Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC851095, John S. Meyer, Judge.
McCONNELL, P. J.
Plaintiffs, McKean Natural Gas Company and John Vertullo (together McKean), appeal a judgment in favor of defendant, the City of San Diego (the City), and intervenor, Neighborhood Organization for Preserving Open-Space Designation (NOPOD), entered after the court sustained without leave to amend their demurrer to the first amended complaint. McKean contends the court erred by finding it was required to challenge the City's action through a petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5), and the first amended complaint sufficiently stated a cause of action under 42 United States Code section 1983 for violation of its constitutional equal protection rights. We affirm the judgment.
Statutory references are to the Code of Civil Procedure except when otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
McKean's first amended complaint, filed in April 2006 (hereafter complaint), alleged as follows: In July 2004 McKean submitted to the City a request to begin the approval process for development of a 40-acre parcel it owns. The property is located within two regional zoning plans that would allow development of only about 12 percent of the property. Accordingly, the City required McKean to seek to amend the zoning plans to allow greater development.
Under the City's Municipal Code section 122.0103 et seq., McKean applied to the City's Planning Commission (the Commission) "to initiate land use plan amendments" to the regional zoning plans. Under Municipal Code section 122.0104, certain criteria must be met before an amendment is allowed, such as the amendment "is appropriate due to a material change in circumstances" or it "appears to offer a public benefit to the community or City." Through its representatives, McKean met with the Carmel Valley Community Planning Board (the Board) to obtain a recommendation to present to the Commission.
The Board did not recommend an initiation as it believed approximately 88 percent of the property must remain undeveloped. The City's Planning Department (Planning Department) recommended an initiation, but in February 2005 the Commission denied McKean's request. McKean appealed the matter to the San Diego City Council (City Council), and in a June 2005 hearing evidence was submitted and testimony was heard. The City Council denied the appeal on the ground "the proposed [a]mendment did not meet two of the supplemental criteria for initiation, specifically that the proposed decrease in the amount of designated open space is inconsistent with the goal to preserve and protect open space in the adopted [p]lan and does not appear to offer a public benefit."
The complaint contained a cause of action under 42 United States Code section 1982 for violation of McKean's federal and state constitutional rights to equal protection, "in that property owners similarly situated . . . have been and are allowed to develop 25% of their property" and there is no rational reason for the differential treatment. McKean sought a permanent injunction ordering the City to approve the initiation of plan amendments.
NOPOD, which had intervened in the action, demurred to the complaint on the grounds it was barred by McKean's failure to petition for a writ of mandate under section 1094.5, and it failed to state an equal protection claim. The City joined in the demurrer.
The court sustained the demurrer without leave to amend. The court noted the complaint appeared to allege the City required McKean to comply with the criteria for initiation of a plan amendment set forth in Municipal Code section 122.0104, but did not require other landowners to do so. The court found the complaint did not allege "that other landowners who desired to develop their property to a maximum of 25% acreage, and who were required to apply for an initiation pursuant to the . . . [Municipal Code], were granted the request even though these landowners failed to meet the criteria set forth in [Municipal Code section] 122.0104." The court also found the action was barred because McKean did not seek writ relief under section 1094.5. The court explained, "This is [McKean's] second attempt to plead an [e]qual [p]rotection claim in what appears to be an attempt to plead around a § 1094.5 writ of mandate, which is time barred."
DISCUSSION
I
Standard of Review
In reviewing a demurrer ruling, the "court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] . . . The judgment must be affirmed 'if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) "While the decision to sustain or overrule a demurrer is a legal ruling subject to de novo review on appeal, the granting of leave to amend involves an exercise of the trial court's discretion." (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.)
II
Administrative Mandamus
"The doctrine of exhaustion of judicial remedies precludes an action that challenges the result of a quasi-judicial proceeding unless the plaintiff first challenges the decision though a petition for writ of mandamus. [Citation.] Administrative mandamus is available for review of 'any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer.' " (Gupta v. Stanford University (2004) 124 Cal.App.4th 407, 411, citing § 1094.5, subd. (a); Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-70.)
In an administrative writ proceeding, the "inquiry . . . shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in a manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (§ 1094.5, subd. (b).) A petition under section 1094.5 must be filed "not later than the 90th day following the date on which the decision becomes final." (§ 1094.6, subd. (b).)
McKean concedes the City Council's decision was adjudicatory (see Pacifica Corp. v. City of Camarillo (1983) 149 Cal.App.3d 168, 176), and that he elected not to challenge it by way of a petition for administrative mandamus under section 1094.5. McKean contends that although it "do[es] not like the results of the City Council's determination, " a writ proceeding "would not be an effective vehicle to challenge" it. McKean asserts it was reasonable in not presenting any evidence at the City Council hearing of disparate treatment, since it expected the City Council to approve its request for initiation of plan amendments. McKean also asserts its equal protection claim "arose outside the City Council hearing and indeed was not even ripe until the Council actually ruled."
It is well established, however, that the failure to challenge a quasi-judicial decision by a public agency under section 1094.5 collaterally estops a federal civil rights action when, as here, the complaint alleges violation of the same primary right that could have been pursued in a writ proceeding. (Briggs v. City of Rolling Hills Estates (1995) 40 Cal.App.4th 637, 646; Mola Dev. Corp. v. City of Seal Beach (1997) 57 Cal.App.4th 405, 410; Miller v. County of Santa Cruz (9th Cir. 1994) 39 F.3d 1030, 1034.) In Swartzendruber v. City of San Diego (1992) 3 Cal.App.4th 896, 909, disapproved of on another ground in Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 72, the court held, " 'There can be no justification for plaintiff's position that she should be permitted to fail to assert at the administrative hearing constitutional and civil rights violations as reasons that made her termination wrongful, fail to prevail on the writ without attempting to urge or to bring before the court those reasons, and then be allowed to recover damages in this consolidated action that resulted from termination of her employment alleged to [be] wrongful based on those same reasons.' " In Briggs v. City of Rolling Hills Estates, supra, 40 Cal.App.4th 637, the court noted " '[t]he highest court in the land has held the principles of res judicata and collateral estoppel apply to the federal civil rights statutes.' " (Id. at p. 646, citing University of Tennessee v. Elliott (1986) 478 U.S. 788, 796-799.)
The Commission denied McKean's request for initiation of plan amendment procedures, and nearly four months later the City Council heard McKean's appeal of the matter. Paragraph 23 of the complaint alleged that at the time of the City Council hearing, McKean "knew that the City had not previously used initiation criteria to block a development of 25%" and "also knew that contiguous parcels with the same terrain have been allowed over 25% development." McKean knew or should have known the City Council may affirm the Commission's action, and thus it should have presented any evidence pertaining to the City's application of the criteria in Municipal Code section 122.0104 to other property owners' requests for initiation of plan amendments. (See Rossco Holdings, Inc. v. State of California (1989) 212 Cal.App.3d 642, 659 ["any asserted inability on the part of [plaintiff] to present its constitutional claim adequately in the context of a section 1094.5 hearing is self-inflicted, and not properly before this court because [plaintiff] never bothered to create the necessary record"].) Instead of protecting itself, McKean sat on its rights.
Moreover, although the court's review of section 1094.5 writ petitions is ordinarily limited to the administrative record, it has discretion to remand the matter to the local agency for the taking of additional evidence. "Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment . . . remanding the case to be reconsidered in the light of that evidence." (§ 1094.5, subd. (e).) McKean should have addressed in a timely writ proceeding any argument regarding inability to present evidence at the City Council hearing. (Western States Petroleum Association v. Superior Court (1995) 9 Cal.4th 559, 578; Rossco Holdings, Inc. v. State of California, supra, 212 Cal.App.3d at p. 659.)
The demurrer was proper based on McKean's failure to bring a petition for administrative mandamus under section 1094.5.
III
Equal Protection
The above holding is dispositive, but we also conclude the complaint did not state a cause of action for violation of McKean's equal protection rights.
" ' "The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment." ' [Citation.] 'The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citation.] This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for the purposes of the law challenged.' " (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) "Neither the Fourteenth Amendment of the Constitution of the United States nor the California Constitution [citations] precludes classification by the Legislature or requires uniform operation of the law with respect to persons who are different." (People v. Guzman (2005) 35 Cal.4th 577, 591.)
McKean cites the following paragraphs of the complaint as stating a claim for violation of its equal protection rights:
"14. Plaintiffs are informed and believe and thereon allege that the City . . . has universally allowed property owners to develop a maximum of 25% of their property if it is engineeringly [sic] possible. Even where wildlife property is involved, the City . . . has always allowed a 25% development if requested.
". . . . . . . . . . . .
"18. Plaintiffs are a member of a class of landowners who desire to develop their property to the maximum of [25%] of its acreage. These property owners, with the exception of Plaintiffs, have been allowed by the City to develop their property for at least the full 25% requested. These property owners have been accommodated by the Planning Department, the Planning Commission and/or the City Council by boundary adjustments and/or off-site mitigation.
"19. Prior to Plaintiffs' request for initiation, the City had not used the initiation process or criteria to deny 25% development on other class members. This is true of class members who could not comply with the criteria without a boundary adjustment and/or off-site mitigation." (Italics added.)
McKean asserts its complaint was sufficient because it alleged the City singled out McKean from all other property owners who were allowed to develop 25 percent of their property. McKean's class, however, is far too broad as properties within the City's jurisdiction are subject to various zonings, use plans and development criteria. For instance, many property owners presumably are not subject to open-space restrictions and may build on 25 percent or more of their land without having to obtain plan amendments. To be similarly situated to McKean, other landowners in the class must have been subject to the Municipal Code's process for the initiation of plan amendments and the criteria of Municipal Code section 122.0104. The complaint, however, did not allege any of the other landowners were subject to the initiation procedure.
Further, even if the other landowners were subject to the initiation process, paragraphs 18 and 19 of the complaint alleged they were allowed to develop a maximum of 25 percent of their property only because of boundary adjustments or off-site mitigation. The complaint did not allege McKean had requested or could qualify for a boundary adjustment or off-site mitigation, and we disagree with McKean's assertion the complaint reasonably infers such allegations. Additionally, McKean submitted the matter on the court's tentative ruling without seeking leave to amend.
The complaint did not state a colorable equal protection claim, and thus the court properly sustained the demurrer on that alternative ground.
DISPOSITION
The judgment is affirmed. The City is entitled to costs on appeal.
WE CONCUR: HUFFMAN, J. IRION, J.