Save Our Students-Safety etc. v. County of San Diego CA4/1 ( 2022 )

Filed 7/26/22 Save Our Students-Safety etc. v. County of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAVE OUR STUDENTS-SAFETY D079464
OVER SORRY et al.,
(San Diego County
Plaintiffs and Appellants, Super. Ct. No. 37-2021-00001852-
CU-MC-CTL)
v.
COUNTY OF SAN DIEGO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard S. Whitney, Judge. Reversed with directions.
Caldarelli Hejmanowski Page & Leer and Marisa Janine-Page for
Plaintiffs and Appellants.
Office of County Counsel and Joshua M. Heinlein for Defendants and
Respondents.
Save Our Students-Safety Over Sorry and its president, Steven
Dillingham (collectively SOS2), appeal the judgment dismissing their petition
for writ of mandate against the County of San Diego and its Board of
Supervisors (collectively the County) for allegedly violating several laws in
approving the construction of a new high school by Literacy First Charter
Schools, Inc. (Literacy First). SOS2 argues the trial court erroneously
sustained without leave to amend the County’s demurrer on the ground that
SOS2 had failed to join Literacy First, an indispensable party, within the
limitations period. We agree with SOS2 and reverse the judgment.
I.
BACKGROUND
SOS2 is a nonprofit organization that formed in 2020 to oppose the
construction of a high school at a location SOS2 deems too dangerous. At the
December 9, 2020 meeting of its Board of Supervisors, the County considered
SOS2’s appeal of the decision of the County’s Planning Commission to
approve a major use permit for construction of the school and to adopt a
mitigated negative declaration. The County rejected the appeal, approved
issuance of the permit, and adopted the mitigated negative declaration. A
notice of determination was filed with the County Clerk on December 15,
2020.
SOS2 filed a “verified petition for writ of mandate and complaint for
violation of Brown Act, declaratory and injunctive relief” (the petition) in the
trial court on January 14, 2021. (Capitalization and bolding omitted.) The
caption named the County and its Board of Supervisors as defendants and
respondents,1 but did not name any real party in interest. In the first
paragraph of the petition, SOS2 alleged the County had unlawfully approved
a permit for Literacy First to construct a high school. In the section of the
petition labeled “PARTIES,” SOS2 identified Literacy First as the real party
in interest and the proponent of the construction project. SOS2 went on to
1 SOS2 also named the County’s Planning Commission as a defendant
and respondent but later dismissed it.
2
allege that in approving the project, the County violated the California
Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) by
conducting inadequate environmental review of the project, the Ralph M.
Brown Act (Brown Act; Gov. Code, § 54950 et seq.) by holding secret meetings
about the project, and the Planning and Zoning Law (Gov. Code, § 65000 et
seq.) by approving a project inconsistent with the law. SOS2 prayed for a
writ directing the County to set aside its approval of Literacy First’s high
school construction project.2
SOS2 served the County with a summons, the petition, and related
documents on February 2, 2021. A proof of service in the record states that
on February 23, 2021, SOS2 served copies of the summons, petition, and
related documents on an attorney for Literacy First by both U.S. mail and
electronic mail. Yet another proof of service in the record states that on
February 24, 2021, a registered process server served Debbie S. Beyer,
Literacy First’s registered agent for service of process, by substituted service.
According to the proof of service, the process server left copies of the
summons, petition, and related documents with a woman (who was identified
as a vice principal and described by race, age, height, weight, hair color, and
eye color) at the service address for Beyer on file with the California
2 SOS2 also included a cause of action for declaratory relief and a related
request for injunctive relief by which it sought a judicial determination that
the County had violated CEQA in approving the high school construction
project and an injunction directing the County to conduct the environmental
review required by CEQA. This portion of the petition thus merely
duplicated the allegations and request for relief of the CEQA cause of action.
The parties did not address the cause of action for declaratory and injunctive
relief in connection with the demurrer in the trial court, and they have not
addressed it in their appellate briefing either. We therefore do not further
consider that cause of action.
3
Secretary of State, and on the same day the process server mailed additional
copies to Beyer at that address.
The County demurred to the petition on March 10, 2021, on the ground
SOS2 had failed timely to join an indispensable party, namely, Literacy First.
(Code Civ. Proc., §§ 430.10, subd. (d) [authorizing demurrer for defect or
misjoinder of parties], 389, subd. (b) [authorizing dismissal when an
indispensable party has not been joined].) The County argued that because
Literacy First was the proponent of the high school construction project
whose approval SOS2 was challenging, Literacy First had to be named as a
real party in interest in the petition (Pub. Resources Code, § 21167.6.5, subd.
(a))3 and served with the summons and petition within 90 days of the date of
the County’s decision to approve the project and to issue the major use permit
(Gov. Code, § 65009, subd. (c)(1)(E)),4 but SOS2 did not name Literacy First
3 “The petitioner or plaintiff shall name, as a real party in interest, the
person or persons identified by the public agency in its notice [of
determination] . . . and shall serve the petition or complaint on that real
party in interest, by personal service, mail, facsimile, or any other method
permitted by law, not later than 20 business days following service of the
petition or complaint on the public agency.” (Pub. Resources Code,
§ 21167.6.5, subd. (a).)
4 “Except as provided in subdivision (d), no action or proceeding shall be
maintained in any of the following cases by any person unless the action or
proceeding is commenced and 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.”
(Gov. Code, § 65009, subd. (c)(1).) Sections 65901 and 65903 address,
respectively, decisions on applications for permits and appeals from such
decisions.
4
in the caption of the petition or in the summons and did not serve Literacy
First within the 90-day period.5
In response to the demurrer, on March 10, 2021, SOS2 filed a notice of
errata concerning the caption of the petition by which it added Literacy First
as a real party in interest. SOS2 also requested issuance of a new summons,
but the clerk advised SOS2 that an ex parte application was required. On
March 16, 2021, SOS2 filed an ex parte application for an order directing the
clerk to issue an amended summons to conform to the corrected caption of the
petition. The County opposed the application on the ground that no new
party could be added because the 90-day period for filing and service of the
petition had expired. The trial court agreed with the County and denied the
application. In a later-filed opposition to the County’s demurrer, SOS2
argued it had properly joined Literacy First to the proceeding by identifying
it as the real party in interest in the body of the petition and by timely
serving it with a copy of the petition.
After holding a hearing, the trial court sustained the County’s
demurrer without leave to amend. The court ruled Literacy First had not
5 The County demurred to the cause of action alleging violation of the
Brown Act on the additional ground that SOS2 had not made the statutorily
required prelitigation demand for cure or correction. (See Gov. Code,
§ 54960.1, subd. (b).) In opposition to the demurrer, SOS2 argued dismissal
of the Brown Act claim was not required because its filing of the lawsuit
before making a demand for cure or correction did not prejudice the County.
The trial court did not address this issue in the order sustaining the
demurrer, and the parties do not discuss it in their appellate briefs. Nor did
the parties brief the issue of whether SOS2 filed and served the petition
within the limitations period of the Brown Act. (See id., § 54960.1, subd. (c).)
We deem these issues abandoned. (Rufini v. CitiMortgage, Inc. (2014) 227
Cal.App.4th 299, 312; Wall Street Network, Ltd. v. New York Times Co. (2008)
164 Cal.App.4th 1171, 1177; Benach v. County of Los Angeles (2007) 149
Cal.App.4th 836, 852.)
5
properly been joined as a party because SOS2 did not name Literacy First as
a party in the caption of the petition and did not name it at all in the
summons. A judgment dismissing SOS2’s petition followed.
II.
DISCUSSION
SOS2 challenges the trial court’s orders denying its application for an
amended summons and sustaining the County’s demurrer without leave to
amend. SOS2 contends it named Literacy First as the real party in interest
in the petition even though it inadvertently omitted Literacy First from the
caption, and SOS2 sought to correct the omission by amending the caption
and summons before any limitations period precluded it from doing so. SOS2
further contends it was not required to serve Literacy First with a summons,
and it served Literacy First with the petition within the limitations period.
The County defends the trial court’s orders and argues SOS2’s failure to
name Literacy First in the caption of the petition and to serve it with a
summons within the limitations period requires dismissal of SOS2’s lawsuit.
As we shall explain, the trial court should have overruled the County’s
demurrer because SOS2 named Literacy First as a party within the
limitations period and did not have to serve it with a summons.6
A. Standard of Review
We begin by settling the standard of review, an issue on which the
parties disagree. SOS2 asserts the order sustaining the demurrer without
leave to amend is reviewed de novo because the demurrer raised only
questions of law. The County asserts the proper standard of review is abuse
6 Our conclusion makes it unnecessary to address SOS2’s contentions
regarding the denial of its ex parte application for issuance of an amended
summons.
6
of discretion, because the trial court found SOS2 had not named and served
an indispensable party before the limitations period expired and did not
reach the merits of the case. A dismissal for failure to join an indispensable
party is reviewed for abuse of discretion when the trial court makes fact-
specific determinations on the factors listed in Code of Civil Procedure section
389. (Citizens for Amending Proposition L v. City of Pomona (2018) 28
Cal.App.5th 1159, 1178-1179; Kaczorowski v. Mendocino County Board of
Supervisors (2001) 88 Cal.App.4th 564, 568.) The trial court here made no
such determinations, because in opposing the County’s demurrer SOS2 did
not dispute that Literacy First was an indispensable party.7 Rather, based
on the face of the petition and matters judicially noticed, the court ruled
Literacy First had not been joined within the limitations period. That was a
purely legal ruling, which is subject to de novo review. (Aryeh v. Canon
Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191; Organizacion
Comunidad de Alviso v. City of San Jose (2021) 60 Cal.App.5th 783, 790-791
(Organizacion Comunidad); Royalty Carpet Mills, Inc. v. City of Irvine (2005)
125 Cal.App.4th 1110, 1115, 1118 (Royalty).)
7 SOS2 also did not dispute that Literacy First is an indispensable party
in its briefing in this court. We have stated, “In general, a developer is an
indispensable party to a lawsuit challenging a decision regarding whether its
project can proceed.” (San Diego Navy Broadway Complex Coalition v.
California Coastal Com. (2019) 40 Cal.App.5th 563, 580.) Courts have
repeatedly ruled a project developer is an indispensable party to a lawsuit to
set aside permits authorizing the project. (See, e.g., Simonelli v. City of
Carmel-by-the-Sea (2015) 240 Cal.App.4th 480, 484-485; Beresford
Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1185,
1189; Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495,
498, 501-502.) We accept SOS2’s implicit concession Literacy First is an
indispensable party to the lawsuit against the County.
7
B. Demurrer and Dismissal
We turn now to the dispositive issue, i.e., whether the trial court
correctly sustained the County’s demurrer and dismissed SOS2’s lawsuit for
failing to join Literacy First as a party before the applicable limitations
period had expired. “Failure to join an indispensable party is a ground for
demurrer. [Citations.] And failure to include a necessary and indispensable
party as a real party in interest within the applicable limitations period is a
ground for dismissal.” (Organizacion Comunidad, supra, 60 Cal.App.5th at
p. 791.) For the bar of the statute of limitations to be raised by demurrer, the
defect must clearly appear on the face of the complaint and matters subject to
judicial notice. (Code Civ. Proc., § 430.30, subd. (a); Richtek USA, Inc. v. uPI
Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658 (Richtek).) The parties
agree Literacy First is an indispensable party. (See fn. 7, ante.) We therefore
must determine the applicable limitations period and whether the petition
and matters subject to judicial notice show SOS2 did not join Literacy First
during that period.
1. Applicable Limitations Period
The County based its demurrer on the statute of limitations in the
Planning and Zoning Law, which in pertinent part provides that no action or
proceeding to set aside a decision to issue a permit for a construction project
“shall be maintained . . . by any person unless the action or proceeding is
commenced and service is made on the legislative body within 90 days after
the legislative body’s decision.” (Gov. Code, § 65009, subd. (c)(1)(E).) CEQA
has its own shorter limitations period for filing and service. A petition
attacking a public agency’s determination whether a project may have a
significant effect on the environment must be filed within 30 days of the date
on which the notice of determination was filed. (Pub. Resources Code,
8
§ 21167, subd. (b).) The petition must be served on the public agency within
10 business days of the date on which the petition was filed (id., § 21167.6,
subd. (a)), and on the real party in interest within 20 business days of the
date of service on the public agency (id., § 21167.6.5, subd. (a)). The CEQA
service period may be extended for good cause, and dismissal is not
mandatory if the petitioner fails to comply with it. (Royalty, supra, 125
Cal.App.4th at pp. 1121, 1123; Board of Supervisors v. Superior Court (1994)
23 Cal.App.4th 830, 847 (Board of Supervisors).)
If, however, the petitioner challenges a decision to issue a permit under
CEQA, the “absolute limitations bar” of Government Code section 65009
applies and requires dismissal if the petition is not served within 90 days of
the decision date. (Royalty, supra, 125 Cal.App.4th at p. 1123; see Gov. Code,
§ 65009, subd. (e) [“Upon the expiration of the time limits provided for in this
section, all persons are barred from any further action or proceeding.”];
Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1048 [“The statute
‘mandates strict compliance with the statute of limitations and service
periods.’ ”].) Although, as SOS2 points out, the Planning and Zoning Law
expressly requires service only “on the legislative body” within 90 days of its
decision and does not mention service on the real party in interest (Gov.
Code, § 65009, subd. (c)(1)), CEQA requires service on the real party in
interest and prescribes a shorter service period (Pub. Resources Code,
§ 21167.6.5, subd. (a)), which, as noted, may be extended for good cause. To
“harmonize[ ]” the statutes and “accomplish the Legislature’s purpose of
limiting the time in which a decision regarding a conditional [or major] use
permit can be challenged by filing and serving a petition, in no event can
service of the petition be accomplished beyond the 90-day time bar contained
in the Government Code.” (Royalty, at p. 1123.)
9
We therefore conclude that where, as here, a petitioner files a petition
challenging a local legislative body’s decisions to issue a permit and adopt a
mitigated negative declaration, the petitioner must name and serve the real
party in interest within 90 days of the decisions. We further conclude that
where, as here, the real party in interest is an indispensable party, the
failure to do so is a ground for dismissal of the lawsuit.8
2. Joinder of Literacy First
We now turn to whether SOS2 properly joined Literacy First within the
applicable 90-day limitations period. Joinder generally is accomplished by
naming a party with others in the pleading that initiates the lawsuit and
serving the party with the process needed to subject the party to the court’s
jurisdiction. (Code Civ. Proc., § 389; Ruttenberg v. Ruttenberg (1997) 53
Cal.App.4th 801, 808 (Ruttenberg); Franke v. Claus (1953) 121 Cal.App.2d
777, 779.) We thus must determine whether the trial court correctly ruled
that SOS2 had neither named nor served Literacy First before expiration of
the limitations period.
8 Our conclusions promote “[t]he legislative policy behind both
Government Code section 65009 and CEQA,” which “is the prompt resolution
of challenges to the decisions of public agencies regarding land use.”
(Royalty, supra, 125 Cal.App.4th at p. 1121.) The short limitations period of
Government Code section 65009 “is intended ‘to provide certainty for
property owners and local governments regarding decisions made pursuant to
this division’ [citation] and thus to alleviate the ‘chilling effect on the
confidence with which property owners and local governments can proceed
with projects’ [citation] created by potential legal challenges to local planning
and zoning decisions.” (Travis v. County of Santa Cruz (2004) 33 Cal.4th 757,
765.) Similarly, “[t]he ‘primary purpose’ of the limitation[s] period in [CEQA]
‘is to protect project proponents from extended delay, uncertainty and
potential disruption of a project caused by a belated challenge to the validity
of the project’s authorization.’ ” (Save Lafayette Trees v. East Bay Regional
Park Dist. (2021) 66 Cal.App.5th 21, 39.)
10
a. Naming
The trial court ruled SOS2 had not named Literacy First as a party to
the lawsuit within the limitations period because it was not included in the
caption of the petition. This was error.
The rules of civil procedure require the title of the initial pleading,
which is a petition in a proceeding for a writ of mandate, to include the
names of all the parties. (Code Civ. Proc., §§ 422.40, 1086; Cal. Rules of
Court, rule 2.111(4); Tracy Press, Inc. v. Superior Court (2008) 164
Cal.App.4th 1290, 1296-1297.) “A petition for writ of mandate must name
the real party in interest, who thereafter has a right to notice and to be heard
before a trial or appellate court issues a peremptory writ.” (Sonoma County
Nuclear Free Zone v. Superior Court (1987) 189 Cal.App.3d 167, 173 (Sonoma
County).) SOS2 did not include Literacy First in the title of the petition,
which is part of the caption (Code Civ. Proc., § 422.30, subd. (a)(2)). Had
SOS2 given its pleading greater attention and complied with the simple
requirement of including all parties in the caption, it might have avoided the
County’s demurrer and the trial court’s dismissal of the lawsuit.
SOS2’s procedural misstep does not necessarily bar its lawsuit against
the County, however. “The title of a legal pleading is of less importance than
the substance of the message it conveys.” (Gillette v. Burbank Community
Hosp. (1976) 56 Cal.App.3d 430, 434; see Civ. Code, § 3528 [“The law respects
form less than substance.”].) “It has been uniformly held in our state that in
order to determine the identity of a party courts are entitled to take into
consideration the allegations of the complaint as well as the title.” (Plumlee
v. Poag (1984) 150 Cal.App.3d 541, 547.) The first paragraph of the petition
identified Literacy First as the recipient of the major use permit whose
issuance SOS2 was attacking. The section of the petition labeled
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“PARTIES” identified Literacy First as the real party in interest and the
proponent of the construction project identified in the mitigated negative
declaration whose adoption SOS2 was challenging. The rest of the petition
described how the County allegedly violated the law in approving the project
and set out the relief SOS2 sought. The body of the petition thus made clear
Literacy First was the real party in interest for the project whose approval
SOS2 was seeking to set aside. (Cf. Bell v. Tri-City Hospital Dist. (1987) 196
Cal.App.3d 438, 449 [defendant is adequately named in complaint if “a
reasonable defendant [would] have understood the complaint to allege that it
was in some way responsible for plaintiff’s injury”].) By filing the petition on
January 14, 2021, which was less than 90 days after the County approved the
project on December 9, 2020, SOS2 named Literacy First within the
applicable limitations period. (Gov. Code, § 65009, subd. (c)(1)(E); Royalty,
supra, 125 Cal.App.4th at p. 1123.)
b. Service
The trial court also ruled SOS2 had not served Literacy First within
the limitations period because it was not named in the summons. This, too,
was error.
In general, service in a civil proceeding requires delivery of a summons
and a copy of the plaintiff’s complaint to the defendant. (Code Civ. Proc.,
§§ 413.10-416.90; Cal. Rules of Court, rule 3.110(b); Ruttenberg, supra, 53
Cal.App.4th at p. 808; Kott v. Superior Court (1996) 45 Cal.App.4th 1126,
1135.) The summons must name the parties to the action (Code Civ. Proc.,
§ 412.20, subd. (a)(2)), and if directed to a corporation, must notify the person
being served that service is on behalf of the corporation (id., § 412.30). The
summons at issue here, of which the trial court properly took judicial notice
(Evid. Code, § 452, subd. (d) [court records are subject to judicial notice];
12
Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 360, 382 [court
may take judicial notice of existence of documents in file]), does not name
Literacy First and does not contain the required notice for service on a
corporation. As the County contends, these defects would render the service
ineffective if a summons were required to effect valid service. (Tresway Aero,
Inc. v. Superior Court (1971) 5 Cal.3d 431, 435; Mannesmann DeMag, Ltd. v.
Superior Court (1985) 172 Cal.App.3d 1118, 1124; National Union Fire Ins.
Co. v. Superior Court (1966) 247 Cal.App.2d 326, 328-329.) No summons was
required to be served on Literacy First, however, for several reasons.
First, a summons is “directed to the defendant” and must warn that
without a timely response default may be entered and the plaintiff may apply
to the court for the relief demanded in the complaint. (Code Civ. Proc.,
§ 412.20, subd. (a)(4).) Literacy First is a real party in interest, but not a
defendant, because its interest in the high school construction project is
directly affected by SOS2’s writ proceeding, but SOS2 sought no relief against
Literacy First. (Id., § 308 [in civil action complaining party is plaintiff and
adverse party is defendant]; Sonoma County, supra, 189 Cal.App.3d at p. 173
[real party in interest is not necessarily opposing party and includes anyone
having direct interest in result of proceeding].)
Second, ordinarily “in mandate proceedings, the traditional summons is
not used.” (Board of Supervisors, supra, 23 Cal.App.4th at p. 842, fn. 9.)
Rather, service in such proceedings is accomplished by serving the
alternative writ like a summons in a civil action unless the court directs
otherwise (Code Civ. Proc., §§ 1088, 1096; see Ocheltree v. Gourley (2002) 102
Cal.App.4th 1013, 1018 [alternative writ serves function similar to that of
summons]) or, if no alternative writ is sought, by serving the petition like a
summons (Code Civ. Proc., §§ 1088.5, 1107; see Board of Supervisors, at
13
pp. 839-840 [when no alternative writ sought petition must be served like
summons]).
Third, principles of statutory construction indicate no summons was
required in this case. The Subdivision Map Act, which is not at issue in this
case, expressly requires service of a summons on a legislative body in a
proceeding challenging a decision concerning a subdivision (Gov. Code,
§ 66499.37; see Friends of Riverside’s Hills v. City of Riverside (2008) 168
Cal.App.4th 743, 746 [service of summons requirement applies to CEQA
cause of action concerning subdivision]), but the Planning and Zoning Law
and CEQA, which are at issue, do not expressly require service of a summons
(Gov. Code, § 65009, subd. (c)(1); Pub. Resources Code, §§ 21167.6, subd. (a),
21167.6.5, subd. (a)). “When confronted with two statutes, one of which
contains a term, and one of which does not, we do not import the term used in
the first to limit the second.” (Walt Disney Parks & Resorts U.S., Inc. v.
Superior Court (2018) 21 Cal.App.5th 872, 879; see Holmes v. Jones (2000) 83
Cal.App.4th 882, 890 [use of term or phrase in one statute and omission from
another statute on related subject show different meaning was intended].)
Hence, SOS2 was not required to serve Literacy First with a summons.
Its failure to do so within the 90-day limitations period did not require
dismissal of the writ proceeding.
SOS2, of course, was required to serve the petition on Literacy First
within the 90-day limitations period to avoid dismissal. (Code Civ. Proc.,
§§ 1088.5, 1107; Gov. Code, § 65009, subd. (c)(1)(E), (e); Royalty, supra, 125
Cal.App.4th at p. 1123.) Whether SOS2 did so cannot be resolved on
demurrer, however, because only the petition and matters subject to judicial
notice may be considered. (Code Civ. Proc., § 430.30, subd. (a); Weil v.
Barthel (1955) 45 Cal.2d 835, 837.) The petition says nothing about service
14
on Literacy First. The two proofs of service of which the County asked the
trial court to take judicial notice state that SOS2 served the petition on
Literacy First’s lawyer by both U.S. mail and electronic mail on February 23,
2021, and on Literacy First’s registered agent for service of process by
substituted service at Literacy First’s address for service of process on
February 24, 2021. Both dates are within the 90-day limitations period, but
the truthfulness of the statements in the proofs of service is not subject to
judicial notice. (Richtek, supra, 242 Cal.App.4th at p. 660; Intengan v. BAC
Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1057.) Moreover, the
parties disputed the validity of service in declarations filed in support of and
in opposition to the demurrer. Such declarations may not be considered on
demurrer, which is “not the appropriate procedure for determining the truth
of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873,
879; see Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126 [refusing to
consider declaration defendant filed with demurrer].) Because a demurrer
based on limitations will not lie where the proceeding may be but is not
necessarily time-barred (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232), and
neither the petition nor any document subject to judicial notice conclusively
establishes SOS2 did not validly serve the petition on Literacy First within
the limitations period, the trial court erred by sustaining the demurrer
without leave to amend and dismissing the petition.
15
III.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court
with directions to vacate the order sustaining respondents’ demurrer without
leave to amend and to enter a new order overruling the demurrer.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
DO, J.
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