Opinion
A099299.
10-8-2003
GERALD PANNONE et al., Plaintiffs and Appellants, v. CITY OF BRISBANE et al., Defendants and Appellants.
Gerald and Marsha Pannone (plaintiffs), owners of two parcels of land in an area known as Brisbane Acres, brought this suit against the City of Brisbane and its planning department, planning director and city attorney (together the City). The case is here after court trial on a third amended petition/complaint, which in two causes of action sought declaratory relief and writ of mandate, each based on a claimed duty on the City under the Subdivision Map Act (Map Act) (Gov. Code, § 66410 et seq.; unstated section refer-ences are to that code) to initiate notice-of-violation proceedings for theirs and hundreds of other parcels in Brisbane Acres. In the first part of a bifurcated trial, the court rejected defenses that both causes of action were barred by the statutes of limitation and lack of standing. In the second part, the court held for the City on both causes of action, striking declaratory relief as moot given notices-of-violation already filed on plaintiffs property and finding the City lacked requisite "knowledge" of illegality to initiate proceedings on other parcels (§ 66499.36). Plaintiffs appeal the judgment, and the City cross-appeals the rejection of its defenses. (We refer to plaintiffs in the plural though informed that Marsha Pannone has recently passed away.)
This is Pannone II, our second look at the underlying Map Act controversy. In Pannone I (Pannone v. City of Brisbane (A093236 & A093237) nonpub. opn. filed Jan. 23, 2002), we reviewed a judgment denying plaintiffs writ of mandate (against a claimed California Environmental Quality Act violation; Pub. Resources Code, § 21000 et seq.) but enjoining the City to initiate notice-of-violation proceedings for one of their parcels, one that they had purchased in 1993 from Semik and Laurie Oungoulian (the Oungoulian parcel). Based partly on a review of pretrial rulings, we upheld the writ denial. The grant of injunctive relief had been premised on the same Map Act duty question we face here, but we did not resolve the merits. Rather, we found the issue moot because the City had issued the requested relief—a notice of violation on the Oungoulian parcel—even before the injunction issued. To avoid the procedural anomaly of having our dismissal of that part of the appeal leave the disputed injunction ruling intact, we remanded for a dismissal of the cause of action.
As background and, to the extent mootness is res judicata (Cal. Rules of Court, rule 977(b)(1)), we note our reasoning from pages 22 through 24 of Pannone I: "It is settled that `"when, pending an appeal from the judgment of a lower court, and without any fault of the [opposing party], an event occurs which renders it impossible for this court, if it should decide the case in favor of [an appellant], to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal." (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.) More tailored to this case of a mandatory injunction, `a party cannot prosecute an appeal from an order after a voluntary compliance with its terms and provisions (Hellman Commercial T. & S. Bk. v. Alden (1929) 206 Cal. 592, 599), and `injunctive relief will not be granted where events have rendered such relief unnecessary or ineffectual (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 133). Given that the City has already acted under section 66499.36 as to plaintiffs property, then should we hold on this appeal that the injunction was issued in error, we could not grant the City any effectual relief. Compliance has already occurred, and the City acted voluntarily, having decided, assertedly by its own analysis (after the statement of decision but before judgment), that notice had to be given as to this property. Also, the injunction did not require any particular outcome or any specific action beyond the institution of proceedings under section 66499.36.
On this appeal, we again find no occasion to reach the Map Act question. We instead uphold the judgment in favor of the City on the alternative ground that the court erred in ruling that plaintiffs had standing to pursue relief for parcels beyond their own.
DISCUSSION
The key dispute is over section 66499.36, a Map Act enforcement provision that begins (italics added): "Whenever a local agency has knowledge that real property has been divided in violation of the provisions of this division or of local ordinances enacted pursuant to this division, it shall cause to be mailed by certified mail to the then current owner of record of the property a notice of intention to record a notice of violation, de-scribing the real property in detail, naming the owners thereof, and stating that an oppor-tunity will be given to the owner to present evidence. The notice shall specify a time, date and place for a meeting at which the owner may present evidence to the legislative body or advisory agency why the notice should not be recorded. The notice shall also contain a description of the violations and an explanation as to why the subject parcel is not lawful under subdivision (a) or (b) or Section 66412.6. [¶] The meeting shall take place no sooner than 30 days and no later than 60 days from date of mailing. . . ."
The court found the matter moot as to plaintiffs own property, since all enforce-ment procedures and the recording of notices of violation had been finished two months before this action was filed. The issue was whether the City had sufficient "knowledge" (§ 66499.36) to trigger a duty as to all other parcels, about 150 according to plaintiffs, in Brisbane Acres. The court found insufficient knowledge. Accepting that an unrecorded map from 1932, some isolated prior litigation, and various other indications suggested that there were problems with other parcels, the court also found that this did not enable the City to fulfill its other mandate under section 66499.36, to describe in the notice all violations and explain why each parcel was not lawful under section 66412.6 (presump-tion of lawful creation for parcels created before March 1972). This could depend on "unique characteristics" of each parcel and entail a full study to examine, among other things, permits, approvals and certificates of compliance for any past improvements (§ 66499.34), and the City of Brisbane was not even incorporated until 1961.
The question we find dispositive is whether plaintiffs had standing to seek either declaratory relief or mandate as to those other properties. We conclude that they did not and, thus upholding a denial of all relief on this cross-appeal issue, have no reason to reach the statute of limitations or any of the issues posed by plaintiffs appeal.
I. Declaratory Relief
As for declaratory relief (Code Civ. Proc., § 1060), plaintiffs do not offer any focused argument against the dismissal of that cause of action for mootness, and thus have waived a critical threshold point (see generally Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546).
Alternatively, we discern no standing. Plaintiffs cite the general pronouncement that "[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute" (Code Civ. Proc., § 367) but have claimed no personal interest in the properties of others in Brisbane Acres. Nor, being non-attorneys, could they represent any others (Abar v. Rogers (1981) 124 Cal.App.3d 862, 865; Bus. & Prof. Code, § 6125); and this case is not certified as a class action. Any relief as to their own property has been moot from the start of this lawsuit, notice of violation having already been recorded on their own parcels. The only potential statutory exception to which they allude is section 66499.33, which only provides that aggrieved persons "may file a suit . . . to restrain or enjoin any attempted or proposed subdivision or sale, lease, or financing in violation of this division or local ordinance enacted pursuant thereto." This is not such a suit. Plaintiffs seek to compel the filing of notices of intent for violations on parcels they insist are already illegal, not to stop any attempted or proposed illegal subdivision.
The only case plaintiffs cite that involved a request for a declaration of rights is inapposite. Harman v. City & County of San Francisco (1972) 7 Cal.3d 150 (Harman), involved a taxpayer who brought suit to obtain a declaration that a method of obtaining appraised values resulted in "a `gift of public funds" (id. at p. 156), and the Supreme Court upheld standing on the doctrine that a municipal taxpayer may sue to restrain and prevent any illegal expenditure or waste of municipal assets (id. at pp. 159-160, citing Code Civ. Proc., § 526a). Not only have plaintiffs never invoked the taxpayer-suit code section, but they do not seek to restrain an expenditure of municipal funds. Quite to the contrary, their goal is to compel an expenditure of municipal funds to file hundreds of notices and, presumably, pursue them to legal conclusion.
Lack of standing for declaratory relief appears.
II. Writ of Mandate
Writ of mandate issues only on the petition of one who is "beneficially interested" (Code Civ. Proc., § 1086), which generally means that "one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large" (Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796). The person must show that he is "detrimentally affected or aggrieved" (Silva v. City of Cypress (1962) 204 Cal.App.2d 374, 376), for "the party who asks relief from a court must be one who is in some way aggrieved by the act complained of" (id. at p. 377). Plaintiffs do not meet that requirement. The act complained of here is inaction in the form of failure to file notices of intention to record notices of violation against parcels in Brisbane Acres. Filing them as to plaintiffs own property is moot, notice having been filed long before the action was brought (contrast Municipal Court v. Superior Court (1988) 199 Cal.App.3d 19, 25 [issue of broad public interest reached where it was justiciable initially but made moot later]). Plaintiffs do plead an unstated "beneficial interest" and allude to pretrial rulings in their favor. The case is now before us after a trial, however, making earlier rulings irrelevant and requiring that the record contain evidence, not just allegations, of any beneficial interest. (E.g., Silva v. City of Cypress, supra, at pp. 376-377 [no standing where petitioner showed no ownership of property within area affected by challenged planning commission action]; Personnel Com. v. Barstow Unified School Dist. (1996) 43 Cal.App.4th 871, 877-883 [no standing where commission did not employ or represent any employees affected by challenged layoff decision].)
Plaintiffs testified that they do not own, and never have owned, other parcels in Brisbane Acres or the greater city, and that they long ago abandoned a tentative parcel map application for their property. They appear here "in pro per," are joined by no Brisbane resident or property owner and, we see from their listed address, reside in San Francisco, not Brisbane. They present themselves as San Francisco school teachers with no apparent employment connection with Brisbane. Thus, they violate the precept that they "must generally have `some special interest to be served or some particular right to be preserved or protected—not a `technical, abstract or moot right—and must show that [their] `legal rights are injuriously affected by the action being challenged" (J & K Painting Co. v. Bradshaw (1996) 45 Cal.App.4th 1394, 1399).
Nevertheless, parroting their trial brief below, plaintiffs claim, and without citing any supporting evidence, that they are beneficially interested "[a]s property owners" in Brisbane Acres who are "similarly situated to all other property owners," "as taxpayers [who] have a public interest," and as persons with "an obvious financial interest in the laws that are, or are not enforced in the area in which their property is located." Clearly referring to the recorded notice of violation on their own property, they complain about having "a cloud over the title while other properties in the Brisbane Acres are bought and sold with impunity or innocence," and they claim that the Citys "arbitrary" application of section 66499.36 "directly effects [sic] the property value of [their] property."
We discern, first, no support in the evidence, or common sense, for the implied notion that having a notice of violation recorded against their property, while others do not, somehow diminishes the value of their property. No testimony at all, lay or expert, was presented on the value of their property. We can accept, as common sense, that a notice of violation would tend to diminish the value of ones property, particularly if it is undeveloped and unused, as seems to be the case here. However, they themselves sought the recorded notice, since Pannone I, and do not complain of it; rather, they complain that the City is derelict in not filing notices of intent on some 150 other properties near them. Without expert testimony, we cannot see how notices against the others would enhance the value of plaintiffs property. One could even intuit that the absence of notices on other properties might enhance theirs by making the area seem more valuable (although there is no testimony to that effect, either). Thus the record fails to support the idea that inaction by the City as to other properties diminishes the value of their own.
That leaves plaintiffs desire to have notices filed against all properties so that enforcement of section 66499.36 would be, in their view, equal. Usually, of course, "[a] desire to remedy an alleged statutory violation is not enough, by itself, to establish a ben-eficial interest" (Personnel Com. v. Barstow Unified School Dist., supra, 43 Cal.App.4th at p. 880), but there is an exception for some instances where a citizen seeks to enforce a duty that is a matter of public right. That exception seems to have been what persuaded the trial court to find standing, but we reject it based on the trial record.
The citizens-action exception "applies where the question is one of public right and the object of the action is to enforce a public duty—in which case it is sufficient that the plaintiff be interested as a citizen in having the laws executed and the public duty enforced" (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1236 (Waste Management); Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438), but there are policy constraints on such standing. Also called "the `public right/public duty exception to the requirement of beneficial interest, . . . the policy underlying the exception may be outweighed in a proper case by competing considerations of a more urgent nature . . . ." (Green v. Obledo (1981) 29 Cal.3d 126, 145.) This requires "a judicial balancing of interests, and the interest of a citizen may be considered sufficient when the public duty is sharp and the public need weighty." (Waste Management, supra, at p. 1237.) A guide in all standing questions is whether the party has sufficient interest to "vigorously present his case," a matter determined "by a measure of the `intensity of the plaintiffs claim to justice." (Harman, supra, 7 Cal.3d at p. 159.)
Here, the public duty does not appear sharp or the public need weighty. Assuming for arguments sake that plaintiffs could prevail in their claim of a mandatory duty based on the City having enough "knowledge" (§ 66499.36), the ruling would be based on facts unique to this case, and plaintiffs in fact make no claim of statewide, countywide or even citywide application or importance. Next, and more troubling, the record shows no joint interest or support of any kind from other property owners in Brisbane Acres. No one, it seems, is eagerly awaiting a judicial decision that they must potentially suffer a violation notice, with possible loss in property value, or the legal expense of fighting such a case. Nor is the public need weighty. Plaintiffs only tenable argument is that, by compelling notice and ultimate resolution of the violation proceedings for the 150 or so parcels, this may benefit a class of buyer who, assertedly like themselves, might pay more than those properties are actually worth. But counterbalanced against that potential public benefit are potential public detriments that plaintiffs have never addressed in this case. There is cost to the City, and it is not at all clear that the existence of a recorded notice of violation is the only, or best, way for a buyer to assess the legality or development potential of a parcel in that area. A review of our opinion in Pannone I shows that plaintiffs alleged in that litigation that they had been misled by the City in that regard. It remains, however, that they lost that litigation and leave us to speculate whether such things happen to other buyers in the area. They point to no evidence on the matter. We realize that plaintiffs present their case without the benefit of counsel, but this did not lessen their burden to show standing. Their briefing is also silent on the problems of owner costs, potential impact on property values, and resultant secondary fiscal burdens on local government should it develop that some of the assessed values in the area are inflated.
Also troubling is plaintiffs motivation, a vital inquiry (Carsten v. Psychology Examining Com., supra, 27 Cal.3d at pp. 798-801 [noting interest "piqued" by service on a board rather than "neutrality of" citizenship, "narcissistic litigation" by a "disgruntled" governmental agency member, and three prior lawsuits]), which seems only peripherally related to public altruism. Again resorting to Pannone I for background, we see that their dispute with the City began with their application to build a home on their property. The initial motivation was purely development. Their emphasis shifted only when a tentative parcel map application and efforts to have the City buy their property in settlement failed. Since then, starting in Pannone I, they have taken the about-face tactic of saying that no other owners in Brisbane Acres should develop or sell unencumbered, either. Testimony at this trial also shows that plaintiffs brought a third lawsuit against the City over their same property, in federal court, and lost there as well. Thus, while some arguable public good might accrue from resolving the mandatory-duty issue they ostensibly present on behalf of the public, there are serious unaddressed public policy concerns and a strong flavor of simply striking back at the City after a failed attempt to develop their property. This did not bode well for them presenting the public interest adequately. Moreover, "mandamus is an action where equitable principles apply" (Bruce v. Gregory (1967) 65 Cal.2d 666, 671), and an applicable principle is that one seeking equity must not be "a volunteer—an officious intermeddler, or affirmatively he must have had some interest to protect" (Stein v. Simpson (1951) 37 Cal.2d 79, 84 [context of subrogation]).
The record does not establish ordinary standing or standing under the citizen-action exception.
DISPOSITION
Standing being jurisdictional (Common Cause v. Board of Supervisors, supra, 49 Cal.3d at p. 438), the court erred in allowing the case to proceed beyond that bifurcated issue at trial. The judgment denying relief on other bases is accordingly affirmed, but for lack of standing. Costs to the City.
We concur: Kline, P. J. and Ruvolo, J.
"Plaintiffs concede mootness in that regard but urge us to retain the appeal in order to reach the issue of when the City had knowledge under the statute. They insist, first, that other causes of action in this case `are inextricably linked with the date of the Citys knowledge, but our analysis above shows that the timing of City knowledge did not affect our resolution of any other cause of action.
"Plaintiffs insist, secondly, that there is an `overall public interest in deciding the timing of the Citys knowledge because they have since brought a second lawsuit against the City (Gerald Pannone et al. v. City of Brisbane et al. (Super. Ct. San Mateo County, 2001, No. 415809) (Pannone II), in which the timing is important. We observe from the third amended petition/complaint in that case that they reargue virtually all their points from this case, rely on . . . the appealed-from judgment herein, and, in three causes of action, seek (1) declaratory relief that most of some 150 parcels in Brisbane Acres are illegally created, (2) mandate to compel City compliance with section 66499.36, and (3) damages for violations of their federal civil rights. It appears that they filed their original pleading in Pannone II shortly after the judgment herein, oddly contending that the Citys section-66499.36 notice of violation on their property—which they had just precipitated themselves through the injunction in the case before us—was `discriminatory, arbitrary and capricious action `meant to circumvent the judgment herein. They apparently seek to avoid the bar of res judicata by casting the issues not as to the property they purchased in 1993, but as to abutting easement and frontage property they separately purchased in November 1994. . . .
"We are not persuaded by the pendency of Pannone II to decide the injunctions propriety. There are mootness exceptions for issues of great public interest (Burch v. George (1994) 7 Cal.4th 246, 253, fn. 4; Myers v. Patterson (1987) 196 Cal.App.3d 130, 134-135 [such issues evading review]), but plaintiffs view of the timing of City know-ledge as enjoying `overall public interest is unconvincing. Plaintiffs have adopted a strategy of trying to compel notice proceedings for hundreds of lots other than their own, but none of those other owners are parties to Pannone II or shown to have supported such action. The `overall public interest, it seems, is plaintiffs alone, and they would have us exploit their own appetite for further litigation to test a useless judgment. An appellate courts duty `"is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to de-clare principles or rules of law which cannot affect the matter in issue in the case before it. (Paul v. Milk Depots, Inc., supra, 62 Cal.2d at p. 132, italics added.) The matter in issue here is the injunction, which is moot. As the federal Eighth Circuit put it in declining to reach the unpublished-opinion-as-precedent issue discussed in part VI (ante), `We sit to decide cases, not issues . . . . (Anastasoff v. U.S. [(8th Cir. 2000)] 235 F.3d [1054,] 1056.)
"Nor does it seem likely that our reaching the propriety of the injunction would be of much assistance to plaintiffs in Pannone II. The judge here did not decide when the City first had knowledge; she only found, implicitly, that there was such knowledge by the time of trial. Were we to review and uphold that determination, we would have no need to be any more specific than she was. Further, she stressed that her decision was based on the `particular facts of this case, including what she seems to have regarded as evasive interrogatory responses and evasively `inartful language by the City—part of what she termed a `definitional web woven by Defendants themselves. Not all of the factors she relied upon would apply in a different case."