauro (2006) 39 Cal.4th 299, 306, fn. 2)—we have taken judicial notice of the following documents filed in that action: the first amended petition for writ of mandate and complaint (filed Jan. 31, 2007); the order on the defendants’ motion for summary judgment or summary adjudication (filed Jan. 16, 2008) in which the court denied summary judgment, denied summary adjudication of the petition for writ of mandate, and granted summary adjudication of the plaintiffs’ claims for inverse condemnation and declaratory relief; the decision of the court (filed Apr. 17, 2008) in which the court denied the petition for writ of mandate; and the judgment in favor of the defendants (filed Apr. 25, 2008). Although the issues in that case are not before us here, we observe that the first amended petition and complaint in that action (1) contains many allegations concerning the use permit that are identical to those found in the Complaint in the instant action; (2) alleges (like the Complaint) a petition for writ of mandate, a claim for inverse condemnation, and a claim for declaratory relief; (3) alleges that the Planning Commission acted improperly in modifying the use permit by its action on September 1, 2005; and (4) alleges that the Board of Supervisors acted improperly through its September 2005 denial of the Averys’ appeal of the Planning Commission’s action. Further, we are also aware that a notice of appeal was filed on June 18, 2008, in connection with that superior court action, and that a separate appeal is now pending in this court. (See Avery v. County of Santa Clara (H033049, app. pending).)
Thus, by April 2006—seven months before the summary judgment motion was decided—further administrative proceedings regarding the potential revocation, modification, or reaffirmation of the use permit had been concluded. The Averys offered no evidence to refute those facts or the conclusions necessarily drawn from them. Those further administrative proceedings were directed by the Board’s October 2003 decision challenged by the Averys in the writ petition. And the Averys participated fully in the proceedings before the Planning Commission. Since the Averys alleged that mandamus was necessary to stay the Board’s October 2003 decision granting their appeal but ordering further hearings regarding the use permit to avoid them from having to “respond[] to unjustified administrative proceedings,” the subsequent proceedings occurring before the Planning Commission and Board of Supervisors rendered the Averys’ petition for writ of mandate moot to the extent it sought a stay of those proceedings.
In their opposition, the Averys provided no response to the three undisputed material facts relative to the first cause of action in the County’s separate statement of undisputed material facts. Those facts were that the Planning Commission reconsidered use permit compliance issues in September 2005, the Averys appealed the Commission’s decision, and the Board of Supervisors took final action on that appeal on April 11, 2006. The Averys’ nonresponse to the separate statement constituted noncompliance with the summary judgment statute. (See § 437c, subd. (b)(3) [opposition “shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed”].)
We note that the Averys allege in the first amended petition for writ of mandate and complaint in Santa Clara County Superior Court, Case Number 1-06-CV066922, that neither they nor their counsel were advised of the April 11, 2006 hearing before the Board of Supervisors.
The County also established in its summary judgment motion the mootness of any claim concerning the alleged failure to approve the cellular tower application. In August 2003, Cingular Wireless (Cingular) applied for a modification of the use permit to replace the existing 35-foot telecommunications tower with a 55-foot tower. The application was signed by Preston Avery as owner of the affected Property. The County informed the Averys in October 2003 that the application was incomplete because of (1) the unresolved issue concerning the Planning Commission’s revocation of the use permit, and (2) the existence of an unpermitted portable toilet on the Property. It also inquired about the possibility of co-locating the proposed cellular tower with another telecommunications facility existing near the Property. In March 2004, Cingular responded to the County’s inquiry by explaining why co-location of the proposed new tower was not feasible. In April 2004, the County sent another letter to the Averys again indicating that the cellular tower application was incomplete because of the unpermitted portable toilet on the Property. It later asked for a clarification as to the height of the proposed new tower, an inquiry to which Cingular responded in June 2004. At that time, the application was deemed complete, and the County commenced an environmental assessment. A negative declaration was circulated for public comment in March 2005. Upon staff recommendation, the Planning Commission approved the negative declaration and the use permit modification to allow for the construction of a 76-foot replacement tower at its regular meeting on April 7, 2005.
Therefore, by April 2005—more than one and one-half years before the summary judgment motion was decided—the County had disposed of the cellular tower application in a manner favorable to the Averys. They did not refute those facts in their opposition to the summary judgment motion. Accordingly, the petition for writ of mandate was also moot insofar as it sought relief concerning the County’s alleged failure to grant the application to modify the use permit.
By the time of the hearing on the County’s motion, there was no effectual relief that could have been granted by the court concerning either the challenged Board decision of October 2003, or the County’s processing of the cellular tower application. We therefore find, based upon the mootness of the Averys’ claims that the trial court did not err in granting summary adjudication as to the mandate petition. (California Teachers Assn. v. Ingwerson, supra, 46 Cal.App.4th at pp. 873-874.)
The County urges on appeal—citing Santa Clara County Zoning Ordinance sections 5.20.210 and 5.30.050—that summary adjudication was appropriate on the basis that the Board of Supervisors did not exceed its jurisdiction or otherwise violate the law, because it was vested with the authority to review de novo the Planning Commission’s revocation decision and it could direct the Commission to conduct a hearing concerning the possible modification or revocation of a use permit. The County also contends that the trial court properly granted summary adjudication of the writ petition on its stated ground that the Averys’ failed to exhaust its administrative remedies. Since we conclude that summary adjudication of the petition for writ of mandate on the ground of mootness was proper, we need not examine whether it was also appropriate on other grounds. (See Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 631, fn. 6 [where reviewing court determines summary adjudication was properly granted on one ground, it need not decide whether summary adjudication order proper on additional ground urged by respondent]; Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 448-449 [validity of summary judgment ruling is the matter “ ‘ “reviewable and not the reasons therefor” ’ ”].)
B. Propriety of Summary Adjudication Procedure
The Averys also argue on appeal that the trial court erred because summary adjudication was not an appropriate procedural device to dispose of the writ of mandamus petition. Citing Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281 (Dunn), they contend that the procedure for disposing of the mandamus petition was a motion for judgment on the writ under section 1094, rather than by summary adjudication motion under section 437c. We reject this contention.
“If no return be made, the case may be heard on the papers of the applicant. If the return raises only questions of law, or puts in issue immaterial statements, not affecting the substantial rights of the parties, the court must proceed to hear or fix a day for hearing the argument of the case. [¶] If a petition for a writ of mandate filed pursuant to Section 1088.5 presents no triable issue of fact or is based solely on an administrative record, the matter may be determined by the court by noticed motion of any party for a judgment on the peremptory writ.” (§ 1094.)
First, irrespective of whether the argument has any merit, we note that the Averys did not raise it below. “ ‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’ [Citation.]” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) The Averys’ challenge here is forfeited.
Even were we to consider the Averys’ contention on the merits, however, we would reject it. The Dunn court did not hold categorically that summary judgment was unavailable to dispose of petitions for writ of mandamus. Rather, it held that where the court is asked to review the sufficiency of the evidence supporting an agency’s decision and that review is limited to the administrative record, a motion for judgment specified under section 1094 is the appropriate procedure. (Dunn, supra, 135 Cal.App.4th at pp. 1292-1293.) Both sides here, however, cited to evidence outside of the administrative record in support of their respective positions regarding the propriety of summary adjudication of the writ petition. Moreover, the Dunn court specifically recognized “that summary adjudication or summary judgment may be granted in mandamus proceedings where evidence outside of the administrative record disposes of the petition as a matter of law. [Citations.]” (Id. at p. 1292.) And in making this point, the court cited specifically to a case—like the one before us—in which summary judgment was utilized to dispose of a moot writ petition, namely, Stanton v. Dumke (1966) 64 Cal.2d 199, 207, a case in which, as the Dunn court noted, “summary judgment [was] granted in administrative mandamus proceeding on [a] showing that the petition was moot.” (Dunn, supra, at p. 1292.)
We therefore conclude that summary adjudication under section 437c was an appropriate procedural mechanism to dispose of the Averys’ petition for writ of mandate.
IV. The Inverse Condemnation Claim
A. Applicable Law
Inverse condemnation is “a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.” (United States v. Clarke (1980) 445 U.S. 253, 257.) By contrast, in an eminent domain proceeding, the governmental entity condemning the property brings an action against the landowner “to effect a taking and acquire title.” (Ibid.)
Under the Takings Clause of the Fifth Amendment of the United States Constitution, private property shall not “be taken for public use, without just compensation.” Its purpose is “to prevent the government from ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ [Citation.]” (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 618 (Palazzolo), quoting Armstrong v. United States (1960) 364 U.S. 40, 49.) The Fifth Amendment is made applicable to the states through the Fourteenth Amendment. (Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528, 536 (Lingle).) And “California courts generally construe the federal and California takings clauses congruently. [Citations.]” (Small Property Owners of San Francisco v. City and County of San Francisco (2006) 141 Cal.App.4th 1388, 1396.)
“The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property. [Citations.]” (Lingle, supra, 544 U.S. at p. 537.) Although prior to 1922 “ ‘it was generally thought that the Takings Clause reached only a “direct appropriation” of property, or the functional equivalent of a “practical ouster of [the owner’s] possession,” ’ [citation],” in Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393 (Mahon), the Supreme Court recognized that “government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster . . . .” (Lingle, supra, at p. 537.) Justice Holmes noted that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” (Mahon, supra, at p. 415.) “The rub, of course, has been—and remains—how to discern how far is ‘too far.’ ” (Lingle, supra, at p. 538.)
The Supreme Court in Penn Cent. Transp. Co. v. City of New York (1978) 438 U.S. 104, 124 (Penn Central), acknowledged that there is no “ ‘set formula’ ” for determining whether property regulation will be deemed a taking, but enunciated three factors important to that determination: “[1] The economic impact of the regulation on the claimant and, [2] particularly, the extent to which the regulation has interfered with distinct investment-backed expectations . . . [and 3] the character of the governmental action. A ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government, [citation], than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” In order to find a regulatory taking, “neither a physical appropriation nor a public use” is required. (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 326.) And a regulatory taking may occur regardless of whether the taking is permanent or temporary: “ ‘temporary’ takings which . . . deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation. [Citation.]” (First English Evangelical Lutheran Church of Glendale v. Los Angeles County (1987) 482 U.S. 304, 318.)
The court has since reiterated the importance of applying Penn Central’s three-factor analysis in evaluating regulatory taking cases. (See Lingle, supra, 544 U.S. at p. 538; Palazzolo, supra, 533 U.S. at p. 617.) The three Penn Central inquiries “share a common touchstone. Each aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain. Accordingly, each of these tests focuses directly upon the severity of the burden that government imposes upon private property rights.” (Lingle, supra, at p. 539.)
The presence or absence of a regulatory taking is determined from “the character of the action and on the nature and extent of the interference with rights in the parcel as a whole . . . .” (Penn Central, supra, 438 U.S. at pp. 130-131.) Thus, the Supreme Court in Palazzolo, supra, 533 U.S. at page 631 held that, notwithstanding governmental restrictions on filling wetlands on the plaintiffs’ property, there was no regulatory taking because they were still permitted “to build a substantial residence on an 18-acre parcel” representing a portion of the property. The diminution in value of a property resulting from the regulatory action, or itself, does not yield the conclusion that there has been a taking. (Penn Central, supra, at p. 131.) And “[m]ere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are ‘incidents of ownership. They cannot be considered as a “taking” in the constitutional sense.’ [Citations.]” (Agins v. City of Tiburon (1980) 447 U.S. 255, 263, fn. 9 (Agins), overruled on another ground in Lingle, supra, 544 U.S. at pp. 531-532.) Thus, for instance, an entity’s mistaken assertion of jurisdiction and resultant development delays do not constitute a regulatory taking. (Landgate, Inc. v. California Coastal Com’n (1998) 17 Cal.4th 1006, 1021 (Landgate).)
B. Summary Adjudication of the Averys’ Inverse Condemnation Claim
1. The inverse condemnation claim
The Averys alleged in the second cause of action of the Complaint that the County “refused to process” permit applications relative to their Property because the Planning Commission had revoked the use permit, a decision that the Averys successfully appealed. They asserted an inverse condemnation claim by alleging generally that the County’s actions had resulted in a taking or damaging of their Property in violation of the federal and state constitutions.
It is unclear from the Complaint what specific permit applications the County, according to the Averys’ allegations, refused to process. But based upon the general allegations of the Complaint—incorporated by reference into the second cause of action—the application that was alleged not to have been processed concerned the cellular tower application. As we have discussed (see pt. III, ante), the County established that Cingular Wireless applied for replacement of the cellular tower in August 2003; the application was deemed complete in June 2004; the environmental assessment for the project was completed in March 2005; and the application was approved in April 2005. During the pendency of the cellular tower application, a variety of uses were made of the Property, including uses for the existing cellular tower, automobile repair, vehicle storage, contractor’s storage, and manufacturing. The Averys did not refute any of these facts in their opposition to the summary judgment motion.
The Averys—again failing to comply with section 437c, subdivision (b)(3)—provided no response to the four undisputed material facts relative to the second cause of action in the County’s separate statement of undisputed material facts. Those facts were that the cellular tower application was deemed complete in June 2004; the environmental assessment for the application was completed in March 2005; the application was approved in April 2005; and the Property was used for a variety of purposes (i.e., existing cellular tower, automobile repair, vehicle storage, contractor’s storage, and manufacturing) while the application was pending.
No inverse condemnation claim was maintainable for any delays associated with the cellular tower application. No evidence was presented that the Averys suffered the “functional[] equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.” (Lingle, supra, 544 U.S. at p. 539.) At most, they had to wait a period of time for the approval of an application that allowed the replacement of a 35-foot cellular tower with a 76-foot tower. That delay—assuming it were characterized as such—was simply an “ ‘incident[] of ownership. . . [that] cannot be considered as a ‘taking’ in the constitutional sense.’ ” (Agins, supra, 447 U.S. at p. 263, fn. 9; see also Landgate, supra, 17 Cal.4th at p. 1021.) There was no taking upon which an inverse condemnation claim could have been premised.
Any claim for inverse condemnation based upon alleged delays in processing or the refusal to process other, unspecified applications to modify the use permit is also without merit. Although the Averys in their opposition made vague references to such other applications, the County presented evidence that no other applications had been filed.
The Averys’ inverse condemnation claim also fails insofar as it was founded on the Planning Commission’s November 2001 revocation of the use permit and the Board’s October 2003 granting of the appeal and referral of the matter back to the Commission for further proceedings. First, there was no showing that the County’s actions in reviewing the status of the use permit and compliance issues associated therewith “interfered with distinct investment-backed expectations” (Penn Central, supra, 438 U.S. at p. 124) of the Averys with respect to their use of the Property. There was no evidence that any revocation of the use permit ever became effective. To the contrary, the Complaint affirmatively alleged that “[i]n 1993, the use permit was extended and continues in effect.” (Italics added.) And the Averys did not refute the County’s showing that they continued to make a variety of commercial uses of the Property while the cellular tower application was pending between August 2003 and August 2005. (See fn. 9, ante.) There was simply no factual basis for finding a regulatory taking associated with the County’s review of use permit compliance issues that culminated in October 2003 with the Board of Supervisors’ grant of the Averys’ appeal and its referral of the matter back to the Planning Commission. (See Landgate, supra, 17 Cal.4th at p. 1021 [delays associated with entity’s mistaken assertion of jurisdiction over development do not constitute a regulatory taking]; Guinnane v. City and County of San Francisco (1987) 197 Cal.App.3d 862 [city’s delay in taking action on building permit application, including period it studied possible acquisition of property, did not constitute compensable taking].)
Second, any inverse condemnation claim based upon the Board’s October 2003 referral of the use permit back to the Planning Commission for compliance review was not ripe. The Supreme Court has held that “a claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” (Williamson Planning Comm’n v. Hamilton Bank (1985) 473 U.S. 172, 186 (Williamson).) The reason for requiring that an inverse condemnation claim be ripe for adjudication is plain: the three Penn Central inquiries utilized to determine whether a taking has occurred “simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.” (Williamson, supra, at p. 191; see also MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340, 351.)
Here, the Board’s October 2003 granting of the Averys’ appeal and its referral of the matter back to the Planning Commission for further review of compliance issues relative to the use permit did not constitute such a “final, definitive position regarding how it [would] apply the regulations” to the Property. (Williamson, supra, at p. 191; see also Landgate, supra, 17 Cal.4th at p. 1018.) Until there was such a final, definitive statement by the County of the extent to which the Averys’ would be restricted in the use of their Property, any inverse condemnation claim could not be properly evaluated. Therefore, the claim was not ripe and was subject to summary adjudication on that basis as well.
As we have noted (see pt. III.A., ante), the Planning Commission conducted further proceedings that resulted in a decision of September 14, 2005, that clarified the terms and conditions of the use permit, and the Board rejected the Averys’ appeal of that decision on April 11, 2006. That decision is the subject of a separate suit by the Averys as to which a separate appeal is now pending before this court. (See fn. 4, ante.)
During oral argument, the Averys’ counsel conceded that the Board’s October 2003 referral of the matter back to the Planning Commission presented a ripeness issue with respect to the inverse condemnation claim.
The Averys, however, argue that summary adjudication was improper because the County failed to show that its actions “advanced a significant government interest.” This argument is founded on the court’s holding in Agins, supra, 447 U.S. at page 260, that “[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests, [citation], or denies an owner economically viable use of his land, [citation].” This “substantially advances” test under Agins for determining the existence of a regulatory taking has been repudiated by the Supreme Court in Lingle, supra, 544 U.S. 528. The court explained, “Because this statement is phrased in the disjunctive, Agins’ ‘substantially advances’ language has been read to announce a stand-alone regulatory takings test that is wholly independent of Penn Central or any other test. . . . We conclude that this formula prescribes an inquiry in the nature of a due process, not a takings, test, and that it has no proper place in our takings jurisprudence.” (Id. at p. 540.) Therefore, we reject the Averys’ claim here that the court erred in granting summary adjudication because the County failed to present evidence that its actions “substantially advance legitimate state interests.” (Accord, Allegretti & Co. v. County of Imperial (2006) 138 Cal.App.4th 1261, 1280.)
2. Substantive and procedural due process arguments
In their opposition to summary adjudication of the inverse condemnation claim, the Averys argued very briefly that the County violated their civil rights in that it engaged in a course of conduct that was “arbitrary, unfair action and an abuse of land use regulatory power employed as an instrument of oppression in violation of the Averys’ rights to substantive due process of law.” They again raise substantive due process in their briefs on appeal. In addition, the Averys raise for the first time on appeal a claim that their procedural due process rights were also violated.
The Complaint, however, cannot be fairly read as including a claim for violation of the Averys’ substantive due process rights. Likewise, it does not allege a violation of procedural due process rights. The second cause of action alleged nothing more than a claim for inverse condemnation.
As we have previously observed, “A ‘plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.]’ (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4.) A plaintiff wishing ‘to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing. [Citations.]” (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 90.) Accordingly, the Averys cannot rely on their unpleaded substantive due process theory. Moreover, the Averys’ procedural due process theory—in addition to being barred as not having been pleaded—is also barred as a new theory raised for the first time on appeal. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847 [“parties are not permitted to ‘ “adopt a new and different theory on appeal” ’ ”].)
The court properly concluded that there was no triable issue of material fact with respect to the Averys’ second cause of action for inverse condemnation. Accordingly, the County’s motion for summary adjudication of that claim was properly granted.
V. The Declaratory Relief Claim
The declaratory relief cause of action alleged that there was an actual controversy between the parties requiring resolution. The Averys sought a judicial declaration that the County’s conduct had resulted in a damaging or taking of their Property. In so alleging, they incorporated by reference all of the Complaint’s general allegations and those contained in the first and second causes of action.
Summary judgment is appropriate as a procedure for disposing of declaratory relief claims. (Allis-Chalmers Corp. v. City of Los Angeles (1981) 126 Cal.App.3d814, 818, fn. 3.) As Division One of the Fourth District Court of Appeal has explained, “ ‘ “ ‘[T]he propriety of the application of [summary judgment to] declaratory relief lies in the trial court’s function to render such a judgment when only legal issues are presented for its determination.’ ” [Citations.]’ [Citation.] When summary judgment is appropriate, the court should decree only that [the] plaintiffs are not entitled to the declarations in their favor. [Citations.] Thus, in a declaratory relief action, the defendant’s burden is to establish the plaintiff is not entitled to a declaration in its favor. It may do this by establishing (1) the sought-after declaration is legally incorrect; (2) undisputed facts do not support the premise for the sought-after declaration; or (3) the issue is otherwise not one that is appropriate for declaratory relief.” (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1401-1402.) Further, “declaratory relief does not lie in a case in which a complaint makes no case on the merits and would merely produce a useless trial. [Citation.]” (People v. Ray (1960) 181 Cal.App.2d 64, 67.) An appellate court reviews a trial court’s determination of whether declaratory relief is “necessary or proper” under section 1061 for abuse of discretion. (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 433.)
“The court may refuse to exercise the power [to issue a judicial declaration of the rights and duties of the parties] granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” (§ 1061.)
By the very nature by which the Averys framed the controversy, it is clear that denial of declaratory relief was proper. A request for a judicial declaration that the County’s actions effected a taking of the Property plainly involved a determination that the Averys’ inverse condemnation claim was meritorious. Since summary adjudication of that claim was proper—on both the bases that there was no triable issue that a taking had occurred and because any inverse condemnation claim based upon the Board’s October 2003 action was not ripe—the trial court did not abuse its discretion by refusing to exercise its power under section 1061 because its declaration or determination was “not ‘necessary or proper at the time under all the circumstances.’ ” (See DeLaura v. Beckett (2006) 137 Cal.App.4th 542, 545.)
VI. The Request for Injunctive Relief
In the fourth cause of action, the Averys incorporated by reference each of the prior allegations of the Complaint. They averred that unless the County was restrained by the court “from refusing to process applications for the legitimate use of the Property,” they would sustain irreparable harm in that they would be deprived income derived from such legitimate uses.
The Averys’ cause of action for injunctive relief was a misnomer. There is no cause of action for injunctive relief; an injunction is an equitable remedy, not a claim. (McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159.) Thus, the so-called claim would stand or fall depending upon the merits of the underlying causes of action on which the request for injunctive relief was based. As we have concluded, there was no merit to the Averys’ petition for writ of mandate, claim for inverse condemnation, or cause of action for declaratory relief. To the extent that the Averys complained about alleged delays in the processing of, or the refusal to process, the cellular tower application, that claim—along with any request for injunctive relief thereon—was rendered moot by the April 2005 approval of that application. And the Averys did not present evidence of any other specific application to modify the use permit to include additional uses of the Property that were being delayed or ignored by the County. Therefore, there was no basis for the issuance of an injunction. (Cf. Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 355 [injunction should rarely if ever issue in doubtful case].) Summary adjudication of that purported cause of action was proper.
VII. Conclusion
The court below correctly granted summary adjudication based upon the absence of a triable issue of material fact as to the petition for writ of mandate, the inverse condemnation claim, the declaratory relief claim, or the purported claim for injunctive relief. Accordingly, summary judgment in favor of the County and the individual defendants was proper. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189: “A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail.”)
DISPOSITION
The judgment entered on the order granting summary judgment in favor of the County and the individual defendants is affirmed.
WE CONCUR, Bamattre-Manoukian, Acting P.J., McAdams, J.