Freeny v. City of San Buenaventura ( 2013 )

Filed 6/4/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ROBERT FREENY et al., 2d Civil No. B240893
(Case No. 56-2011-00403267-
Plaintiff s and Appellants, CU-WM-VTA)
(Ventura County)
v.
CITY OF SAN BUENAVENTURA et al,
Defendants and Respondents.
The California Tort Claims Act (Act) confers immunity from tort
liability on public employees when they make "basic policy decisions" in a
legislative capacity. (Gov. Code, §§ 820.2, 821, 821.2.)1 We hold that public
employees' tort immunity for legislative decision-making applies even when that
decision-making is also alleged to involve the making of misrepresentations
motivated by "actual fraud, corruption or actual malice." (§ 822.2) For this reason
and others, we affirm the dismissal of plaintiffs' suit against a city and five city
council members for nearly $2 million in compensatory damages, plus punitive
damages, for voting against an application for building permits and variances.
1
All statutory references are to the Government Code unless
otherwise indicated.
FACTS AND PROCEDURAL HISTORY
We draw these facts from the allegations in the complaint, which we
accept as true except where contradicted by the exhibits attached to the complaint.
(Tucker v. Pacific Bell Mobile Servs. (2012) 208 Cal. App. 4th 201, 210.)
I. Administrative Review
Plaintiffs Robert and Linda Freeny (plaintiffs) own two adjacent
parcels of land in mid-town City of San Buenaventura (City). For three years, they
worked with their own architect and consulted with the City's staff to design a living
facility for senior citizens. The City's planning commission (Planning Commission)
eventually approved a 44-unit, 42,172-square foot facility (the Project), and
concomitantly granted a conditional use permit, a design review, an administrative
variance, and a lot-line adjustment.
A group of 35 persons living near the proposed facility appealed the
Planning Commission's decision to the City Council. Following a remand to the
Planning Commission for further fact-finding, the City Council took up the matter
at a public hearing. On a five-to-two-vote, the City Council approved the
neighbors' appeal and overturned the Planning Commission's approval. In so doing,
the City Council found that building a facility of that "size" on a "street-to-street
lot" was "incompatible" with the "existing residential neighborhood." The City
Council stated that plaintiffs "need[ed] to rethink the entirety of the project," but
that its denial was "without prejudice" and invited plaintiffs to submit a
"redesign[ed]" project. The City Council subsequently adopted a formal resolution
sustaining the appeal "without prejudice."
II. Plaintiffs' Complaint
Plaintiffs sued the City and five City Council members (collectively,
defendants) who voted to reject the Project.2 The complaint includes a petition for
2
Plaintiffs also sued two neighbors who oppose the Project, but the
trial court struck plaintiffs' claims against the neighbors under the anti-SLAPP law.
Plaintiffs do not appeal that ruling.
2
administrative mandamus seeking an order (1) commanding the City to approve the
Project or (2) requiring a new hearing before the City Council. The complaint also
prays for $1.8 million in compensatory damages and additional punitive damages
arising from tort claims for fraud, misrepresentation and, because plaintiffs are in
their 70s, elder abuse.
III. The Trial Court's Ruling
The trial court sustained defendants' demurrers without leave to
amend on two grounds. First, the court concluded that plaintiffs' lawsuit was not
ripe because the City's denial "without prejudice" left administrative remedies
unexhausted. The court rejected plaintiffs' arguments that further exhaustion was
futile or would irreparably injure plaintiffs. Second, the court ruled that defendants
were immune from liability for adopting laws under sections 818.2 and 821; for
denying permits or similar authorizations under sections 818.4 and 821.2; and for
exercising their discretion under section 820.2. The court concluded that this
immunity applied "irrespective of the specific causes of action" plaintiffs alleged.
DISCUSSION
We independently review the trial court's sustaining of a demurrer.
(San Mateo Union High Sch. Dist. v. County of San Mateo (2013) 213 Cal. App. 4th
418, 425 (San Mateo).) In so doing, we accept the complaint's allegations as true
and construe them liberally to attain substantial justice among the parties. (Ibid.)
We review the trial court's decision not to grant leave to amend for an abuse of
discretion. (Reynolds v. Bement (2005) 36 Cal. 4th 1075, 1091 (Reynolds),
abrogated on other grounds in Martinez v. Combs (2010) 49 Cal. 4th 35, 62-66.) On
appeal, plaintiffs bear the burden of establishing error. (San Mateo, supra, at p.
426.)
I. Exhaustion of Administrative Remedies
When an administrative forum exists for presenting claims, a party is
usually required to present claims in that forum before "resorting to the courts . . . ."
(Coachella Valley Mosquito Vector Control Dist. v. California PERB (2005) 35
3
Cal. 4th 1072, 1080.) "Exhaustion requires 'a full presentation to the administrative
agency upon all issues of the case and at all prescribed stages of the administrative
proceedings.'" (City of San Jose v. Operating Engineers Local Union No. 3 (2010)
49 Cal. 4th 597, 609, quoting Bleeck v. State Bd. of Optometry (1971) 18 Cal. App. 3d
415, 432.)
This is not a case where the would-be litigant skipped the
administrative procedures entirely. To the contrary, plaintiffs presented their
application for building permits and variances to the Planning Commission and the
City Council. Plaintiffs also obtained a definitive ruling rejecting their application
as to the 42,172-square foot project that underlies this lawsuit.
Defendants contend that this was still not enough. Defendants note
that the City Council's rejection was "without prejudice," and argue that plaintiffs
have yet to avail themselves of their right under the City's municipal code (SBMC)
to file a new application with the Planning Commission. (See SBMC
§ 24.565.050(H).) Because the City Council advised plaintiffs that they would
"need" to "rethink" and "redesign" "the entirety of the project" before submitting a
new application, the question presented is whether the duty to exhaust
administrative remedies requires plaintiffs to reexhaust their remedies by vetting an
entirely different project through the same administrative process even though the
project they seek to challenge judicially has already been definitively rejected
through that process. We review this question de novo. (Sierra Club v. City of
Orange (2008) 163 Cal. App. 4th 523, 536.)
Whether reexhaustion with an entirely different project is required
depends on the nature of the subsequent judicial challenge. If a plaintiff is claiming
that a government entity has effected a regulatory taking by "'. . . deny[ing] [her] all
economically beneficial or productive use . . .'" of her property, denial of a single
use or project may not be sufficient. (Landgate, Inc. v. California Coastal Com.
(1998) 17 Cal. 4th 1006, 1017, citing Lucas v. South Carolina Coastal Council
(1992) 505 U.S. 1003, 1015, italics added.) Presentation and rejection of other
4
uses—that is, reexhaustion—may also be necessary to establish that the property
has no use. (See Dunn v. County of Santa Barbara (2006) 135 Cal. App. 4th 1281,
1299-1301; Del Monte Dunes v. City of Monterey (9th Cir. 1990) 920 F.2d 1496,
1501.)
However, when all a plaintiff challenges is the denial of a specific use
through denial of a special project, the plaintiff need only show that the
administrative agency has finally ruled on that project. Requiring reexhaustion in
these circumstances would pervert the exhaustion requirement. No longer would
exhaustion be a means of allowing administrative agencies the opportunity to apply
their expertise and flesh out facts. (Williams v. Housing Auth. of Los Angeles
(2004) 121 Cal. App. 4th 708, 722.) Instead, exhaustion would become a tool for
forestalling judicial review indefinitely by leaving the door open for further
applications.
Because plaintiffs are not raising a regulatory takings claim and are
challenging only the denial of the Project, the City Council's unequivocal rejection
of the Project satisfies the exhaustion requirement.
II. Immunity From Tort Damages
Plaintiffs contest the trial court's ruling that defendants are immune
from liability for tort damages under the Act. (§ 810 et seq.) We independently
review the trial court's construction and application of the Act. (Coito v. Super. Ct.
(2012) 54 Cal. 4th 480, 488 [statutory construction]; Alvarez v. State of Calif. (1999)
79 Cal. App. 4th 720, 728 [application], abrogated on other grounds in Cornette v.
Dept. of Transportation (2001) 26 Cal4th 63, 74, fn. 3.)
A. City Council Defendants
When it comes to tort suits against public employees, "'the rule is
liability, immunity is the exception.' [Citation.]" (Ramos v. County of Madera
(1971) 4 Cal. 3d 685, 692, limited on other grounds by Caldwell v. Montoya (1995)
10 Cal. 4th 972, 978, fn. 8 (Caldwell); see also § 820, subd. (a) ["Except as
otherwise provided by statute . . ., a public employee is liable for injury caused by
5
his act or omission to the same extent as a private person"].) However, the Act
declares that "a public employee is not liable for an injury resulting from his act or
omission where the act or omission was the result of the exercise of discretion
vested in him, whether or not such discretion be abused." (§ 820.2.) At the core of
this immunity are "'"basic policy decisions."'" (Ogborn v. City of Lancaster (2002)
101 Cal. App. 4th 448, 460.) Dovetailing neatly with this overarching immunity for
discretionary policy making, the Act also confers immunity upon public employees
for "fail[ing] to adopt an enactment" (§ 821); and for "deny[ing]" or "refus[ing] to
issue" "permit[s]" and "approval[s]" (§ 821.2). The City Council defendants in this
case are accordingly immune from tort damages under the Act. They are "public
employees" (§ 811.4), and they are being sued for their discretionary legislative
decision not to grant plaintiffs' application for building permits and variances (see
Ogborn, supra, at p. 462).
Plaintiffs challenge this conclusion on two grounds. We consider and
reject each.
1. Liability for Misrepresentations Motivated by "Actual Fraud,
Corruption or Actual Malice"
Plaintiffs contend that the Act's immunity for legislative policy
making is limited by the exception to the immunity conferred by a different
provision of the Act, section 822.2. That section provides that "[a] public
employee acting in the scope of his employment is not liable for an injury caused by
his misrepresentation, whether or not such misrepresentation be negligent or
intentional, unless he is guilty of actual fraud, corruption or actual malice." (Ibid.,
italics added.) Plaintiffs assert that section 822.2's exception should also operate as
an exception to the immunities conferred by sections 820.2, 821 and 821.2 for
legislative policy making. The cross-applicability of section 822.2's exception
presents an issue of statutory construction. Our touchstone in this task is the
Legislature's intent. (People v. Skiles (2011) 51 Cal. 4th 1178, 1185.)
6
The starting point for ascertaining legislative intent is the language
used in the statute itself. (People v. Valladoli (1996) 13 Cal. 4th 590, 597.) The
language here is ambiguous. On the one hand, sections 820.2, 821 and 821.2 do not
themselves contain any exception for misrepresentations motivated by actual fraud,
corruption or actual malice. In Tur v. City of Los Angeles (1996) 51 Cal. App. 4th
897, the court held that section 822.2's exception did not apply when a public
employee was relying on an immunity conferred by a different section of the Act.
(Tur, supra, at pp. 902-903 [not applying § 822.2's exception to immunity against
malicious prosecution actions].) Tur seemingly rejects plaintiffs' similar entreaty to
export section 822.2's exception to other immunities. On the other hand, if we
follow the maxim that statutes are to be read "'with reference to the entire scheme of
law of which [they are a] part'" (People v. Pieters (1991) 52 Cal. 3d 894, 899,
quoting Clean Air Constituency v. California State Air Resources Bd. (1971) 11
Cal. 3d 801, 814), we could read section 822.2's exception as an exception to every
immunity conferred by the Act. Indeed, section 820.2 explicitly notes that its
immunity may be abrogated "as otherwise provided by statute."
When the plain language of a statute is inconclusive, we must look
elsewhere for affirmative indications of legislative intent. (Pacific Palisades Bowl
Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal. 4th 783, 803.) In this
case, it is clear that the Legislature intended the immunity from tort liability
attaching to legislative policy making decisions to apply even when legislators
acted with improper motives. Section 820.2 is the critical immunity provision here
because the City Council defendants' discretionary decision was voting against a
resolution and thereby denying permits and variances. On these facts, section
820.2's broader immunity embraces the more specific immunities for voting on
resolutions and denying permits and variances conferred by sections 821 and 821.2.
The Legislative Committee's comment indicates that section 820.2
was meant to "restate[] pre-existing California law" (Legis. Com. com., West's Ann.
Gov. Code, foll. § 820.2), and directs the reader to Lipman v. Brisbane Elementary
7
School District (1961) 55 Cal. 2d 224, superseded by section 815, and White v.
Towers (1951) 37 Cal. 2d 727 (White). Lipman and White hold that "government
officials are not personally liable for their discretionary acts within the scope of
their authority even though it is alleged that their conduct was malicious.
[Citations.]" (Lipman, supra, at p. 229; White, supra, at p. 730.) They reason that
although absolute immunity from tort damages undercuts the "public policy of
protecting individuals from oppressive official action" (White, supra, at p. 729),
such immunity is necessary because "experience has shown that the common good
is best served by permitting law enforcement officers to perform their assigned
tasks without fear of being called to account in a civil action" (id., p. 730). White
further notes that immunity from tort damages removes one possible deterrent
against maliciously motivated conduct, but concludes that the threats of criminal
prosecution and of "'. . . being ousted from office on that account . . .'" are sufficient
surrogates (ibid.).
The logic underlying these cases applies even more forcefully in the
context of legislator's discretionary, policy-making decisions. Like all other public
employees, legislators benefit from immunity that does not dissipate "'. . . upon the
mere allegation of improper motives or unlawful acts . . .'" because such immunity
eliminates the "'. . . threat of personal liability . . .'" (Martelli v. Pollock (1958) 162
Cal. App. 2d 655, 659), and frees public employees to exercise their "'. . . honest
judgment uninfluenced by fear of consequences personal to themselves . . .'" (White,
supra, 37 Cal.2d at p. 732). In short, absolute immunity makes sure that "'. . . it is
not a tort for Government to govern. . . .'" (HFH, Ltd. v. Super. Ct. of Los Angeles
County (1975) 15 Cal. 3d 508, 519, quoting Dalehite v. United States (1952) 346
U.S. 15, 57 (Jackson, J., dissenting).)
With legislators, absolute immunity also furthers the separation of
powers. The judiciary is not in the business of "'. . . inquir[ing] into the "motivation
or mental processes" which may underlie action by a nonjudicial agency of
government.'" (Blank v. Kirwan (1985) 39 Cal. 3d 311, 324, quoting In re Fain
8
(1976) 65 Cal. App. 3d 376, 393, fn. 14.) This is why an elected "official's motives,
no matter how self-interested they may be, cannot vitiate otherwise valid
government action. [Citations.]" (Blank, supra, at p. 325.) A rule hinging tort
immunity on whether legislators made misrepresentations motivated by "actual
fraud, corruption, or actual malice" (§ 822.2) would put legislators' motives front
and center. It would also put judges in the uncomfortable position of "question[ing]
the wisdom of . . . legislative decision[s] through tort litigation. [Citation.]" (Wood
v. County of San Joaquin (2003) 111 Cal. App. 4th 960, 972; Caldwell, supra, 10
Cal.4th at p. 981 [noting how judicial review might "'. . . affect the coordinate
body's decision-making process'"].) This threat to the constitutionally mandated
separation of powers counsels against plaintiffs' construction. (People v. Leiva
(2013) 56 Cal. 4th 498, 506-507 ["'. . . when faced with an ambiguous statute that
raises serious constitutional questions, [we] should endeavor to construe the statute
in a manner which avoids any doubt concerning its validity'"], quoting Young v.
Haines (1986) 41 Cal. 3d 883, 898.)
Even if our Legislature's intent were not so clear, we are still required
to construe statutes to be "'. . . consistent with justice and common sense . . .'"
rather than to "'. . . lead[] to mischief or absurdity. . . .'" (Shoemaker v. Myers
(1992) 2 Cal. App. 4th 1407, 1424, quoting Lampley v. Alvarez (1975) 50
Cal. App. 3d 124, 128-129.) Plaintiffs' proffered construction falls into this latter
category because it would allow section 822.2's exception to swallow the rule of
immunity in sections 820.2, 821 and 821.2. By the simple expedient of specifically
pleading that a legislator's policy decision was motivated by fraud, malice or
corruption, an unhappy constituent could subject that legislator to protracted pretrial
litigation or trial, even if the legislator is ultimately vindicated. This threat of
harassment and personal liability is precisely what the immunity in sections 820.2,
821 and 821.2 was enacted to prevent. Plaintiffs' construction of the Act would
accordingly "frustrate the legislative purpose" behind these immunities.
(Shoemaker, supra, at pp. 1424-1425, quoting Barber v. Blue (1966) 65 Cal. 2d 185,
9
188.) We have rejected similar attempts to "abrogate" immunities by
"maneuvering" the "rules of pleading and procedure." (O'Hagan v. Bd. of Zoning
Adjustment (1974) 38 Cal. App. 3d 722, 730; accord, Land Waste Management v.
Contra Costa County Bd. of Supervisors (1990) 222 Cal. App. 3d 950, 962-963;
Mikkelsen v. State of Calif. (1976) 59 Cal. App. 3d 621, 630.)
By contrast, reading section 822.2's exception for misrepresentations
motivated by actual fraud, corruption or actual malice as not qualifying the tort
immunity that otherwise attaches to legislators' policy making decisions best
harmonizes the legislative intent behind all of these provisions. It effectuates the
intent behind sections 820.2, 821 and 821.2 by eliminating the danger of harassment
and chilling that springs from susceptibility to tort lawsuits while preserving
oversight by criminal prosecution and by the electorate. At the same time, this
construction appropriately circumscribes the immunity for misrepresentations
conferred by section 822.2. Public employees not engaged in legislative or other
discretionary policy making remain liable for misrepresentations they make in the
course of their employment if those misrepresentations (1) do not interfere with
commercial or financial interests (Johnson v. State of Cal. (1968) 69 Cal. 2d 782,
790-800 [parole officer's act in not warning foster parents of teenager's homicidal
tendencies not covered by § 822.2]; Bastian v. County of San Luis Obispo (1988)
199 Cal. App. 3d 520, 532-533 [police officer's act in misrepresenting accident
victim's use of alcohol not covered by § 822.2]; Michael J. v. Los Angeles County
Dept. of Adoptions (1988) 201 Cal. App. 3d 859, 868 [county employees acts in
misrepresenting adopted baby's medical condition not covered by § 822.2]); or
(2) are pled with specific facts and subsequently proven to be motivated by actual
fraud, corruption or actual malice, Masters v. San Bernardino County Employees
Retirement Assn. (1995) 32 Cal. App. 4th 30, 42 & fn. 9 (Masters) [county plan
administrator may be liable under § 822.2's exception for hiding medical reports to
prevent plaintiff from being found eligible for disability pension]; cf. Golden West
Baseball Company v. Talley (1991) 232 Cal. App. 3d 1294, 1305-1306 [city manager
10
would not be entitled to judgment on immunity grounds for misrepresenting
plaintiffs' rights under lease if plaintiffs had produced any evidence of fraud or
corruption], disapproved on other grounds by Reid v. Google, Inc. (2010) 50 Cal. 4th
512, 526-527; accord, Curcini v. County of Alameda (2008) 164 Cal. App. 4th 629,
649 ["the pleader must . . . allege facts" supporting actual fraud, corruption or actual
malice; "conclusory allegations" insufficient to survive demurrer].3
For these reasons, we conclude that the City Council defendants are
immune from tort damages for their legislative denial of plaintiffs' application.
2. Constitutional arguments
Plaintiffs alternatively contend that their tort suit against the City
Council defendants is premised largely on violations of procedural due process. In
particular, plaintiffs allege that (1) the City Council's findings differed from the
Planning Commission's findings; (2) plaintiffs received less speaking time than the
35 opponents to their application at the City Councils' meeting; (3) some of the City
Council defendants labored under an unspecified "conflict of interest"; and (4) a
staff member referred to plaintiffs' project as having the incorrect number of
parking spaces (18 instead of 19), which shows that the City Council defendants
were evaluating the wrong set of plans.
To be sure, the courts are currently divided on the question of whether
the Act's immunities extend to claims of constitutional error. (Compare Rosenthal
v. Vogt (1991) 229 Cal. App. 3d 69, 75 [immunity applies to claim for denial of a fair
hearing]; State of Cal. v. Super. Ct. (1974) 12 Cal. 3d 237, 244-245 [same] with
Young v. County of Marin (1987) 195 Cal. App. 3d 863, 869 [immunity does not
apply to a claim for a First Amendment violation].) But we need not resolve that
3
Because all of these sections were enacted together as part of the Act
in 1963, the canons of statutory construction giving effect to specific statutes over
general statutes (Arterberry v. County of San Diego (2010) 182 Cal. App. 4th 1528,
1536), and to later-enacted statutes (DeJung v. Super. Ct. (2008) 169 Cal. App. 4th
533, 547), are of no assistance.
11
issue because tort damages are in any event unavailable for the procedural due
process violations. (Katzberg v. Regents of Univ. of Calif. (2002) 29 Cal. 4th 300,
321, 324.)
B. The City
The City is a "public entity" presumptively immune from tort liability.
(§§ 815, subd. (a), 811.2; McCarty v. Dept. of Transp. (2008) 164 Cal. App. 4th 955,
961.) The Act nevertheless specifies the situations in which a public entity may be
(1) directly liable for injuries (§§ 815.4, 815.6, 818.5); or (2) vicariously liable for
injuries caused by its employees (§ 815.2, subd. (a); M.P. v. City of Sacramento
(2009) 177 Cal. App. 4th 121, 128-129; accord, Bradford v. State of Calif. (1973)
36 Cal. App. 3d 16, 20-21 [public entity has both direct and vicarious liability].)
Plaintiffs allege that the City is liable for two reasons. First, they
argue that the City is vicariously liable for the City Council defendants' actionable
misrepresentations, even though the City cannot be held directly liable for any
misrepresentations under section 818.8. We reject this argument for two reasons.
As we discuss above, the City Council defendants are themselves immune. Because
they are immune, so is the City. (§ 815.2, subd. (b) ["a public entity is not liable for
an injury resulting from an act or omission of an employee of the public entity
where the employee is immune from liability"].) Even if we had concluded that
section 822.2's exception applied to the City Council defendants and rendered them
potentially liable, it is well settled that section 818.8 confers upon public entities an
absolute immunity for all misrepresentations, and that this immunity trumps any
vicarious liability for egregious misrepresentations of its employees actionable
against the employees themselves. (Harshbarger v. City of Colton (1988) 197
Cal. App. 3d 1335, 1340-1341; Universal By-Products, Inc. v. City of Modesto
(1974) 43 Cal. App. 3d 145, 154.)
Second, plaintiffs argue that section 815.3, subdivision (a), renders the
City jointly liable in tort as long as the City is named in their complaint as a
codefendant with an "elected official." We disagree. Section 815.3 erects a rule of
12
pleading requiring a public entity to be named as a joint tortfeasor before judgments
against an elected official may be enforced against that entity. Section 815.3 does
not purport to eliminate all of a public entity's tort immunities once that entity is
alleged to be a codefendant.
III. Mandamus Petition
Because the trial court ruled that plaintiffs had not exhausted their
administrative remedies, it had no occasion to decide the propriety of plaintiffs'
request for mandamus relief. The Act's immunity reaches only "personal tort
liability" and does not immunize against or otherwise preclude mandamus review.
(Masters, supra, 32 Cal.App.4th at p. 47, fn. 11.) Because plaintiffs' prayer for
mandamus relief has yet to be considered, we would ordinarily remand the issue to
the trial court. However, we conclude that remand would be futile because
plaintiffs are not entitled to this relief as a matter of law. (Aryeh v. Canon Business
Solutions (2012) 55 Cal. 4th 1185, 1191.)
Plaintiffs ground their request for mandamus on three theories. First,
they seek an order compelling defendants to grant their application because City
Council members had so promised. This is indistinguishable from a claim that
defendants are estopped by their prior statements, and estoppel does not lie against
the government in this context. (Toigo v. Town of Ross (1998) 70 Cal. App. 4th 309,
321-324.)
Second, plaintiffs seek a new hearing before the City Council because
the City Council's review did not comply with procedural due process. A viable
due process claim rests on the deprivation of a protected property interest. Because
plaintiffs had no entitlement to a permit or variance at the time the City Council
rejected their application (Clark v. City of Hermosa Beach (1996) 48 Cal. App. 4th
1152, 1182-1183), they lack the necessary predicate for a procedural due process
claim.
Lastly, plaintiffs allege that the defendants did not "follow legal
standards." Because public agencies are presumed to regularly perform their
13
official duty (Evid. Code, § 664; Moore v. Twentynine Palms County Water Dist.
(1957) 156 Cal. App. 2d 109, 111 [presumption applies at demurrer stage]), a
plaintiff must plead sufficient facts to overcome that presumption (Schwartz v.
Poizner (2010) 187 Cal. App. 4th 592, 599; Romero v. County of Santa Clara (1970)
3 Cal. App. 3d 700, 703-704.) Plaintiffs' bare allegation that defendants did not
"follow legal standards," without more, is insufficient. Moreover, because plaintiffs
have not sought to provide any additional explication to the trial court or this court,
we conclude that plaintiffs have not established "a reasonable possibility" that this
defect can be cured by further amendment of their complaint. (Reynolds, supra, 36
Cal.4th at p. 1091.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendants.
CERTIFIED FOR PUBLICATION.
HOFFSTADT, J.*
We concur:
YEGAN, Acting P. J.
PERREN, J
* (Judge of the Superior Court of Los Angeles County, assigned by the
Chief Justice pursuant to art. 6, § 6 of the Cal. Const.)
14
Rebecca S. Riley, Judge
Superior Court County of Ventura
______________________________
Law Offices of James B. Devine and James B. Devine for Plaintiffs and
Appellants.
Ariel Pierre Calonne, City Attorney, Andy H. Viets, Senior Assistant
Attorney, Jennifer Lee, Assistant City Attorney for Defendants and Respondents.