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Bernice Erwin v. Calaveras County Board of Supervisors et al

January 22, 2013

BERNICE ERWIN, PLAINTIFF AND APPELLANT,
v.
CALAVERAS COUNTY BOARD OF SUPERVISORS ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. 11CV37386)

The opinion of the court was delivered by: Hull , J.

Erwin v. Calaveras County Bd. of Supervisors

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Bernice Erwin filed a petition for writ of administrative mandamus against defendants Calaveras County Board of Supervisors, Planning Commission, Planner Debra Lewis, and Department of Public Works (sometimes collectively referred to as defendants) alleging they violated her constitutional rights when they issued a notice of violation against a parcel of land she purportedly acquired by gift deed (parcel 29) in 1984, and thereafter conditioned approval of her tentative parcel map on completion of improvements to roads accessing the property (Condition II-1) in 1995.

Defendants demurred, arguing plaintiff's claims were barred by the applicable statute of limitations, and by principles of res judicata and collateral estoppel, as the issues essential to her claims were previously decided against her in two prior federal actions she filed against the same parties. The trial court sustained the demurrer without leave to amend and dismissed the lawsuit.

Plaintiff appeals, claiming the trial court erred both in sustaining the demurrer and in denying her leave to amend the writ petition. As we explain, the trial court concluded correctly that plaintiff's claims are barred by the statute of limitations. Plaintiff's claims accrued on April 17, 1995, when defendants adopted her tentative parcel map subject to Condition II-1, after which plaintiff had 90 days to challenge the condition. The trial court also correctly concluded that plaintiff's claims regarding the notice of violation are barred by res judicata and collateral estoppel, as those claims have already been decided against her in her prior lawsuits against these defendants. Finally, because plaintiff has not demonstrated a possibility of correcting those defects through amendment, the trial court properly sustained defendants' demurrer without leave to amend. We affirm the judgment.

FACTS AND PROCEEDINGS

This litigation finds its origins in 1981, when Louie and Susie Peirano (the Peiranos), both now deceased, applied to the County of Calaveras (County) to subdivide their approximately 20-acre parcel to create two parcels, each approximately five acres in size, and a remainder, and purported to transfer by gift deed one of the parcels to Susan Reid (the Reid parcel) and the other to plaintiff (parcel 29), retaining the remainder for themselves.

Defendant County approved the division creating the Reid parcel, but not that creating parcel 29, having found plaintiff paid for road improvements for the Peiranos in contravention of the requirements for a gift deed transfer. On November 5, 1981, defendant Planning Commission authorized recordation of a notice of violation on parcel 29 (notice of violation) after finding it to be in violation of both the Subdivision Map Act (Gov. Code, § 66410 et seq.) and the Calaveras County Subdivision Ordinance based on inadequate access for development of the proposed parcel. On April 23, 1984, defendant Planning Commission's decision was upheld on appeal by defendant Board of Supervisors, and the notice of violation was thereafter recorded on May 24, 1984.

In 1988, plaintiff quitclaimed her interest in parcel 29 to her son, Jimmie Don Erwin, thereafter acting as his agent and power of attorney with respect to the property.

The 1991 Federal Complaint

In May 1991, plaintiff filed a complaint in the United States District Court for the Eastern District of California, case No. CV-F-91255 (the 1991 federal complaint), including as defendants Calaveras County Board of Supervisors, Planning Department, and numerous individually-named County employees. The 1991 federal complaint alleged claims of due process, equal protection, and discrimination under 42 U.S.C. section 1983 (hereafter § 1983), and takings, all arising out of the notice of violation and defendant County's denial of the proposed subdivision of parcel 29.

The district court dismissed the amended 1991 federal complaint with prejudice. The Ninth Circuit Court of Appeals affirmed, concluding plaintiff's claims were barred by the one-year statute of limitations applicable to section 1983 claims.

The 1994 Federal Complaint

In early 1994, plaintiff submitted an application for a tentative parcel map to legally separate parcel 29 from the Reid parcel. In April 1994, the County Planning Commission approved plaintiff's tentative parcel map subject to Condition II-1, a condition requiring plaintiff to improve and maintain certain roads providing access to and from Parcel 29. Plaintiff appealed for a waiver of Condition II-1.

In the meantime, on October 4, 1994, plaintiff filed her second complaint in the United States District Court for the Eastern District of California, case No. CV-F-946014 (the 1994 federal complaint), including as defendants Calaveras County Board of Supervisors, Planning Department, Department of Public Works, and numerous individually-named County employees. The 1994 federal complaint alleged civil rights violations under section 1983, fraud, misrepresentation, and conspiracy, all arising out of the notice of violation and defendant County's denial of the proposed subdivision of parcel 29.

On February 7, 1995, Jimmie Don Erwin quitclaimed a 1/8th interest in parcel 29 back to plaintiff.

On April 17, 1995, the Calaveras County Board of Supervisors adopted Condition II-1 to ...


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