Opinion
A131347
01-24-2012
ATHAN MAGGANAS, Plaintiff and Appellant, v. CITY OF OAKLAND, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. RG09451564)
I. INTRODUCTION
Plaintiff and appellant Athan Magganas (hereafter appellant), an Oakland property owner and residential building contractor, filed an action in Alameda County Superior Court seeking to recover, pursuant to Government Code section 66020 (section 66020),monies assessed against and paid by him as "blight abatement fees" to the City of Oakland (City) pursuant to several of the City's nuisance abatement ordinances. Finding that the fees levied against and paid by appellant were not within the scope of section 66020, the trial court granted summary judgment in favor of the City. Appellant appeals, but we agree with the trial court's analysis and hence affirm its judgment.
All subsequent statutory references are to the Government Code unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
According to the complaint at issue in this case, appellant's Second Amended Complaint (SAC), he was the "owner of certain real property under construction located at 120 and 140 Caldecott Lane in the City of Oakland" and "during the time period of 2006 to 2008" he "constructed a development project consisting of residential buildings" on that property.
In the course of this construction, and more specifically during the period from November 2007 through 2008, the SAC continued, "the City assessed fines and other fees against the property purportedly for the purpose of monitoring and correcting blight during the course of a development project." Those fees totaled "in excess of $53,000," and their imposition, the SAC alleged, was improper because appellant "ran the construction site in an orderly and clean manner that is consistent with all construction sites." It was also improper, he continued, because "[t]he City charged fees that have no relationship to the actual cost of performing the work indicated by the City. Moreover, the City charged 'reinspection' fees claiming to have inspected the Property when, in fact, the City did not inspect the Property and/or did not incur any costs that could justify the fees charged. The City repeatedly charged fees for preparing documents and for records management wherein such fees had no relation to the actual costs incurred by the City."
The SAC also alleged that appellant had "appealed all fees and fines and sought to have them eliminated and/or reduced" but those appeals were all denied and, thus, appellant alleged, he "has exhausted his administrative remedies." The SAC continued with the allegation that appellant had sought, during the course of closing escrow on the sale of the property, to file a "written protest of the fees and fines . . . pursuant to Government Code section 66020," and concluded its single cause of action with the allegation that appellant was seeking "to set aside, void, and annul the imposition of the fees and fines" and receive a refund of them pursuant to section 66020.
The City's answer to the SAC consisted of 13 affirmative defenses. One of these alleged that, under Code of Civil Procedure (CCP) sections 1094.5 and 1095.6, appellant's action "is barred" for his failure to seek relief under those provisions. The final affirmative defense read: "[T]he fines and fees Plaintiff challenges in this action are not development fees covered by" section 66020 et seq.
The City filed a motion for summary judgment which was opposed by appellant. During the course of the litigation on its motion, the City submitted a substantial number of its records regarding the fees and fines imposed on appellant by the City during the period alleged in the SAC. Perhaps most importantly, via a declaration submitted by the former "Inspections Manager in the Building Services Division" of the City's Community and Economic Development Agency, Ray Derania, the City outlined the various types of fees and fines imposed on appellant during the period from 2005 through 2008 regarding the properties owned by appellant on Caldecott Lane in Oakland. According to that declaration, all of the fees were related to "notices to abate" sent to appellant during the same period. Copies of those notices were attached to the Derania declaration, as were copies of the invoices sent to him regarding the charges being assessed for the "code enforcement actions on his property," and the "priority liens and special assessments recorded against Mr. Magganas' property as a result of the unpaid abatement action liens from 2005 to 2008."
The Derania declaration recited that the property and appellant's residential construction activities on it "first became the focus of nuisance abatement activities by the City for violations of the City's Blight Ordinance—Oakland Municipal Code . . . Section 8.24 [and] The Building Conservation Code . . . Section 15.08 and/or . . . 17.102.420." None of the notices to abate or the later "administrative fees and liens" levied by the City had, per that declaration, "any relationship to fees that would have been charged by City Planning in connection with the approval of [appellant's] development project at that location."
The first two sections, both quite lengthy and detailed, are entitled: "Property Blight" (§ 8.24) and "Oakland Building Maintenance Code" (§ 15.08). The third, section 17.102.420, provides for "[s]pecial design requirements for lots located in residential and commercial zones" and other designated zones, and provides a restriction on the use of barbed wire or razor wire "in any location visible from the public right-of-way."
The several attachments to the Derania declaration relating to the time period covered by the SAC, i.e., from November 2007 to the end of 2008, included documents entitled "Official Notice to Abate Blight," "Notice to Abate, "List of Violations," and also various documents labeled "Addendum." Each one alleged such matters as: "The premises contained trash, debris, overgrowth, recyclables, graffiti, and/or disabled vehicles or vehicle parts, and/or the structure was not properly secured," or "[t]he trashcans & recycling bins are in public view. Relocate cans out of public view or put in approved enclosure."
We are not considering a "NOTICE OF VIOLATION" issued by the City regarding "FUTURE CONSTRUCTION SITE PREPARATION" in February 2005, because it involved an alleged violation occurring prior to the period of time encompassed by the SAC.
Appellant opposed the motion for summary judgment, arguing to the trial court that the fines and fees involved "were imposed by the City in the ordinary course of a construction project and are development fees, a term that includes 'fees, dedications, reservations, or other exactions.' " He went on to argue that "[a]ll of these alleged violations are common conditions of a construction job site" but, "[u]nfortunately, builders in Oakland are routinely cited for 'blight' where none exists. . . . As a result of this common practice and, in particular, with respect to Plaintiff, the 'blight' fees are development fees and exactions." Appellant's memorandum of points and authorities then proceeded to argue why, as a matter of law, the fees and fines levied on him could be lawfully recovered under section 66020.
By way of support for this opposition, appellant filed six declarations from contractors, engineers, and developers (including one from himself), all of which maintained that the assessment of the sorts of fees and fines involved here was a regular practice of the City. Several of the declarations included these same sentences: "The City of Oakland issues citations for nuisance abatement even for clean and orderly properties and does so in the ordinary course of development and building projects. I and other developers pay such nuisance abatement charges even though there is no nuisance to be abated and do so as an ordinary cost of the building process in Oakland. It has now become clear that such nuisance abatement charges are imposed as . . . development fees on properties and building projects in Oakland."
Appellant's personal declaration repeated this assertion, and then added: "The abatement charges serve no purpose other than to generate additional revenues for the City of Oakland and the charges bear no relation to the actual cost of the activities being undertaken by the City of Oakland relating to the imposition of abatement fees as development fees."
Appellant's declaration also asserted that the contractor normally hired by the City to do abatement work at construction worksites "has a business relationship with the head of the blight abatement division," a charge he expanded on via other declarations and filings. Inasmuch as this charge was not addressed by the trial court and is only referenced briefly in appellant's opening brief to us, we see no need to address it further here.
The City responded to appellant's opposition, noting among other things that the allegations in the supporting declarations offered by appellant were irrelevant to the issue involved here, constituted hearsay, and lacked foundation. It also reiterated the legal authority it relied upon in its original motion regarding the sorts of fees covered and not covered by section 66020.
After oral argument to the trial court, it entered an order (quoted below) granting summary judgment in favor of the City on the grounds that (1) the fees and fines appellant was seeking to recover via his SAC were not subject to challenge or refund under section 66020 and (2) appellant had erred in not filing a petition for administrative mandate after the denial of his administrative appeals.
Judgment was entered in favor of the City on January 6, 2011.
Appellant filed a timely notice of appeal the following month.
III. DISCUSSION
The trial court's order granting summary judgment in favor of the City read, in its material portion, as follows: "The fees, penalties and special assessments that were assessed against Plaintiff between 2005 and 2008 pursuant to the City's Municipal Code §§ 8.24, 15.08 and 17.102.420, are not development fees as defined in Govt. Code § 66000(b) because they were not related to the City's approval of the development project. See Barrett American, Inc. v. City of Rancho Cucamonga (2005) 37 Cal.4th 685, 696-697 [(Barrett American)] (building permit and plan review fees not development fees); and Capistrano Beach Water Dist. v. Taj Development Corp. (1999) 72 Cal.App.4th 524, 528-530 (fee charged by the sanitation district to connect the hotel to the sewer system not a development fee); and California Building Industry Assn. v. San Joaquin Valley Air Pollution Control Dist. (2009) 178 Cal.App.4th 120, 124-125 [(California Building Industry)](Indirect Source Review fee to mitigate indirect pollution created by development projects not a development fee). Plaintiff's contention that the fees in this case are development fees because there is no reasonable way for developers to avoid being accused of creating blight does not distinguish this case from the firmly-established precedent noted above. 'In short, a fee does not become a "development fee" simply because it is made in connection with a development project.' Barrett American, supra, 37 Cal.4th at 699 (citing Cal. Psychiatric Transitions, Inc. v. Delhi County Water Dist. (2003) 111 Cal.App.4th 1156, 1161 [(California Psychiatric)]). The case cited by Plaintiff in opposition, Williams Communications v. City of Riverside (2003) 114 Cal.App.4th 642, 657-658 [(Williams)], is distinguishable because the municipality in that case expressly conditioned its approval of the fiber-optic-cable installation project on the plaintiff's agreement to pay the 'license fee.' [¶] Further Plaintiffs action for a refund of his fees is barred because he failed to file a timely Petition for a Writ of Mandate pursuant to CCP § 1094.6. 'Failure to obtain judicial review of a discretionary administrative action by a petition for writ of administrative mandate renders the administrative action immune from collateral attack, either by inverse condemnation action or by any other action.' See Patrick Media Group, Inc. v. California Coastal Commission (1992) 9 Cal.App.4th 592, 608 [(Patrick Media Group)] (citing City of Santee v. Superior Court (1991) 228 Cal.App.3d 713, 718-719)." (Italics added.)
In his briefs to us, appellant argues that these conclusions by the trial court were incorrect and asks for reversal of the summary judgment it granted the City. First of all, appellant notes that "the City approved Appellant's development project and imposed conditions of approval regarding site cleanliness. Appellant [then] began construction activities consistent with those approvals. The City alleged blight where there were only ordinary construction activities. Based on this trumped up charge, the City issued fines and penalties based on ordinary construction activities . . . ." And the City does exactly the same thing generally, appellant argues, so that "builders in Oakland are routinely cited for 'blight' where none exists. . . . As a result of this common practice and, in particular, with respect to Appellant, the 'blight' fees are development fees and exactions."
Appellant then goes on to summarize the law relating to the consideration of motions for summary judgment, i.e., there must not be any disputed issue of material fact, and then summarizes the various provisions of the Oakland Municipal Code relied upon by the City as the bases for levying the fines and fees it did, i.e., those having as their purpose the need to address "blight abatement." Based on these premises, appellant contends "there is a triable issue of fact with respect to the connection between the development approval of the project by the City and the fees and exactions imposed by the City for compliance with those development approvals."
In his reply brief, appellant alters his argument somewhat by contending that the "process the City maintains set in motion the certainty that blight abatement fees would be imposed on a clean jobsite as soon as the condition of approval of the development project was put in place."
We disagree with this contention and, instead, conclude that the trial court's ruling was correct. This is so because several decisions of our Supreme Court and sister appellate courts have made clear that the process for the recovery of fees provided by the Mitigation Fee Act (section 66000 et seq.; hereafter MFA) does not apply to efforts, such as those made by appellant in this case, to seek recovery of fees imposed by local governments related to liens and special assessments levied by such governments for nuisance abatement or other local code or ordinance violations on real estate developers. Put another way, and as the trial court did in its ruling, such are simply not fees imposed "as a condition of approval of a development project by a local agency" (§ 66001), the recovery of which is, under certain circumstances, permitted via the process prescribed in section 66020.
In Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 864-865, our Supreme Court first addressed, albeit briefly, the scope and intent of the MFA. It stated: "[T]his case arises within the statutory framework of the Mitigation Fee Act (the Act), introduced in the Legislature as Assembly Bill No. 1600, 1987-1988 Regular Session, and enacted as Statutes 1987, chapter 927, effective January 1, 1989. The Act . . . sets forth procedures for protesting the imposition of fees and other monetary exactions imposed on a development by a local agency. As its legislative history evinces, the Act was passed by the Legislature 'in response to concerns among developers that local agencies were imposing development fees for purposes unrelated to development projects.' [Citations.]"
In Utility Cost Management v. Indian Wells Valley Water Dist. (2001) 26 Cal.4th 1185, 1191 (Utility Cost Management), the court again briefly described the thrust of the MFA: "Section 66022 is part of the Mitigation Fee Act (§§ 66000-66025; Stats. 1987, ch. 927, § 1, p. 3131), which . . . places various limits on the fees and charges that local agencies (including utility districts) can impose on persons or property holders. Most of the Mitigation Fee Act concerns itself with development fees; that is, fees imposed on development projects in order to finance public improvements or programs that bear a 'reasonable relationship' to the development at issue. (See, e.g., § 66001.)." (Italics added.)
A few years later, the court, in a unanimous opinion authored by Justice Chin, explained in some detail the reach and purpose of, specifically, section 66020 of the MFA in a case cited and relied upon by the trial court in this case, Barratt American, Inc., supra, 37 Cal.4th 685. There, the court ruled that that specific statute did not allow a real estate developer to recover building permit fees it had paid. The court wrote: "We agree that Barratt's refund claim fails because sections 66020 and 66021 do not apply to the building permit fees it paid. '[F]ees . . . imposed on a development project,' as used in section 66020, refers to 'fees' and a 'development project' as defined in section 66000. A 'development project' is defined as 'any project undertaken for the purpose of development . . . includ[ing] a project involving the issuance of a permit for construction or reconstruction, but not a permit to operate.' (§ 66000, subd. (a).) A 'fee' is defined as "a monetary exaction other than a tax or special assessment . . . that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, but does not include . . . fees for processing applications for governmental regulatory actions or approvals . . . .' (§ 66000, subd. (b), italics added.) Thus, section 66020, by its own terms, applies only to 'development fees' that alleviate the effects of development on the community and does not include fees for specific regulations or services. . . . [¶] Although the plain language of the statutes dictates the result here [citation], legislative history provides additional authority. The California Legislative Counsel has similarly concluded that section 66020 does not include fees associated with plan check or inspection fees. [Citation.] The Legislative Counsel reasoned that building permit fees are 'separately authorized under the Health and Safety Code and do not relate to fees in the nature of monetary exactions imposed for the purpose of defraying all or a portion of the cost of public facilities related to a development project as contemplated in the Mitigation Fee Act.' [Citation.] Legislative Counsel opinions have great persuasive weight, 'since they are prepared to assist the Legislature in its consideration of pending legislation.' [Citation.] Accordingly, we conclude that the Legislature did not intend section 66020 to authorize a refund action for overcharges of building permit and plan review fees." (Barratt American, supra, 37 Cal.4th at pp. 695-697, italics added.)
As the trial court noted in its order granting summary judgment, and as the City agrees in its brief to us, Barratt American is clearly the leading case on the interpretation and application of the MFA generally and section 66020 specifically. Yet, curiously, that case is cited only once in appellant's briefs to us. However, in so doing, appellant makes no attempt to distinguish the holding of that case, or even suggest why its explanation regarding the application of section 66020 is inapplicable here.
Just two years ago, our colleagues in the Fifth District addressed the definition of a "development fee" as the term is used in the MFA. In so doing, it of course relied on the Barrett American holding. In California Building Industry Assn. v. San Joaquin Valley Air Pollution Control Dist. (2009) 178 Cal.App.4th 120, 130-131 (California Building Industry), that court explained: "A fee is considered a development fee if it is exacted in return for building permits or other governmental privileges so long as the amount of the fee bears a reasonable relationship to the development's probable costs to the community and benefits to the developer. [Citation.] Under the Mitigation Fee Act (Gov. Code, § 66000 et seq.), such a fee is defined as 'a monetary exaction other than a tax or special assessment . . . that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project . . . .' (Gov. Code, § 66000, subd. (b).) When a fee is imposed 'as a condition of approval of a development project,' the local agency must meet specific statutory requirements, including identifying the purpose of the fee and the use to which the fee is to be put, and determining how there is a reasonable relationship between the fee and the development project. (Gov. Code, § 66001, subds. (a) and (b).) Also, a fee imposed 'as a condition of approval of a proposed development . . . or development project' is limited to the estimated reasonable cost of providing the service or facility. (Gov. Code, § 66005, subd. (a).) . . . . [¶] However, 'a fee does not become a "development fee" simply because it is made in connection with a development project.' (Barratt American, supra, 37 Cal.4th at p. 699.) Rather, approval of the development project must be conditioned on payment of the fee. [Citations.] The Mitigation Fee Act specifically limits its application to situations where the fee or exaction is imposed as a condition of approval of a development project. (Gov. Code, §§ 66001, subds. (a) and (b), 66005, subd. (a), 66006, subd. (c).)." (Italics added; see also to the same general effect regarding the reach of the MFA: Home Builders Assn. of Tulare/Kings Counties, Inc. v. City of Lemoore (2010) 185 Cal.App.4th 554, 560-561; California Psychiatric, supra, 111 CalApp.4th at p. 1161; Capistrano Beach Water Dist. v. Taj Development Corp. (1999) 72 Cal.App.4th 524, 529-530; Centex Real Estate Corp. v. City of Vallejo (1993) 19 Cal.App.4th 1358, 1361-1362.)
In his briefs to us, appellant cites very few of these cases, and makes no attempt to distinguish them or explain why their descriptions of the limited scope of the MFA and section 66020 in particular are not applicable here. Rather, appellant cites Williams, supra, 114 Cal.App.4th at pages 656-660, as supporting his much broader interpretation of section 66020 specifically and the MFA generally. But that case is, as the trial court held, readily distinguishable. In Williams, the trial court had ruled that the appellant telephone company was required to pay over $750,000 to the City of Riverside as a condition of installing fiber optic cables in conduit laid in that city's streets. Reversing that ruling, a division of the Fourth District held that the Williams' company could rely on the MFA in suing for a refund of that sum because, it said (quoting an argument made by the appellant company): " '[T]he very purpose of the statute is to challenge the lawfulness of monetary charges imposed on persons who seek permits and licenses.' " (Id. at p. 658.) In the case before it, the court held, "the exaction here was not a tax. Instead, it was 'compensation' charged for the use of the City streets. . . . Riverside did not have the right to require Williams [Communications] to pay $750,103 to use the City's streets for its conduits." (Id. at p. 659.)
Shortly stated, these facts make Williams distinguishable. Recently, another appellate court held to the same effect, again relying substantially on the holding in Barrett American. In Trinity Park L.P. v. City of Sunnyvale (2011) 193 Cal.App.4th 1014, 1026-1043 (Trinity), the Sixth District held that Williams was not applicable to a case involving the validity of a "below market housing ordinance" and the losses suffered by a residential housing developer in complying with that ordinance. That court rejected the effort of the defendant City of Sunnyvale to rely on the Williams court's holding (which, in turn, had relied on a dictionary definition of the terms "exaction") by saying: "We do not rely on the dictionary definition of 'exaction' because we believe, as we have discussed, that the statutory language of the relevant provisions of the Mitigation Fee Act and the legislative history of sections 66020 and 66021 show that the Legislature intended that the exactions that may be protested under the Mitigation Fee Act are those exactions imposed for the purpose of 'defraying all or a portion of the cost of public facilities related to the development project.' (§ 66000, subd. (b); Barratt [American], supra, 37 Cal.4th at p. 696.)." (Trinity, supra, 193 Cal.App.4th at p. 1042, italics added.)
Here, as in Trinity, the fees and charges imposed by the City were not imposed for the purpose of " 'defraying . . . the cost of public facilities related to the development project' " (Trinity, supra, 193 Cal.App.4th at p. 1042), nor were they, in any way, shape, or form, "monetary charges imposed on persons who seek permits and licenses." (Williams, supra, 114 Cal.App.4th at p. 658.) Williams does not, therefore, aid appellant regarding the sorts of actions permitted under the MFA.
In short, none of the fees or fines levied on appellant and his Caldecott Lane property were, or even had any connection with, fees or other charges that would and could have been charged by the City in connection with any approvals of the development projects he was pursuing on those properties. Rather, the fines and liens involved, and involved only, the exercise of the police power of the City to enforce its ordinances relating to cleanliness and/or lack of "blight" of properties in the City undergoing some development processes.
In his reply brief to us (which cites no legal authority), appellant attempts to reply to the arguments made by the City by stating that "there should be no distinction between the construction of 'improvements and facilities' and the clean-up of the construction debris that the City claims resulted from that construction." Perhaps as a matter of overall policy and fairness this may be correct, but it is a point that should be addressed to the authors of the MFA, i.e., the Legislature or, at the minimum, by an effort to explain why authority such as Barratt American is inapplicable regarding the limited scope and nature of the fees recoverable under section 66020. Appellant makes no such effort in his briefs to us.
Appellant also argues, indeed twice, that "the issue herein is simply the excessive nature of the fees and exactions placed on [appellant's] development project under the ruse of 'blight' abatement." The answer to this is simple: the "fees and exactions" at issue here were clearly authorized by one or more provisions of the Oakland Municipal Code. If they were a "ruse" (1) appellant never demonstrated such in his opposition to the City's motion for summary judgment and (2) an action under section 66020 is not, under the authority cited above, the way to recover or cancel unjustified or improper "blight abatement" fees.
Due to the thrust of the authority cited above interpreting and applying section 66020—and especially our Supreme Court's unanimous decision in Barratt American— the trial court was clearly correct in ruling that that statute did not authorize a suit by appellant to collect the fines and fees the City had assessed against him for the various blights or nuisances allegedly found by the City on the property involved here. Put another way, there was no issue of fact involved here, but only one of law, i.e., does section 66020 authorize a suit to recover fees and fines for blight that were improperly imposed because, allegedly, there was in fact no such blight? The answer is, shortly and simply: no. This is so because nothing in the record made by appellant in the trial court established that the fees and fines he paid the City were "exacted in return for building permits or other government privileges" (California Building Industry, supra, 178 Cal.App.4th at p. 130) or "imposed on development projects in order to finance public improvements or programs that bear a 'reasonable relationship' to the development at issue." (Utility Cost Management, supra, 26 Cal.4th at p. 1191.)
In his opening brief, appellant briefly mentions an Alameda County Grand Jury report issued on June 27, 2011, of which he requested this court to take judicial notice— which we did per our order of July 20, 2011. Appellant notes that that report criticized the City for imposing fines that "are not aligned with the actual cost to remedy blight, but appear to be punitive in many cases," and that the grand jury found an " 'atmosphere of hostility and intimidation towards property owners' " and inappropriate use by the City of its enforcement authority. But, as the City notes in its brief to us, nothing in that grand jury report states, or even hints, that any inappropriate actions by City officials were undertaken pursuant to enforcement of section 66020 specifically or the MFA generally. That is, possibly, the reason there is no mention of the grand jury report in appellant's reply brief.
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In his opening brief to us, appellant phrases the issue similarly. He states: "The question herein is whether the imposition of conditions of approval requiring a clean construction jobsite and the City's practice of declaring that a clean construction jobsite is 'blight' brings the fines and fees imposed on Appellant within the meaning of [section 66020]." Again, based on the authority cited above, the answer is clearly that it does not.
The trial court was also correct regarding its second basis for granting the City summary judgment: appellant did not pursue his proper remedy after the imposition of the various fees and fines imposed on him by filing a petition for a writ of mandate under CCP section 1094.6. That section, and its immediate predecessor, section 1094.5, require a challenge to a municipality's levying of fees and charges of the sort involved here to be first litigated via such a petition before a lawsuit is filed for the recovery of the sums paid is filed. CCP section 1094.6 provides, in relevant part: "(a) Judicial review of any decision of a local agency, other than school district, as the term local agency is defined in Section 54951 of the Government Code, or of any commission, board, officer or agent thereof, may be had pursuant to Section 1094.5 of this code only if the petition for writ of mandate pursuant to such section is filed within the time limits specified in this section. (b) Any such petition shall be filed not later than the 90th day following the date on which the decision becomes final."
The law is quite clear that this provision applies where a municipality has imposed a fee or charge on one of its landowners, and the latter wishes to recover the charges paid. Such was the holding of Patrick Media Group, supra, 9 Cal.App.4th at pages 607-608, where the court stated: "Failure to obtain judicial review of a discretionary administrative action by a petition for a writ of administrative mandate renders the administrative action immune from collateral attack, either by inverse condemnation action or by any other action. [Citations.]" (See also Donnellan v. City of Novato (2001) 86 Cal.App.4th 1097, 1102, 1105.)
Although appellant's opening brief cites Patrick Media Group, it does not address the holding of that case regarding the requirement that a challenge to a municipal administrative ruling, such as those involved here, must be challenged via the process, and within the time limit, specified in CCP section 1094.6. Indeed, that key section, specifically cited and relied on by the trial court, is not cited in either of appellant's briefs to us. Thus, neither brief addresses the point made by the trial court regarding appellant's failure to adhere to the requirements of that section, an argument reiterated in respondent City's brief to us. For example, in his reply brief appellant argues that the City enforced its requirement that he maintain a "clean jobsite . . . by declaring blight where there is none and then imposing fines and fees on construction projects even though there is no blight." If such was, indeed, what happened here, appellant should—as the trial court held—have pursued the City for recovery of the monies he paid it via a writ of mandate under CCP section 1094.6.
Because no petition for a writ of mandate was ever filed by appellant, under the authorities cited above that fact also mandates our affirmance of the trial court's grant of summary judgment.
IV. DISPOSITION
The judgment is affirmed.
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Haerle, J.
We concur:
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Kline, P.J.
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Richman, J.