Opinion
NOT TO BE PUBLISHED
APPEAL from the San Bernardino County Super.Ct.No. RCV092447. Donald G. Umhofer, Judge. (Retired judge of the San Luis Obispo Mun. Court, assigned by the Chief Justice pursuant to Art. VI, § 6 of the Cal. Const.)
Law Offices of Dan Maccabee, Dan S. Maccabee and Steven H. Josephs for Plaintiff and Appellant.
Best Best & Krieger, Richard T. Egger, Denise Rocawich and Kira L. Klatchko for Defendant and Respondent.
O’Melveny & Myers, Michael G. Yoder and Brian Neach for Amici Curiae and Real Parties in Interest, MCP Ontario Festival LLC, and Meer Capital Partners, LLC.
OPINION
HOLLENHORST, Acting P. J.
Plaintiff, Scott G. Aden, as Trustee of the Marian C. Aden Trust (Aden), initiated this action on January 3, 2006, against the City of Ontario (City), MCP Ontario Festival, LLC, and Meer Capital Partners, LLC (collectively referred to as Meer), and Centex Homes Corporation (Centex). Aden sought to quiet title to an easement as against Meer and Centex, owners of the adjacent property. After Aden filed his first amended complaint, defendants demurred, and the trial court granted the demurrer without leave to amend as to the City and two causes of action against the remaining defendants. Aden appeals.
I. PROCEDURAL BACKGROUND AND FACTS
This case involves real property consisting of several large parcels of land located in the City of Ontario north of Inland Empire Boulevard, between Archibald and Turner Avenues. Aden owns the 5.7-acre parcel on the northeast corner of Archibald Avenue and Inland Empire Boulevard, which he developed into the Airporter Square Shopping Center (Airporter Square). Meer owns the adjacent parcel, 21.4 acres of vacant land that Meer, along with Centex, has been trying to develop into a condominium project (Project Property).
A dispute exists among the parties regarding Aden’s alleged ownership of an easement across a portion of the Project Property, which he refers to as the “Servient Property.” Meer purchased the Servient Property in February 2004. Prior to closing escrow, Meer closed the service road which Aden alleges he and his tenants used to access the Airporter Square when crossing the Servient Property. Centex acquired an interest in the Servient Property in October 2005.
In or about the latter part of 2005, Meer and Centex sought and obtained from the City approval of a tentative parcel map, tentative tract map, and development plan permitting subdivision of the Project Property, including the portion that contained the disputed easement. The proposed project consisted of 335 townhouse condominiums and a common area (the Project) within the Ontario Festival specific plan area. In August 2005, the City’s planning commission approved the Project. Aden objected to and appealed the planning commission’s order approving the Project, arguing that the Project would destroy his easement.
On October 4, 2005, the city council held a public hearing to consider Aden’s appeal. After considering the proposal, staff reports, and brief oral statements from the hearing attendees, the council resolved to deny Aden’s appeal. It further resolved (1) to accept Meer’s and Centex’s application for a tentative parcel map, which allowed 24.39 acres to be subdivided into three separate parcels so that Centex could purchase one of those parcels; and (2) to approve the tentative tract map that consolidated two parcels, the parcel purchased by Centex and an approximate 12-acre lot owned by Meer, to form the 21.4-acre Project Property on which the Project was to be built.
Ninety days later, on January 3, 2006, Aden initiated this action against defendants. The City and Meer demurred to the action. They contended that any challenge to the subdivision of land was required to be filed and served, both on the City and the private party property owners, within 90 days of the City’s action being challenged in the mandamus action. Thus, the City and Meer argued that because the petition was not timely served on the indispensable parties (who could not be joined after the passing of 90 days), the action had to be dismissed. Following a hearing, Aden was allowed leave to file a first amended complaint.
Aden’s first amended complaint alleged the following causes of action: (1) quiet title to easement by express reservation, against all defendants except the City; (2) quiet title to easement by implied grant, against all defendants except the City; (3) quiet title to easement by prescription against all defendants except the City; (4) permanent injunction and damages against all defendants except the City; (5) inverse condemnation against the City; and (6) petition for writ of mandate against the City (as respondent) and defendants (as real parties in interest).
Respondent and real parties in interest again demurred. The City again raised the issue of the statute of limitations, as did real parties in interest. Aden opposed the demurrer, claiming that his action was not an objection to the subdivision of the adjacent property or the approval of the parcel map and tract map, but merely a means to enforce his easement. Following a hearing, the trial court found that the gravamen of Aden’s action was a challenge to the City’s approval of a subdivision on the parcel adjacent to his. Accordingly, the trial court applied the statute of limitations and dismissed Aden’s action against the City on the grounds that, as a matter of law, he was unable to join the indispensable real parties in interest. The trial court further found that Aden’s action for inverse condemnation failed both because Aden did not allege a physical or regulating taking, and also because the defect in the sixth cause of action for writ of mandate meant that he had failed to exhaust all administrative remedies.
On June 21, 2006, the trial court sustained both demurrers as to the fifth and sixth causes of action, without leave to amend. As to the City, judgment was entered. As to Meer defendants, they were provided 20 days in which to answer the first amended complaint as to Aden’s remaining claims. This appeal followed.
II. STANDARD OF REVIEW
“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken. [ Citations.]’ [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
III. STATUTE OF LIMITATIONS
Aden contends that he timely filed and served this action on the City within 90 days after it had approved the development plan that authorized the construction of improvements over his easement.
The Subdivision Map Act requires cities and counties to regulate and control the design and improvement of subdivisions in their jurisdiction. (Gov. Code, § 66411.) In doing so, they must review tentative tract maps and parcel maps for consistency with applicable general and specific plans. (§ 66474.) Section 66499.37 sets forth a 90-day statute of limitations governing any and all challenges to a city’s or county’s actions concerning a subdivision. This section requires that: “Any 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 such decision, or to determine the reasonableness, legality or validity of any condition attached thereto, shall not be maintained by any person unless such action or proceeding is commenced and service of summons effected within 90 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.” (§ 66499.37, italics added.)
Government Code section 66410 et seq.
“Subdivision” is defined as “[t]he division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, shown on the latest equalized county assessment roll as a unit or as contiguous units, for the purpose of sale, lease or financing, whether immediate or future. Property shall be considered as contiguous units, even if it is separated by roads, streets, utility easement or railroad rights-of-way. ‘Subdivision’ includes a condominium project, as defined in subdivision (f) of Section 1351 of the Civil Code, a community apartment project, as defined in subdivision (d) of Section 1351 of the Civil Code, or the conversion of five or more existing dwelling units to a stock cooperative, as defined in subdivision (m) of Section 1351 of the Civil Code.” (§ 66424.)
Unless otherwise indicated, all further statutory references are to the Government Code.
In interpreting the words “concerning a subdivision” in this section, we note the well-established principle of statutory construction that the plain meaning of a statute governs. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) Moreover, we acknowledge that our state’s highest court has stated that section 66499.37 “applies by its terms to any action involving a controversy over or arising out of the Subdivision Map Act.” (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 23.) Thus, the term “concerning a subdivision” has been interpreted broadly. (Sprague v. County of San Diego (2003) 106 Cal.App.4th 119, 129 (Sprague).)
In Sprague, the court stated: “‘The broad language the Legislature employed within Section 66499.37 was specifically designed to include any challenge, regardless whether procedural or substantive in character, to any subdivision-related decision of either a legislative or advisory entity, or any of the necessary precedent proceedings, acts or determinations pursued before the making of the challenged decision.’ [Citation.]” (Sprague, supra, 106 Cal.App.4th at p. 129.) Courts have found that regardless of the label the parties attach to the action, any action challenging a legislative body’s subdivision-related decision is governed by section 66499.37. (Presenting Jamul v. Board of Supervisors (1991) 231 Cal.App.3d 665, 671.) As such, even acts that are not directly related to, but which arise out of the Subdivision Map Act, are subject to the statute of limitations contained in section 66499.37. (Anthony v. Snyder (2004) 116 Cal.App.4th 643, 655-656.) Thus, where a local agency’s decision is made under the authority of an ordinance enacted to enforce the Subdivision Map Act, a challenge to that decision falls under the purview of section 66499.37. (Hensler v. City of Glendale, supra, 8 Cal.4th at pp. 7, 23.)
The City points to the various ordinances enacted to enforce the Subdivision Map Act. (Ont. Mun. Code, § 9-1.0800 et seq. [development plan review].)
Notwithstanding the above, Aden claims that he is not challenging the City’s approval of the tract map, tentative parcel map, or development plan, as those things relate to or concern a subdivision. Instead, he claims that he is challenging the City’s approval of the development plan as a land use decision. Citing section 65009, subdivision (c)(1), he argues that his case was timely filed and served on the City. We disagree.
Section 65009, subdivision (c)(1), in relevant part, provides: “Except as provided in subdivision (d), no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision[.]” The section is applicable to the following cases: “(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 and 65903, 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).” (Italics added.)
Contrary to Aden’s contention, we find that the applicable statute of limitation is found in section 66499.37, not section 65009. “Section 65009 is located in division 1 (Planning and Zoning) of title 7 (Planning and Land Use) of the Government Code. [Division 1 is known as the Planning and Zoning Law. (§ 65000.)] It is intended ‘“to provide certainty for property owners and local governments regarding decisions made pursuant to this division” (§ 65009, subd. (a)(3)) and thus to alleviate the “chilling effect on the confidence with which property owners and local governments can proceed with projects” (id., subd. (a)(2)) created by potential legal challenges to local planning and zoning decisions.’ [Citation.]” (Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 526 (Honig).)
In contrast, section 66499.37 is located in division 2 (Subdivisions) of title 7 (Planning and Land Use) of the Government Code. As we previously noted, Division 2 is the Subdivision Map Act. (§ 66410.) The legislative intent for enacting section 66499.37 is clear. “The ‘patent legislative objective’ of this section is to ensure that judicial resolution of Subdivision Map Act disputes occurs ‘as expeditiously as is consistent with the requirements of due process of law.’ [Citations.] Such expedition is necessary because delay in the resolution of these disputes is ultimately reflected in increased development and housing costs.” (Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 442 (Hunt), citing Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 886, and Griffis v. County of Mono (1985) 163 Cal.App.3d 414, 422; see also Hensler v. City of Glendale (1994) 8 Cal.4th 1, 23.) “Among the [Subdivision Map] Act’s purposes are to encourage and facilitate orderly community development, coordinate planning with the community pattern established by local authorities, and assure proper improvements are made, so that the area does not become an undue burden on the taxpayer.” (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 985.)
The Subdivision Map Act requires cities to review subdivision developments. (§§ 66411, 66426, 66473.5, 66474.) All parties having any record title interest in the subdivided property are required to sign off on the final map. (§ 66436.) Parties having record title include private parties holding “[r]ights-of-way, easements, or other interests which cannot ripen into a fee”; however, they need not sign off if their names and interests are reflected on the final map. (§ 66436, subd. (a)(3)(A)(i), italics added.) All challenges to any decision regarding a Subdivision Map Act dispute are subject to its statute of limitations. (§ 66499.37; Hensler v. City of Glendale, supra, 8 Cal.4th at pp. 7, 23.)
Here, the City reviewed the Project proposed by defendants pursuant to the provisions of the Ontario Municipal Code section 9-1.0800 et seq. and the Subdivision Map Act. Regardless of how Aden characterizes his challenge to the City’s action, we find that the City’s action “concern[ed] a subdivision.” (§ 66499.37.)
As the City notes, a review of Aden’s complaint and first amended complaint supports the conclusion that his action concerned the subdivision process. While it is true that an amended complaint generally supersedes the original pleading, we may examine the prior complaint where the amended complaint attempts to avoid bad facts or law by simply omitting them. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945-946.) In Aden’s verified complaint, he alleged that the final administrative order adjudicated the easement and approved the tentative parcel maps, allowing for the development of a condominium subdivision. In his amended pleading, he eliminated the reference to the tentative tract map and tentative parcel map and specifically stated that he was not seeking to set aside the City’s approval of, nor did he want to attack, the tentative parcel map or tentative tract map. He again cites section 66474, subdivision (g); however, he claims that he is not alleging any express violation on the City’s part.
The City argues that Aden’s changes in his pleadings amount to nothing more than a change to form. We agree. Aden’s changes do not alter the substantive purpose of his pleadings, which amounts to a challenge to the City’s decision to approve the development plan for defendants’ subdivision that destroyed Aden’s claimed easement. (§§ 66426 [defining when parcel and tract maps are required with respect to subdivisions], 66474 [tentative tract map needs development plan or findings during plan review].)
Considering both sections 66509 and 66499.37, we find that the statute of limitations set out in section 66499.37 controls. (Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 226, fn. 18 [“A specific statute relating to a particular subject will govern over a more general statute even though the latter, standing alone, is sufficiently comprehensive to encompass the subject to which the more specific statute relates”].) Aden’s reliance on Legacy Group v. City of Wasco (2003) 106 Cal.App.4th 1305 (Legacy Group) is misplaced. The main issue in Legacy Group was the application of section 66499.37 to a development agreement, not to a development plan.
“Legacy Group required the appeals court to address, as a matter of first impression, whether or not a claim for breach of contract is subject to section 66499.37. That breach of contract claim was based on an alleged breach of a development agreement, and the court held that the statute of limitations normally applicable to contract claims would apply, and the contract claim would not be subject to section 66499.37 ‘unless the breach of contract claim overlaps with a claim arising under the [Subdivision Map Act].’ [Citation.]
“The court in Legacy Group focused upon the gravamen of the claim and whether it concerned acts that could have been challenged as a violation of the [Subdivision Map Act]. [Citation.] It compared the ‘decision concerning only the interpretation of a clause in a development agreement,’ such as gave rise to the action before it, to a more fundamental one that was actually a decision to adopt a development agreement. It then found the subject contract interpretation question, based on a development agreement, to be a limited one that did not qualify as ‘concerning a subdivision’ for purposes of section 66499.37. [Citation.] The court based this conclusion upon two factors: (1) the development agreement statutory scheme (§ 65864 et seq.) was separate from the [Subdivision Map Act] statutory scheme (§ 66410 et seq.), and (2) a separate statute of limitations concerning certain types of controversies involving development agreements would potentially apply (§ 65009, subd. (c)(1)), and therefore it would be redundant to invoke the [Subdivision Map Act’s] statute of limitations instead. [Citation.] Accordingly, to the extent the action challenged the decision to adopt, amend or modify that development agreement, it was not found to be an action involving a controversy over or arising out of the [Subdivision Map Act]. [Citation.]
“However, the court in Legacy Group distinguished between the breach of contract claim (development agreement) that was separate from the [Subdivision Map Act] allegations, and another portion of the plaintiff’s action that was found to be subject to and barred by the [Subdivision Map Act] statute of limitations. Thus, to the extent the plaintiff was challenging the City’s refusal to approve the final maps for its projects, that claim ‘directly concerns a matter addressed by the [Subdivision Map Act],’ and this challenge to the final map approval was held to be time-barred. [Citations.] The court explained: ‘When a breach of contract claim overlaps with or concerns acts by the city council that could have been challenged under the [Subdivision Map Act], then the shorter statute of limitations set forth in section 66499.37 will apply. Accordingly, Developers’ attack on the failure to approve maps, even though pled as a breach of contract, should have been brought within the 90-day period of limitation.’ [Citation.]” (Anthony v. Snyder (2004) 116 Cal.App.4th 643, 655-656.)
Here, unlike in Legacy Group, the City did not approve a development agreement or any other item mentioned in section 65009, subdivision (c). Aden did not allege a breach of contract, nor did he appeal from a decision to adopt, modify, or set aside a development agreement. Instead, the challenged action was the approval of the maps themselves which Aden argued destroyed his claimed easement. Even if we were to assume that Aden’s challenge involves both the Planning and Zone Law and the Subdivision Map Act, we would still find that section 66499.37 controls. (Anthony v. Snyder, supra, 116 Cal.App.4th at p. 656; Legacy Group, supra, 106 Cal.App.4th at p. 1312 [§ 66499.37 applies if a general claim of breach of contract overlaps a claim under the Subdivision Map Act].)
IV. COMPLIANCE WITH THE STATUTE OF LIMITATIONS
Regardless of which applicable statute of limitation controls, Aden claims that he timely filed and served his complaint and petition. According to Aden, section 66499.37 requires only that the petition be served within the required time period. Thus, by serving it on the City within the statutory time period, Aden argues that he complied with the statute and that the trial court erred in finding that his failure to also serve real parties in interest within the statutory period warranted dismissal.
As real parties in interest correctly point out, when we interpret a statute, “[o]ur primary goal is to implement the legislative purpose, and, to do so, we may refuse to enforce a literal interpretation of the enactment if that interpretation produces an absurd result at odds with the legislative goal.” (Honig, supra, 127 Cal.App.4th at p. 527; Hunt, supra, 225 Cal.App.3d at p. 443 [“It is a cardinal rule of statutory construction that ‘[i]n attempting to ascertain legislative intent . . . we presume that the Legislature did not intent absurd results’”].)
Pursuant to section 66499.37, in order to comply with the statute of limitations, a plaintiff must file and serve its complaint within 90 days of the challenged action. (§ 66499.37 [the action “shall not be maintained by any person unless such action or proceeding is commenced and service of summons effected within 90 days after the date of such decision” (italics added)].) In contrast, section 65009 mandates that a plaintiff commence its action and serve the legislative body within 90 days after the challenged action. (§ 65009, subd. (c).) Although Aden argues that the service requirements in sections 66499.37 and 65009 are the same, we find that they are not. The clear words in section 65009 confine the service to the legislative body. (§ 65009, subd. (c).) Such is not the case in section 66499.37. Instead, section 66499.37 broadly states that the action or proceeding must be “commenced and service of summons effected within 90 days after the date of” the challenged action. (Italics added.)
We reject Aden’s claim that service upon the legislative body within 90 days is sufficient to satisfy section 66499.37. Unlike section 65009, which specifically identifies the necessity of serving the legislative body within 90 days, there is no such specificity in section 66499.37. As the City notes, Aden’s suggested interpretation of section 66499.37 requires us to “read into the statute the words: ‘the service requirement contained in this statute of limitations does not apply to all parties, just to the first party served.’” However, we are not able to find, nor has Aden provided us, any support for such interpretation.
Moreover, Aden’s interpretation of section 66499.37 would produce an absurd result and contradict the intent and purpose of section 66499.37. As real parties in interest observe, “allowing Aden to forego service on . . . real parties in interest, within the 90-day limit in [s]ection 66499.37 would contravene the Legislature’s policy judgment that ‘litigation involving the Subdivision Map Act must be resolved as quickly as possible consistent with due process.’ [Citation.] This policy is necessary ‘because delay in the resolution of these disputes is ultimately reflected in increased development and housing costs.’ [Citation.]”
For the above reasons, we conclude that the trial court properly applied section 66499.37 when it found that Aden failed to timely serve real parties in interest.
V. DISMISSAL OF THE CITY
Aden contends that his failure to join real parties in interest was not a defect requiring dismissal under Code of Civil Procedure section 389. The City agrees that the absence of indispensable parties is not a jurisdictional defect, but rather allows the trial court, in its discretion, to dismiss the case.
An absent party must be joined, if possible, “if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” (Code Civ. Proc., § 389, subd. (a).) A party who should be joined under this provision is usually called a “necessary” party. (Deltakeeper v. Oakdale Irrigation Dist. (2001) 94 Cal.App.4th 1092, 1100.)
If an absent party is necessary but cannot be joined, the trial court must “determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice . . . . The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.” (Code Civ. Proc., § 389, subd. (b).) A party whose absence may require dismissal under this provision is usually called an “indispensable” party. (Ibid.; Deltakeeper v. Oakdale Irrigation Dist., supra, 94 Cal.App.4th at p. 1105.)
Aden does not argue that the real parties in interest were not indispensable parties. Instead, he argues that “the [trial court] should have ordered [him] to complete the service on any parties claimed by the City to be indispensable, and then should have heard and decided the merits of the [p]etition.” In response, the City argues that the problem is not the failure to join indispensable parties. Rather, the City claims that the indispensable parties could not be joined. We agree. Due to Aden’s failure to timely serve real parties in interest, they had an absolute defense to the action and could not be joined in the litigation. The trial court could not have ordered service upon them, and they could not have participated in the litigation. Without the real parties in interest, the trial court could not have afforded Aden any relief. Under these circumstances, the trial court correctly dismissed the action against the City.
As the City notes, the claimed easement is a private matter that concerns Aden and real parties in interest. While a judgment against the City would undo its approval of the plans for the subdivision, it would not grant Aden any access or prescriptive rights. Moreover, a judgment against the City would have prejudiced real parties in interest because the trial court would have been adjudicating their rights to the Servient Property without their presence. (Sierra Club, Inc. v. Cal. Coastal Com. (1979) 95 Cal.App.3d 495, 501 [if relief sought was to set aside Coastal Commission’s decision to grant developer a permit, then relief would “[o]bviously . . . directly affect, and undoubtedly injure, [developer]”].)
Nonetheless, Aden argues that the trial court should not have dismissed his action against the City with prejudice. Code of Civil Procedure section 389, subdivision (b), allows for the dismissal of a case without prejudice in the absence of indispensable parties. However, a dismissal without prejudice assumes that the defect is not a fatal one. In this case, as we noted above, the failure to join real parties in interest was fatal. Where a defect may not be cured, the trial court does not abuse its discretion in dismissing the action with prejudice. (Torres v. Yorba Linda (1993) 13 Cal.App.4th 1035, 1041.) Here, there was no way to cure the defect in failing to serve timely the real parties in interest under section 66499.37.
VI. CLAIM FOR INVERSE CONDEMNATION
Aden argues that “if the decision sustaining the demurrer to the [p]etition for [w]rit of [m]andate is reversed, the decision sustaining the demurrer to the cause of action for inverse condemnation, must be reversed as well.” Because Aden’s petition for writ of mandamus failed, so too must his claim for inverse condemnation. (Williamson Planning Comm’n v. Hamilton Bank (1985) 473 U.S. 172, 186.)
Additionally, in sustaining the demurrer to Aden’s claim for inverse condemnation, the trial court stated: “The City’s approval of the Centex development is neither the City’s precondemnation activity nor the City’s adoption of an excessive or unreasonable land use regulation. That the City, in considering Centex development, failed to acknowledge Aden’s claimed easement determining it was a matter for the courts is not the type of activity contemplated as compensable under the regulatory taking prong of inverse condemnation.” The court further stated, “With respect to physical taking, obviously that is a direct governmental appropriation or physical invasion of private property. . . . [¶] . . . [¶] [T]he fact that Ontario failed to recognize Aden’s claimed easement, deferring the claim to the courts, did not constitute a physical taking of Mr. Aden’s property.”
As the City points out, the trial court’s decision sustaining the demurrer to Aden’s claim for inverse condemnation was not dependent only upon its decision sustaining the demurrer to Aden’s petition for a writ of mandamus. Alternatively, the trial court ruled that Aden had not alleged a physical or regulatory taking. Because Aden has not challenged that ruling, he has waived the issue on appeal. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245, fn. 14.)
VII. DISPOSITION
The trial court’s order sustaining defendants’ demurrer without leave to amend as to Aden’s claim for inverse condemnation and his petition for writ of mandamus is affirmed. The judgment in favor of the City is affirmed. The City is awarded its costs on appeal.
We concur: RICHLI, J., GAUT, J.