Opinion
E046204.
6-25-2009
AMY CHANG et al., Plaintiffs and Appellants, v. CITY OF UPLAND et al., Defendants and Respondents.
Reiss & Johnson and James V. Reiss for Plaintiffs and Appellants. William P. Curley, City Attorney; Richards, Watson & Gershon, T. Peter Pierce and Toussaint S. Bailey for Defendants and Respondents.
Not to be Published in Official Reports
Plaintiff and appellant Amy Chang is a resident of the City of Upland (the City). She and other residents opposed the construction of an animal shelter within the grounds of a park near her home. The Citys planning commission approved a conditional use permit for construction of the animal services facility. The residents appealed to the city council to reverse the planning commissions decision. The city council adopted a resolution upholding the planning commissions decision. Plaintiff, on behalf of herself and all other similarly situated residents, filed a petition for writ of administrative mandate, initially naming the planning commission as the sole respondent to the petition. Plaintiff later attempted to add as defendants and respondents the City and the city council, but the City and the city council moved to dismiss on the ground that plaintiff had failed to serve them with the summons and complaint within the 90-day statute of limitations. The trial court granted the motion to dismiss and plaintiff appeals. We conclude that the trial court correctly dismissed the action; we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On June 27, 2007, the Citys planning commission granted a conditional use permit to the City to build an animal shelter at a local park. Plaintiff, and other residents who lived near the park, opposed the project. Plaintiff alleged that she and other residents had attended all the public hearings on the matter, including the planning commission meeting of June 27.
On July 12, 2007, the residents appealed the planning commissions decision, seeking review by the city council. On August 13, 2007, the appeal was heard by the city council. The city council adopted a resolution upholding the planning commissions approval of the conditional use permit for the animal facility.
On November 13, 2007, plaintiff, on behalf of herself and all other similarly situated residents of the City, filed a verified petition for a writ of mandate to review the administrative decision approving the animal shelter. Plaintiffs petition named the planning commission as the sole party respondent; neither the City nor the city council were originally named.
On December 12, 2007, the planning commission demurred to the petition on the ground that administrative mandamus applies only to final decisions, that the planning commissions action on the conditional use permit application was preliminary, and was superseded by the city councils resolution.
On January 31, 2008, plaintiff filed a first amended petition that, for the first time, named the City and the city council as parties. No summons was filed or served at that time.
The planning commission demurred to the first amended petition on the same ground as it had demurred to the original petition: its decision was preliminary and not a final decision, and thus it was not subject to mandamus review. The City and the city council appeared specially and, on March 6, 2008, filed to dismiss the action for failure to serve them within the time required (90 days from the administrative decision to be reviewed). (Gov. Code, § 65009, subd. (c)(1).) On March 19, 2008, after the City and city council filed their motion for dismissal, plaintiff filed a first amended summons, naming the City and the city council.
The trial court granted the motion of the City and the city council, and dismissed the action as to them. A week later, it sustained the planning commissions demurrer without leave to amend, and dismissed the action as to the planning commission also.
Plaintiff has appealed.
DISCUSSION
A. Standard of Review
The questions presented here concern the proper filing and service requirements of the administrative mandamus petition, in particular whether plaintiffs petitions satisfied the limits stated in Government Code section 65009 for review of local zoning decisions. "Questions of statutory interpretation, and the applicability of a statutory standard to undisputed facts, present questions of law, which we review de novo. [Citation.]" (Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 604.)
B. The Trial Court Properly Granted the Motion to Dismiss As to the City and the City Council
As plaintiff acknowledges, the critical provision is Government Code section 65009, which provides in relevant part: "(c)(1) Except as provided in subdivision (d), 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 bodys decision: [¶] . . . [¶] (E) To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 [e.g., applications for conditional use permits] and 65903 [including appeals from decisions on conditional use permit applications], or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit." (Italics added.)
The city council decided the administrative appeal on the conditional use permit application on August 13, 2007. November 13, 2007, was thus the last permissible day to bring the action, and the expedited statute of limitation required not only that the action be filed, but that it also be served by that date. Plaintiff filed her original petition on the last day; the proof of service showed that the petition and the summons had been served on the planning commission, not on the City or the city council. The petition itself did not include any fictitious name allegations.
Only after the planning commission demurred, alleging that it was the wrong party because its decision was not a final decision, did plaintiff amend her petition to name the City and the city council. The proof of service for the first amended petition showed that the petition (but no summons) had been served on the chairperson of the planning commission, the city attorney, the attorneys for the planning commission, the city clerk, and the mayor. The first amended petition was filed on January 31, 2008, well beyond the 90-day period for filing an action. A proof of personal service showed that plaintiff had the City served with the petition (but no summons) on February 5, 2008.
The City and the city council moved to dismiss the action on the grounds that they had not been named in the original petition, the amended petition that did name them was filed too late, and no summons had ever been served on them, even after service of the amended petition. Thus, they argued, plaintiffs acts had been insufficient to confer jurisdiction over the City and the city council.
Plaintiff has argued both below and on appeal that service of the first amended petition "related back" to the date the original petition had been filed, and that service on the planning commission constituted "substantial compliance" with service on the City and the city council. These doctrines are inapplicable under the circumstances of the instant case.
First and foremost, we look to the applicable statute. In construing a statute, this court must ascertain the intent of the Legislature with a view to effectuating the legislative purpose. (Estate of Griswold (2001) 25 Cal.4th 904, 910-911.)
Government Code section 65009, subdivision (a), sets forth the Legislatures findings and purposes: the Legislature deemed it essential to reduce delays and restraints upon the expeditious resolution of housing projects, and to that end enacted an extremely short period of limitation in which to challenge public agency zoning and other related decisions. Any such action must be not only filed, but also served, within 90 days after a legislative bodys planning or zoning decision. (Gov. Code, § 65009, subd. (c)(1).)
To allow plaintiff to file and serve a petition on a different entity from the legislative body making the final decision, and to delay naming the proper legislative body, defeats the legislative purpose of having such decisions reviewed and resolved in a timely manner.
Further, substantial compliance was not sufficient to confer jurisdiction over the City and city council, which were unnamed as parties. "[T]he need for timeliness and certainty influenced the Legislature in devising the statutory scheme of Government Code section 65000. Accordingly, the statute mandates strict compliance with the statute of limitations and service periods. As stated in Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1109 : `The rule of narrowly interpreting statutes of limitation [citation] does not apply when the statute is unambiguous and reflects a policy judgment by the Legislature . . . ." (Wagner v. City of South Pasadena (2000) 78 Cal.App.4th 943, 950.) Plaintiff did not strictly comply with the requirements of Government Code section 65009, but served the amended petition well after the 90-day limitation period had expired; in addition, it failed to serve the summons at the same time, and delayed service of summons even longer. Manifestly, plaintiff did not comply with the legislative purpose of ensuring rapid review of challenges to approved development projects, and giving certainty to property owners.
Similarly, the relation-back doctrine does not apply. Plaintiffs original petition named only the planning commission. Plaintiff served only the planning commission. The relief sought in the prayer was directed to the decision of, and to restrain the action of, the planning commission. No fictitious "Doe" parties were named in the petition, as to whom plaintiff might have substituted a different party, such as the City or the city council.
Code of Civil Procedure section 412.20, subdivision (a), requires that a summons shall be directed to a defendant. The complete failure to name a defendant does not confer jurisdiction over that person as a party. Each defendant named in a complaint must also be explicitly named in the summons. (Code Civ. Proc., § 412.20, subd. (a)(2).)
In MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, the plaintiffs filed a complaint against MJS Enterprises, a corporation, and others. The plaintiffs asserted that service was accomplished by service on Michael Saporetti, who was also a named defendant. The summons, however, failed to specify that Saporetti was being sued both individually and on behalf of the corporation. Instead, it recited that Saporetti was being sued as an individual. (Id. at p. 557.) The corporation successfully moved to quash the service of summons. The Court of Appeal held that the summons served was fatally defective because it did not indicate any attempt to assert judicial power over the corporation, notwithstanding the naming of the corporation as a defendant in the action. (Id. at p. 558.) Here, the case is even stronger. Not only, as in MJS Enterprises, did the summons not specify that plaintiff intended to sue the City and the city council, but, unlike MJS Enterprises, the original petition did not even name the City or the city council specifically as defendants.
Inasmuch as plaintiff failed to name the proper parties, the City and the city council, in her original petition, there was nothing as to them to which the amended petition could relate back. Even if a defendant has actual notice of a lawsuit, that does not excuse a complete failure to comply with statutory service requirements. (See Summers v. McClanahan (2006) 140 Cal.App.4th 403, 415.)
Because the City and the city council were not named as parties, no proper service was effected on them within the statutory limit prescribed by Government Code section 65009. The trial court therefore properly dismissed the action as to those entities.
C. The Trial Court Properly Sustained the Demurrer Without Leave to Amend As to the Planning Commission
Plaintiff raises a perfunctory argument that the trial court erred in sustaining the demurrer without leave to amend as to the planning commission. This is a rehash of her contention that the service on the planning commission substantially complied with the requirements of Government Code section 65009, because the planning commission was "merely a division" of the City, so the City and the city council should have known that they were the defendants to the original petition, and that the amended petition, which finally named them as parties, related back to the filing of the original petition.
While plaintiff describes the trial courts actions as hypertechnical semantics, the facts remain that the original petition named only the planning commission and sought relief only as to the decision of the planning commission. The first amended petition also purported to seek relief from the planning commissions actions.
The planning commissions decision was not, however, a final administrative decision, inasmuch as review of that decision can be, and in fact was, taken to the city council, which acts as the final legislative body. Administrative mandamus lies only as to final administrative decisions. (Code Civ. Proc., § 1094.5, subd. (a).)
The trial court properly sustained the demurrer without leave to amend as to the planning commission.
DISPOSITION
Plaintiff failed to name the proper parties to her action. She waited until the last possible day to file and serve her pleading. The subsequent filing of an amended pleading, which named the proper parties, did not confer jurisdiction over them. Even if the amended pleading could be said to relate back to the original filing date, the failure to simultaneously serve the summons on the newly named parties made compliance with Government Code section 65009, which requires expedited filing and service of the pleading within 90 days of the challenged legislative act, impossible. For the reasons stated, the trial court properly dismissed the action as to the City and the city council, and properly sustained the demurrer of the planning commission without leave to amend. The judgment is affirmed in its entirety. Costs on appeal are awarded to respondents.
We concur:
RAMIREZ, P. J.
KING, J. --------------- Notes: November 13, 2007, was a Tuesday, 92 days after the date of the city councils approval of the conditional use permit. The 90th day after the date of decision was November 11, 2007. In 2007, Veterans Day (November 11) fell on a Sunday; thus, Monday, November 12, was the public holiday in celebration of Veterans Day. November 13, 2007, was the first day on which the courts were open after November 11, 2007.