Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo, No. CV040150, Charles S. Crandall, Judge
Ogden & Fritz, John W. Fricks, for Plaintiff and Appellant Erik Benham, individually and as holder of the Claims of Maria Vista Estates.
Porter Scott, Terence J. Cassidy and Thomas J. Riordan, for Defendants and Respondents County of San Luis Obispo, Daniel Colin Erdman and Richard Edward Marshall.
COFFEE, J.
Maria Vista Estates (Maria Vista), a California general partnership (through Erik Benham, its successor-in-interest) and Erik Benham, as an individual, appeal from the judgment dismissing their action against respondents San Luis Obispo County (county), and its employees, Daniel Colin Erdman and Richard Edward Marshall, after sustaining a demurrer to the third amended complaint. That complaint contains six related actions, including four civil rights actions (42 U.S.C. § 1983) which allege that respondents violated appellants’ rights to procedural and substantive due process, equal protection, and free speech by impeding the progress of appellants’ residential development project. Appellants contend that the court erred in concluding that the complaint fails to state any valid section 1983 action and that the statute of limitations bars the due process claims. We affirm.
We dismissed the appeal of appellant Mark Pender (Benham’s Maria Vista partner) after he failed to file a brief with this court. Benham acquired the interests and claims of Maria Vista in pending bankruptcy court proceedings. The trial court also sustained the demurrer of defendant Nipomo Community Services District (NCSD) without leave to amend. This appeal does not challenge the ruling sustaining the NCSD demurrer.
Because this action was concluded by a sustained demurrer, we treat the facts alleged in appellants' third amended complaint as true for purposes of this review. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
Maria Vista, through its affiliated predecessors, has owned 82 acres known as Maria Vista Property in San Luis Obispo County since 1999. Benham and Mark Pender were principals of Maria Vista. Maria Vista and its predecessors obtained approvals to develop a 77-home subdivision (the project), including a vesting tentative map in 1992. That map was extended in 1994, 1996, 1997, 1998, 2000 and 2002. The project is adjacent to farm properties whose owners are named as defendants below (farm defendants). Maria Vista and its predecessors spent $8,000,000 for public improvements and $34,000,000 for project construction, development and financing costs.
In 2000, respondents and the Nipomo Community Services District (NCSD) imposed new and illegitimate demands and restrictions upon Maria Vista to try to exact an economic benefit for respondents and NCSD. In May 2003 and January 2005, at the instigation of farm defendants, respondents caused a stop work order to be issued against the project, without good cause, as retaliation against appellants for installing a water pipeline in a dedicated right-of-way on the neighboring farm property.
In April 2003, respondent Daniel Erdman, an official and employee of county's public works department, tried to extort bribes from appellants by threatening to delay the project. Appellants rejected Erdman’s efforts and complained to his supervisor, respondent Richard Marshall. Respondents retaliated against appellants for complaining by improperly interfering with appellants’ timely completion of the project. Marshall threatened further retaliation against appellants and solicited personal favors from Benham, which he refused. Appellants sought administrative relief from respondents. A year later, the county removed Erdman from the project.
Respondents, farm defendants, and NCSD acted in concert and with wrongful intent to sabotage the project and damage appellants by preventing the successful, timely completion of the project. The county refused to calendar appellants’ final subdivision map for approval by inventing "unfounded pretexts for delay and false claims of incompletion of conditions and by falsely fabricating new conditions." Respondent county determined that appellants were responsible for all damage caused to properties but failed to investigate appellants’ complaints regarding farm defendants’ drainage violations. In October 2004, appellants filed an action against NCSD. Public agency defendants retaliated against appellants for filing that action and resisting defendants’ unlawful demands. Such retaliation included the instruction NCSD gave its employees "in about November 2004 and continuing through at least June 2005, " to refuse all inspection and service requests.
Public agency defendants threatened to drive appellants into bankruptcy. Benham and Pender incurred more than $100,000 in investigation costs, after the county pursued a claim against project subdivision improvement bonds. Respondents and other defendants caused project delays with the result that Maria Vista's lender, Security Pacific Bank, obtained a judgment in excess of $23,000,000 against Maria Vista. "Plaintiff" was compelled to file a Chapter 11 petition in bankruptcy on March 23, 2007.
Procedural History
On February 26, 2004, appellant Maria Vista filed a complaint against Linda Vista Farms Association and other farm defendants. The complaint alleged that farm defendants created a nuisance that damaged the value of Maria Vista property, by changing the historical use of their farm properties, and changing the direction of their plowing furrows, in a manner that (1) diverted irrigation and rainwater, and (2) increased the amount of water runoff onto Maria Vista property. Respondents were not then named as defendants.
On February 1, 2007, Maria Vista filed its first amended complaint which named respondents (county, and its employees, Erdman and Marshall) and NCSD as public agency defendants in a section 1983 cause of action. The first amended complaint alleged that NCSD and respondents committed improper acts and collaborated with the farm defendants to interfere with and delay the project.
Appellants also filed a second amended complaint in 2007. After "lengthy briefing and oral argument, " the trial court sustained respondents’ demurrer "to certain constitutional torts contained in the second amended complaint, with leave to amend, " on September 13, 2007. In its ruling, the court cited several grounds, including the complaint’s lack of a specific factual basis to support the section 1983 claims.
On October 22, 2007, appellants filed the third amended complaint alleging four separate section 1983 actions (procedural due process, substantive due process, equal protection, and "First Amendment"), and two related causes of action for injunctive and declaratory relief. The third amended complaint adds Benham and Pender as individual plaintiffs, and alleges that they discovered facts giving rise to the section 1983 actions "in late 2006" during deposition discovery, and that respondents’ conduct continued into 2007. It further alleges that respondents and NCSD conspired with the farm defendants, and that appellants neither knew nor had reason to know of the conspiracy until November 2006.
On November 19, 2007, respondents filed a demurrer to the third amended complaint. Appellants opposed the demurrer. On April 14, 2008, the court sustained the demurrer on multiple grounds. It concluded that the complaint failed (1) to plead specific and nonconclusory facts to support the section 1983 actions; (2) to state a requisite, protected property interest to support the due process claims; and (3) to state facts to establish that respondents treated appellants differently than other similarly situated developers. It further concluded that the applicable statute of limitations expired before appellants filed their due process claims.
DISCUSSION
Appellants contend that the trial court erred by concluding that the third amended complaint fails to state any valid section 1983 claim. We disagree.
On review of a demurrer sustained without leave amend, we accept the factual allegations of the complaint as true and review the pleading de novo to determine whether the facts as pleaded state a cause of action. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967; Satten v. Webb (2002) 99 Cal.App.4th 365, 374-375.) "'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law or fact.'" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Appellants Failed to Allege Specific and Nonconclusory Facts to Support the Section 1983 Causes Of Action.
"A plaintiff seeking recovery under section 1983 must plead more than constitutional 'buzzwords' to survive demurrer. [Citation.] The plaintiff must allege specific and nonconclusory facts showing the defendant's acts deprived him of a right, privilege or immunity secured by the federal Constitution or federal laws. [Citation.]" (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 180.)
In order to state a cause of action based on a theory that defendants acted in concert, or conspired, "the plaintiff must allege the formation and operation of the conspiracy, the wrongful act or acts done pursuant to it, and the damage resulting from such acts. [Citation.] In making such allegations, bare legal conclusions, inferences, generalities, presumptions and conclusions are insufficient. [Citation.]" (State ex rel Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 419.)
In this case, appellants base each of their section 1983 causes of action upon a conspiracy theory. The third amended complaint fails to cite specific, nonconclusory facts of joint conduct among respondents and the farm defendants and NCSD, to describe the facts underlying the formation of the conspiracy, or to specify which facts concerning the conspiracy appellants uncovered in late 2006, during deposition discovery of their action against the farm defendants. Further, the complaint alleges that "public agency defendants" (which term is defined to include respondents and NCSD) retaliated against appellants for filing an action against NCSD without citing specific, nonconclusory facts to connect that filing with the alleged retaliatory conduct of respondents. The complaint’s allegations do not state specific nonconclusory facts to support the section 1983 causes of action that are based on a conspiracy theory. (Taylor v. Mitzel (1978) 82 Cal.App.3d 665, 675.) The trial court ruling summarized many other pleading defects; we discuss a few of them below.
"‘[I]n a [section] 1983 suit for damages for a substantive due process... violation, a plaintiff must at least show that state officials are guilty of grave unfairness in the discharge of their legal responsibilities. Only a substantial infringement of state law prompted by personal or group animus, or a deliberate flouting of the law that trammels significant personal or property rights, qualifies for relief under [section] 1983. [Citation.] Inadvertent errors, honest mistakes, agency confusion, even negligence in the performance of official duties, do not warrant redress under this statute.’" (Galland v. City of Clovis (2001) 24 Cal.4th 1003, 1034.) The trial court correctly concluded that the April 2003 bribe solicitation allegation, unlike appellants’ allegations concerning bonds, inspections, and other aspects of the development process, might support a conclusion of a "deliberate flouting of the law" (ibid.) of the kind that could support a substantive due process violation.
Many allegations of the third amended complaint cite conduct such as mistakes or errors that do not support a section 1983 claim. For example, paragraph 84 H alleges that respondents attempted to enforce a public works written policy to which the project was exempt before approving "occupancy of the first home to be sold at [the] project." Paragraph 72 contains a similar allegation regarding the public works policy but acknowledges that "the County Building Official... allowed occupancy." It then presumes a common motive between that purported attempt to "convince the... Building Official to prevent occupancy, " and respondents’ "false and fraudulent claim against improvement bonds." The trial court correctly concluded that the recitation of the history of the land use decisions on the project in the complaint, with its presumptive and conclusory allegations, were "insufficient to establish a deliberate ‘flouting’ of the law needed to state a claim for a violation of substantive due process." (State ex rel Metz v. CCC Information Services, Inc., supra, 149 Cal.App.4th at p. 419.)"
The third amended complaint also lacks specific facts to support the equal protection claim. In order to state such a claim, a plaintiff must plead that it has been "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." (Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564; Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 714.) In Village of Willowbrook, plaintiffs asked the Village to connect their property to the municipal water supply. The Village demanded a 33-foot easement from plaintiffs, while only requiring 15-foot easements from other similarly situated individual property owners. (Village of Willowbrook, at p. 563.) The absence of facts to support a claim that respondents treated other similarly situated developers differently defeats the complaints’ equal protection claim. (Stubblefield, at pp. 714-715.)
The third amended complaint also lacks "specific and nonconclusory facts showing [respondents'] acts deprived [appellants] of a right, privilege or immunity secured by the federal Constitution or federal laws" to support the first amendment cause of action. (Breneric Associates v. City of Del Mar, supra, 679 Cal.App.4th at 180.) It alleges that public agency defendants "falsely and improperly disparag[ed] [the project], its viability... quality... and financial status, " to discourage others from doing business with appellants. However, the complaint fails to specify the context or content of the disparaging comments allegedly made by respondents, and the identity of the person or the persons who uttered or heard the comments. The trial court properly concluded that the allegations of the first amendment cause of action were "simply insufficient to put a defendant on notice as to the nature of the claim."
The Complaint Fails to Allege the Requisite Vested Property Right to Support a Due Process Claim
In order to state a section 1983 cause of action premised upon a violation of procedural or substantive due process, a plaintiff must allege a protected, or vested, property right. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1180, 1183, 1184.) We reject appellant’s argument that the complaint met this requirement by pleading their possession of a vesting tentative map.
"[A] cognizable property interest exists only when the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured.... Even if in a particular case, objective observers would estimate that the probability of issuance was extremely high, the opportunity of the local agency to deny issuance suffices to defeat the existence of a federally protected property interest." (Clark v. City of Hermosa Beach, supra, 48 Cal.App.4th at pp. 1180-1181; internal citations and punctuation omitted.) "[A]n approved or conditionally approved vesting tentative map shall not limit a local agency from imposing reasonable conditions on subsequent required approvals or permits necessary for the development and authorized by the ordinances, policies, and standards described...." (Gov. Code, § 66498.1, subd. (e).) A developer who possesses a vesting tentative map is not guaranteed the right to complete a project without obtaining discretionary approvals from local agencies. (See Curtin and Merritt, Cal. Subdivision Map Act Practice (Cont. Ed. Bar 2d 2005), § 7.8.) The trial court correctly concluded that appellants’ third amended complaint fails to allege the requisite protected property interest to support their due process claims. (See Clark, at pp. 1180, 1183, 1184.)
Statute of Limitations
Appellants argue that the trial court erred by ruling that the statute of limitations for their procedural and substantive due process causes of action expired before the complaint was filed. We disagree.
Appellants pleaded their due process causes of actions under section 1983 as Fourteenth amendment violations. In California, the applicable statute of limitations for such actions is two years. (Code Civ. Proc., § 335.1; Committee Concerning Community Imp. v. Modesto (9th Cir. 2009) 583 F.3d 690, 701.)
Appellants did not name respondents as defendants in this action until February 1, 2007. Both due process claims rely in large part upon conduct that occurred outside the two-year limitations period. The procedural due process claim alleges several acts that occurred as early as May 2003; the substantive due process claim alleges acts that occurred "approximately from April 2003" through December 2004. Appellants’ strongest argument regarding the statute of limitations is based on the continuing violation doctrine. Under that doctrine, a plaintiff can seek relief for events outside of the limitations period provided there is a sufficiently close relationship between at least one act within that period and acts outside that period. (See Knox v. Davis (9th Cir. 2001) 260 F.3d 1009, 1013.)
Both due process cause claims fail to allege specific nonconclusory facts to establish the requisite close relationship between conduct within and conduct outside the applicable limitations period to establish a continuing violation. (Knox v. Davis, supra, 260 F.3d at p. 1013.) For example, appellants failed to plead specific, nonconclusory facts to establish a close relationship between the 2003 bribe solicitation and other misconduct that occurred within the limitations period. The trial court correctly ruled that the continuing violation doctrine did not apply to appellants’ due process claims.
Conclusion
Appellants failed to cure the pleading deficiencies in their complaint despite having received leave to do so. For reasons explained above, the trial court properly sustained respondents’ demurrer to the section 1983 claims alleged in the first four causes of action of the third amended complaint. (See Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Appellants' fifth and sixth causes of action seek remedies that are premised upon the claims of the first four causes of action. The trial court properly sustained respondents’ demurrer to the third amended complaint, dismissed respondents, and entered a judgment in their favor.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to County.
We concur: GILBERT, P.J., YEGAN, J.