Opinion
A131758
10-31-2011
WILLIAM RUSCONI et al., Plaintiffs and Appellants, v. CITY & COUNTY OF SAN FRANCISCO et al., Defendants and Respondents; 270 VALENCIA STREET LLC, Real Party in Interest 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City and County of San Francisco Super. Ct. No. CGC11507016)
William Rusconi, Sally McDonnell, Fran Lundy, Georgie Faine, David Gruber, and Gruber Family Partners (together, appellants) appeal from the trial court's order sustaining City and County of San Francisco, San Francisco Planning Commission, Kelley Amdur, and 270 Valencia Street LLC's (together, respondents) demurrer to their complaint without leave to amend. They contend the trial court erred in ruling they had failed to exhaust administrative remedies and that they could not show that pursuing administrative remedies would have been futile. We reject their contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Rusconi, McDonnell, Lundy and Faine own condominium units in, and are residents of, a 12-unit condominium building in San Francisco. Gruber is the managing partner of Gruber Family Partners, a California Limited Partnership that owns a nearby 42-unit apartment building. The condominium units and apartment building are located directly north of a proposed real estate development project at 1960, 1970 & 1988 Market Street.
Appellants learned of the proposed real estate development project in late 2008 or early 2009. They objected to the project for various reasons, including the fact that a tall wall would be built directly in front of their south-facing windows, which for most of them constitute the only source of light and air into their residences. "Over [appellants'] objections and administrative appeals, a conditional use authorization was granted [to the developer, 270 Valencia Street LLC (the Developer)] with multiple exceptions and variances." Appellants exhausted their administrative remedies by appealing the granting of the conditional use authorization to the San Francisco Board of Supervisors, which heard and denied their appeal on September 15, 2009. Appellants "also fully appealed and pursued all administrative remedies for the numerous improper variances granted to this multi lot development to the Board of (Permit) Appeals and those appeals were heard and denied on December 9, 2009."
On or about November 10, 2010, the Developer filed, without notice to appellants, a new application "requesting substantial modification to the prior conditions of approval" (the Modification Application). The Modification Application was granted on December 16, 2010, "over [appellants'] objections." Appellants did not appeal the granting of the Modification Application to the Board of Supervisors but alleged they were "excused from pursuing additional administrative appeals for the new and modified conditional use authorization [because] such appeals would be futile and would also be denied."
On January 5, 2011, appellants filed a "complaint for declaratory and injunctive relief . . . and petition for writ of mandate; administrative mandamus" against the City and County of San Francisco (the City), San Francisco Planning Commission (Planning Commission), and San Francisco Planning Department senior manager Kelley Amdur, as respondents and defendants, and the Developer, as real party in interest. Appellants alleged the Planning Commission acted in excess of its jurisdiction and violated the San Francisco Planning Code when it "failed and refused to treat [the Modification Application] . . . as if it were a new application for conditional use authorization and did not follow the mandated procedures for such an application."
Respondents filed a demurrer to the complaint on the ground that appellants had failed to exhaust administrative remedies because they did not appeal the granting of the Modification Application to the Board of Supervisors before filing their complaint. The trial court agreed and sustained the demurrer without leave to amend and adopted its tentative ruling, which stated: "[Appellants] concede in the petition that they have not exhausted their administrative remedies. The petition on its face fails to state facts sufficient to show that pursuing such administrative remedies would be futile. There is no reasonable probability that plaintiff can amend to correct the deficiency."
DISCUSSION
Standard
"On review of an order sustaining a demurrer without leave to amend, our standard of review is de novo, 'i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.' [Citation.]" (Santa Teresa Citizen Action Group v. California Energy Com. (2003) 105 Cal.App.4th 1441, 1445.) " ' "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]" ' " (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
Exhaustion of Administrative Remedies
"When remedies before an administrative forum are available, a party must in general exhaust them before seeking judicial relief. [Citation.] Exhaustion requires 'a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.' [Citation.]" (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 609.) An exception to the requirement of exhaustion of administrative remedies applies when "resort to the administrative process would be futile because it is clear what the agency's decision would be." (Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 222.)
Appellants contend they properly alleged facts showing it would have been futile to pursue administrative remedies. They assert that although they did not appeal the granting of the Modification Application to the Board of Supervisors, they "supplied overwhelming facts" in their complaint to show "that a second round of appeals to the same administrative bodies on the same project by the same parties would have been futile." They state, for example, that their objections to the Modification Application were "met with dis[d]ain" by the Planning Commission and that some of the Planning Commissioners made comments showing "they did not want to hear or re-open an appeal of the project that had already been approved a year earlier." The futility exception, however, "is very narrow and will not apply unless the petitioner can positively state that the administrative agency has declared what its ruling will be in a particular case" (Bollengier v. Doctors Medical Center (1990) 222 Cal.App.3d 1115, 1126, italics added.) "[I]t is not sufficient that a party can show what the agency's ruling would be on a particular issue or defense. Rather, the party must show what the agency's ruling would be „ "on a particular case." ' " (Coachella Valley Mosquito and Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1081.)
Here, although the Modification Application involved the same parties, project and reviewing entity (Board of Supervisors) as the original conditional use authorization, it was a distinct application that raised new issues relating to what appellants described in their complaint as a "substantial modification to the prior conditions of approval." Because the Board of Supervisors never ruled on the issues raised by the Modification Application and did not "declare[] what its ruling [was going to] be" if appellants appealed the granting of the Modification Application, (see Bollengier v. Doctors Medical Center, supra, 222 Cal.App.3d at p. 1126), the trial court correctly determined that the futility exception did not apply.
Appellants assert the trial court nevertheless erred because a demurrer is not an appropriate procedure for determining "the truth of the disputed facts concerning whether further attempts to exhaust administrative remedies would be 'futile.' " A challenge to a complaint based on the failure to exhaust administrative remedies, however, is properly brought by demurrer, even if it involves the determination of whether pursuing administrative remedies would have been futile. (See e.g., Yamaha Motor Corp. v. Superior Court (1987) 195 Cal.App.3d 652, 660; Economic Empowerment Foundation v. Quackenbush (1997) 57 Cal.App.4th 677, 691-692.) "Applicability of the futility exception may be an issue of fact in some cases," but it is not an issue of fact and is properly decided on demurrer where the outcome of an administrative appeal "cannot be regarded as a 'fait accompli' [an accomplished fact] [citation]." (Id. at p. 692.) Because appellants do not and cannot assert that the Board of Supervisor's decision is certain to be adverse, there are no issues of fact for the trial court to determine before deciding the case on demurrer.
Leave to Amend
Appellants contend they should have been granted leave to amend their complaint "to include allegations and causes of action regarding all the impacts of the proposed project," and "to make clear their challenge to all aspects of the conditional use authorization." However, leave to amend "should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law." (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.) Here, the facts surrounding appellants' failure to exhaust administrative remedies are not in dispute, nor are the facts relating to their claimed futility defense. Because no amendment can overcome these defects, the trial court did not abuse its discretion in denying leave to amend. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
DISPOSITION
The trial court's order sustaining respondents' demurrer without leave to amend is affirmed. Respondents shall be awarded their costs on appeal.
McGuiness, P.J. We concur: Pollak, J. Siggins, J.