Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. GIN057318-1, Robert P. Dahlquist, Judge.
O'ROURKE, J.
Matthew Speights appeals from a summary judgment in favor of the City of Oceanside and the Oceanside City Council (collectively City) on his first amended complaint for inverse condemnation. In granting summary judgment, the trial court ruled that Speight's claim was based on a regulatory taking theory and thus he was required to challenge the assertedly offending regulatory conduct by writ of mandamus before or simultaneously with his claim for monetary compensation.
On appeal, Speights advances several arguments presumably intended as a foundation for one overarching theme: that he had a state and federal constitutional "vested" property right to use his property, which right cannot be "regulated away." Speights contends that as to this vested right, he was subjected to both physical and regulatory takings, as well as unreasonable precondemnation conduct and due process violations by City. Speights contends the authority on which the trial court relied in granting summary judgment – Hensler v. City of Glendale (1994) 8 Cal.4th 1 (Hensler)– is an inapposite statute of limitations case and does not compel summary judgment in City's favor. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The undisputed material facts are taken from the parties' separate statements filed in connection with City's summary judgment motion and other facts in the light most favorable to Speights as the losing party. (Code Civ. Proc., § 437c, subd. (c); McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96-97.)
Though we are bound to view Speights's evidence liberally, we are compelled to note that his factual statement contains assertions and conclusions that we do not consider. Some assertions are regarding the nature of the storm water flow from his property whose sole record support is topographical and other maps and drainage plans that were part of a hydrology study. For example, Speights asserts: "In the [drainage] report and plans, the storm water from Speights' [sic]property, was gathered through a series of catch basins, artificial drainage ditches and pipes, and then exited on the middle, east side, of his property, through a 24" RCP. From there it continued running in a southeasterly directionacross the Riverview Townhomes property, then running under N. River Road, then into the San Luis Rey River where it was discharged.... Essentially, running down hill and following gravity until connecting with a major riparian watercourse." (Italics omitted.) To draw these kinds of conclusions from maps alone requires support by expert testimony. (Cf. Evid. Code, § 801, subd. (a) [expert testimony is proper if "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact"].) In any event, the assertions were not made in Speights's opposing summary judgment declarations or opposing separate statement of material facts, and for that reason we do not consider them. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [on appeal from summary judgment, appellate court may consider only those facts that were before the trial court and disregard any new factual allegations made for the first time on appeal; "Thus, unless they were factually presented, fully developed and argued to the trial court, potential theories which could theoretically create 'triable issues of material fact' may not be raised or considered on appeal"]; Peart v. Ferro (2004) 119 Cal.App.4th 60, 70.) Other assertions are made without record citation. Still others are supported by citations to Speights's first amended complaint or opposing summary judgment points and authorities. Summary judgment cannot be defeated by a plaintiff's reliance on conclusionary or argumentative assertions without evidence or on allegations of the complaint. (Roberts v. Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1404; Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524 [to avoid summary judgment, party must produce admissible evidence raising a triable issue of fact]; see also Code Civ. Proc., § 473c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849; Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, 97[to defeat summary judgment plaintiff must show specific facts and cannot rely on the allegations of the pleadings].) However, we do consider all of the evidence offered in Speights's supplemental briefing in the trial court because there is no indication City objected to the trial court's consideration of that evidence. (See Lonicki v. Sutter Health Cent. (2008) 43 Cal.4th 201, 206 [on appeal from summary judgment, reviewing court must consider " ' "all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained" ' "].) On that same principle, we consider City's evidence concerning the property's $195,000 purchase price, to which Speights objected without obtaining a ruling on his objection.
In May 2001, Speights received planning commission approval of a development plan on 1.5 acres of property in the City of Oceanside that he had purchased in 2000 for $195,000. Speights's property is adjacent to property owned by the Oceanside Unified School District (the District). The 2001 development plan contained several conditions involving drainage; one required that "[g]rading and drainage facilities shall be designed to adequately accommodate the local storm water runoff and shall be in accordance with the City's Engineers Manual and as directed by the City Engineer." Others required storm drain systems to be designed and installed to the city engineer's satisfaction, and required the final drainage design to be based on a hydrologic/hydraulic study to be approved by the city engineer during final engineering. Another stated: "Storm drain facilities shall be designed and located such that the inside travel lanes on North River Road, downstream of the subject property, be passable during conditions of a 100-year frequency storm." The conditions placed responsibility on Speights to dedicate all storm drain easements where required and obtain any off-site easements for storm drainage facilities.
On April 10, 2002, City approved Speights's precise drainage and grading plans, which required Speights to over excavate the site four to six feet below grade. Speights had advised the District that he would be excavating along their common property line and would leave its property in its original condition. He commenced grading and observed no evidence of drainage from the District property. During that month, Speights posted bonds in the amount of $294,289 and committed to a $2.7 million construction loan, committing to another $736,788 by the end of the month. On April 30, 2002, Speights's construction crew impacted and damaged a subsurface storm water drainage line located on the District's property. After the end of the pipe was uncovered, some of the water began to flow onto the District's and Speights's properties.
Speights promptly notified City of the pipe's discovery, proposed to repair its uncovered end, rebury it and return the property to its former condition. City rejected that proposal and required him to address the problem at his expense before it would issue a certificate of occupancy. In late 2002, Speights hired engineers to prepare a drainage report and plans to resolve the issue. He also hired a surveying firm to prepare an easement in City's favor for the pipeline route through his property. At about this time, Speights was making inquiries with City staff about changing his development plan from apartments to condominiums.
In February 2003, when Speights's project was about 70 percent complete, his engineering company advised him that City wanted him to increase the size of a drain pipe under North River Road. Speights's engineers submitted their plans, but City did not approve them. Speights's additional efforts to obtain City's plan checker's approval were unavailing.
In June 2003, facing foreclosure on his construction loan, Speights installed a drainage line running across a portion of the District's property and his own property, which connected the District's system to his own. He did so without City approval due to its delay in responding to his submittals concerning the drainage issue. At some point during 2003, Speights asked City to allow him to post a bond for the drainage improvements so he could begin renting the units and receiving income to avoid foreclosure. City refused his request.
In February 2004, City issued Speights a temporary certificate of occupancy requiring him in part to redesign, secure and install the storm drain system to the city engineer's satisfaction, base the storm drain's final design on a hydrologic/hydraulic study approved by the city engineer, assume responsibility for obtaining any off-site easements for storm drainage facilities, and make and complete the storm drain improvements between July and August 2004 during the adjacent elementary school's summer break. Despite issuance of the temporary certificate of occupancy, Speights could not rent or refinance the project because City refused to issue approvals to hook up gas meters. Speights agreed to the conditions under pressure due to his financial condition.
In March 2004, City representatives began considering purchasing Speights's property, noting Speights's financial trouble and internally characterizing the matter as a "golden opportunity" to realize an affordable rental project. Speights authorized City to contact his first mortgage lender to discuss the possible acquisition. At some point, City's director of housing, Margery Pierce, called Speights and told him that if he did not take City's offer, it would buy his note and finish foreclosing on him, and he would not get his storm drain approvals. In April 2004, City offered to purchase the property for $4.4 million. Speights rejected the offer. He later refinanced his construction loan with different lenders and used the property (and other properties he owned) as collateral for those loans.
After City's purchase offer, Speights submitted a request for a change in his development plan and a new application to convert his project to condominiums. The planning director rejected the request. In June 2005, he unsuccessfully attempted to appeal the planning director's decision and eventually provided City with a legal opinion from his attorney explaining why he was entitled to change his development plan. In November 2005, City's planning commission adopted a resolution approving a zoning amendment, tentative map, conditional use permit and revision to the property's development plan for condominium conversion. The resolution noted the inadequacy of existing downstream storm drains and acknowledged Speights's proposal to construct new storm drain facilities between the project site and an existing concrete storm drain channel running along the west side of North River Road, approximately 730 feet east of the site. It also included numerous conditions relating to storm water drainage, including requiring engineering plans be approved by the City's deputy public works director, and requiring storm drain facilities to be "designed and located such that the inside travel lanes on streets with Collector or above design criteria shall be passable during conditions of a 100-year frequency storm."
The planning commission resolution states: "The drainage report submitted with this Tentative Map by the developer's engineer reveals that existing and previously proposed downstream storm drain facilities are inadequate to handle runoff from this development. Consequently, the Developer proposes to construct new storm drain facilities between the project site and the existing concrete storm drain channel that runs along the westerly side of the North River Road Park, approximately 730 feet east of the project site. The proposed system will be adequately sized to handle runoff from the project site and from all contributing drainage areas. The developer shall design and construct said facilities per current City standards prior to issuance of any permits or certificates of occupancy or approval of the final map. Engineering plans for said facilities shall be approved by the Deputy Public Works Director. The developer shall arrange recordation of adequate easement(s) and maintenance agreements(s) for said storm drain facilities prior to issuance of any permits or certificates of occupancy or approval of the final map. The easement document(s) and the maintenance agreement(s) shall be approved by the Deputy Public Works Director and the City Attorney and shall run with the properties involved in perpetuity."
In January 2006, the City Council adopted a resolution approving a conditional use permit and incorporating all of the planning commission's findings and conditions from its November 2005 resolution. The resolution provides, "NOTICE IS HEREBY GIVEN that the time within which judicial review must be sought on this decision is governed [by] Code of Civil Procedure Section 1094.6."
Speights eventually implemented the drainage solutions outlined in the 2005 development plan, which improvements were constructed entirely on the District's property. However, at some point in 2006, his lender demanded that he assign control of the property to the lender's attorney in lieu of foreclosure. Because the improvements were on the District's property, Speights never dedicated easements on his property to City, though Speights had previously paid professionals to prepare drainage plans and easement documents. The District conveyed an easement to City for the storm water drainage facilities constructed on its property.
In August 2006, Speights filed a complaint against City, the Oceanside City Council, and others, alleging a single cause of action for inverse condemnation. In part, he alleged his property was diminished in value, thereby effecting a taking and/or damaging for public use without payment of just compensation, by City's "unreasonable, oppressive and unlawful" actions, which "coerced [him] into agreeing to convey easements for stormwater drainage lines to City and to pay the costs of designing and installing said lines at exorbitant costs...." The trial court overruled City's ensuing demurrer, ruling Speights had alleged facts sufficiently showing unreasonable precondemnation conduct by City and improper burdensome requirements imposed during project construction.
In early 2007, Speights's lender negotiated a sale of the property, and Speights sold it and his related business interest for $6.22 million to avoid foreclosure. City issued occupancy authorization in May 2007, and the project was eventually completed essentially as Speights had originally proposed.
In July 2007, City moved for summary judgment on grounds (1) Speights could not make out an inverse condemnation claim under a theory of unreasonable precondemnation conduct under Klopping v. City of Whittier (1972) 8 Cal.3d 39 (Klopping)because there was no evidence City ever intended to take the property through eminent domain; (2) Speights's claim that City took his property by imposing storm water drainage conditions was time-barred because he did not challenge City's imposition of the conditions within 90 days; (3) Speights's takings claims were barred by res judicata and waived by his failure to seek review of City's determinations by a petition for writ of administrative mandamus. The trial court denied the motion on grounds City did not meet its threshold burden of proof on these issues.
In early 2008, Speights was granted leave to file a first amended complaint for inverse condemnation. Among other corrections and modifications, Speights added allegations that City "unreasonably demand[ed] that Plaintiff entirely replace and 'upsize[,'] at Plaintiff's sole cost and expense, an existing, deficient City-owned drainage facility" before he could obtain a certificate of occupancy, which requirement was in excess of City's police powers, violated certain constitutional principles, and was improperly imposed to facilitate City's acquisition of the project. Speights also alleged City staff improperly blocked and delayed his proposed condominium conversions to create duress, thus allowing City to acquire the project more cheaply. Speights's first amended complaint survived City's second demurrer and motion to strike.
City again moved for summary judgment. It argued Speights could not prove a takings claim based on any theory; he did not dedicate his property to City and there was thus no physical occupation, and he could not prove a regulatory taking because "the economic impact of addressing drainage requirements was small, the City's drainage requirements had no effect on investment-backed expectations because the project was eventually completed essentially as originally planned, and the character of the City's action was a proper regulation of storm water to address flooding risks." City also argued Speights could not rely upon cases decided in the context of land use exactions (e.g., Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528, 538 (Lingle)) because he denied he was challenging formal adjudicative land use exactions and the only easement dedicated to City was on the District's, not Speights's, property. City finally argued Speights had no claim for diminution in value based on unreasonable precondemnation conduct because no eminent domain action was threatened or pending, and there was no "condemnation cloud" on the title.
Speights opposed the motion, asserting that his case "[did] not fit into either category" of regulatory taking, but rather was about City "imposing oppressive and illegal requirements after the start of construction when [he] was vested." He argued, inter alia, his "vested right" exempted him from making any preliminary challenges under the Government Code or otherwise exhausting his remedies. In reply, City pointed out that Speights's previously unasserted "vested rights doctrine" was not a takings theory or a constitutional claim for damages. It maintained that a plaintiff would need to prove a taking under a recognized theory even where vested rights were at issue. City further argued that the 2005 development plan and 2006 city council resolution required Speights to construct the storm water drainage improvements at issue, and Speights's failure to challenge those approvals by petition for writ of mandamus barred his inverse condemnation action.
At oral argument on the matter, Speights's counsel clarified that Speights was relying on a theory of regulatory taking caused by City's conduct. Based on that clarification, the trial court continued the hearing to permit the parties to file supplemental briefing. In his supplemental brief, Speights addressed the factors and ad hoc balancing test set out for regulatory takings in Kavanau v. Santa Monica Rent Control Board (1997) 16 Cal.4th 775 (Kavanau), arguing the "interpretation" of those facts was "greatly disputed." He distinguished the cases relied upon by City, and repeated his argument that he had a "vested right and the City imposed illegal requirements after vesting" without an " 'essential nexus' " as required by Dolan v. City of Tigard (1994) 512 U.S. 374 (Dolan) and Nollan v. California Coastal Commission (1987) 483 U.S. 825 (Nollan). Speights reemphasized that his takings claim was based on City's precondemnation conduct, which "took away [his] ability to use his property for a substantial period of time, until it was lost."
In its supplemental filing, City argued Speights had abandoned all theories other than one under the ad hoc test for regulatory takings; his reliance on Nollan and Dolan, precondemnation cases, and vested rights cases failed because he had never dedicated an easement; there was no eminent domain action; and it had not imposed "new" or "additional" development conditions after the start of construction. City again maintained Speights's failure to challenge its approval of the conditions by petition for writ of mandate barred his action as a matter of law.
Following arguments on the matter and additional briefing as well as submission of a supplemental declaration from Speights, the trial court granted City's motion. It observed there was no dispute that although Speights was pursuing a claim for regulatory taking, he did not challenge City's regulatory conduct by petition for writ of mandamus before filing suit. It ruled under Hensler, supra, 8 Cal.4th 1 and other cases, Speights's inverse condemnation claim was barred. This appeal followed.
DISCUSSION
I. Summary Judgment Standards
" ' "A motion for summary judgment must be granted if all of the papers submitted show 'there is no triable issue as to any material fact and... the moving party is entitled to a judgment as a matter of law. In determining whether the papers show... there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers,... and all inferences reasonably deducible from the evidence....' ([Code Civ. Proc.,] § 437c, subd. (c).) A defendant has met its burden of showing a cause of action has no merit if it 'has shown that one or more elements of the cause of action... cannot be established, or that there is a complete defense to that cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show... a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff... may not rely upon the mere allegations or denials of its pleadings to show... a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists....' " ' " (Skoumbas v. City of Orinda (2008) 165 Cal.App.4th 783, 790-791.)
"In meeting its overall burden of persuasion, the defendant has the initial burden of production entailing him to 'present[ ]... "evidence" ' [citation] supporting a prima facie showing of the nonexistence of any triable issue of material fact as to the defense. [Citation.] Once the defendant has met that initial burden of production, the burden shifts to the plaintiff to present evidence showing the existence of a triable issue of one or more material facts as to that defense." (Rancho Viejo LLC v. Tres Amigos Viejos LLC (2002) 100 Cal.App.4th 550, 558.) " 'There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof' at trial." (Ibid.)
On appeal, the reviewing court exercises its independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335.) We view the evidence in the light most favorable to Speights as the losing party, construing City's evidence strictly and Speights's evidence liberally, and resolve any doubts as to the propriety of granting the motion in Speights's favor. (Shin v. Ahn (2007) 42 Cal.4th 482, 499; Rancho Viejo LLC v. Tres Amigos Viejos LLC, supra, 100 Cal.App.4th at p. 558.)
II. Overview of Takings Jurisprudence
Because Speights relies on several different theories by which he contends he suffered a compensable taking, it is helpful at the outset to provide a brief overview of the pertinent legal principles relating to the categories of governmental takings.
The state and federal Constitutions guarantee real property owners "just compensation" when their land is taken for a public use. (Cal. Const., art. I, § 19; U.S. Const., Fifth Amend.; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 259, citing Lingle, supra,544 U.S. 528 & Kavanau, supra, 16 Cal.4th 761, 773.) The California Constitution also requires just compensation when private property is "damaged for a public use." (Cal. Const., art. I, § 19; Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 13.) By including damage to property as well as its taking, California " 'protects a somewhat broader range of property values' than does the corresponding federal provision." (San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 664; Herzberg, at p. 13.)
" 'The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property' — a categorical taking." (Shaw v. County of Santa Cruz, supra, 170 Cal.App.4th at p. 260.) "When property is damaged, or a physical invasion has taken place, an inverse condemnation action may be brought immediately because an irrevocable taking has already occurred." (Hensler, supra, 8 Cal.4th at p. 13; see Hurwitz v. City of Orange (2004) 122 Cal.App.4th 835, 847-848.)
Additionally, " 'government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster — and... such "regulatory takings" may be compensable under the Fifth Amendment.' [Citation.] The United States Supreme Court has recognized 'that a regulation of property that "goes too far" may effect a taking of that property, though its title remains in private hands. In such a case, the property owner may bring an inverse condemnation action, and if it prevails, the regulatory agency must either withdraw the regulation or pay just compensation. [Citation.] Even if the agency withdraws the regulation, the property owner may have a right to just compensation for the temporary taking while the regulation was in effect.' " (Shaw v. County of Santa Cruz, supra, 170 Cal.App.4th at p. 260.)
"Two categories of regulatory action will generally be deemed per se compensable takings. First, where government requires an owner to suffer a 'permanent physical invasion' of his property for such things as cable lines, it must provide just compensation. [Citations.] Second, where the government action does not result in any physical invasion of the property, the action will still be considered a taking if the regulation deprives the owner of 'all economically beneficial or productive use of [the] land.' [Citations.] '[T]he government must pay just compensation for such "total regulatory takings," except to the extent that "background principles of nuisance and property law" independently restrict the owner's intended use of the property.' [¶] Regulatory takings challenges outside these two categories, i.e., those that do not involve a physical invasion or that leave the property owner with some economically beneficial use of the property, are governed by the 'essentially ad hoc, factual inquiries' set forth in Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124...." (Shaw v. County of Santa Cruz, supra, 170 Cal.App.4th at pp. 260-261.)
A landowner claiming that application of government regulations effects a taking of a property interest cannot sue directly on an inverse condemnation cause of action unless state administrative and judicial remedies have been exhausted. (Hensler, supra, 8 Cal.4th at pp. 13-14.) Hensler explained: "If the alleged taking is a 'regulatory taking,' i.e., one that results from the application of zoning laws or regulations which limit development of real property,... the owner must afford the state the opportunity to rescind the ordinance or regulation or to exempt the property from the allegedly invalid development restriction once it has been judicially determined that the proposed application of the ordinance to the property will constitute a compensable taking. The owner may do so, where appropriate, by a facial challenge to the ordinance, but in most cases must seek a variance if that relief is available and then exhaust other administrative and judicial remedies. The facial challenge may be through an action for declaratory relief [citation]. The latter, an 'as applied' challenge to the development restrictions imposed by the administrative agency, may be properly made in a petition for writ of 'administrative' mandamus to review the final administrative decision (Code Civ. Proc., § 1094.5) and that action may be joined with one for inverse condemnation. A declaratory relief action also may be joined with an action in inverse condemnation. [Citation.] Damages for the 'taking' may be sought in an administrative mandamus action (Code Civ. Proc., § 1095), or, if the plaintiff seeks a jury trial, in the joined inverse condemnation action. [Citations.] The owner 'may not, however, elect to sue in inverse condemnation and thereby transmute an excessive use of the police power into a lawful taking for which compensation in eminent domain must be paid.' [Citation.] Compensation must be paid for a permanent taking only if there has been a final judicial determination that application of the ordinance or regulation to the property is statutorily permissible and constitutes a compensable taking. Even then the state or local entity has the option of rescinding its action in order to avoid paying compensation for a permanent taking." (Hensler, 8 Cal.4th at pp. 13-14.) A landowner who declines to follow these administrative remedies waives the right to sue for inverse condemnation. (Id. at p. 19.)
III. Threshold Arguments
Speights makes several arguments preliminary to his takings contentions. First, invoking the so-called "civil law" rule of water law tort liability, which distinguishes between damage caused by natural surface water drainage and that resulting from " 'watercourse' " water flowing from drains or other artificial means (see Skoumbas v. City of Orinda, supra, 165 Cal.App.4th at pp. 792-793), Speights argues he was not required to accept the District's " 'watercourse' " water on his property without City using eminent domain and paying him just compensation. For this proposition, he relies in part on Inns v. San Juan Unified School District (1963) 222 Cal.App.2d 174, in which the Court of Appeal upheld but modified an inverse condemnation judgment against a school district that had used a concrete drainage pipe to divert water from its property onto an adjacent property. (Id. at pp. 176-180.)
The Court of Appeal in Skoumbas v. City of Orinda, supra, 165 Cal.App.4th 783 recently explained: "[A] landowner's tort liability for the diversion of surface water is decided under a rule of reasonableness.... When a landowner diverts surface waters in an unnatural manner and damages a lower property, the upper landowner is liable in tort to the extent he or she failed to take reasonable care in the use of the upper property. [Citation.] This rule of liability is referred to as the modified 'civil law rule.' [Citations.] Simply stated, the modified civil law rule provides that: '1. If the upper owner is reasonable and the lower owner unreasonable, the upper owner wins; 2. If the upper owner is unreasonable and the lower owner reasonable, the lower owner wins; and 3. If both the upper and lower owner are reasonable, the lower owner wins also.' " (Id. at p. 793.)
The Inns court modified the judgment to grant the school district in that case an easement to continue its use of the drainage system. (Inns v. San Juan Unified School District, supra, 222 Cal.App.2d at p. 180.)
We fail to see Inns's significance to the present case. Speights's inverse condemnation cause of action was not brought against the District, on whose property the terminus of the storm drain at issue is undisputedly located. The District and City are separate and distinct public entities (Department of Finance v. Commission on State Mandates (2003) 30 Cal.4th 727, 752, fn. 20 [school districts are state agencies]; Jackson v. Board of Ed. Of City of Los Angeles (1967) 250 Cal.App.2d 856, 858) and there is no evidence City controlled the storm drain or otherwise accepted responsibility for the water diverted from the District's property.
Second, Speights asserts that the required storm water improvements were built solely on the District's property and served only the District, and contends there is no nexus between his property and the District's storm water drain system because the drain did not convey any of his storm water. Thus, he argues, under Dolan, supra, 512 U.S. 374 and Nollan, supra, 483 U.S. 825, he should not have been "singled out to disproportionately bear the burden of a public utility that should have been borne by the public in general" by the requirement that he construct a new storm water system for the District. Nollan and Dolan set out a heightened level of judicial scrutiny for particular governmental actions that are claimed to constitute a taking, including government demands that landowners dedicate an easement allowing public access on their property, or imposition of "special, discretionary permit conditions on development by individual property owners...." (See Lingle, supra, 544 U.S. 528, 546; San Remo Hotel L.P. v. City and County of San Francisco, supra, 27 Cal.4th at pp. 664-666; Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 875-876, 881 (plur. opn. of Arabian, J.) [extending Nollan/Dolan heightened standard to ad hoc mitigation fees, characterized the fee as a special discretionary permit condition on development by individual property owners].) "The 'sine qua non' for application of Nollan/Dolan scrutiny is thus the 'discretionary deployment of the police power' in 'the imposition of land-use conditions in individual cases.' " (San Remo Hotel, at p. 670.) Speights's reliance on Nollan/Dolan suggests that his takings claim is premised on City's conduct in imposing the challenged drainage conditions. However, as we point out below, this is a theory Speights attempts to disclaim to avoid exhaustion requirements.
Third, Speights argues that City could not have required him to "accept" the District's water or supplement its drainage system as a condition of approval, because the District's pipe was not known to exist at the time City set out those conditions. He maintains that, similar to the building permit condition involved in Salton Bay Marina, Inc. v. Imperial Irrigation District (1985) 172 Cal.App.3d 914, 940-943, City's condition was not clear or readily apparent and thus he cannot be deemed to have accepted it and it should not be enforced. Again, this contention attacks City's imposition of the challenged drainage conditions, a claim that is barred if not first challenged by petition for writ of mandate. (Salton Bay Marina, at pp. 940-941, in part citing Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 128.)
Fourth, Speights contends that because he paid "over $350,000 in impact fees and permits to build" and received "lawful" permits, he had a constitutional vested right that the City could not regulate away without paying him just compensation. He argues: "Once a property [right] is vested, the City loses its right to regulate zoning and land use or deny use of the property without paying just compensation, like they can do with vacant property." Speights distinguishes the case law City offered on grounds it involves parties still trying to obtain approvals or permits who do not hold (as he did) vested property rights.
All of these arguments in our view lead to one theme: City's condition that Speights supplement the District's storm drain was unreasonable, unlawful and unenforceable, and City's refusal to grant Speights a final certificate of occupancy until he met that condition constitutes a taking for which City should compensate him for deprivation of the "use" of his property. Yet, Speights seeks to avoid framing his inverse condemnation action as claiming that City imposed an "illegal condition" or land use regulation. He asserts (in both his opening and reply briefs) the "gravamen" of his case is that City "deprived Speights use [sic]of his vested rights to use his property." Based on this premise, Speights argues he suffered both physical and regulatory takings as well as compensable damage from City's assertedly "unreasonable and oppressive precondemnation conduct," for which he was not subject to an exhaustion of administrative remedies requirement or shortened statute of limitations for a petition for writ of mandate.
We reiterate that on review of a summary judgment, our task is to examine Speights's inverse condemnation cause of action to determine: (1) the nature of the claim asserted; (2) whether City established facts that negate his claim; and, if so, (3) whether Speights's opposition demonstrates the existence of a material factual issue for a trier of fact. (Code Civ. Proc., § 437c, subds. (c) & (p).) We are to identify, not resolve, issues of fact and credibility. (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1345; Melamed v. City of Long Beach (1993) 15 Cal.App.4th 70, 76.)
IV. Vested Rights Doctrine
Under the judicial vested rights doctrine, a property owner acquires a vested right to complete a construction project in conformity with a building permit once it has performed substantial work and incurred substantial liabilities in good faith reliance upon a building permit. (Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 791 (Avco); see Davidson v. County of San Diego (1996) 49 Cal.App.4th 639, 646; Blue Chip Properties v. Permanent Rent Control Board of the City of Santa Monica (1985) 170 Cal.App.3d 648, 659.) " 'Once a landowner has secured a vested right the government may not, by virtue of a change in the zoning laws, prohibit construction authorized by the permit upon which he [or she] relied.' [Citation.]... '[N]either the existence of a particular zoning nor work undertaken pursuant to governmental approvals preparatory to construction of buildings can form the basis of a vested right to build a structure which does not comply with the laws applicable at the time a building permit is issued.' [Citation.] '[T]he rights which may "vest" through reliance on a government permit are no greater than those specifically granted by the permit itself.' " (Davidson, at p. 646, quoting Avco, 17 Cal.3d at pp. 791, 793 & Santa Monica Pines, Ltd. v. Rent Control Board (1984) 35 Cal.3d 858, 866, disapproved on other grounds in City of West Hollywood v. Beverly Towers, Inc. (1991) 52 Cal.3d 1184, 1191-1192.) A leading treatise explains: "The vested rights rule requires that the government agency exercise its final discretion to issue a grant of authority or permit which specifically describes a particular approval or work of improvement. Thereafter, if the developer begins to perform the work described in the grant or permit, he or she may acquire a vested right to complete the specific and particular work that is described. The grant or permit does not give any rights to complete any work not specifically described." (9 Miller & Starr, Cal. Real Estate (3d ed. 2001) § 25:70, pp. 324-325, 327-328.)
Under this doctrine, the property owner may not be subjected to subsequently adopted regulations prohibiting or restricting the project. (See Hafen v. County of Orange (2005) 128 Cal.App.4th 133, 142-143; Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1270-1271; Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach (2001) 86 Cal.App.4th 534, 552; Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 321-322.) " 'The vested rights doctrine is " 'predicated upon estoppel of the governing body.' " [ Citation.] This is a principle of equitable estoppel which may be applied against the government where justice and fairness require it.' " (Hermosa Beach, at p. 551.) A developer can face "daunting odds" in establishing estoppel in a land use case due to the severe limitations imposed by courts balancing private interests with public policies to uphold legally established requirements for obtaining permits. (Toigo v. Town of Ross, at p. 321.) "[E]stoppel can be invoked in the land use context in only 'the most extraordinary case where the injustice is great and the precedent set by the estoppel is narrow.' " (Ibid., quoting Smith v. County of Santa Barbara (1992) 7 Cal.App.4th 770, 775.)
On appeal, Speights does not describe the nature and extent of his claimed vested right, nor does he clearly identify the permit under which he assertedly obtained a vested right to build. In the trial court, he argued he had a vested right to complete his project "in accordance with [the] approved permits." There is no dispute that in May 2001 Speights obtained City's approval of his original development plan for apartment buildings and performed substantial work on his project in reliance on that plan. Nor is there any dispute that on April 10, 2002, about twenty days before Speights discovered the District's subsurface pipe, City approved his precise grading and drainage plan. The relevant question is whether this evidence shows Speights obtained a vested right to complete his project in conformity with the 2001 development plan or the drainage plan that City approved in April 2002, so as to equitably estop City from imposing any new or different drainage requirements. Because City's actions are not in dispute and the question requires an analysis of Speights's development plans and permits, the question is one of law. (E.g., Toigo v. Town of Ross, supra, 70 Cal.App.4th at p. 320 [determination of estoppel under claim of vested rights is one of law where facts are undisputed and only one reasonable inference may be drawn]; Aries Dev. Co. v. California Coastal Zone Conservation Com. (1975) 48 Cal.App.3d 534, 545 [same].)
We conclude as a matter of law on the undisputed facts in this record that Speights has not established a vested right to complete his project without complying with City's storm drain requirements. He relies on Pardee Construction Co. v. California Coastal Commission (1979) 95 Cal.App.3d 471, which we find inapposite, and Avco, supra, 17 Cal.3d 785. Avco requires that our focus be on whether Speights obtained permits providing definitive governmental approval for the improvements of which he complains; only construction and expenditures undertaken by Speights in reliance on that permit are considered in assessing whether a vested right has arisen. (See Avco, at p. 793; Highland Development Company v. City of Los Angeles (1985) 170 Cal.App.3d 169, 186-187 [in developer's claim that a city improperly blocked him from his vested right to use a driveway only the driveway permit was relevant; the large sums of money expended to outfit the garage served by the driveway were not to be considered in the " 'reliance' scale when assessing the vested rights claim], disapproved on other grounds in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 744, fn. 11.)
We see no relevance of Pardee Construction Co. v. California Coastal Com., supra, 95 Cal.App.3d 471 other than for general propositions relating to the vested rights doctrine. Pardee involved a statute within the 1972 Coastal Act exempting any person with vested development rights from having to secure certain additional permits," 'providing that no substantial changes' " were made to the pre-approved development. (Id. at p. 474.) Pardee had obtained an exemption under that statute and constructed 152 units, but elected to delay building 79 remaining units, after which he was refused another exemption when he sought a new building permit. (Id. at pp. 475-476.) On review of Pardee's writ of mandate, this court held the California Coastal Commission could not, through its general authority to promulgate regulations, exceed the powers expressly granted by the statute and add additional permitting conditions on the maintenance of vested development rights. (Id. at pp. 477-478.) This case does not involve a statutory exemption, so Pardee is factually inapposite.
If Speights claims a vested right stemming from City's May 2001 permit, the claim fails for that permit's lack of details of a specific work of improvement relating to drainage. (E.g. Avco, supra, 17 Cal.3d at p. 794; Court House Plaza Co v. City of Palo Alto (1981) 117 Cal.App.3d 871, 885; Billings v. California Coastal Com. (1980) 103 Cal.App.3d 729, 735 [vested right might arise from preliminary permit approving a specific projectand contain all final discretionary approvals required for completion of the project]; Patterson v. Central Coast Regional Com. (1976) 58 Cal.App.3d 833, 842-843.) The May 2001 development plan provided its drainage design was "conceptual only" and that the final design was to be based on a study to be approved by the city engineer during final engineering. Under Highland Development Company v. City of Los Angeles, supra, 170 Cal.App.3d at pages 186-187 and the other authorities cited above, Speights's payments toward construction of apartment buildings and improvements unrelated to drainage do not factor into the reliance equation.
If Speights asserts a vested right stemming from City's April 10, 2002 permit approving his precise grading and drainage plan, the claim fails because Speights cannot present evidence he "performed substantial work and incurred substantial liabilities in good faith reliance on [that] permit" before he discovered the District's storm drain and City advised him he would be required to address that new issue to its engineer's satisfaction. (Avco, 17 Cal.3d at p. 791; Santa Monica Pines, Ltd. v. Rend Control Board, supra, 35 Cal.3d 858, 867 [vested rights claim rejected where appellants only expended $1,709 between approval of the tentative subdivision map and adoption of the rent control law at issue]; Toigo v. Town of Ross, supra, 70 Cal.App.4th at p. 321; Aries Dev. Co. v. California Coastal Zone Conservation Com., supra, 48 Cal.App.3d at pp. 549-550.) Because acquisition of a vested right is grounded in estoppel, a developer must show he materially changed his position in reliance on a government representation that his construction was fully approved and legal. (Aries Dev. Co., at pp. 548-549 [developer sought exemption from Coastal Act coastal permit requirements; Court of Appeal held its work performed before date of Coastal Act approval was not done in a good faith belief he had received all final discretionary approvals, noting developer "entertained substantial doubts about his legal position" and speeded up timetable in effort to escape pending land-use controls].) Here, shortly after discovery of the District's drain pipe, City notified Speights he would be required to address the problem of waterflow from the drain onto his property. It is undisputed that after Speights unsuccessfully sought City's approval for his drainage proposals, he proceeded to connect the District's storm drain to his drainage system on the property without City's approval. The uncontradicted facts do not permit an inference that Speights reasonably relied on City's April 2002 permit as City's representation that his construction was fully approved and legal without addressing drainage from District's storm drain. "Good faith reliance on a governmental permit is essential to the acquisition of a vested right." (Id. at p. 548.)
More fundamentally, even to the extent it is based on a vested rights theory, Speights's inverse condemnation action fails because in effect he seeks to invalidate City's drainage requirements imposed as conditions of the 2005 grant of the conditional use permit and revision to his development plan. The exclusive remedy for judicial review of such a claim is administrative mandamus under Code of Civil Procedure section 1094.5. (City of Santee v. Superior Court (1991) 228 Cal.App.3d 713, 718; see also Rezai v. City of Tustin (1994) 26 Cal.App.4th 443, 448-449; Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1211; Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74, 78.) " 'A land[]owner cannot challenge a condition imposed upon the granting of a permit after acquiescence in the condition by either specifically agreeing to the condition or failing to challenge its validity, and accepting the benefits afforded by the permit.' " (City of Santee, at p. 718.) Failure to contest the validity of conditions by means provided for judicial review through administrative mandamus estops Speights from relitigating the same issue "regardless whether the context be declaratory relief or inverse condemnation." (Id. at p. 719.) Absent a timely petition for administrative mandamus to invalidate the drainage conditions imposed by City, Speights cannot litigate the validity of these conditions under any theory, including one framed as an assertion of "vested rights." (Ibid.) We note that cases recognize an exception to the general rule requiring exhaustion of administrative remedies in limited circumstances where a project requires phased permits depending on its progression and " '... the time necessary to challenge the legality of [a fee condition imposed on a subsequent permit] by petition for mandamus is economically impractical....' " (Rezai v. City of Tustin, supra, 26 Cal.App.4th at p. 450, citing McLain Western #1 v. County of San Diego (1983) 146 Cal.App.3d 772, 777; see also Laguna Village, Inc. v. County of Orange (1985) 166 Cal.App.3d 125, 128.) Speights does not rely on these cases on appeal. In fact, Speights argues in his reply brief that McLain is inapposite because it does not involve a property owner's vested right. Even if we were to address the exception, we would conclude for the reasons expressed in Rezai that it does not apply. Here, Speights does not seek refund of a fee condition as had the plaintiffs in both McLain and Laguna Village. Under similar facts, the Rezai court reasoned the exception should not be applied "where the landowner does not seek the refund of a fee, but seeks damages arising from conditions restricting the development or requiring additional amenities. In the former circumstance, the amount in controversy is fixed and does not vary based upon any decision by the administrative body or construction of the project. But in the latter, the claimed damages are uncertain and become irrevocable when the project is built. Liability for such damages, if the project is built without a decision by way of administrative mandamus and the city has erred, would have the same chilling effect on planning decisions eschewed by the courts in Agins v. City of Tiburon [(1979)] 24 Cal.3d 266[, overruled on other grounds in First English Evangelical Lutheran Church of Glendale v. Los Angeles County (1987) 482 U.S. 304, 319] and Air Quality Products, Inc. v. State of California[(1979)] 96 Cal.App.3d 340... " (Rezai, at p. 451.)
The exhaustion requirement in this context is evidenced by the numerous cases in which the plaintiffs' claims of "vested rights" are brought by petition for writ of mandamus. (See Davidson v. Count of San Diego, supra,49 Cal.App.4th at p. 645 [trial court issued peremptory writ of mandate]; Consaul v. City of San Diego (1992) 6 Cal.App.4th 1781, 1791-1792 [plaintiff sought relief in ordinary mandamus under section 1085; Court of Appeal construed petition as raising issues sounding in both ordinary mandamus and administrative mandamus under section 1094.5, subdivision (b)]; Blue Chip Properties v. Permanent Rent Control Board of the City of Santa Monica, supra, 170 Cal.App.3d at p. 654 [petitions for writ of mandate filed by developer and owners seeking to convert apartments to condominiums and claiming vested right to convert without a rental housing removal permit]; Highland Development Co v. City of Los Angeles, supra, 170 Cal.App.3d 169; McCarthy v. California Tahoe Regional Planning Agency (1982) 129 Cal.App.3d 222, 224, 228-229 [challenge to assertion of jurisdiction by California Tahoe Regional Planning Agency to compel encroachment permit allowing highway access to property]; Anderson v. City of La Mesa (1981) 118 Cal.App.3d 657, 659 [petition for peremptory writ of mandate challenged City's imposition of different set back requirement contrary to a previously issued building permit]; Aries Dev. Company v. California Coastal Zone Conservation Com., supra, 48 Cal.App.3d at p. 537 [petition for writ of mandate filed by developer to set aside Coastal Commissions denial of an exemption from permit requirements].)
V. Physical Taking Argument
Speights contends he suffered a physical taking as a result of City's conduct. As we understand it, Speights seems to argue that City prohibited him from "physically using" his property, in part on evidence that a City staff member told Speights he would hold his property " 'hostage.' " He also analogizes his facts to those in which the United States Court of Federal Claims found a physical taking of vested water rights in Estate of Hage (2008) 82 Fed.Cl. 202. Speights argues there is "little difference" between preventing access to a stream of water and preventing access to "streams of renters and condo buyers." We reject these arguments.
As a threshold matter, Speights disclaimed any "physical taking" theory in the trial court by failing to brief that theory in any meaningful way, and he may not raise it for the first time here. (DiCola v. White Bros. Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676; Sangster v. Paetkau, supra, 68 Cal.App.4th at p. 163; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281.) No such theory was presented by counsel's mere assertion at the final summary judgment hearing that Speights was "not saying it is only a regulatory taking analysis" and his statement that he believed there were "other theories" that would support the inverse condemnation claim. Additionally, Speights cites only to argument in his memorandum of points and authorities as support for his assertion about the City representative's "hostage" statement. As we have stated (see footnote 1, ante), a plaintiff does not raise a triable issue of material fact by citing to mere argument. (Roberts v. Assurance Co. of America, supra, 163 Cal.App.4th at p. 1404; Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10-11.)
Even if we were to consider the merits of Speights's arguments, we are unconvinced by his analogy to Estate of Hage, supra, 82 Fed.Cl. 202. We are not bound by lower federal court decisions. (Allegretti & Co. v. County of Imperial (2006) 138 Cal.App.4th 1261, 1274, citing People v. Gray (2005) 37 Cal.4th 168, 226.) Hage is inapposite because it involved the government's active construction of fences on federal grazing land around streams in which the plaintiffs had established a vested water right, preventing the plaintiffs' cattle from accessing water under threat of trespass. (Hage, at p. 211.) The court of federal claims stated those actions "[c]learly... prevented Plaintiffs' access to the water and there was plainly a 'physical ouster' which deprived Plaintiffs of the use of their property." (Ibid.) Here, City did not fence Speights's property, otherwise physically block Speights from accessing his property, or impose an easement requirement.
Nor does Speights persuade us with his reliance on Uniwill L.P. v. City of Los Angeles (2004) 124 Cal.App.4th 537. In his reply brief, Speights argues that as in Uniwill, the gravamen of his cause of action is City's appropriation of an "absolute property right" that is not subject to a 90-day statute of limitations for a writ of mandate. The contention is without merit. Uniwill involved a city's demurrer to a complaint in which the plaintiff developer, Uniwill, alleged that the city had demanded it grant an easement to a privately owned public utility after the city had approved a tentative tract map and the plaintiff had completed substantial work on the project. (Id. at pp. 543-544.) Uniwill had alleged the city's easement requirement was not part of the permit approval process, but "simply coerced in an informal but highly effective manner after Uniwill had obtained all of the permits necessary to complete its project." (Id. at p. 542.) The trial court sustained the City's demurrer on grounds Uniwill had not timely challenged the easement condition within 90 days after it learned of the city's demand that Uniwill grant the easement. (Id. at p. 542.)
The Court of Appeal reversed. (Uniwill L.P. v. City of Los Angeles, supra, 124 Cal.App.4th at pp. 543-544.) It reasoned Uniwill's complaint showed that the easement requirement was not a permit condition, but merely a "threat" to deprive Uniwill of a final tract map and certificate of occupancy on completion of the project in conformity with the previously issued government approvals. (Id. at pp. 543-544.) Thus, the applicable limitations period was the five-year statute of limitations applicable to an inverse condemnation action based on a physical taking (id. at p. 541, citing Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 775), and the complaint's allegations showed the action was filed within five years after the alleged taking. (Uniwill, at pp. 541, 544.) Further, the Court of Appeal reversed judgment on the pleadings in the private utilities' favor, holding Uniwill's complaint contained allegations that may state a cause of action for "recission and restitution for economic distress," and leave to amend could have cured Uniwill's pleading defects. (Id. at p. 545.)
Speights's action is unlike Uniwill's. He has not been subjected to an easement requirement, which would give rise to an action for inverse condemnation based on a physical taking governed by a five-year statute of limitations and not subject to exhaustion requirements. (Travis v. County of Santa Cruz, supra, 33 Cal.4th at p. 775; Hensler, supra, 8 Cal.4th at p. 13.) The five-year limitation period does not apply to a regulatory taking based on enactment of a zoning ordinance, or any other taking claim based on demands made by a governmental agency as conditions of permit approvals. (Travis, 33 Cal.4th at p. 775.) City's imposition of a requirement that Speights increase the size of an existing drain and otherwise construct a drainage system on the District property can in no way be characterized as a per se physical taking of his own property. (Allegretti v. County of Imperial, supra, 138 Cal.App.4th at pp. 1272-1273.)
VI. Regulatory Taking Argument
To the extent Speights is basing his inverse condemnation cause of action on a theory of a regulatory taking, it is barred by his undisputed failure to challenge the City's drainage condition imposed by the 2005 conditional use permit by timely petition for writ of mandamus. (Hensler, supra, 8 Cal.4th at pp. 14-15, 19; Mola Development Corp. v. Seal Beach (1997) 57 Cal.App.4th 405, 410-411; Rezai v. City of Tustin, supra, 26 Cal.App.4th at pp. 448-450; Pfeiffer v. City of La Mesa, supra, 69 Cal.App.3d 74.)
We are cognizant that in framing his regulatory taking challenge, Speights argues it is not a "typical" taking case involving a written law, ordinance, article or code. He describes the "character of the governmental action" as conduct by City representatives to exact a public utility from him without any basis in the original conditions of approval, and hold his property "hostage" until he was "financially suffocated," akin to Uniwill, supra, 124 Cal.App.4th 537. Yet, he proceeds to undertake an analysis under Penn Central Transp. Co. v. New York City, supra, 438 U.S. 104, discussing the extent to which the "regulation" has interfered with distinct investment-backed expectations, and the economic impact of the regulation on him. Because the gravamen of Speights's regulatory taking claim is an attack on City's imposition of the drainage conditions (and unreasonable denial of a certificate of occupancy based on that assertedly invalid condition), we conclude exhaustion requirements are applicable, thus defeating his cause of action on this theory as a matter of law.
VII. Klopping Claim
Speights contends City engaged in unreasonable "precondemnation conduct" of the sort addressed in Klopping, supra, 8 Cal.3d 39 and Tilem v. City of Los Angeles (1983) 142 Cal.App.3d 694 (not followed on damages issues by Housley v. City of Poway (1993) 20 Cal.App.4th 801, 809, fn. 6)in its desire to devalue and obtain his property for low income housing. He describes City's conduct as its: refusal to issue certificates of occupancy or allow him to bond the District's public work project to obtain the certificates of occupancy, threats to buy his loan note and withhold approval unless he sold the property to City, dealing with his lender to purchase his property, interference with his renting his complex at market rates or selling his property and its highest and best use by refusing to issue certificates of occupancy, refusal to allow his change in development plan, and "continual sand bagging and foot dragging."
"In Klopping, the Supreme Court held that the 'just compensation' requirement is also triggered where, prior to a taking, 'the condemner acts unreasonably in issuing precondemnation statements, either by excessively delaying eminent domain action or by other oppressive conduct.' [Citation.] In such circumstances, Klopping held, the Constitution also requires that 'the owner be compensated,' and announced the following rule: in an eminent domain action, 'a condemnee must be provided with an opportunity to demonstrate that (1) the public authority acted improperly either by unreasonably delaying eminent domain action following an announcement of intent to condemn or by other unreasonable conduct prior to condemnation; and (2) as a result of such action the property in question suffered a diminution in market value.' " (Redevelopment Agency of City of San Diego v. Mesdaq (2007) 154 Cal.App.4th 1111, 1134 (Mesdaq), quoting Klopping, supra, 8 Cal.3d at pp. 51-52, 53.)
In the trial court, City's initial response to Speights's Klopping argument was that such damages did not apply because no eminent domain action was threatened or pending with respect to Speights's property. In supplemental briefing, however, City raised Speights's abandonment of the Klopping theory and failure to exhaust administrative remedies. City repeats its initial argument on appeal, relying on Mesdaq, supra, 154 Cal.App.4th 1111, and Melamed v. City of Long Beach, supra, 15 Cal.App.4th 70. It points out City never exercised or attempted to exercise its eminent domain authority defeating Speights's Klopping claim.
Mesdaq involved an agency's eminent domain action filed after it had adopted a "resolution of necessity" seeking to acquire a landowner's property. (Mesdaq, supra, 154 Cal.App.4th at p. 1119.) In a court trial on the landowner's Klopping claim, the landowner argued the agency unreasonably issued a 60-day Polcano Act notice requesting remedial clean-up of hazardous substances on his property (Health & Saf. Code, § 33459.1, subd. (b)(2)) as a "negotiation tool," creating liability for precondemnation damages. (Mesdaq, supra, 154 Cal.App.4th at pp. 1119, 1134-1135.) Though the trial court allowed such a claim, on appeal this court disagreed and reversed. We noted the absence of case law holding that issuance of that notice or other analogous regulatory activity could constitute a compensable "precondemnation statement," i.e., a public announcement of an intent to acquire the plaintiff's land, under Klopping. (Mesdaq, at p. 1136.) However, though this court emphasized the narrow scope of precondemnation remedies available under Klopping (Mesdaq, 154 Cal.App.4th at pp. 1135-1136), wedid not resolve the ultimate question as to whether the notice constituted a compensable precondemnation statement, because we held issuance of the notice did not result in legally cognizable damages measured in terms of diminished market value. (Id. at p. 1137.) Mesdaq does not hold that a public entity's purchase offer to a private landowner is insufficient to make out a precondemnation damages claim, nor does it squarely address the circumstances presented here, where City unambiguously expressed its interest in purchasing Speights's property and made a purchase offer to Speights, but did not initiate an eminent domain action.
Nor does Melamed v. City of Long Beach, supra, 15 Cal.App.4th 70 involve that issue. Melamed addressed application of Government Code section 7267.2 to a City's purchase of certain property; that statute requires a city to offer just compensation in an amount no less than the approved appraised value of property before exercising its power of eminent domain. (Melamed, 15 Cal.App.4th at p. 73.) The Court of Appeal held it did not apply in every acquisition of real property; that the Legislature limited the requirement to circumstances where the public entity is planning to initiate eminent domain proceedings through a resolution of necessity. (Id. at pp. 78-80.) Neither of these cases convinces us as a matter of law that City's mere purchase offer to Speights for his property cannot give rise to an inverse condemnation cause of action under a Klopping theory.
Nevertheless, absent a challenge by petition for writ of mandate, we conclude Speights is not entitled to seek Klopping precondemnation damages as a matter of law. As we have stated, the gravamen of Speights's claim is that City unreasonably denied him a certificate of occupancy for his project by imposing invalid drainage conditions for the purpose of compelling a lower purchase price for the property. The situation is akin to that in Selby Realty Co. v. City of San Buenaventura, supra, 10 Cal.3d 110, in which the city refused a building permit for apartment construction unless the plaintiff dedicated and improved a street pursuant to a general plan designation. (Id. at p. 116.) The plaintiff in Selby Realty Co. filed an action against a county and individual county and city representatives in part asserting damages in inverse condemnation. (Id. at pp. 119, 127.) As against the city, the plaintiff brought causes of action alleging a "scheme" to take its land without compensation, and "in furtherance of that 'scheme' the city denied plaintiff a permit... for the purpose of 'extorting' plaintiff's land." (Id. at pp. 127-128.)
The California Supreme Court held the plaintiff stated no inverse condemnation cause of action based on this conduct: "The gravamen of plaintiff's complaint is that the city refused to issue the permit unless plaintiff complied with an assertedly invalid condition. The appropriate method by which to consider such a claim is by a proceeding in mandamus under section 1094.5 of the Code of Civil Procedure." (Selby Realty Co., supra, 10 Cal.3d at p. 128; see also Redevelopment Agency v. Contra Costa Theatre, Inc. (1982) 135 Cal.App.3d 73, 80-82 [plaintiff failed to establish entitlement to precondemnation damages under Klopping because compelling public policy considerations dictate use of administrative mandamus as the sole remedy where the challenged improper conduct consists solely of zoning or use permit denial]; Frisco Land & Mining Co. v. State of California (1977) 74 Cal.App.3d 736, 757 [citing Selby and holding that Klopping was not pertinent because "the state has never taken any action to condemn the subdivider's property"].) Having failed to proceed by writ of mandate on his action attacking City's denial of his certificate of occupancy and imposition of assertedly invalid drainage conditions, Speights cannot establish entitlement to Klopping precondemnation damages.
VIII. Due Process Argument
Speights argues City deprived him of due process of law by (1) preventing his appeal of the planning director's decision to reject his change in plans to construct condominiums and (2) failing to timely provide him with copies of the new conditions of approval including new drainage requirements before it issued them in November 2005. As support for these propositions, he relies solely on the Fourteenth Amendment to the United States Constitution and the federal civil rights statute (42 U.S.C. § 1983).
Speights's due process argument — which was asserted in the trial court below in supplemental briefing — does not defeat summary judgment. The sole cause of action in Speights's first amended complaint is for inverse condemnation and, under settled summary judgment standards, the reviewing court is limited to assessing those theories alleged in the plaintiff's pleadings. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252; County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 332; Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648; Laabs. v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253-1258 & fn. 7.) " 'The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.' " (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) "A summary judgment... motion that is otherwise sufficient 'cannot be successfully resisted by counterdeclarations which create immaterial factual conflicts outside the scope of the pleadings.... ' Thus, a plaintiff wishing 'to rely upon unpleaded theories to defeat summary judgment' must move to amend the complaint before the hearing." (Oakland Raiders, at p. 648; see also County of Santa Clara, at p. 333; Laabs. v. City of Victorville, at p. 1257.)
Speights does not allege a cause of action for violation of his federal civil rights, which would rest on an entirely "different theor[y] of recovery" (Laabs v. City of Victorville, supra, 163 Cal.App.4th at p. 1257; see, e.g., Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 702, 709, fn. 13 [landowner alleged separate causes of action for inverse condemnation and violation of federal civil rights]) and is not fairly encompassed in his complaint. As a consequence, his due process arguments do not raise triable issues of material fact for a jury on his inverse condemnation cause of action.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., IRION, J.