Filed 10/15/18 Simonelli v. City of Carmel-By-the-Sea CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
| JACQUELINE SIMONELLI et al.,
Plaintiffs and Appellants,
v.
CITY OF CARMEL-BY-THE-SEA et al.,
Defendants and Respondents.
| H044251 (Monterey County Super. Ct. No. M123079)
|
Appellant Jacqueline C. Simonelli appeals from a judgment dismissing her action challenging the approval by respondent City of Carmel-by-the-Sea (the City) of respondent Pot D’Oro’s application for a permit to develop a vacant lot adjacent to Simonelli’s real property.[1] The superior court dismissed the action after it sustained the City’s demurrer without leave to amend. The demurrer was sustained on the ground that Simonelli had failed to serve her action within the 90-day period set forth in Government Code section 65009, subdivision (c)(1)(E).[2] We conclude that the demurrer was properly sustained without leave to amend because section 65009, subdivision (c)(1)(E) applies here, and Simonelli failed to timely serve her action on the City.
I. Background
On February 5, 2013, the City’s city council rejected Simonelli’s appeal of the City’s planning commission’s decision approving “Design Study” and “Coastal Development Permit” applications by Pot D’Oro to construct a new residence on a vacant lot adjacent to Simonelli’s real property. On May 6, 2013, Simonelli filed an administrative mandamus petition in the superior court challenging the City’s February 5, 2013 decision. Her petition did not name Pot D’Oro as a party. Simonelli did not attempt to serve the petition on the City until May 10, 2013, more than 90 days after the City’s February 5, 2013 decision.[3]
The City originally demurred on the ground that Simonelli had failed to join an indispensable party (Pot D’Oro), and the City asserted that Simonelli should not be granted leave to amend because the 90-day limitations period set forth in Code of Civil Procedure section 1094.6 for the filing of an action had already expired. Simonelli sought leave to amend her petition to add Pot D’Oro as a defendant, but the superior court sustained the City’s original demurrer without leave to amend and dismissed the case.
Simonelli appealed. On appeal, we found that Pot D’Oro was an indispensable party, but that the superior court should have granted Simonelli leave to amend because Code of Civil Procedure section 1094.6’s 90-day limitations period was inapplicable. We reversed the judgment and remanded the matter with directions to grant Simonelli leave to amend. (Simonelli v. City of Carmel-by-the-Sea (2015) 240 Cal.App.4th 480 (Simonelli I).) On remand, the superior court sustained the demurrer with leave to amend and gave Simonelli until May 31, 2016 to amend her petition.
On May 27, 2016, Simonelli filed an amended pleading that included both a petition for administrative mandate and a complaint for damages.[4] The amended pleading named Pot D’Oro as a defendant. The petition continued to challenge the City’s February 5, 2013 approval of Pot D’Oro’s development applications.
The City demurred to Simonelli’s amended pleading. The City claimed that Simonelli’s action was untimely because the limitations period specified in section 65009, subdivision (c)(1)(E) had expired before she served the City.[5] The superior court agreed with the City and found that section 65009, subdivision (c)(1)(E) applied and that the limitations period had expired before the City was served with the original petition. The court sustained the demurrer without leave to amend and subsequently entered a judgment of dismissal. Simonelli timely filed a notice of appeal.
II. Discussion
A. Standard of Review
“ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the [petition] a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the [petition] states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by ame
B. Limitations Period Had Expired Prior to Service of the Petition
Simonelli contends that the 90-day limitations period set forth in section 65009, subdivision (c)(1)(E) does not apply here.[6]
Section 65009, subdivision (c)(1)(E) provides: “(c) (1) Except as provided in subdivision (d), [which is inapplicable here,] no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision: [¶] . . . [¶] . . . [¶] . . . [¶] . . . [¶] (E) To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.” (Italics & boldface added.)
The sole issue before us is whether Simonelli’s action was an “attack” on a “decision on the matters listed in Sections 65901 and 65903.” Those “matters” broadly include decisions on permits based on “criteria” set forth in a “zoning ordinance.” Section 65901 applies to decisions by the zoning administrator on “applications for conditional uses or other permits when the zoning ordinance provides therefor and establishes criteria for determining those matters . . . .” (Italics added.) Section 65903 applies to decisions by a board of appeals on appeals from such decisions. (§ 65903.)
The fact that the decisions in this case were made by the planning commission and the city council rather than a zoning administrator and a board of appeals does not mean that sections 65901 and 65903 do not encompass these decisions. “In the event that neither a board of zoning adjustment or the office of a zoning administrator has been created and established, the planning commission shall exercise all of the functions and duties of said board or said administrator.” (§ 65902.) “If a board of appeals has not been created and established the local legislative body shall exercise all of the functions and duties of the board of appeals in the same manner and to the same effect as provided in Section 65903.” (§ 65904.) Accordingly, in a city such as the City, where there is no zoning administrator or board of appeals, the planning commission acts as the zoning administrator for section 65901 purposes, and the city council acts as the board of appeals for section 65903 purposes.
The city council’s decision falls within section 65009, subdivision (c)(1)(E) so long as it was a decision on an application for a permit “when the zoning ordinance provides therefor and establishes criteria for determining those matters . . . .” (§ 65901.) Title 17 of the Carmel-by-the-Sea Municipal Code is the City’s zoning ordinance. It contains the City’s design review criteria (Carmel-by-the-Sea Municipal Code, § 17.58) and the City’s coastal development permit requirements (Carmel-by-the-Sea Municipal Code, §§ 17.20.150, 17.20.160). These were the “criteria” that the city council and the planning commission were required to apply in “determining” whether to grant Pot D’Oro’s design and coastal development permit applications. Hence, Simonelli’s attack on the city council’s decision upholding the planning commission’s decision to grant those permit applications fell squarely within section 65009, subdivision (c)(1)(E).
As Simonelli did not serve the City within 90 days of the city council’s February 5, 2013 decision, her action was untimely, and the superior court correctly sustained the City’s demurrer without leave to amend.
III. Disposition
The judgment is affirmed.
_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Greenwood, P. J.
_____________________________
Elia, J.
Simonelli v. Carmel
H044251
[1] When Simonelli amended her pleading below, she added Antonio C. Simonelli as a party, and she explained that Antonio is a cotrustee with her of the trust that owns the real property. Antonio was not a cotrustee of the trust at the time of the City’s February 2013 decision. We refer to appellants collectively as Simonelli in this opinion since their interests are indivisible.
[2] Subsequent statutory references are to the Government Code unless otherwise specified.
[3] The City contends that even this service was invalid because the person served, a “Finance Specialist” employed by the City, was not a proper person to accept service on behalf of the City. We need not address this contention as even this attempt at service was not timely.
[4] The complaint purported to allege causes of action for a taking and under 42 U.S.C. section 1983. Simonelli concedes that the causes of action in her complaint were dependent on the success of her mandate petition.
[5] The City also argued that this circumstance precluded adding Pot D’Oro as a party.
[6] Simonelli also complains that this issue was already decided in Simonelli I. Not so. The only contention made by the City in its appellate briefs before this court issued its opinion in Simonelli I related to a different statute of limitations. (Simonelli I, supra, 240 Cal.App.4th at p. 486.) Although we rejected the City’s attempt to bring up unbriefed issues in its petition for rehearing in Simonelli I, our denial of rehearing was not a decision on the merits as to those untimely-presented issues.
