Opinion
F083372
02-28-2023
BAHADAR S. JOHAL, Plaintiff and Appellant, v. CITY OF FRESNO, Defendant and Respondent; SETHI MANAGEMENT INC., Real Party in Interest and Respondent.
Quall Cardot, John M. Cardot and Matthew R. Dardenne for Plaintiff and Appellant. Aleshire &Wynder, Anthony R. Taylor and Michael C. Huston; Douglas T. Sloan, City Attorney, for Defendant and Respondent. McCormick, Barstow, Sheppard, Wayte &Carruth, Jeffrey M. Reid and Todd W. Baxter for Real Party in Interest and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 21CECG00487. Gabriel L. Brickey, Judge.
Quall Cardot, John M. Cardot and Matthew R. Dardenne for Plaintiff and Appellant.
Aleshire &Wynder, Anthony R. Taylor and Michael C. Huston; Douglas T. Sloan, City Attorney, for Defendant and Respondent.
McCormick, Barstow, Sheppard, Wayte &Carruth, Jeffrey M. Reid and Todd W. Baxter for Real Party in Interest and Respondent.
OPINION
THE COURT [*]
Appellant Bahadar S. Johal filed a petition for writ of administrative mandamus to challenge the City of Fresno's (City) approval of a conditional use permit authorizing a proposed service station and convenience store to sell alcohol. City demurred on the ground the writ petition was barred by the 90-day statute of limitations in Government Code section 65009, subdivision (c)(1)(E). The superior court agreed and sustained the demurrer without leave to amend.
Undesignated statutory references are to the Government Code.
On appeal, Johal argues that section 65009, subdivision (c)(1)(E) does not apply to a conditional use permit allowing a commercial establishment to sell alcohol. Alternatively, Johal argues he timely appealed the administrative decision to the city council in accordance with the requirements of City's municipal code, which pushed back when the statute of limitations began to run. Johal also argues the statute of limitations cannot be applied at the pleading stage because his allegations raised questions of fact about delayed discovery, equitable tolling, and equitable estoppel.
First, on the issue of statutory construction, we conclude section 65009, subdivision (c)(1)(E) contains the statute of limitations for litigation challenging the issuance of a conditional use permit for a commercial development and that statute of limitations applies to Johal's writ petition. Second, applying our interpretation of the municipal code to the facts alleged, there was no appeal of the administrative decision to the city council. Thus, the statute of limitations began to run when the planning commission approved the conditional use permit. Third, we conclude the facts alleged in the writ petition establish that there was no delayed discovery, equitable tolling or equitable estoppel affecting the statute of limitations.
We therefore affirm the judgment.
FACTS
Johal owns and operates a convenience store under the name Vallee Food Store located on North Maple Avenue in Fresno. Johal holds a Type 21 license from the Department of Alcoholic Beverage Control (ABC) that authorizes him to sell beer, wine, and distilled spirits for consumption off the premises.
Across the street from Vallee Food Store and approximately 325 feet away there is an 11.57-acre vacant parcel owned by real parties in interest James Braxton Bickley, George F. Bickley, Kathryn M. Bickley, Ruth G. Roess, V. Mary Anne Bryant, Derek J. Roess, Erica D. Roess, and Rebecca J. Van Wickle. Some of these individuals hold title as a trustee of a living or family trust. These owners, along with real party in interest and respondent Sethi Management Inc., a California corporation (Developer), propose using approximately 1.4 acres of the parcel for a service station with 16 fuel pump stations, convenience store and a quick serve restaurant (Project). The parcel lies within the boundaries of respondent City and is covered by the City's General Plan, the Woodward Community Plan, and the zoning ordinance contained in the Fresno Municipal Code (Municipal Code).
Application for Conditional Use Permit
On August 7, 2020, Developer, through an agent, filed Conditional Use Permit Application No. P20-02558 requesting authorization of an ABC Type 21 alcohol license for the Project.
On September 10, 2020, City's Planning and Development Department (planning department) issued a neighborhood notification to residences and businesses within 1,000 feet of the Project's location. The notice stated that the documents related to the Project were available for public view by e-mail and were not available at the city hall because of its COVID-19 related closure. It also stated any written protest of the potential approval must be submitted by September 21, 2020, and the failure to object and state the reasons why the proposal should not be approved "prior to the decision shall potentially bar any later court challenge to the project approval."
The issue of whether the warning about the failure to object substantially complies with the notice referred to in section 65009, subdivision (b)(2) is not reached in this opinion.
On September 29, 2020, the planning department director denied Developer's application for a conditional use permit, stating the proposal did not comply with the location restrictions in the Municipal Code because (1) the establishment would be located within 500 feet of an existing business authorized to sell alcohol for off-site consumption and (2) several findings required by the Municipal Code could not be made.
Appeal to Planning Commission
Developer filed a timely written appeal of the planning department director's denial of the application. On October 9, 2020, the planning department director issued a "NOTICE OF PUBLIC HEARING" to property owners within 1,000 feet of the Project site stating that the planning commission would consider Developer's application at an October 21, 2020 hearing. The notice stated that any interested person could appear at the public hearing and either present written testimony or speak in favor or against the Project. Johal alleges that due to COVID-19, interested persons were not allowed to appear at the public hearing and no interested person was allowed to speak against the Project as stated in the notice. However, the planning commission was provided with a staff report from the planning department dated October 21, 2020, that recommended denying Developer's appeal.
The planning commission partially heard the appeal at its regular meeting on October 21, 2020. The planning commission continued the matter to November 4, 2020, for the purpose of making an environmental determination for the Project. On November 3, 2020, Johal's legal counsel delivered a letter to the planning commission objecting to the issuance of the conditional use permit on the grounds it would violate the location restrictions in the Municipal Code and would contribute to oversaturation of businesses in the area selling alcohol for consumption off-site.
At the November 4, 2020 meeting, the planning commission voted four to two to grant Developer's appeal and overturn the denial of the application for a conditional use permit. The planning commission issued Resolution No. 13697, dated November 4, 2020, setting forth its decision to grant the appeal and approve the application.
On November 18, 2020, Johal timely petitioned City Council District 6 Councilmember Garry Bredefield, and then-City Mayor Lee Brand to appeal the planning commission's decision to approve Developer's conditional use permit. Johal alleges that on November 19, 2020, he filed a direct written appeal of the planning commission's decision with the planning department director pursuant to Municipal Code section 15-5017 and that City and the director took no action on his appeal.
Notice of Resolution No. 13697 was not included in the agenda or minutes for the December 2, 2020 hearing of the planning commission and was not publicly posted earlier than December 5, 2020. At the December 2, 2020 hearing, the planning commission adopted the minutes from the November 4, 2020 meeting. Although Resolution No. 13697 was dated November 4, 2020, public notice of the resolution was not provided until after December 5, 2020.
The Writ Petition
On February 18, 2021, Johal filed a petition for writ of administrative mandamus challenging the approval of Developer's conditional use permit. The writ petition was served on City on March 5, 2021. City's answer contained several affirmative defenses, including an allegation that Johal failed to commence and serve the petition within the statute of limitations contained in section 65009, subdivision (c)(1).
In May 2021, Johal filed a first amended petition for writ of administrative mandamus, which is the operative pleading for purposes of this appeal. City filed a demurrer asserting the 90-day statute of limitations in section 65009, subdivision (c)(1)(E) applied and expired on February 17, 2021, the day before Johal filed his writ petition. City supported the demurrer with a request for judicial notice of the date the writ petition was filed, the date it was served on City, and certain provisions of the Municipal Code. Developer filed a notice of joinder in City's demurrer.
On August 25, 2021, after Johal filed an opposition to the demurrer and City filed a reply, the superior court held a hearing. The court sustained the demurrer without leave to amend and this ruling was reflected in the minute order from the hearing. The appellate record does not contain a dismissal order or a judgment of dismissal. The notice of appeal filed by Johal referred to the August 25, 2021 order and marked the box for a judgment of dismissal after an order sustaining a demurrer.
We exercise our discretionary power and deem the August 25, 2021 order to incorporate a judgment of dismissal because all that is left to make the order appealable is the entry of a dismissal order or judgment. (Bullock v. City of Antioch (2022) 78 Cal.App.5th 407, 411, fn. 1.)
DISCUSSION
I. APPLICABLE LEGAL PRINCIPLES
A. Demurrers and Standard of Review
As this court explained in Cavey v. Tualla (2021) 69 Cal.App.5th 310 (Cavey), a statute of limitations affirmative defense may be raised in a general demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e) or raised as an objection to the complaint in a demurrer authorized by Code of Civil Procedure section 430.30, subdivision (a). (Cavey, supra, at pp. 325-326.) On appeal, the de novo standard of review applies to an order sustaining a demurrer on statute of limitations grounds. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) An appellate court will affirm an order sustaining the demurrer only if the untimeliness of the lawsuit clearly and affirmatively appears on the face of the complaint and matters judicially noticed. (Ibid.) Thus, allegations in the complaint or judicially noticed materials showing the claim might be barred are not enough. (Cavey, supra, at p. 326.)
In accordance with Code of Civil Procedure section 452, the allegations in a complaint must be given a liberal, but reasonable, construction. (See Cavey, supra, 69 Cal.App.5th at p. 326; Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826, 835 ["pleadings are to be liberally construed in favor of the pleader"].) When construing a complaint, courts must read it as a whole and its parts in their context. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) The demurrer is treated as admitting all material facts properly pleaded, but does not admit the truth of contentions, deductions or conclusions of law. (Ibid.; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 ["the facts alleged in the pleading are deemed to be true" for purposes of a demurrer].)
B. Statutory Construction
Several of Johal's contentions raise issues about the meaning of section 65009. These questions of statutory construction "are questions of law subject to de novo review on appeal." (In re Marriage of Knox (2022) 83 Cal.App.5th 15, 25.)
"The process of statutory construction begins with the words of the statute itself, giving them their usual and ordinary meaning. [Citation.] A court's inquiry into the usual and ordinary meaning of the words raises the threshold legal question of whether the words are ambiguous-that is, reasonably susceptible to more than one interpretation." (Cavey, supra, 69 Cal.App.5th at p. 336.)" 'If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning governs.'" (Even Zohar Construction &Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838.) Alternatively, if the statutory language is ambiguous, a court's primary goal is to adopt the interpretation that best effectuates the legislative intent or purpose. (Cavey, supra, at p. 337.) To identify a statute's purpose and the underlying legislative intent, courts may look to such aids as legislative history, the maxims of statutory construction, and the consequences of a particular interpretation, including its impact on public policy. (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.)
II. PROPER NOTICE AND THE ISSUE EXHAUSTION REQUIREMENT
Among other things, Johal contends that statute of limitations in section 65009, subdivision (c)(1)(E) does not apply to his writ petition. One of his arguments asserts that statute of limitations only applies to those actions taken by a public agency at a properly noticed public hearing and his petition raises questions of fact about whether City's hearings were properly noticed. Johal's contention is based on his interpretation of subdivision (b) of section 65009, which provides:
We note Code of Civil Procedure section 1094.6, subdivision (b) states that a petition for writ of mandate pursuant to Code of Civil Procedure section 1094.5 "shall be filed not later than the 90th day following the date on which the decision becomes final." This provision is less strict than section 65009, subdivision (c)(1) because it addresses only the filing of the writ petition, not its service.
"(1) In an action or proceeding to attack, review, set aside, void, or annul a finding, determination, or decision of a public agency made pursuant to this title at a properly noticed public hearing, the issues raised shall be limited to those raised in the public hearing or in written correspondence delivered to the public agency prior to, or at, the public hearing, except where the court finds either of the following: [¶] (A) The issue could not have been raised at the public hearing by persons exercising reasonable diligence. [¶] (B) The body conducting the public hearing prevented the issue from being raised at the public hearing.
"(2) If a public agency desires the provisions of this subdivision to apply to a matter, it shall include in any public notice issued pursuant to this title a notice substantially stating all of the following: 'If you challenge the (nature of the proposed action) in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the (public entity conducting the hearing) at, or prior to, the public hearing.'" (Italics added.)
Section 65009, subdivision (b)(1) sets forth an issue exhaustion requirement, much like the issue exhaustion requirement for lawsuits alleging a violation of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.). The CEQA requirement is contained in Public Resources Code section 21177, subdivision (a). (Los Angeles Dept. of Water &Power v. County of Inyo (2021) 67 Cal.App.5th 1018, 1032 ["CEQA explicitly addresses the exhaustion of administrative remedies, containing both an issue exhaustion requirement and a party exhaustion requirement."].) Our Supreme Court recently described section 65009, subdivision (b)(1) as an exhaustion requirement, stating:
"Some statutes expressly require the exhaustion of an extrajudicial procedure as a prerequisite to presenting a claim in court. (E.g., Gov. Code, § 65009, subd. (b)(1) [exhaustion requirement for challenges to zoning decisions]; Pub. Resources Code, § 21177, subd. (a) [exhaustion requirement under the California Environmental Quality Act]; Sts. &Hy. Code, § 5366 [exhaustion requirement under the Improvement Act of 1911]; cf. Lubbers, Fail to Comment at Your Own Risk: Does Issue Exhaustion Have a Place in Judicial Review of Rules? (2018) 70 Admin. L.Rev. 109, 114-118 (Lubbers) [listing federal statutes requiring exhaustion].)" (Hill RHF Housing Partners, L.P. v. City of Los Angeles (2021) 12 Cal.5th 458, 478.)
Based on the unambiguous wording of the statute, we conclude the application of the statute of limitations contained in subdivision (c) of section 65009 is not affected by the issue exhaustion requirement in subdivision (b) of section 65009 or the notice a public agency must give before invoking that exhaustion requirement. First, nothing in the text of section 65009 suggests the application of the 90-day statute of limitations is conditioned on a properly noticed public hearing. Second, subdivision (b)(2) of section 65009 states the notice described therein is mandatory for "the provisions of this subdivision to apply to a matter" (italics added), which plainly limits the notice requirement to the issue exhaustion provisions and precludes the notice requirement from being applied to other subdivisions in section 65009.
III. APPLICABLE STATUTE OF LIMITATIONS
Johal also contends section 65009, subdivision (c)(1)(E) does not apply to this lawsuit because his writ petition (1) does not involve a housing issue and (2) does not challenge a decision of the planning commission or zoning board. On the latter point, Johal asserts he is challenging a decision of the city council. Our analysis of these contentions begins with the wording of the statute.
A. Statutory Text
Section 65009, subdivision (c) provides in part:
"(1) 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: [¶] . . . [¶] (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." (Italics added.)
The Legislature's findings and declaration of purpose are set forth in subdivision (a) of section 65009:
"(1) The Legislature finds and declares that there currently is a housing crisis in California and it is essential to reduce delays and restraints upon expeditiously completing housing projects. [¶] (2) The Legislature further finds and declares that a legal action or proceeding challenging a decision of a city, county, or city and county has a chilling effect on the confidence with which property owners and local governments can proceed with projects. Legal actions or proceedings filed to attack, review, set aside, void, or annul a decision of a city, county, or city and county pursuant to this division, including, but not limited to, the implementation of general plan goals and policies that provide incentives for affordable housing, open-space and recreational opportunities, and other related public benefits, can prevent the completion of needed developments even though the projects have received required governmental approvals. [¶] (3) The purpose of this section is to provide certainty for property owners and local governments regarding decisions made pursuant to this division."
Under subdivision (e) of section 65009, after expiration of the filing and service limitations period, "all persons are barred from any further action or proceeding." "There are no exceptions." (Weiss v. City of Del Mar (2019) 39 Cal.App.5th 609, 619 (Weiss).)
The scope of the statute of limitations is partially defined by the two zoning- related statutes, sections 65901 and 65903, mentioned in the first prong of section 65009, subdivision (c)(1)(E). Subdivision (a) of section 65901 states in relevant part:
"The board of zoning adjustment or zoning administrator shall hear and decide applications for conditional uses or other permits when the zoning ordinance provides therefor and establishes criteria for determining those matters, and applications for variances from the terms of the zoning ordinance."
In comparison, section 65903 addresses appeals from a zoning board's decision by stating in part: "A board of appeals, if one has been created and established by local ordinance, shall hear and determine appeals from the decisions of the board of zoning adjustment or the zoning administrator, as the case may be."
Although section 65901 uses the terms "board of zoning adjustment" and "zoning administrator," applications for conditional use permits also may be decided by a planning commission. Section 65902 states:
"In the event that neither a board of zoning adjustment or the office of a zoning administrator has been created and established, the planning commission shall exercise all of the functions and duties of said board or said administrator."
B. Interpretation and Application of Text
First, we consider whether this writ proceeding is an attack on a matter listed in section 65901 and, therefore, is covered by section 65009, subdivision (c)(1)(E). Johal argues this proceeding is not covered because he is not challenging a decision of the planning commission or zoning board, but is challenging a decision of the city council, which is not subject to section 65009, subdivision (c)(1)(E).
We reject this argument because, based on our interpretation and application of the provisions of the Municipal Code set forth in part IV., post, of this opinion, we conclude Johal's petition is attacking a final decision of City's planning commission on an application for a conditional use permit. When sections 65901 and 65902 are read together, a planning commission's decision on an application for a conditional use permit is covered by section 65901 even though that section refers to a "zoning board." (Weiss, supra, 39 Cal.App.5th at p. 621 [planning commission can act as a zoning board for purposes of § 65901].) Because the planning commission's decision on an application for a conditional use permit is covered by section 65901, it qualifies as a "decision on [a] matter[] listed in Section[] 65901" for purposes of section 65009, subdivision (c)(1)(E).
Second, we consider Johal's arguments that the legislative findings in section 65009, subdivision (a) lead to the conclusion that the 90-day limitations period does not apply to commercial issues like the sale of alcohol. Johal refers to the legislative findings that "there currently is a housing crisis in California and it is essential to reduce delays and restraints upon expeditiously completing housing projects" (§ 65009, subd. (a)(1), italics added) and these references to housing limit the scope of the statute of limitations.
We reject this argument because it overemphasizes the findings and declarations in paragraphs (1) and (2) of subdivision (a) of section 65009 and gives no weight to the Legislature's explicit statement of the statute's purpose. Paragraph (3) of subdivision (a) of section 65009 states the purpose of section 65009 "is to provide certainty for property owners and local governments regarding decisions made pursuant to this division." This statement refers to "property owners" and does not distinguish owners of residential property from owners of commercial property. Therefore, to best effectuate this purpose we conclude section 65009, subdivision (c) applies to decisions on conditional use permits regardless of whether the project involves housing or a commercial enterprise. (See generally Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1114 [§ 65009 applied to city council's approval of conditional use permit]; Wagner v. City of South Pasadena (2000) 78 Cal.App.4th 943, 946, 947-948 [§ 65009 applied to city council's affirmance of planning commission decision to grant conditional use permit].)
IV. APPEAL OF THE PLANNING COMMISSION'S DECISION
Determining when the 90-day statute of limitations began to run requires the identification of when the administrative decision to approve the conditional use permit became final. The parties do not agree on that date because they disagree on whether the planning commission's decision was appealed. Johal contends he properly appealed the planning commission's decision to the city council and City, in violation of the Municipal Code, took no action on the appeal. In contrast, City contends there was no appeal because appeals can be initiated only by the mayor or the councilmember from the district where the project is located, not Johal himself. The parties' disagreement arises from different interpretations of the Municipal Code provisions governing appeals of a planning commission decision. Their competing interpretations of the Municipal Code present a question of law subject to de novo review. (Muskan Food &Fuel, Inc. v. City of Fresno (2021) 69 Cal.App.5th 372, 388 (Muskan).)
A. Provisions Governing Appeals
Chapter 15 of the Municipal Code contains the Citywide Development Code, which also is referred to as the "Development Code" or "Zoning Ordinance." (Muskan, supra, 69 Cal.App.5th at p. 384.) Part V of the Citywide Development Code consists of articles 49 through 63.
Article 50 "establishes procedures that are common to the application and processing of all permits and approvals provided for in this Code." (Mun. Code, § 155001.) Those provisions address the effective dates of decisions (Mun. Code, § 15-5012) and appeals (Mun. Code, § 15-5017). (Muskan, supra, 69 Cal.App.5th at p. 385.)
Article 53 governs conditional use permits and grants the planning department director the authority to "approve, conditionally approve, or deny applications for Conditional Use Permits based on consideration of the requirements of this article." (Mun. Code, § 15-5303.) Pursuant to Municipal Code section 15-5309, "Conditional Use Permit decisions are subject to the appeal provisions of Section 15-5017, Appeals."
The time to appeal a decision on a permit application is addressed in Municipal Code section 15-5012, which provides in part:
"A final decision on an application for any approval subject to appeal shall become effective after the expiration of the 15-day appeal period following the date of action on an application, unless an appeal is filed. Appeals shall be filed with the Director before the close of business on the 15th day. No building permit or permits shall be . . . issued until the 16th day following the date of the action. Should the permit not include a building permit, activities of said permit shall not commence until the 16th day.
"A. Planning Commission Decision. Unless the Planning Commission decision is appealed for hearing to the Council in accordance with Section 15-5017, Appeals, the decision of the Commission shall be final, subject to writ of administrative mandamus under 1094.6 of the Code of Civil Procedure[].
"B. Failure to Appeal Commission Decision. Failure by any interested person to petition a Councilmember or the Mayor for an appeal shall constitute a failure to exhaust administrative remedies."
There are two levels of appeal-the first is from the planning department director's decision to the planning commission and the second is from the planning commission to the city council. Municipal Code section 15-5017 provides in part:
"A. Applicability. Any action by the Director or Planning Commission in the administration or enforcement of the provisions of this Code may be appealed in accordance with this section.
"1. Appeals of Director Decisions. Decisions of the Director made pursuant to this Code may be appealed to the Planning Commission by filing a written appeal with the Director. Appeals may be filed by any person aggrieved by the decision. The appeal shall identify the decision being appealed and shall clearly and concisely state the reasons for the appeal. The appeal shall be signed by the person making the appeal and accompanied by the required fee.
"2. Appeals of Planning Commission Decisions. Decisions of the Planning Commission may be appealed to the City Council by the Councilmember of the district in which the project is located or by the Mayor, either on their own initiative or upon receiving a petition from any person. Appeals must be initiated by filing a letter with the Director. Such action shall require a statement of reasons for the appeal.
"3. CEQA Appeals....
"B. Time Limits. Unless otherwise specified in governing State or federal law, all appeals shall be filed with the Director in writing within 15 days of the date of the action, decision, CEQA determination, motion, or resolution from which the action is taken. [¶] . . . [¶]
"F. Effect of Council Decision. Unless otherwise provided in the City Charter or Fresno Municipal Code, the Council decision shall be final and effective and subject to a writ under Code of Civil Procedure Section 1094.5 or . . . Section 1085 immediately upon Council action." (Italics added.)
B. Interpretation of Appeal Provisions
Johal refers to Municipal Code section 15-5012-B and its statement that "[f]ailure by any interested person to petition a Councilmember or the Mayor for an appeal shall constitute a failure to exhaust administrative remedies." He contends "this provision not only allows but requires any 'interested person' to file an appeal." We disagree.
The persons authorized to appeal a planning commission decision are identified in Municipal Code section 15-5017-A(2). Such a decision "may be appealed to the City Council by the Councilmember of the district in which the project is located or by the
Mayor." In practical effect, this provision limits the appeals the city council must decide to matters either the mayor or the relevant councilmember think have enough merit to justify submitting an appeal and thereby adding it to the city council's workload. In contrast, such a limitation does not apply to the planning commission's workload. Under Municipal Code section 15-5017-A(1), an appeal of a decision by the planning department director to conditionally approve a conditional use permit "may be filed by any person aggrieved by the decision." (Mun. Code, § 15-5017-A(1).) Based on the different wording of the two provisions, we conclude only the mayor or councilmember from the district where the project is located are authorized by Municipal Code section 15-5017-A(2) to appeal a planning commission decision. The sentence in Municipal Code section 15-5017-A(2) stating that "[a]ppeals must be initiated by filing a letter with the Director" does not explicitly address who may initiate an appeal-a topic addressed in that provision's preceding sentence. Instead, the requirement for a letter specifies how the mayor or councilmember must initiate an appeal and the "reference to a letter eliminates the possibility of the mayor or council member making an oral appeal." (Muskan, supra, 69 Cal.App.5th at p. 388.) The wording of the sentences is not ambiguous and the sentence stating that appeals must be initiated by filing a letter with the planning department director does not expand who is authorized to appeal a planning commission decision.
Furthermore, Municipal Code section 15-5012-B's statement that a "[f]ailure by any interested person to petition a Councilmember or the Mayor for an appeal shall constitute a failure to exhaust administrative remedies" does not expand the sentence identifying who may initiate an appeal. Petitioning is a separate and distinct procedural step from appealing a planning commission decision and it is necessary for an interested party to petition a councilmember or the mayor to exhaust his or her administrative remedies. (Mun. Code, § 15-5012-B.) Johal conflates the concepts and treats his petition as if it were an appeal. Stated another way, an interested person is not automatically entitled to a city council hearing upon petitioning the mayor or councilmember for an appeal.
In Muskan, we interpreted the word "petition" to mean an oral or written request to the mayor or a councilmember. (Muskan, supra, 69 Cal.App.5th at p. 388.)
Here, neither the mayor nor the councilmember appealed the planning commission's decision to approve the conditional use permit. Therefore, the planning commission's decision became "effective after the expiration of the 15-day appeal period following the date of action on an application." (Mun. Code, § 15-5012.) The decision on Developer's application was made by the planning commission on Wednesday, November 4, 2020. Thus, the 15-day period expired on Thursday, November 19, 2020, and the decision became final, which started the 90-day statute of limitations. That 90-day period expired on Wednesday, February 17, 2021.
Johal's petition was filed on February 18, 2021, and served on City on March 5, 2021. As a result, neither the filing nor the service was within the 90-day period specified by section 65009, subdivision (c)(1)(E). Consequently, Johal's writ petition is barred by the statute of limitations unless he can establish the limitations period was extended by the delayed discovery of his cause of action, equitable tolling, or equitable estoppel.
V. DELAYED DISCOVERY AND EQUITABLE TOLLING OR ESTOPPEL
Statutes of limitations prescribe the length of time a plaintiff is given to bring suit or be barred. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) As a general rule, a limitations period "runs from the moment a claim accrues." (Ibid.; see Code Civ. Proc., § 312 [action must be "commenced within the periods prescribed in this title, after the cause of action shall have accrued"].) However, many statutes of limitations are subject to modifications and equitable exceptions that alter the initial accrual of a cause of action, the subsequent running of the limitations period, or both. (Aryeh, supra, 55 Cal.4th at p. 1192.) These exceptions and modifications include the discovery rule, equitable tolling, and equitable estoppel (ibid.), which are the theories raised by Johal. For purposes of this appeal, we assume without deciding that these exceptions or modifications apply to the 90-day period specified by section 65009, subdivision (c)(1)(E).
A. Delayed Discovery
The delayed discovery rule postpones the accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Fox v. Ethicon EndoSurgery, Inc. (2005) 35 Cal.4th 797, 807.) Accordingly, the statute of limitations applied to tort claims begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have uncovered a factual basis for the particular cause of action. (Id. at p. 803.)
Here, Johal contends he properly alleged facts showing delayed discovery because (1) he did not have actual or adequate notice of the November 4, 2020 decision until at least December 5, 2020, and (2) he had no notice of any decision on his appeal until at least that time. Johal contends he could not proceed with a writ petition until City took action on his appeal and, as pled, City took no action on the appeal whatsoever. Alternatively, Johal contends that even if he was aware of the November 4, 2020 decision, he "was not aware that the decision was final, as he had filed an appeal of the decision and under the Municipal Code his appeal stayed the decision, prevented it from becoming final, and [he] was awaiting the City to take action on the appeal as part of his administrative remedies."
Paragraph 26 of the amended writ petition alleged that "[f]ollowing the November 4, 2020 hearing, [o]n November 18, 2020, [Johal] timely petitioned City Council District 6 Councilmember Garry Bredefield, and [then-]City Mayor Lee Brand, in writing to appeal the Planning Commission decision to the City Council on [his] behalf pursuant to Municipal Code Sections 15-5012 and 15-5017." The next paragraph alleged that on November 19, 2020, Johal "timely filed a written appeal of the Planning Commission's grant of [Developer's] appeal with the [planning department] Director pursuant to Municipal Code Section 15-5017 (the 'Direct Appeal'). No action was taken by the City or the [planning department] Director on [the] Direct Appeal."
These allegations demonstrate that Johal was aware of the November 4, 2020 decision by the planning commission and that he exhausted his administrative remedies by timely petitioning the mayor and councilmember to appeal that decision to the city council. His allegations that he made a direct appeal of the decision, which stayed the decision and prevented it from becoming final are legal conclusions based on his erroneous interpretation of the Municipal Code. (See pt. IV.B., ante.) When reviewing a demurrer, a "pleader's contentions or conclusions of law are not controlling because appellate courts must independently decide questions of law without deference to the legal conclusions of either the pleader or the trial court." (Villery v. Department. of Corrections &Rehabilitation (2016) 246 Cal.App.4th 407, 413; accord, City of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865.) Similarly, his contention that City never took action on the appeal and failed to give the required notice cannot establish a delayed discovery because there was no appeal and no required notice. To summarize, Johal's theory of delayed discovery is based on his misreading the Municipal Code and that error of law is not a reasonable basis for his delay in recognizing the planning commission's decision on the conditional use permit had become final.
B. Equitable Estoppel
" 'The doctrine of equitable estoppel is founded on concepts of equity and fair dealing. It provides that a person may not deny the existence of a state of facts if he intentionally led another to believe a particular circumstance to be true and to rely upon such belief to his detriment. The elements of the doctrine are that (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. [Citation.]' [Citations.] [¶] Equitable estoppel 'will not apply against a governmental body except in unusual instances when necessary to avoid grave injustice and when the result will not defeat a strong public policy.'" (City of Goleta v. Superior Court (2006) 40 Cal.4th 270, 279.) Thus, "[w]here the defendant is a government entity, a fifth element requires that the injury to the plaintiff's personal interest if the government is not estopped outweighs the injury to the public interest if the government is estopped. [Citation.]" (Golden Day Schools, Inc. v. Department of Education (1999) 69 Cal.App.4th 681, 693.)
The doctrine has been applied to halt the running of a statute of limitations. "The doctrine of equitable estoppel is based on the theory that a party who by his declarations or conduct misleads another to his prejudice should be estopped from obtaining the benefits of his misconduct.... Under appropriate circumstances equitable estoppel will preclude a defendant from pleading the bar of the statute of limitations where the plaintiff was induced to refrain from bringing a timely action by the fraud, misrepresentation or deceptions of defendant." (Kleinecke v. Montecito Water Dist. (1983) 147 Cal.App.3d 240, 245, citations omitted.) We recognize that the application of equitable estoppel normally presents a question of fact. (Bertorelli v. City of Tulare (1986) 180 Cal.App.3d 432, 440.) However, where the complaint pleads undisputed facts establishing that equitable estoppel does not apply, the issue may be resolved on demurrer. (Cal. Cigarette Concessions, Inc. v. City of Los Angeles (1960) 53 Cal.2d 865, 868.)
Here, as with his delayed discovery theory, Johal cannot establish the elements of equitable estoppel because he cannot establish that he was ignorant of the true facts or that he relied on City's conduct to his injury-that is, filed his writ petition after February 17, 2021, because of City's conduct. He was aware of the planning commission's November 4, 2020 decision and timely petitioned the mayor and councilmember for an appeal on his behalf.
Furthermore, his allegations relating to what he calls his direct appeal do not involve ignorance of facts resulting from City's conduct. Instead, his error in believing he made a direct appeal is based on a misreading of the Municipal Code. Appellate courts have recognized that "[a]cts or conduct performed under a mutual mistake of law do not constitute grounds for estoppel. [Citation.] It is presumed the party claiming estoppel had an equal opportunity to discover the law." (Adams v. County of Sacramento (1991) 235 Cal.App.3d 872, 883-884.) If a mutual mistake of law cannot provide a basis for estoppel, it logically follows that Johal's own mistake of law cannot be a ground for equitably estopping City from raising the statute of limitations defense. Accordingly, we conclude the facts alleged by Johal are insufficient to show that equitable estoppel might apply. Furthermore, he has not shown he could amend to allege additional facts establishing equitable estoppel.
C. Equitable Tolling
The equitable tolling of statutes of limitations is a judicially created doctrine. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99 (McDonald).) "Equitable tolling and equitable estoppel are distinct doctrines." (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 383.)
The purpose of equitable tolling is to prevent unjust and technical forfeitures of the right to a decision on the merits when the purpose of the statute of limitations- timely notice to the defendant of the plaintiff's claims-has been satisfied. (McDonald, supra, 45 Cal.4th at p. 99.) In broad terms, equitable tolling applies when an aggrieved person has several legal remedies and, reasonably and in good faith, pursues one. (Id. at p. 100.) It may be applied where one action by the plaintiff stands to lessen the harm that is subject to a second potential action or where administrative remedies must be exhausted before a second action or remedy can proceed. (Ibid.) To obtain the benefit of equitable tolling, a plaintiff must establish three elements-timely notice of the claim to the defendant, a lack of prejudice to the defendant if equitable tolling is applied, and reasonable and good faith conduct on the part of the plaintiff. (Id. at p. 102.)
We conclude that Johal is unable to establish the elements of equitable tolling because his conduct-that is, his purported direct appeal and subsequent delay in filing and serving the writ petition-was not reasonable. As with our rejection of delayed discovery and equitable estoppel, this determination can be made as a matter of law because Johal's conduct was based on a misreading of the Municipal Code. Furthermore, the facts alleged show he exhausted his administrative remedies by petitioning for an appeal. Thus, there were no further administrative remedies to pursue in lieu of filing his petition for administrative mandamus. As a result, this is not a case where a party was actually pursuing one available avenue of relief in lieu of filing a petition for writ of mandamus.
DISPOSITION
The judgment is affirmed. City and Developer shall recover costs on appeal. --------- Notes: [*] Before Hill, P. J., Detjen, J. and Pena, J.