1305 Ingraham v. City of Los Angeles ( 2019 )

Filed 2/15/19; certified for publication 3/12/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
1305 INGRAHAM, LLC, B287327
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS169544)
v.
CITY OF LOS ANGELES et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Amy D. Hogue, Judge. Affirmed.
Alexander and Yong and Jeffrey S. Yong for Plaintiff and
Appellant.
DLA Piper, A. Catherine Norian and Karen L. Hallock for
Respondent 7th & Witmer.
Michael N. Feuer, City Attorney, Terry P. Kaufman
Macias, Assistant City Attorney, Donna Wong and Kimberly A.
Huangfu, Deputy City Attorneys for Defendant and Respondent
City of Los Angeles.
This appeal concerns the development of a mixed-use
commercial and affordable housing project at the intersection of
7th Street and Witmer Street in Los Angeles. Appellant 1305
Ingraham, LLC filed an administrative appeal challenging
respondent City of Los Angeles’s project permit compliance
review. The City scheduled but never held a hearing on the
appeal. A few days after the hearing date, the City approved the
project; it filed and posted a notice of determination with the
county clerk approximately one week later. Real party in
interest/respondent 7th & Witmer, LP moved forward with the
project.
Nine months later, appellant filed a petition for a writ of
mandate in which it alleged that the project failed to comply with
the California Environmental Quality Act (CEQA). In response
to 7th & Witmer’s demurrer based on CEQA’s 30-day statute of
limitations, appellant filed an amended petition abandoning its
CEQA claim and alleging instead that the city’s failure to hold a
hearing on its appeal violated a Los Angeles Municipal Code
provision requiring the Area Planning Commission to hold a
hearing prior to deciding an appeal. 7th & Witmer and the city
jointly demurred on statute of limitations grounds. The trial
court sustained the joint demurrer without leave to amend.
Appellant contends the trial court erred in concluding its
claim was time-barred by the 90-day statute of limitations in
Government Code section 65009, subdivision (c)(1) (section
65009(c)(1)). Appellant argues that its claim is instead subject to
the three-year statute of limitations for actions “upon a liability
2
created by statute” set forth in Code of Civil Procedure section
338, subdivision (a) (section 338(a)). We disagree and affirm.
FACTUAL BACKGROUND
On appeal from a judgment based on an order sustaining a
demurrer, we assume all facts alleged in the operative complaint
are true. (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51
Cal. 4th 524, 528.)
The development project at issue is a multi-story mixed-use
project with affordable housing units in the upper stories and
commercial retail space on the ground floor. 7th & Witmer
proposed to build the project on a downtown Los Angeles lot
owned by Sheng Cheng Chen, Sheng-Jen Chen, and Hsiu-Hsin
Helen Chuang.1
On or about October 19, 2015, 7th & Witmer filed
applications for an affordable housing determination, density
bonus, and project permit compliance with the City’s Planning
Department.
On June 15, 2016, the city “issued a Specific Plan Project
Permit Compliance Review Density Bonus & Affordable Housing
Incentives (the ‘Determination’) to Real Party 7th and Witmer,
L.P.” The Determination stated that it would become final 15
days after the date it was mailed unless an appeal was filed with
the City Planning Department.
Appellant filed a notice of appeal with the City Planning
Commission on June 30, 2016, the last day of the 15-day appeal
period. According to appellant, the appeal challenged “the
1The property owners were named as real parties in
interest below and as respondents here. However, they have not
been involved in the litigation and have not submitted briefs to
this court.
3
requested incentives in the Determination.”
Appellant alleges that a hearing on the appeal was set for
July 28, 2016. Appellant further alleges that the file was never
transmitted to the Area Planning Commission. Appellant
additionally “is informed and believes and thereupon alleges that
[appellant’s] appeal hearing of July 28, 2016 was never held.”
“After July 28, 2016 [appellant] did not receive any information
from [the City], or any agency of [the City], that the appeal
hearing was conducted and/or ruled upon.”
The City “approved the Project on August 1, 2016.
Thereafter, a Notice of Determination was filed and posted with
Office of the County Clerk on or about August 8, 2016.”
PROCEDURAL HISTORY
Nine months after the notice of determination was filed, on
May 10, 2017, appellant filed a petition for writ of mandate and
complaint for declaratory relief in the trial court. In that
petition, appellant alleged that the city “failed to comply with
CEQA before approving the project because it did not require the
[environmental impact report] that would show how the lack of
analysis of parking and traffic would negatively impact the
Project.” As part of its CEQA claim, appellant further alleged
that the city “never responded nor held a hearing to determine
the merits of [appellant’s] appeal.” Appellant sought a writ of
mandate directing the city “to rescind all approvals for the project
alleged herein, and commanding [the City] to comply with
CEQA.” It also sought an injunction barring further action on
the project “until such time as they have complied with CEQA,”
and a declaration that the Determination was invalid.
Appellant served the city, 7th & Witmer, and the
landowners on October 17, 2017. On October 20, 2017, 7th &
4
Witmer filed a demurrer. In the demurrer, 7th & Witmer
asserted that appellant’s CEQA claims were time-barred under
Public Resources Code section 21167, subdivision (c), which
provides a 30-day limitations period for claims alleging an
inadequate environmental impact report. 7th & Witmer also
asserted that the claim regarding the city’s failure to hold an
appeal hearing was time-barred by the 90-day limitations period
in section 65009(c)(1).
7th & Witmer requested that the trial court expedite
proceedings on its demurrer to accommodate rapidly approaching
financing deadlines for the project. The trial court granted the
request over appellant’s objection and set the demurrer for
hearing on November 7, 2017.
On October 31, 2017, appellant filed a first amended
petition in lieu of opposition to the demurrer. The amended
petition abandoned the CEQA claim in favor of a claim that the
City violated appellant’s due process rights by denying it an
appeal hearing to which it was entitled under the Los Angeles
Municipal Code (LAMC). Appellant alleged that its appeal filing
should have stayed the project under LAMC section 11.5.7.C.6.
Appellant further alleged that LAMC section 16.05.H.1, which is
in the “Appeals” subsection of the LAMC section governing “Site
Plan Review,” required the city to hold a hearing before deciding
its appeal. LAMC section 16.05.H.1 provides in relevant part,
“Prior to deciding an appeal, the Area Planning Commission shall
hold a hearing or direct a hearing officer to do so.” Appellant
alleged that the city approved the project without a hearing. It
sought “a writ of mandate returning the parties to the status quo
ante, staying the Project pursuant to LAMC Section 11.5.7 C.6,
overturning all approvals of the Project made after [appellant]
5
filed its appeal and ordering [the City] to provide a hearing on
[appellant’s] appeal.” Appellant further sought injunctive relief
preventing any further action on the project until its appeal was
resolved.
7th & Witmer demurred to the amended petition.2 It
argued that the amended petition “suffers from the same fatal
defect as the original petition . . . all of its claims are time-
barred.” 7th & Witmer contended that the claim was governed by
section 65009(c)(1)(E) or (F), both of which require a claimant to
commence a proceeding and serve the relevant “legislative body
within 90 days after the legislative body’s decision.”
(§ 65009(c)(1).) Subdivision (E) so limits actions “[t]o attack,
review, set aside, void or annul any decision on matters listed in
Sections 65901 and 65903, or to determine the reasonableness,
legality, or validity of any condition attached to a variance,
conditional use permit, or any other permit.” (§ 65009(c)(1)(E).)
Subdivision (F) so limits actions “[c]oncerning any of the
proceedings, acts, or determinations taken, done, or made prior to
any of the decisions listed in subparagraphs (A), (B), (C), (D), and
(E).” (§ 65009(c)(1)(F).)
7th & Witmer also pointed to LAMC section 16.05.H.4, the
last sentence of which provides that the decision of the planning
director becomes final “[i]f the Area Planning Commission fails to
act within the time specified,” and argued that the 90 days for
appellant to file suit began running after the commission failed to
hear the appeal. The city joined the demurrer and adopted 7th &
Witmer’s arguments in their entirety.
2Italso filed a reply in support of its original demurrer.
The trial court overruled that demurrer as moot in light of the
amended petition.
6
Appellant opposed the demurrer. It argued that its
amended petition alleged a violation of a statute—LAMC section
16.05.H.1—and therefore was governed by the three-year statute
of limitations in section 338(a), which applies to “[a]n action upon
a liability created by a statute, other than a penalty or
forfeiture.” It further argued that section 65009(c)(1) was not
applicable because no “legislative body” rendered a “decision.”
Appellant also contended that the last sentence in LAMC section
16.05.H.4 did not apply because “[t]he only ‘time specified’ within
the provision is the time to render the written decision after the
appeal is heard.” Moreover, appellant argued, it would be absurd
to allow the city to skirt its statutory obligations to hear appeals
by allowing it to reach a final decision simply by doing nothing.
The court heard and sustained the demurrer without leave
to amend on November 27, 2017. In its written order, the court
concluded that the action was time-barred by section 65009(c)(1).
The court reasoned that section 65009(c)(1) was intended to
provide certainty to property owners and governments seeking to
zone and develop property and as such was applicable to a broad
range of local zoning and planning decisions. The court
concluded that the city’s Determination was one such decision
that became final under LAMC section 16.05.H.4 when the
commission failed to act. The court observed that allowing the
petition to move forward “would undermine Section 65009’s
purpose of providing certainty for property owners and avoiding
lengthy delays to housing projects.”
The court was “not persuaded” by appellant’s argument
that section 65009(c)(1) was inapplicable because it was not
challenging any “legislative body” decision but merely was
seeking to obtain a hearing and written decision. The court
7
pointed out that appellant’s complaint sought not only a hearing
but also the set aside of the June 15, 2016 Determination and all
subsequent project approvals. The court also distinguished
appellant’s primary case authority, Urban Habitat Program v.
City of Pleasanton (2008) 164 Cal. App. 4th 1561 (Urban Habitat)
on the ground that appellant’s statutory claim, unlike that of the
plaintiff in Urban Habitat, “is directly related to the city’s
decision to approve 7th and Witmer’s application for Project
Permit Compliance.”
Appellant timely appealed.
DISCUSSION
I. Standard of Review
We review the trial court’s order sustaining the demurrer
without leave to amend de novo. (Save Lafayette Trees v. City of
Lafayette (2018) 28 Cal.App.5th 622, 627). “In conducting the
review, this court exercises its independent judgment to
determine whether the action can proceed under any legal theory.
[Citation.] Leave to amend should not be granted if the pleadings
disclose the action is barred by a statute of limitation.” (Ibid.)
“‘The determination of the statute of limitations applicable to a
cause of action is a question of law we review independently.’
[Citation.]” (Stockton Citizens for Sensible Planning v. City of
Stockton (2012) 210 Cal. App. 4th 1484, 1491 (Stockton).)
II. Analysis
Appellant contends the statute of limitations in section
65009(c)(1) does not apply because there was no “decision” on its
appeal, no “legislative body” made a ruling, and absurd results
would ensue if it did. We reject these arguments.
“‘In construing a statute “[courts] begin with the
fundamental rule that a court ‘should ascertain the intent of the
8
Legislature so as to effectuate the purpose of the law.’”’
[Citation.] ‘[W]here the language [of the statute] is clear, its
plain meaning should be followed.’ [Citation.]” (Stockton, supra,
210 Cal.App.4th at p. 1491.)
Government Code section 65009 is entitled, “Actions or
proceedings challenging local zoning and planning decisions;
legislative findings; limitation of issues; time limitations;
application of section.” In enacting the statute, the Legislature
found and declared “that there currently is a housing crisis in
California and it is essential to reduce delays and restraints upon
expeditiously completing housing projects.” (Gov. Code, § 65009,
subd. (a)(1).) It further found and declared that legal actions
challenging “the implementation of general plan goals and
policies that provide incentives for affordable housing, open-space
and recreational opportunities, and other related public benefits,
can prevent the completion of needed developments even though
the projects have received required government approvals.” (Gov.
Code, § 65009, subd. (a)(2).) The Legislature expressly intended
Government Code section 65009 “to provide certainty for property
owners and local governments regarding decisions made
pursuant to this division.” (Gov. Code, § 65009, subd. (a)(3).) “To
this end, Government Code section 65009, subdivision (c)
establishes a short, 90-day statute of limitations, applicable to
both the filing and service of challenges to a broad range of local
zoning and planning decisions.” (Honig v. San Francisco
Planning Department (2005) 127 Cal. App. 4th 520, 526.)
That statute of limitations is set forth in section
65009(c)(1), which provides in relevant part: “no action or
proceeding shall be maintained in any of the following cases by
any person unless the action or proceeding is commenced and
9
service is made on the legislative body within 90 days after the
legislative body’s decision: [¶] . . . [¶] (E) To attack, review, set
aside, void, or annul any decision on the matters listed in sections
65901 and 65903, or to determine the reasonableness, legality, or
validity of any condition attached to a variance, conditional use
permit, or any other permit. [¶] (F) Concerning any of the
proceedings, acts, or determinations taken, done, or made prior to
any of the decisions listed in subparagraphs . . . (E).”
There is no real dispute that appellant’s challenge to the
project is within the general subject area covered by section
65009(c)(1). However, appellant argues that the statute cannot
apply because the opening clause requires a “legislative body’s
decision,” and no “decision” was rendered by a “legislative body.”
Appellant’s contention that a “legislative body’s decision” is
necessary rests upon the plain language of the statute. The
opening clause of section 65009(c)(1) specifically states that any
of the listed proceedings must be commenced and served “within
90 days after the legislative body’s decision.” Under ordinary
grammar rules, this clause means that a “decision” is the
relevant event from which the statute of limitations runs. Indeed,
respondents concede that “the 90-day limitations period under
Section 65009 is triggered by a decision.”
Whether the requisite “decision” exists here is disputed.
Section 65009(c)(1) does not define “decision,” and no party has
directed us to an applicable provision in the Government Code.
Appellant instead relies on LAMC section 16.05.H.1, a subsection
of an “Appeals” section that is entitled “Authority,” which
provides, “The Area Planning Commission of the area in which
the property is located shall have the authority to decide appeals
from site plan review decisions made by the Director. Prior to
10
deciding an appeal, the Area Planning Commission shall hold a
hearing or direct a hearing officer to do so.” Appellant asserts
that under that provision, “a prerequisite to any decision is the
mandate that a hearing be conducted.” Thus, “there could be no
determination by the Planning Commission (final or otherwise)
until after Appellant’s appeal was heard.”
We are not persuaded by this argument. LAMC section
16.05.H.4, a later provision entitled “Decision” within the same
“Appeals” subsection as LAMC section 16.05.H.1, states: “The
Area Planning Commission shall render its decision in writing
within 15 days after completion of the hearing. The Area
Planning Commission may sustain or reverse any decision of the
Director . . . . The decision shall be in writing and based upon
evidence in the record, including testimony and documents
produced at the hearing before the Area Planning Commission. . .
. If the Area Planning Commission fails to act within the time
specified, the action of the Director shall be final.” This section,
by its plain terms, states that the Commission’s failure to act in a
timely fashion renders the Director’s decision the final one. Here,
appellant alleges the Commission failed to adjudicate appellant’s
appeal and render its own written decision. The Director’s
determination—which no one disputes constitutes a “decision”—
thus became the final “decision” from which the statute of
limitations began running 15 days after the scheduled July 28,
2016 hearing date.
Appellant contends that this interpretation of LAMC
section 16.05.H.4 is improper and leads to “absurd results” for
several reasons. First, it argues that this interpretation “ignores
the allegation of the [first amended petition] that such an
interpretation renders the provision unconstitutional,” and
11
therefore “is an issue for another day.” Appellant indeed alleged,
“To the extent Respondent contends that LAMC 16.05.H.4
permits the City to fail to hear Petitioner’s appeal, Petitioners
contend that any such reading of said provision would render it
unconstitutional on its face and as applied because it denied
Petitioner their [sic] substantive and procedural due process
rights under law.” This allegation, however, misconstrues the
nature of LAMC section 16.05.H.04 and other similar provisions
throughout the LAMC that clarify what happens when an entity
fails to act. Rather than condoning or authorizing inaction, such
provisions provide a backstop to provide interested parties with
an actionable decision in the event of a procedural lapse by the
decision-making body.
Appellant next contends that the only “time specified” in
LAMC section 16.05.H.4 is “within 15 days after completion of
the hearing,” and asserts that it “is unaware of any authority
which allows the last sentence of Section 16.05.H.4 to eviscerate
the mandates of Section 16.05.H.1 that a hearing be conducted
[p]rior to deciding an appeal.” Thus, it argues, “the LAMC must
be read to require an appeal be deemed denied only if the
appellate body fails to act after the appeal has been heard.”
Taken to its logical end point, this argument means, as appellant
squarely acknowledges, that any “limitations period cannot
commence until a hearing takes place.”
We reject appellant’s conclusion. “Our primary goal is to
implement the legislative purpose, and, to do so, we may refuse to
enforce a literal interpretation of the enactment if that
interpretation produces an absurd result at odds with the
legislative goal.” (Honig v. San Francisco Planning Department,
supra, 127 Cal.App.4th at p, 527.) The purposes of LAMC section
12
16.05 “are to promote orderly development, evaluate and mitigate
significant environmental impacts, and promote public safety and
the general welfare by ensuring that development projects are
properly related to their sites, surrounding properties, traffic
circulation, sewers, other infrastructure and environmental
setting; and to control or mitigate the development of projects
which are likely to have a significant adverse effect on the
environment as identified in the city’s environmental review
process, or on surrounding properties by reason of inadequate
site planning or improvements.” (LAMC § 16.05.A.) These
purposes are not served if the statute is interpreted to allow a
project to remain in a state of perpetual limbo due to a procedural
error. Interpreting the statute to contain a mechanism by which
a determination may become final notwithstanding a procedural
irregularity does not authorize the city to violate the procedural
rights of potential appellants. Rather, it advances the purposes
of site plan review set forth in the LAMC and provides parties
whose rights may have been violated a “decision” from which they
may seek writ or other relief.
Appellant next argues that section 65009(c)(1) cannot apply
because a “legislative body” did not render the “decision.”
Relying on a dissenting opinion in DeVita v. County of Napa
(1995) 9 Cal. 4th 763, 802, fn. 2 (Arabian, J., dissenting),
appellant contends that the term “legislative body,” undefined in
the context of city planning, has been defined in other contexts to
mean “‘board of trustees, city council, or other governing body of a
city.’” It “submits, therefore, that the reference to a ‘legislative
body’ in Section 65009 contemplates more than the findings of a
single person such as Respondent’s City Director,” whose
determination was the final one rendered in this case. Appellant
13
asserts that LAMC section 16.05.H.1 supports this
interpretation, because it says that “the Area Planning
Commission shall hold a hearing or direct a hearing officer to do
so”; appellant reasons that “the appellate body who ‘shall’ hold a
hearing on the appeal should be considered the ‘legislative body’
for purpose of Section 65009(c)(1).” Respondents contend that the
LAMC, “enacted by a legislative body, delegates to the Director
broad authority to approve, disapprove or approve with
conditions an application for Project Permit Compliance.” They
also point to Stockton, supra, 210 Cal. App. 4th 1484, as
supportive of this interpretation.
Respondents have the better argument. The Los Angeles
City Charter provides that members of the Area Planning
Commission are appointed, not elected, and that “Area Planning
Commissions are quasi-judicial agencies.” (Los Angeles City
Charter, art. V, § 552.) A “quasi-judicial agency” is not a
“legislative body.” Moreover, Government Code section 65901,
referenced in section 65009(c)(1), authorizes decisions by a “board
of zoning adjustment or zoning administrator.” Neither of those
entities—an individual and a “board” that does not govern a
city—meets the definition of “legislative body” advanced by
appellant.
Stockton, supra, 210 Cal. App. 4th 1484 is instructive.
There, the plaintiffs petitioned for a writ of mandate to direct the
City of Stockton to vacate its approval of a Wal-Mart
Supercenter. (Stockton, supra, 210 Cal.App.4th at p. 1487.) The
trial court entered judgment for defendants on the pleadings
after concluding that the suit was time-barred by section
65009(c)(1). (Ibid.) On appeal, plaintiffs contended that
Stockon’s approval, which was in the form of a letter issued by
14
the Director of the city’s Community Development Department,
did not start the 90-day limitations period running “because that
subdivision is limited to challenges concerning variances and
permits issued after a decision by a legislative body.” (Ibid.) The
court of appeal concluded “that section 65009, subdivision
(c)(1)(E) is not so limited, and that it applies to the Director’s
approval of the Wal-Mart Supercenter project because the
Director was acting as City’s zoning administrator and was
exercising powers granted by local ordinance when he approved
construction of the Wal-Mart Supercenter.” (Ibid.)
The court reasoned that “interpreting the phrase
‘legislative body’ in section 65009, subdivision (c)(1), as
encompassing the board of zoning adjustment, zoning
administrator, and board of appeals referenced in sections 65901
and 65903 not only avoids rendering a portion of section 65009,
subdivision (c)(1)(E), meaningless, it harmonizes the provisions of
the statutes as a whole.” (Stockton, supra, 210 Cal.App.4th at p.
1495.) The court further explained: “[W]hen considered as a
whole, the language of section 65009, subdivision (c)(1), supports
a finding that the Legislature intended to include decisions by
zoning administrators in the 90-day limitations period.
Subdivision (c)(1) provides that ‘no action or proceeding shall be
maintained in any of the following cases by any person unless the
action or proceeding is commenced . . . within 90 days after the
legislative body’s decision’ (italics added), and thereafter specifies
six cases to which the limitations period applies. (§ 65009, subd.
(c)(1)(A)-([F]).) Three of those cases begin with the phrase ‘[t]o
attack, review, set aside, void, or annul the decision of a
legislative body’ (id., subd. (c)(1)(A), (B), & (D), italics added), and
three do not, including subdivision (c)(1)(E) (id., subd. (c)(1)(C),
15
(E) & (F)) [although subdivision (c)(1)(C) involves a legislative
decision]). Rather, subdivision (c)(1)(E) begins with the phrase:
‘To attack, review, set aside, void, or annul any decision on the
matters listed in Sections 65901 and 65903 . . . .’ (Id., subd.
(c)(1)(E), italics added.) The Legislature’s failure to limit
subdivision (c)(1)(E) to decisions of a legislative body on the
matters listed in sections 65901 and 65903, while doing so
elsewhere, supports the conclusion that the Legislature did not
intend to exclude decisions by zoning administrators from section
65009, subdivision (c)(1)(E).” (Stockton, supra, 210 Cal.App.4th
at pp. 1495-1496, footnotes omitted.)
This reasoning applies here. The text of section 65009(c)(1)
does not support appellant’s contention that its application is
limited to decisions of a “legislative body.” “[S]ection 65009
expressly incorporates the ‘matters’ listed in sections 65901 and
65903, regardless of the legislative body charged with making the
decision. The courts ‘have rejected the notion that the reviewing
body, rather than the underlying decision being reviewed,
determines the applicability of Section 65009.’ [Citation.]” (Save
Lafayette Trees v. City of Lafayette, supra, 28 Cal.App.5th at
p. 630.)
Appellant contends that Stockton is distinguishable
because the court “took pains” to emphasize that the Director
who made the decision was a zoning administrator. Here, it
argues, “there was no evidence or argument that Section 65901
applied, that even if it did Respondent City’s Director was the
‘zoning administrator’ for purposes of Section 65901 or any
reference to the LAMC granting Respondent City’s Director the
same powers/authority granted the Director of the City of
Stockton.” This argument is not persuasive. Appellant’s position
16
is that section 65009(c)(1) applies only to decisions by legislative
bodies and under no circumstances can apply to “the findings of a
single person.” This position is undermined by both the textual
analysis of the statute as explained in Stockton, and by LAMC
section 16.05.H.1, which expressly allows the Area Planning
Commission to “direct a hearing officer”—a single individual—to
conduct the relevant appellate hearing from which a “decision”
unquestionably would result.
Appellant argues that the three-year statute of limitations
in section 338(a) should apply because it is challenging the City’s
failure to comply with LAMC section 16.05.H.1’s requirement
that “Prior to deciding an appeal, the Area Planning Commission
shall hold a hearing or direct a hearing officer to do so.” It relies
on Urban Habitat, supra, 164 Cal. App. 4th 1561. In Urban
Habitat, housing nonprofit Urban Habitat alleged that the City of
Pleasanton failed to comply with state laws requiring it to
allocate a specified portion of new housing units for low-, very-
low-, and moderate-income populations. (See Urban Habitat,
supra, 164 Cal.App.4th at pp. 1567-1569.) The trial court
sustained Pleasanton’s demurrer on the ground that all of Urban
Habitat’s causes of action were time-barred under section
65009(c)(1). (Id. at p. 1570.) As relevant here, the court of appeal
reversed on the fourth cause of action, which alleged “that the
City failed to comply with mandatory duties set out in Program
19.1 of its Housing Element to take steps, by April 15, 2004, to
rezone a certain amount of property within the City to
accommodate its share of the Regional Housing Needs
Allocation.” (Id. at p. 1578.) The court concluded that cause of
action was subject to section 338(a) rather than section
65009(c)(1). It explained, “A failure to comply with duties
17
allegedly imposed by law is neither an ‘action’ nor a ‘decision’
and, therefore, does not fall under section 65009. Furthermore,
the claim is timely under Code of Civil Procedure section 338,
subdivision (a), because it was brought . . . less than three years
after the date by which the complaint alleges the City was
required to complete rezoning in order to accommodate its share
of the Regional Housing Needs Allocation.” (Ibid.)
We agree with the trial court and respondents that Urban
Habitat is distinguishable. The claim in Urban Habitat
concerned a city’s alleged failure to comply with a law requiring
the city to enact zoning regulations by a deadline set several
years out; it did not arise in the context of a specific project or
discrete permitting decision within the scope of section
65009(c)(1). Thus, the more general three-year statute of
limitations applied. Here, the City’s alleged failure to comply
with a statute arose within the context of its approval of an
affordable housing project. Appellant’s action is an effort to
“attack, review, set aside, void, or annul” a specific determination
(section 65009(c)(1)(E)) and/or concerns “any of the proceedings,
acts, or determinations taken” in the course of a permit approval
(section 65009(c)(1)(F)). This places the alleged failure to comply
with a statute within the ambit of section 65009(c)(1). Even if
section 338(a) is applicable in a broad sense, “‘a specific statute of
limitations takes precedence over a general one, even though the
latter “‘would be broad enough to include the subject to which the
more particular provision relates.’ [Citation.]”’ [Citation.]”
(Barker v. Garza (2013) 218 Cal. App. 4th 1449, 1456.) Likewise,
“[a]s a general principle, if two statutes of limitation apply to a
particular claim, then the shorter period controls over the longer
one, unless the statutes can be harmonized.” (Royalty Carpet
18
Mills, Inc. v. City of Irvine (2005) 125 Cal. App. 4th 1110, 1114.)
The three-year general statute of limitations in section 338(a)
cannot be harmonized with the shorter, more specific limitations
period in section 65009(c)(1). The latter controls.
DISPOSITION
The judgment of the trial court is affirmed. Respondents
are awarded their costs of appeal.
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
19
Filed 3/12/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
1305 INGRAHAM, LLC, B287327
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS169544)
v.
ORDER GRANTING PUBLICATION
REQUEST
CITY OF LOS ANGELES et al.,
Defendants and
Respondents.
THE COURT
The opinion in the above-entitled matter filed on February
15, 2019, was not certified for publication in the Official Reports.
Good cause appearing, it is ordered that the opinion in the above-
entitled matter be published in the official reports. Pursuant to
California Rules of Court, rule 8.1105(b), this opinion is certified
for publication.
 MANELLA, P.J. WILLHITE, J. COLLINS, J.