Opinion
B322168
05-07-2024
OTTO L. HASELHOFF, Individually and as Trustee, etc., Plaintiff and Appellant, v. CITY OF SANTA MONICA, Defendant and Respondent.
Manatt, Phelps &Phillips, Michael M. Berger; Law Offices of Otto L. Haselhoff and Otto L. Haselhoff for Plaintiff and Appellant. Douglas Sloan, City Attorney, Ben Delfin and Brandon D. Ward, Deputy City Attorneys, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. 19SMCV00850 H. Jay Ford III, Judge.
Manatt, Phelps &Phillips, Michael M. Berger; Law Offices of Otto L. Haselhoff and Otto L. Haselhoff for Plaintiff and Appellant.
Douglas Sloan, City Attorney, Ben Delfin and Brandon D. Ward, Deputy City Attorneys, for Defendant and Respondent.
ASHMANN-GERST, Acting P. J.
In 2010, defendant and respondent City of Santa Monica (the City) designated a historic estate as a City landmark. In 2019, plaintiff and appellant Otto L. Haselhoff (Haselhoff), individually and as trustee of the Otto and Lara Haselhoff Family Trust dated July 27, 2006, and as assignee of Greg W. Briles (Briles), brought this action to invalidate the landmarking of the property. The City demurred on the grounds that Haselhoff's action was time-barred by Government Code section 65009. The trial court sustained the demurrer without leave to amend and entered a judgment of dismissal in favor of the City. Haselhoff appeals.
All further statutory references are to the Government Code unless otherwise indicated.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
"Because this matter comes to us on demurrer, we take the facts from [Haselhoff's operative pleading], the allegations of which are deemed true for the limited purpose of determining whether [he] has stated a viable cause of action. [Citation.]" (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 885.) We also take "judicial notice of . . . each matter properly noticed by the trial court." (Evid. Code, § 459.) We disregard allegations of fact contrary to facts that are judicially noticed. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) In his reply brief, Haselhoff argues that the trial court erred in granting the City's request for judicial notice. And, at oral argument, appellate counsel repeatedly asserted that this matter should not have been resolved on demurrer; rather, any and all factual matters should have been resolved at trial. We reject his belated argument. (Rubinstein v. Fakheri (2020) 49 Cal.App.5th 797, 809.)
The City's general plan and landmarking ordinance
The City's general plan includes a historic preservation element, which provides that the City "is strongly committed to historic preservation" as "reflected in the programs and policies of the City including a Landmarks and Historic Districts Ordinance." The City's landmark designation procedure is outlined in Santa Monica Municipal Code section 9.56.120. It provides that a property may be nominated for designation by "any person" that files an application, or "the [Landmarks] Commission may file an application for the designation of a Landmark on its own motion." (Santa Monica Mun. Code, § 9.56.120(A).)
Following nomination, a public hearing is scheduled "within 100 days of the determination that the application is complete" to evaluate the proposed designation. (Santa Monica Mun. Code, § 9.56.120(C).) "Not more than 20 days and not less than 10 days prior to the date scheduled for a public hearing, notice of the date, time, place and purpose thereof shall be given by at least one publication in a daily newspaper of general circulation, and shall be mailed to the applicant, the owner of the improvement, all owners and residential and commercial tenants of all real property within 300 feet of the exterior boundaries of the lot or lots on which a proposed Landmark is situated, and to residential and commercial tenants of the subject property, using for this purpose the names and addresses of such owners as are shown on the records of the Los Angeles County Assessor."(Santa Monica Mun. Code, § 9.56.120(D).) "The failure to send notice by mail to any such real property owner where the address of such owner is not a matter of public record shall not invalidate any proceedings in connection with the proposed designation. The [Landmarks] Commission may also give such other notice as it may deem desirable and practicable." (Ibid.)
See also section 65091, subdivision (a)(1), which provides, in relevant part, that when notice of a public hearing is required, "[n]otice of the hearing shall be mailed or delivered at least 10 days prior to the hearing to the owner of the subject real property as shown on the latest equalized assessment roll. Instead of using the assessment roll, the local agency may use records of the county assessor or tax collector if those records contain more recent information than the information contained on the assessment roll."
At the designated public hearing, the Landmarks Commission receives and evaluates the evidence submitted, including public comment, and then issues a final decision on the application at the conclusion of the public hearing. (Santa Monica Mun. Code, § 9.56.120(E).) The decision is final and in "full force and effect from and after the date of the rendering of such decision by the [Landmarks] Commission." (Santa Monica Mun. Code, § 9.56.120(G).)
The subject property
Actress and singer Kathryn Grayson (Grayson) lived at 2009 La Mesa Drive (the property) from 1945 until her death on February 17, 2010. City records reflect that the property was owned by the Kathryn Z. Grayson Trust (the Grayson Trust). First transfer of title/grant deed
On July 9, 2010, title of the property was transferred from the Grayson Trust to Briles.
The grant deed was not recorded until October 22, 2010.
Landmarks Commission meeting (Aug. 9, 2010)
During an open session of its regularly scheduled August 9, 2010, meeting, the Landmarks Commission adjourned an item to discuss whether to file an application to designate the property as a landmark based on "a letter [received] from the owner of 2009 La Mesa Drive." The property owner was not identified by name. Landmarks Commission meeting (Sept. 13, 2010)
At its September 13, 2010, meeting, the Landmarks Commission considered whether it should file an application to designate the property as a City landmark.
The Grayson Trust, the property owner of record at this time, hired Kate Bartolo (Bartolo), a consultant with historical preservation experience, to be its representative at the September 13, 2010, meeting. She stated that the Grayson Trust did not have a position regarding a landmark designation of the property. She noted that there was a "potential buyer who does not have plans to demolish or alter the facade of the building." When asked "if the potential buyer/representative had knowledge that the property was listed on the Historic Resource Inventory and was aware of possible designation, . . . Bartolo responded in the positive." Likewise, when asked "if she was stating the position of the potential owner during [that] meeting, .... Bartolo responded in the positive."
An "inventory list" refers to the City's historic resources inventory, which is "a database containing building descriptions and evaluations of potential historic resources in Santa Monica." (https://www.smgov.net/departments/pcd/historic-resources-inventory.)
A motion was made to file a landmark designation for the property, and the motion was approved. At some point thereafter, Scott Albright (Albright), the "Landmarks [liaison]," submitted the landmark designation application for the property. The property owner is identified as "Kathryn Grayson TR." Briles-Culotti partnership to purchase and sell the property
At least one commissioner stated that the Landmarks Commission was "pleased that the property owner [was] supportive of the application."
After a decade of successful real estate partnerships, Briles and Elaine F. Culotti (Culotti) entered into a written partnership agreement, effective October 21, 2010, to purchase and sell the property. As is relevant to the issues in this appeal, section 4.1 of the partnership agreement provides: "At the time of entering into this Agreement, the Partners are uncertain as to how title will be [held]. Regardless, if it is in the name of the Partnership, business entity, Gary Culotti, or another individual, it shall be an asset of the Partnership for all purposes." Notice of Landmarks Commission hearing
Curiously, Haselhoff's opening brief contains no mention of Culotti or the Briles-Culotti partnership. (Cal. Rules of Court, rule 8.204(a)(2)(A).) In his reply brief, Haselhoff contends that any mention of Culotti is a red herring. As discussed throughout this opinion, we disagree.
On October 29, 2010, notice of the Landmarks Commission public hearing regarding the property was published in the Santa Monica Daily Press.
On that same date, a notice of public hearing was served. The applicant is identified as the Landmarks Commission, and the property owner is identified as "Kathryn Z. Grayson TR," which was served at the property address.
Landmarks Commission meeting (Nov. 8, 2010)
The staff report for the November 8, 2010, meeting provides: "Notice of the public hearing was provided as follows: Pursuant to SMMC Section 9.36.120, notice of the public hearing was mailed to all owners and residential and commercial tenants of property within a 300-foot radius of the project and was published in the Santa Monica Daily Press at least ten consecutive calendar days prior to the hearing." The notice referenced section 65009, subdivision (b), and warned that the failure to present evidence at or before the hearing could bar it from being considered later.
At the meeting, the Landmarks Commission considered the application to designate the property as a City landmark. Based upon a detailed review of the property and its historical significance, "it [was] recommended that the Landmarks Commission designate the [property] as a Landmark and Landmark Parcel."
Briles-Culotti partnership receives four certificates of appropriateness to renovate the property as a City landmark
Over several years, the Briles-Culotti partnership completed an expansive multi-million dollar renovation of the property. Significant alterations to a landmarked property require a certificate of appropriateness from the Landmarks Commission or City staff before building permits are issued. (Santa Monica Mun. Code, §§ 9.56.070, 9.56.140.)
From 2011 through 2012, the Briles-Culotti partnership applied for and received several certificates of appropriateness. Also during this time, Culotti attended multiple public certificate of appropriateness hearings before the Landmarks Commission. Briles-Culotti partnership applies for a Mills Act contract
The Mills Act (§ 50280 et seq.) authorizes contracts between a historic property owner and local governments. These contracts may provide property tax reductions in exchange for maintaining a historic property. (Prentiss v. City of South Pasadena (1993) 15 Cal.App.4th 85, 93; Rev. & Tax. Code, §§ 439-439.4.)
On July 17, 2012, the Briles-Culotti partnership applied for a Mills Act contract with the City. City staff supported the proposed Mills Act contract, estimating a large tax reduction that would constitute a "significant marketing feature for the property in terms of future sales."
On November 27, 2012, the City Council held a public hearing on the Briles-Culotti partnership's request for a Mills Act contract.
Briles transfers title to the Briles-Culotti partnership
Meanwhile, a grant deed dated October 4, 2012, transferring title of the property from Briles to the Briles-Culotti partnership was recorded on October 10, 2012.
Relationship between Briles and Culotti breaks down and prompts litigation
In or around 2014, the relationship between Briles and Culotti began to break down. On June 26, 2014, Briles transferred title to the property from the Briles-Culotti partnership to a family trust he controlled.
On August 24, 2014, Culotti filed a notice of lis pendens against the property. Shortly thereafter, on October 15, 2014, Culotti filed a demand for arbitration. She alleged that Briles committed fraud and fraudulent conveyance. Briles did not defend her claim by asserting that he alone owned the property. Rather, he argued that the change in title did not affect the partnership's ownership of the property at all times.
For example, in a joint stipulation as to undisputed facts dated August 23, 2015, Briles stipulated that he loaned the partnership money so that it could purchase the property. He also testified at the proceeding that the property was "owned by the partnership."
Furthermore, at multiple times during the arbitration proceeding, the parties acknowledged the property's landmarked status. For example, during Culotti's opening statement, counsel indicated that the property is a designated City landmark. In his opening, Briles's attorney blamed Culotti for the partnership's inability to get a valuable Mills Act property tax reduction.
During her testimony at the arbitration proceeding, Culotti stated multiple times that she knew the property was going to be landmarked.
The arbitration concluded with a $1.1 million damage award in favor of Culotti. Title to the property was ordered to remain in Briles's family trust.
That arbitration award was confirmed, and a judgment was issued on July 15, 2016. Briles appealed, and the Court of Appeal affirmed the judgment. (Culotti v. Briles (June 6, 2018), B279508 [nonpub. opn.].) That judgment is final.
Meanwhile, on November 4, 2014, Briles filed a motion to expunge the lis pendens. In his supporting declaration, he confirmed that the property was "owned exclusively by the Partnership regardless of whose name is on the title[,] [a]ccording to paragraph 4.1 of the Agreement."
On October 7, 2015, the trial court granted Briles's motion and expunged the lis pendens.
Transfer of property to Haselhoff
A grant deed dated June 25, 2018, and recorded October 29, 2018, indicates that Briles transferred title to the property to Haselhoff.
First amended complaint (FAC)
Haselhoff initiated this litigation on May 7, 2019. The FAC sets forth five causes of action: (1) petition for writ of administrative mandamus, (2) constitutional damages claims, (3) slander of title damages claims, (4) claims under the Ralph M. Brown Act (§ 54950 et seq.), and (5) declaratory relief. According to the FAC, various irregularities in the landmark designation process rendered the application invalid. Furthermore, the City failed to give proper notice of the "'landmarking hearing'" to Briles, the owner of the property at the relevant time.
The trial court expressly addressed with Haselhoff "the defects and verbosity of the original complaint (41 pages). In response, [Haselhoff] agreed to amend the complaint to avoid a demurrer."
Like the original pleading, the FAC is lengthy (57 pages) and filled with numerous statutory and case citations and quotations, inappropriate legal argument, and unnecessary flippant remarks, such as accusing Albright as being the "rogue planner that inspired, in part, 'Parks & Recreation' a television comedy that highlights the abuses of local government officials". Such allegations are not in line with the mandates of Code of Civil Procedure section 425.10, subdivision (a)(1).
The City's demurrer and motion to strike
On February 20, 2020, the City filed a demurrer and motion to strike portions of the FAC. In the demurrer, the City argued, inter alia, that the first two causes of action were untimely under either section 65009 or Code of Civil Procedure section 338, subdivision (a). The City also argued that Briles's failure to challenge the 2010 landmarking decision was binding on Haselhoff as a subsequent purchaser.
Section 65009 governs actions challenging local government decisions. Subdivision (c)(1) provides that "no action or proceeding shall be maintained [in specified cases] unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body's decision."
Code of Civil Procedure section 338, subdivision (a), provides that "[an] action upon a liability created by statute" must be filed within three years.
In its motion to strike, the City argued that the trial court should disregard allegations that Briles purchased the property because: (1) the doctrine of truthful pleading allows the trial court to disregard allegations inconsistent with prior pleadings and other judicially noticeable facts, and (2) these allegations were precluded by the doctrine of judicial estoppel.
In support, the City requested judicial notice of a host of documents pertaining to the Landmarks Commission hearings, the arbitration between Briles and Culotti, and Culotti's lis pendens.
Haselhoff's opposition
Haselhoff opposed both the demurrer and motion to strike. As is relevant to the issues raised in this appeal, Haselhoff argued that because the "City failed to give notice under its own [statutes] of the hearing, the intent to landmark the parcel and ultimately the determination to adjudicate the structure and parcel at 2009 La Mesa as a landmark[, it could not] invoke any statutory timing as a defense to its unconstitutional and otherwise improper actions without offending well established principles of due process."
Regarding section 65009, Haselhoff argued that it "does not relate to landmarking. Its concern is actually the opposite: A housing crisis means that development projects must not be delayed." In fact, section 65009 does not mention landmarks; the statute only pertains to a city's general or specific plan, zoning ordinances, and development agreements.
Furthermore, because the City did not direct any notice to Briles, it did not provide proper notice of the Landmarks Commission hearing concerning the property.
Haselhoff objected to the City's request for judicial notice and, in support of his opposition, requested judicial notice of various documents pertaining to the Landmarks Commission. Reply papers
The City submitted a reply brief. In response, Haselhoff submitted an objection to the City's reply, along with supporting declarations. Haselhoff declared: "I feel that the Opposition was more than sufficient. I hope the Court agrees. But of course, I could state more if the Court wanted more, and I was given the opportunity." He then set forth 10 additional facts he would include in an amended pleading.
The City responded with a reply to Haselhoff's surreply and accompanying objections.
Initial hearing on the City's demurrer and motion to strike (Aug. 11, 2020)
The trial court's tentative was to sustain the demurrer to the FAC without leave to amend as to the first cause of action (petition for writ of mandate) and overrule it as to all remaining causes of action. The trial court initially determined that the claim was time-barred by section 65009. The trial court also indicated its intent to grant portions of the City's motion to strike.
Following oral argument, Haselhoff was directed to submit a "supplemental opposition . . . to the Demurrer and a proposed Amended Complaint with paragraphs stricken pursuant to the granting of the Motion to Strike." The supplemental opposition was "to focus on the additional unalleged facts that [Haselhoff] claims support [his] position that: . . . [his] 2019 challenge to the 2010 Landmarking Decision is not time barred by [section] 65009's 90-day limitations period."
In so ruling, the trial court granted the City's request for judicial notice as to all exhibits except the transcripts of the Landmarks Commission hearings and certain newspaper articles. "The Court's decision to judicially notice the existence and filing of these documents is not judicial notice of the truth of the documents, the interpretation of any of these documents or any findings of facts contained therein." Supplemental briefs
Haselhoffs supplemental opposition
On November 10, 2020, Haselhoff submitted his supplemental opposition to the City's demurrer and a proposed second amended complaint (SAC). In the supplemental opposition, he argued that the City's failure to provide notice of the Landmarks Commission hearing tolled all statutory timing as a defense to this action.
In support, Haselhoff submitted another request for judicial notice.
The proposed SAC is 73 pages long and riddled with improper legal citations, argument, and conclusions.
The City's supplemental reply
The City filed a reply to Haselhoff's supplemental opposition, arguing that (1) section 65009's 90-day limitations period cannot be tolled, and (2) the proposed SAC failed to allege any facts that warranted modifying the original tentative ruling to sustain the demurrer without leave to amend.
The City objected to Haselhoff's request for judicial notice. In support of its objection, the City submitted a declaration from its counsel, which included a declaration from Robert Isozaki (Isozaki), the custodian of records for the Los Angeles County Office of the Assessor.
Haselhoffs purported objection to the reply
Haselhoff submitted a "response" to the City's "new evidence," "styled" as an objection to Haselhoff's most recent request for judicial notice. Specifically, Haselhoff objected to the Isozaki declaration. Within that objection, Haselhoff offered further argument on the applicability of section 65009 and the City's failure to give proper notice of the Landmarks Commission hearing. And, Haselhoff submitted four additional exhibits.
The City's response
In response to Haselhoff's self-styled objection to evidence, the City submitted a reply to Haselhoff's "sur-reply . . . in response to purported 'new evidence' submitted" by the City. Trial court order (Dec. 15, 2020)
The trial court sustained the City's demurrer to the petition for a writ of mandate (first cause of action), finding that Haselhoff could not show that equitable tolling would overcome the time limitation set forth in section 65009. Furthermore, the FAC admits that Briles and Haselhoff knew that the property was landmarked more than 90 days before their lawsuit was filed.
The trial court denied Haselhoff leave to file his proposed SAC, reasoning: "Plaintiff was given an extraordinary amount of time to identify and allege all the possible facts to overcome the defects of the first amended complaint. Despite that time, Plaintiff's proposed Second Amended Complaint fails to state any claim, other than slander of title. Similarly, the Court finds the additional proposed amendments orally raised at the hearing do not overcome the defects of the first amended complaint. The Court finds Plaintiff cannot allege any further facts that would change the legal effect of Plaintiff's claims."
Only the slander of title claim (third cause of action) survived.
Settlement and joint stipulated judgment
The parties engaged in mediation and entered into a 2022 settlement agreement to resolve the slander of title claim. The parties then prepared a joint stipulated judgment, which the trial court executed on May 27, 2022.
Appeal
This timely appeal ensued.
DISCUSSION
I. Standard of review
"Our Supreme Court has set forth the standard of review for ruling on a demurrer dismissal as follows: 'On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed "if any one of the several grounds of demurrer is well taken. [Citations.]" [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]' [Citations.]" (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043-1044.)
A demurrer may be supported by matters that are subject to judicial notice. (Code Civ. Proc., § 430.30, subd. (a); Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) Appellate courts should judicially notice any fact of which the trial court took proper judicial notice. (Evid. Code, § 459, subd. (a).)
II. Relevant law
At issue in this appeal is whether Haselhoff's action is time-barred by section 65009, subdivision (c). "A demurrer based on a statute of limitations is appropriate if the ground appears on the face of the complaint or from matters of which the court may or must take judicial notice." (Aaronoff v. Martinez-Senftner (2006) 136 Cal.App.4th 910, 918.)
The parties also raise the question of whether Haselhoff's action is time-barred by Code of Civil Procedure section 338, subdivision (a). For the same reasons Haselhoff's action is barred by section 65009, subdivision (c), his claims are barred by this three-year statute of limitations.
Section 65009, subdivision (c)(1), provides, in relevant part, that "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: [¶] . . . [¶] (B) To attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance. [¶] . . . [¶] (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." (§ 65009, subds. (c)(1)(B) &(E).) Subdivision (e) adds: "Upon the expiration of the time limits provided for in this section, all persons are barred from any further action or proceeding."
Section 65009 falls within Title 7 (Planning and Land Use), Division 1 (Planning and Zoning), of the Government Code. Division 1 is the Planning and Zoning Law. (§ 65000.) "The planning and zoning law establishes the authority of most local government entities to regulate the use of land. [Citation.] Under the planning and zoning law, each county and city must 'adopt a comprehensive, long-term general plan for the physical development of the county or city ....' [Citation.] The general plan consists of a 'statement of development policies . . . setting forth objectives, principles, standards, and plan proposals.' [Citation.] 'Subordinate to a general plan are zoning laws, which regulate the geographic allocation and allowed uses of land. [Citation.] . . .' [Citation.] To provide certainty for property owners and local governments regarding decisions by local agencies made pursuant to the planning and zoning law, the Legislature enacted 'a short, 90-day statute of limitations, applicable to both the filing and service of challenges to a broad range of local zoning and planning decisions.'" [Citation.] (Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, 155 (Lafayette); see § 65009, subds. (a)(3), (c); see also Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 774, 775 (Travis) ["[t]he legislative policy of requiring a prompt challenge . . . remains clear in section 65009"].)
"[C]ourts have interpreted [section 65009] as applying to challenges to a broad range of local zoning and planning decisions." (Lafayette, supra, 32 Cal.App.5th at pp. 156-157; see § 65850, subd. (a) ["The legislative body of any county or city may, pursuant to this chapter, adopt ordinances that do any of the following: [¶] (a) Regulate the use of buildings, structures, and land as between industry, business, residences, open space, including agriculture, recreation, enjoyment of scenic beauty, use of natural resources, and other purposes"].)
III. Analysis
Applying these legal principles, we conclude that the trial court did not err in sustaining the City's demurrer to Haselhoff's FAC on the grounds that his action is time-barred pursuant to section 65009, subdivisions (c)(1)(B) and (e).
In accordance with section 65300, the City enacted a general plan and, in accordance with section 65302, subdivisions (a) and (b), that general plan includes a "'land use and circulation element,'" which contains a chapter on "historic preservation." The City's general plan also includes a historic preservation element, which provides that the City "is strongly committed to historic preservation" as "reflected in the programs and policies of the City including a Landmarks and Historic Districts Ordinance." It follows that the City's landmark ordinance (Santa Monica Mun. Code, § 9.56.020), which is located within Division 6 (Land Use and Zoning Related Regulations) of Article 9 (Planning and Zoning) of the Santa Monica Municipal Code, constitutes a zoning-related land use regulation that advances the City's general plan. (See Lafayette, supra, 32 Cal.App.5th at p. 157; see also Weiss v. City of Del Mar (2019) 39 Cal.App.5th 609, 621-622 [a public entity decision involving the regulation and management of property is a land use and zoning determination].) Thus, the time limitations set forth in section 65009, subdivision (c)(1), apply.
The challenged Landmarks Commission decision was made on November 8, 2010, and officially approved on February 14, 2011. Because Haselhoff did not file this action within 90 days of either of those dates, all of his claims are untimely. (§ 65009, subd. (c)(1) ["no action or proceeding shall be maintained" after the 90-day period has expired]; Freeman v. City of Beverly Hills (1994) 27 Cal.App.4th 892, 897 [§ 65009 applies to claims for monetary damages as well as those for declaratory and injunctive relief]; Travis, supra, 33 Cal.4th at p. 767.) Accordingly, the FAC was properly dismissed.
Code of Civil Procedure section 1094.6 does not compel a different result. Haselhoff does not fall within the scope of persons covered by that statute. (See Code Civ. Proc., § 1094.6, subd. (f) [defining a party as a person who has been impacted by (1) an employment suspension, demotion, or dismissal, (2) a revoked, suspended, or denied permit, license, or other entitlement, or applications relating thereto, and (3) a denial of retirement benefits].)
A. Section 65009, subdivision (a)(1)
Urging us to conclude otherwise, Haselhoff argues that section 65009 is inapplicable because this dispute concerns a landmark designation, not a decision related to housing. Admittedly, section 65009, subdivision (a)(1), provides: "The Legislature finds and declares that there currently is a housing crisis in California and it is essential to reduce delays and restraints upon expeditiously completing housing projects." But courts have rejected the notion that section 65009, subdivision (c)(1), "restricts its application to decisions involving housing." (Lafayette, supra, 32 Cal.App.5th at p. 156.) Rather, as set forth above, "courts have interpreted the statute as applying to challenges to a broad range of local zoning and planning decisions." (Id. at pp. 156-157.) We adopt the same analysis.
B. Section 65009, subdivision (b)
Haselhoff further argues that section 65009, subdivision (c), requires a properly noticed hearing as mandated by section 65009, subdivision (b). But subdivision (c) does not refer to subdivision (b) or contain any language regarding a "properly noticed" hearing. If the Legislature had intended to add these conditions to subdivision (c), it could have done so. (Artus v. Gramercy Towers Condominium Assn. (2018) 19 Cal.App.5th 923, 945 ["It is not the role of the courts to add statutory provisions the Legislature could have included, but did not"].)
Regardless, as the trial court aptly found, section 65009, subdivision (b)(1), is simply a procedural rule that limits a party's ability to introduce evidence beyond what was raised at the hearing. The statute provides, in relevant part: "In an action or proceeding to attack, review, set aside, void, or annul a finding, determination, or decision of a public agency made pursuant to this title at a properly noticed public hearing, the issues raised shall be limited to those raised in the public hearing or in written correspondence delivered to the public agency prior to, or at, the public hearing, except where the court finds either of the following: [¶] (A) The issue could not have been raised at the public hearing by persons exercising reasonable diligence. [¶] (B) The body conducting the public hearing prevented the issue from being raised at the public hearing." (§ 65009, subd. (b)(1).) Subdivision (b)(2) continues: "If a public agency desires the provisions of this subdivision to apply to a matter, it shall include in any public notice" certain language. (§ 65009, subd. (b)(2).) Nothing in this language supports Haselhoff's argument.
C. No notice
Haselhoff further contends that Briles had no notice of the landmarking application, hearing, or decision. In other words, because the City never specifically gave Briles notice of the potential landmark decision, Haselhoff could not have known about the landmarking. Thus, Haselhoff claims that his lawsuit cannot be time-barred.
The problem with Haselhoff's contention is that there is no requirement that Briles should have been given notice. He was not the property owner. Rather, pursuant to exhibits of which the trial court properly took judicial notice, at all relevant times, either the Grayson Trust or the Briles-Culotti partnership owned the property. And there is no contention that either of those two entities did not have notice.
For this reason, Haselhoff's argument that Briles did not know that the Landmarks Commission was considering the entire parcel and not just the house on the property is irrelevant.
Nowhere does any of the City's paperwork related to the landmarking decision indicate that Grayson was the property owner. Rather, the paperwork refers to "TR," which either means "trustee" or the Grayson Trust. Thus, we have disregarded all ridiculous comments that the City erroneously sent notice to a deceased person. In any event, at the risk of sounding redundant, while technically the owner no longer was the Grayson Trust, Haselhoff has not explained how the alleged error in the documentation (identifying either the Grayson Trust or the trustee as the property owner) renders the landmark designation void given that the actual property owner had notice.
Culotti certainly knew about the Landmarks Commission hearing and decision. Her knowledge is binding on the Briles-Culotti partnership, which owned the property. (Corp. Code, § 16301, subd. (1) ["Each partner is an agent of the partnership" and "[a]n act of a partner . . . for apparently carrying on in the ordinary course the partnership business or business of the kind carried on by the partnership binds the partnership"]; J&A Mash &Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 28 [notice to a partner is notice to the partnership]; GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 881 [knowledge of general partner imputed to partnership].) That knowledge ran to Briles, as the successor holder of title. And his knowledge is binding on Haselhoff as a subsequent purchaser. (Serra Canyon Co. v. California Coastal Com. (2004) 120 Cal.App.4th 663, 668 [successor owner of property is bound by prior owner's waiver of right to seek review].)
Because we conclude that the City was not required to give Briles notice of the landmarking hearing and decision, we need not address whether his purported lack of notice tolled the 90-day statutory period. For the sake of completeness, we note that (1) Haselhoff offers no legal authority that section 65009's 90-day time period can be tolled, and (2) case law has expressly held otherwise. (See, e.g., Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1125 [§ 65009 "requires dismissal of any proceeding that is not filed and served by an absolute time limit"].)
We recognize that Haselhoff alleges in the FAC that he was entitled to notice because he was the property owner. (See, e.g., 1AA 96; see also AOB 46) But that allegation is belied by Briles's own admissions in the joint stipulation as to undisputed facts in the Briles-Culotti arbitration, in his testimony during the arbitration proceeding, and in his declaration filed in support of the motion to expunge the lis pendens filed by Culotti, all of which the trial court took judicial notice.
"As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.] The courts, however, will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed. [Citations.] Thus, a pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless." (Del E. Webb Corp. v. Structural Materials Co., supra, 123 Cal.App.3d at p. 604.)
D. Alleged errors after the November 8, 2010, hearing
Haselhoff further argues that alleged violations by the City of its own Municipal Code after the November 8, 2010, hearing invalidate the landmark designation. But he offers no legal authority in support of his contention that the City's alleged postdecision errors invalidate the landmark designation a fortiori, particularly given the fact that Haselhoff is deemed to have had notice of the designation as set forth above. (Cal. Rules of Court, rule 8.204(a)(1)(B); Fettig v. Hilton Garden Inns Management LLC (2022) 78 Cal.App.5th 264, 269.)
To the extent Haselhoff argues that the City failed to make a timely decision on the landmarks application, he is mistaken. As set forth above, Santa Monica Municipal Code section 9.56.120(C), mandates that a "public hearing to determine whether the improvement merits designation shall be scheduled before the Landmarks Commission within 100 days of the determination that the application is complete." Here, at the September 13, 2010, hearing, the Landmarks Commission made and approved a motion to submit an application to designate the property a landmark. The application appears to have been submitted the same day. Assuming without deciding that the application was deemed "complete" on that date, a public hearing had to be scheduled within 100 days. It was-the hearing on the subject landmarks application was held on November 8, 2010.
Santa Monica Municipal Code section 9.56.120(E) has no bearing on this case. That provision applies only to continued public hearings, which "must be completed within 35 days from the date set for the initial public hearing." (Santa Monica Mun. Code, § 9.56.120(E).) But the hearing on the subject landmarks application was never continued. Thus, this provision does not apply.
Admittedly, there was a hearing on August 9, 2010. But at that hearing, the Landmarks Commission intended to discuss whether to file an application. That hearing was continued, but no application was filed until after the September 13, 2010, hearing. Thus, Santa Monica Municipal Code section 9.56.120(E) is inapplicable.
We decline Haselhoff's request to expand Santa Monica Municipal Code section 9.56.120(E) and "deem[] [the application] disapproved" for the alleged post-decision errors. The plain language of the provision is limited to continuances of public hearings, and that language controls. (Tsasu LLC v. U.S. Bank Trust, N.A. (2021) 62 Cal.App.5th 704, 718.)
E. Landmarks ordinance is constitutional
Haselhoff argues that the City's landmarks ordinance is unconstitutional.
1. Facial challenge
"'Facial challenges to statutes and [local enactments] are disfavored.'" (Beach &Bluff Conservancy v. City of Solana Beach (2018) 28 Cal.App.5th 244, 263 (Beach &Bluff).)
"A facial challenge to the constitutional validity of an ordinance considers only the text of the ordinance, not its application to the plaintiffs' particular circumstances. [Citation.] Our analysis begins with the strong presumption that the ordinance is constitutionally valid. [Citations.] We resolve all doubts in favor of the validity of the ordinance. [Citation.] Unless conflict with a provision of the state or federal Constitution is clear and unmistakable, we must uphold the ordinance. [Citations.] Plaintiffs bear the burden of demonstrating that the ordinance is unconstitutional in all or most cases. [Citation.]" (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 54 (Allen).)
a. Alleged unconstitutional taking
An ordinance "is not an unconstitutional regulatory taking if it (1) substantially advances a legitimate government interest, and (2) does not deprive [the property owners] of all economically viable use of their property." (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 791 (Montclair).) "The denial of the highest and best use does not constitute an unconstitutional taking of the property. [Citation.] Even where there is a very substantial diminution in the value of land, there is no taking. [Citations.]" (Long Beach Equities v. County of Ventura (1991) 231 Cal.App.3d 1016, 1036.) Thus, "'an ordinance is safe from a facial challenge if it preserves, through a permit procedure or otherwise, some economically viable use of the property.'" (Beach &Bluff, supra, 28 Cal.App.5th at p. 265.)
Haselhoff did not meet his burden of showing that the landmarks ordinance is facially unconstitutional. The ordinance does not deny a property owner of "all economically viable use" of his property. (Montclair, supra, 76 Cal.App.4th at p. 791, italics added.)
Although the filing of an application for a landmark prohibits any construction to the proposed landmark until the Landmarks Commission makes a determination (Santa Monica Mun. Code, § 9.56.120(B)), that halting of construction is for a brief period of time (Santa Monica Mun. Code, § 9.56.120(C) &(E)). "Unless a temporary moratorium is total and is unreasonable in purpose, duration or scope, the restrictions it places on development are not compensable. [Citation.]" (Long Beach Equities v. County of Ventura, supra, 231 Cal.App.3d at p. 1035.) Because the temporary hold on construction under the landmarks ordinance is reasonable in purpose, duration, and scope, the allegedly "unconstitutional 'temporary taking[]'" is constitutional. (First English Evangelical Lutheran Church v. County of Los Angeles (1989) 210 Cal.App.3d 1353, 1372.)
b. Landmarks Commission can nominate a property
Relying upon Woody's Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012 (Woody's), Haselhoff asserts that the landmarks ordinance is unconstitutional because the Landmarks Commission can nominate a property itself and then decide whether to designate the property a landmark. Haselhoff claims that the Landmarks Commission's ability to nominate a property amounts to it improperly being a "judge in [its] own cause." (Id. at p. 1027.)
Woody's is readily distinguishable. In that case, a city councilmember who had "voiced his '[strong[]' opposition to [a restaurant's] application [for a permit] was allowed to appeal the approval of . . . [the] application to the very body on which he [sat], where he did his best to convince his colleagues to vote with him against the application." (Woody's, supra, 233 Cal.App.4th at p. 1016.) The Court of Appeal found that the councilmember's appeal was improper because he did not fall within the scope of persons who were eligible to appeal under the Newport Beach Municipal Code. (Id. at pp. 1017, 1023-1025.) Furthermore, "allowing a biased decision maker to participate in the decision is enough to invalidate the decision." (Id. at p. 1022.)
Here, in contrast, the City's landmarks ordinance specifically allows the Landmarks Commission to nominate a property for designation. And, all we have is Haselhoff's speculation that the Landmarks Commission's authority to nominate a property for designation somehow renders the commission automatically and always biased.
We do not consider Haselhoff's citation to a superior court judgment. "[A]n opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action." (Cal. Rules of Court, rule 8.1115(a).) Certainly that rule applies to unpublished trial court judgments. Moreover, Haselhoff has not demonstrated that such a judgment can be considered here under the doctrine of collateral estoppel. (Gikas v. Zolin (1993) 6 Cal.4th 841, 849 [elements of collateral estoppel].) Finally, his request for judicial notice, set forth in one sentence of his appellate opening brief is insufficient. (Cal. Rules of Court, rule 8.252(a).)
2. As-applied challenge
"An as-applied challenge asserts that the manner of enforcement against an individual or class of individuals or the circumstances in which the ordinance is applied is unconstitutional." (Allen, supra, 234 Cal.App.4th at p. 56.)
Even though Haselhoff contends, in one sentence, that the landmarks ordinance is unconstitutional as applied, he offers no substantive argument in support of this contention. (Cal. Rules of Court, rule 8.204(a)(1)(B).) As such, it has been forfeited. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
F. Leave to amend
Finally, Haselhoff argues that the trial court abused its discretion in denying him leave to file his proposed SAC because it resolved the trial court's concerns. He is mistaken. The proposed SAC continues to allege that Briles was the property owner. It also alleges that the City's landmarking ordinance was unconstitutional because the property "cannot be developed to its highest best use," allegations which do not constitute an unlawful taking. And, the SAC is replete with improper legal citations and legal argument. Finally, the SAC purports to allege the same claims that we, like the trial court, have rejected. Under these circumstances, we find no abuse of discretion.
G. All remaining issues are moot
In light of our conclusion that Haselhoff's action is time-barred, we need not address the other arguments raised by the parties, including whether Haselhoff failed to exhaust his administrative remedies.
DISPOSITION
The judgment is affirmed. The City is entitled to costs on appeal.
We concur: CHAVEZ, J. HOFFSTADT J.