Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Napa County Super Ct. No. 26-37758
McGuiness, P.J.
Isiah Lewis appeals from the trial court’s denial of his petition for a writ of mandate in which he sought an order directing the Napa County Board of Supervisors (the Board) to accept his appeal for filing. He contends the Board, which refused to file his appeal on the ground that it was incomplete, should be ordered to file the appeal because: (1) he substantially complied with the Napa County Code sections relating to the filing of appeals; (2) the Board is equitably estopped from refusing to file the appeal; and (3) “equity requires that [he] be relieved from forfeiture of his business,” which would result if his appeal is not accepted for filing. We disagree that Lewis substantially complied with the filing requirements but conclude that under the circumstances disclosed by this record, the county should be estopped from enforcing its requirement that a title insurance company report be submitted at the same time as the other required appeal papers. Accordingly, we shall reverse the judgment and direct the issuance of a writ of mandate directing the Board to accept Lewis’s appeal.
Factual and Procedural Background
The facts set forth in this section, which are taken from the petition for a writ of mandate and exhibits Lewis filed with the trial court, are not in dispute.
Lewis, the owner of Vallejo Pull-A-Part, an automobile dismantling company located in Napa County, had a use permit that allowed him to operate his business. On December 6, 2006, the Napa County Conservation, Development and Planning Commission (Planning Commission) held a hearing to consider whether to revoke the permit on the ground that Lewis was in violation of various regulations, including regulations relating to hazardous materials. At the hearing, the Planning Commission found Lewis had demonstrated “sufficient progress towards compliance” and imposed certain conditions of approval (COAs) on the continued validity of his permit, including a requirement that Lewis retain a compliance monitoring consultant. Lewis hired a consultant and spent $221,989 in an effort to meet the COAs.
On April 4, 2007, the Planning Commission held a further hearing and revoked Lewis’s permit for failure to meet all of the COAs. Lewis retained counsel to assist him in appealing the Planning Commission’s decision to the Board. Lewis’s attorneys obtained an appeal packet, which contained an appeal form, a completeness checklist, a fee schedule, general information regarding appeal processing, a document entitled “adjoining property owner’s list requirements,” and copies of Napa County Code sections relating to the filing of appeals. The completeness checklist and one of the Napa County Code sections provided that an appeal must include a title insurance company report, prepared within the preceding six months, which certifies, by name, address and assessor’s parcel number, all property owners within 300 feet of the property that is the subject of the appeal. The document entitled “adjoining property owner’s list requirements” repeated this requirement and listed instructions for title companies to follow in preparing the title insurance company report. The appeal form stated: “The following information, in addition to the information required by this form also needs to be provided as attachments hereto pursuant to County Code Section 2.88.050 (F-I): Title Insurance Report, Assessor’s Map Book Pages, and Appeals Fee.”
On April 12, 2007, a paralegal from Lewis’s attorney’s office called the clerk of the Board to find out what the fee was for filing the appeal. “The woman who picked up the main information line” transferred the assistant’s call to the Planning Commission. A woman at the Planning Commission then transferred the call back to the clerk of the Board, who informed the paralegal that the filing fee was $460.80. This figure was different from the $406.80 figure that was listed in the appeal packet as the fee for filing an appeal.
The following day, Lewis’s attorney called the clerk of the Board to confirm that the filing fee was $460.80, not $406.80, and to ask whether any additional fees were required, including labor costs, and fees for mailing notices of the hearing on the appeal to nearby property owners. The clerk of the Board transferred the attorney’s call to the Planning Commission, which then transferred the call to the Planning Department. A woman from the Planning Department told the attorney that “there were no additional expenses because they already have the addresses of all persons owning property within 300 feet of [Lewis’s] property and they do not charge for mailing notices.” The woman explained that “they already had the list [of addresses] because it was used [to provide notice of] the prior Public Hearing [relating to Lewis’s permit] that had taken place on April 4, 2007.” The attorney asked whether this “meant that no Title Insurance Company Report was needed, and [the woman] said yes, and she volunteered also that no Assessor’s Map was needed.” The woman was “rushing on the phone,” and the attorney “never stopped the flow of information to get her name.”
Relying on the information received from the Planning Department employee, the attorney prepared Lewis’s appeal without a title insurance company report or assessor’s map. The attorney prepared a blank check because of the uncertainty regarding whether the filing fee was $460.80 or $406.80. On April 18, 2007, the last date to timely file the appeal, a messenger for the attorney attempted to file Lewis’s appeal with the Board. At about 3 p.m. that day, the messenger informed the attorney that the clerk of the Board was refusing to accept the appeal for filing because there was no title insurance company report or assessor’s map. The attorney spoke to the clerk, who confirmed she needed the two documents before she could file the appeal. When the attorney explained that he did not submit the documents because someone at the Planning Department had told him the documents were not necessary, the clerk responded that the “Planning Department does not know ‘our’ rules,” and that the attorney should have called the Board. The attorney explained that he called the Board, which referred him to the Planning Commission, which referred him to the Planning Department. The clerk responded “there was nothing that she could do” because “she could not waive that requirement.” The attorney submitted an assessor’s map by the close of business that day, but was unable to obtain a title insurance company report by that time. The clerk stamped Lewis’s appeal documents as “received,” but not filed.
The actual filing fee came to $638.80. The check was ultimately returned to Lewis because the clerk of the Board did not accept his appeal for filing.
Lewis filed a petition for a writ of mandate with the trial court, requesting an order directing the clerk of the Board to accept his appeal for filing. The trial court denied the petition, ruling Lewis had not substantially complied with the requirements for filing an appeal and that his attorney’s reliance on a source other than the Board was not reasonable. Lewis filed a petition for a writ of mandate with this court, which this court summarily denied. Lewis now appeals from the trial court’s denial of the petition for a writ of mandate.
Discussion
Standard of Review
Code of Civil Procedure section 1085, providing for writs of mandate, permits challenges to ministerial acts by local officials. To obtain such a writ, the petitioner must show: (1) a clear, present, usually ministerial duty on the part of the respondent; and (2) a correlative clear, present, and beneficial right in the petitioner to the performance of that duty. (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540, superseded by statute on other grounds as recognized in Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1077; County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 972.) A ministerial duty is an act that a public officer is obligated to perform in a prescribed manner required by law when a given state of facts exists. (Transdyn/Cresci JV v. City and County of San Francisco (1999) 72 Cal.App.4th 746, 752.)
On appeal following a trial court’s decision on a petition for a writ of mandate, the reviewing court “ ‘need only review the record to determine whether the trial court’s findings are supported by substantial evidence.’ ” (Lake v. Reed (1997) 16 Cal.4th 448, 457, citing Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10.) However, where, as here, the facts are undisputed and the case involves questions of law, we exercise our independent judgment and review the matter de novo. (International Federation of Professional & Technical Engineers v. City and County of San Francisco (1999) 76 Cal.App.4th 213, 224; see Corrigan v. Zolin (1996) 47 Cal.App.4th 230, 234.)
Lewis did not substantially comply with the rules relating to the filing of appeals.
Napa County Code section 2.88.040, subsection (A), provides that an appeal must be filed within ten business days of the decision that is being challenged. Section 2.88.050 provides that all appeals “shall include . . . the following, which must be received by the clerk within the [ten day] time prescribed . . . . [¶] . . . [¶] F. A title insurance company report issued no earlier than six months prior to the date of the decision being appealed that certifies, by name, address and assessor’s parcel number, the owners of all real property located within three hundred feet of any real property which is the subject of the appeal . . . .” (Italics added.) The parties agree that the purpose of this requirement is to allow the clerk to send notices of the hearing on the appeal to all nearby property owners who may be affected by the appeal. (See § 2.88.080 [once the clerk receives an appeal that complies with §§ 2.88.040 and 2.88.050, he or she is required to schedule a Board hearing and provide notice of the hearing to interested parties].)
All Code references are to the Napa County Code unless otherwise stated.
Lewis contends the clerk of the Board had the duty to accept his appeal for filing because he substantially complied with the rules relating to the filing of appeals. He acknowledges he did not submit a title insurance company report but asserts the report was unnecessary because “the County” already had the names and addresses of all of his neighbors who were entitled to receive notice of the hearing. Preliminary, we note that Lewis has not shown that the names and addresses the Planning Department had were the same as those the clerk of the Board needed in order to provide notice to all nearby property owners. Even assuming the information was the same, however, we conclude that Lewis’s argument fails because he asserts only that “the County,” i.e., the Planning Department, had the property owners’ names and addresses; he does not assert, and there is nothing in the record that shows, that the clerk of the Board had that information. Because it is the clerk of the Board who is required to schedule a hearing and provide notice of the hearing to nearby property owners, (§ 2.88.080, subds. (A), (B)), the fact that another county agency had their names and addresses did not relieve Lewis of the obligation to submit a title insurance company report as part of his appeal.
We note that requiring an appellant to file a title insurance company report—as opposed to allowing the appellant to (1) submit his or her own list of nearby property owners or (2) simply refer the clerk of the Board to the Planning Department or another county agency for that information—serves two legitimate purposes. First, it provides the clerk of the Board with current and accurate information from a title insurance company, a neutral third party that has no interest in the outcome of the appeal. Second, it allows the clerk to timely and efficiently carry out his or her duty to provide notice without having to seek this information from other county agencies such as the Planning Department.
The two cases on which Lewis relies do not support his claim that he substantially complied with the filing requirements. In Committee for Sewer Referendum v. Humboldt Bay Wastewater Authority (1978) 77 Cal.App.3d 117, 121-122, disapproved of on another ground by Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 227, footnote 10, a citizens’ committee presented its referendum petition on time but lodged it with the incorrect office. Noting the judicial policy of liberally construing referendum statutes, the court held the committee had substantially complied with the time and place requirements of filing its petition because none of the county officials—even the officials of the agency where the petition should have been filed—was aware of the proper location for filing, and “[g]iven the interlocking and cross-referenced statutory provisions . . ., no citizens group like the Committee could reasonably be expected to come to the correct conclusion as to” the filing location. (Id. at pp. 122, 123.)
No comparable rule of liberal construction applies in this case. Moreover, we do not have a situation in which no one was aware of the correct rules. Although the woman who answered the telephone at the Planning Department provided Lewis’s attorney with incorrect information, the appeal packet, which the attorney acknowledges he received, explicitly stated in four different places that a title insurance company report was required—on the completeness checklist, the appeal form, the document entitled “adjoining property owner’s list requirements,” and Napa County Code section 2.88.050, subsection (F).
Peters v. City & County of San Francisco (1953) 41 Cal.2d 419 (Peters), is also distinguishable. There, the plaintiff was required to submit the signed original of her personal injury claim to the clerk of the board of supervisors. (Id. at p. 426.) Instead, she submitted the original to the controller’s office. (Ibid.) Noting that the purpose of the requirement is to notify the city of a pending claim in a timely manner, Peters held there was substantial compliance because the plaintiff also submitted a carbon copy of her claim to the clerk of the board of supervisors, notified the clerk that the original had been submitted to the controller’s office, and both the original and carbon copy reached the city attorney’s office within the statutory deadline. (Id. at pp. 426-427.) In contrast, here, Lewis did not submit a title insurance company report to the clerk of the Board, and the clerk did not otherwise receive the information she needed to carry out the purpose of the requirement, i.e., to provide prompt notice of the hearing on appeal to all nearby property owners. The doctrine of substantial compliance does not apply in this case.
We also reject Lewis’s contention that he is entitled to relief under Civil Code section 3275, which provides: “Whenever, by the terms of an obligation, a party thereto incurs a forfeiture . . . by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, willful, or fraudulent breach of duty.” This statute “is expressly applicable only as between parties to a contract.” (Moeller v. Lien (1994) 25 Cal.App.4th 822, 834, italics added.)
The clerk of the Board is equitably estopped from refusing to file the appeal.
“Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (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 had 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. [Citations.] The existence of an estoppel is generally a question of fact for the trial court whose determination is conclusive on appeal unless the opposite conclusion is the only one that can be reasonably drawn from the evidence. [Citation.] When the evidence is not in conflict and is susceptible of only one reasonable inference, the existence of an estoppel is a question of law. [Citation.] The doctrine of equitable estoppel may be applied against the government where justice and right require it. [Citation.]” (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305-306 (Driscoll).)
Lewis contends the county is equitably estopped from refusing to file his appeal because its employee led him to believe he did not have to submit a title insurance company report. Lewis acknowledges that it was not the clerk of the Board who told his attorney that he need not file a title insurance report, but asserts that the county nonetheless should be estopped because the misinformation was provided by an employee to whom he was indirectly referred for information by the clerk of the Board. The clerk directed the attorney to the Planning Commission, and the Planning Commission referred the attorney to the Planning Department, which provided inaccurate information. The information the attorney was seeking related to the amount of the filing fee and the misinformation he received related to his inquiry. The attorney inquired whether additional fees were required to cover the cost of mailing notice to neighbors. The Planning Department employee responded “that there were no additional expenses because they already have the addresses of all persons owning property within 300 feet of the subject property and they do not charge for mailing notices” and, in response to a follow-up question, “that no Title Insurance Company Report was needed.” Although the attorney was unable to provide the name of the employee who gave him this incorrect information, the declarations attesting to these facts are undisputed.
Although Lewis’s attorney admittedly was aware of the requirement that the appeal papers include a title insurance company report, it was not unreasonable for him to assume that the employee was correctly advising him that this rule was not enforced because the county already had the information that would be contained in a title report. The misinformation was given to him by an agent of the county acting within the scope of her authority, to whom he had been directed for this information by the clerk of the Board and the Planning Commission. Respondent cites no evidence suggesting the attorney was alerted to the fact that the information given to him was erroneous.
In determining whether an estoppel should be applied against a government agency, our Supreme Court has prescribed a balancing approach. (Lentz v. McMahon (1989) 49 Cal.3d 393, 400.) “ ‘The government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite to such an estoppel against a private party are present and, in the considered view of a court of equity, the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel.’ [Citation.]” (Ibid., quoting City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 496-497.)
A balancing of these considerations in the present case supports the conclusion that the county should be precluded from rejecting Lewis’s appeal because a title report was not included with his otherwise timely appeal papers. The severity of the prejudice to Lewis is significant; at stake is his right to continue operating his business and to protect the substantial investment he has made to comply with the conditions of his use permit. The compelling nature of this interest is augmented by the strong public policy favoring the resolution of appeals on the merits. (Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc.(1998) 64 Cal.App.4th 955, 960; Holden v. California Emp. etc.Com. (1950) 101 Cal.App.2d 427, 430; cf. Bodin v. Webb (1936) 17 Cal.App.2d 422, 425.) On the other hand, contrary to respondent’s argument, an estoppel here will not undermine an important public policy of the county. Lewis does not suggest that the county should be precluded from requiring him to provide a title insurance company report, but simply that, under the present circumstances, it should be precluded from rejecting his appeal because the report was not timely submitted. An estoppel against a public agency’s assertion of a purely procedural requirement—as distinguished from compliance with substantive preconditions—will not normally undermine the agency’s interest in orderly administration. (Lentz v. McMahon, supra, 49 Cal.3d at p. 401.) Estoppel is appropriate when “a government agent has negligently or intentionally caused a claimant to fail to comply with a procedural precondition . . . .” (Id. at pp. 401-402; see Canfield v. Prod. (1977) 67 Cal.App.3d 722, 732-733.)
Although Lentz v. McMahon and Canfield v. Prod. both arose in the public assistance context, public agencies have been estopped from strictly applying limitation periods in numerous other contexts. “It is settled that the failure to file the required claim, in the proper circumstances, may be excused and the governmental agency estopped from urging strict compliance with the statutory provisions. In Farrell v. County of Placer [(1944)] 23 Cal.2d 624, 630-631, [the Supreme Court] reversed a prior line of cases which had held that regardless of the governmental agency’s actions, compliance with the appropriate claim statute was mandatory to a claimant’s cause of action. Basing its decision on prior cases which had allowed claimants to estop governmental agencies from asserting the statute of limitations, the court reasoned that, since the time element with respect to the filing of the claim form is essentially procedural in nature and analogous to a statute of limitations, a claimant’s failure to comply could, in the proper circumstances, be excused by estoppel. [¶] The rule of the Farrell case has been subsequently applied to allow estoppel in factual situations where claimants have been misled by governmental agents with respect to the procedural and time requirements of the claim statute.” (Fredrichsen v. City of Lakewood (1971) 6 Cal.3d 353, 357.)
This reasoning is fully applicable here. Although undoubtedly done innocently, a county employee misled Lewis’s attorney, causing the attorney to omit a title report with his otherwise timely appeal papers. Slightly belated submission of the title report under these circumstances will not nullify the county’s policy of promptly providing notice of the appeal to nearby property owners, but rejection of Lewis’s appeal will seriously prejudice Lewis’s fundamental right to obtain review of the termination of his use permit, and his ability to carry on his business. Under these circumstances, “justice and right require” that the Board accept Lewis’s appeal, and that it be estopped from enforcing the requirement that the title report accompany the other appeal papers. (City of Los Angeles v. Cohn (1894) 101 Cal. 373, 377; Lentz v. McMahon, supra, 49 Cal.3d at p. 399.)
Disposition
The judgment is reversed, and the matter is remanded with instructions to issue a writ of mandate directing the Napa County Board of Supervisors to accept for filing Lewis’s appeal from the disputed order of the Planning Commission. Lewis shall recover his costs on appeal.
We concur: Pollak, J. Siggins, J.