STERLINGPARK, L.P., ET AL. v. CITY OF PALO ALTO

Case No.:  1-09-CV-154134

DATE:  August 7, 2014

TIME:  9:00 a.m.

DEPT.: 3

 

As an initial matter the Court notes that Plaintiffs concede that their 4^th cause of action for Injunctive Relief is now moot as all building approvals for the subject project have been issued.  See Plaintiffs’ Points & Authorities at Page 11, footnote no. 7.

 

The Request for Judicial Notice submitted by Defendant City of Palo Alto (“City”) with its Opposition is GRANTED as follows.  Notice of the City’s Exhibits 1, 27 and 28 is granted pursuant to Evid. Code §452(b).   Notice of Exhibits 2 and 21 is granted pursuant to Evid. Code §452(c).  See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4^th 1356, 1367, fn. 8 (recorded deeds and similar instruments are subject to judicial notice under Evidence Code section 452, subdivisions (c) and/or (h)); see also Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4^th 1106, 1117 (judicial notice of a recorded deed, or similar document, and legal effect thereof.)  Notice of Exhibits 10 and 11 is granted pursuant to Evid. Code §452(c).  See Evans v. City of Berkeley (2006) 38 Cal.4^th 1, 9, fn. 5 (taking judicial notice of city council meeting minutes.)

 

The Request for Judicial Notice by Plaintiffs submitted with their Reply is DENIED.  A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court.  Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal App 4^th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal 4^th 415, 422 fn. 2.  The papers filed by either side relating to Plaintiffs’ 2010 motion are irrelevant here as that motion was never ruled on by the Court.

 

The party moving for summary judgment bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4^th 826, 850.  A motion for summary adjudication in the alternative shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.  CCP §437c(f)(1).  See McClasky v. California State Auto. Ass’n (2010) 189 Cal App 4^th 947, 975 (“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”)

 

Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment.  CCP §437c(p)(1); See Hunter v. Pacific Mechanical Corp. (1995) 37 Cal App 4^th 1282, 1287, disapproved on other grounds in Aguilar.  This means that plaintiffs who bear the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable finder of fact to find any underlying material fact more likely than not.  “Otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.”  Aguilar, supra at 851; LLP Mortgage v. Bizar (2005) 126 Cal App 4^th 773, 776 (burden is on plaintiff to persuade court there is no triable issue of material fact).

 

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.”  Johnson v. American Standard, Inc. (2008) 43 Cal 4^th 56, 64, parentheses added.  While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized.  Saelzler v. Advanced Group 400 (2001) 25 Cal 4^th 763, 768.

 

Plaintiff’s Motion for Summary Judgment is DENIED.  The City has shown, primarily through its Exhibit no. 6 (a March 23, 2006 letter sent by the City to Scott Ward of Plaintiff Class Communities, Inc.) that triable issues of material fact remain as to whether Plaintiffs’ entire action is time barred pursuant to Gov. Code §66020.

 

Gov. Code §66020(d) states that a protest of fees, exactions, etc. imposed on a project “shall” be filed at the time of approval of the development or within 90 days of the imposition of fees or other exactions.  It also states that the local agency “shall” provide written notice to the applicant of a statement of the fees, exactions, etc. imposed and notification that the 90-day period to protest has begun.  This notice shall be provided at the time of project approval or at the time of the imposition of fees.  Subdivision (g) states that for purposes of §66020 project approval occurs when the tentative parcel map is approved, which here may have been in Nov. 2006 after Ex. 6 was sent to Plaintiffs.  But subdivision (h) states that for purposes of §66020 the imposition of fees, dedications or other exactions occurs when they are imposed on a development.  Ex. 6 states that the project was approved on March 21, 2006 and expressly states that it is providing notice of the fees and the dedications and exactions being imposed.  It further states that “development impact fees” and “transportation impact fees” are required to be paid before any building permit will issue and those fees “are estimated to be $581,042.00.”  It also expressly states that it constitutes official notice that the time period to file a protest to these fees, dedications and exactions under §66020 has begun. This may have been enough to trigger subdivision (d)’s 90 and 180 day limitation periods by way of subdivision (h).

 

At the very least the City’s Ex. 6 contradicts Plaintiffs’ argument in their motion that the City never sent anything that qualified as the statutory notice beginning the limitations period for timely protests and challenges under Gov. Code §66020.  Given that Plaintiffs admit that they did not file a formal written protest until July 23, 2009 and only filed their Complaint on Oct. 5, 2009, the existence of a purported notice dated March 23, 2006 presents a triable issue as to whether Plaintiffs’ entire action is time-barred under the statute the Supreme Court has stated governs the case.  Plaintiffs cannot meet their burden as the moving party to show a complete absence of triable issues of material fact by changing theories in the Reply and arguing for the first time that the notice they previously claimed did not exist is instead too defective to trigger the statute of limitations.

 

Summary adjudication in the alternative of Plaintiffs’ “issue 6” (asserting that the City’s statute of limitations affirmative defense “has no merit”) is DENIED for the same reason.

 

Adjudication of Plaintiffs’ other “issues” is also DENIED.  Assuming for purposes of argument that they properly seek adjudication of issues of duty pursuant to CCP §437c(f)(1), Issues 3 (seeking an adjudication that the City had a “duty” to demonstrate a relationship between project impacts and the amount of BMR fee before imposing any as a condition of approval), 4 (seeking an adjudication that the City had a “duty” to show a relationship between the impacts of new residential development in general and the amounts and uses of BMR fees before it could even enact such a program) and 5 (seeking adjudication of the 3^rd cause of action for relief from and refund of “invalid” BMR fees) cannot be adjudicated so long as there is a triable issue as to whether Plaintiffs timely served written notice of protest and/or timely filed their action within 180 days of a valid notice of the fees, exactions, etc. being imposed (See City’s Ex. 6).  Gov. Code §66020(d)(2) states that if a protest and subsequent legal action were not timely then “notwithstanding any other law to the contrary,” which would include CCP §437c(f), “all persons are barred from any action or proceeding or any defense of invalidity or unreasonableness of the imposition.”

 

Plaintiffs’ Issues 1 & 2, seeking adjudication of Plaintiffs’ 1^st and 2^nd causes of action for Declaratory Relief, also cannot be adjudicated while there is a triable issue as to the timeliness of Plaintiffs’ challenge under Gov. Code §66020(d)(2).  Summary judgment/adjudication for a plaintiff is proper in an action for declaratory relief when only legal issues are presented for determination and defendant is not entitled as a matter of law to a favorable declaration.  See Torrance v. Castner (1975) 46 Cal. App. 3d 76, 83 n.3; Exchequer Acceptance Corp. v. Alexander (1969) 271 Cal. App. 2d 1, 11-12, 14.  Again, the City’s Exhibit 6 raises a triable issue of material fact as to whether the entire action is time-barred.

 

Furthermore, even if the trial court possesses subject matter jurisdiction in a declaratory relief action filed pursuant to CCP §1060, the court properly may refuse to grant relief where an appropriate procedure has been provided by special statute and the court believes that more effective relief can and should be obtained through that procedure.  Filarsky v. Sup. Ct. (2002) 28 Cal 4^th 419, 433.  Here the Court finds that the specific statutory scheme set up by Gov. Code §66020, including its very short window for timely challenges, is such a “special statute” that may not appropriately be circumvented by declaratory relief claims seeking declarations as to parties’ rights and duties in a dispute governed by Gov. Code §66020.