Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. BC273852 Bruce Mitchell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Newmeyer & Dillion, Joseph A. Ferrentino, Leonard Polyakov for Plaintiff and Appellant.
D. Wayne Leech for Defendants and Respondents.
BOREN, P.J.
Plaintiff NJD, Ltd. (NJD), challenges the denial by defendant City of Glendora (Glendora) of NJD’s applications for development of a 145-unit residential project in the steep hillsides of the city. After a nonjury trial, the court found that NJD’s inverse condemnation claim and related causes of action were not ripe for adjudication. The court also found meritless the claimed violation of a duty (see Gov. Code, § 815.6) to certify the environmental impact report (EIR) within the proscribed one-year period (Pub. Resources Code, § 21151.5), because Glendora had denied NJD’s applications for a general plan amendment, specific plan amendment and zoning code amendment to accommodate its ambitious project and thus had no duty to comply with the one-year time period.
Unless otherwise indicated, all further statutory references are to the Public Resources Code.
We agree with the trial court’s rulings and also reject NJD’s claims of prejudicial evidentiary errors at trial.
FACTUAL AND PROCEDURAL SUMMARY
The second amended complaint (the operative pleading) is premised largely on the assertion that Glendora refused to consider any project for development which has a density in excess of 20 units, and that it thus deprived NJD of its reasonable investment expectations and resulted in a property with no economically viable use. Specifically, NJD alleged the following causes of action: (1) that by Glendora’s refusal to complete the EIR in a timely manner as required by statute, it deprived NJD of due process and equal protection and violated title 42 of the United States Code, section 1983; (2) that by Glendora’s failure to complete the EIR in a timely manner it also violated the type of mandatory duty covered by Government Code section 815.6 and thus should pay NJD unspecified “costs of carry and ‘out of pocket’ expenses”; (3) that by a writ of mandate Glendora should be compelled to interpret its zoning consistent with its general plan and thereby allow reasonable development; (4) that if a writ of mandate is not granted, then NJD should be deemed unconstitutionally denied the economically viable use of its property and entitled to just compensation under the state and federal constitutions; and (5) that NJD should be awarded an appropriate declaratory judgment setting forth its rights and Glendora’s obligations.
Regarding the issue of Glendora’s duty to timely certify the EIR, NJD alleged that Glendora was required to complete and certify the EIR on or before September 14, 2000 (the one-year statutory time period, plus an agreed upon three-month extension), but that it completed the EIR almost 17 months late, on February 12, 2002. NJD moved for summary adjudication to establish that the city had a mandatory duty to process the EIR by or before September 14, 2000, and sought monetary damages for the delay. The court initially granted NJD’s motion for summary adjudication. However, upon reconsideration the court reversed its ruling and found in favor of Glendora, reasoning that Glendora ultimately denied NJD’s applications and that when a project is disapproved there is no duty to complete an EIR within the CEQA time frame.
A bifurcated nonjury trial ensued on the preliminary and dispositive issue of ripeness as to other causes of action. The trial court rendered judgment in favor of Glendora and issued a supporting statement of decision (Code Civ. Proc., § 632), which was unchallenged by NJD. Thus, we draw our statement of the facts largely from the trial court’s statement of decision and the stipulated facts therein.
As in the present case, “[w]here a statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.” (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358.) A party’s failure to bring omissions or ambiguities in the statement of decision to the trial court’s attention constitutes a waiver of the right to complain of such errors on appeal, and the appellate court will imply findings to support the judgment. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.)
In April of 1999, NJD filed its application with Glendora to develop 145 residential units on 201 acres. NJD’s application to develop 145 units was very aggressive, seeking a density of more than seven times that permitted by the hillside zoning ordinance and a density well outside the range established by the city’s General Plan. NJD’s application entailed, in pertinent part, the following: (1) grading 2.2 million cubic yards of soil, a portion of which was on slopes exceeding 35 percent average slope, with grading over 35 percent prohibited by the zoning ordinance, (2) moving up to 80 feet of “cut” on ridge lines and “fill” in canyons; and (3) creating various issues with fire access and environmental impacts.
NJD submitted several applications--a General Plan amendment to allow for the increased density of the project, a zoning code amendment (Specific Plan), a zone change proposal, and a subdivision proposal. Regarding the General Plan amendment, NJD proposed amending the land use designations from open space private and very low density to low density (one to three dwellings per acre). As to the zoning code amendment, NJD proposed allowing lot sizes and configurations smaller than the one-acre minimum required by the zoning code and allowing lot setbacks that did not satisfy the zoning code. NJD also applied to change the zone for the property to conform to the Specific Plan and to subdivide the property into 145 residential lots, four open space lots, and one lot for a proposed water tank.
In January of 2002, Glendora’s city council held a public hearing and denied the applications. The next month, the city council adopted a resolution certifying the EIR for the 145-unit project without a statement of overriding considerations and made findings specifying facts in opposition to the adoption of a statement of overriding considerations. Also in February of 2002, the city council adopted resolutions denying the 145-lot subdivision, denying the general plan amendment, and denying the zoning change to change the existing zoning to a Specific Plan.
In April of 2002, NJD submitted a subdivision application for 76 units, which Glendora denied. In May of 2002, Glendora amended the General Plan’s density range for open space land and very low density land. In June of 2002, Glendora amended various portions of its municipal code to provide that when the average slope exceeds 45 percent, the prior “minimum” of 10-acre lots would be a requirement of an “average” of 10-acre lots.
Meanwhile, in November of 2001, NJD submitted the first of several applications for a lot line “adjustment,” but each of the applications in fact would have resulted in a “lot split.” The significance of a lot line adjustment is that it would have shifted the lot lines of many of the steeper land areas, and thus would have eliminated the slope density problem which was the primary obstacle for NJD.
Glendora deemed NJD’s first application for a lot line adjustment incomplete. NJD then filed a second lot line application, which Glendora also deemed incomplete, but which the superior court (Judge David Yaffee) ordered Glendora to process. NJD then filed a third lot line application, which Glendora denied in December of 2003. One of the grounds for denial was that the application in fact sought a lot split and not merely a lot line adjustment.
NJD’s third application for a lot line adjustment would have resulted in creating two additional lots (i.e., lot splits) in the city of San Dimas by severing two parcels which stretch into both Glendora and San Dimas. Lot splits must comply with the Subdivision Map Act and involve analysis of additional factors, such as grading.
If a true lot line adjustment had been sought and granted, such an adjustment would have permitted NJD to develop approximately 50 lots under Glendora’s slope density formula. According to David Chantarangsu, Glendora’s Deputy Director of Planning, an application for a true lot line adjustment would probably have been granted because the approval of such adjustments is largely “ministerial.” Although a lot line adjustment would not have guaranteed that a subsequent development application would have been granted, it would have been a significant step forward for NJD, a step which it never took. As Chantarangsu indicated, with a successful lot line adjustment NJD could possibly obtain approval for 53 units, assuming other legal requirements were met.
Chantarangsu also indicated that, alternatively, if instead of a true lot line adjustment, NJD had made five separate applications, which it did not, 26 units could have been obtained under the existing slope density formula. Also, more than 20 units would have been possible if NJD had obtained approval for a parcel map. NJD did not explore these options in an effort to obtain a density of more than 20 units.
Richard Jemison, the vice president of California operations for a general partner of NJD, acknowledged during his trial testimony that a lot line adjustment could allow for the development of more than 20 lots under the slope density formula. Specifically, Jemison admitted that Glendora showed flexibility with other property owners in approving development applications, and that NJD could get approval for 26 to 27 units if the five parcels were subdivided separately. Moreover, NJD was never told by any city council member he would never consider approving any development other than one with less 20 units. And, Jemison admitted that when the Glendora denied the project calling for 145 units, he knew he could get approval from the city for at least 26 units.
The trial court ruled in its statement of decision that NJD’s claim was not ripe. The court found that a successful lot line adjustment could have permitted NJD to develop at least 50 lots under the slope density formula in Glendora’s zoning code. Furthermore, the court found that if NJD had made five separate applications, which it did not, 26 units could have been approved under the existing slope density formula, and that more than 20 units could have been possible if NJD had obtained approval for a parcel map.
Therefore, the trial court concluded that NJD had failed to carry its burden of establishing that any application for over 20 units would have been denied and thus would have been futile. Indeed, the court noted that NJD itself did not appear to believe that the denial of the project was final, or that any subsequent application would have been futile, because after denial of the project NJD filed two subsequent applications, one for a 76-unit project and one for a lot line adjustment or lot split.
The trial court further ruled that if NJD submitted in the future an additional application for a density significantly less than the 145 units, Glendora should clearly inform NJD of what the city is prepared to approve. As the court observed in its statement of decision, this would eliminate the need for NJD to file a series of expensive and time-consuming applications until it found the city’s undisclosed “magic number.”
Finally, the court’s statement of decision reiterated the summary adjudication ruling, finding no viable cause of action for violation of any statutory duty to certify the EIR in one year, because Glendora ultimately denied NJD’s applications for a specific plan and general plan amendments.
The judgment in favor of Glendora incorporated by reference the court’s statement of decision, and was filed on January 10, 2006. NJD appeals.
DISCUSSION
I. The trial court did not err in ruling that NJD had no cause of action for violation of any duty to process the EIR in one year.
NJD’s second cause of action alleged that Glendora violated Government Code section 815.6 when it breached its mandatory duty to complete the EIR within the one-year time limit prescribed by CEQA, as specified in section 21151.5. The trial court relied on section 21080, subdivision (b)(5), which specifies that CEQA “does not apply to . . . [p]rojects which a public agency rejects or disapproves” (see also Guidelines, § 15270, subd. (a)), and held as a matter of law that Glendora was relieved of the duty to comply with the one-year time requirement because it ultimately denied NJD’s development applications.
Government Code section 815.6 provides as follows: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
Section 21151.5 specifies, in pertinent part, that “each local agency shall establish, by ordinance or resolution, time limits that do not exceed . . . [o]ne year for completing and certifying environmental impact reports.” (See also Cal. Code Regs., tit. 14, §§ 15,000, 15108; hereinafter, Guidelines.) This time limit is “measured from the date on which an application requesting approval of the project is received and accepted as complete by the local agency,” and is subject to an extension if stipulated to by the local agency and the landowner. (§ 21151.5, subds. (a)(2), (b).)
NJD contends that the trial court misapplied section 21080 and the related regulation. However, we agree with the trial court’s ruling and find, in any event, that there is no statutory support for a cause of action for damages for the delay complained of, and that the relief for any such delay must be by a petition for writ of mandate.
A. Section 21080, subdivision (b)(5) provides that CEQA “does not apply to . . . [p]rojects which a public agency rejects or disapproves.”
Although NJD acknowledges that section 21080, subdivision (b)(5) clearly states that CEQA “does not apply to . . . [p]rojects which a public agency rejects or disapproves,” it nonetheless urges that this language be interpreted otherwise. NJD points to material from the Legislative Intent Service regarding a “discussion” in a 1983 administrative filing of Guidelines section 15270, subdivision (a), which is the regulation implementing section 21080. According to the Legislative Intent Service, the “discussion” was as follows: “This section identifies and interprets the exemption for disapprovals. This exemption was originally added to CEQA because some applicants claimed that a public agency could not turn down a permit application without first preparing an EIR or negative declaration. The agencies believed that they should be able to reject an application if they could determine from a quick initial screening that the project was incompatible with existing zoning or some other requirement so that the agency would be without legal authority to approve the project. The Guidelines codify this interpretation that was the common understanding among people involved with the bill that created the exemption.”
The Legislative Intent Service is a commercial service that provides documents relating to the origin of California statutes. (See Anderson v. State Personnel Bd. (1987) 194 Cal.App.3d 761, 770, fn. 3.)
NJD acknowledges that even based on the above “discussion” of Guidelines section 15270, agencies have the ability to reject projects prior to undergoing environmental review. However, NJD emphasizes that the statutory provision does not state that after the agency has determined that environmental review is necessary, the agency can ignore CEQA and its mandatory time limitations just because the agency later rejects the development application.
The Guidelines are prepared by the Office of Planning and Research and then certified and adopted by the Secretary of the Resources Agency for the purpose of interpreting and implementing CEQA. (§ 21083.) Courts accord the Guidelines “great weight . . . except when a provision is clearly unauthorized or erroneous.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2.) The “discussion” of the Guidelines noted by the Legislative Intent Service, which is the underpinning for NJD’s theory, is useful commentary but not law.
In the present case, we are unpersuaded that NJD’s interpretation of the “discussion” noted by the Legislative Intent Service--not even the language of the Guidelines section itself--is sufficiently compelling to obviate the clear language of the statute. Thus, as unambiguously indicated in section 21080, subdivision (b)(5), a CEQA deadline “does not apply to . . . [p]rojects which a public agency rejects or disapproves.” The “provisions of CEQA leave little doubt that the requirement of an EIR is not even triggered unless a public agency proposes to carry out or approve a project which may have a significant effect on the environment.” (Main San Gabriel Basin Watermaster v. State Water Resources Control Bd. (1993) 12 Cal.App.4th 1371, 1380, original italics.)
Although, here, Glendora started the EIR process (apparently with NJD bearing the expense), there was no reason even to complete the EIR, let alone to do so on time, because the project was not approved. To the extent NJD wanted to expedite the EIR process, its sole and exclusive remedy was not a claim for money damages but a petition for a writ of mandamus, which it did not seek. (See § 21168; Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-568; Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 722.)
B. Government Code section 815.6 is inapplicable because CEQA is not designed to protect against the particular risk of loss claimed here.
Moreover, as Glendora properly asserts, the delay damages claimed by NJD are not the type of damages entitled to protection under applicable statutes. The CEQA statutory scheme does not in itself create a cause of action for damages for violation of its provisions. NJD thus relies upon Government Code section 815.6, which permits an action for damages under the following circumstances: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
However, Government Code section 815.6 is inapplicable. CEQA is not designed to protect against the particular risk of loss claimed here--NJD’s costs of carrying and maintaining its property, and the costs incurred to prepare the EIR and related documents. CEQA is simply not a guarantor of development costs or an insurer of project viability. Rather, CEQA is primarily intended to maintain “a quality environment for the people of this state now and in the future,” to provide “a high-quality environment that at all times is healthful and pleasing to the senses and intellect of man,” and while providing a decent home and satisfying living environment for every Californian to ensure “that major consideration is given to preventing environmental damage.” (§ 21000, subds. (a), (b) & (g); see Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 254-255.)
Nor is the purpose of an EIR to protect or minimize a developer’s project costs or to maximize its net profits. Rather, the EIR is intended solely “to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided.” (§ 21002.1, subd. (a).)
Accordingly, Government Code section 815.6 provides no statutory underpinning for a tort action to support the type of the damages NJD seeks for a belatedly completed EIR. The trial court properly granted judgment against NJD on its second cause of action.
It is thus unnecessary to address Glendora’s other defenses to that cause of action. We need not discuss whether Glendora is statutorily immune from the failure to timely process the EIR (see Gov. Code, §§ 818.2, 818.4, 821, 820.2 & 821.2), or whether the General Plan and zoning amendments proposed by NJD, together with the EIR, are adjudicatory in nature and thus outside the scope of the statutory timeline.
II. The trial court properly granted judgment against NJD on the remaining causes of action because the case was not ripe for decision, and the “futility exception” to the ripeness requirement did not apply.
The trial court’s judgment against NJD was premised on the fact that its case was not ripe as to the remaining causes of action for inverse condemnation, denial of constitutional rights because of the failure to treat NJD’s property in the same manner as other like properties (an action under 42 U.S.C. § 1983), and declaratory relief.
It is well settled that “an undue restriction on the use of private property is as much a taking for constitutional purposes as appropriating or destroying it.” (Candlestick Properties, Inc. v. San Francisco Bay Conservation etc. Com. (1970) 11 Cal.App.3d 557, 572, original italics.) A regulation that “‘goes too far’” can constitute a taking. (Suitum v. Tahoe Regional Planning Agency (1997) 520 U.S. 725, 734.) However, “a regulatory takings claim is not ripe for adjudication until the governmental entity charged with implementing the regulations has reached a final decision on the application of the land use regulations to the affected property.” (Toigo v. Town of Ross (Toigo) (1998) 70 Cal.App.4th 309, 325.)
The judicial reluctance to examine a takings claim until a final decision has been made “is compelled by the very nature of the inquiry required.” (Williamson Planning Comm’n v. Hamilton Bank (1985) 473 U.S. 172, 190.) In assessing what constitutes a taking, of particular significance is “the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations,” which cannot be evaluated until the governmental entity “‘has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.’” (Toigo, supra, 70 Cal.App.4th at p. 325.) “Generally a final decision requires at least (1) rejection of a formal development plan; and (2) denial of a variance, or something similar, from the controlling regulations.” (Ibid.)
Denial of the extensive development requested does not necessarily preclude less extensive but still valuable development. (MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340, 347, 351-353.) “The local agencies charged with administering regulations governing property development are singularly flexible institutions; what they take with one hand they may give back with the other.” (Id. at p. 350.) Therefore, a property owner arguing that a final decision has been made for ripeness purposes “has the heavy burden of setting forth facts that are ‘clear, complete, and unambiguous’ in showing that the agency has ‘drawn the line, clearly and emphatically, as to the sole use to which [the property] may ever be put.’” (Toigo, supra, 70 Cal.App.4th at p. 325.)
Significantly, “[a] court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes.” (MacDonald, Sommer & Frates v. Yolo County, supra, 477 U.S. at p. 348.) “Thus, in attempting to show the regulation of the subject property is excessive, a property owner may need to resubmit modified development proposals that satisfy the governmental entity’s objections to the development so that the extent of the regulation can be accurately identified.” (Toigo, supra, 70 Cal.App.4th at p. 326.)
In the present case, NJD does not deny that it may have to submit yet another application reflecting a lower density development before Glendora’s decision will be considered final. (See Toigo, supra, 70 Cal.App.4th at p. 326.) Instead, NJD contends that its taking claim is ripe under the “futility exception” to the requirement of a final decision.
“The futility exception to the ripeness doctrine relieves a developer from submitting ‘multiple applications when the manner in which the first application was rejected makes it clear that no project will be approved.’ [Citation.] When the regulatory authority has ‘drawn the line, clearly and emphatically,’ as to the permissible use of the property, the developer is not required to submit additional development applications. [Citation.] The exception is narrowly construed and the burden of establishing it lies with the developer. [Citation.]” (Milagra Ridge Partners, Ltd. v. City of Pacifica (1998) 62 Cal.App.4th 108, 120.)
NJD argues that after the 145-unit project was denied, it would be futile to submit any applications for any development other than for a project with 20 units or less and that such a small project would not be economically viable. However, Glendora advised NJD that it could obtain approval for a project with a density of 26 units under the slope density formula if NJD submitted individual and separate subdivision applications for each of its five parcels. Glendora also advised NJD that a proper lot line adjustment application (rather than a lot split application) might result in approval of a project with an even higher density.
Accordingly, as the trial court properly found, NJD’s claim is not ripe.
III. NJD’s contention, that several evidentiary rulings at the bifurcated trial on the ripeness issue deprived it of a fair trial, is unavailing.
NJD challenges several of the trial court’s evidentiary rulings at trial on the ripeness issue. Its claims of reversible error are without merit.
A. Chantarangsu’s testimony and the Fifth Amendment privilege.
First, NJD contends that the trial court abused its discretion when it denied NJD’s request to preclude Chantarangsu (Glendora’s Deputy Director of Planning and its only witness at trial) from testifying about any of the matters he had refused to discuss at his deposition based upon his assertion of the Fifth Amendment privilege against self-incrimination. At his deposition, Chantarangsu asserted the Fifth Amendment privilege when asked about the city’s denial of NJD’s lot line adjustment application and about matters that related to a staff report. Chantarangsu did so because NJD had filed an order to show cause (OSC) re contempt against the city and its council members relating to the lot line adjustment, and a portion of the staff report was the subject of the pending OSC.
During the deposition, opposing counsel advised NJD that “once the Court has ruled on that contempt [matter], obviously you’ll have an opportunity to come back and make further inquiry that you deem appropriate. But until that time we will exercise our Fifth Amendment privilege.” After NJD withdrew its OSC re contempt, NJD continued with the deposition of Chantarangsu during two additional days. As noted by counsel for Glendora in a motion in limine to preclude mention at trial of Chantarangsu’s assertion of the privilege (see Evid. Code, § 913, subd. (a)), on the first of those two additional days of deposition, Chantarangsu “answered questions relating to the lot line adjustment application,” and on the last day of Chantarangsu’s deposition testimony NJD had the further “opportunity to inquire into . . . areas that were previously restricted by the 5th amendment assertion.”
During proceedings prior to trial testimony, NJD did not file a motion in limine to preclude any of Chantarangsu’s testimony. Instead, NJD argued that the trial court should limit Chantarangsu’s testimony in the context of its opposition to Glendora’s motion in limine to preclude NJD from referring to Chantarangsu’s assertion of his Fifth Amendment privilege during his deposition. NJD argued to the trial court that when Chantarangsu was deposed after NJD withdrew its OSC re contempt, NJD did not have to inquire about the lot line adjustment because it was purportedly Chantarangsu’s obligation to offer the information. The court, however, ruled that Chantarangsu “had the right to take the Fifth when he was subject to an OSC re contempt, and once that curtain is lifted, if you want the information from him, you have the obligation to ask him.”
Prior to trial testimony, counsel for NJD also advised the court that when Chantarangsu attempts at trial to answer one of those questions relating to the lot line adjustment, “I’m going to object because he didn’t answer them before.” However, at trial NJD did not object to the testimony of Chantarangsu.
Significantly, as NJD was specifically advised by opposing counsel, Chantarangsu was available for further deposition testimony after NJD withdrew the OSC and the Fifth Amendment privilege triggered by the OSC could no longer be asserted. However, NJD failed to take advantage of the opportunity. Contrary to NJD’s brazen and unsupported assertion, it was not Chantarangsu’s obligation to “volunteer” to answer questions he had previously refused to answer because of his assertion of the Fifth Amendment. Thus, NJD cannot be heard to complain about Chantarangsu’s limited deposition testimony.
Accordingly, under the circumstances we find no error.
B. The exclusion of evidence based on the date the complaint was filed.
NJD argues that the trial court abused its discretion by excluding relevant evidence based solely on the date the original complaint was filed (May 13, 2002), thereby cutting off any evidence occurring after that date (such as statements by a newly elected city councilman in 2005) that could bear on the futility exception to the ripeness doctrine.
At the outset of the trial, the court declared that the relevant time period to test futility was as of the date the complaint was filed, May 13, 2002. As the court explained, that must be the operative date because the question is whether NJD was entitled to file on that date without attempting further applications to the city. Indeed, NJD acknowledges that “it is true that ripeness should be determined as of the time the action is filed.”
NJD’s complaint is that the trial court went from that correct legal statement of the relevant time period during which to test ripeness, to the purportedly erroneous conclusion that evidence generated after the date the complaint was filed must be precluded as irrelevant. However, as NJD acknowledges in its reply brief, the trial court actually did admit a fair amount of evidence concerning some post complaint events. It is thus apparent that while the court was guided by the touchstone of precomplaint evidence to establish relevance, it did not adhere exclusively to an artificial evidentiary cut-off date and determined the admissibility of evidence on an individual basis.
NJD focuses principally on the trial court’s preclusion of evidence of Councilman Herman’s “public crucification” of NJD and urges that it was compelling evidence of the state of mind of Glendora and relevant to the ripeness issue. Herman was one of several new city council members elected to the city council between the date Glendora rejected NJD’s initial development applications in February of 2002, and the date the complaint was filed in May of 2002. Just several days before trial, on September 25, 2005, Herman announced at a publicly televised city council meeting that he was adamantly opposed to NJD’s proposal to swap existing country club land, put a high-density housing and retail project on the country club property, and then put the country club in the foothills.
However, the project referred to by Herman involved different land that was not even at that time owned by NJD. Thus, the trial court properly excluded this evidence, finding it was “not relevant” because it involved “a different project, and it’s three years after the fact.” We agree with the trial court’s ruling that such evidence was not relevant; it simply had no “tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
C. The trial court did not err in its reading of NJD’s complaint, thus restricting the futility inquiry into whether Glendora would allow development of more than 20 units.
Finally, contrary to NJD’s assertion, the trial court did not abuse its discretion or deny it a fair trial by reading its complaint too narrowly. It properly read the complaint in a manner limiting the futility exception issue to whether Glendora would allow more than 20 units.
NJD’s 25-page complaint contained a two-page section specifically addressing NJD’s futility theory. That section of the complaint explained that further development applications would be futile because the city purportedly “refused to discuss any alternative except 20 units or less and made clear that no project in excess of 20 units will be considered.”
However, according to NJD, the court should have read its complaint more broadly and should not have precluded evidence that Glendora prohibited grading on 35 percent slopes and prohibited developing on ridge lines and in canyons. In other words, NJD urges that the trial court improperly limited evidence to the slope density formula--i.e., NJD’s property had an average slope greater than 45 percent, with Glendora thus applying a minimum lot size of 10 acres to NJD’s 200 acres of property, resulting in a maximum of 20 lots. And, according to NJD, the exclusive use of the slope density formula prevented it from offering evidence concerning other factors that could affect the net density.
NJD claims that this restriction was significant because NJD was prepared to offer testimony and other evidence to establish that even if the slope density formula allowed increases in the density and thus permitted more than 20 units, other zoning restrictions, including the prohibition of grading on 35 percent slopes, would have netted NJD less than 20 units, even after a lot line application and/or five separate development applications. NJD also claims on appeal that it was prepared to offer evidence that Glendora would never grant a variance to grade a necessary road over land with greater than a 35 percent slope (though Chantarangsu indicated such a variance was possible), and that it was precluded from offering evidence of how much of its property had ridge lines and canyons, areas where Glendora would never grant a variance to allow any units.
We conclude that even liberally construing the language in the complaint (Code Civ. Proc., § 452), the trial court did not err in its common sense view of the complaint and its rejection of NJD’s convoluted interpretation. The complaint specifically details the reasoning underpinning NJD’s futility theory. The complaint contains the previously described two-page section entitled “Futility of any further applications and economic impact of City’s ad hoc density reduction.”
That two-page section of NJD’s complaint clearly frames and limits (see Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212) the issue of futility for the ripeness claim in terms of Glendora’s purported refusal to consider any “project in excess of 20 units.” Later in the complaint, in addressing the alleged denial of just compensation, NJD again asserted: “NJD has been informed, and the actions and words of the City Planning Commission and the City Council at the public hearings as well as the Staff reports make unequivocally clear, that no Project with a density in excess of 20 units will be considered. Any further applications would be futile. Any request for a variance would be futile.”
NJD’s effort to expand the futility theory to include other factors focuses on isolated phrases in the complaint’s extensive factual recitation preceding the discussion of the causes of action. The brief mention of such factors, not even associated in the complaint with the concept of futility, is unpersuasive. NJD’s construction would give the complaint a tortured and unnatural interpretation. The trial court did not err in its reading of the complaint.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.