Opinion
E080426
06-10-2024
Mahoney & Soll and Paul M. Mahoney for Plaintiff and Appellant. Civica Law Group, Matthew R. Silver, and Valerie D. Escalante Troesh for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVSB2108089 Bryan Foster, Judge. Affirmed.
Mahoney & Soll and Paul M. Mahoney for Plaintiff and Appellant.
Civica Law Group, Matthew R. Silver, and Valerie D. Escalante Troesh for Defendant and Respondent.
OPINION
FIELDS, J.
I.INTRODUCTION
Plaintiff and appellant, First Choice Ready Mix, filed a civil action seeking to challenge defendant and respondent, City of Chino's (the City) purported failure to grant plaintiff a conditional use permit to operate a ready mix manufacturing facility. On June 21, 2022, the trial court sustained a demurrer to plaintiff's second amended complaint (SAC) without leave to amend, and plaintiff appeals from the subsequent judgment of dismissal. We have independently reviewed the allegations of the SAC, but found no error in the trial court's order sustaining the demurrer. Nor has plaintiff met its burden to show an abuse of discretion in the trial court's denial of leave to amend. Thus, we affirm the judgment.
II.BACKGROUND
A. Allegations of the SAC
On February 25, 2022, plaintiff filed its SAC identifying the City as the only named defendant. The pleading purports to state three causes of action entitled: (1) "Violation of United States Constitution 14th Amendment"; (2) "Violation of 42 USC § 1983 of the U.S. Code - Violation for Disparate Treatment"; and (3) "Illegal Discrimination".
Under the first purported cause of action, plaintiff alleges that it is a business entity who leased a parcel of land for use in a ready mix manufacturing operation. Plaintiff inquired with the City to obtain a conditional use permit for its operations. However, during the course of this inquiry, City officials represented that it was unlikely that a conditional use permit would be granted. According to plaintiff, City officials offered multiple, inconsistent and suspect reasons for their representation that a conditional use permit would be denied. Despite these representations, plaintiff continued to inquire about obtaining a conditional use permit and was advised that the logical next step would be for plaintiff to submit forms to request a pre-application review as part of the process to formally request a conditional use permit. In response, plaintiff submitted paperwork to initiate a pre-application review in September 2019.
During the course of the pre-application review process, the City repeatedly represented that plaintiff could not conduct ready mix operations on the property prior to approval of a permit. When plaintiff refused to cease operation, the City initiated various enforcement actions for code violations. During the pre-application review meetings, City representatives again informed plaintiff that a conditional use permit could not be granted, noting that the property was located within a flood zone. According to plaintiff, it became "obvious" that meeting with the City was a "waste of time and money and no matter what [plaintiff] did the City was not going to approve anything." Based upon these allegations, plaintiff contends it is entitled to monetary damages for violation of its due process rights and for being subject to disparate code enforcement actions. Plaintiff also contends that the City was biased in its decision making process in violation of Petrovich v. Development Co., LLC v. City of Sacramento (2020) 48 Cal.App.5th 963 (Petrovich).
Under the second purported cause of action, plaintiff alleges that a private law firm retained by the City to conduct code enforcement litigation is engaged in "illegal" activity. According to plaintiff, the law firm has a personal financial stake in the outcome of litigation; makes no effort to resolve enforcement cases outside of court; acts with minimal or no supervision by City officials; and enters into contracts with municipalities that give the municipality minimal control over the litigation process, minimal say in settlement decisions, and minimal oversight over such litigation. Based upon these allegations, plaintiff alleges that the law firm should be "disqualified as [the City's] counsel" and must be "stopped".
With respect to the third purported cause of action, the SAC does not include any substantive factual allegations specific to this claim. Instead, the SAC merely included a paragraph that incorporates by reference the factual allegations made in support of the first and second causes of action. Finally, the SAC's prayer for relief requests only monetary damages and attorney fees as a result of the claims asserted in the SAC.
B. Demurrer and Judgment
At the end of March 2022, the City filed a demurrer and motion to strike in response to the SAC. On June 16, 2022, the trial court held a hearing on the demurrer. At the time of hearing, plaintiff's counsel referred only to Petrovich, claimed the case was controlling and submitted. Counsel did not offer any proposed facts in support of any request for leave to further amend the pleading. On June 21, 2022, the trial court issued a written ruling sustaining the demurrer to the SAC, without leave to amend. A judgment of dismissal was entered on December 16, 2022 and plaintiff appeals from the judgment.
III. DISCUSSION
A. General Legal Principles and Standard of Review
"A demurrer tests the legal sufficiency of factual allegations in a complaint. [Citation.] In reviewing the sufficiency of a complaint against a general demurrer, [the] court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law." (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 42-43.) "Regardless of the label attached to the cause of action, [the court] examine[s] the complaint's factual allegations to determine whether they state a cause of action on any available legal theory." (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.)
A Court of Appeal "applies two separate standards of review on appeal from a judgment of dismissal after a demurrer is sustained without leave to amend. [Citation.] We first review the complaint de novo to determine whether the complaint alleges facts sufficient to state a cause of action under any legal theory or to determine whether the trial court erroneously sustained the demurrer as a matter of law." (Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 595.) When conducting our de novo review, "[i]f a complaint is insufficient on any ground specified in a demurrer, the order sustaining the demurrer must be upheld even though the particular ground upon which the court sustained it may be untenable." (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 440; Los Angeles Waterkeeper v. State Water Resources Control Bd. (2023) 92 Cal.App.5th 230, 264 ["' "We are not bound by the trial court's reasoning and may affirm the judgment if correct on any theory"' "].) Further, a reviewing court may consider defects that "involve[] purely a legal question which rest[] on an uncontroverted record which could not have been altered by the presentation of additional evidence." (Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 377 [upholding sustaining of demurrer based on defense not explicitly argued in trial court].)
"Second, we determine whether the trial court abused its discretion by sustaining the demurrer without leave to amend . . . An abuse of discretion is established when 'there is a reasonable possibility the plaintiff could cure the defect with an amendment.'" (Aguilera v. Heiman, supra, 174 Cal.App.4th at p. 595.) "The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) In order to meet this burden, the plaintiff "must submit a proposed amended complaint . . . or 'enumerate the facts and demonstrate how those facts establish a cause of action.'" (Reid v. City of San Diego (2018) 24 Cal.App.5th 343, 369; Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 444.)
B. The Trial Court did Not Err in Sustaining the Demurrer to the First Cause of Action
In our view, the purported first cause of action in the SAC appears to allude to at least three, distinct theories of liability: a violation of due process under the United States Constitution; a violation of equal protection under the United States Constitution; and a claim for administrative mandate. Nevertheless, we conclude that the allegations of the SAC are insufficient to state a viable cause of action under any of these potential theories and, as a result, the trial court did not err in sustaining the demurrer to the first cause of action in the SAC.
1. Administrative Mandate
Generally, "[t]he issuance of a conditional use permit is a quasi-judicial administrative action reviewed under administrative mandamus procedures." (Harrington v. City of Davis (2017) 16 Cal.App.5th 420, 434; Neighbors in Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997, 1005.) While the SAC never uses the term administrative mandate, the pleading expressly refers to Petrovich as a basis for relief, and Petrovich is a case involving an appeal from a petition for writ of mandate. (Petrovich, supra, 48 Cal.App.5th at p. 965.) Thus, a liberal construction of the allegations suggest that plaintiff is attempting to seek some kind of administrative review in this cause of action.
However, "mandamus must be used only to review a final determination, and a writ can issue only if there is a present statutory duty to act." (California High-Speed Rail Authority v. Superior Court (2014) 228 Cal.App.4th 676, 713; Beach & Bluff Conservancy v. City of Solana Beach (2018) 28 Cal.App.5th 244, 258 [administrative mandamus is intended to permit a party to seek review "of a final 'determination, finding, or decision of a public agency' "].) As a result, a party cannot seek "review of an intermediate or interlocutory action of an administrative agency" (California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489) and instead must exhaust available administrative remedies as "a jurisdictional prerequisite to judicial review" of actions of an administrative agency. (Walter H. Leimert Co. v. California Coastal Com. (1983) 149 Cal.App.3d 222, 232; Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321 [exhaustion of administrative remedies "is not a matter of judicial discretion, but is a fundamental rule of procedure . . . binding upon all courts"].) Thus, "[a] demurrer may properly be sustained based on the failure to adequately plead exhaustion of administrative remedies" and "the plaintiff must allege facts showing that he did exhaust administrative remedies or facts showing that he was not required to do so." (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 156.)
In this case, plaintiff alleged that it became frustrated with the City during the course of a pre-application review process for a conditional use permit. However, there are no factual allegations to suggest that plaintiff ever proceeded beyond the initial pre-application review in its attempt to obtain a conditional use permit. Plaintiff did not allege that it ever completed the pre-application review process, let alone allege that it formally applied for a conditional use permit and obtained a final determination denying such a request. Absent allegations that plaintiff completed the normal administrative procedures to request a conditional use permit and obtained a final determination, the SAC fails to allege sufficient facts to show that plaintiff exhausted its administrative remedies. The failure to exhaust administrative remedies is fatal to any cause of action for administrative mandamus, as it precludes plaintiff from seeking judicial review of the City's purported decision. Thus, to the extent plaintiff intended to assert a claim for administrative mandamus, the SAC fails to allege facts sufficient to constitute a cause of action.
In oral argument, plaintiff repeatedly asserted that the City frustrated its efforts to obtain a conditional use permit. However, it failed to identify any factual allegations set forth in its pleading that would show how it was prevented from completing the process of obtaining a final determination on a request for a conditional use permit. On review of a demurrer, "[w]e construe the complaint in a reasonable manner and assume the truth of properly pleaded factual allegations . . . . We need not accept as true, however, contentions, deductions, or conclusions of fact or law." (State ex rel. Edelweiss Fund, LLC v. JPMorgan Chase & Co. (2023) 90 Cal.App.5th 1119, 1134.) Because "facts not alleged are presumed not to exist" (Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1327; C&H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062), we are not persuaded by contentions made at oral argument that are not supported by factual allegations set forth in the pleading.
For this reason, we find plaintiff's reliance on Petrovich misplaced. While Petrovich articulates standards for the appropriate exercise of discretion by an administrative agency (Petrovich, supra, 48 Cal.App.5th at p. 973), neither the trial court nor this court can apply such standards when an administrative proceeding has yet to occur, a formal decision on a request has yet to be made, and there is no administrative record to review.
For this reason, we also need not consider the argument advanced by the City at oral argument that facts subject to judicial notice negate the conclusory allegations of the complaint. Where the complaint fails to state a cause of action in the first instance, it is unnecessary to decide whether facts subject to judicial notice might also constitute a defense to the asserted cause of action.
2. Due Process
Unlike potential state law claims, a claim brought pursuant to 42 United States Code section 1983 (Section 1983) is not subject to the doctrine of exhaustion of administrative remedies. (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 336 ["a state may not require exhaustion of alternative administrative and judicial remedies as a prerequisite to a section 1983 suit brought in state court"].) "Section 1983 was enacted to provide compensation 'to those deprived of their federal rights by state actors.'" (Manta Management Corp. v. City of San Bernardino (2008) 43 Cal.4th 400, 406.) "The proper analysis of a section 1983 claim against a municipality requires the examination of two interrelated issues . . . (1) whether plaintiff's harm was caused by a [federal] constitutional violation, and (2) if so, whether the city is responsible for that violation." (Id. at p. 407.)
Here, the SAC alludes to a violation of due process as the basis for a claim under Section 1983. However, a claim under Section 1983 alleging the deprivation of property without due process "ripen[s] only when it is clear that a distinct deprivation of a constitutionally protected interest in liberty or property has already occurred." (Guatay Christian Fellowship v. County of San Diego (9th Cir. 2011) 670 F.3d 957, 984.) The question of whether a plaintiff has a vested property right protected under the Fourteenth Amendment of the United States Constitution is determined under statutory or state law. (Hobbs v. City of Pacific Grove (2022) 85 Cal.App.5th 311, 320 [A plaintiff must "have a legitimate claim of entitlement" to property and "[s]uch entitlements are . . . not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law"]; Samson v. City of Bainbridge Island (9th Cir. 2012) 683 F.3d 1051, 1057 ["[P]roperty interests derive not from the Constitution but from 'existing rules or understandings that stem from an independent source such as state law-rules' "].)
Under California law, a property owner does not have a right to obtain a conditional use permit. Instead, cases have uniformly held that a property owner has no vested property right to use its property in any specific manner until after a permit has been received. (Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 367 ["until a permit or license is received, no right has vested"]; California Charter Schools Assn. v. City of Huntington Park (2019) 35 Cal.App.5th 362, 371 ["Although a [conditional use permit] runs with the land and 'creates a property right which may not be revoked without constitutional rights of due process' [citation], no right vests until a permit is granted, and the successful applicant has thereafter acted upon the grant to his or her detriment"]; Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 708 [developer had no vested right to build any particular building on its property because it had not applied for or received a building permit for its project and also had no vested right to develop property in accordance with the zoning in existence at any specific time]; Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 182 ["[D]enial of a discretionary land use permit does not infringe on a constitutionally protected property interest for purposes of section 1983"].)
Here, the SAC is abundantly clear that plaintiff has never obtained a conditional use permit from the City. Thus, under California law, plaintiff does not have a vested property right protected under the Fourteenth Amendment to the United States Constitution. Plaintiff cannot be unconstitutionally deprived of a property interest which it has never had. Given plaintiff's own allegations, the SAC fails to state facts sufficient to constitute a cognizable cause of action premised upon a purported violation of due process.
3. Equal Protection
Plaintiff also suggests that it was subject to discrimination and disparate code enforcement actions by the City in violation of its right to equal protection under the Fourteenth Amendment. "The federal equal protection clause (U.S. Const., 14th Amend.) . . . provide[s] that persons who are similarly situated with respect to the legitimate purpose of a law must be treated alike under the law. [citation.] Although '[e]qual protection challenges typically involve claims of discrimination against an identifiable class or group of persons . . . a plaintiff who does not allege membership in a class or group may state a claim as a 'class of one.' [citations.] A 'class of one' claim requires a showing that '(1) the plaintiff was treated differently from other similarly situated persons, (2) the difference in treatment was intentional, and (3) there was no rational basis for the difference in treatment.'" (Lafayette Bollinger Development LLC v. Town of Moraga (2023) 93 Cal.App.5th 752, 782.)
However, California courts have repeatedly held that a Section 1983 claim seeking to vindicate a purported denial of equal protection in the land use context is not ripe for adjudication where there has been "no final decision on meaningful applications." (Long Beach Equities, Inc. v. County of Ventura (1991) 231 Cal.App.3d 1016, 1041; Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 54 [constitutional challenges of land use regulation based upon alleged denial of substantive due process and equal protection are "subject to the same ripeness standards" and require a plaintiff to allege a "final determination of the legally permitted use of the property they seek to develop"].) The controversy is not ripe because the allegation that a regulation "is being improperly, inconsistently, or discriminatorily applied, cannot be evaluated until it is known how the City will apply them to appellant's property. Only a final determination by the responsible agency enables a reviewing court to determine the constitutional questions plaintiffs purport to raise. . . ." (York v. City of Los Angeles (2019) 33 Cal.App.5th 1178, 1196.)
As we have already pointed out, plaintiff's own allegations state that it participated only in a pre-application review process and plaintiff has not alleged that it ever formally requested a conditional use permit or that the City has ever made a final determination on such a request through the normal administrative process. Indeed, the allegations of the SAC admit that the City has offered various, potentially conflicting reasons for its belief that a conditional use permit will not be approved. Absent a final determination, neither this court nor the trial court should speculate what reason might ultimately prove determinative. Further, absent a final determination, neither this court nor the trial court can meaningfully compare plaintiff's case to that of other properties in order to determine if other property owners are similarly situated or truly being treated differently.
Because plaintiff's own allegations disclose that any equal protection claim is not ripe for adjudication, the trial court did not err in sustaining a demurrer to the first cause of action. (County of Santa Clara v. Superior Court (2009) 171 Cal.App.4th 119, 131 ["A demurrer may be sustained when the complaint shows on its face the claim is not ripe for adjudication"]; Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 419 [same].)
C. Plaintiff Has Forfeited Any Claim of Error With Respect to the Second Cause of Action
With respect to the second purported cause of action for "Violation of 42 USC § 1983 of the U.S. Code - Violation for Disparate Treatment", we deem any claim of error forfeited on appeal and, even in the absence of forfeiture, fail to see how the allegations of the SAC are sufficient to state a cognizable cause of action.
"[A]n appellant has a duty to make a 'cognizable argument on appeal'" and "[m]ere repetition of the arguments made in support of the motion in the trial court is not sufficient. . . . When an appellant raises an issue 'but fails to support it with reasoned argument and citations to authority, we treat the point as waived.'" (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277; Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 181 [the failure "to provide coherent organization to his arguments forfeits consideration of those arguments on appeal"]; People v. Sorden (2021) 65 Cal.App.5th 582, 603 ["simply posing questions on appeal neither presents issues for appellate review nor establishes reversible error"].)
In this case, plaintiff's appellate briefs present no arguments related to the sufficiency of the factual allegations in the SAC's second cause of action. While the brief contains a subsection with the heading: "The City's use of the law firm . . . to assist them in their discriminatory practices mandate that the demurrer should have been overruled", this section of the brief contains no citation to legal authority or any reasoned argument in support of the assertion made in the heading. Instead, plaintiff simply copied verbatim the factual allegations set forth in the second cause of action of the SAC. Indeed, in its reply brief, plaintiff repeats these same allegations verbatim. Repeating factual assertions made upon information and belief is not an adequate substitute for reasoned argument regarding reversible error. In the absence of any reasoned argument, we deem any claim of error with respect to the purported second cause of action forfeited on appeal.
Even in the absence of forfeiture, we fail to see how the allegations set forth in the purported second cause of action state a cognizable claim for relief. Specifically, plaintiff claims that the terms of a contract between the City and a private law firm hired to pursue code enforcement actions on behalf of the City are illegal. However, plaintiff does not purport to be a party to this contract. Thus, even accepting as true that some term of this contract is illegal, plaintiff has not alleged any facts to suggest it has standing to seek judicial review of this contract. (See Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 959 ["only the parties to the contract may rescind it"]; Jones v. Aetna Casualty & Surety Co. (1994) 26 Cal.App.4th 1717, 1722 ["someone who is not a party to the contract has no standing to enforce it or to recover extracontractual damages for the wrongful withholding of benefits to the contracting party"].) Nor did plaintiff allege any prior attorney-client relationship with the law firm in question such that plaintiff would have standing to seek disqualification of the firm from representing the City in any legal proceedings. (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356 ["Standing generally requires that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest"]; Moreci v. Scaffold Solutions, Inc. (2021) 70 Cal.App.5th 425, 432 ["[a] party moving to disqualify counsel must have a legally cognizable interest that would be harmed by the attorney's conflict of interest"].)
While the City interprets the second cause of action as some unspecified claim for attorney fees, we fail to see how the allegations of the SAC would support such an interpretation. At best, the SAC alleges that the law firm in question has "tried to extract fees from Plaintiff", but does not allege that plaintiff actually paid fees or suffered any monetary loss by way of attorney fees.
Thus, even if we were to accept plaintiff's allegations as true, plaintiff has failed to allege facts to suggest it has any standing to seek judicial review of the terms of a contract to which it is not a party or otherwise seek judicial intervention with respect to the relationship between the City and its chosen counsel. Given this defect, even in the absence of forfeiture, we would find no error in the trial court's decision to sustain the demurrer to the second cause of action.
D. The Trial Court did Not Err in Sustaining the Demurrer to the Third Cause of Action
Because we have concluded that the allegations of the first and second causes of action in the SAC are insufficient to state a cause of action, we necessarily also conclude that the trial court did not err in sustaining the demurrer to the third cause of action. Here, the SAC gives the purported third cause of action a separate title, but includes no distinct factual allegations specific to this claim. Instead, the purported third cause of action merely incorporates by reference the factual allegations already made elsewhere in the pleading.
"In reviewing the trial court's ruling on a demurrer, we are not bound by the label attached to a cause of action by the pleader; rather, we examine the factual allegations to determine whether a cause of action is (or can be) stated on any available legal theory." (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786.) "Regardless of the label attached to the cause of action, we must examine the complaint's factual allegations to determine whether they state a cause of action. . . ." (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 493.) Placing a new label on identical factual allegations does not change the nature of the substantive allegations or the sufficiency of the allegations to state a cause of action. Thus, because we have already determined that identical factual allegations are insufficient to state any cause of action with respect to the purported first and second causes of action, we necessarily reach the same conclusion in our review of the purported third cause of action.
E. Plaintiff Has Failed to Meet Its Burden to Show an Abuse of Discretion
Finally, we conclude that plaintiff has failed to meet its burden to show that the trial court abused its discretion in sustaining the demurrer without leave to amend. On appeal, the plaintiff bears the burden to establish an abuse of discretion by showing there is a reasonable possibility that any defect can be cured by amendment. (Blank, supra, 39 Cal.3d at p. 318; Placer Foreclosure, Inc. v. Aflalo (2018) 23 Cal.App.5th 1109, 1117.) "If the plaintiff does not proffer a proposed amendment, and does not advance on appeal any proposed allegations that will cure the defect or otherwise state a claim, the burden of proof has not been satisfied." (Placer, at p. 1117; Eghtesad v. State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 411 ["Ordinarily, an appellant who seeks leave to amend attempts to show that the trial court's denial of leave to amend was error by showing on appeal what facts could be pleaded to cure defects in the complaint and how they state a cause of action"].)
Some courts recognize an exception to this rule where the trial court denies leave to amend upon sustaining a demurrer to an original complaint. (Eghtesad v. State Farm General Ins. Co., supra, 51 Cal.App.5th at p. 413.) However, that exception has no application here, where the demurrer at issue is to a second amended complaint and plaintiff has not included a record sufficient for us to review what amendments have previously been made to the pleading.
Here, plaintiff asserts only a cursory right to amend on appeal. Plaintiff has not proffered any proposed amended allegations for our review and has not attempted to suggest what facts might be included in an amended complaint such that it could cure the defects in the SAC. A cursory argument that the court should grant leave to amend if it deems any claim inadequate does not meet plaintiff's burden on appeal. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1371-1372.) Thus, we conclude plaintiff has failed to meet its burden to show the trial court abused its discretion in denying further leave to amend.
IV. DISPOSITION
The judgment is affirmed. Respondent to recover their costs on appeal.
We concur: RAMIREZ, P. J., McKINSTER, J.