B & P Development Corp. v. City of Saratoga

Opinion

I

Plaintiff B & P Development Corporation, doing business as B & P Inc., appeals from an order dismissing the action after a general and special demurrer by defendant City of Saratoga (City) was sustained without leave to amend. Plaintiff seeks a refund of various development fees expended on a subsequently abandoned condominium project. We affirm for the following reasons.

II

Scope of Review

A general demurrer presents the same question to the appellate court as to the trial court, namely, whether the plaintiff has alleged sufficient facts to justify any relief, notwithstanding superfluous allegations or claims

In evaluating a demurrer, we assume the truth of all material facts properly pleaded in the complaint unless they are contradicted by facts judicially noticed (Code Civ. Proc., §§ 430.30, subd. (a), 430.70; Saltares v. Kristovich (1970) 6 Cal.App.3d 504 , 510 [ 85 Cal.Rptr. 866 ], and cases there cited) but no such credit is given to pleaded contentions or legal conclusions. (Branham et al. v. Mayor and Common Council of San Jose et al. (1864) 24 Cal. 585 , 602; Daar v. Yellow Cab. Co. (1967) 67 Cal.2d 695 , 713 [ 63 Cal.Rptr. 724 , 433 P.2d 732 ].) Specific factual allegations modify and limit inconsistent general statements. (Little v. Union Oil Co. (1925) 73 Cal.App. 612 , 619 [ 238 P. 1066 ]; Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416 , 422 [ 282 P.2d 890 ]; Faulkner v. Cal. Toll Bridge Authority (1953) 40 Cal.2d 317 , 328-329 [ 253 P.2d 659 ].) In particular, a general description of an exhibit attached to a complaint will be disregarded where inconsistent with the exhibit. (Stoddard v. Treadwell (1864) 26 Cal. 294 , 303; Ventura etc. Ry. Co. v. Hartman (1897) 116 Cal. 260 , 263 [ 48 P. 65 ]; Hill, supra, 196 Cal.App.3d at p. 586; Hilltop Properties v. State of California (1965) 233 Cal.App.2d 349 , 353 [ 43 Cal.Rptr. 605 , 37 A.L.R.3d 109 ].)

Ill

The Complaint

The subject of this appeal is plaintiff’s second amended complaint, filed after a demurrer was sustained by stipulation to the first amended complaint. The original had been amended as a matter of course (Code Civ. Proc., § 472) without prior demurrer. It attempts to state five causes of action, all seeking recovery of development fees plaintiff paid to defendant in the course of subdividing property for condominium units.

The first cause of action alleges: on August 21, 1980, defendant’s City council granted conditional approval for a subdivision map containing plaintiff’s plan for developing condominium units on certain property located in

Section 66451.2 at the time of the payment provided: “The local agency may establish reasonable fees for the processing of tentative, final and parcel maps and for other procedures required or authorized by this division or local ordinance.” (Stats. 1974, ch. 1536, § 4,pp. 3473-3474.) An additional fee may be imposed if the owner requests a certificate of compliance with the act from the city, but none is required when there is a filed and recorded final map. (§ 66499.35, subds. (a), (d); Stats. 1977, ch. 234, § 14, p. 1039.)

We are not sure that these provisions or any others in the Map Act authorize the city engineer to charge for inspection and approval of planned improvements as a condition of filing a final subdivision map, although the parties do not share our concern. A certificate by the city engineer is required to be filed with the final map (§ 66435) which attests to compliance with the Map Act and applicable local ordinances (§ 66442, subd. (a)(3)). But the focus of the act is on the preparation of adequate plans, not the adequacy of the subsequent construction.

E. General Refund Provisions

We have already quoted the specific refund provisions applicable to park fees, storm drain and sewer fees, and engineering and inspection fees. We now take note of general refund provisions in the Map Act. The final act in establishing a subdivision under the act is for the subdivider to file and record a final map. (§§ 66412.7, 66425, 66426, 66429, 66440, 66457, 66468.) The act allows for a subdivision to revert to acreage thereafter. (§ 66499.11 et seq.) The procedure commences with a petition and involves findings by the legislative body that any dedications are not needed and either all property owners consent, or none of the planned improvements were built within either two years of recordation of the final map or an agreed later time, or no lots have been sold within five years of recording the final map. (§ 66499.16.) Reversion takes effect upon filing of a final map. (§ 66499.18.) “When a reversion is effective, all fees and deposits shall be returned and all improvement security released, except those retained pursuant to Section 66499.17.” (§ 66499.19.) Section 66499.17 states: “As conditions of reversion the legislative body shall require: [H] (a) Dedications or offers of dedication necessary for the purposes specified by local ordinances following reversion. [11] (b) Retention of all previously paid fees if necessary to accomplish the purposes of this division or local ordinance adopted pursuant thereto. [11] (c) Retention of any portion of required improvement security or deposits if necessary to accomplish the purposes of this division of [szc] local ordinance adopted pursuant thereto.”

V

Case Law

In the lower court the disagreement between the parties was whether plaintiff had stated a cause of action in contract or quasi-contract for a refund of development fees. They also disagreed on whether the second amended complaint was uncertain. The court order sustaining the demurrer

An appellate court may also consider new theories on appeal from the sustaining of a demurrer to challenge or justify the ruling. As a general rule a party is not permitted to change its position on appeal and raise new issues not presented in the trial court. (Estate of Westerman (1968) 68 Cal.2d 267 , 279 [ 66 Cal.Rptr. 29 , 437 P.2d 517 ], and cases there cited.) This is particularly true “when the new theory depends on controverted factual questions whose relevance thereto was not made to appear” in the trial court. (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771 , 780 [ 97 Cal.Rptr. 657 , 489 P.2d 537 ].) However, “a litigant may raise for the first time on appeal a pure question of law which is presented by undisputed facts.” (Hale v. Morgan (1978) 22 Cal.3d 388 , 394 [ 149 Cal.Rptr. 375 , 584 P.2d 512 ]; cf. Panopulos v. Maderis (1956) 47 Cal.2d 337 , 341 [ 303 P.2d 738 ].) A demurrer is directed to the face of a complaint (Code Civ. Proc., § 430.30, subd. (a)) and it raises only questions of law (Code Civ. Proc., § 589, subd. (a); Banerian v. O’Malley (1974) 42 Cal.App.3d 604 , 611 [ 116 Cal.Rptr. 919 ]). Thus an appellant challenging the sustaining of a general demurrer may change his or her theory on appeal (Mull v. Hunter (1968) 266 Cal.App.2d 657 , 660 [ 72 Cal.Rptr. 201 ]), and an appellate court can affirm or reverse the ruling on new grounds. (Cf. Zappas v. King Williams Press, Inc. (1970) 10 Cal.App.3d 768 , 771 [ 89 Cal.Rptr. 307 ]; Hecton v. People ex rel. Dept. of Transportation (1976) 58 Cal.App.3d 653 , 656, fn. 1 [ 130 Cal.Rptr. 230 ].) After all, we review the validity of the ruling and not the reasons given. (Sackett v. Wyatt (1973) 32 Cal.App.3d 592 , 598, fn. 2 [ 108 Cal.Rptr. 219 ].)

We requested further briefing discussing Wright Development Co. v. City of Mountain View (1975) 53 Cal.App.3d 274 [ 125 Cal.Rptr. 723 ], where a property owner was found entitled to reimbursement of development fees. The owner commenced conversion of an apartment building to condominiums, which required compliance with the Map Act. The owner obtained the city’s approval of a tentative map and paid a fee in lieu of dedicating park or recreational land. The city then approved of the final subdivision map. After five months without recording the final map, the owner decided to abandon the plan and so notified the city, asking for return of its fee payment. The city declined to return the fee.

The appellate court determined the property owner was entitled to a refund. The court did not perceive any restriction in former Business and Professions Code section 11546 (id., at p. 275, fn. 1; now Gov. Code, § 66477) on use of the fees only to benefit the subdivision (id., at p. 276), but did conclude that no condominium subdivision ever came into existence, so there was no basis for collecting the fee and it must be returned. (Id., at p. 277.)

We find Wright Development Co. distinguishable in two important respects. First, we judicially notice, at defendant’s request and over plaintiff’s objection, that plaintiff on September 16,1980, filed and recorded its final subdivision map. (Evid. Code, § 452, subds. (g), (h).) “An appellate court is permitted to take judicial notice of any matter specified in Evidence Code section 452, although the trial court did not take notice of it and it is not in the record, so long as a record is made of the matter and each party is afforded an opportunity to respond to it. (Evid. Code, § 459 . . . .)” (Whispering Pines Mobile Home Park, Ltd. v. City of Scotts Valley (1986) 180 Cal.App.3d 152 , 162 [ 225 Cal.Rptr. 364 ].)

The Wright court was confronted with an approved, but unrecorded, final map, which had expired and lost effect because not recorded within a certain time. The Wright court addressed a situation where the subdivider had no existing authorization to create a condominium. In contrast, the subdivider here, having caused an approved final map to be filed and recorded, is entitled to proceed with the subdivision, subject, of course, to any other applicable legal requirements, such as building permits. (Hazon-Iny Development, Inc. v. City of Santa Monica (1982) 128 Cal.App.3d 1 , 10-11 [ 179 Cal.Rptr. 860 ]; cf. Blue Chip Properties v. Permanent Rent Control Bd. (1985) 170 Cal.App.3d 648 , 661-662 [ 216 Cal.Rptr. 492 ], and cases there cited; see People v. County of Kern (1974) 39 Cal.App.3d 830 , 837-839 [ 115 Cal.Rptr. 67 ].) The Map Act does not limit the time for a subdivider to meet any conditions imposed by local government, so far as we can ascertain. Instead, the local legislative body is authorized to enter into an

We have also seen that the Legislature has time and again restricted the exaction of subdivision fees to those reasonably required to regulate and benefit the particular subdivision. The Legislature has also time and again specifically provided methods for obtaining a refund of unused, excess fees. We decline plaintiff’s invitation to improve on this comprehensive scheme by judicial creation of an alternative.

In three versions of the complaint, plaintiff never suggested compliance with this statutory refund procedure. Our ultimate concern is: “If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman, supra, 70 Cal.2d 240 , 245; accord, Farmers Ins. Exchange v. State of California (1985) 175 Cal.App.3d 494 , 507 [ 221 Cal.Rptr. 225 ].) “In final analysis, the court is required to look at the existing pleading and hazard its best judgment whether behind the words of the pleading anything of legal substance lies, whether on further revision the pleading can honestly state a cause of action.” (Hills Trans. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702 , 709 [ 72 Cal.Rptr. 441 ].) “When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made . . . .” (Code Civ. Proc., § 472c.) Where it does not appear any amendment could create a cause of action, leave to amend need not be granted. (Lemoge Electric v. County of San Mateo (1956) 46 Cal.2d 659 , 664 [ 297 P.2d 638 ]; Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627 , 636-637 [ 75 Cal.Rptr. 766 , 451 P.2d 406 ].) Since we find a petition for reversion to acreage a prerequisite to a lawsuit demanding a refund, and plaintiff expressed doubt at oral argument this could be alleged, we hold the trial court did not abuse its discretion in sustaining the demurrer without leave to amend to plaintiff’s demand for refund of those fees arising under the Map Act in the first, third and fifth causes of action.

We also do not see how the alleged 1983 rezoning could furnish plaintiff an excuse for noncompliance with this procedure for obtaining a refund. The general refund procedure may be invoked either upon rezoning or the subdivider’s abandonment of the subdivision or for any other reason, so long as the statutory requirements for reversion to acreage are met.

Building Permit Fees

The building permit fees of $12,750.76 which are the subject of the second, fourth and fifth causes of action were imposed pursuant to a provision in the State Housing Law. (Health & Saf. Code, div. 13, pt. 1.5, § 17910.) This law requires cities to adopt (§ 17958) and enforce (§ 17960) state building standards, including those based on the Uniform Building Code (§ 17922, subd. (a)(2)). In 1980, when these fees were paid, section 17951 provided: “(a) The governing body of any city or county may prescribe fees for permits, certificates, or other forms or documents required or authorized by this part or rules and regulations promulgated pursuant thereto. [11] (b) The governing body of any city or county or fire protection district may prescribe fees to defray the costs of enforcement required by this part to be carried out by local enforcement agencies. [11] (c) The amount of the fees prescribed pursuant to subdivisions (a) and (b) of this section shall not exceed the amount reasonably required to administer or process such permits, certificates, or other forms or documents, or to defray the costs of enforcement required by this part to be carried out by local enforcement agencies, and shall not be levied for general revenue purposes. . . .” (Stats. 1979, ch. 1152, § 76.5, pp. 4268-4269.)

A city is required to keep an official copy of building plans (Health & Saf. Code, § 19850) but may charge for so doing. In 1980, section 19852 provided: “The governing body of a city or county may prescribe such fees as will pay the expenses incurred by the building department of such city or county in maintaining the official copy of the plans of buildings for which it has issued a building permit.” (Stats. 1971, ch. 616, § 1, p. 1218.)

The State Housing Law itself contains no provisions comparable to the Map Act for obtaining a fee refund. However, the Uniform Building Code which it incorporates by reference does contain refund provisions. In three versions of the complaint, plaintiff never suggested compliance with this statutory refund procedure.

Plaintiff objects to consideration of a statute of limitations defense on appeal because it was not raised in the trial court. It is true that an appellate court usually will not consider the effect of a statute of limitations asserted for the first time on appeal. (Coruccini v. Lambert (1952) 113 Cal.App. 2d 486 , 491-492 [ 248 P.2d 457 ]; DeCelle v. City of Alameda (1963) 221 Cal.App.2d 528 , 533 [ 34 Cal.Rptr. 597 ]; Miller v. Parker (1933) 128 Cal.App. 775 , 777-778 [ 18 P.2d 89 ]; cf. Bliss v. Sneath (1898) 119 Cal. 526 , 528-529 [ 51 P. 848 ].) But this authority is beside the point because we are not dealing with a law limiting the time to file a lawsuit.

Instead, we find the requirement for filing a refund claim under the Uniform Building Code to be comparable to the statutory prerequisite of presenting a governmental claim prior to filing suit against a public entity. (Gov. Code, § 945.4.) It is an element of the cause of action, subject to general demurrer, that a timely demand has been presented to the public entity and rejected or there is an excuse for noncompliance. (Tietz v. Los Angeles Unified Sch. Dist. (1965) 238 Cal.App.2d 905 , 911-912 [ 48 Cal.Rptr. 245 ]; Wilson v. People ex rel. Dept. Pub. Wks. (1969) 271 Cal.App.2d 665 , 668-669 [ 76 Cal.Rptr. 906 ], criticized on other grounds in Bahten v. County of Merced (1976) 59 Cal.App.3d 101 , 113 [ 130 Cal.Rptr. 539 ]; State of California v. Superior Court (1983) 143 Cal.App.3d 754 , 757 [ 192 Cal.Rptr. 198 ].) While this ground was not advanced in the trial court in support of the demurrer, we have already explained we may consider new questions of law on this appeal.

Plaintiff’s counsel at oral argument admitted doubt about his ability to amend the complaint to cure this defect. We share that doubt, and since plaintiff has never suggested making a timely written request for a refund of building permit fees, we hold the trial court did not abuse its discretion