Filed 9/29/17 Gold v. City and County of San Francisco CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Pro se appellant Craig Gold appeals after the trial court sustained a demurrer and dismissed his claims against the City and County of San Francisco (“the City”), which were based on his allegation that the City erroneously refused to refund his permit fees after revoking his license to operate a food truck. Because the City enjoys immunity to suit for claims arising from discretionary licensing and permitting decisions, and because Gold failed to overcome that immunity by identifying a mandatory duty owed to him by the City, we conclude the trial court properly sustained the City’s demurrer and did not abuse its discretion in denying leave to amend.

I.STATEMENT OF FACTS

This action arises from the issuance of a food truck permit. In his third amended complaint, Gold alleges that, in December 2009, he received the permit for his business, which was named Sunny Vibrations and was located at 3887 20th Street in San Francisco, California. He paid almost $10,000 in fees for the permit, which he was told was a “lifetime” permit.

Although he was initially located at 3887 20th Street, after receiving complaints from the neighbors, he decided to move the truck across the street. Not long after the move, he closed the truck for repainting.

In August 2011, approximately one and one-half years after Gold received the permit, the City’s Department of Public Works (“DPW”) discovered that his food truck was, and always had been, located within 1,500 feet of a school, which was in violation of San Francisco Police Code former section 1320.2. Gold states that DPW notified him that due to the violation that had been caused by the erroneous issuance of the permit, he had to close his business.

Gold asked for a public hearing regarding the revocation of his permit, which was held two months later. At the hearing, the City refused to refund Gold his permit fees but offered to waive the fees for a new location. Claiming that most of the “prime locations” were already taken, Gold stated he could not find a “suitable” or “comparable” location. He filed a claim for the permit fees with the City Controller’s Office, but this was denied.

Gold filed the instant action on December 24, 2012, and amended his complaint the following month. The City filed a demurrer to his first amended complaint, and Gold failed to oppose the demurrer in writing or at the hearing. The court sustained the demurrer with leave to amend.

Gold filed a second amended complaint, to which the City also demurred. The court sustained the demurrer but gave Gold a second chance to amend, this time giving him specific instructions that only alleging a clear mandatory duty would allow him to recover from the City. Gold filed his third amended complaint shortly thereafter, and the City again demurred. The court ruled in favor of the City, sustaining the demurrer and denying Gold another opportunity to amend. Gold appealed the subsequent judgment of dismissal.

II.DISCUSSION

Gold raises two issues on appeal. First, he contends the court erred in concluding the City was protected by immunity. Second, he alleges the trial court was biased in favor of the City and committed judicial misconduct. We find no merit in either of Gold’s claims.

A. Standard of Review

Our standard of review of the order sustaining the City’s demurrer is de novo. (Fogarty v. City of Chico (2007) 148 Cal.App.4th 537, 542.) We determine whether Gold’s complaint states facts sufficient to constitute a cause of action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) To sustain the trial court’s denial of further leave to amend, we must review the decision for an abuse of discretion. (Ibid.; see Record v. Reason (1999) 73 Cal.App.4th 472, 486.) The burden is on Gold to show any defects in his complaint may be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)

B. The Court Properly Sustained the City’s Demurrer

1.The City is Immune to Actions Arising from Discretionary Permit Decisions

Under California Government Code section 818.4, public entities are not liable for injuries caused by the issuance or revocation of permits when they or their employees are authorized to do so. California Government Code section 821.2 extends this protection to public employees as well. Courts apply the immunity broadly: it makes no difference whether a decision causes injury, violates an individual’s rights, or is made negligently. The public entity is still immune from suit. (Kay v. City of Rancho Palos Verdes (9th Cir. 2007) 504 F.3d 803, 809–810, 811; Sonoma AG Art v. Department of Food & Agriculture (2004) 125 Cal.App.4th 122, 127–128; see Caldwell v. Montoya (1995) 10 Cal.4th 972, 976, 978, 983–984, 988 [discretionary acts immunity under Gov. Code, § 820.2].) This immunity specifically includes instances where a public entity is alleged to have improperly issued a license or permit. (Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 647; West v. State of California (1986) 181 Cal.App.3d 753, 759–760.)

Gold’s license was originally issued under San Francisco Police Code former section 1320 et seq., which provided that the Chief of Police “may” issue a food truck permit if he finds the operation of the business would comply with applicable laws. (S.F. Police Code, former § 1320.8.) In 2010, during the lifetime of Gold’s permit, food truck licensing responsibilities were transferred to DPW, and are now governed by San Francisco Public Works Code, section 184.80 et seq. Under San Francisco Public Works Code section 184.97, the Director of DPW “may” suspend or revoke any permit for good cause if he finds, after a noticed public hearing, that (among other grounds) the permit holder has violated specified provisions of State or municipal law, or that the vendor “is operating in a manner that negatively impacts the public health, safety, convenience, or welfare.” Former section 1320.2 of the San Francisco Police Code, which was controlling when Gold was issued his food truck license, prohibited food trucks from operating within 1,500 feet of a school.

Although Gold argues the Police Chief lacked discretion to issue the permit for his food truck because the Chief negligently failed to notice the proposed location was within 1,500 feet of a school, he provides no legal authority in support of this argument.[1] Moreover, we see no reason to deviate from the generally-interpreted understanding of the word “may” as an indication of permission or discretion. (Cal. Bus. & Prof. Code, § 19; Black’s Law Dictionary 993 (7th ed. 1999).) It is clear that San Francisco Police Code former section 1320.8 gave the Police Chief discretion in issuing permits. It is also clear that, even when acting negligently, the Police Chief and the Department are protected from any actions arising from a discretionary licensing decision, such as the claims Gold brings here. (Burchett v. City of Newport Beach (1995) 33 Cal.App.4th 1472, 1480.)

2.The City Did Not Owe Gold a Mandatory Duty Such That His Action Survives the City’s Immunity

During the trial court proceedings, the court informed Gold the only way he could overcome the City’s demurrer would be to allege the City breached a mandatory duty owed to him, and twice gave him leave to amend accordingly. (Gov. Code, § 815.6.) Government Code section 815.6 creates an exception to general licensing immunity where a public entity is under a mandatory duty designed to protect against a certain kind of injury. (See Gov. Code, § 815.6; see also Slagle Constr. Co. v. County of Contra Costa (1977) 67 Cal.App.3d 559, 562.) The mandatory duty, however, must have been intended to protect the plaintiff from the risk of uncompensated injury caused by its breach. (Morris v. County of Marin (1977) 18 Cal.3d 901, 907, 917, limited on other grounds in Caldwell v. Montoya, supra, 10 Cal.4th at p. 987, fn. 8.)

As far as we can tell from Gold’s brief, he appears to contend the City breached eight different mandatory duties that he believes were owed to him.[2] First, Gold alleges the aforementioned San Francisco Police Code former section 1320.8 imposes a mandatory duty on the Chief of Police which prevents him from issuing permits unless the permit complies with all applicable laws. Gold does not support this argument with any legal authority. (See Cal. Rules of Court, rule 8.883(a)(1)(A).) We recognize Gold is a pro se plaintiff, but the Rules of Court apply to him nonetheless. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.) In any event, as discussed in the preceding section, we reject Gold’s interpretation of the ordinance: San Francisco Police Code former section 1320.8 granted the Police Chief discretion to issue a permit if he found that a food truck’s operation would comply with applicable laws. Statutory immunity applies when a public entity or employee is alleged to have mistakenly or negligently issued a permit.

Second, Gold contends San Francisco Police Code former section 1320.2[3] imposed a mandatory duty on the City to prevent food truck operators from selling within 1,500 feet of a school. But as noted, the City’s alleged negligence in issuing the permit to Gold does not undercut its immunity. Moreover, we are not persuaded that San Francisco Police Code former section 1320.2 was specifically intended to protect food truck operators. Instead, in our view, the purpose of the provision was to protect school children, and hence the ordinance does not impose a mandatory duty on the City to protect Gold from any injury incurred by selling within 1,500 feet of a school.

Third, Gold brings to our attention an ordinance that he refers to as “Sec[tion] 1019.3 of SF Charter Issuance of License.” The City correctly notes the language Gold cites is found in San Francisco Police Code section 1019.3, which only pertains to licenses issued for the operation of a circus. Obviously, no circus is involved here. We also note that in summarizing the words of this provision Gold omits the words “of said circus” from his summary.

Gold’s fourth and fifth purported breaches of mandatory duty pertain to San Francisco Administrative Code former section 3.17-2 and San Francisco Police Code section 2.2, both of which concern the reporting of fees collected by the San Francisco Police Department. These ordinances have nothing to do with and impose no mandatory duty on the City regarding the issuance and revocation of food truck permits.

The sixth ordinance Gold brings to our attention is San Francisco Public Works Code section 184.97, which provides that the Director of Public Works will make determinations to suspend or revoke food truck permits only after a noticed public hearing. Gold alleges the public hearing he received was held two months after his permit had been revoked, which, he contends, violated his due process rights. We do not address whether the delayed hearing violated Gold’s due process rights because Gold does not request an appropriate remedy for a due process violation. Gold seeks tort damages, which are not an available remedy for procedural due process violations (Freeny v. City of San Buenaventura (2013) 216 Cal.App.4th 1333, 1346; Javor v. Taggart (2002) 98 Cal.App.4th 795, 807), and exemplary damages, which are not recoverable from a public entity (Gov. Code, § 818).

Seventh, Gold asserts the City was required to notify the public of the hearing regarding the original issuance of his permit. But he cites no statute or ordinance that required the Police Chief or the City to provide such notice or hold such a hearing.

Lastly, Gold alleges the City violated San Francisco Administrative Code section 10.43-1.5, one of a set of provisions that specifies procedures governing applications for refunds of certain payments made to the City, such as duplicative payments or payments erroneously collected as the result of a clerical error. (See S.F. Admin. Code, § 10.43 et seq.) These provisions do not impose a mandatory duty on the City to provide refunds for negligently issued permits; they merely outline the procedures by which the City may give refunds for fees paid.

Because we find no support for Gold’s assertion that the City owed him a mandatory duty in regard to the issuance or revocation of his food truck permit, we agree with the trial court’s conclusion that the City’s immunity bars Gold’s claims.

C. The Trial Court Was Not Biased and Did Not Commit Misconduct

Gold alleges that the trial court was “bias[ed], prejudice[d], and violate[d] [his] due process” by ruling in the City’s favor. The City contends that Gold has forfeited this claim on appeal because he failed to raise it during the hearing, challenge the judge pursuant to Code of Civil Procedure section 170.6, or make a written objection pursuant to Code of Civil Procedure section 170.3, subdivision (c)(1).

While a statutory claim of judicial bias is barred if the complaining party does not file a petition for a writ of mandate, a constitutional claim of judicial bias, such that the judge’s bias violated a party’s due process rights, can be raised on appeal. (People v. Brown (1993) 6 Cal.4th 322, 335.) Failing to raise the claim at trial, however, generally bars consideration of the issue on appeal. (People v. Johnson (2015) 60 Cal.4th 966, 979; see People v. Chatman (2006) 38 Cal.4th 344, 362–363.)

Gold made no such claim during the trial court proceedings. In fact, during the proceedings, Gold praised the court for being “fair and impartial.” The first time Gold claimed the court was biased was in his appellate brief. Thus, Gold’s failure to raise the claim at trial bars him from bringing the claim on appeal. Even if Gold had not forfeited the claim, it fails on the merits. Gold has not shown the trial court was biased or engaged in misconduct.

Gold’s first allegation is that the court exhibited bias in favor of the City by erroneously deciding the City was immune to his action. As we discussed previously, the City is immune to Gold’s action, and the trial court’s correct resolution of this issue does not show bias. Furthermore, even if the court had ruled incorrectly, erroneous rulings do not establish a trial judge’s bias. (People v. Samuels (2005) 36 Cal.4th 96, 115.)

Gold also accuses the trial court of making arguments for the City and failing to consider any of his own arguments. Again, Gold fails to support this argument with any legal authority. Moreover, in reviewing the record, we are convinced the court acted appropriately. Gold appears to base his contention solely on statements as innocuous as “I think that’s what the City is arguing,” which we cannot construe as an argument made on behalf of the City.

D. The Trial Court Correctly Denied Gold Leave to Amend

Finally, Gold does not address in any detail the trial court’s denial of further leave to amend his complaint. Although he suggests briefly that the court should have allowed him to amend in light of “newly discovered information,” he makes no showing that any such information would establish the City owed him a mandatory duty or would cure the defects in the Third Amended Complaint. He thus has not met his burden to show the court abused its discretion by denying leave to amend. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Without a showing that he can change the legal effect of his pleading with further amendment, we must affirm the trial court’s decision to deny Gold leave to amend. (Ibid.)

III.DISPOSITION

The judgment is affirmed.

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Streeter, J.

We concur:

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Reardon, Acting P.J.

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Rivera, J.