APPEAL from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Affirmed. (Los Angeles County Super. Ct. No. BS113466).
The opinion of the court was delivered by: Johnson, J.
CERTIFIED FOR PUBLICATION
Erica Landmann-Johnsey appeals from the trial court's sustaining of a demurrer without leave to amend. Landmann-Johnsey's complaint alleged that the City of Glendora violated the California Environmental Quality Act when it assessed a fee for her appeal to the city council of a planning commission decision. We affirm.
On February 27, 2008, Friends of Glendora (a nonprofit organization) and Erica Landmann-Johnsey, a resident of the City of Glendora (City), filed a complaint in Los Angeles Superior Court for declaratory and injunctive relief and petition for writ of mandate under the California Environmental Quality Act, Public Resources Code section 21000 et seq. (CEQA), and other laws. The complaint stated, "The project (including all associated entitlements) that is the subject of this proceeding is or may have been known as the Glendora Hospital Partners Project and will consist of a 125-bed assisted-living facility located at the corner of Bonnie Cove Avenue and Gladstone Street in the City of Glendora" (the project). The complaint's first cause of action, by Friends of Glendora, alleged that City should have prepared an environmental impact report (EIR) regarding the project, and challenged the City's action taken on February 12, 2008, when the City adopted an addendum to a negative declaration and gave other approvals to the project without an EIR. All available appeals had been taken, and the City's approval was then final.
The second cause of action, by Landmann-Johnsey, alleged that the City violated CEQA when it assessed a $2,000 fee, which Landmann-Johnsey paid under protest, for the filing of her CEQA-based appeal to the city council of the planning commission's approval of the project. The complaint requested a judgment determining or declaring that the City failed to comply with CEQA when it charged the fee and that the City may not continue to charge a fee, and sought an injunction prohibiting the charging of the fee.
The City filed a demurrer to the second cause of action, on the grounds that (1) the complaint was filed outside the 120-day statute of limitations from July 13, 2004, the date that the city council adopted Resolution 04-08, which established the fee; and (2) charging a fee was in compliance with CEQA under Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412. The trial court sustained the demurrer without leave to amend at a hearing on September 25, 2008. The trial court entered judgment against Friends of Glendora on the first cause of action on January 15, 2009, and notice of entry of judgment was served on January 20, 2009. Landmann-Johnsey timely appealed.
We review the trial court's sustaining of the demurrer independently, and "[o]ur task in reviewing a judgment of dismissal following the sustaining of a demurrer is to determine whether the complaint states a cause of action." (Coast Plaza Doctors Hospital v. Blue Cross of California (2009) 173 Cal.App.4th 1179, 1185-1186.) When the trial court has sustained a demurrer without leave to amend, we "decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse." (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) It is the burden of the plaintiff to show that it could have amended the complaint to cure the defect. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 959.)
We treat the demurrer as admitting all the properly pleaded material facts and consider matters which may be judicially noticed, but we do not treat as admitted contentions, deductions, or conclusions of fact or law. (Align Technology, Inc. v. Tran, supra, 179 Cal.App.4th at p. 958.) Further, "`we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.'" (Ibid.) Because a demurrer tests only the legal sufficiency of the pleading, we accept as true even improbable alleged facts, and we do not concern ourselves with the plaintiff's ability to prove its factual allegations. (Ibid.)
The complaint requested relief under CEQA "and Other Laws," identifying Friends of Glendora as a California nonprofit association and Landmann-Johnsey as an individual residing in Glendora. The complaint alleged that on February 12, 2008, the City adopted an Addendum to a Negative Declaration (ND Addendum)*fn1 and "took other actions and gave other approvals" regarding the project, and that Friends of Glendora and Landmann-Johnsey "seek to invalidate Respondents' adoption of the ND Addendum and related actions and approvals with respect to the Project on the grounds that Respondents violated CEQA and other laws." The complaint did not identify Landmann- Johnsey as a member of Friends of Glendora, and alleged that Friends of Glendora and Landmann-Johnsey objected to the project's approval before the public hearing ended "and at least one of Petitioner FRIENDS OF GLENDORA's members objected if [in the event] Petitioner was formed after the Project's approval, as required by Public Resources Code Section 21177(c)."
Landmann-Johnsey's cause of action incorporated the allegations described above and stated, "Respondents charged petitioner LANDMANN- JOHNSEY a $2,000 fee to file her appeal of the Project's approval by Respondent's planning commission to the city council and refused to accept her appeal application unless she paid the fee. The appeal was based entirely on CEQA grounds. Petitioner paid the fee under protest. [¶]... Respondents violated CEQA when they charged an appeal fee for Petitioner LANDMANN-JOHNSEY to appeal the Project to the city council on CEQA grounds."
The complaint alleges that Landmann-Johnsey appealed the City's approval of the project to the city council as an individual, alleging only grounds based on CEQA.*fn2 We accept this as true. We independently determine whether the complaint states a cause of action that the assessment by the City of a fee for the filing of Landmann- Johnsey's appeal was a violation of CEQA.
The trial court took judicial notice of the City's July 2004 Resolution 04-48, under which the City assessed the fee paid by Landmann-Johnsey. The Resolution provides that the City will require a deposit of $2,000 at the time of filing an appeal to the city council of decisions made by the City's Department of Planning and Development and Public Works. The fee is assessed to cover "[a]ctual costs incurred by the city to process the appeal," with subsequent deposits as necessary and a return of the balance, if the costs of the appeal are less than the deposit. There is no indication in the complaint whether any portion of the fee was returned to Landmann-Johnsey. For the purpose of this appeal, however, the amount of the fee or the details of the resolution are irrelevant. The complaint does not allege that the amount or nature of the fee were unreasonable. Instead, Landmann- Johnsey's allegation is that CEQA does not permit any fee, however small or of whatever type, for the filing of her CEQA appeal to the city council. This ...