Greenberg v. City of LaCanada Flintridge

Filed 8/15/07 Greenberg v. City of La Canada Flintridge CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

Dzintra Janavs, Judge. Affirmed.

Ernster Law Offices, John H. Ernster, Phil J. Montoya for Plaintiffs and Appellants.

Brown, Winfield &, Canzoneri, Inc., Mark Steres, Diana J. Vernazza for Defendants and Respondents.

___________________________________________________

INTRODUCTION

Appellants Michael and Maria Greenberg own real property with a fence, wall and gate structure that is the subject of a conditional modification permit from the City of La Caada Flintridge (the City). The Greenbergs unsuccessfully appealed to the City Council a condition which limited the height of the wall to six feet. They then filed a petition for a writ of mandate in superior court but failed to serve the City within the 90-day statutorily prescribed time period. (Gov. Code, 65009, subd. (c)(1).)^[1] The trial court sustained the Citys demurrer, dismissed the complaint without leave to amend and then denied the Greenbergs motion for relief under Code of Civil Procedure section 473. Contrary to the Greenbergs contentions, (1) the trial court properly denied them leave to amend their petition, (2) the City is not estopped from asserting the 90-day statute of limitations for service, and (3) the Greenbergs are not entitled to relief under Code of Civil Procedure section 473 for counsels failure to properly serve summons on the City as required by section 65009.

FACTUAL AND PROCEDURAL HISTORY

The Greenbergs own and reside on a parcel of real property located at 245 Berkshire Avenue in the City of La Caada Flintridge. On March 30, 2005, they applied to the City for a modification of a setback requirement on an existing gate and wall on the property. The City held a hearing, and the Planning Commission issued an approval of the modification subject to certain conditions, among them the condition at issue in this case which required that the wall or fence be reduced in height to six feet to bring it into compliance with the provisions of a decorative fence ordinance.

On June 15, 2005, the Greenbergs appealed the height condition to the City Council. The City Council held a hearing and denied appellants request on September 19, 2005. The notice of denial by the City was sent on September 20, 2005, and contained the following statement: Any court challenge of the matter will be limited to filing within 90 days of a final City decision, per adoption of Section 1094.6 of the Code of Civil Procedure, as adopted by the City Council.

On December 14, 2005, the Greenbergs filed a Verified Petition for Writ of Administrative Mandamus or Mandate, requesting that the court set aside the Citys decision to deny their appeal. However, they did not serve the petition on the City until January 27, 2006.

On February 14, 2006, the City demurred on the grounds that the petition was not timely served on the City pursuant to section 65009, subdivision (c)(1). The court sustained the Citys demurrer without leave to amend, and dismissed the action on April 10, 2006. On June 5, 2006, the court denied the Greenbergs Motion for Relief under Code of Civil Procedure section 473, which alleged that their attorney had made a mistake and an inadvertent error in failing to serve the City within the 90-day time period required by section 65009.

DISCUSSION

I. The Citys demurrer was properly sustained.

A. Standard of Review

An appellate court reviewing a trial court order sustaining a demurrer to a petition for a writ of mandate and dismissing an action without leave to amend applies two separate standards of review. First, the appellate court reviews de novo the petition itself for facts which are sufficient to state a cause of action. (Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1279-1280.) Second, the appellate court reviews for any abuse of discretion the decision to sustain the demurrer without leave to amend. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958-959.)

B. The Statute of Limitations

Section 65009, subdivision (c)(1) requires that any action to attack, review, set aside, void, or annul a decision of a legislative body regarding a wide variety of housing development decisions must be commenced and served upon that legislative body within 90 days of the decision. (See Honig v. San Francisco Planning Dept. (2005) 127 Cal. App. 4th 520, 529.) Notice of the Citys decision was sent on September 20, 2005; appellants filed their challenge on December 14, 2005, but service was not completed on the City until January 27, 2006, which was beyond the 90-day period. The Greenbergs, however, claim that they properly served the City because service was consistent with the Los Angeles County Superior Court rules, with which their counsel was familiar, and which indicate that a complaint shall be served within 60 days of filing the action.

Where two statutes relate to the same subject, the more specific will take precedence over the more general. (Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1118 (Royalty Carpet Mills).) In Royalty Carpet Mills, Royalty filed a petition for a writ of mandate to set aside a conditional use permit granted by the City of Irvine to a housing developer. (Id. at p. 1114.) Royalty filed the action within 90 days but failed to serve the City of Irvine within that time period. (Id. at p. 1119.) The Court of Appeal held that section 65009, subdivision (c)(1) applied and controlled over more general statutes of limitation. (Royal Carpet Mills, at p. 1119.)

Similarly, statutes take precedence over local court rules. Local rules that conflict with statutes are invalid. (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 654.)

The purpose of section 65009 is to speed up development projects and to provide a measure of certainty to property owners and developers as to the decisions made by governmental agencies. ( 65009, subd. (a)(3); see Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 387.) The statute itself states a preference for shorter, rather than longer, statutes of limitation if they are applicable. ( 65009, subd. (g); Royalty Carpet Mills, supra 125 Cal.App.4th at p. 1120.) Thus, the petition to set aside the City Council decision regarding the fence falls under the statute of limitations set forth in section 65009, and a later deadline will not take precedence over the deadline established by that statute. Failure to meet the 90-day deadline requires a dismissal of the action. ( 65009, subd. (c)(1)(E); Royalty Carpet Mills, supra 125 Cal.App.4th at p. 1124.)

C. Amendment

Because the deadline for service had passed, an amendment to the petition could not have cured the statute of limitations defect. (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230-231; Royalty Carpet Mills, supra 125 Cal.App.4th at p. 1124.) The trial court has discretion to allow parties to amend petitions and complaints, but where the statute of limitations is violated the trial court is practically compelled to dismiss the action without leave to amend. Therefore, the courts decision not to allow appellants to amend their complaint was well within that courts discretion.

D. Estoppel

Appellants assert that the City should be estopped from asserting an affirmative defense based on the statute of limitations found in section 65009 because the Notice of Denial sent to them by the City mentioned only the 90-day filing requirement found in the Code of Civil Procedure section 1094.6, subdivision (b). Equitable estoppel can be found where an ignorant party reasonably relies to his detriment upon an informed party who intends such reliance. (Honig v. San Francisco Planning Dept., supra 127 Cal. App. 4th at p. 529; see also Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1186-1187.)

In both Honig and Beresford, the Court of Appeal addressed arguments identical to the one presented here. The petitioning parties each claimed that letters issued by the City were misleading because they failed to mention section 65009. (Honig v. San Francisco Planning Dept., supra 127 Cal.App.4th at p. 529.) In each case, the argument was rejected for failure to meet two of the basic elements of equitable estoppel: intent to mislead and reasonable reliance. (Id. at pp. 530-531.) The letter sent to appellants does not indicate that timely filing would be sufficient to satisfy all applicable statutory requirements. The letter does not direct appellants to delay service of process relating to the action which they filed. Also, the statute mentioned in the letter (Code Civ. Proc.,  1094.6) actually contains language which puts the recipient on notice that other time restrictions might exist and control the filing and service of the action.^[2]The Greenbergs were represented by counsel at all times and legal research would have revealed the applicable section.

We acknowledge that apparently the typical letter or notice of denial sent by city planning departments and agencies could arguably be more informative, possibly avoiding unnecessary litigation, but there is no indication of anything intentionally misleading about such letters. The parties here were not ignorant, they did not reasonably rely upon the letter issued by the City, and they have not offered any proof that the City intended such reliance.

II. The motion for relief under Code of Civil Procedure section 473 was properly denied.

A. Standard of Review

An appellate court reviews a decision to grant or deny relief requested under Code of Civil Procedure section 473 for abuse of discretion. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 232-233; Brochtrup v. INTEP (1987) 190 Cal.App.3d 323, 328-329.)

B. The trial court decision

Code of Civil Procedure section 473 allows a court to give an opportunity to a moving party to amend pleadings or otherwise correct a wide variety of procedural mistakes made in the name of a party due to an attorneys error. However, such statutory relief does not generally apply to errors involving a statute of limitations, which is, by its very nature, inflexible. (Maynard v. Brandon (2005) 36 Cal.4th 364, 372; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 395; Castro v. Sacramento County Fire Protection Dist. (1996) 47 Cal.App.4th 927, 930; Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1561.) The trial court in this instance followed the great weight of authority addressing the issue of tempering the severity of the statute of limitations and denied appellants request for relief. The court acted well within the broad exercise of its discretion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

DOI TODD, J.

CHAVEZ, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] Unless otherwise indicated, all statutory references are to the Government Code.

^[2] Code of Civil Procedure section 1094.6, subdivision (g) states: This section shall prevail over any conflicting provision in any otherwise applicable law relating to the subject matter, unless the conflicting provision is a state or federal law which provides a shorter statute of limitations, in which case the shorter statute of limitations shall apply. (Italics added)