Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. BS085069, Victor H. Person, Judge.
Pillsbury Winthrop Shaw Pittman LLP, Scott A. Sommer, Stacey C. Wright, and Amy E. Gaylord for Plaintiff and Appellant.
William Matthew Ditzhazy, City Attorney (Palmdale); Meyers, Nave, Riback, Silver & Wilson, Deborah J. Fox, and Philip A. Seymour for Defendants and Respondents.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, J.P. Eliopulos Enterprises, Inc., appeals from a judgment after demurrers were sustained and a summary adjudication motion filed by defendants, The City of Palmdale (the city) and its city council (the council), was granted. Defendants’ summary judgment motion was granted as to plaintiff’s constitutional claims in the operative second amended complaint. We conclude all of plaintiff’s claims are barred because it never filed a Code of Civil Procedure section 1094.5 administrative mandate petition. Further, there is no merit to plaintiff’s argument that because its president, Andrew J. Eliopulos, filed an administrative mandate petition, it can pursue its contract based and inverse condemnation claims. When Mr. Eliopulos filed his mandate petition, he had no standing to assert any claims on behalf of the owner. That finding is now final and entitled to res judicata effect. Thus, plaintiff failed to exhaust its administrative remedies.
II. BACKGROUND
On August 12, 2003, Mr. Eliopulos, in his capacity as president of plaintiff, filed the complaint which contained causes of action for: administrative and traditional mandate; contract breach; specific performance; deprivation of civil rights including a claim for an unlawful taking; intentional prospective economic relations interference; and declaratory relief. Prior to the continued hearing date on defendants’ demurrer, on November 12, 2004, the first amended complaint was filed by Mr. Eliopulos in his capacity as plaintiff’s president. The first amended complaint alleged the following. On March 12, 1988, a development agreement was entered between the Rancho Vista Development Company and the city which has been extended through February 24, 2019. The preapplication process for the site plan began in June 2001. On January 28, 2002, Mr. Eliopulos submitted an application for site plan review which consisted of: alternate layout designs; floor plans; elevations; site lighting and photometric plans; slope study; and a traffic and circulation study. During the preapplication process and the submission of the site plan, Mr. Eliopulos reduced the project scope from 108 to 90 units. In response, the city prepared a mitigated negative declaration in compliance with the California Environmental Quality Act. The project was opposed by the Rancho Vista Homeowners’ Association (the homeowners’ association). The city’s planning commission approved the project by a four to one vote.
Both the homeowners’ association and Mr. Eliopulos appealed the planning commission’s approval to the council. Mr. Eliopulos later withdrew his appeal. In response to complaints from the homeowners’ association, the city council asked the city attorney whether the zoning on the property could be changed. The city attorney advised the city council the zoning could not be changed. This was because the zoning was specified in the Rancho Vista Specific Plan (the specific plan). As a result, according to Mr. Eliopulos’s first amended complaint, he has a vested right to develop the property in accordance with the specific plan. The city attorney recommended to the council that the homeowners’ association appeal be denied and the planning commission approval of the project be approved.
On May 14, 2003, the council, by a three to two vote reversed the planning commission’s approval of the project. The council found that: no apartments should be built; the property had been inappropriately zoned for apartments; and the site was too small for 90 apartments units. Mr. Eliopulos filed a tort claim with the city.
The first cause of action sought a writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5. Mr. Eliopulos alleged that the council’s failure to approve the project was arbitrary and capricious. He alleged: Palmdale Municipal Code (the municipal code) section 21.02 requires that the city planning director approve site plan review applications; the city planning director did not review the project; Government Code section 69650 requires that the project be approved or disapproved within 60 days after the planning commission approval on August 1, 2002; and the project was not disapproved until May 14, 2003, more than 60 days after the planning commission action. In addition, Mr. Eliopulos alleged the following findings of the council were deficient because they were not supported by substantial evidence or for other reasons: the site was too small; the project would have substantial adverse effects on adjoining properties; the noise and traffic hazards could not be mitigated; the site was inappropriately zoned for multi-family uses; the project site was not adequate in size or shape; the project had inadequate access; and adjoining property owners had been misled by a sign on the property stating that a “senior-assisted living facility” would be built. Further, Mr. Eliopulos alleged the following California Environmental Quality Act findings were not supported by substantial evidence: line of sight constraints would worsen traffic safety; the noise study was inadequate; the project would have significant adverse impacts on police services; and there was no feasible way to satisfactorily mitigate or avoid the project’s adverse impacts. Finally, in terms of the administrative mandate cause of action, Mr. Eliopulos alleged the city failed to make the findings mandated by Government Code section 65589.5, subdivision (j).
The second cause of action was for traditional mandate pursuant to Code of Civil Procedure section 1085. According to the second amended complaint: the city was obligated to maintain an adequate inventory of housing pursuant to Government Code section 65863; in refusing to approve the project, the council failed to make the findings mandated by Government Code section 65863; the council violated the city’s housing element by failing to approve the project; and the city had failed to approve or disapprove the project within 60 days after the planning commission certified the mitigated negative declaration thereby violating Government Code section 65950.
The third cause of action sought damages for contract breach. Mr. Eliopulos alleged that the city had breached the development agreement. The fourth and fifth cause of action alleged Mr. Eliopulos’s substantive due process and equal protection rights had been violated by the disapproval of the project. The sixth cause of action alleged the council’s disapproval of the project constituted a taking without just compensation under the federal and state constitutions. Based on these causes of action, Mr. Eliopulos sought the issuance of an administrative and traditional writ of mandate, compensatory damages, and attorney fees.
On July 19, 2004, Retired Judge Robert H. O’Brien denied Mr. Eliopulos’s mandate causes of action which challenged defendants’ refusal to approve the project. On December 23, 2004, Retired Judge Victor H. Person sustained defendants’ demurrers to the third, fourth, and fifth causes of action in Mr. Eliopulos’s first amended complaint and overruled the demurrer to the sixth cause of action for inverse condemnation. When the mandate claims were denied by Judge O’Brien and the demurrer was sustained in part by Judge Person, the operative complaint was Mr. Eliopulos’s first amended complaint.
On September 6, 2005, Mr. Eliopulos moved for leave to file a second amended complaint. The proposed second amended complaint named plaintiff as a party for the first time and alleged two causes of action for anticipatory contract breach and the taking of property without just compensation. Defendants opposed the motion for leave to file a second amended complaint. Defendants argued: more than two years had passed since the lawsuit was filed; the city had moved for summary adjudication on the remaining cause of action; the anticipatory breach issue had already been argued; and no reconsideration motion had been filed.
On October 18, 2005, there were two motions before Judge Person. First, Judge Person granted defendants’ summary judgment motion as to the inverse condemnation claims in Mr. Eliopulos’s first amended complaint. Eventually, on March 23, 2006, Judge Person’s written order granting summary adjudication was reduced to writing and filed. Judge Person found that Mr. Eliopulos had no authority to challenge defendants’ actions. Judge Person found that Mr. Eliopulos was not the owner of the property nor a successor in interest. Also, on March 23, 2006, Judge Person signed the judgment in favor of defendants on all of Mr. Eliopulos’s claims. Mr. Eliopulos never filed a notice of appeal from the March 23, 2006 judgment.
The second motion before Judge Person on October 18, 2005, was plaintiff’s motion to amend. The motion to amend was granted to the extent that plaintiff was added to the lawsuit. But the motion to amend to include an anticipatory contract breach claim was denied. Judge Person ruled that the effort to add the anticipatory breach cause of action was nothing more than an untimely reconsideration motion. Judge Person found: the anticipatory breach issue had already been litigated in conjunction with the demurrer; no new facts or law justified reconsideration; and no justification for the substantial delay in seeking to add the anticipatory breach claim had been provided. The motion to amend was granted as to plaintiff on the following conditions: the then pending summary judgment motion aimed at Mr. Eliopulos’s inverse condemnation claim was to remain on calendar; plaintiff must agree to a continuance of the trial date if defendants desired to file a summary judgment or adjudication motion; and defendants would be entitled “to conduct whatever additional discovery” was necessitated because plaintiff was added as a new party.
On February 8, 2006, plaintiff’s second amended complaint which contained a single cause of action for taking of property without just compensation was filed. According to the inverse condemnation claim, on March 12, 1988, a development agreement was entered between the Rancho Vista Development Company and the city which has been extended through February 24, 2019. The preapplication process for the site plan began in June 2001. On January 28, 2002, plaintiff submitted an application for site plan review which consisted of: alternate layout designs; floor plans; elevations; site lighting and photometric plans; slope study; and a traffic and circulation study. During the preapplication process and the submission of the site plan, plaintiff reduced the project scope from 108 to 90 units. The second amended complaint alleges, “During the course of the pre-application process, [plaintiff] acted in accordance with comments and directives of [c]ity staff to design the [s]ite [p]lan with a ten-foot landscape setback along four of the six sides of the irregularly shaped parcel depicted in the [s]ite [p]lan.” The city prepared a mitigated negative declaration in compliance with the California Environmental Quality Act. The project was opposed by the homeowners’ association. The planning commission approved the project with a four to one vote.
Both the homeowners’ association and plaintiff appealed the planning commission’s approval to the council. Plaintiff later withdrew his appeal. In response to complaints from the homeowners’ association, the council asked the city attorney whether the zoning on the property could be changed. The city attorney advised the council the zoning could not be changed. This was because the zoning was specified in the specific plan. As a result, plaintiff had a vested right to develop the property in accordance with the specific plan. The city attorney recommended that the council that the appeal be denied and the planning commission approval of the project be upheld.
On May 14, 2003, the council, by a three to two vote reversed the planning commission’s approval of the project. The council found that: no apartments should be built; the property had been inappropriately zoned for apartments; and the site was too small for 90 apartments units. Plaintiff alleged it filed a tort claim which was denied and it had exhausted all of its administrative remedies.
Plaintiff alleged: municipal code section 21.02 required that the city planning director approve site plan review applications; the city planning director did not review the project; Government Code section 69650 required that the project be approved or disapproved within 60 days after the planning commission approval on August 1, 2002; and the project was not disapproved until May 14, 2003, more than 60 days after the planning commission action. In addition, plaintiff alleged the following findings of the council were deficient because they were not supported by substantial evidence or for other reasons: the site was too small; the project would have substantial adverse effects on adjoining properties; the noise and traffic hazards could not be mitigated; the site is inappropriately zoned for multi-family uses; the project site was not adequate in size or shape; the project had inadequate access; and adjoining property owners had been misled by a sign on the property stating that a “senior-assisted living facility” would be built. Further, plaintiff alleged the following California Environmental Quality Act findings were not supported by substantial evidence: line of sight constraints would worsen traffic safety; the noise study was inadequate; the project would have significant adverse impacts on police services; and there was no feasible way to satisfactorily mitigate or avoid the project’s adverse impacts.
Further, plaintiff alleged: the city failed to make the findings mandated by Government Code section 65589.5, subdivision (j); the city was obligated to maintain an adequate inventory of housing pursuant to Government Code section 65863; in refusing to approve the project, the council failed to make the findings mandated by Government Code section 65863; and the council violated the city’s housing element by failing to approve the project. Finally, the council had failed to approve or disapprove the project within 60 days after the planning commission certified the mitigated negative declaration thereby violating Government Code section 65950.
Plaintiff alleged that: it had performed all of its duties under the development agreement; the city had violated its duties under the development agreement; there was no violation of the set back requirement; but if there was, under the implied good faith and fair dealing covenant, the city was obligated to sustain the planning commission’s approval or pay compensation for violation of a vested right. Further, the second amended complaint alleged the council’s decision was: not supported based by a rational basis; “based entirely on the fears and racial and class prejudices” of the project’s opponents; and violative of plaintiff’s equal protection rights. Plaintiff sought damages and attorney fees pursuant to Code of Civil Procedure sections 1021.5 and 1036 and title 42 United States Code section 1988.
Defendants filed a summary judgment motion as to the remaining cause of action for inverse condemnation. On July 18, 2007, Judge Person signed the order granting defendants’ summary judgment motion. Judgment was entered on the same date. On September 7, 2006, plaintiff’s new trial motion was denied. Plaintiff filed a timely notice of appeal. On September 8, 2006, plaintiff filed a notice of appeal. As noted earlier, Mr. Eliopulos never filed a notice of appeal from the March 23, 2006 judgment in defendants’ favor.
III. DISCUSSION
Plaintiff never filed a Code of Civil Procedure section 1094.5 administrative mandate petition. Only Mr. Eliopulos filed a Code of Civil Procedure section 1094.5 mandate petition which was denied by Judge O’Brien on July 19, 2004. Thus, plaintiff has failed to exhaust its administrative remedies as to the inverse condemnation cause of action. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 14-15, 19; Mola Development Corp. v. City of Seal Beach (1997) 57 Cal.App.4th 405, 410; Rezai v. City of Tustin (1994) 26 Cal.App.4th 443, 448-449.) Further, the fact that Mr. Eliopulos filed a Code of Civil Procedure section 1094.5 administrative mandate petition does not change matters. Judge Person found that Mr. Eliopulos had no authority to challenge defendants’ actions. Judge Person found that Mr. Eliopulos was not the owner of the property nor a successor in interest. Plaintiff is bound Judge Person’s findings which Mr. Eliopulos did not appeal and are now final. (Serra Canyon Co. v. California Coastal Com. (2004) 120 Cal.App.4th 663, 669-672; Mola Development Corp. v. City of Seal Beach, supra, 57 Cal.App.4th at pp. 412-413; Rest.2d Judgments, § 41.) Simply stated, no party with standing ever exhausted plaintiff’s administrative remedies.
The judgment is affirmed. Defendants, The City of Palmdale and The City Council of the City of Palmdale, are to recover their costs incurred on appeal from plaintiff, J.P. Eliopulos Enterprises, Inc.
I concur: KRIEGLER, J.
MOSK, J., Concurring
I concur.
This case presents a procedural quagmire. In the end, plaintiff J.P. Eliopulos Enterprises, Inc. (plaintiff) had a second amended complaint with one cause of action—“taking of property without just compensation”—i.e. inverse condemnation. Plaintiff alleged that defendants’ actions “deprived, and continue to deprive, Eliopulos of all value of vested property rights he had under the [Development] Agreement.” Plaintiff further alleged “defendants have made a final, unequivocal decision to deny” plaintiff its vested rights. (Klopping v. City of Whittier (1972) 8 Cal.3d 39, 43.)
The trial court granted defendants’ motion for summary adjudication on this sole cause of action. The trial court did so on the merits and on the basis that plaintiff is bound by the result in a mandamus proceeding brought by plaintiff’s president, Mr. Eliopulos. (See Campbell v. Scripps Bank (2000) 78 Cal.App.4th 1328, 1334 [collateral estoppel when issue decided against one in privity with party].) As plaintiff was the property owner, Mr. Eliopulos had no standing, but the trial court had reached the merits.
Generally, a proceeding for a writ of administrative mandate under Code of Civil Procedure section 1094.5 is the exclusive remedy for judicial review of the quasi-adjudicatory administrative action of the local agency, including for land use decisions. (Rezai v. City of Tustin (1994) 26 Cal.App.4th 443, 448-449.) An action for inverse condemnation normally may be made after the exhaustion of administrative remedies, including a mandamus proceeding. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 14.) A landowner may join the inverse condemnation claim to the administrative mandamus claim. (Id.)
With respect to anticipatory breach of contract claim that was not allowed, the motion was made by Mr. Eliopulos. He did not appeal; thus, that decision cannot be appealed here. Even if it could, “‘[T]he trial court has wide discretion in allowing the amendment of any pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown.’ [Citations.]” (Record v. Reason (1999) 73 Cal.App.4th 472, 486.) The trial court had dealt with the breach of contract claim in sustaining a demurrer to Mr. Eliopulos’s complaint. The trial court did so on the merits and without regard to any standing issue. The trial court, in not allowing the amended claim of plaintiff as to an anticipatory breach of contract, said that this claim was just a repeat of the claim it had already ruled upon. The same ruling would be applicable to plaintiff. Because of this, the shifting of parties, and the time taken on the matter, the trial court’s decision was not an abuse of discretion. Moreover, the proposed claim was just another means of attacking a land use decision and thus arguably had to be first pursued by a petition for writ of mandamus.
Plaintiff failed to file the required mandamus action. Plaintiff asserts it is anomalous to say it is bound by the mandamus ruling against Mr. Eliopulos and then require it to maintain a mandamus action in order to appeal. There was no appeal of the denial of mandamus to Mr. Eliopulos. Whether that ruling is binding upon plaintiff is irrelevant because plaintiff did not meet the procedural requirements of its claim that is now on appeal. Plaintiff asserts it did pursue the writ proceeding to completion and is therefore entitled to maintain its inverse condemnation claim. But it did not pursue the writ proceeding at all. Mr. Eliopulos did. Plaintiff also contends that this procedural requirement was not raised before the trial court. But it is axiomatic that we review the trial court decision granting summary adjudication de novo. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) The parties addressed that issue in their briefs before this court. (Code Civ. Proc., § 437c, subd. (m)(2).)