Merlo v. Palo Alto
Anthony Merlo sued the City of Palo Alto (City), alleging that in 2005 it improperly conducted an election approving an increase in storm drain fees. The essence of his claim is that the proposed storm drain increase constituted an assessment under article XIII D of the California Constitution (hereafter article XIII D), and, as such, certain mandatory election procedures were not followed by City. The court sustained without leave to amend Citys demurrer to the third amended complaint (Complaint). Thereafter, Merlo filed a dismissal without prejudice of the action and initiated this appeal.
Merlo contends that the court should not have sustained the demurrer to the Complaint without leave to amend. He argues that the court erred in granting Citys request for judicial notice and that it improperly relied on the documents of which it took judicial notice to conclude that the Complaint failed to state a cause of action. He argues further that he stated a cause of action challenging the 2005 election because the proposed storm drain fee increase was an assessment, rather than a property-related fee, and City failed to comply with the required procedures for an election concerning a proposed assessment.
Court conclude that the trial court did not err or abuse its discretion in granting Citys request for judicial notice. Court hold further that the Complaint failed to state a cause of action and that Merlo did not demonstrate a reasonable probability that he could amend to state a viable cause of action. Accordingly, Court affirm the dismissal entered on the order sustaining demurrer without leave to amend.
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