Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2008-00056666- CU-NP-NC, Robert P. Dahlquist, Judge.
NARES, J.
This action arises out of the City of Oceanside's (City's) denial of a conditional use permit (CUP) to Samber, Inc. (Samber). The City's Planning Commission originally issued the CUP, but the City Council reversed the planning commission's decision. In the case Samber, Inc. v. City of Oceanside (Mar. 28, 2008, D050107) (nonpub. opn.) (Samber I), we held the City acted in excess of its jurisdiction because its review and reversal were untimely and directed the superior court to issue a writ of mandate compelling the City to issue the CUP. (Id. at pp. 31, 39.)
Samber then sued the City for damages, alleging that by refusing to issue the CUP, the City breached a mandatory duty because the planning commission's decision had become final before the City Council attempted to reverse that decision. The City brought a demurrer, which the court sustained without leave to amend, finding (1) the applicable zoning ordinances did not create a mandatory duty that was designed to protect Samber from the damages that it allegedly incurred as a result of the City's actions; and (2) the City was immune from liability.
Samber asserts the court erred in sustaining the City's demurrer because (1) the City violated a mandatory duty expressed in its zoning ordinance that was designed to protect permit applicants from untimely interference with rights vested by planning commission decisions; and (2) the City was not immune from liability. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Planning Commission's Approval of Samber's CUP
Samber contracted with Chevron to operate a commercial fueling facility adjacent to a taxicab repair facility that Samber owns in Oceanside. Samber applied to the City's Planning Department for the CUP as required by the Oceanside Zoning Ordinance (OZO) to develop the facility. The purpose of the OZO is to ensure that the requested conditional uses are consistent with adjoining land use and to protect the health, safety and welfare of its citizens in conformance with the City's General Plan. On March 28, 2005, at a public hearing, the planning commission heard, debated, and approved Samber's application for the CUP by a unanimous vote.
B. City Council's Review of CUP
Article 46 of the OZO provides the procedural requirements for the City Council to review the planning commission's decisions. The decision of the planning commission could be appealed in two ways. An interested person could file an appeal with the City Clerk. Alternatively, a Councilmember could call for a review of the CUP. Article 46 sets a 10-day time limit for initiating a call for review, and the call for review must state the reasons for the review.
On April 5, 2005, an aide to City Councilmember Jack Feller sent an e-mail to an assistant to the City Manager calling for a review of the planning commission's approval of Samber's CUP. The e-mail did not give a reason for the review. A printed copy of the e-mail was delivered to the office of the City Clerk on April 12, 2005. Feller sent a memorandum to the City Clerk the next day, explaining his reasons for the call for review. It is undisputed that the attempted review was untimely.
The City Council decided to meet to consider the review on April 20, 2005. After hearing arguments in favor and against the CUP, the City Council voted in favor of taking the matter under review at a future public hearing.
On August 17, 2005, the City Council conducted the review hearing and voted to deny Samber's CUP. In doing so, the City Council found the fuel site as proposed (1) was inconsistent with the land use element of the City's General Plan and the City's zoning ordinance, (2) was inconsistent with surrounding land uses, (3) was incompatible with public safety policy, (4) was incompatible with the goals of the airport influence area, (5) did not provide a significant benefit to the community, and (6) was detrimental to the health and safety of the community.
The City has filed an unopposed request that we take judicial notice of its resolution denying Samber's CUP. We grant this request for judicial notice.
B. Samber's Petition for Writ of Administrative Mandamus
In November 2005 Samber filed a petition for writ of administrative mandamus in the superior court, seeking to set aside the City Council's decision. Samber asserted that the decision to deny its CUP was invalid because (1) the City Council lacked jurisdiction to conduct the review because Councilmember Feller's call for a review was untimely and invalid, (2) the City Council considered evidence that was not identified as grounds for the review, and (3) there was no substantial evidence to support the City Council's decision. The court denied Samber's petition.
C. Samber's First Appeal
Samber appealed the court's decision denying its petition for writ of mandamus, and this court in Samber I reversed the court's decision, directing the trial court to issue a writ of mandamus compelling the City to grant Samber's CUP. In doing so, we held that the City Council was without jurisdiction to deny the CUP because "no member of the City Council properly initiated a call for review as specified in the relevant zoning ordinance." (Samber I, supra, at pp. 2-3.) We concluded that under the applicable ordinances, in order to be properly initiated, "a call for review─including a statement of reasons for the review─must be filed with the City Clerk before the end of the 10-day appeal period." (Id. at p. 16.) Further, we held that " 'when an administrative agency acts in excess of, or in violation, of the powers conferred upon it, its action thus taken is void.' " (Id. at p. 17.)
We also rejected the City's contention that the applicable zoning ordinance's language that a call for review "shall" be made within the 10-day time period was "directory" as opposed to "mandatory." (Samber I, supra, at p. 21.) We concluded that pursuant to the applicable zoning ordinances, "a decision of the Planning Commission becomes final and effective at the end of the appeal period if no appeal is taken. Thus, if no appeal or call for review is filed within the 10-day period established for appeals of permit decisions like the one at issue here, the Planning Commission's decision becomes effective and is no longer reviewable. The need to appeal or seek review within the relevant time periods is thus mandatory, and the failure to do so deprives the City Council of jurisdiction over the matter." (Id. at pp. 26-27.)
We also noted that considering the time limits to be mandatory as opposed to directory did not defeat the purposes of the ordinance because "[s]uch time limits provide applicants with the assurance that they can safely move forward on a permit or variance that has been granted by the Planning Commission." (Samber I, supra, at p. 27.)
D. Samber's Suit for Money Damages
In July 2008 Samber filed this action for money damages, alleging breach of statutory duty and negligence. The court sustained the City's demurrer with leave to amend as to the negligence cause of action. As to the cause of action alleging breach of a statutory duty, the court found the complaint did not allege an enactment that established a mandatory duty. The court further found that the City's action in denying Samber's CUP application was immune under Government Code sections 820.2 and 818.4. The court further found that a city "is immune from damages from a wrongful exercise of jurisdiction over a permit request, so long as the entity is charged with reviewing permits of the general type involved." However, the court granted Samber leave to amend as to this cause of action as well.
All further statutory references are to the Government Code unless otherwise specified.
Samber filed a first amended complaint stating only a claim for breach of a mandatory duty. Samber alleged that the City had a mandatory duty to issue the CUP when the planning commission's approval became final when no timely call for review was made. Samber alleged that the City Council's attempt to review the issuance of the CUP when it had no jurisdiction to do so, and the City's resulting refusal to issue the CUP, violated the City's mandatory duty to issue after the planning commission's decision making process was complete.
The City again demurred. The City argued that (1) the first amended complaint failed to plead a mandatory duty under section 815.6, (2) the City was immune from liability, and (3) that action was barred by the statute of limitations.
The court sustained the City's demurrer without leave to amend. In doing so, the court found the City's actions in deciding Samber's CUP application were governed by the damages immunities of sections 818.4 and 820.2. The court found that assuming that a mandatory duty exists pursuant to the applicable ordinances or this court's decision in Samber I, the ordinances did not create a duty "to prevent the type of harm suffered by Plaintiff."
This timely appeal follows.
DISCUSSION
I. MANDATORY DUTY
A. Standard of Review
It is a question of law whether an enactment creates a mandatory duty. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499 (Haggis).) Therefore, we review the court's sustaining of the City's demurrer de novo. (Rankin v. Longs Drug Stores California, Inc. (2009) 169 Cal.App.4th 1246, 1252.)
B. Analysis
Section 815.6 provides:
"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." (Italics added.)
A private cause of action lies against a public entity only if the underlying enactment sets forth the elements of liability set out in section 815.6. (Haggis, supra, 22 Cal.4th at pp. 499-500.)
The elements of liability under section 815.6 are as follows: "First and foremost, application of section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken. [Citation.] It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion." (Haggis, supra, 22 Cal.4th at p. 498.) Courts have construed this first prong rather strictly, finding a mandatory duty only if the enactment "affirmatively imposes the duty and provides implementing guidelines." (O'Toole v. Superior Court (2006) 140 Cal.App.4th 488, 510; Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1240 ["If rules and guidelines for the implementation of an alleged mandatory duty are not set forth in an otherwise prohibitory statute, it cannot create a mandatory duty."].)
"Second, but equally important, section 815.6 requires that the mandatory duty be 'designed' to protect against the particular kind of injury the plaintiff suffered. The plaintiff must show the injury is ' "one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty." ' [Citation.] Our inquiry in this regard goes to the legislative purpose of imposing the duty. That the enactment 'confers some benefit' on the class to which plaintiff belongs is not enough; if the benefit is 'incidental' to the enactment's protective purpose, the enactment cannot serve as a predicate for liability under section 815.6." (Haggis, supra, 22 Cal.4th at p. 499.)
Finally, the breach of the mandatory duty must be a proximate cause of the plaintiff's injury. (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1458.)
Samber describes the alleged mandatory duty at issue here as follows: "[The City] had a mandatory and ministerial duty to issue the CUP when the decision making process was complete...." As to the second element of the section 815.6 test for liability, Samber asserts the 10-day "time limit on review was designed to protect applicants like Samber from delay and obstruction of their projects by untimely government acts." Finally, Samber asserts that delay caused its damages.
We conclude that, assuming there was a mandatory duty to issue the CUP once the 10-day period for calling for a review expired, it was not the type of duty that was intended to prevent the harm Samber claims to have suffered. As our high court has stated, "That the enactment 'confers some benefit' on the class to which plaintiff belongs is not enough; if the benefit is 'incidental' to the enactment's protective purpose, the enactment cannot serve as a predicate for liability under section 815.6." (Haggis, supra, 22 Cal.4th at p. 499.)
The purpose of the OZO is "to protect and promote the public health, safety, and general welfare" in accordance with the general purpose of the ordinance, "and to implement the policies of the City of Oceanside General Plan...." (OZO, art. 1, § 130.) Indeed, we noted this overall intent of the OZO in our decision in Samber I. (Samber I, supra, at p. 38.)
The purpose behind the City ordinances regulating use permits is specified in article 41, section 4101 of the OZO: "This article provides the flexibility in application of land use and development regulations necessary to achieve the purposes of this ordinance.... Use permits are required for use classifications typically having unusual site development features or operating characteristics requiring special consideration so that they be designed, located, and operated compatibly with uses on adjoining properties and in the surrounding area."
The purpose of appeals is stated as "[t]o avoid results inconsistent with the purposes of this ordinance." (OZO, art. 46, § 4601(A).) The purpose of calls for review is stated as follows: "As an additional safeguard to avoid results inconsistent with the purpose of this ordinance, decisions of the Planning Commission may be called up for review by the City Council." (OZO, art. 46, § 4601(B).)
Samber does not point to anything in the OZO indicating that the intent behind the 10-day period to call for review, and the alleged mandatory duty to issue a CUP after that time period expires, was specifically intended to protect against the damages it allegedly suffered. Rather, the OZO, taken as a whole, states that it is intended to benefit the overall health, safety and welfare of residents of the City, not a particular individual or entity such as Samber. We cannot look at the 10-day time period for review in a vacuum, but must read that provision in context of the intent of OZO as a whole: "It is well established that statutes must be given a reasonable construction that conforms to the apparent purpose and intention of the law makers [citations], and the various parts of the statutory enactment must be harmonized by considering the particular clause in the context of the whole statute." (Nunn v. State of California (1984) 35 Cal.3d 616, 624-625.) Any benefit Samber received as a result of the procedures for appeal can only be described as "incidental" and does not suffice to satisfy the second element of the test for liability under section 815.6.
Haggis, supra, 22 Cal.4th 490 is instructive. Haggis involved a claim that a city was liable for failing to comply with a local ordinance requiring the city to record a certificate when a landowner is given a notice of a substandard condition on the owner's property. The plaintiffs in Haggis claimed that the city failed to record a certificate that it had found substandard property subsequently purchased by Mr. Haggis and that Mr. Haggis would not have bought the property if the certificate had been recorded and would not have suffered landslide damages his property suffered during an earthquake. The Haggis court held that while the city was under a mandatory duty to record the certificate, no liability existed pursuant to section 815.6. In doing so, the high court agreed with the defendant City of Los Angeles' argument that the recordation requirement was designed to benefit the general public as a whole rather than as protection against economic losses by purchasers: "True, the recordation also may provide warning to prospective purchasers and lenders... but that effect is aptly described as 'incidental'.... Municipal Code section 91.0308(d) exists to protect the public against unsafe building and land conditions, not to regulate the marketing of real estate." (Haggis, supra, 22 Cal.4th at p. 503.)
Likewise in this case, the OZO's permitting process was designed to benefit the City and its residents as a whole, not to specifically protect against the particular type of injury allegedly suffered by Samber.
Samber argues that the issue of whether the City violated a mandatory duty was determined against the City in Samber I. Thus, posits Samber, this issue must be given collateral estoppel effect on this appeal. This contention is unavailing.
The issue before this court in Samber I was whether the 10-day time period for calls for review was mandatory or merely "directory, " and thus whether the City Council had jurisdiction to deny Samber's CUP. (Samber I, supra, at pp. 2-3, 10-11.) Nowhere in that opinion did we address the applicability of section 815.6 and whether Samber could meet the elements of a claim under that section. A prior determination by a tribunal will only be given collateral estoppel effect where "the issue is identical to that decided in a former proceeding, " "the issue was actually litigated, " and it was "necessarily decided.' " (McCutchen v. City of Montclair (1999) 73 Cal.App.4th 1138, 1144.)
We did state in Samber I that the review time limits "provide applicants with the assurance that they can safely move forward on a permit or variance that has been granted by the Planning Commission." (Samber I, supra, at p. 27.) However, that statement was made in support of our holding that the 10-day time period was mandatory, not merely directory. (Ibid.) It did not purport to address the City's liability under section 815.6. Again, any benefit Samber received individually as a result of the time limit on calls for review is only incidental to the overall purpose of the OZO.
II. IMMUNITY
Samber also asserts the court erred in finding the City was immune from liability under section 818.4. We reject this contention.
Section 818.4 provides: "A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked." (Italics added.)
Samber asserts that this section does not apply because it only applies to "discretionary" decisions regarding permits, and here the City Council acted in excess of its jurisdiction and had a mandatory and "ministerial" duty to issue the CUP after the Planning Commission's decision became final. However, this very argument was rejected by the California Supreme Court in State of California v. Superior Court (Veta)(1974) 12 Cal.3d 237 (Veta).
In Veta, a public entity (the South Coast Regional Commission) granted a permit to develop property, which was overturned on appeal by the California Coastal Zone Conservation Commission (State Commission). The developer then filed a petition for writ of mandate seeking to set aside the State Commission's decision pursuant to Code of Civil Procedure section 1094.5 and seeking damages under section 1095 of that code. (Veta, supra, 12 Cal.3d at p. 244.) The first cause of action alleged, among other things, that: (1) after the permit was initially granted, various persons and groups appealed the decision; (2) the purported appeals were invalid because they were not timely filed, and the appealing parties had no standing and had failed to exhaust their administrative remedies; (3) for those reasons the State Commission had no jurisdiction to hear the appeals; and (4) the State Commission failed to afford the plaintiff a fair hearing. (Id. at pp. 244-245.)
The State Commission demurred to the plaintiff's claim for damages on the ground that it had immunity under Government Code sections 818.4 and 821.2, but the trial court overruled the demurrer. In reversing this decision, our Supreme Court first stated that the relevant statute (the California Coastal Zone Conservation Act) authorized the State Commission to determine whether a permit should be issued. (Veta, supra, 12 Cal.3d at p. 245.) The court then concluded that damages were not available, even if the State Commission erroneously assumed jurisdiction over the appeal and treated the plaintiff unfairly during the hearing, because of the immunity granted by section 818.4 to a public entity from damages resulting from the grant or denial of a permit. (Veta, supra, at pp. 245-246.)
Veta is controlling. Like the State Commission in that case, the City Council was statutorily authorized to determine whether permits, such as the one submitted by Samber, should issue. (Veta, supra, 12 Cal.3d at p. 245.) As in Veta, the City Council originally had jurisdiction to review the CUP, but lost that jurisdiction when it, by a procedural error, failed to call for review in a timely fashion. Despite losing jurisdiction to entertain a review of the CUP, the City, like the public entity in Veta, was immune from liability under section 818.4.
In asserting that the City is not immune, Samber relies on Morris v. County of Marin (1977) 18 Cal.3d 901 (Morris), disapproved on other grounds in Caldwell v. Montoya (1995) 10 Cal.4th 972, 987, footnote 8. However, Morris does not assist Samber.
In Morris, the County of Marin issued a building permit authorizing certain construction work. Contrary to the requirements of Labor Code section 3800, the County did not require the permitee to file a "certificate of insurance" establishing that he had obtained a valid policy of workers' compensation insurance. The permittee had no insurance. (Morris, supra, 18 Cal.3d at p. 905.)
About a month after the permit was issued, Richard Morris fell from a platform in the course and scope of his employment for the permittee, suffering severe injuries. If insurance had been provided as required, Morris would have been entitled to recover more than $200,000 in workers' compensation benefits. Morris sued the County, claiming the County's failure to fulfill its statutory obligation proximately caused his uncompensated injuries and that, therefore, the County should be liable for his damages. (Morris, supra, 18 Cal.3d at p. 905.) The trial court sustained the County's demurrer without leave to amend, accepting the County's argument that it was immune under sections 818.2 (failure to enforce any law) and 818.4 (failure to issue or revoke a license) of the Government Code. (Morris, supra, at p. 905.) The Supreme Court reversed, holding Labor Code section 3800 created a mandatory duty within the meaning of Government Code section 815.6 on the part of the County to require each applicant for a building permit carry worker's compensation insurance, and thus the County was not immune from liability. (Morris, supra, at pp. 904, 910-911.)
However, critical to our case here, in Morris the public entity conceded "the requirements of Labor Code section 3800 were intended to protect against the very risk of uncompensated injury suffered by [Morris]. " (Morris, supra, 18 Cal.3d at p. 907.) As we have explained, ante, the OZO provisions applicable to use permits were not intended to protect against the particular type of injuries allegedly suffered by Samber.
Further, in Morris our high court explained that section 818.4's "language explicitly limits immunity to instances 'where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such [permit] should be issued [or] denied....' " (Morris, supra, 18 Cal.3d at p. 912.) Likewise, in our case under the OZO, the City was authorized by enactment to grant or deny the CUP. It was only as a result of a procedural error that the City lost jurisdiction to deny the CUP. (See Veta, supra, 12 Cal.3d at p. 245.)
III. MANDAMUS DAMAGES
In a one paragraph argument, Samber asserts that under Code of Civil Procedure section 1095, it has the right to recover damages under traditional mandamus. However, as Samber concedes, such mandamus damages are not available where a public entity is subject to a statutory immunity. (Veta, supra, 12 Cal.3d at p. 246.)
DISPOSITION
The judgment is affirmed. Respondent City shall recover its costs on appeal.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.