AIDS HealthCare Foundation v. City of Los Angeles

Filed 12/14/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
AIDS HEALTHCARE B311144
FOUNDATION,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 20STCV29238)
v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed.
Thomas A. Myers, Jonathan M. Eisenberg, Kirra N. Jones
and David M. Gruen for Plaintiff and Appellant.
Michael N. Feuer, City Attorney, Scott Marcus, Chief
Assistant City Attorney, Blithe S. Bock, Managing Assistant City
Attorney, Michael M. Walsh, Deputy City Attorney, for
Defendants and Respondents.
__________________________________
INTRODUCTION
This appeal pits the anti-corruption objectives of the
Political Reform Act of 1974 (PRA) (Gov. Code, § 81000 et seq.)
against the desire for certainty in real estate development that
animates the 90-day statute of limitations period in Government
Code sections 65009 and 66499.37. Appellant AIDS HealthCare
Foundation (AHF) challenges land use decisions by the Los
Angeles City Council planning and land use management
(PLUM) committee, made while two of its members allegedly
were the beneficiaries of an extensive, ongoing bribery scheme
directed at PLUM committee projects. AHF contends the three-
year catch-all statute of limitations in Code of Civil Procedure
section 338, subdivision (a), applies to those PRA claims.
Respondents City of Los Angeles and the Los Angeles City
Council (collectively the City)1 assert that the more specific
90-day statutes of limitation in Government Code sections 65009
and 66499.37 apply.2 In particular, section 65009 governs any
action designed to “attack, review, set aside, void, or annul” a
wide variety of land use decisions, including “to adopt or amend a
general or specific plan,” zoning, development agreements, and
any conditions attached to variances, conditional use permits, “or
any other permit.” (§ 65009, subd. (c).) The trial court, following
precedent involving a predecessor statute to section 65009,
agreed with the City, sustained the City’s demurrer without
leave to amend, and dismissed the case. We affirm.
1 Although not listed as a party on the complaint’s caption
page, the pleading identifies Los Angeles Mayor Eric Garcetti as
an additional defendant sued in his official capacity.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The PLUM Committee
The PLUM committee consists of five councilmembers from
the 15-member Los Angeles City Council.3 It oversees the
Planning Department’s development of land use plans and zoning
and environmental review laws. The PLUM committee also
reviews and votes on proposed real estate projects that seek
discretionary approvals. These approvals often require
“overruling the usual planning and zoning rules that apply to
average residents and small businesses of the City.” The PLUM
committee holds considerable sway over the hearing of real estate
development projects because, after the PLUM committee issues
its recommendation to the city council, the clerk puts the item on
a “consent-type section” of the meeting. From there, if no
councilmember requests the full City Council hold a hearing
about the project, the City Council approves the item in a “quick
mass vote without public comment.” “These votes happen so fast
that often times the public attending the hearing does not even
realize it has occurred.” The chair of the PLUM committee has
particular power because the chair exercises control over the
committee agenda and “can be a single bottleneck for whether or
not a real estate project receives a hearing and goes on to City
Council with a positive recommendation.”
2 Further statutory references are to the Government Code
unless otherwise designated.
3 We draw our recitation of the factual background from
AHF’s complaint.
3
B. Corruption on the PLUM Committee
In 2020 a federal criminal investigation revealed that two
former city councilmembers, Jose Huizar and Mitchell
Englander, allegedly engaged in bribery and other corruption in
connection with their work on the PLUM committee.
Englander sat on the PLUM committee from 2012 until his
resignation in October 2018. In January 2020, after a five-year
investigation, a federal grand jury indicted Englander for
falsifying material facts, making false statements, and witness
tampering. The indictment alleged that Englander had accepted
tens of thousands of dollars of cash bribes in the bathrooms of a
Las Vegas casino, plus additional bribes of hotel rooms and other
gifts from a businessman while on trips to Palm Springs and Las
Vegas with several people, including a real estate developer.
Englander pleaded guilty to federal charges for obstruction of
justice.
Huizar sat on the PLUM committee as a member and/or its
chair from 2007 until his removal in November 2018. In June
2020 federal law enforcement arrested Huizar on corruption
charges, including racketeering, bribery, and money laundering.
According to the Los Angeles Times, federal prosecutors alleged
that, beginning in 2013, Huizar exploited his position of power on
the PLUM committee “‘to run a team of aid[e]s, consultants and
other associates who extracted an enormous amount of cash and
campaign donations, multiple casino trips and other personal
indulgences from real estate developers.’” Huizar stands accused
of accepting $1.5 million in bribes, gifts, and other inducements
from real estate developers “to steer their projects for approval”
through the PLUM committee and ultimately the City Council.
4
Around the same time as Huizar’s arrest, the City
commenced ‘“revocation proceedings of approvals”’ as to one real
estate development project in downtown Los Angeles linked to
the criminal charges. Soon, prosecutors identified another
project implicated in Huizar’s illicit behavior. AHF alleges the
corruption taints at least two other projects. In addition, the
Los Angeles City Attorney is investigating other real estate
development projects with possible ties to the scandal, and other
city councilmembers have requested a formal review of such
projects. AHF summarizes these events as an “ongoing
corruption scandal regarding the approval of real estate projects”
in Los Angeles.
C. AHF’s Claims
On August 4, 2020, nearly two years after either Englander
or Huizar last sat on the PLUM committee or took any official
act, AHF, a nonprofit organization4 with its headquarters in
Los Angeles, filed the instant action against the City. AHF
alleged two causes of action: (1) injunctive relief for violation of
the PRA, and (2) taxpayer action to prevent waste (Code Civ.
Proc., § 526a). In the first cause of action, AHF alleged that, if
the accusations against Huizar and Englander prove true, their
misconduct violated the PRA, “including but not limited [to
Government Code] section 87100.” AHF further alleged that
because both Huizar and Englander sat on the PLUM committee,
each had “the ability and influence to approve or disapprove real
estate projects.” AHF asserted that, pursuant to section 91003,
the court is “empowered to ‘restrain the execution of any official
4 AHF provides affordable housing to formerly homeless and
low-income individuals and advocacy on issues of affordable
housing, homelessness, and gentrification.
5
action in relation to which such a violation occurred’” and that
“[t]his includes the restraining of permits.” AHF thus “seeks an
order restraining building permits granted by the City of
Los Angeles during” the period of time when Huizar and/or
Englander “sat on the PLUM committee and engaged in
violations of Government Code Section 81000 with respect to the
permits.” In its taxpayer waste cause of action, AHF also “seeks
an Order restraining the City from utilizing any further taxpayer
funds, personnel efforts, or resources with respect to these
projects.”
AHF prayed for preliminary and permanent injunctive
relief prohibiting the City “from taking any further actions or
expend[ing] any taxpayer funds to facilitate, review, process, or
see to completion any building project approved during” Huizar’s
and/or Englander’s tenure on the PLUM committee “and
established to be engaged in violations of Government Code
Section 81000 et seq. with respect to the project’s approval.”
AHF also sought permanent injunctive relief “setting aside any
project approval” made during Huizar’s and/or Englander’s time
on the PLUM committee where “it is ultimately determined that
a violation of Government Code Section 81000 et seq. has
occurred and that the project might not otherwise [have] been
approved.” AHF prayed for its costs and attorneys’ fees.
D. The City’s Demurrer
On September 23, 2020, the City demurred to AHF’s
complaint, identifying a number of purportedly incurable
deficiencies. Central to this appeal, the City sought dismissal on
the ground that the 90-day statutes of limitation contained in
sections 65009 and 66499.37 barred AHF’s claim. The City relied
6
heavily on a factually similar case, Ching v. San Francisco Bd. of
Permit Appeals (1998) 60 Cal.App.4th 888 (Ching).
AHF opposed the demurrer, primarily by attempting to
distinguish Ching factually and legally. AHF asserted the PRA’s
four-year statute of limitations contained in section 91011,
subdivision (b), governed. AHF argued that applying the 90-day
time bar applicable to land use permit challenges would
constitute “an impermissible amendment of the PRA” and
“decimate[]” the PRA’s “robust enforcement mechanisms”
including its “four-year statute of limitations.” Counsel for AHF
argued at the demurrer hearing that “[u]nder the Political
Reform Act, under Government Code section 91011(b), there’s an
express statute of limitations of four years.” AHF also argued
that even if the 90-day statute of limitations applied, Huizar’s
“fraudulent concealment of his criminal acts” tolled the
commencement of the limitations period until his June 2020
arrest, making AHF’s August complaint timely even under the
shorter statute of limitations.
On December 7, 2020, the trial court heard and sustained
the City’s demurrer without leave to amend, stating that the
court “disagree[s] with plaintiff” and “believe[s] that Ching is
controlling.” The trial court issued its written judgment in favor
of the City on December 29, 2020, dismissing AHF’s action. AHF
timely appealed.
DISCUSSION
A. Standard of Review
“We independently review the superior court’s ruling on a
demurrer and determine de novo whether the complaint alleges
facts sufficient to state a cause of action or discloses a complete
7
defense.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th
719, 725.) “We assume the truth of properly pleaded factual
allegations, facts that reasonably can be inferred from those
expressly pleaded, and matters that are judicially noticeable.”
(Genis v. Schainbaum (2021) 66 Cal.App.5th 1007, 1015; accord,
Ivanoff, at p. 725.)
“The application of the statute of limitations on undisputed
facts is a purely legal question,” which, on appeal from a
demurrer, requires that we “take the allegations of the operative
complaint as true and consider whether the facts alleged
establish [plaintiff’s] claim is barred as a matter of law.”
(Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185,
1191; accord, San Diego Unified School Dist. v. Yee (2018)
30 Cal.App.5th 723, 730.) “De novo review is also appropriate
where, as here, the appeal involves a question of statutory
interpretation.” (Lopez v. Friant & Associates, LLC (2017)
15 Cal.App.5th 773, 777; accord, Bruns v. E-Commerce Exchange,
Inc. (2011) 51 Cal.4th 717, 724.)
Where the trial court has sustained a demurrer without
leave to amend, we must also “‘determine whether or not the
plaintiff could amend the complaint to state a cause of action.’”
(Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.)
However, “the burden falls upon the plaintiff to show what facts
he or she could plead to cure the existing defects in the
complaint. [Citation.] ‘To meet this burden, a plaintiff must
submit a proposed amended complaint or, on appeal, enumerate
the facts and demonstrate how those facts establish a cause of
action.”’ (Ibid.; see Schifando v. City of Los Angeles (2003)
31 Cal.4th 1074, 1081 [“[t]he plaintiff has the burden of proving
that an amendment would cure the defect”].)
8
B. The 90-day Statute of Limitations in Section 65009 Bars
AHF’s Claims
1. The Political Reform Act
The voters approved the PRA in 1974 as an initiative
measure (Proposition 9). The PRA “‘concern[ed] elections and
different methods for preventing corruption and undue influence
in political campaigns and governmental activities.’” (Howard
Jarvis Taxpayers Assn. v. Newsom (2019) 39 Cal.App.5th 158,
162.)
Section 81700 of the PRA provides that “[a] public official
at any level of state or local government shall not make,
participate in making, or in any way attempt to use the public
official’s official position to influence a governmental decision in
which the official knows or has reason to know the official has a
financial interest.” In addition to other types of permitted
actions, section 91003, subdivision (a), provides that “[a]ny
person residing in the jurisdiction may sue for injunctive relief to
enjoin violations or to compel compliance with the provisions of
this title.” Subdivision (b) states, in relevant part, that “[u]pon a
preliminary showing in an action brought by a person residing in
the jurisdiction that a violation of Article 1 (commencing with
Section 87100) . . . of this title . . . occurred, the court may
restrain the execution of any official action in relation to which
such a violation occurred, pending final adjudication. If it is
ultimately determined that a violation has occurred and that the
official action might not otherwise have been taken or approved,
the court may set the official action aside as void. The official
actions covered by this subsection include, but are not limited to,
orders, permits, resolutions, and contracts . . . . In considering
the granting of preliminary or permanent relief under this
9
subsection, the court shall accord due weight to any injury that
may be suffered by innocent persons relying on the official
action.” (§ 91003, subd. (b).)
As originally enacted, the PRA included a two-year statute
of limitations in section 91011 for civil actions brought pursuant
to sections 91004 (reporting requirements) or 91005 (unlawful
contributions, gifts, or expenditures and “economic benefits”
realized from a conflict of interest), both of which provided for
monetary damages. In 1980, the Legislature amended
section 91011 to create subdivisions (a) and (b), the latter of
which provided a statute of limitations period for civil actions
other than those described in subdivision (a). That section now
provides: “(a) No civil action alleging a violation in connection
with a report or statement required by Chapter 4 (commencing
with Section 84100) shall be filed more than four years after an
audit could begin as set forth in subdivision (c) of Section 90002,
or more than one year after the Franchise Tax Board forwards its
report to the commission, pursuant to Section 90004, of any audit
conducted of the alleged violator, whichever period is less. [¶]
(b) No civil action alleging a violation of any provisions of this
title, other than those described in subdivision (a), shall be filed
more than four years after the date the violation occurred.”
(§ 91011.)
2. Section 65009
In contrast to the four-year statute of limitations contained
in the PRA, section 65009 prescribes a 90-day statute of
limitations to challenge certain land-use decisions. The
shortened limitations period found in section 65009 predates the
PRA by nearly a decade. In 1965, the legislature enacted former
section 65907, the predecessor statute to section 65009. As
10
originally enacted, former section 65907 provided in relevant
part: “Any action or proceeding to attack, review, set aside, void
or annul any decision of matters listed in Sections 65901 and
65903, or concerning any of the proceedings, acts or
determinations taken, done or made prior to such decision, or to
determine the reasonableness, legality or validity of any
condition attached thereto, shall not be maintained by any person
unless the action or proceeding is commenced within 180 days
after the date of such decision. Thereafter all persons are barred
from any such action or proceeding or any defense of invalidity or
unreasonableness of such decision or of such proceedings, acts or
determinations.” (Stats. 1965, ch. 1341, § 5, p. 3228.) In 1983,
the Legislature shortened the 180 days to the current 90 days.
(Ching, supra, 60 Cal.App.4th at p. 893, citing to Stats. 1983,
ch. 1138, § 2, p. 4314.)
In 1996, the Legislature repealed former section 65907 and
simultaneously moved its limitation language to what are now
subdivisions (c)(1)(E) and (F) of section 65009. (Ching, supra,
60 Cal.App.4th at p. 892, fn. 2.) Like its predecessor,
section 65009 bars any action attacking certain land use
decisions after 90 days.5 With specific exceptions not relevant
here, section 65009 provides that “no action or proceeding shall
be maintained in any of the following cases by any person” unless
commenced and served “within 90 days after the legislative
body’s decision[.]” (§ 65009, subd. (c)(1).)
5 Section 65009 is found in division 1 (Planning and Zoning)
of title 7 (Planning and Land Use).
11
Subdivisions (c)(1)(A) through (F) then delineate a host of
local land use and zoning cases to which the statute’s 90-day time
limit applies, including actions: “(A) To attack, review, set aside,
void, or annul the decision of a legislative body to adopt or amend
a general or specific plan . . . . [¶] (B) To attack, review, set
aside, void, or annul the decision of a legislative body to adopt or
amend a zoning ordinance. [¶] (C) To determine the
reasonableness, legality, or validity of any decision to adopt or
amend any regulation attached to a specific plan. [¶] (D) To
attack, review, set aside, void, or annul the decision of a
legislative body to adopt, amend, or modify a development
agreement . . . . [¶] (E) To attack, review, set aside, void, or
annul any decision on the matters listed in Sections 65901[6] and
65903,[7] 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 (A), (B), (C), (D), and (E).”
(§ 65009, subds. (c)(1)(A)-(F).)
6 Section 65901 provides, in pertinent part, that “[t]he board
of zoning adjustment or zoning administrator shall hear and
decide applications for conditional uses or other permits when the
zoning ordinance provides therefor and establishes criteria for
determining those matters, and applications for variances from
the terms of the zoning ordinance.” (§ 65901, subd. (a).)
Section 65902 then provides “[i]n the event that neither a board
of zoning adjustment or the office of a zoning administrator has
been created and established, the planning commission shall
exercise all of the functions and duties of said board or said
administrator. [¶] The legislative body of a county may provide
that an area planning commission shall exercise all of the
12
Confirming that “no action” means no action, the statute
reiterates that “[u]pon the expiration of the time limits provided
for in this section, all persons are barred from any further action
or proceeding.” (§ 65009, subd. (e).) The statute includes a
statement of the underlying legislative intent and policy
rationale for the 90-day bar: “The Legislature further finds and
declares that a legal action or proceeding challenging a decision
of a city, county, or city and county has a chilling effect on the
confidence with which property owners and local governments
can proceed with projects.” (§ 65009, subd. (a)(2).) The statute
further makes clear “[t]he purpose of this section is to provide
certainty for property owners and local governments regarding
decisions made pursuant to this division.” (§ 65009, subd. (a)(3).)
3. Section 65009’s Broad Reach Controls
Contrary to its argument in the trial court that the four-
year statute of limitations in Government Code section 91011,
subdivision (b), applies, AHF now declares it “beyond dispute” the
three-year statute of limitations contained in Code of Civil
Procedure section 338, subdivision (a), a catch-all for liabilities
created by statute, governs its action. AHF asserts “[i]t is not
disputed that claims brought under Government Code
section 91003 . . . have a limitations period of three years,” citing
Code of Civil Procedure section 338, subdivision (a). However,
AHF hedges its bets, stating that “[a]ssuming [Government Code
functions and duties of a board of zoning adjustment or a zoning
administrator in a prescribed portion of the county.”
7 Section 65903 provides, “[a] board of appeals, if one has
been created and established by local ordinance, shall hear and
determine appeals from the decisions of the board of zoning
adjustment or the zoning administrator.”
13
section 91011, subdivision (b)] is applicable to this action” AHF’s
arguments regarding voter intent and statutory construction
“apply equally.”
The City contends, and the trial court ruled, that
section 65009’s 90-day limitations period bars AHF’s claims. We
agree.
By its plain language, section 65009’s 90-day limitation on
a broad variety of challenges to land use and zoning decisions
encompasses AHF’s action to challenge and set aside certain
unidentified “building permits granted by the City” over an
11-year period that “would not have been approved in their
current form but for the misconduct of Councilmembers Huizar
and Englander.” Nevertheless, AHF maintains section 65009
does not apply, in part because it brought its action pursuant to
the PRA.
The Ching court, relied on by the City and the trial court in
its ruling, confronted and rejected an identical argument.
(Ching, supra, 60 Cal.App.4th 888.) In Ching, the plaintiff
sought to vacate a permit appeals board’s decision to grant a
developer’s application for a conditional use permit, based on a
board member’s conflict of interest in violation of the PRA. (Id.
at p. 891.) Like AHF here, the plaintiff in Ching equivocated as
to which statute of limitations applied, first arguing in opposition
to the board’s demurrer that the three-year time bar in Code of
Civil Procedure section 338, subdivision (a), applied, and then on
appeal contending the four-year statute of limitations in
Government Code section 91011, subdivision (b), governed. (Id.
at p. 892.) The Ching court rejected both contentions. (Ibid.
[“neither the four-year statute of section 91011 nor the three-year
statute of Code of Civil Procedure section 338, subdivision (a)
14
applies.”].) Rather, Ching determined that the 90-day limitations
period prescribed by former Government Code section 65907 for
challenges to a broad variety of local land use decisions
controlled. (Id. at p. 891.)
While agreeing that some PRA claims fall within a three-
or four-year statutes of limitation, Ching rejected the argument
that a PRA claim changes the limitations period for land use
actions governed by former section 65907 (now 65009). First,
“former section 65907 ‘contains no exceptions,’ and uses
‘unqualified language’ manifesting a plain intent on the part of
the Legislature ‘to limit the time to seek review’ of an agency
decision. There is no exception for actions filed under the
Political Reform Act.” (Ching, supra, 60 Cal.App.4th at pp. 894-
895.) Second, “[i]t is a basic rule of statutory construction that
specific statutes control general ones.” (Id. at p. 895, citing Code
Civ. Proc., § 1859 [“when a general and [a] particular provision
are inconsistent, the latter is paramount to the former”].) Even if
the catch-all time bar of Code of Civil Procedure section 338,
subdivision (a), might normally have applied, “the specific 90-day
statute of limitations period set by former section 65907 controls
over the 3-year [statute of] limitations in cases challenging
decisions of a local board of permit appeals.” (Ching, at p. 896,
citing to In re Williamson (1954) 43 Cal.2d 651, 654 [“‘It is the
general rule that where the general statute standing alone would
include the same matter as the special act, and thus conflict with
it, the special act will be considered as an exception to the
general statute whether it was passed before or after’”].)
15
Ching thus concluded “an action or proceeding under the
Political Reform Act challenging a local permit appeal board
decision must comply with the specific limitations provisions of
former section 65907.” (Ching, supra, 60 Cal.App.4th at pp. 895-
896 [“[t]he 90-day period established by former section 65907
thus preempts any longer period set under the Political Reform
Act”].)
Other courts have reached similar conclusions.8 In
California Standardbred Sires Stakes Com., Inc. v. California
Horse Racing Bd. (1991) 231 Cal.App.3d 751, 755, also cited by
the Ching court, the plaintiff promoted breeding of standardbred
horses. It sought a writ of mandamus to compel the California
Horse Racing Board (Board) to issue a license for a racing meet
(the source of the plaintiff’s funding). The plaintiff sought relief
based on an alleged conflict of interest, which it argued violated
the PRA. The Board demurred, arguing that Business and
Professions Code section 19463 provided a 30-day statute of
limitations to challenge the Board’s action. The plaintiff did not
dispute the application of the shorter limitations period; rather, it
argued equitable tolling should extend its time to file. The court
of appeal in California Standardbred dismissed the PRA claim as
untimely. (Ibid.)
In Howard Jarvis Taxpayers Assn. v. City of Los Angeles
(2000) 79 Cal.App.4th 242, 248, disapproved on other grounds in
Ardon v. City of Los Angeles (2011) 52 Cal.4th 241, 250, the
plaintiffs challenged a tax ordinance. They argued the ordinance
8 Among them, AIDS Healthcare Foundation, Inc. v. City and
County of San Francisco (N.D.Cal. 2016) 208 F.Supp.3d 1095,
1102, where section 65009 barred AHF’s untimely challenge to a
planning commission disapproval of a conditional use permit.
16
violated Proposition 218, a voter initiative which amended the
California Constitution to require the electorate to vote on, and
approve, any new tax. (Howard Jarvis Taxpayers Assn., at p. 245
& fn. 1.) The court held the 90-day time bar set forth in section
65009 precluded the suit even though the plaintiffs claimed the
ordinance violated the constitutional limitations in Proposition
218. (Id. at p. 248.) The court, like Ching, rejected the
contention that the general three-year statute of limitations
found in subdivision (a) of Code of Civil Procedure section 338
should govern, noting that “it is well settled that where, as here,
a specific limitations period applies, the more general period
codified in Code of Civil Procedure section 338 is inapplicable.”
(Ibid.)
The City cites another statute of limitations,
section 66499.37,9 part of the Subdivision Map Act (SMA), which
contains similar broad language requiring that “[a]ny action or
proceeding to attack, review, set aside, void, or annul” decisions
“concerning a subdivision” must be brought within 90 days. The
parties do not specifically address the extent to which any of the
9 In pertinent part, section 66499.37 provides that “[a]ny
action or proceeding to attack, review, set aside, void, or annul
the decision of an advisory agency, appeal board, or legislative
body concerning a subdivision, or of any of the proceedings, acts,
or determinations taken, done, or made prior to the decision, or to
determine the reasonableness, legality, or validity of any
condition attached thereto . . . shall not be maintained by any
person unless the action or proceeding is commenced and service
of summons effected within 90 days after the date of the decision.
Thereafter all persons are barred from any action or proceeding
or any defense of invalidity or unreasonableness of the decision or
of the proceedings, acts, or determinations.”
17
permits considered by the PLUM committee might implicate the
SMA. However, given that section 66499.37’s broad statutory
mandate closely resembles section 65009, cases addressing its
applicability are instructive.
For example, the court in Presenting Jamul v. Board of
Supervisors (1991) 231 Cal.App.3d 665, 671, noted that “the
Legislature by design drafted section 66499.37 broadly” and
“[c]onsequently, regardless of the nature of or label attached to
the action challenging the legislative body’s subdivision-related
decision, the action is governed by section 66499.37.” (Id. at
p. 671 [“[t]he broad language the Legislature employed within
section 66499.37 was specifically designed to include any
challenge, regardless whether procedural or substantive in
character”].) The court found the plaintiffs’ three causes of action
untimely given each “challenges either directly or indirectly the
propriety or correctness of the Board’s . . . decision” and thus
“[r]egardless of the varying legal stratagems in the causes of
action . . . each was designed to set aside or annul the Board’s . . .
decision.” (Id. at p. 672.)
C. The Gravamen of the Case Implicates the 90-day Statute
To avoid section 65009, AHF contends that,
notwithstanding its ultimate goal of invalidating any illicitly-
obtained building permits, the gravamen of its action “is not
principally a challenge to the permit decision, but instead is a
challenge to the corruption.”
True, the gravamen of AHF’s action dictates the applicable
statute of limitations. (See Hensler v. City of Glendale (1994)
8 Cal.4th 1, 22-23 (Hensler) [“To determine the statute of
limitations which applies to a cause of action it is necessary to
identify the nature of the cause of action, i.e., the ‘gravamen’ of
18
the cause action [citations] . . . . [T]he nature of the right sued
upon and not the form of action nor the relief demanded
determines the applicability of the statute of limitations under
our code”].) Hensler rejected a plaintiff’s attempt to avoid the
statutory reach of section 66499.37 by couching his challenge to
an ordinance as a taking for which he sought damages. (Ibid.)
The Supreme Court explained that “[e]very appellate decision
which has considered the issue in a case involving a controversy
related to a subdivision has held that section 66499.37 is
applicable no matter what the form of the action.” (Id. at pp. 26-
27; see Aiuto v. City and County of San Francisco (2011)
201 Cal.App.4th 1347, 1358 [the key factor in appellate decisions
consistently applying section 66499.37 in cases involving
controversies related to a subdivision was that “whatever wrong
was claimed in the complaint or whatever relief was sought, the
gravamen of the complaint was an attack on a subdivision-
related decision under the SMA”].)
Section 65009 has a similar reach. In Freeman v. City of
Beverly Hills (1994) 27 Cal.App.4th 892, 897, the Court of Appeal
rejected the plaintiffs’ attempt to side-step the time bar of
section 65009 by arguing their underlying cause of action was one
for monetary damages rather than for direct invalidation of the
challenged zoning ordinance. Freeman made clear that “[t]he
Legislature intended to foreclose any and all challenges to the
validity of zoning ordinances unless they were filed promptly.
Thus, it used very broad language in defining the kinds of
challenges which had to be made within 120 days. . . . A lawsuit
seeking monetary damages on this basis is both an ‘attack’ on the
decision and an attempt to obtain a judicial ‘review’ of that
decision.” (Id. at p. 897.)
19
The same rationale applies here. While AHF may
challenge corruption under the PRA, the gravamen of AHF’s
action is an attack on, or review of, the PLUM committee’s
decisions related to permitting and real estate project approvals.
Section 65009 applies directly to that challenge.10 AHF cannot
escape the statutory time bar by couching its claim as
“necessarily dependent on a finding of a violation of the PRA”
when the violation itself involves challenging the PLUM
committee’s project approvals.
D. Applying the 90-day Limitations Period Does Not
Unconstitutionally Amend the PRA
AHF argues that applying the 90-day statute of limitations
to its PRA claim would amount to an unconstitutional legislative
amendment to a duly-enacted voter initiative. AHF concedes on
appeal that the time bar in Government Code sections 65009 and
66499.37 predate the PRA, and thus did not amend it, but still
insists that “the use and application of these sections does work
as a practical amendment of the text of the PRA.” This argument
suffers from temporal and logical problems.
The California Constitution provides, in relevant part, that
“The Legislature may amend or repeal an initiative statute by
another statute that becomes effective only when approved by the
electors unless the initiative statute permits amendment or
repeal without the electors’ approval.” (Cal. Const., art II, § 10,
subd. (c).) As the Supreme Court explained in People v. Kelly
(2010) 47 Cal.4th 1008, 1025, “‘The purpose of California’s
constitutional limitation on the Legislature’s power to amend
initiative statutes is to “protect the people’s initiative powers by
10 At oral argument, AHF conceded that the PLUM committee
decisions it challenges fall within the scope of section 65009.
20
precluding the Legislature from undoing what the people have
done, without the electorate’s consent.”’” However, the
Legislature “is not thereby precluded from enacting laws
addressing the general subject matter of an initiative” and thus
“remains free to address a ‘“related but distinct area’” [citations]
or a matter that an initiative measure ‘does not specifically
authorize or prohibit.”’ (Id. at pp. 1025-1026.) “[F]or purposes of
article II, section 10, subdivision (c), an amendment includes a
legislative act that changes an existing initiative statute by
taking away from it.” (Id. at pp. 1026-1027.)
AHF does not fully account for the permissible parameters
of legislative amendment. In quoting section 81012, AHF only
cites subdivision (b) for the proposition that the PRA may be
amended or repealed by statute “approved by the electors.”
However, AHF’s briefing omits subdivision (a), which provides
that the Legislature may also amend the PRA, albeit by two-
thirds vote in each house and the Governor’s signature, prior
distribution of the proposed bill to the Fair Political Practices
Commission, and only so long as the amendment “further[s] its
purposes.” (§§ 81012; 82012.) Some ballot initiatives strictly
reserve the amendment power solely to the electors. The PRA
does not. Indeed, by 2010 the Legislature already had amended
the PRA over 200 times. (People v. Kelly, supra, 47 Cal.4th at
p. 1043, fn. 59.)
Putting aside this permissible legislative amendment
process, we cannot reasonably construe the 90-day local land use
statute of limitations as an improper amendment to, or curtailing
of, the PRA.
First, as explained above, the 90-day time bar currently
codified in section 65009 pre-dates the PRA by almost 10 years.
21
The Legislature obviously could not impermissibly have undone
or taken away from a voter initiative that did not yet exist.
Second, the Legislature added subdivision (b) of section
91011 to the PRA in 1980, so that broader statute of limitations
was “not part of the rest of the initiative legislation creating the
Political Reform Act.” (Ching, supra, 60 Cal.App.4th at p. 895.)
Nevertheless, in the trial court, AHF argued this legislative
amendment created the operative statute of limitations for this
case. AHF does not explain how the legislative amendment it
relied on in the trial court could be valid, but the other statute
that purportedly amends the PRA is not valid. The Legislature
enacted both. Regardless, as the Ching court properly concluded,
“Thus . . . section 91011, subdivision (b) does not automatically
control over the 90-day limitation period set by former section
65907 as a matter of the state constitutional law applicable to
initiative statutes.” (Ching, at p. 895.) Even putting aside the
temporal problems with AHF’s argument noted above, its
“practical amendment” theory fails for this additional reason.
Moreover, even if we assume that when the electorate
passed the PRA, it intended for the existing catch-all statute of
limitations from section 338, subdivision (a), of the Code of Civil
Procedure to apply, we must also assume the electorate knew
about, and did nothing to expressly abrogate, the shortened
limitations period in former section 65907. (See People v.
Gonzales (2018) 6 Cal.5th 44, 49-50 [“a ballot initiative is
governed by the same principles that apply in construing a
statute enacted by the Legislature . . . [and] we presume that the
‘adopting body’ is aware of existing laws when acting a ballot
initiative”].) Thus, the application of the pre-existing shorter
statute of limitations does not “practically amend” section 91011,
22
subdivision (b), or any other part of the PRA. Section 65009 does
not conflict with, or otherwise take away from, the original PRA,
practically or otherwise.
E. Policy Considerations Do Not Override Clear Statutory
Language
Finally, AHF advances certain policy reasons for
permitting a longer period of time to “discover and ferret out
corruption.”11 In this case, we do not reach the competing public
policy goals at work in the PRA and section 65009. “‘Our
fundamental task in interpreting a statute is to determine the
Legislature’s intent so as to effectuate the law’s purpose.’
[Citation.] We start with the words of the statute, giving them
their plain and ordinary meaning. [Citation.] ‘If the statutory
language permits more than one reasonable interpretation,
courts may consider other aids, such as the statute’s purpose,
legislative history, and public policy.’” (Lopez v. Friant &
Associates, LLC, supra, 15 Cal.App.5th at p. 779; accord,
Coalition of Concerned Communities, Inc. v. City of Los Angeles
(2004) 34 Cal.4th 733, 737.)
11 AHF also claims the PRA already addresses concerns that
undoing government action taken a decade or more ago will prove
disruptive because “[i]n considering the granting of preliminary
or permanent relief under this subsection, the court shall accord
due weight to any injury that may be suffered by innocent
persons relying on the official action.” (§ 91003, subd. (b).)
However, the “due weight” directive does not overwrite an
otherwise applicable and controlling statute of limitation.
23
Here, “[t]he Legislature intended the limitation period
stated in former section 65907 to permit no exception.” (Ching,
supra, 60 Cal.App.4th at p. 896.) Accordingly, like Ching, we
must enforce the 90-day time bar. We affirm the trial court’s
dismissal of AHF’s PRA cause of action, without leave to
amend.12 The trial court properly dismissed AHF’s complaint13
as time barred by section 65009, the applicable 90-day statute of
limitations in this action.
12 In the proceedings below AHF contended that Huizar and
Englander’s fraudulent concealment ought to toll any applicable
statute of limitations, and that if the requisite allegations were
not pleaded in its complaint, leave to amend should be granted
“to provide more detailed allegations for this defense to the
statute of limitations.” AHF does not raise, and therefore
forfeits, these contentions on appeal. (See Tiernan v. Trustees of
Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4
[issue not raised on appeal deemed forfeited or waived]; accord,
Sierra Palms Homeowners Assn. v. Metro Gold Line Foothill
Extension Construction Authority (2018) 19 Cal.App.5th 1127,
1136.)
13 As to its second cause of action, AHF “concedes that its
taxpayer waste claim is dependent” and “predicated and
conditioned upon” the validity “of a PRA violation.” Given our
ruling that section 65009 bars AHF’s PRA claim, then, by AHF’s
admission its dependent taxpayer waste claim must also fall.
24
DISPOSITION
The judgment is affirmed. The City is to recover its costs
on appeal.
HOWARD, J.*
We concur:
PERLUSS, P. J.
SEGAL, J.
* Judge of the Marin County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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