Opinion
C095805
08-22-2023
CHICO SCRAP METAL, INC., et al., Plaintiffs, Cross-defendants and Appellants, v. CITY OF CHICO, Defendant, Cross-complainant and Respondent.
NOT TO BE PUBLISHED
Super. Ct. No. 18CV03900
RENNER, J.
Appellants Chico Scrap Metal, Inc. and George Scott, Trustee of the George W. Scott, Sr. Revocable Intervivos Trust dated September 25, 1995, as amended (collectively, CSM) appeal following the grant of summary judgment in favor of respondent City of Chico (City). CSM owned and operated a scrapyard in the Chapman/Mulberry neighborhood, an area that was once part of unincorporated Butte County (County) but was later annexed into the City.
We note that CSM objected to the term "scrapyard" in the trial court, preferring to characterize the subject property as a "scrap metal yard" or "scrap metal recycling business." For the sake of brevity only, and intending no disrespect, we will refer to the property as a "scrapyard."
The County and City adopted neighborhood plans for the Chapman/Mulberry neighborhood in 2000 and 2004, respectively. Both neighborhood plans contemplated that the Chapman/Mulberry neighborhood would be rezoned, and the scrapyard would become a nonconforming use that would be amortized over time and eventually eliminated. According to CSM, the City's neighborhood plan additionally contemplated that the scrapyard would be relocated at the City's expense. This is where the parties' substantive dispute lies, but we do not reach that dispute in today's opinion. We are concerned here with a threshold issue: whether CSM's causes of action for writ of mandate, declaratory relief, inverse condemnation and takings and violations of section 1983 of title 42 of the United States Code were timely served and filed under the statutes of limitation said to be applicable; namely, Government Code section 65009, subdivision (c)(1) and Code of Civil Procedure section 335.1. We conclude they were not. Accordingly, we will affirm the judgment.
Amortization, as defined in part by Black's Law Dictionary, means, "A method of terminating a nonconforming use by allowing it to continue only for a specified grace period, so that the owner may recover all or part of the investment. After the grace period expires, the use must be ended." (Black's Law Dictionary (10th ed. 2014) p. 103, col. 2.)
Undesignated statutory references are to the Government Code.
I. BACKGROUND
A. The Chapman/Mulberry Neighborhood
For many years, the 338-acre Chapman/Mulberry neighborhood was an unincorporated county island surrounded by the City. The neighborhood was characterized by low to medium density housing, with limited public infrastructure and scattered commercial and industrial uses. The scrapyard was one such commercial use.
CSM began operating the scrapyard in the Chapman/Mulberry neighborhood in 1983. Over the years, the scrapyard came to be viewed as inconsistent and incompatible with nearby residential uses and an adjacent elementary school. The County adopted the Chapman/Mulberry Neighborhood Plan (the County's Neighborhood Plan) in January 2000 as part of an effort to enhance and revitalize the neighborhood.
B. The County's Neighborhood Plan
The County's Neighborhood Plan called for changes to certain land use designations in the Chapman/Mulberry neighborhood and a new overlay zoning district. Among other things, the County's Neighborhood Plan contemplated that the scrapyard would become a nonconforming commercial use, which would be amortized over a 10 year period and terminated. The County's Neighborhood Plan specifically named CSM, stating: "The City and County shall facilitate the relocation of the Chico Scrap Metal Yard to an industrial zoned location that does not have conflicts with residentially zoned and used lands." The County's Neighborhood Plan further directed the City and County to "cooperatively take the necessary steps to relocate the Chico Scrap Metal Yard to a more appropriate location" within a five year period.
C. The City's Neighborhood Plan
The City adopted its own Chapman/Mulberry Neighborhood Plan in October 2004 (the City's Neighborhood Plan). Like the County's Neighborhood Plan, the City's Neighborhood Plan called for changes to existing land use designations and a special design considerations overlay zone. As relevant here, the City's Neighborhood Plan called for rezoning the scrapyard from "ML - Light Manufacturing" to "CN -Neighborhood Commercial." The City's Neighborhood Plan also contemplated that CSM's nonconforming use would be amortized and terminated.
The city's Neighborhood Plan refers to CSM by name in several places. First, the City's Neighborhood Plan identifies several general land use policies, including the following: "The City shall work with the County to facilitate the relocation of the Chico Scrap Metal Yard to an industrially zoned location that does not have conflicts with residentially zoned and used lands."
Second, the City's Neighborhood Plan describes an "implementation program," with "zoning and land use consistency" and "neighborhood rehabilitation" elements directed to CSM. With respect to zoning and land use consistency, the City's Neighborhood Plan contains a section entitled, "Amortization of Chico Scrap Metal Yard," which provides: "The Chico Scrap Metal Yard is located within the Chapman/Mulberry Neighborhood Plan area and is proposed to be the site of a future mixed-use neighborhood core. Upon City adoption of the Chapman/Mulberry Neighborhood Plan, the Chico Scrap Metal Yard will become a non-conforming use. Once the Chico Scrap Metal Yard becomes a non-conforming use, the City shall adopt an ordinance providing for its amortization." With respect to neighborhood rehabilitation, the City's Neighborhood Plan contains a section entitled, "Relocation of the Chico Scrap Metal Yard," which provides: "The City and County shall cooperatively take the necessary steps to relocate the Chico Scrap Metal Yard to a more appropriate location." The Neighborhood Plan indicates that the time frames for both amortization and relocation of CSM would be "ongoing."
D. Ordinance No. 2346 (Amortization Ordinance)
The City adopted an ordinance requiring the amortization of nonconforming commercial and industrial uses in the Chapman/Mulberry neighborhood in December 2006. (Chico Municipal Code, § 19.52.070(D)(6)(g)(1).) That ordinance-Ordinance No. 2346 (sometimes called the "Amortization Ordinance")-provided that nonconforming commercial and industrial uses would be amortized and terminated no later than December 31, 2011. Ordinance No. 2346 further provided that nonconforming commercial and industrial uses would not be expanded, enlarged, or extended. However, Ordinance No. 2346 authorized the Planning Commission to extend the amortization deadline for good cause upon an application for an extension submitted two years in advance of the date on which the use was required to end. (Chico Municipal Code, § 19.52.070(D)(6)(g)(3).) Counsel for CSM and the City discussed the amortization deadline at various points between 2006 and 2009, but CSM did not seek an extension of the amortization period.
E. Ordinance No. 2429 (Extension Ordinance)
The city council returned to the subject of nonconforming commercial and industrial uses in the Chapman/Mulberry neighborhood in November 2011. With the amortization deadline approaching, the city council adopted Ordinance No. 2429 (sometimes called the "Extension Ordinance"), which extended the deadline by three years from December 31, 2011, to December 31, 2014. However, Ordinance No. 2429 eliminated the ability of affected landowners to apply for further extensions of the deadline.
The scrapyard became an illegal nonconforming use by operation of Ordinance Nos. 2346 and 2429 on January 1, 2015. Shortly thereafter, the city council voted to hold code enforcement in abeyance while CSM and the City considered alternatives to termination of the scrapyard use.
F. Ordinance Nos. 2490 and 292
The City and CSM worked together and came up with a new plan for the scrapyard. That plan involved the passage of two new ordinances on November 1, 2016: Ordinance Nos. 2490 and 2492.
Ordinance No. 2490 amended the City's Neighborhood Plan by striking the amortization and termination requirements directed to CSM. Ordinance No. 2490 also amended the Chico Municipal Code by deleting the provision requiring amortization of the scrapyard by December 31, 2014. By its terms, Ordinance No. 2490 was not to become effective "until 30 days after recordation of the development agreement." That agreement, which was to have bound CSM and the City, was the subject of Ordinance No. 2492.
The development agreement required CSM to make specified improvements to the scrapyard (such as landscaping and the installation of new fencing and gates), and gave CSM vested rights to operate the scrapyard as a nonconforming use so long as the agreement was effective and CSM was not in default. The effectiveness of the development agreement was conditioned on approval by the City of "an effective amendment of the Chico Municipal Code and/or the Chapman/Mulberry Neighborhood Plan which eliminates the requirement of amortization and termination of the CHICO SCRAP use." Thus, the effectiveness of the development agreement was conditioned on approval by the City of Ordinance No. 2490.
Ordinance No. 2492 approved the proposed development agreement. Ordinance No. 2492 authorized the city manager to execute the development agreement for the City, and directed the city clerk to record the executed agreement with the county recorder. So far as the record reveals, the development agreement was recorded on February 10, 2017. By then, however, other issues were afoot.
G. The Referendum and Related Litigation
A citizen's group called Move the Junkyard filed a referendum petition challenging the city council's approval of Ordinance No. 2490 in December 2016. The county clerk certified that sufficient signatures had been submitted to qualify the referendum for the ballot, and the city clerk certified the referendum to the city council. The City then filed a complaint in Butte County Superior Court (case No. 17CV00173) seeking a declaration that the referendum was invalid. The trial court granted Move the Junkyard's motion for judgment on the pleadings and entered judgment in the group's favor.
It is undisputed that the referendum petition was filed before Ordinance Nos. 2490 or 2492 became effective.
Move the Junkyard then filed a petition for writ of mandate in Butte County Superior Court (case No. 18CV00930) to compel the City to place the referendum on the November 2018 ballot. On July 6, 2018, the trial court issued a writ of mandate commanding the City to take one of two actions: (1) repeal Ordinance No. 2490, or (2) submit the referendum to the Butte County Clerk-Recorder for inclusion on the November ballot. CSM participated in both cases as real party in interest. As we shall see, the City chose the first course of action.
H. Ordinance No. 2516 (Repeal Ordinance)
The city council responded to the writ of mandate in the Move the Junkyard litigation by adopting Ordinance No. 2516 (sometimes called the "Repeal Ordinance") on September 4, 2018. Ordinance No. 2516 repealed Ordinance No. 2490 in its entirety. Ordinance No. 2516 did not reach Ordinance No. 2492, which approved the development agreement. However, Ordinance No. 2516 had the practical effect of scuttling the development agreement and nullifying Ordinance No. 2492.
I. CSM's First Amended Petition and Complaint
CSM commenced the present action by filing an initial petition for writ of mandate and complaint on December 3, 2018 (initial petition/complaint). The initial petition/complaint does not appear to have been served on the City. CSM filed and served a first amended petition for writ of mandate and complaint on December 14, 2018 (first amended petition/complaint). The first amended petition/complaint is the operative pleading here.
The first amended petition/complaint generally alleges the City was required to either allow CSM to operate the scrapyard as a legal nonconforming use or relocate the scrapyard to another location at the City's expense. Each of the first amended petition/complaint's five causes of action proceeds from this premise.
The first cause of action for writ of mandate alleges an unspecified ordinance (presumably Ordinance No. 2346) targeted CSM for amortization, but not other similarly situated businesses, and thus constituted unlawful "spot zoning." (See generally Foothill Communities Coalition v. County of Orange (2014) 222 Cal.App.4th 1302, 1311-1312 ["spot zoning" occurs when a parcel of land is rezoned to give it fewer or greater rights than the parcels surrounding it].) The first cause of action further alleges that the "same ordinance . . . anticipated and specifically mandated just compensation to [CSM] if and when CSM was required to cease operating at the current site and move its operations to a new location." The first cause of action seeks a writ ordering the City to "relocate CSM at the City's expense or, in the alternative, present reasonable, lawful alternatives for CSM's continued operation at the [then] current location as a legal nonconforming use."
The second cause of action for inverse condemnation and taking alleges CSM has suffered an unlawful taking without just compensation in violation of Fifth and Fourteenth Amendments to the United States Constitution and article I, section 19 of the California Constitution. The third cause of action seeks a declaration that "either facially or as applied" the City's Neighborhood Plan "impermissibly constitutes spot zoning, and thereby terminates [CSM's] vested property rights where the City cannot or will not permit CSM to continue to operate at its current location or facilitate the relocation of CSM at the City's expense." The fourth and fifth causes of action allege violations of section 1983 of title 42 of the United States Code for interference with CSM's rights to due process and equal protection, respectively.
J. The City's Motion for Summary Judgment and CSM's Opposition
The City moved for summary judgment or summary adjudication in June 2021. The City asserted three grounds for the motion. First, the City argued the first amended petition/complaint was time-barred as a matter of law. Specifically, the City argued each of CSM's five causes of action were based "on the allegedly wrongful acts of spot zoning and unlawful amortization of CSM's nonconforming use by the City," accomplished by means of the City's Neighborhood Plan (adopted in 2004), Ordinance No. 2346 (adopted in 2006), and Ordinance No. 2429 (adopted in 2011). Relying on section 65009, subdivision (c)(1), the City argued CSM was "anywhere from 7 to 14 years too late to file claims based on spot zoning and unlawful amortization."
Second, the City argued CSM could not maintain causes of action for inverse condemnation and civil rights violations because CSM had no vested right to continue operating the scrapyard as a nonconforming use.
Finally, the City argued the amortization period was reasonable as a matter of law.
CSM opposed the motion. CSM argued section 65009, subdivision (c)(1) began to run on the date Ordinance No. 2516 (the Repeal Ordinance) became effective. According to CSM, Ordinance No. 2516 became effective on October 4, 2018. Thus, CSM argued, the last day to file and serve the first amended complaint was January 2, 2019, and the action was timely. CSM also argued that it was bringing an as-applied challenge to Ordinance No. 2516, rather than a facial attack on the City's Neighborhood Plan or Ordinance No. 2346.
CSM next argued the City should be equitably estopped from asserting the statute of limitations under section 65009, subdivision (c)(1). According to CSM, estoppel was appropriate because the City assumed an obligation to relocate CSM in the City's Neighborhood Plan, and CSM reasonably believed that it could continue to operate the scrapyard until such time as the City discharged that obligation.
Finally, CSM argued that there were triable issues of fact as to whether amortization occurred prior to the effective date of Ordinance No. 2516, and whether a taking occurred.
K. The Trial Court's Ruling
The trial court granted the motion for summary judgment by order dated October 27, 2021. With respect to the statute of limitations, the trial court concluded that any cause of action related to the rezoning of the scrapyard would have accrued when the City adopted the City's Neighborhood Plan in October 2004. The trial court further concluded that causes of action related to amortization of the scrapyard would have accrued when Ordinance Nos. 2346 and 2429 were adopted, in December 2006 and November 2011, respectively. The trial court further concluded that CSM was asserting facial rather than as-applied challenges to the City's Neighborhood Plan and subsequent ordinances.
The trial court concluded Ordinance No. 2516 was not a triggering event for purposes of commencing the statute of limitations. But even assuming it was, the trial court found the 90-day period ran from the date Ordinance No. 2490 was repealed on September 4, 2018. Thus, the trial court reasoned, CSM had until December 3, 2018, to file and serve the first amended petition. Having failed to serve the first amended petition until December 14, 2018, the trial court concluded the first cause of action for writ of mandate, second cause of action for inverse condemnation, and third cause of action for declaratory relief were barred by section 65009, subdivision (c)(1). As for the fourth and fifth causes of action for civil rights violations, the trial court found the applicable two year limitations period (Code Civ. Proc., § 335.1) began running in 2004, 2006, or 2011, and thus expired well before CSM commenced the instant action.
Turning to equitable estoppel, the trial court found CSM waived the argument by seeking and receiving a three-year extension of the amortization period in 2011. (See Lynch v. California Coastal Commission (2017) 3 Cal.5th 470, 476; Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74, 76). The trial court further found the City's Neighborhood Plan "does not include any language regarding the [City] providing funding or that the amortization is dependent upon the [City's] efforts to assist with relocation [citation], thus there was no misrepresentation." The trial court further found CSM failed to provide evidence of reliance or damage that would support equitable estoppel. Accordingly, the trial court found no triable issue of material fact with respect to equitable estoppel.
Given the trial court's findings and conclusions with respect to the statute of limitations, the court found it unnecessary to consider the City's argument that CSM no longer had a vested right to continued operation of the nonconforming use of the scrapyard. Accordingly, the trial court denied the motion for summary adjudication with respect to that argument as moot.
The trial court entered judgment for the City on January 25, 2022. This appeal timely followed.
II. DISCUSSION
A. Standard of Review
Summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Code Civ. Proc. § 437c, subd. (c).)" 'A defendant moving for summary judgment must show either (1) that one or more elements of the plaintiff's cause of action cannot be established, or (2) "that there is a complete defense to that cause of action." [Citation.] The burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is heavier than the burden to show one or more elements of the plaintiff's cause of action cannot be established. Instead of merely submitting evidence to negate a single element of the plaintiff's cause of action, or offering evidence such as vague or insufficient discovery responses that the plaintiff does not have evidence to create an issue of fact as to one or more elements of his or her case [citation], "the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense" [citations]. The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the motion must be denied. Only if the defendant meets this burden does "the burden shift[] to plaintiff to show an issue of fact concerning at least one element of the defense." '" (Melendrez v. Ameron International Corporation (2015) 240 Cal.App.4th 632, 637-638; see also State Comp. Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1132.)
The purpose of a summary judgment motion is" 'to identify those cases in which there is no factual issue which warrants the time and cost of factfinding by trial.'" (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859 (Serri).) The object of the procedure is" 'to cut through the parties' pleadings' to determine whether trial is necessary to resolve their dispute." (Ibid., quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Consequently, in ruling on a summary judgment motion, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-290; Serri, supra, at p. 848.) The trial court must then determine whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 859.)
This court undertakes the same analysis as the trial court, reviewing the record de novo to determine whether the City is entitled to judgment as a matter of law on its statute of limitations defense. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; Serri, supra, 226 Cal.App.4th at p. 858; Falk v. Children's Hospital Los Angeles (2015) 237 Cal.App.4th 1454, 1462.) In undertaking this review," '[w]e accept as true the facts . . . in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.'" (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67.) We view the evidence in the light most favorable to CSM, liberally construing CSM's evidence while strictly scrutinizing the City's and resolving any evidentiary doubts or ambiguities in CSM's favor. (Serri, supra, at pp. 858-859.) Applying these standards, we conclude summary judgment was properly granted.
B. Statute of Limitations
Two limitations periods are said to be relevant here: (1) the 90-day statute applicable to an action to challenge or review a land use or zoning decision by a local agency (§ 65009, subd. (c)(1)) (applicable to the first, second, and third causes of action for writ of mandate, inverse condemnation and taking, and declaratory relief, respectively); and (2) the two-year statute applicable to title 42 United States Code section 1983 actions (Code Civ. Proc., § 335.1; see also Shalabi v. City of Fontana (2021) 11 Cal.5th 842, 847) (applicable to the fourth and fifth causes of action for violations of 42 U.S.C. § 1983). We address the running of each statute of limitations in turn.
The parties do not suggest that any other statute of limitations may apply, and we decline to express an opinion on that question.
1. Section 65009, Subdivision (c)(1)
Section 65009, subdivision (c) establishes a 90-day statute of limitations for legal challenges to local land use decisions. The short limitations period provides "certainty for property owners and local governments regarding decisions made pursuant to this division" (§ 65009, subd. (a)(3)) and alleviates the "chilling effect on the confidence with which property owners and local governments can proceed with projects" (§ 65009, subd. (a)(2)). (See generally Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 765 (Travis).) Upon the expiration of the 90-day period, "all persons are barred from any further action or proceeding." (§ 65009, subd. (e); Travis, supra, at p. 766.) Section 65009" 'mandates strict compliance with the statute of limitations and service periods.'" (Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1048.) "There are no exceptions." (Weiss v. City of Del Mar (2019) 39 Cal.App.5th 609, 619.)
The parties agree (and we accept) that the first amended petition/complaint challenges the City's Neighborhood Plan and falls within the subject area covered by section 65009, subdivision (c)(1). That subdivision provides in pertinent part that "no action or proceeding shall be maintained" with respect to "the decision of a legislative body to adopt or amend a general or specific plan" (§ 65009, subd. (c)(1)(A)) or "the decision of a legislative body to adopt or amend a zoning ordinance" (§ 65009, subd. (c)(1)(B)) unless "the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body's decision" (§ 65009, subd. (c)(1)). Subdivision (c)(1) thus specifies that" 'a decision' is the relevant event from which the statute of limitations runs." (1305 Ingraham, LLC v. City of Los Angeles (2019) 32 Cal.App.5th 1253, 1261; see also County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, 1324 (County of Sonoma) ["For the actions described in section 65009, subdivision (c)(1), the 90-day limitations period begins to run from the date on which the challenged decision is made"].)
The trial court found the first amended petition/complaint advances a facial challenge to the City's Neighborhood Plan, as to which the 90-day limitations period has long since passed. This was error, CSM says, because the first amended petition/complaint also asserts an as-applied challenge to the City's Neighborhood Plan. Relying on Travis, CSM argues the so-called as-applied challenge was timely. We disagree.
Before we explain our reasoning, we will try to unpack CSM's argument, which proceeds in several parts. First, CSM posits the City's Neighborhood Plan imposed on the City an obligation to relocate the scrapyard in the event amortization came to pass.Second, CSM asserts the City acted for years as though it had an obligation to relocate the scrapyard. Third, CSM suggests the City unexpectedly changed course when Ordinance No. 2516 became effective sometime in late 2018. Only then did CSM realize the City intended to "retroactively enforce" or "retroactively apply" Ordinance No. 2346 (the Amortization Ordinance), without honoring the alleged obligation to relocate the scrapyard. This is where Travis comes in. According to CSM, Travis authorizes as-applied challenges of the type said to have been brought here. Travis only serves to underscore the problems with CSM's argument.
We question whether the City's Neighborhood Plan expresses a mandatory duty to relocate the scrapyard. CSM purports to locate such a duty in the City's Neighborhood Plan, which directs the City to "work with the County to facilitate the relocation" of CSM and again, with the County, to "cooperatively take the necessary steps to relocate [CSM] to a more appropriate location." However, the City's Neighborhood Plan does not say anything about the City paying for the relocation of the scrapyard, and we are not inclined to view the command to "facilitate" the relocation or "cooperatively take . . . necessary steps" as imposing clear, present, or ministerial duties. (See generally Marquez v. State Department of Health Care Services (2015) 240 Cal.App.4th 87, 118119.) Because the sole question presented here is whether CSM's causes of action are time-barred under section 65009 or Code of Civil Procedure section 335.1, we need not concern ourselves with the merits of the first cause of action.
The parties disagree about when, specifically, Ordinance No. 2516 became effective. As previously discussed, the City Council adopted Ordinance No. 2516 on September 4, 2018. CSM argues Ordinance No. 2516 became effective on October 4, 2018, such that the first amended petition/complaint was timely. The City argues Ordinance No. 2516 became effective on September 4, 2018, such that the first amended petition/complaint was untimely. We need not resolve this dispute because we conclude the statute of limitations began to run before the passage of Ordinance No. 2516 for the reasons stated in the text.
Travis involved two sets of property owners' challenges to an ordinance imposing restrictions on second dwelling units on residential property. (Travis, supra, 33 Cal.4th at pp. 762-764.) The first owner, Travis, received a permit to construct a second dwelling unit, but the permit was subject to restrictive occupancy and rent control rules required by the ordinance. (Id. at p. 764.) Travis filed an administrative appeal against the permit conditions, which was denied. (Ibid.) The second set of owners, the Sokolows, received a permit subject to the same restrictions. (Ibid.) The Sokolows did not pursue an administrative appeal. (Ibid.)
Both sets of owners filed a petition for writ of mandate alleging the ordinance was preempted by later-enacted state statutes and violated the U.S. Constitution. (Travis, supra, 33 Cal.4th at p. 764.) The trial court denied the writ petition on statute of limitations grounds, and the Court of Appeal affirmed. (Id. at p. 765.)
The California Supreme Court affirmed in part and reversed in part. (Travis, supra, 33 Cal.4th at p. 763.) The court characterized the plaintiffs' action as one seeking to" 'determine the . . . validity' of conditions imposed on their permits and to 'void, or annul' the decisions imposing those conditions." (Id. at p. 766; quoting § 65009, subd. (c)(1)(E).) As such, the action was governed by section 65009, subdivision (c)(1)(E), rather than subdivision (c)(1)(B). (Travis, supra, at pp. 766-767.) The court then concluded the action was timely with respect to Travis since the petition was filed within 90 days of the "final administrative action" on his permit. (Id. at p. 767.) But a different conclusion was warranted with respect to the Sokolows. (Ibid.) Their action was untimely, the court concluded, as the petition "was brought almost 11 months after the Sokolows' permit application was approved." (Ibid.)
The Supreme Court went on to explain that section 65009, subdivision (c)(1)(E) did not bar Travis from making a facial challenge to the validity of the ordinance. (Travis, supra, 33 Cal.4th at pp. 767-771.) The court reasoned that Travis was not complaining of an injury arising solely from enactment of the ordinance. (Id. at pp. 768769.) He was also seeking relief from imposition of the permit conditions required by the ordinance. (Id. at p. 769.) "Having brought his action in a timely way after application of the Ordinance to him," the court said, "Travis may raise in that action a facial attack on the Ordinance's validity." (Ibid.)
In reaching this conclusion, the high court observed: "If a preempted or unconstitutional zoning ordinance could not be challenged by a property owner in an action to prevent its enforcement within 90 days of its application (§ 65009, subd. (c)(1)(E)), but instead could be challenged only in an action to void or annul the ordinance within 90 days of its enactment (id., subd. (c)(1)(B)), a property owner subjected to a regulatory taking through application of the ordinance against his or her property would be without remedy unless the owner had had the foresight to challenge the ordinance when it was enacted, possibly years or even decades before it was used against the property." (Travis, supra, 33 Cal.4th at p. 770.)
CSM labors mightily to compare its situation with that of the successful plaintiff in Travis. Arguing by analogy to the final administrative action on the permit in Travis, CSM emphasizes the petition was filed and served within 90 days of Ordinance No. 2516 (the Repeal Ordinance). According to CSM, Ordinance No. 2516 "resurrected" Ordinance No. 2346 (the Amortization Ordinance), and allowed the City to "retroactively enforce" or "retroactively apply" the amortization provisions to the scrapyard. Just as the final administrative action on the permit reset the statute of limitations clock on the plaintiff's as-applied challenge in Travis, CSM seems to say, so too does the passage of Ordinance No. 2516 reset the clock on the current challenge to Ordinance No. 2346. This analogy does not hold up.
For starters, CSM does not challenge any condition attached to a conditional use permit or variance, and thus does not challenge any final administrative action of the type that gave rise to the timely as-applied challenge in Travis. As the County of Sonoma court explained, in rejecting a similar argument: "This distinction is significant, because Travis was allowed to press his facial claims only because he had brought a timely as-applied challenge to the conditions imposed in his permit." (County of Sonoma, supra, 190 Cal.App.4th at p. 1329.) Here, of course, there was no such action.
In the absence of any administrative action, CSM places great weight on Ordinance No. 2516. But the first amended petition/complaint does not purport to challenge Ordinance No. 2516, and we do not believe the passage of Ordinance No. 2516 opens the door to an otherwise untimely challenge to Ordinance No. 2346. (See generally Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 388 ["The 90-day period is attached to the decision under attack, and to no other decision"].) We need not reach this question, however, as the record establishes the 90-day limitations period ended before Ordinance No. 2516 became effective.
As previously discussed, the City adopted Ordinance No. 2346 (the Amortization Ordinance) in December 2006. Ordinance No. 2346 contemplated the scrapyard would be amortized and terminated no later than December 31, 2011. The City adopted Ordinance No. 2429 (the Extension Ordinance) in November 2011. Ordinance No. 2429 extended the amortization deadline to December 31, 2014, with no further extensions. Thus, the scrapyard became an illegal nonconforming use by January 1, 2015. Here, we pause to emphasize that the scrapyard became an illegal nonconforming use by operation of Ordinance Nos. 2346 and 2429, and not by application of either ordinance in any administrative action.
CSM received a reprieve from Ordinance Nos. 2346 and 2429 in the form of the development agreement. The development agreement was recorded on February 10, 2017, and the scrapyard became a legal nonconforming use 30 days later, by operation of Ordinance Nos. 2490 and 2492. The scrapyard then enjoyed an approximately 20-month interval as a legal conforming use until Ordinance No. 2516 (the Repeal Ordinance) became effective.
Ordinance No. 2516 repealed Ordinance No. 2490 and returned the parties to the status quo existing before the development agreement was recorded. That status quo-in which the scrapyard was an illegal nonconforming use-resulted from the operation of Ordinance Nos. 2346 and 2429, not the operation of Ordinance No. 2516. Although the decision to return the scrapyard to the status quo ante was made in 2018 (by way of Ordinance No. 2516), the decisions that made the scrapyard an illegal nonconforming use were reached in 2004 (by way of the City's Neighborhood Plan), 2006 (by way of Ordinance No. 2346), and 2011 (by way of Ordinance No. 2429). It is these decisions, all made years before CSM brought suit, that the first amended petition/complaint's first, second, and third causes of action seek to challenge.
The first cause of action for writ of mandate seeks an order compelling the City to comply with an alleged obligation, supposedly rooted in the City's Neighborhood Plan, to relocate the scrapyard at the City's expense. The second cause of action for inverse condemnation and takings alleges the City's Neighborhood Plan and Ordinance No. 2346 (the Amortization Ordinance) have deprived CSM of the beneficial use of the scrapyard and seeks damages according to proof. The third cause of action for declaratory relief seeks a declaration that the City's Neighborhood Plan terminates CSM's vested property rights "where the City cannot or will not permit CSM to continue to operate at its current location or facilitate the relocation of CSM at the City's expense." None of these causes of action challenges Ordinance No. 2516.
CSM insists the first amended petition/complaint asserts an as-applied challenge to "the retroactive application of amortization arising from the Repeal Ordinance." But the scrapyard was already amortized by operation of Ordinance Nos. 2346 and 2429. Ordinance No. 2516 did not retroactively apply or enforce any previous ordinance. It merely repealed Ordinance No. 2490, thereby frustrating CSM's attempt to snatch victory from the jaws of defeat with the development agreement. We reject CSM's contention that Ordinance No. 2516 triggered a new limitations period.
County of Sonoma supports our analysis. There, the county enacted an ordinance requiring that medical cannabis dispensaries obtain permits to operate. (County of Sonoma, supra, 190 Cal.App.4th at p. 1314.) The plaintiff (a medical cannabis cooperative) opened a dispensary without a permit. (Ibid.) The county issued a stop order. (Ibid.) The cooperative closed the dispensary and sued the county, challenging the ordinance on equal protections grounds. (Ibid.) The trial court invalidated the ordinance, and the county appealed, arguing the case was time-barred under section 65009, subdivision (c)(1)(B). (County of Sonoma, supra, at pp. 1314-1315.)
The Court of Appeal agreed with the county. (County of Sonoma, supra, 190 Cal.App.4th at p. 1315.) The court rejected the cooperative's argument that the action was an as-applied challenge to the issuance of the stop order. (Id. at p. 1325 [observing that "Travis . . . does not hold that a party may escape the limitations period imposed by the statute merely by claiming that its challenge to a zoning ordinance is an as-applied one"].) Instead, the court found the challenge was "facial in nature," because the alleged defect was in the ordinance itself, not the manner or circumstances in which it was applied. (Ibid.; see also Arcadia Development Co. v. City of Morgan Hill (2011) 197 Cal.App.4th 1526, 1535 [finding that the plaintiff's challenge was "a facial challenge because the alleged defect [was] in the ordinance itself"].) By challenging the issuance of the stop order, an enforcement proceeding compelled by the ordinance, the cooperative was effectively challenging the ordinance itself. (County of Sonoma, supra, at p. 1329 ["the Cooperative's claimed injury arose from the Ordinance itself, and the validity of the Ordinance was the only issue in the litigation"].) So too here.
CSM's challenge, like the cooperative's challenge in County of Sonoma, is based on Ordinance No. 2346 (the Amortization Ordinance) and Ordinance No. 2429 (the Extension Ordinance), and not on any subsequent action or ordinance. Ordinance No. 2516 (the Repeal Ordinance) did not cause CSM to suffer any injury that did not already exist by operation of Ordinance Nos. 2346 and 2429. It merely returned the parties to their positions prior to the recordation of the development agreement. As we have shown, that position was one in which CSM had already suffered the injury sought to be remedied by the first and third causes of action, as the scrapyard had long since been made an illegal nonconforming use by operation of Ordinance Nos. 2346 and 2429, and the City had not paid to relocate it. The trial court correctly concluded the first, second, and third causes of action raised facial challenges to the City's Neighborhood Plan and Ordinance Nos. 2346 and 2429 and were barred by section 65009, subdivision (c)(1)(B).
2. Code of Civil Procedure Section 335.1
As previously discussed, Code of Civil Procedure section 335.1 supplies the two-year statute of limitations for the first amended petition/complaint's fourth and fifth causes of action for violations of section 1983 of title 42 of the United States Code (substantive due process and equal protection). (Code Civ. Proc., § 335.1; see also Shalabi v. City of Fontana, supra, 11 Cal.5th 842, 847.) The trial court found the statute of limitations began to run upon passage of the City's Neighborhood Plan, Ordinance No. 2346 (the Amortization Ordinance) and Ordinance No. 2429 (the Extension Ordinance). CSM does not specifically address the fourth and fifth causes of action in its briefing. Instead, CSM appears to rely on the arguments discussed above. We reject those arguments for the reasons stated.
C. Equitable Estoppel
CSM next argues the trial court erred in granting summary judgment because there were triable issues of fact as to whether principles of equitable estoppel barred the City from asserting the statute of limitations. We agree with the trial court that CSM failed to present evidence raising a triable issue of fact as to equitable estoppel.
" 'The doctrine of equitable estoppel is founded on concepts of equity and fair dealing. It provides that a person may not deny the existence of a state of facts if he intentionally led another to believe a particular circumstance to be true and to rely upon such belief to his detriment. The elements of the doctrine are that[:] (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. [Citation.]' [Citations.] [¶] Equitable estoppel 'will not apply against a governmental body except in unusual instances when necessary to avoid grave injustice and when the result will not defeat a strong public policy.'" (City of Goleta v. Superior Court (2006) 40 Cal.4th 270, 279.)
"A defendant may be equitably estopped from asserting a statutory or contractual limitations period as a defense if the defendant's act or omission caused the plaintiff to refrain from filing timely suit and the plaintiff's reliance on the defendant's conduct was reasonable. [Citations.] The act or omission must constitute a misrepresentation or nondisclosure of a material fact, rather than law. [Citation.] The defendant need not intend to deceive the plaintiff to give rise to an equitable estoppel." (Superior Dispatch, Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 186.) "The defendant's statement or conduct must amount to a misrepresentation bearing on the necessity of bringing a timely suit; the defendant's mere denial of legal liability does not set up an estoppel." (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 384, fn. 18 (Lantzy).)
The existence of an estoppel is normally a question of fact. (Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 266.) Where, however, the facts are undisputed, the existence of estoppel is an issue of law. (Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1315.) Thus, "if no estoppel could exist as a matter of law," it is appropriate to dispose of the defense by summary judgment. (Munoz v. Kaiser Steel Corp. (1984) 156 Cal.App.3d 965, 971.) The party asserting the estoppel defense bears the burden of proving its application. (Busching v. Superior Court (1974) 12 Cal.3d 44, 53.) There can be no equitable estoppel if any of the elements is missing. (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 584.)
In opposing the City's motion for summary judgment, CSM argued the City "clearly understood (and repeatedly affirmed) its obligation to relocate CSM." CSM also argued the City entered the development agreement because the City lacked financial resources to relocate the scrapyard, and joined forces with CSM in fighting the Move the Junkyard referendum. As evidence, CSM pointed to the declaration of its facility manager, Kim Scott (Scott declaration), and the City's complaint for declaratory and injunctive relief against Move the Junkyard (Junkyard complaint). We have carefully reviewed the Scott declaration and Junkyard complaint and found nothing that could constitute a misrepresentation bearing on the necessity of bringing a timely suit. (Lantzy, supra, 31 Cal.4th at p. 384, fn. 18.)
The closest thing is an allegation from the Junkyard complaint. In asserting that declaratory and injunctive relief were appropriate, the Junkyard complaint alleged: "[Move the Junkyard's] Petition would result in the enactment or re-enactment of an unreasonable, arbitrary, and unlawful ordinance that is facially, and as applied to CSM and the Property, unenforceable and illegal under and by virtue of the Chico City Charter, California's Planning and Zoning Law, California's Constitution, and the Constitution of the United States of America." This allegation, though arguably relevant as a judicial admission on the merits, does not say anything about the necessity of bringing a timely suit. (Lantzy, supra, 31 Cal.4th at p. 384, fn. 18.) And, though CSM may have had reason to believe its interests were aligned with the City so far as Move the Junkyard was concerned, no evidence suggests CSM relied on the Junkyard complaint in waiting to commence the instant action. To the contrary, CSM's own evidence establishes that: (1) CSM knew by February 2016 that the City lacked financial resources to make good on any alleged obligation to relocate the scrapyard; and (2) CSM knew by July 2018 that the City intended to repeal Ordinance No. 2490. Thus, the undisputed evidence shows CSM was aware of the true state of facts months before Ordinance No. 2516 (the Repeal Ordinance) became effective. (Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1496 [In "the absence of a confidential relationship," "where the material facts are known to both parties and the pertinent provisions of law are equally accessible to them, a party's inaccurate statement of the law or failure to remind the other party about a statute of limitations cannot give rise to an estoppel"].) Under the circumstances, we conclude no reasonable trier of fact could find CSM reasonably relied on the Junkyard complaint in waiting to bring suit. The trial court correctly concluded the evidence was insufficient to create a triable issue of material fact as to the existence of an estoppel.
Having concluded summary judgment was properly granted on statute of limitations grounds, and having further concluded that CSM failed to raise a triable issue as to equitable estoppel, we deem it unnecessary to reach CSM's arguments concerning the reasonableness of the amortization period. Likewise, and for the same reasons, we need not reach CSM's challenge to the City's argument (which the trial court denied as moot) that CSM has no vested rights to the continued nonconforming use of the scrapyard.
D. Evidentiary Rulings
Finally, CSM argues the trial court erred in sustaining the City's objections to the following exhibits attached to the Scott declaration: (1) a chronology of events concerning the City's efforts to relocate the scrapyard to its current location in the 1980s (Exhibit B); (2) a collection of newspaper clippings, correspondence, and invoices regarding the earlier relocation of the scrapyard (Exhibit C); and (3) a letter from Scott to the City detailing CSM's anticipated relocation costs (Exhibit G). The trial court sustained the City's objections to Exhibits B and C on grounds of lack of foundation and hearsay. (Evid. Code, §§ 403, 1200 et seq.) The trial court sustained the City's objection to Exhibit G on grounds of hearsay. (Evid. Code, § 1200 et seq.) We perceive no reversible error.
An erroneous evidentiary ruling requires reversal only if "there is a reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error." (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 815; see Evid. Code, § 354.) Here, any error in the trial court's evidentiary rulings would not change the outcome on summary judgment because none of the excluded evidence could have created a triable issue with respect to the running of the statute of limitations or the existence of an estoppel. Accordingly, we need not consider CSM's arguments further.
III. DISPOSITION
The judgment is affirmed. Respondent City of Chico is entitled to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
We concur: HULL, Acting P. J. MESIWALA, J.