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Law and Motion Calendar – Department Nine (10:00 a.m.) October 20, 2017

1. AUSTIN v. COUNTY OF EL DORADO PC-20150633
(1) Defendant El Dorado Hills Community Services District’s Demurrer to 1st Amended

Complaint and Petition.
(2) Defendant County of El Dorado’s Demurrer to 1st Amended Complaint and Petition. Defendant El Dorado Hills Community Services District’s Demurrer to 1st Amended Complaint and Petition.

Plaintiffs filed a 1st amended complaint asserting causes of action for declaratory relief and petitions for writ of mandate related to 11 categories of impact fees collected by defendants/respondents County of El Dorado (County), the El Dorado Hills County Water District, the County of El Dorado Community Development Agency, Development Services Division, and the El Dorado Hills Community Services District (CSD).

Defendant CSD demurs to the 1st amended complaint and petition on the following grounds: the 1st amended complaint and petition are barred by either the one year statute of limitations set forth in Code of Civil Procedure, § 340(a) for actions seeking a statutory penalty or forfeiture, or, in the alternative, the three year statute of limitations set forth in Code of Civil Procedure, § 338(a) for statutory liability actions; Government Code, § 65010 applies to actions under Government Code, § 66001(d)(1) seeking refund of local agency impact fees where the statutorily required five year nexus study and findings are allegedly not made and defendants have not alleged sufficient facts to establish the required prejudice, substantial injury resulting from the local agency’s error, and probability of a different result absent the error; substantial compliance with the required five year nexus study and findings negates any basis for forcing a refund of the monies collected and held by defendant County for defendant CSD; and the 1st and 4th causes of action for declaratory relief are merely derivative of the 2nd and 3rd causes of action for writ of mandate, therefore, they should not be allowed to stand.

Plaintiffs oppose the demurrers on the following grounds: plaintiff has alleged sufficient facts to state the causes of action asserted in the 1st amended complaint and petition; Walker v. San Clemente (2015) 239 Cal.App.4th 1350 holds that the four year statute of limitation set forth in Code of Civil Procedure, § 343 applies to the Mitigation Fee Act; the mandatory refund is not a penalty or forfeiture and is instead remedial in nature; a new limitation period commences upon the collection of each new fee once defendants fail to make timely five year findings; Government Code, § 65010 does not apply, because the statute addresses errors, neglect, and omissions, while Section 66001(d) relates to the complete failure of a local agency to comply with the express terms of a statute; CSD’s failure to timely file the mandated five year findings does not involve improper admission or rejection of evidence, it does not seek to invalidate of set aside anything, and the proceeding is not an evidentiary based requirement or failing on the part of defendants; defendant cites no case authority applying Section 65010 to the Mitigation Fee Act; defendant CSD has admitted that it did not comply with the Act by submission of defendant’s Exhibit H; Exhibit H is the minutes of defendant County’s Board of Supervisors meeting of June 28, 2016 wherein the Board made the five year findings and stated they supplemented findings made on June 23, 2013, which amounts to an attempt to retroactively make the required findings years after the time limitation and eight months after this action was filed; defendant CSD’s Board of Directors five year findings on November 12, 2015 is of no force or effect and did not comply with the Act, because the County Board must make the findings; and the plaintiff have pled four distinct causes of action.

Defendant CSD replied to the opposition. Statutes of Limitation

“‘A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred.’ (Moseley v. Abrams (1985) 170 Cal.App.3d 355, 359,

216 Cal.Rptr. 40; Liptak v. Diane Apartments, Inc. (1980) 109 Cal.App.3d 762, 775, 167 Cal.Rptr. 440.) It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred. (Valvo v. University of Southern California (1977) 67 Cal.App.3d 887, 895, 136 Cal.Rptr. 865; Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1155, 281 Cal.Rptr. 827.) This will not be the case unless the complaint alleges every fact which the defendant would be required to prove if he were to plead the bar of the applicable statute of limitation as an affirmative defense. (Farris v. Merritt (1883) 63 Cal. 118, 119.)” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)

“A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. (See Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 300, 146 Cal.Rptr. 271.) The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403, 44 Cal.Rptr.2d 339.) If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment….’ (United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500, 505, 49 Cal.Rptr.2d 682.)” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325.)

Plaintiffs allege: the required five year findings have not been made since February 28, 2006, which were untimely since they were due on December 27, 2013; the deadline for the last five year findings was December 27, 2013; the CSD Board allegedly adopted five year findings on November 12, 2015, however, the County Board made no findings and the County

Board actually rejected the CSD findings, thereby making the CSD findings invalid; CSD is nearly three years overdue in making the required findings and despite such failure CSD impact fees have continued to be collected, such fees have been retained, and the local agency has not refunded the fees in its custody; and as of April 30, 2016 defendants held $6,959,559 in CSD impact fees. (1st Amended Complaint and Petition, paragraphs 18-20.)

Referring to Defendant’s Exhibit C in support of the demurrer, defendant CSD argues that while plaintiffs allege that the statutorily mandated findings were not made since February 28, 2006, the public record establishes that defendant CSD made such findings in a development impact mitigation fee report that was accepted by the County Board on June 25, 2013. (Defendant CSD’s Memorandum of Points and Authorities in Support of Demurrer, page 11, lines 8-20.)

The court may disregard facts alleged in the complaint that are contrary to matters judicially noticed. “The courts, however, will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed. (Alphonzo E. Bell Corp. v. Bell View Oil Syndicate (1941) 46 Cal.App.2d 684 [116 P.2d 786]; Chavez v. Times-Mirror Co. (1921) 185 Cal. 20 [195 P. 666].) Thus, a pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)

In order to determine whether not the CSD development impact mitigating fee report itself can be considered as setting forth the five year findings required in 2013, the court must first identify what “local agency” was required to make the findings.

 

Steve Ferry

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