Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. S-1500-CV-260175, Arthur E. Wallace, Judge.
The Law Offices of Young Wooldridge, Scott D. Howry and Andrea Selvidge for Plaintiffs and Appellants.
Virginia Gennaro, City Attorney; Hogan Guiney Dick, Michael M. Hogan; Clifford & Brown and Arnold Anchordoquy for Defendant and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
This is an appeal from judgment entered after the court sustained a demurrer without leave to amend. Although we conclude the trial court erred in failing to allow amendment of the complaint, we also find the error was harmless. Because appellants essentially acknowledge that they were not prejudiced by the claimed error, we will not engage in a very lengthy discussion of the issues.
Facts and Procedural History
Plaintiffs and appellants Canyons, LLC, and DKS Investments, LLC (plaintiffs), are real estate developers. They filed an application for approval of a tentative tract map under the Subdivision Map Act, Government Code section 66410 et seq. (See Gov. Code, § 66426 [necessity of tentative and final maps].) Although the parties dispute the date upon which the application was completed, and the complaint alleges both dates, resolution of that issue is not required in the present appeal.
For present purposes, it is sufficient to say that after the application was filed defendant and respondent City of Bakersfield (defendant) extensively amended the provisions of its zoning ordinances governing foothill development. Plaintiffs’ proposed development is within the geographic reach of the ordinance, but plaintiffs contend the completion of the tentative map application before adoption of the amended ordinance precludes application of the ordinance to their project. (See Gov. Code, § 66474.2.)
Plaintiffs contend the applicability or inapplicability of the amended ordinance to their proposed project has a significant financial impact on the project. Therefore, they filed an action for declaratory relief alleging they “are informed and believe and thereon allege that Defendant City of Bakersfield contends that the Amended Hillside Ordinance applies to the Plaintiffs’ Tentative Tract Map Application .…” The complaint affirmatively alleges that defendant has not acted on the application.
Defendant demurred to the complaint, alleging the complaint shows on its face that the action was filed and served after the time permitted by Government Code section 66499.37. That section requires that 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” must be “commenced and service of summons effected within 90 days after the date of the decision.” Defendant contended the complaint was not filed and served within 90 days of the adoption of the amended ordinance.
We have quoted the present version of the section, which was amended in certain minor and non substantive ways after this action was filed. (See Stats. 2007, ch. 612, § 9.) We deny the parties’ previous motions for judicial notice of certain legislative materials concerning amendment of this code section, determination of those motions having previously been deferred by order of this court. The materials are not relevant to any issue determinative of this appeal.
While the parties and the court considered at the hearing on the demurrer that the action might be premature (that is, that defendant had not yet taken any action that created a justiciable controversy), the court ultimately ruled that the demurrer should be granted without leave to amend because plaintiffs failed to serve the complaint “within the time limits of Govt. Code section 66499.37.” The court did not specify the date from which the 90 days for service began.
After entry of judgment on the demurrer, plaintiffs filed a timely notice of appeal.
Discussion
While it is not clear from the complaint how, or when, plaintiffs were informed and came to believe the amended ordinance would be applied to their development, that defect could easily have been cured by amendment to the complaint. As a result, the trial court erred in not allowing plaintiffs an opportunity to add the required allegations. (See 5 Witkin, Cal. Procedure (4th ed. 1997) Pleadings, § 944, pp. 402-403.)
Nevertheless, plaintiffs acknowledge that any claim of applicability of the amended ordinance by representatives of defendant was informal and not a part of defendant’s action on the pending application. Accordingly, any judicial action would be premature. Therefore, even if plaintiffs alleged the informal action occurred within 90 days prior to filing and service of the complaint, the action, as a matter of law, would still have to be dismissed for failure to exhaust administrative remedies. (See Jonathan Neil & Associates, Inc. v. Jones (2004) 33 Cal.4th 917, 930.) The Subdivision Map Act clearly establishes an administrative process for consideration of plaintiffs’ application, and the statute contemplates recourse to that process prior to any action in court (see Gov. Code, § 66499.37); as a result, courts must defer to the administrative tribunal. (See Jonathan Neil & Associates, Inc. v. Jones, supra, at p. 930.)
We conclude that plaintiffs were not prejudiced by the trial court’s failure to permit amendment of the complaint to address the statute of limitations issue, since the exhaustion of remedies doctrine would have required dismissal of the present action in any event. Such dismissal, of course, is without prejudice to claims plaintiffs might raise in the administrative proceedings on their subdivision map application and any subsequent judicial review of those proceedings.
Disposition
The judgment is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR:GOMES, J. HILL, J.