Gundogdu v. City of San Mateo CA1/4 ( 2024 )

Filed 10/24/24 Gundogdu v. City of San Mateo CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
TONY MEHMET GUNDOGDU et
al., A168173
Plaintiffs and Appellants,
(San Mateo County
v. Super. Ct. No. 22-CIV-04242)
CITY OF SAN MATEO,
Defendant and Respondent.
Plaintiffs Tony Mehmet Gundogdu and Aynur Gundogdu appeal after
the trial court sustained a demurrer to their complaint for inverse
condemnation arising from the denial of a permit to construct a 10-unit
apartment building in San Mateo. The court ruled the Gundogdus’ action
was barred by the applicable 90-day statute of limitations, because they filed
suit more than four years after defendant City of San Mateo (the City) denied
their permit application.
On appeal, the Gundogdus contend an exception to the 90-day
limitations period applies. According to them, an earlier administrative
mandamus action brought by other parties to challenge the permit denial—
an action that was the subject of our opinion in California Renters Legal
Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 8201
(California Renters)—established that a taking of the Gundogdus’ property
occurred, so the present case merely seeks to fix the amount of damages. We
reject the Gundogdus’ argument, and we agree with the trial court that the
present action is time-barred. We therefore affirm.
I. BACKGROUND
A. The Permit Application and the Mandamus Action1
In 2015, the Gundogdus submitted an application to build a four-story,
10-unit multifamily residential building in San Mateo. Staff to the City’s
planning commission, after securing minor changes to the proposal,
recommended that the application be approved, but the planning commission
denied the application without prejudice on October 10, 2017. The San Mateo
City Council (the City Council) considered the appeal, and on February 5,
2018, upheld the planning commission’s decision, also denying the
application without prejudice.
On April 26, 2018, San Francisco Bay Area Renters Federation (an
association of renters), California Renters Legal Advocacy and Education
Fund (CARLA) (a nonprofit corporation), Victoria Fierce, and John Moon filed
a petition for a writ of administrative mandamus (Code Civ. Proc., § 1094.5),
alleging the permit denial violated the Housing Accountability Act (HAA)
1 In summarizing the permit application process and the mandamus
proceeding, we rely in part on the description of those events found in the
Gundogdus’ operative first amended complaint (FAC) in the present action.
We also grant the City’s unopposed request that we take judicial notice of
certain documents filed in or related to the mandamus proceeding
(documents that the trial court judicially noticed in ruling on the City’s
demurrer in this case). (Evid. Code, § 452, subds. (b), (d), 459, subd. (a).)
Some of these events are also described in our prior opinion in California
Renters, supra, 68 Cal.App.5th at pages 831–833.
2
(Gov. Code,2 § 65589.5) and seeking to compel the project’s approval. The
petition named as respondents the City, the City Council, and the City’s
planning commission. The Gundogdus were named as real parties in
interest. The petition did not include a claim for inverse condemnation or
allege that the permit denial effected a taking of the Gundogdus’ property.
The trial court (Hon. George A. Miram) denied the petition. CARLA
and the two individual petitioners (Fierce and Moon) appealed, and in
September 2021 we reversed. (California Renters, supra, 68 Cal.App.5th at
p. 831 & fn. 2; id. at p. 833.) We concluded that the City’s denial of the
permit application violated the HAA and that the HAA was consistent with
the California Constitution. (California Renters, at pp. 831, 845–846, 854.)
We directed the trial court to grant writ relief and to order the City to
reconsider the matter. (Id. at p. 855.) We stated: “The judgment of the trial
court is reversed. The trial court shall issue a writ of mandate directing the
City to (1) vacate its February 5, 2018 action upholding the planning
commission’s decision to deny the application, and (2) reconsider the
challenge to the planning commission’s decision in accordance with the views
expressed in this opinion. The trial court may make any other appropriate
orders that are consistent with this opinion.” (Ibid.)
On December 16, 2021, the trial court (Hon. Nancy L. Fineman,
assigned to the case following Judge Miram’s retirement) issued a writ
requiring the City respondents to vacate the City Council’s denial of the
permit application and to reconsider the matter in accordance with the views
expressed in this court’s opinion. On February 24, 2022, the City filed a
return to the writ, confirming that it had reversed its prior decision; it had
2 Undesignated statutory references are to the Government Code.
3
concluded that the application complied with all objective design standards
established by the City; and it had issued the requested permits.
B. The Present Action
On October 12, 2022, the Gundogdus filed their initial complaint in the
present action, naming as defendants the City and the City Council. The
complaint alleged a cause of action for violation of due process pursuant to
title 42 United States Code section 1983, as well as a cause of action for
inverse condemnation. The Gundogdus alleged the City denied their permit
application on February 5, 2018. The Gundogdus alleged the denial caused
them four or five years of delay damages from loss of rental income and at
least a 50 percent increase in the cost of construction, for a total of at least $6
million.
The City parties demurred to the complaint, arguing both causes of
action were barred by the applicable statutes of limitations. The trial court
(Judge Fineman) sustained the demurrer with leave to amend.
The Gundogdus then filed a first amended complaint (FAC) on
February 7, 2023. Like the original complaint, the FAC alleges that the City
denied the Gundogdus’ permit application on February 5, 2018, and that the
denial caused four or five years of delay damages from loss of rental income
and increased construction costs, totaling at least $6 million.
The FAC includes only a cause of action for inverse condemnation and
omits the separate due process claim that was asserted in the original
complaint. The FAC does, however, allege that a constitutional violation
occurred. Specifically, the FAC alleges that, under principles of issue
preclusion, there were findings of fact and conclusions of law in the previous
mandamus action by the CARLA petitioners that establish a compensable
taking in violation of the Fifth Amendment to the United States Constitution
4
and article I, section 19 of the California Constitution. The FAC alleges that
only the amount of compensation remains to be resolved.
The City defendants again demurred on statute of limitations grounds,
and the court (Judge Fineman) sustained the demurrer, this time without
leave to amend. The court ruled the Gundogdus’ present action for inverse
condemnation filed in October 2022 was barred by the applicable 90-day
limitations period (§§ 65009, subd. (c), 65589.5, subd. (m)), which began to
run when their permit application was denied in February 2018. Rejecting
the Gundogdus’ position, the court ruled there were no findings or
conclusions in the prior mandamus action that establish a compensable
taking occurred.
A judgment of dismissal was entered, and the Gundogdus appealed.3
II. DISCUSSION
A. Standard of Review
“ ‘In reviewing an order sustaining a demurrer, we examine the
operative complaint de novo to determine whether it alleges facts sufficient to
state a cause of action under any legal theory.’ [Citation.] ‘ “ ‘ “We treat the
demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. . . . We also consider
matters which may be judicially noticed.” . . . Further, we give the complaint
a reasonable interpretation, reading it as a whole and its parts in their
context.’ ” ’ ” (Mathews v. Becerra (2019) 8 Cal.5th 756, 768.) “ ‘When a
ground for objection to a complaint, such as the statute of limitations,
appears on its face or from matters of which the court may or must take
3 The Gundogdus’ notice of appeal lists the City as the only
“defendant/respondent.”
5
judicial notice, a demurrer on that ground is proper.’ ” (Vaca v. Wachovia
Mortgage Corp. (2011) 198 Cal.App.4th 737, 746.)4
B. Analysis
The parties agree the Gundogdus’ inverse condemnation action had to
be brought within 90 days of the City’s February 2018 permit denial
(although they cite different code provisions as establishing the 90-day
period), unless an exception described in Hensler v. City of Glendale (1994)
8 Cal.4th 1 (Hensler) applies. In Hensler, the California Supreme Court held
that “an action in inverse condemnation” challenging the adoption or
application of an ordinance enacted pursuant to the Subdivision Map Act
(§ 66410 et seq.) “is governed by” the 90-day limitations period in
section 66499.37, “unless it alleges the existence of a final judgment
establishing that there has been a compensable taking of the plaintiff’s land.”
(Hensler, supra, 8 Cal.4th at p. 7.) Hensler “identified an exception to the
general rule against splitting claims.” (Kavanau v. Santa Monica Rent
Control Bd. (1997) 16 Cal.4th 761, 779 (Kavanau).)
In Honchariw v. County of Stanislaus (2015) 238 Cal.App.4th 1(Honchariw), the Fifth District Court of Appeal considered the scope of “the
Hensler exception” (Honchariw, at p. 11) to the usual statute of limitations
(which in that case, as in Hensler, was the 90-day period in § 66499.37)
(Honchariw, at p. 5). The Honchariw court concluded that, for a property
4 We review a trial court’s denial of leave to amend for abuse of
discretion. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
But the Gundogdus acknowledged in the trial court that they could not
amend to address the statute of limitations issue on which the trial court
based its ruling sustaining the demurrer, and on appeal they do not develop
an argument that the court should have granted leave to amend. Instead,
the Gundogdus argue that the FAC as pleaded is legally sufficient, and we
will focus on that question.
6
owner to bring a later claim for damages under “the two-step procedure
identified in Hensler” (Honchariw, at p. 5), the property owner must first
bring a timely mandamus action (within the 90-day limitations period) that
expressly raises the taking issue (id. at pp. 13–14). The Honchariw court
stated that “Hensler requires, at a minimum, the [prior] mandamus action to
challenge the validity of the regulation or administrative decision on the
ground it effected an unconstitutional taking.” (Honchariw, at p. 13, italics
added.) It is not sufficient that a prior mandamus action alleged or
established that the regulation or administrative decision was invalid on
some other ground, such as that it was inconsistent with statutory
requirements. (Id. at pp. 14–15, 5.)
Honchariw explained: “The reason the mandamus proceeding must
include the constitutional taking issue is that the court’s determination that
a regulatory taking has occurred triggers a range of options for the public
entity—it could approve the project as proposed, conditionally approve the
project, or exercise the power of eminent domain. (Hensler, supra, 8 Cal.4th
at p. 11.) Which of these options is adopted by the public entity affects the
scope of the taking and, thus, the just compensation due to landowner.”
(Honchariw, supra, 238 Cal.App.4th at p. 13.) In Honchariw, the prior
mandamus action alleged only that local authorities had not complied with a
statute (§ 65589.5, subd. (j), a provision of the HAA) and did not establish
that a compensable taking had occurred. (Honchariw, at pp. 14–15.) The
Hensler exception therefore did not apply, and Honchariw’s later inverse
condemnation action was untimely under section 66499.37. (Honchariw, at
p. 15.)
The trial court, applying Hensler and Honchariw, concluded the
Gundogdus’ inverse condemnation claim is barred, although the court found
7
that the 90-day limitations periods applicable here are those set forth in
sections 65009, subdivision (c) (governing challenges to permit decisions) and
65589.5, subdivision (m) (governing actions to enforce the HAA),5 rather than
in section 66499.37 (governing challenges to decisions pertaining to
subdivisions). Because the mandamus action brought by the CARLA
plaintiffs included no allegation or finding that the challenged permit denial
effected a taking of the Gundogdus’ property, there was no basis to apply the
Hensler exception allowing assertion of a later damages-only claim after a
taking is established in a prior mandamus action. The court ruled that
therefore the Gundogdus’ current inverse condemnation action (filed more
than four years after the challenged permit denial) is barred by the 90-day
statute of limitations.
We agree with the trial court. Under Honchariw, the Hensler exception
to the 90-day limitations period does not apply, because the prior mandamus
action did not allege, and did not result in a judgment establishing, that a
taking of the Gundogdus’ property occurred. (See Honchariw, supra,5 Section 65009, subdivision (c) provides that, in many circumstances, a
claim challenging a local decision pertaining to a permit must be brought
within 90 days of the decision. (§ 65009, subd. (c)(1)(E); Save Lafayette Trees
v. City of Lafayette (2019) 32 Cal.App.5th 148, 155–156.) Section 65589.5,
subdivision (m)—a provision of the HAA, the statute invoked by the CARLA
plaintiffs in the earlier mandamus action—states that any action “to enforce”
the HAA’s limitations on local governments generally must be filed and
served within 90 days of the challenged governmental decision. (§ 65589.5,
subd. (m)(1).)
We agree with the trial court and the City that these provisions (rather
than § 66499.37) apply to the Gundogdus’ inverse condemnation claim. We
will assume for purposes of this opinion, however, that the same Hensler
exception applies to all these 90-day limitations periods, allowing later
assertion of a damages-only inverse condemnation claim if the taking itself is
established in the earlier, timely mandamus action.
8
238 Cal.App.4th at pp. 13–15.) As noted, the CARLA petitioners who brought
the mandamus proceeding did not assert an inverse condemnation claim or
argue that the challenged permit denial resulted in a taking of the
Gundogdus’ property. And the Gundogdus themselves, although they were
named as real parties in interest, did not seek to intervene as petitioners or
to present an inverse condemnation claim (or any other claim) on their own
behalf. Finally, neither the trial court nor this court held in the CARLA
proceeding that a compensable taking of the Gundogdus’ property had
occurred. Instead, that action established that (1) the City’s permit denial
violated the HAA by blocking the construction of housing based on criteria
that were not “ ‘objective’ ” for purposes of that statute (California Renters,
supra, 68 Cal.App.5th at pp. 831, 845–846), and (2) the HAA does not violate
the California Constitution (id. at p. 831).
Seeking to avoid this result, the Gundogdus contend the Court of
Appeal’s conclusions in Honchariw as to the scope of the Hensler exception
(i.e., that the exception only applies if the taking issue was expressly raised
in the prior mandamus proceeding) are “dicta” and in any event are
inconsistent with the California Supreme Court’s decision in Kavanau (a case
that was decided in 1997, three years after Hensler). Urging a more
expansive exception to the 90-day limitations period, the Gundogdus argue
that, even if no taking issue was expressly raised in the prior proceeding, the
Hensler exception allowing a later inverse condemnation claim should apply
if, under principles of issue preclusion, it can be later determined that the
prior proceeding established there was a compensable taking. The
Gundogdus assert that, under this broader standard, the FAC here is
sufficient to withstand the City’s demurrer because it alleges there were
9
findings of fact and conclusions of law in the CARLA proceeding that
establish a compensable taking occurred.
We are not persuaded by the Gundogdus’ arguments. First, we do not
agree the Honchariw court’s analysis of the scope of the Hensler exception
was “dicta.” The plaintiff in Honchariw argued his inverse condemnation
action was timely because he previously had successfully challenged the local
government’s land use decision in a mandamus proceeding (Honchariw,
supra, 238 Cal.App.4th at p. 4), so the appellate court had to determine
whether the prior mandamus action (which did not seek to establish an
unconstitutional taking occurred) was sufficient to allow the plaintiff to
qualify for “the two-step procedure identified in Hensler” (Honchariw, at p. 5).
The court’s conclusions on that point were not dicta.
In any event, even if the Honchariw court’s analysis could be parsed
and characterized in part as dicta, we find the reasoning on this point in
Honchariw persuasive, and we do not agree it is inconsistent with the
Supreme Court’s decisions in Hensler and Kavanau. Honchariw is fully
consistent with Hensler. The Hensler court explained that the purpose of the
90-day limitations period at issue there (found in § 66499.37) was to ensure
that any challenge to a covered local legislative or administrative decision is
brought promptly (Hensler, supra, 8 Cal.4th at p. 7) and thus “to permit and
promote sound fiscal planning by state and local governmental entities” (id.
at p. 27).
The Hensler court stated: “The legislative intent is clear.
Section 66499.37 was enacted to ensure that any challenge to local legislative
or administrative acts or decisions taken pursuant to ordinances enacted
under the authority of the Subdivision Map Act will be brought promptly. A
complaint in inverse condemnation, even one which does not expressly attack
10
the validity of the ordinance or its application, and seeks only compensation
for an alleged taking, must be deemed a challenge to the local action. This
follows because the constitutional validity of the governmental action if
uncompensated must be determined in the course of ruling on the claim that
compensation is owed. Moreover, the validity of the action must be
determined to afford the local entity the opportunity to rescind its action
rather than pay compensation for a taking. A landowner may not, by seeking
only compensation, force a governmental agency to condemn the property.”
(Hensler, supra, 8 Cal.4th at p. 7.)
Later in its opinion, the Hensler court emphasized this point, stating:
“ ‘The requirement that challenges to administrative actions constituting
takings be brought initially by administrative mandamus assures that the
administrative agency will have the alternative of changing a decision for
which compensation might be required. If no such early opportunity were
given, and instead, persons were permitted to stand by in the face of
administrative actions alleged to be injurious or confiscatory, and three or
five years later, claim monetary compensation on the theory that the
administrative action resulted in a taking for public use, meaningful
governmental fiscal planning would become impossible.’ ” (Hensler, supra,
8 Cal.4th at pp. 27–28; id. at p. 28 [“if an owner were permitted to bypass the
administrative mandamus remedy and delay initiating an inverse
condemnation action for almost five years ‘[i]n given cases and certainly in
the aggregate, the financial burden on the state could be overwhelming’ ”].)
The Gundogdus suggest the policy of requiring prompt challenges to
land use decisions is satisfied as long as the earlier action attacks the validity
of the decision on any ground. But as Honchariw explained, it is necessary
for the prior mandamus proceeding to raise the taking issue, because that
11
allows the local government the opportunity to limit its exposure to such
claims. (Honchariw, supra, 238 Cal.App.4th at p. 13.) A trial court’s
determination that a regulatory taking has occurred “triggers a range of
options for the public entity—it could approve the project as proposed,
conditionally approve the project, or exercise the power of eminent domain.”
(Ibid.) “The existence of this range of options means that the use of the two-
step procedure is a convenient and efficient way to administer the decisions
an agency must make to choose among those options.” (Ibid.) And to ensure
the public entity has an opportunity to choose among these options (rather
than being surprised by a taking claim years later), the taking claim must be
raised in the initial mandamus action. “[T]he two-step procedure approved in
Hensler allows a plaintiff to postpone bringing a claim for damages caused by
an unconstitutional taking until a mandamus proceeding has been
completed, provided that the mandamus judgment or order establishes an
unconstitutional taking or due process violation.” (Honchariw, at p. 13,
italics added.)
The Gundogdus rely in part on a description of Hensler in the Supreme
Court’s decision in Kavanau, but we are not persuaded that Kavanau
supports the Gundogdus’ position. In Kavanau, the plaintiff landlord used
the two-step procedure described in Hensler. Kavanau initially brought a
timely administrative mandamus action and successfully challenged rent
control regulations as unconstitutional on the ground they deprived him of
“ ‘a just and reasonable return.’ ” (Kavanau, supra, 16 Cal.4th at pp. 766–
767.) Kavanau then filed an inverse condemnation action, and, after the trial
court and the Court of Appeal ruled against him, the Supreme Court granted
review “to consider whether a taking occurred and what, if any, right to just
compensation Kavanau might have.” (Id. at p. 768.)
12
As background for its analysis of these constitutional issues, the
Supreme Court discussed Kavanau’s use of the two-step procedure described
in Hensler: “In Hensler . . . , we held that, if a property owner brings a timely
action to set aside or void a regulation, he may but need not join a claim for
damages. Instead, he may bring a damages claim separately after
successfully challenging the regulation. [Citation.] Thus, in Hensler we
identified an exception to the general rule against splitting claims.
[Citations.] In accordance with Hensler, Kavanau brought his present claim
for damages, alleging two causes of action.” (Kavanau, supra, 16 Cal.4th at
p. 779.)
The Supreme Court then addressed whether a taking occurred and
determined “[t]he remedy of future rent adjustments available to Kavanau
under the due process clause precludes a finding of a taking in this case.”
(Kavanau, supra, 16 Cal.4th at p. 786.) Because the takings clause was
satisfied, the court affirmed the ruling sustaining the demurrer to Kavanau’s
inverse condemnation claim. (Ibid.)
In Honchariw, the court addressed a dispute as to the proper
interpretation of the Kavanau court’s description of Hensler. (Honchariw,
supra, 238 Cal.App.4th at pp. 9–10.) The Honchariw court summarized the
parties’ positions: “Honchariw contends Hensler and Kavanau should be read
to mean that the first step in the two-step procedure is satisfied by any
successful mandamus proceeding challenging the validity of a regulation or
local land use decision. In contrast, defendants contend the rule that a writ
of mandate and damages claim may, but need not, be joined in the same
lawsuit applies only if the mandamus proceeding asserts that the challenged
administrative action is invalid as an unconstitutional taking.” (Honchariw,
at p. 10.)
13
The Honchariw court concluded that the brief description of Hensler in
Kavanau—a case where the two-step procedure was not contested, and no
issues were raised as to the timeliness of the second action—did not reflect an
intention by the Supreme Court to modify the Hensler requirement that the
first proceeding must include the constitutional taking issue (not just a claim
that the local government decision was invalid on some other ground).
(Honchariw, supra, 238 Cal.App.4th at pp. 11–13.) We agree. In light of the
need for prompt presentation of challenges to local government land use
decisions as outlined in Hensler and Honchariw, we conclude the Hensler
two-step procedure is available only when the initial mandamus proceeding
seeks to establish that an unconstitutional taking occurred (Honchariw, at
p. 5), a requirement the Gundogdus have not met.
The Gundogdus assert that the Kavanau court, by discussing the rent
adjustment mechanism that satisfied constitutional concerns in that case
(Kavanau, supra, 16 Cal.4th at p. 786), established that it is appropriate to
“examine[] the nature of the claimed taking and look[] to determine whether
the taking was established in the mandamus action.” But contrary to the
Gundogdus’ view, we do not glean from Kavanau’s analysis any holding that,
under Hensler, a property owner may remain silent about the taking issue in
the initial mandamus action and then bring it up years later in an inverse
condemnation case demanding that a municipality pay millions of dollars in
compensation, the approach the Gundogdus have taken here. For the
reasons we have discussed, we agree with Honchariw that, to use the Hensler
two-step procedure, a property owner must raise the taking issue in the
initial mandamus action. Since the Gundogdus did not do so, their current
inverse condemnation claim is barred by the statutes of limitations.
14
Finally, because the taking issue must be raised in the initial
mandamus action to allow the public entity to choose from a “range of
options” (such as approving the proposed project, conditionally approving it,
or exercising the power of eminent domain) (Honchariw, supra,238 Cal.App.4th at p. 13), we reject the Gundogdus’ contention that this
requirement may be satisfied by an after-the-fact taking determination
pieced together under issue preclusion principles in an action filed years
later. A later determination that the mandamus action established a taking
(even though the property owner made no taking claim at the time) would not
satisfy the requirement that a local government must be given the
opportunity to respond to a taking claim in a way that allows for responsible
management of public finances. (See Hensler, supra, 8 Cal.4th at pp. 11–12
[city must have the option to rescind a land use decision to avoid having to
pay compensation for an alleged taking].)
In addition, although it is not necessary to our decision, we note that
issue preclusion principles do not establish a taking here in any event.
“Under issue preclusion, the prior judgment conclusively resolves an issue
actually litigated and determined in the first action.” (DKN Holdings LLC v.
Faerber (2015) 61 Cal.4th 813, 824.) “In summary, issue preclusion applies
(1) after final adjudication (2) of an identical issue (3) actually litigated and
necessarily decided in the first suit and (4) asserted against one who was a
party in the first suit or one in privity with that party.” (Id. at p. 825.) As
discussed, in the prior mandamus action, no party brought, and neither the
trial court nor this court adjudicated, any allegation that the City’s permit
denial effected a taking of the Gundogdus’ property. Instead, that action
centered on whether the permit denial violated the HAA. (California
Renters, supra, 68 Cal.App.5th at pp. 831, 845–846.)
15
Contrary to the Gundogdus’ contention, our opinion in California
Renters did not establish that a taking occurred. As noted, we held in that
case that the City’s permit denial violated the HAA because the criteria on
which the City relied were not objective within the meaning of the HAA.
(California Renters, supra, 68 Cal.App.5th at pp. 831, 845–846.) But we did
not hold, as the Gundogdus assert, that the City lacked any discretion in
deciding the permit application, or that the City had a ministerial duty to
issue a permit. To the contrary, although we found the criteria on which the
City had relied were not objective, we emphasized that the City was free to
consider other applicable criteria or standards in deciding whether to grant
the application (as long as those criteria or standards were objective), and
that the City could attach conditions to any grant of a permit, as long as
those conditions did not reduce the density of the project. (California
Renters, at pp. 854–855, 846, citing § 65589.5, subd. (j)(1).) In our
disposition, we directed the trial court to issue a writ of mandate requiring
the City to reconsider the permit application in accordance with the views
expressed in our opinion. (California Renters, at p. 855.) We did not hold the
City was required to issue the permit.
Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, cited
by the Gundogdus, does not support their position. That case involved a
statutory provision (§ 65913.4) that required “ministerial” issuance of a
permit if certain conditions were satisfied (Ruegg & Ellsworth, at p. 286),
although the court also discussed the HAA in connection with parts of its
analysis (id. at pp. 295–297, 320). Here, as noted, the HAA does not require
(and we did not hold in the CARLA action that it required) the ministerial
issuance of permits. (California Renters, supra, 68 Cal.App.5th at pp. 845–
16
846, 854–855.) Our holding in California Renters that the City failed to
comply with the HAA did not establish that the Gundogdus suffered a taking.
III. DISPOSITION
The judgment is affirmed. The City shall recover its costs on appeal.
STREETER, J.
WE CONCUR:
BROWN, P. J.
GOLDMAN, J.
17