Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo, Ct. No. CV060666, Charles S. Crandall, Judge
Belsher & Becker, John W. Belsher and Gregory A. Connell, for Plaintiff and Appellant, Steven Shears.
Warren R. Jensen, County Counsel and James B. Orton, Deputy County Counsel, for Defendant and Appellant, County of San Luis Obispo.
COFFEE, J.
Steven Shears appeals from the judgment entered for San Luis Obispo County ("County") following the denial of his administrative mandamus petition challenging the County's refusal to issue four unconditional certificates of compliance for his property. He contends that the court erred by failing to find that four separate parcels of land were created on his property by a grant deed in 1901, and that such parcels were recognized in subsequent conveyances and by the 1913 Map of the County of San Luis Obispo.
In its appeal, the County argues that the court erred by failing to find that Shears's petition for administrative mandamus was barred by the applicable statute of limitations. We affirm the judgment entered for the County following the denial of Shears's administrative mandamus petition. We reverse the ruling that the County waived the statute of limitations.
BACKGROUND
This dispute concerns 173.51 acres of real property in an unincorporated area of the County ("the subject property") that appellant acquired in 2005. The subject property has been conveyed repeatedly during the past century.
On July 28, 1892, the United States recorded a patent to Albert Griggs (E Patents 468-469) which conveyed title to the subject property, and used the following description: "Lots numbered three, four and five and the South East quarter of the North West quarter of Section six in Township Twenty-seven South of Range eleven East of Mount Diablo Meridian in California and containing one hundred and seventy three acres and fifty-one hundredths of an acre, according to the Official Plat of the Survey of the said Land returned to the General Land Office by the Surveyor General[.]"
On October 17, 1901, Griggs conveyed the subject property by grant deed to Herbert Horne (50 Deeds 2), using the following description: "[A]ll those certain lots, pieces or parcels of land situate, lying and being in the County of San Luis Obispo... and particularly described as follows, to wit: [¶] Lots Numbered Three (3) Four (4) and Five (5) and the South East one quarter of the North West one quarter of Section Six (6) in Township Twenty Seven (27) South of Range Eleven (11) East M. D. M. and containing One Hundred and Seventy Three and 51/100 Acres of land as shown by the U.S. Government Patent[.]" Subsequent deeds conveyed the subject property in 1913, 1914, and 1915, using essentially the same language. The subject property was conveyed by deeds again, in 1931, 1941, 1965, 1977, 1981, 1999, and 2005. Each time that the subject property was conveyed, the grantor conveyed it to one grantee (or group of grantees), without conveying any part of it to a separate grantee.
On April 25, 2005, appellant submitted an application for four unconditional certificates of compliance for the subject property to the County Department of Planning and Building ("the department"). On February 21, 2006, the department advised appellant, in writing, that it would issue just one such certificate.
Appellant appealed the department's decision to the County's Board of Supervisors ("the Board"). On May 9, 2006, the Board conducted a public hearing, adopted a resolution upholding the department's decision, and issued its ruling denying Shears's application for four separate unconditional certificates of compliance.
On August 7, 2006, the 90th day following the Board's May 9, 2006, ruling, Shears filed his complaint (petition for administrative mandamus). Shears served the County with a summons and complaint on August 11, 2006, the 94th day following the Board's ruling.
On May 25, 2007, the County filed its answer which raised a Government Code section 66499.37 statute of limitations defense, based upon Shears's failure to serve the County within 90 days of the Board's ruling. On August 17, 2007, the County filed points and authorities opposing the petition on multiple grounds, including Shears's failure to comply with section 66499.37.
All statutory references are to the Government Code unless otherwise stated.
During trial on March 21, 2008, the County again raised the section 66499.37 statute of limitations defense. Shears argued that it was too late for the County to "bring this speaking motion... here today, " and that the cases that it cited showed its counsel "what the procedure was if he felt there was a problem with the service, and he didn't follow that procedure, so he's not really before the court on the issue."
On July 21, 2008, the court issued its judgment which included a ruling against the County on the statute of limitations issue. The court stated in a footnote: "[B]y participating in the preparation of the record, as well as in the scheduling and briefing of this matter on the merits, the County has waived any affirmative defense under Government Code section 66499.37. [Citations.] A defendant must raise a jurisdictional defect at the first possible instance. [Citation.] The County did not do so." After considering Shears's claims, the court entered judgment in favor of the County. Both Shears and the County appeal the judgment.
DISCUSSION
Shears's Appeal
Shears contends that the court erred by denying his petition to set aside the Board's refusal to issue four unconditional certificates of compliance for the subject property. Specifically, he argues that there is overwhelming evidence of the grantor's intent to create four separate lots or parcels from the subject property by grant deed in 1901, and of the intent of each subsequent grantor to convey four separate lots or parcels to the grantee. We disagree.
The Subdivision Map Act ("SMA"), Government Code section 66410 et seq., prohibits the sale, leasing or financing of parcels of land without complying with the act. (See § 66499.30, subds. (a)-(c).) It contains a "grandfather" clause that allows the sale, lease, or financing of any parcel or parcels of a subdivision created "in compliance with or exempt from any law (including a local ordinance), regulating the... subdivisions in effect at the time the subdivision was established." (Id., subd. (d); Gardner v. County of Sonoma (2003) 29 Cal.4th 990, 999.) "It protects subdivisions that either already were approved by local agencies, or were deemed exempt under previous subdivision laws in effect at the time the subdivisions were established. [Citation.]" (Fishback v. County of Ventura (2005) 133 Cal.App.4th 896, 901.)
An owner of real property or his vendee may request a local agency to determine whether the property complies with the subdivision laws. (§ 66499.35, subd. (a).) If the local agency determines that the property does comply, it must record a certificate of compliance. (Ibid.) "The local agency's decision to deny certificates of compliance is reviewable by petition for writ of administrative mandate. [Citation.] The question for the trial court and for us on appeal is the same: whether the local agency's decision is supported by substantial evidence. [Citation.] The burden is on appellant to show there is no substantial evidence to support the decision. [Citation.]" (Fishback v. County of Ventura, supra, 133 Cal.App.4th at pp. 901-902.) Where the issue concerns a question of law, we must exercise our independent judgment. (Id. at p. 902.)
Shears argues that four separate lots were created from the subject property by "conveyances beginning in 1901, [in which] the grantors clearly intended that four (4) separate lots be conveyed and wrote deed language effectuating this intent." However, as Shears acknowledges, "several identical conveyances of the property as a unit ensued in 1913, 1914, 1915, and 1933." In each such conveyance, the deed provided that the property contained a specified number of acres of land (173.51 or 173.50) as shown by "U.S. Patent[.]" Further, in the many conveyances of the subject property from 1901 through 2005, there is not one in which a grantor separately conveyed any part of the subject property to a distinct grantee.
In interpreting conveyances, "'... the Court must assume as nearly as possible the position of the contracting parties, and consider the circumstances of the transaction between them, and then read and interpret the words used in light of these circumstances.' [Citation.]" (People ex rel. Brown v. Tehama County Board of Supervisors (2007) 149 Cal.App.4th 422, 437.) The record supports the court's conclusion that the circumstances surrounding the conveyances and the language in the deeds reflect that the grantors intended to convey one unit of 173.51 acres rather than four lots or parcels. (Ibid.)
Shears makes a related claim that because the 1913 official map recognized four lots on the subject property, it constitutes "evidence that the County tracked and recorded the creation of new parcels within [Shears's] lands, consistent with the grantor's intent in 1901." We also reject this claim, which concerns a map that A. F. Parsons prepared pursuant to a February 6, 1912, resolution of the San Luis Obispo County Board of Supervisors. On July 11, 1913, the Board adopted a resolution authorizing its auditor to make partial payment to Parsons for "his Map of the County of San Luis Obispo."
The record lacks evidence that the Parsons Map became an official map under then applicable law. The Official Map Act then specified numerous requirements before a map could become an official map, including that the map "be filed in the office of the county recorder of the county, ...wherein the platted lands [were] situate, and the said recorder [should] immediately securely fasten and bind, in one of a series of firmly bound books... together with the proper indexes thereof...; and the same shall become an official map for all the purposes of this section when so certified, filed and bound, but not before." (Former Pol. Code, § 3658a, added by Stats. 1908, ch. 282, § 1, pp. 408-409, italics added.) The record indicates that the Parsons Map was never filed with, or securely fastened and bound by, the county recorder.
The trial court reasonably concluded that the Parsons Map was of "little evidentiary value." Whether considered alone or with other evidence, the Parsons Map does not establish that the grantors who conveyed the subject property intended to convey four lots or parcels, or that the County tracked and recorded the creation of new parcels within the subject property.
County's Appeal
In its appeal, the County argues that the court erred by failing to find that section 66499.37, the statute of limitations applicable to SMA proceedings, barred Shears's administrative mandamus proceeding. We agree.
Section 66499.37 states: "Any action or proceeding to attack, review, set aside, void, or annul the decision of an advisory agency, appeal board, or legislative body concerning a subdivision, or of any of the proceedings, acts, or determinations taken, done, or made prior to the decision, ... shall not be maintained by any person unless the action or proceeding is commenced and service of summons effected within 90 days after the date of the decision. Thereafter all persons are barred from any action or proceeding or any defense of invalidity or unreasonableness of the decision or of the proceedings, acts, or determinations."
Section 66499.37, including its provision requiring service of summons within 90 days of the challenged decision, is a statute of limitations. (Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1109-1110.) The section 66599.37 serve-and-file requirement, reflects a policy judgment by the Legislature that "litigation involving the Subdivision Map Act must be resolved as quickly as possible consistent with due process. [Citation.]" (Ibid., citing Hensler v. City of Glendale (1994) 8 Cal.4th 1, 23.)
Shears argues that section 66499.37 and its 90-day service requirement do not apply here because Code of Civil Procedure section 1094.6 applies. In so arguing, he relies on inapposite cases that do not involve the SMA. (See, e.g., El Dorado Palm Springs Ltd. v. Rent Review Com. (1991) 230 Cal.App.3d 335, 337 [judicial review of rent review commission ruling]; Cummings v. City of Vernon (1989) 214 Cal.App.3d 919, 920 [judicial review of city council's disability pension ruling].) California courts have consistently recognized that the serve-and-file requirements of section 66499.37 apply in SMA proceedings. (See, e.g., Sprague v. County of San Diego (2003) 106 Cal.App.4th 119; Maginn v. City of Glendale, supra, 72 Cal.App.4th at p. 1108 ["statutory language makes clear that the service requirement is mandatory"]; see 1 Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2008) § 10.49, p. 393 ["Although it is generally true that no summons issues or is served in an administrative mandamus proceeding, an action or proceeding under the Subdivision Map Act... to set aside a legislative body's decision concerning a subdivision map requires service of summons within 90 days after the date of the decision"].)
Citing Kriebel v. City Council (1980) 112 Cal.App.3d 693, 700, Shears argues that the County waived the statute of limitations defense by making a "general appearance." We also reject this argument. An equivalent argument was rejected in Sprague v. County of San Diego, supra, 106 Cal.App.4th at p. 131, where Sprague failed to serve the county within the section 66499.37 limitations period. The county first filed an answer without asserting the section 66499.37 statute of limitations defense. It then filed an amended answer asserting that defense, without opposition from Sprague. The trial court granted the county's motion for judgment on the pleadings based on the section 66499.37 statute of limitations defense. On appeal, Sprague cited Kriebel in arguing that the county "made a general appearance and waived any defect in Sprague's untimely service of summons when it filed an answer to the complaint without '[taking] issue with the late service.'" (Sprague, supra, at p. 130.) The appellate court distinguished Kriebel, where all of the conduct that constituted the county's general appearance occurred within the limitations period, in contrast to Sprague's case, where the conduct alleged to constitute a general appearance occurred after the expiration of the limitations period, when Sprague's proceeding "was already time-barred" under section 66499.37. (Sprague, supra, at p. 131.) Here, as in Sprague, the conduct alleged to constitute a general appearance occurred after the expiration of the limitations period, when section 66499.37 barred Shears's proceeding.
Shears also cites several inapposite cases in which courts have concluded that a defendant who makes a general appearance waives the right to challenge a lack of personal jurisdiction. (See, e.g., Roy v. Superior Court of County of San Bernardino (2005) 127 Cal.App.4th 337, 344.) The cited cases have no application to the section 66499.37 statute of limitations that governs SMA proceedings.
In the alternative, Shears argues that the County waived the section 66499.37 statute of limitations defense because it did not "file a dispositive motion before submitting to the Court's jurisdiction." We disagree. The County raised the section 66499.37 statute of limitations defense in the answer it filed on May 25, 2007, in its August 17, 2007, opposition to Shears's petition, and during trial. Shears notes that in the cases cited by the County, the defendants raised the section 66499.37 statute of limitations issue in a pretrial motion. However, he cites no relevant authority to support his claim that the County was required to file a pretrial motion or demurrer to preserve its section 66499.37 defense.
Section 66499.37 provides specific consequences for a failure to serve a summons within the requisite 90-day period, in clear language which follows: "Thereafter all persons are barred from any action or proceeding or any defense of invalidity or unreasonableness of the decision or of the proceedings, acts, or determinations." Section 66499.37 thus barred Shears's SMA proceeding after his failure to serve the summons within the limitations period that ran through August 7, 2006. (See Sprague v. County of San Diego, supra, 106 Cal.App.4th at p. 131.) Therefore, the County's subsequent acts cannot be construed as a waiver of the section 66499.37 statute of limitations defense. (Sprague, supra, at p. 131.) Shears's proceeding remained time-barred when the County filed its answer on May 25, 2007, and when it took other actions that Shears describes collectively as a "general appearance." The court erred by concluding that the County waived the section 66499.37 statute of limitations defense.
DISPOSITION
We affirm the judgment entered for the County following the denial of Shears's administrative mandamus petition. We reverse the ruling that the County waived the statute of limitations.
Costs on appeal are awarded to the County.
We concur GILBERT, P.J., PERREN, J.