Case Name: Blomquist, et al. v. Santa Clara County, et al.
Case No.: 16-CV-304201

This mandamus action initiated by petitioners Jennifer and Michael Blomquist (collectively, “Petitioners”), who are self-represented, arises from the installation of a new water tank located adjacent to their property. The action is brought against respondents Santa Clara County (“County”), Kirk Girard (“Girard”), Mike Wasserman (“Wasserman”), Robert Eastwood (“Eastwood”), Bill Shoe, Darrell Wong (“Wong”), Carolyn Walsh (“Walsh”), MacNair Bala (“Bala”), Mark Ruffing (“Ruffing”), Michael Rossi (“Rossi”), Shelly Theis (“Theis”), Darrin Lee (“Lee”), Larry Stone (collectively, “Respondents”), and Jeff Smith. Petitioners also name San Jose Water Company and SJW Group (collectively, “SJW”) as real parties in interest.

According to the allegations of the third amended petition for writ of mandamus (“TAP”), Petitioners own certain property located on La Mirada Road in Los Gatos, California. Petitioners’ recorded road has an easement for public use and access. In 2012, SJW purchased a single family residence on La Mirada Road (“SFR Parcel”) to facilitate its capital improvement project, which involved constructing two new water pumps for a new water tank (“New Tank”). The New Tank could not fit on the SFR Parcel, so Respondents approved its placement on three other parcels of land as well Petitioners’ private road. Respondents could have placed the New Tank elsewhere, but chose to place it in a State Responsibility Area (“SRA”), Very High Fire Hazard Severity Zone, Residential Hillside Zone, and Urban Service Area. Based on the easement and zoning restrictions, Petitioners should have placed the New Tank elsewhere. But Respondents built it there to avoid “SRA Fire Safe Regulations,” which “attach for new roads, use permits and new parcel maps.”

As Petitioners allege, there are numerous problems with the New Tank, including noncompliant height, lack of story poles, and noncompliant setbacks. In addition, it prohibits emergency access/egress on La Mirada Road. In building the New Tank, SJW also made numerous errors, including failing to perform required inspections, file required reports, file a new map parcel reflecting the presence of the New Tank, and act in accordance with a 1955 Board of Supervisors resolution

SJW also allegedly failed to adhere to certain California Environmental Quality Act (“CEQA”) requirements. In connection with the construction project, SJW prepared a Draft Mitigated Negative Declaration (“Draft MND”). While that document’s cover page states it was prepared in February 2014, the document itself is unsigned and undated. It is also “grossly deficient and does not address unpermitted paving and drainage to Pump Station Tank Parcel (allegedly for off street parking requirements) or SRA Fire Safe Regulations, in particular Emergency Access / Egress requirements in a State Responsibility Area (SRA), General Plans for COUNTY / Los Gatos, inter alia.” (TAP, ¶ 101.) Although the Draft MND states an official mitigated negative declaration will be prepared, there is no evidence that was done. The Draft MND is also inadequate because “[a] Draft MND by SJW is not a legally acceptable evaluation for [CEQA] especially an unsigned / undated Draft MND.” (Id. at ¶ 102.) An environmental impact report should have been issued instead.

In addition, Petitioners allege that Frank Du of SJW signed an affidavit on February 3, 2014 stating he witnessed the posting of a notice of intent to adopt a mitigated negative declaration. But SJW does not have authority to witness the posting of a notice of intent; that should be done by a lead agency. The legality of the affidavit is therefore questionable. The notice of intent is also problematic because no residents of La Mirada Road saw it, even though it was supposed to have been posted on that road.

Petitioners allege that the notices of determination prepared in compliance with CEQA are prepared by the California Office of Planning and Research. All items the NOD identifies as reviewed were inadequately reviewed by SJW in the Draft MND. The NOD is also inconsistent with the Draft MND because they list different reviewing agencies.

After reciting the above facts, the TAP has a section entitled “law and argument” in which Petitioners assert: (1) Respondents lack jurisdiction to exempt SJW from the law; (2) Respondents must comply with the Subdivision Map Act (the “Act”); (3) due process is required under the Act; (4) Respondents did not file a new parcel map required under the Act; (5) the requirements set forth by the Act may be enforced by imposing criminal sanctions; (6) Respondents must make SJW comply with SRA Fire Safe Regulations; (7) the Court lacks discretional authority to not issue the writ; and (8) a writ must issue for Smith “or Delegate” to provide notice of SJW’s violations, including holding a hearing as he is an executive of an administrative agency.

Petitioners request the following relief: (1) “Notice SJW of violations and hold related hearing. Notice for hearing and listed violations to comply with Government Code Title 7 Planning and Land Use, in particular Chapter 7 Enforcement and Judicial Review Govt. C. § 66499.36 and § 66412.6. RESPONDENTS to also file notice and list of violations with this Court so that PETITIONERS, neighbors, public and CPUC’s Office of Raye Payer Advocates (“ORA”) may attend a hearing for SJW’s CIP” (Prayer, ¶ I(A)); (2) “Smith to personally oversee / delegate compliance with orders and to terminate anyone who does not comply with Court’s orders as per Execute Smith’s direction. Smith’s authority and obligations for relief is provided in COUNTY Charter Article IV § 404, inter alia” (id. at ¶ I(B)); (3) “RESPONDENTS to be provided opportunity to present evidence, protect property, safety and environment at administrative hearing. Once legal issues are finally addressed in administrative hearing(s) and administrative record is made available by RESPONDENTS; remaining issues below in § II (if necessary) to proceed according to noticed motion per C.R.C. 3.1300 et. seq.” (id. at ¶ I(C)); and (4) “In the alternative skip directly section II” (id. at ¶ I(D)).

Section II requests: (1) SJW’s compliance with SRA Fire Safe Regulations Title 14 CCR § 1270.00 et. seq., including emergency access / egress; (2) SJW’s compliance with “General Plans (Los Gatos or County as required by law/facts)”; (3) SJW’s compliance with the Act, including filing “new parcel map(s) reflecting new location, width, underlying utilizes, sewer and drainage for entirety of La Mirada once plans are in compliance with II. A&B” (Prayer, ¶ II(C)); (4) SJW’s compliance with “all laws for CIP, including issuance of permit for unpermitted paving and drainage to Pump Station and new impervious surfaces for SRA Fire Safe Regulations, Related laws involving CEQA, general plans of Los Gatos and local ordinances to apply” (id. at ¶ II(D)); (5) “[CEQA] Environmental Impact Report (“EIR”) to be provided by Dept of Fish and Wildlife or CalTrans” (id. at ¶ II(E)); (6) “SJW compliance with SRA Fire Safe Regulations defensibility – remove volunteer trees/shrubs (flash fuels) at Pump Station within 100’ (currently 35’) of PETITIONERS’ Home” (id. at ¶ II(F)); (7) SJW’s compliance with fence setbacks and trees within La Mirada (roadway) which also violates SRA Fire Safe Regulations – emergency access / egress” (id. at ¶ II(G)); and (8) “[a]dopt resolution for La Mirada to become a County maintained road once SJW completes work in compliance with all relevant laws, including installation of storm drains and sewers” (id. at ¶ II(I)).

Respondents and SJW presently separately demur to the TAP. Petitioners filed a single opposition to both demurrers.

I. Meet and Confer

As an initial matter, Petitioners argue neither Respondents nor SJW met and conferred prior to filing the demurrers, suggesting the demurrers should be overruled on that basis.

Prior to filing a demurrer, the demurring party must meet and confer with the party who filed the challenged pleading to determine whether an agreement can be reached that would resolve the objections to the pleading. (Code Civ. Proc., § 430.41, subd. (a).) If an agreement cannot be reached and a demurrer is filed, the demurring party must file a declaration stating the means by which he or she met and conferred with the party who filed the pleading. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Here, Respondents did not file any declaration in support of their demurrer. As such, the Court cannot ascertain whether Respondents attempted to meet and confer or did not engage in any such efforts. In either case, Respondents failed to file the required declaration. For its part, SJW did file a declaration. However, its attorney stated therein that his client did not meet and confer because “[g]iven the history of this case, [he] determined that discussing the pending issues with Petitioners after [their] frequent prior communications would not have resolved any of the issues between the parties so as to obviate the need to file a demurrer.” (Schwartz Decl., ¶ 2.) While the Court understands the relationship between the parties is contentious, that does not excuse SJW from the meet and confer requirement; the statute does not contain a provision permitting parties to forego the meet and confer process.

With that said, while the demurring parties failed to comply with the statute, the Court will reach the merits as a demurrer may not be overruled for insufficient meet and confer efforts. (See Code Civ. Proc., § 430.41, subd. (a)(4).)

II. Respondents’ Demurrer

This is a traditional mandamus proceeding. A traditional writ of mandate will lie to “compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station” (Code Civ. Proc., § 1085 (“Section 1085”)) “where there is not a plain, speedy, and adequate remedy, in the ordinary course of law” (Code Civ. Proc., § 1086 (“Section 1086”)). The general rules of pleading and practice in civil actions generally apply to mandamus proceedings. (Code Civ. Proc., § 1109.) Therefore, a demurrer can be brought against a petition for writ of mandate. (See, e.g., Gong v. City of Fremont (1967) 250 Cal.App.2d 568, 571.)

Respondents demur on the grounds of uncertainty and failure to state sufficient facts to constitute a cause of action. Because Respondents’ demurrer on the ground of uncertainty is well-taken, it is unnecessary to evaluate the merits of the demurrer to the extent it is brought on the ground of failure to state sufficient facts.

Uncertainty is typically sustained where the pleading is so unintelligible and uncertain the responding party cannot reasonably respond or recognize the claims against it. (See Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) “A special demurrer should not be sustained if the allegations are sufficiently clear to apprise the defendant of the issues that must be met. . . .” (Gonzales v. State of California (1977) 68 Cal.App.3d 621, 631.)

For context, Respondents previously demurred to the second amended petition (“SAP”) on the ground of uncertainty, arguing the pleading was uncertain because Petitioners did not clearly identify each cause of action asserted therein as required under California Rules of Court, rule 2.112, did not explain what statutes create liability for or a private right of action against them, and was pleaded in generalities and legal conclusions without sufficient facts to apprise them of their alleged statutory violations or connect individual Respondents with alleged statutory violations.
The Court found the first two arguments to be meritless. Rule 2.112 provides that “[e]ach separately stated cause of action, count, or defense must specifically state: (1) Its number (e.g., ‘first cause of action’); (2) Its nature (e.g., ‘for fraud’); (3) The party asserting it if more than one party is represented on the pleading (e.g., ‘by plaintiff Jones’); and (4) The party or parties to whom it is directed (e.g., ‘against defendant Smith’).” (Cal. Rules of Court, rule 2.112.) The Court held the SAP did not violate that rule because it was not a complaint asserting liability with attendant causes of action; it was a petition for writ of mandate. The Court further observed there was otherwise nothing in the SAP indicating Petitioners intended to assert any causes of action, such as labels representing the assertion of a cause of action. Respondents’ second argument was similarly misplaced because the SAP did not seek to impose liability. The Court observed a petitioner may challenge the enforcement of a statute by filing a petition for writ of mandate in accordance with Sections 1085 and 1086, even if he or she did not have an enforceable private right of action. (See Mission Hosp. Regional Medical Center v. Shewry (2008) 168 Cal.App.4th 460, 479.)

In contrast, the Court found Respondents’ third argument meritorious and sustained the demurrer on that basis. The Court reasoned the SAP was “ambiguous, uncertain, and incomprehensible” because the extraneous facts and legal citations made it impossible to ascertain what facts or law form a basis of Petitioners’ claim. The Court granted leave to amend, stating as follows:
Leave to amend is granted solely to attempt to state a claim for mandamus relief. Petitioners may not amend the pleading in an attempt to state any other causes of action for liability, damages, or other relief against Respondents, and shall remove all extraneous allegations and references to law that do not support a grant of writ of mandate for the facts in this case. Any amended petition must specify if it is brought pursuant to the provisions of Code of Civil Procedures section 1085 or 1094.5, and must include a clearly stated prayer for relief. The Court is not confident that Plaintiffs will be able to state a valid claim in this case, and the Court advises Petitioners that this is their last opportunity: if they file an amended pleading in response to this Order and Respondents successfully demur thereto on any ground, including uncertainty, no further leave to amend will be granted. (See Code Civ. Proc., § 430.41, subd. (e)(1).)

Here, Respondents advance the same arguments as they did in connection with their demurrer to the SAP. Their first two arguments are unpersuasive here for the same reasons described above, namely that the TAP does not seek to impose liability, seek damages, or assert attendant causes of action. Rather, it seeks a writ of mandate. Consequently, these arguments do not support sustaining the demurrer for uncertainty.

With that said, the Court once again finds Respondents’ third argument persuasive. Although the Court explicitly ordered Petitioners to remove extraneous allegations and citations to law, they included new, unconnected allegations in the TAP. As one of many examples, the TAP now alleges that “[i]t has been discovered that exemptions were provided for SJW’s [project] under the guise that CA Public Utility Commission (“CPUC”) has exclusive jurisdiction over [project] . . . . PETITIONERS have made numerous inquiries of CPUC. CPUC officials stated they did not have jurisdiction for any part of La Mirada/ Overlook CIP. (Petition will also be used as complaint w/ CPUC, Santa Clara County D.A, Grand Jury, et. al)” (TAP, p. 3:15-19.) Petitioners clearly consider this to be important because, in their opposition to the demurrer, they state “[i]t was just discovered that SJW is in contempt of orders from the California Public Utilities Commission (“CPUC”). CPUC denied SJW’s request to expand capacity at the Overlook Station as well as recoup costs from SJW’s customers.” (Opp., p. 3:21-22.) However, it is totally unclear what CPUC has to do with any relief sought by Petitioners or how it is otherwise connected to their claim.

By way of another example, the TAP now alludes to the possibility of naming the Board of Supervisors as respondents. Petitioners allege there is a “[p]ossible need to summons all board of supervisors” because “[d]uring the course of proceedings CA Streets and Highway code § 8300 et. seq. was found . . . . [¶] [which] addresses allegedly unlawful vacation of La Mirada.” (TAP, ¶¶ 81-82.) They then plead that they “will require leave to file amended Petition by adding COUNTY Board of Supervisors or delegated public officer/ employee who appears to have failed to perform delegated responsibilities and remind Board of Supervisors of need for resolution before [project] permits were issued. Delegated officer/employee is not known and RESPONDENTS fail to advise who or if BOS delegated authority.” (TAP, ¶ 87) It is not apparent how this is related to the relief sought.

Additionally, while Petitioners maintain they do not seek to hold any party liable and assert no cause of action, they allude to various breaches of fiduciary duty purportedly committed by Respondents (TAP, ¶ 59), allege Wasserman was engaged in self-dealing (id. at ¶ 52), and state they “may request leave or pursue separate claims for fraud, waste and abuse of public funds by RESPONDENTs defense of SJW’s non-compliance with related laws” and the Clean Water Act (id. at ¶ 42). Petitioners’ repeated mention of adding new causes of action against new parties in the future renders the pleading further uncertain, particularly as they maintain the TAP does not seek to hold any party liable or assert any cause of action. The pleading is otherwise disorganized and difficult to follow.

Accordingly, the TAP is still uncertain, ambiguous, and incomprehensible. Petitioners’ two arguments in opposition do not support a contrary conclusion.

Petitioners first assert Respondents may not demur on the ground of uncertainty because this action should be classified as a limited civil case and a respondent in a limited civil case may not demur on that ground (see Code Civ. Proc., § 92, subd. (c)). A limited civil case is one in which the demand or the value of the property in controversy is equal to $25,000.00 or less. (Code Civ. Proc., § 86.) “Whether an action qualifies as a limited or unlimited civil action is determined initially from the prayer or demand for relief in the plaintiff’s complaint. Once classified as limited or unlimited that classification normally continues throughout the litigation. If, however, a matter has been designated as an unlimited action, and yet the amount of controversy is $25,000 or less, the statutory scheme authorizes ‘reclassification’ of the case as a ‘limited’ action . . . . [Citations].” (Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 274.) A petitioner or respondent may move to reclassify a case, or the court may do so on its own motion. (Code Civ. Proc., § 403.040, subd. (a).)

Here, the case was originally classified as an unlimited civil case and Petitioners suggest the court should reclassify it as a limited civil case on its own motion. It would be improper to entertain reclassifying this case now; a court contemplating ordering reclassification on its own motion must provide notice to the parties and each a sufficient opportunity to respond and argue why reclassification should or should not be ordered. (Stern v. Superior Court (2003) 105 Cal.App.4th 223, 230.) No notice has been provided here, thus prejudicing Respondents. Petitioners do not otherwise advance any precise reason why reclassification is warranted and the Court does not believe it is. Therefore, the Court rejects any request to order reclassification on its own motion.

Petitioners also appear to attempt to advance an argument regarding the primary jurisdiction doctrine. Petitioners first cite the following authority: “‘Primary jurisdiction,’ on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.” (U.S. v. Western Pac. R. Co. (1956) 352 U.S. 59, 63–64 (“Western Pacific”).) Petitioners then state they are without legal access to their land and may lose their home. They finally write “Respondents are required to notice SJW of unlawful subdivision and hold mandatory hearings – CA Govt. C. § 66499.36 within 60 days.” (Opp., p. 6:11-12.)

While quite unclear, it appears Petitioners intend to assert this case must be stayed while an administrative hearing is conducted under Government Code section 66499.36, which states that whenever a local agency knows that real property has been impermissibly divided, it shall send the property owner a notice of violation specifying a time, date, and place for a meeting at which the owner may present evidence as to why there has not been an improper property division. Petitioners’ argument is entirely unsubstantiated and undeveloped. When the primary jurisdiction doctrine is implicated, the reviewing court must determine whether a case should be stayed on a case-by-case basis. (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 391.) In making that determination, the court considers whether the administrative agency has a particular expertise that would be helpful to the court and an interest in uniformly applying the subject regulations. (Ibid.) Petitioners do not discuss any of these considerations whatsoever; they do not actually discuss the doctrine or its applications to the present facts. They simply cite the Government Code without discussion.

It does not appear that primary jurisdiction applies here. First, it is typically a defense raised by a respondent by demurrer or motion to stay. (See Lee v. Interinsurance Exchange (1996) 50 Cal.App.4th 694, 707.) It makes no sense that a petitioner should wish to stay his or her own case. In addition, the doctrine is only implicated when there is an issue pending before an administrative agency. (Wise v. Pacific Gas & Electric Co. (1999) 77 Cal.App.4th 287, 296.) The TAP does not allege any issue is pending, but rather that the administrative agencies have refused to hold certain meetings. The primary doctrine therefore does not apply here in the first instance, and the Court has repeatedly denied Petitioners’ requests to require that administrative hearings be held.

Petitioners’ argument is additionally problematic because it does not relate to the certainty of the pleading. It is not at all apparent how the doctrine of primary jurisdiction relates to a demurrer based on uncertainty. As stated above, the doctrine concerns whether an action should be stayed while an administrative agency determines certain issues. (See Farmers Ins. Exchange v. Superior Court, supra, 2 Cal.4th at p. 391.) Petitioners’ argument is unresponsive to Respondents’ contentions and unconnected to any argument.

As such, Petitioners have not established this case should be stayed pursuant to the primary jurisdiction doctrine or that the pleading is not uncertain because of it.

In sum, the demurrer on the ground of uncertainty is SUSTAINED without leave to amend. Petitioners have had two prior opportunities to clarify their pleading, remove extraneous allegations and law, and inform Respondents of the issues they must meet. As articulated above, the Court’s prior ruling cautioned Petitioners that if they failed to adequately amend the pleading and remove all extraneous allegations, the next demurrer would be sustained without leave to amend. Because the TAP is still uncertain, ambiguous, and incomprehensible for the reasons stated above, leave to amend is not warranted.

III. SJW’s Demurrer

SJW demurs to the TAP on the grounds of uncertainty and failure to state sufficient facts to constitute a cause of action. In connection with the uncertainty demurrer, SJW advances predominantly the same arguments as Respondents, particularly that the pleading is unartful and contains numerous extraneous allegations thereby rendering it impossible to determine what is actually being asserted against it. For the same reasons stated above, the TAP is susceptible to demurrer because it is incomprehensible. The allegations are ambiguous and contain extraneous matters; it cannot be determined whether they form a basis for seeking the requested mandamus relief. Consequently, the demurrer to the TAP on the ground of uncertainty is SUSTAINED without leave to amend. It is therefore unnecessary to address the demurrer to the extent it is brought on the ground of failure to state sufficient facts.

After service of notice of entry of the order signed by the Court, and after compliance with Rule 3.1342, Respondents and Real Party in Interest shall submit proposed judgments either approved as to form or with proof of compliance with Rules of Court, Rule 3.1312.

The Court shall prepare the Order.