San Luis Obispo County Coastkeeper v. County of San Luis Obispo

Filed 6/22/06 San Luis Obispo County Coastkeeper v. County of San Luis Obispo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Government Code section 66499.37^[1] requires that the commencement of an action and service of the summons be completed within 90 days in all proceedings involving the Subdivision Map Act (§ 66410 et seq.). Here we conclude that the unexcused failure of appellant, San Luis Obispo Coast Keeper a Project of Environment In the Public Interest (Coast Keeper), to serve all indispensable parties within the 90-day period deprived the trial court of jurisdiction to entertain its petition for writ of mandate challenging the extension of a subdivision map. We affirm the judgment of dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

Anastasi Development Company (Anastasi) owns two parcels of land in San Luis Obispo County. Richard Nyznyk and J.B. Mirassou are representatives of that company. On November 23, 2004, the San Luis Obispo County Board of Supervisors granted Anastasi's request to extend the tentative subdivision map of its two parcels for a period of five years.

On February 17, 2005, 86 days after the extension of Anastasi's subdivision map, Coast Keeper filed a petition for writ of mandate seeking to reverse that decision. The petition named the County and County Board of Supervisors as defendants and Anastasi, Nyznyk and Mirassou as real parties in interest. (Code Civ. Proc., § 1094.5.) Coast Keeper served the County on the day the petition was filed, but did not serve real parties in interest until February 24, 2005, 93 days after the County rendered its decision.

The County and real parties in interest filed a demurrer and motion to strike the petition on the ground that Coast Keeper had failed to serve all indispensable parties within the 90-day statutory period. Coast Keeper filed opposition papers and declarations establishing that it had attempted to serve real parties in interest at Anastasi's San Luis Obispo office on February 17, 2005, the day the petition was filed, but had then determined that the office was rarely open. It contacted the Secretary of State's office and ascertained that Anastasi's registered agent for service was Darryl Nyznyk, whose listed address was on Aviation Boulevard in Redondo Beach. Coast Keeper retained Swift Attorney Services, and a process server went to the Redondo Beach address on February 18 (the 87th day of the 90-day period) at about 3:30 p.m. He found a sign stating that the company had moved to another location and went to the new location on Torrance Boulevard at about 4:15 p.m. that same day, but the registered agent was not there. No service was attempted during the next three days, the President's Day weekend. On February 22, the 91st day, the process server returned to the Torrance Boulevard address at 4:40 p.m. and was again unable to locate the registered agent. Another unsuccessful attempt was made at 12:20 p.m. on February 23. On February 24, the 93rd day, documents were left with an employee who indicated that she could accept service for Anastasi.

The trial court sustained the demurrer without leave to amend after concluding that these circumstances did not excuse Coast Keeper's failure to effectuate service within 90 days. Coast Keeper appeals from the judgment of dismissal.

DISCUSSION

Indispensable Parties

A court may not proceed with an action when an indispensable party has not appeared. (Code Civ. Proc., § 389, subd. (b);Younger v. Jordan (1954) 42 Cal.2d 757, 758; Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 500-502.) In dismissing the entire action, the trial court here implicitly determined that real parties in interest were indispensable parties whose appearance could not be secured due to the late service of process. Coast Keeper now argues that Nyznyk and Mirassou were not indispensable parties because they had no interest in the property at issue.

Nyznyk's and Mirassou's positions with Anastasi are not revealed by the record, although Coast Keeper named them as real parties in interest in its petition. But as the owner and developer of the plots affected by the Board of Supervisor's decision, Anastasi was an indispensable party under Code of Civil Procedure section 389. (See Sierra Club, Inc. v. California Coastal Com., supra, 95 Cal.App.3d at p. 501.) Because Anastasi was not served within the 90 days, the court was without jurisdiction to proceed even if it could have proceeded without Nzynyk and Mirassou.

Applicability of 90-Day Limitations Period to Real Parties in Interest

Coast Keeper argues that it was not required to serve real parties in interest within 90 days because the limitations period established by section 66499.37 applies only to the governmental agency that made the challenged decision. We disagree.

Section 66499.37 provides, "Any action or proceeding to attack, review, set aside, void or annul the decision of [a]. . . legislative body concerning a subdivision . . . shall not be maintained by any person unless such action or proceeding is commenced and service of summons effected within 90 days after the date of such decision." Nothing in this language limits the service requirement to the governmental agency making the decision or renders it inapplicable to a real party in interest. The interpretation proposed by Coast Keeper would allow a plaintiff to wait indefinitely before serving a real party in interest and would be contrary to the purpose of section 66499.37, which is to ensure that judicial resolution of subdivision disputes occur "'as expeditiously as is consistent with the requirements of due process.'" (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 23; see also Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1104.)

Coast Keeper notes that other statutes establish different time periods for service of real parties in interest than they do for governmental agencies. But this circumstance does not further Coast Keeper's argument. To the contrary, it suggests that when the Legislature wishes to give a plaintiff more time to serve certain parties, it knows how to do so. It did not do so in section 66499.37, demonstrating that it intended the 90-day limit to apply to all parties who must be served.

Code of Civil Procedure Section 583.240 and Equitable Tolling

Code of Civil Procedure section 583.240, subdivision (d) provides that when computing the time within which service must be made, the court shall exclude any period when "[s]ervice, for any reason, was impossible, impracticable, or futile due to causes beyond plaintiff's control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for purposes of this subdivision." The trial court concluded that this provision applied to the 90-day limitations period under section 66499.37, but did not excuse the late service of real parties in interest under the circumstances. Coast Keeper argues that Code of Civil Procedure section 583.240 applies only to service periods established by the Code of Civil Procedure and should not have been applied in this case.

In Maginn v. City of Glendale, supra, 72 Cal.App.4th at p.1108, the court concluded that the Code of Civil Procedure was an appropriate place to look for the law governing delayed service in an action governed by section 66499.37. The court applied the standard of impossibility, impracticability or futility and refused to excuse compliance with the 90-day period when no good reason was offered for failing to serve the acting governmental entity until the 93rd day after the challenged action. Similar to the plaintiff in Maginn, Coast Keeper did not establish that it was impossible, impractical or futile to effect service on real parties in interest within 90 days.

Even if we assume that Code of Civil Procedure section 583.240 does not apply to the case before us, the trial court's reliance on that statute could only operate in Coast Keeper's interest. We have been directed to no other provision which arguably allows the court to excuse noncompliance with the 90-day service requirement of section 66499.37. The trial court's consideration of the standard in Code of Civil Procedure section 583.240 gave plaintiff the opportunity to obtain relief from the otherwise mandatory 90-day requirement.

Coast Keeper argues that the delay in serving the petition should be assessed using "traditional notions of fairness and due process," rather than the standard of impossibility, impracticability or futility in Code of Civil Procedure section 583.240. The application of this more nebulous test would not have changed the result. The delay in this case was caused by the relatively late filing of the petition within the 90-day statutory period and the minimal efforts of the process server to accomplish service by visiting Anastasi's registered agent's office at end of the day and during the noon hour when he was less likely to be there. Although the agent had moved his office, the process server was able to locate that new office and make an appearance there on the same day that he first attempted service on the old address. It is not unfair to adhere to the 90-day period when there is no suggestion that real parties in interests were attempting to avoid service and there was nothing remarkable about the circumstances resulting in the delay.

The judgment is affirmed. Costs are awarded to respondents and real parties in interest.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Douglas Hilton, Judge

Superior Court County of San Luis Obispo

______________________________

Law Offices of Babak Naficy and Babak Naficy for Plaintiff and Appellant.

James B. Lindholm, Jr., County Counsel, Timothy McNulty, Deputy County Counsel for Defendants and Respondents.

Stoel Rives LLP and James P. Corn for Real Parties in Interest.

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^[1] All statutory references are to the Government Code unless otherwise stated.