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County of El Dorados v. Superior Court (Thomas Austin)

California Court of Appeals, Third District, El Dorado

October 30, 2019

COUNTY OF EL DORADO et al., Petitioners,
THE SUPERIOR COURT OF EL DORADO COUNTY, Respondent THOMAS AUSTIN et al., Real Parties in Interest.


          ORIGINAL PROCEEDINGS in mandate. Stay issued. Petition denied. Super. Ct. No. PC20150633 Warren C. Stracener, Judge.

          Michael J. Ciccozzi and David Livingston, County Counsel, Kathleen A. Markham, Deputy County Counsel; Abbott & Kindermann, William W. Abbott, and Glen C. Hansen for Petitioner.

          Jennifer Bacon Henning for California State Association of Counties, Rural County Representatives of California, and League of California Cities as Amici Curiae on behalf of Petitioner.

          No appearance for Respondent.

          Kuzyk Law, Mark J. Leonardo, Reid H. Breitman; Benedon & Serlin, Douglas G. Benedon, Wendy S. Albers for Real Parties in Interest.

          Bernard Carlson in pro. per. for Friends of El Dorado County as Amicus Curiae on behalf of Real Parties in Interest.

          Butz, J.

         Real parties in interest Thomas and Helen Austin (the Austins) filed an action to recover development impact fees under the Mitigation Fee Act (Gov. Code, § 66000 et seq.)[1] for the failure of petitioners County of El Dorado and its Community Development Agency (collectively “County”)[2] to make prescribed findings to justify the continuing need for 11 fees assessed by the County and its special districts. The trial court denied a second demurrer that renewed the County's previous claim that the limitations period for the Austins' action expired. On the County's petition for a writ of mandate to overturn this ruling, we issued an alternative writ or order to show cause and, with the acquiescence of the Austins, issued a stay of proceedings. On plenary review, we shall vacate the stay and deny the County's petition for writ of mandate.[3]


         We do not act as an adjunct to the superior court's motion department. We should exercise discretion to review rulings on pleadings with extreme reluctance, confining it “to instances of such grave nature or of... significant legal impact.” (Babb v. Superior Court (1971) 3 Cal.3d 841, 851.) The present case is simply a desultory request by particular landowners for a refund of fees that a particular local entity failed to justify. We are not aware, at least through the vehicle of the present litigation, that floodgates will open to challenges of mitigation fees for failure to make these prescribed findings on a statewide basis[4] if we do not rule in the County's behalf at the pleadings stage on the question of the proper limitations period. This is as opposed to the context of a subsequent ruling premised on a factual showing as to the limitations period, or a ruling on the merits of the underlying dispute that might moot the whole issue-in contrast with the Babb decision regarding the propriety of cross-complaints for malicious prosecution in pending actions. Moreover, if the purported size of the administrative record (as the County asserts) were a ground for writ relief, we would find ourselves issuing writs in every demurrer that raised the limitations period in challenges to environmental impact reports. The County's concern with its potential liability on the merits also does not distinguish it from any other defendant unsuccessful on a demurrer in an action involving a large prayer for relief. However, having issued the alternative writ and created a cause, we do not see any purpose in revisiting this threshold issue. We therefore address the demurrer on the merits, without intending to signify the present proceedings as a bellwether of our willingness to entertain relief for rulings on pleadings.

         In the original pleading filed in December 2015, the Austins alleged that as the current property owners, they were entitled to a refund of eight different mitigation fees exacted by four special districts in which their real property is located, because the County had failed to comply with its obligation under section 66001 to make findings justifying the continued collection and retention of the mitigation fees within the prescribed period of five years (so-called “nexus” findings). A first amended complaint superseded the original pleading in December 2016 (apparently following a demurrer that is not included in the exhibits to the petition). The Austins now named 11 different mitigation fees assessed by five special districts. They alleged the deadlines for nexus findings for each of these fees had expired prior to the filing of their action on various dates.

         The County demurred, asserting that a one-year limitations period for penalties and forfeitures applied, that the Austins had failed to allege “prejudice” as purportedly required under section 65010, and that the Austins failed to name necessary parties as defendants. In December 2017, the trial court overruled the demurrer on the first two grounds because it found each subsequent collection of a fee within the applicable limitations period-in the absence of nexus findings-was a new breach, and as a result the limitations period could not apply to the entirety of the cause of action under the “continuous accrual” doctrine. Thus, it concluded that “[r]egardless of which statute of limitation applies, one year, three year or four year, it does not appear clearly and affirmatively that, upon the face of the [first] amended complaint and petition, the right of action is necessarily barred. There remains claims for refund of fees collected within the one year, three year and four year statutes. ‘A demurrer does not lie to a portion of a cause of action' ” (citing PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 (PH II)). It also concluded the requirement to plead prejudice under section 65010 did not apply to proceedings under section 66001 for failure to make nexus findings. It did find, however, that certain parties were indispensable with respect to certain of the collected fees, and sustained the demurrer to that extent with leave to amend.

         The Austins filed the present amended pleading in January 2018. The pleading again identified the 11 funds collecting mitigation fees for the County and special districts. It again alleged the County had failed to make nexus findings for each of these by various deadlines between June 2011 and June 2013. The County shortly thereafter filed the present demurrer, setting the hearing for ...

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