Case Number: EC061376    Hearing Date: July 25, 2014    Dept: NCD

TENTATIVE RULING
#6
EC 061376
WOLOSKI v. CITY OF SIERRA MADRE

Demurrer to First Amended Complaint

Demurrer is SUSTAINED to third cause of action for estoppel on the ground argued in the reply that the cause of action appears to be subject to the immunity set forth in Government Code § 818.4. See Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 378.

Demurrer to all other causes of action and on all other grounds is OVERRULED.

As the immunity argument was not asserted until the reply memorandum, the demurrer is sustained with one opportunity to amend.

CAUSES OF ACTION: from First Amended Complaint
1) Declaratory Relief
2) Unlawful Taking
3) Estoppel

SUMMARY OF FACTS:
Plaintiff Paul Woloski alleges that plaintiff applied to defendant the City of Sierra Madre for a building permit to construct an addition to his garage, which was considered by the City, corrected and issued. Plaintiff hired a contractor to perform the work, the work was inspected by the City Building Inspector, who signed off on various aspects, but when the project was 70% complete that inspector informed plaintiff for the first time that there was a problem with the setback distance, although the structure was built exactly to the dimensions of the blueprints which had already been approved by the City. Plaintiff alleges that he and his wife have met with Planning and Building Department personnel but the City refuses to allow the construction to resume, to plaintiff’s damage. Plaintiff alleges that the ordinances adopted by the City are unconstitutional, violating the constitutional rights of property owners, whose property is illegally regulated, and unfairly taken without consent, due process or compensation.

ANALYSIS:
Substantive
First Cause of Action—Declaratory Relief and Second Cause of Action—Unlawful Taking
The demurrer initially argues that the claims are barred by the applicable statute of limitations.

The demurrer concedes that the FAC does not allege any dates other than that plaintiffs filed their formal written claim to defendant on March 11, 2013. [Para. 29]. This matter was filed on November 4, 2013. It is not alleged when the claim was rejected, and it is simply not clear when any applicable statute of limitations accrued or ran.

A demurrer on the ground a cause of action is barred by the statute of limitations should be sustained only where the facts alleged on the face of the complaint “clearly and affirmatively” show that the cause of action is barred. It is not enough that the complaint might be barred. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.

The argument is that the matter is subject to Government Code section 65009, as a challenge to the City’s decision to grant a building permit, which is subject to a 90 day limitations period. The matter here is directed to actions which took place after a permit was issued by the City Building Inspector, and does not on its face fall within the purview of the Government Code section 65009. The causes of action are for declaratory relief and just compensation for an alleged taking, based on alleged violations of federal constitutional rights. The opposition makes the argument that the statute of limitations for a section 42 USC 1983 claim for violation of civil rights is the forum state’s statute of limitations for personal injury causes of action, which in California is now two years under CCP § 335.1. See Jones v. Blanas (9th Cir. 2004) 393 F.3d 918, 927. (“For actions under 42 U.S.C. § 1983, courts apply the forum state’s statute of limitations for personal injury actions, along with the forum state’s law regarding tolling, including equitable tolling, except to the extent any of these laws is inconsistent with federal law.”)

Accordingly, it is not clear that any cause of action here is barred by the statute of limitations and the demurrer is overruled on this ground.

The demurrer also argues that the pleading fails to sufficiently allege exhaustion of administrative remedies. The FAC alleges that plaintiff and his wife met with planning and building personnel, have “exhausted their efforts,” and also alleges that a formal written claim has been presented, and that plaintiff “exhausted his administrative remedies.” [Paras. 12, 29]. The argument is basically that this is not true; plaintiff was required to appeal any decision of the building inspector, which he has failed to do. This is not obvious from the pleading, and, as argued in the opposition, this is a matter properly left to a factual determination, as the ordinance relied upon, section 15.02.020, states that a person aggrieved by an interpretation of a building official “may request that such interpretation be reviewed by the city administrator, and then “may file an appeal with the city clerk. [See RFJN, Ex. 4]. This would not appear to be a mandatory exhaustion requirement, and, in any case, there may be facts giving rise to an argument that the exhaustion requirement was excused due to futility. The demurrer points to no authority under which exhaustion must be thoroughly set forth at the pleading stage—this is properly resolved on a fact-based motion involving the submission of evidence, and the demurrer is overruled.

The demurrer then argues that as to these causes of action that plaintiff will be unable to establish a constitutional violation, which is in the nature of a speaking demurrer, and is overruled.

The demurrer also argues that plaintiff’s claims are improper as plaintiff either 1) no longer has a vested interest in the permit which has been suspended, lapsed or been abandoned pursuant to the passage of time, or 2) does not have a ripe claim as there has been no final decision regarding the permit, because it is not alleged that a variance was sought. Again, the argument is based on regulations which permit authorization of extensions of time, which are not eliminated by this pleading, and it does not appear affirmatively from the pleading that there is any bar on procedural grounds, which should be resolved factually and not at the pleading stage.

The demurrer is therefore overruled.

Third Cause of Action—Estoppel
The demurrer argues that there is no such stand-alone claim as estoppel, but that it is a defense. The opposition cites Monterey Sand Co. v. California Coastal Comm. (1987) 191 Cal.App.3d 169 and Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 321, both of which recognized stand-alone claims for “estoppel” pursuant to the vested rights doctrine in the land use context. The reply does not indicate that these cases have been found improper. Defendant cites in the reply the May 20, 2014 case of Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, in which the Second District affirmed a judgment of dismissal after the trial court sustained a demurrer without leave to amend, found that a City in that case was immune from a promissory estoppel claim:
“Assuming arguendo that Gong’s position is correct that no prelitigation claim need be filed when a claim against a public entity is based upon the theory of promissory estoppel, her claim is still barred by section 818.4 which reads as follows: “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.” The fact that Tran, an elected official, is named as a codefendant with City changes nothing. (See Freeny v. City of San Buenaventura, supra, 216 Cal.App.4th at pp. 1346–1347 [“Section 815.3 erects a rule of pleading[;] … [it] does not purport to eliminate all of a public entity’s tort immunities once that entity is alleged to be a codefendant.”].)

In short, the City is immune from appellants’ promissory estoppel cause of action for its failure to approve L&G’s real estate project. Consequently, the trial court did not err in sustaining the demurrer to this cause of action without leave to amend.”
Gong, at 378.

The cause of action in Gong was based on a theory of promissory estoppel, where a permit had not been issued, not the equitable estoppel based on vested rights which is attempted to be pursued here. In any event, the demurrer as to the third cause of action is sustained with leave to amend, possibly in a way that would not be defeated by the statutory immunity.