Opinion
B196181
7-30-2008
MARGOT PALAZZO LLC et al., Plaintiffs and Appellants, v. LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
Zelig & Associates and Steven L. Zelig for Plaintiffs and Appellants Margot Palazzo LLC and MayfieldNM LLC. Christensen, Glaser, Fink, Jacobs, Weil & Shapiro, Kerry Garvis Wright, Elizabeth G. Chilton and Allison S. Hyatt for Defendants and Respondents Los Angeles Unified School District, Clayton Springfield, Roy Romer, Dan M. Isaacs, Charles Burbridge, Richard Knott, Sonia White, Maruch Atienza and Ken Furuya.
Not to be Published
MayfieldNM LLC (Mayfield) and Margot Palazzo LLC (Palazzo) sued the Los Angeles Unified School District (LAUSD) and various individual defendants concerning Mayfields and Palazzos requests for refunds of portions of certain fees they had paid to LAUSD. The trial court sustained without leave to amend defendants demurrer to eight of plaintiffs nine causes of action, and the court later granted defendants motion for summary judgment on the remaining cause of action. Mayfield and Palazzo appeal, and we reverse in part.
Palazzo was erroneously named in plaintiffs pleadings as "Wilshire Margot Apartments, LLC." The trial court later allowed Palazzo to substitute as the proper plaintiff, and defendants do not challenge that ruling.
BACKGROUND
Our factual summary is drawn from the allegations of the first amended complaint, the evidence introduced on defendants motion for summary judgment, and documents of which the trial court took judicial notice, none of which is challenged on appeal.
On or about November 9, 2004, Mayfield applied for and obtained a building permit for the development of property in the City of Los Angeles (City). The City imposed $232,540.11 in "developer fees" (also known as "school facilities fees"), which are used to fund and offset the cost of new school facilities made necessary by new construction. At that time, the City informed Mayfield in writing that all "`[r]equests for refunds must be received by the developer fee program within 90 days after payment of fees." Also, on November 12, 2004, Mayfields manager signed a written acknowledgement of the 90-day deadline for refund requests. The City did not, however, inform Mayfield of the deadline for filing a lawsuit to challenge the fees.
On February 3, 2005, Mayfield sent LAUSD a letter requesting a refund of $109,000. An employee of LAUSD later told Mayfields manager that such requests take several months to process and advised him to resend the request. Mayfield did send the request again and followed up with LAUSD several times in the ensuing months. On or about July 13, 2005, LAUSD rejected the request.
On June 1, 2005, Palazzo obtained a building permit for the development of property in Los Angeles and paid developer fees of $580,610.43. By letter dated July 7, 2005, Palazzo requested a partial refund of the fees. By letter dated October 11, 2005, LAUSD provided Palazzo with a refund of $12,959.10. Palazzo alleges that it was entitled to over $100,000 in additional refunds that it never received.
On August 1, 2005, Mayfield and Palazzo filed suit against LAUSD and various individual defendants, seeking both compensatory and punitive damages in connection with their unrefunded developer fees. The operative first amended complaint alleges nine causes of action: four on behalf of Mayfield alone, four on behalf of Palazzo alone, and one on behalf of both Mayfield and Palazzo.
Defendants demurred on several grounds to eight of the causes of action in the first amended complaint. The trial court sustained the demurrer without leave to amend. The sole remaining claim was Palazzos cause of action under Government Code section 66020, the statute that governs challenges to the imposition of developer fees.
All subsequent statutory references are to the Government Code, unless otherwise indicated.
Defendants moved for summary judgment on the remaining claim. The trial court granted the motion on the following grounds: (1) "[T]he only method by which the fee at issue here may be challenged is by a petition for writ of mandate"; (2) if the court were to treat Palazzos action as a petition for writ of mandate, the court would still have to grant the motion because Palazzo failed to introduce sufficient evidence to create a triable issue of fact as to whether LAUSD "acted arbitrarily, capriciously or without evidentiary support"; and (3) Palazzo failed to refute defendants showing that the individual defendants "are protected by immunity." The court overruled Palazzos objections to one of the declarations submitted by defendants and sustained some of defendants objections to Palazzos evidence, including defendants objection to the entirety of the declaration of Palazzos manager. But the court further explained that even if the court were to consider the managers declaration, it would not change the result.
Together, the trial courts rulings on the demurrer to the first amended complaint and the motion for summary judgment finally resolved all of the causes of action in the case. When plaintiffs filed their notice of appeal, the trial court had not, however, entered a final judgment disposing of the entire case. We directed plaintiffs counsel to secure entry in the superior court of such a judgment, and we now treat the appeal as from that judgment. (Maria D. v. Westec Residential Security, Inc. (2000) 85 Cal.App.4th 125, 129, fn. 1.)
STANDARD OF REVIEW
In reviewing a judgment entered after a demurrer was sustained without leave to amend, we "must assume the truth of the complaints properly pleaded or implied factual allegations" and "must also consider judicially noticed matters," and "we determine whether the complaint states facts sufficient to state a cause of action." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) We review the trial courts ruling on a motion for summary judgment or summary adjudication de novo. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60 [summary judgment]; Certain Underwriters at Lloyds of London v. Superior Court (2001) 24 Cal.4th 945, 972 [summary adjudication].)
DISCUSSION
In sustaining defendants demurrer to the first amended complaint, the trial court adopted defendants argument that an action under section 66020 is the exclusive remedy for the wrongs that plaintiffs have allegedly suffered. On appeal, plaintiffs present no arguments against that determination, so all such arguments have been waived. (See, e.g., Singh v. Lipworth (2005) 132 Cal.App.4th 40, 43, fn. 2.) We therefore restrict our discussion to plaintiffs claims under section 66020.
I. Mayfields Claim Under Section 66020
The trial court sustained defendants demurrer to Mayfields claim under section 66020 on the ground that the claim was untimely. Mayfield raises a number of arguments against that determination on appeal, but we do not find them persuasive.
First, Mayfield argues that Evidence Code section 623 "creates a conclusive presumption prohibiting [defendants] from contradicting the position articulated in the [first amended complaint]." Mayfield does not, however, identify the "position" to which the presumption is supposed to apply. Evidence Code section 623 prohibits a party from contradicting something that the party has "intentionally and deliberately led another to believe . . . and to act upon." The first amended complaint does not allege facts showing that defendants led Mayfield to believe that it could timely bring an action under section 66020 in August 2005. The first amended complaint does not allege that defendants told Mayfield anything whatsoever about the deadline for filing suit. Consequently, in addition to Mayfields failure to identify the "position" to which the presumption of Evidence Code section 623 is supposed to apply, our own review of the record reveals that the first amended complaint contains no relevant factual allegations to which the presumption could be applied.
Mayfield also argues that two other presumptions apply to the allegations concerning timely mailing of Mayfields request for a refund. Those allegations are irrelevant, however, to the trial courts finding that Mayfield did not timely file suit.
Second, Mayfield argues that estoppel should bar defendants from raising the statute of limitations, apparently because (1) defendants informed Mayfield of the 90-day deadline for filing a refund request, (2) defendants allegedly "concealed" from Mayfield the 180-day deadline for filing suit, and (3) defendants gave Mayfield allegedly false assurances that its refund request was being processed. The argument lacks merit. Defendants were under a statutory duty to inform Mayfield of the 90-day deadline, but they had no statutory duty to inform Mayfield of the 180-day deadline. (§ 66020, subd. (d).) There is therefore nothing improper in their disclosure of the one deadline but not the other. Moreover, the first amended complaint alleges no facts showing that defendants "concealed" the 180-day deadline from Mayfield. The 180-day deadline is imposed by statute, and the first amended complaint alleges no facts showing that defendants in any way prohibited, or attempted to prohibit, Mayfield from discovering the deadline on its own. In sum, Mayfields factual allegations cannot support a claim of estoppel.
The cases Mayfield cites do not support the estoppel argument. In Rand v. Andreatta (1964) 60 Cal.2d 846, 850, a government employee told the plaintiff that she did not need a lawyer and that "all her rights would be protected;" Mayfield does not allege that defendants here did anything of the sort. In Vu v. Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142, 1149-1152, the Supreme Court explained that an insurers misrepresentations of fact to an insured can give rise to an estoppel, but misrepresentations of law do not; Mayfield estoppel argument, however, is based on an issue of law (i.e., the existence of the 180-day deadline for filing suit).
Third, Mayfield argues that the statute of limitations should be equitably tolled. In response, LAUSD argues that subdivision (d)(2) of section 66020 expressly provides that the 180-day deadline applies "notwithstanding any other law," so the doctrine of equitable tolling is inapplicable. Mayfield has filed no reply brief and thus has never addressed this point, so Mayfield has forfeited the issue. (Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 838, fn. 12 ["By failing to address respondents argument . . ., [appellant] forfeited this issue"].)
Mayfield did not raise the issue of equitable tolling in the trial court, but that does not preclude Mayfield from raising it for the first time on appeal from a dismissal after a demurrer was sustained without leave to amend. (See 20th Century Ins. Co. v. Quackenbush (1998) 64 Cal.App.4th 135, 139, fn. 3.)
Finally, Mayfield argues broadly that LAUSDs statute of limitations defense should be barred by waiver, estoppel, and forfeiture. Mayfields presentation of this cluster of issues, however, consists exclusively of a recitation of propositions of law followed by this sentence: "In the present case, from the four corners, an enormous amount of facts have been itemized disclosing acts or omissions supporting a waiver, forfeiture, and certainly estoppel." (Mayfield also appends to the sentence a footnote citing the entire first amended complaint.) That does not constitute a cognizable legal argument sufficient to raise the issues, so we deem them abandoned. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
For all of the foregoing reasons, we affirm the trial courts dismissal of Mayfields claim under section 66020 on the ground that it is untimely.
In its opening brief on appeal, Mayfield did not argue that the 180-day period for filing suit runs from the developers filing of a notice of protest under subdivision (a) of section 66020, rather than from the agencys delivery of the notice required by subdivision (d)(1). Mayfield therefore waived the issue. (Singh v. Lipworth, supra, 132 Cal.App.4th at p. 43, fn. 2.) We requested supplemental briefs on it nonetheless, and we conclude that the 180 days run from the agencys delivery of the notice required by subdivision (d)(1). (Barratt American, Inc. v. City of Rancho Cucamonga (2005) 37 Cal.4th 685, 691.) Mayfield also did not argue that the notice provided by LAUSD failed to meet the requirements of subdivision (d)(1). We requested supplemental briefs on that issue as well and conclude that the notice did meet the statutory requirements.
II. Palazzos Claim Under Section 66020
In support of their motion for summary judgment on Palazzos claim under section 66020, defendants argued that the individual defendants are immune from liability pursuant to section 820.2. The trial court agreed. Palazzo has presented no contrary arguments either in the trial court or on appeal, so all such arguments have been waived. (Singh v. Lipworth, supra, 132 Cal.App.4th at p. 43, fn. 2.)
As regards LAUSD, the motion for summary judgment was based on the following two arguments: (1) The only proper procedural vehicle for Palazzos claim for refund of its fees would be a petition for writ of mandate, which Palazzo has never filed, and (2) if Palazzos claim under section 66020 is construed as a petition for writ of mandate, it fails as a matter of law because there is no evidence that LAUSDs conduct was arbitrary, capricious, or lacking in evidentiary support. The trial court agreed with both arguments. We do not.
When a defendant administrative agency "in violation of a contract or a statutory obligation, fails or refuses to pay money owed to the plaintiff, the normal remedy is an action at law. And it is the only allowable proceeding if, on a favorable determination of the issue of liability, the plaintiff will be able to realize on his judgment." (8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 89, p. 876 [collecting cases].) "On the other hand, if recovery on the claim requires the performance of some ministerial duty by the defendant, such as drawing a warrant, an ordinary civil action is an inadequate remedy. The rule is, therefore, that if the amount of the claim is fixed by law, and the act of drawing and paying the warrant is a ministerial duty, mandamus will lie to compel it. [Citations.]" (Id. at pp. 876-877 [collecting cases]; see generally Glendale City Employees Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 343.) Thus, for example, "[w]hile the usual remedy for [a public] employers failure to pay wages owing to an employee is an action for breach of contract, mandamus is appropriate where payment to a public employee requires the taking of certain preliminary steps by a public official. [Citation.]" (Cory v. Poway Unified School Dist. (1983) 147 Cal.App.3d 1158, 1167; see also Ross v. Board of Education (1912) 18 Cal.App. 222, 225.)
In arguing that Palazzo should have filed a petition for writ of mandate rather than an action for damages, LAUSD made no attempt to meet the proper standard for showing that writ relief is necessary, i.e., by showing that an ordinary civil action to obtain a money judgment would have been an inadequate remedy. The trial court therefore erred in granting the motion on that ground. And because the record contains no evidence that a petition for writ of mandate is necessary, the trial courts determination—on which we express no opinion—that Palazzo introduced no evidence that LAUSD acted arbitrarily, capriciously, or without evidentiary support cannot be dispositive either.
Even if a petition for writ relief were necessary, defendants cite no authority for the proposition that it would then be the exclusive remedy for the wrongs Palazzo has allegedly suffered. We are aware of no such authority. Indeed, although the authorities we have cited, ante, show that writ relief is sometimes a necessary supplement to an ordinary civil action, those authorities do not imply that it is a mandatory substitute for one.
Because the issue may arise in the proceedings on remand, we note that if a petition for writ relief turns out to be necessary in this case, the trial court still will not be called upon to apply the "arbitrary, capricious, or lacking evidentiary support" standard of review urged by defendants. Rather, if Palazzo can show (1) a clear, present, and ministerial duty on the part of LAUSD, and (2) a clear, present, and beneficial right on the part of Palazzo to the performance of that duty, then writ relief should be granted. (8 Witkin, Cal. Procedure, supra, § 72, pp. 853-854 [collecting cases]; see, e.g., Elmore v. Imperial Irrigation Dist. (1984) 159 Cal.App.3d 185, 193.)
The cases defendants cite do not support their position. In DeCuir v. County of Los Angeles (1998) 64 Cal.App.4th 75, an unsuccessful civil service job applicant who was denied a discretionary hearing sued for damages. The court held that an action for damages was premature and must be preceded by an action for mandate to reverse the denial of the hearing. (Id. at pp. 80-83.) The case is distinguishable because the plaintiff sought damages for the defendants failure to perform a discretionary act without first seeking judicial invalidation of the defendants exercise of discretion. Here, Palazzo does not challenge a discretionary act but rather seeks damages for LAUSDs alleged failure to perform its obligation to pay a refund pursuant to a preset fee schedule.
Defendants other cases are similarly unavailing. Loyola Marymount University v. Los Angeles Unified School Dist. (1996) 45 Cal.App.4th 1256, 1260-1261, challenged, inter alia, LAUSDs interpretation of certain governing statutes, conduct that was appropriately reviewed by ordinary mandamus. In both Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, and Shapell Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218, the plaintiffs sought broadly to invalidate resolutions imposing developer fees. Here, in contrast, Palazzo merely seeks the refund to which it is allegedly entitled under the governing LAUSD resolution.
For all of these reasons, we conclude that the trial court erred when it granted summary judgment in favor of LAUSD on Palazzos claim under section 66020.
The foregoing discussion makes it unnecessary for us to address the other arguments raised by the parties. Defendants motion to dismiss this appeal, filed on December 19, 2007, is denied. Defendants requests for judicial notice filed on March 13, 2008, and July 18, 2008, are granted. Defendants request for judicial notice filed on June 3, 2008, is granted as to exhibits B and C but denied as to exhibit D.
DISPOSITION
The judgment is reversed in part, and the trial court is directed to enter an order denying defendants motion for summary judgment as to LAUSD. In all other respects, the judgment is affirmed. The parties shall bear their own costs of appeal.
We concur:
MALLANO, P. J.
NEIDORF, J.