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Freeny v. City of San Buenaventura

California Court of Appeals, Second District, Sixth Division

June 4, 2013

ROBERT FREENY et al., Plaintiff s and Appellants,
v.
CITY OF SAN BUENAVENTURA et al, Defendants and Respondents.

Superior Court County of Ventura Case No. 56-2011-00403267- CU-WM-VTA Rebecca S. Riley, Judge

Law Offices of James B. Devine and James B. Devine for Plaintiffs and Appellants.

Ariel Pierre Calonne, City Attorney, Andy H. Viets, Senior Assistant Attorney, Jennifer Lee, Assistant City Attorney for Defendants and Respondents.

HOFFSTADT, J. [*]

The California Tort Claims Act (Act) confers immunity from tort liability on public employees when they make "basic policy decisions" in a legislative capacity. (Gov. Code, §§ 820.2, 821, 821.2.)[1] We hold that public employees' tort immunity for legislative decision-making applies even when that decision-making is also alleged to involve the making of misrepresentations motivated by "actual fraud, corruption or actual malice." (§ 822.2) For this reason and others, we affirm the dismissal of plaintiffs' suit against a city and five city council members for nearly $2 million in compensatory damages, plus punitive damages, for voting against an application for building permits and variances.

FACTS AND PROCEDURAL HISTORY

We draw these facts from the allegations in the complaint, which we accept as true except where contradicted by the exhibits attached to the complaint. (Tucker v. Pacific Bell Mobile Servs. (2012) 208 Cal.App.4th 201, 210.)

I. Administrative Review

Plaintiffs Robert and Linda Freeny (plaintiffs) own two adjacent parcels of land in mid-town City of San Buenaventura (City). For three years, they worked with their own architect and consulted with the City's staff to design a living facility for senior citizens. The City's planning commission (Planning Commission) eventually approved a 44-unit, 42, 172-square foot facility (the Project), and concomitantly granted a conditional use permit, a design review, an administrative variance, and a lot-line adjustment.

A group of 35 persons living near the proposed facility appealed the Planning Commission's decision to the City Council. Following a remand to the Planning Commission for further fact-finding, the City Council took up the matter at a public hearing. On a five-to-two-vote, the City Council approved the neighbors' appeal and overturned the Planning Commission's approval. In so doing, the City Council found that building a facility of that "size" on a "street-to-street lot" was "incompatible" with the "existing residential neighborhood." The City Council stated that plaintiffs "need[ed] to rethink the entirety of the project, " but that its denial was "without prejudice" and invited plaintiffs to submit a "redesign[ed]" project. The City Council subsequently adopted a formal resolution sustaining the appeal "without prejudice."

II. Plaintiffs' Complaint

Plaintiffs sued the City and five City Council members (collectively, defendants) who voted to reject the Project.[2] The complaint includes a petition for administrative mandamus seeking an order (1) commanding the City to approve the Project or (2) requiring a new hearing before the City Council. The complaint also prays for $1.8 million in compensatory damages and additional punitive damages arising from tort claims for fraud, misrepresentation and, because plaintiffs are in their 70s, elder abuse.

III. The Trial Court's Ruling

The trial court sustained defendants' demurrers without leave to amend on two grounds. First, the court concluded that plaintiffs' lawsuit was not ripe because the City's denial "without prejudice" left administrative remedies unexhausted. The court rejected plaintiffs' arguments that further exhaustion was futile or would irreparably injure plaintiffs. Second, the court ruled that defendants were immune from liability for adopting laws under sections 818.2 and 821; for denying permits or similar authorizations under sections 818.4 and 821.2; and for exercising their discretion ...


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