Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS109187. Joseph R. Kalin, Judge.
Law Offices of Thomas A. Nitti and Thomas A. Nitti for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Claudia McGee Henry, Assistant City Attorney, and Gerald M. Sato, Deputy City Attorney for Defendant and Respondent.
CHAVEZ J.
Los Altos Apartments, L.P. (Los Altos), appeals from a judgment of dismissal entered after the trial court sustained the demurrer of respondent City of Los Angeles (the City) to Los Altos’s third amended complaint (TAC) without leave to amend. We affirm.
CONTENTIONS
Los Altos contends that the trial court erred in sustaining the demurrer. Specifically, Los Altos argues: (1) the City’s claim of immunity must fail because liability is specifically provided for under Code of Civil Procedure section 1095 and Government Code section 815.2; (2) the immunities set forth in Government Code sections 818.8, 822.2, and 821.4 are not applicable; (3) a direct action for a constitutional tort is permitted under article I, section 7 of the California Constitution; and (4) there are no grounds to dismiss the action for failure to exhaust administrative remedies or failure to comply with government claim requirements.
All further statutory references are to the Government Code unless otherwise noted.
Los Altos further contends that it should be permitted to amend its TAC to state a claim under section 1983 of title 42 of the United States Code.
BACKGROUND FACTS
1. The property
Appellant is the owner of a multi-unit residential rental property located at 4121 Wilshire Boulevard, Los Angeles (the property). The property consists of 70 rental units. Neighborhood Effort, the general partner of Los Altos, is a non-profit developer of affordable housing and historic buildings. The property is a rehabilitation project of Neighborhood Effort, in concert with the City’s Housing Department. Neighborhood Effort successfully transformed the property from a vacant, blighted, graffiti-infested building into a healthy, mixed-income building serving the very low income population as well as the market population. The property underwent a complete historic renovation and was restored to its original beauty. The property is also a city, state, and national historic landmark.
After the renovation of the property was completed, a certificate of occupancy was issued by the City on March 24, 2004, for 70 units, including two basement apartments which had been legally reconfigured.
2. REAP
Residential property in the City can be included in a Rent Escrow Account Program (REAP), operated by the City’s Housing Department (LAHD), when the property has uncorrected violations of housing laws affecting the health or safety of its residents. (L.A. Mun. Code, § 162.00 et seq.) Tenants of a REAP property may pay rent directly to a REAP account instead of the owner until appropriate corrections are made. Additionally, the tenants in some instances may pay a reduced amount of rent.
The property at issue was placed into REAP on March 2, 2007, at which time the rent was reduced by 50 percent on each unit and the tenants were allowed to pay rent to an escrow account instead of paying the sums directly to Los Altos as their contracts required.
3. The City’s efforts to notify Los Altos of abatement proceedings
Prior to August 29, 2005, Los Altos’s official mailing address on file with the county assessor was 3345 Wilshire Boulevard, Suite 1203, Los Angeles, California 90010. On August 29, 2005, Los Altos submitted to the county the requisite change of address forms and thereby formally changed its mailing address to 15303 Ventura Boulevard, Suite 250, Sherman Oaks, California 91403. Since that date, the county assessor has used Los Altos’s correct, updated address.
On May 22, 2006, the City mailed a “Notice and Order of Abatement” (abatement notice) addressed to Los Altos at its Wilshire Boulevard address. The abatement notice listed numerous mandatory repairs to the building. The abatement notice was never received by Los Altos, and Los Altos saw a copy of this notice for the first time after the City placed the property into REAP.
On June 7, 2006, the City filed with the Los Angeles County Recorder a document entitled “Notice of Building(s), Structures, or Premises Classified Either Hazardous, Substandard or a Nuisance Property--Abatement Proceedings” (notice of substandard property). The document indicated that “[t]he owner of the property has been duly notified pursuant to the above code sections.” As set forth above, no such notification had ever been received by Los Altos. The notice of substandard property, which directed Los Altos to register with the City’s environmental health division within 10 days of recordation, was purportedly served by mail on Los Altos. However, the City again used the former address, without including a suite number, and the notice of substandard property was never received by Los Altos. Los Altos saw a copy of this notice for the first time after the property was placed into REAP.
On July 6, 2006, the City mailed a “Notice and Order to Comply, ” ordering Los Altos to “eliminate all of the described conditions and diligently pursue the work necessary to eliminate any violations of the LAMC and Health and Safety Code on or before 8/12/2006.” As with the other notices, this one was sent to Los Altos’s previous address and was not seen by Los Altos until after the City placed the property into REAP.
4. The initiation of REAP proceedings
The last inspection by the City was conducted on August 24, 2006. The City initially took the position that violations still existed on the property as of that date. However, Los Altos had corrected all violations raised by the City. Los Altos asked for reinspections and a reevaluation, but the City declined to reinspect the property and instead initiated REAP proceedings in February 2007. The City later conceded that all violations had been corrected as of August 24, 2006.
On or about February 15, 2007, the City informed Los Altos in writing that its property was being accepted into REAP. The City mailed its “Notice of General Manager’s Hearing, Notice of Acceptance into the Rent Escrow Account Program (REAP), Landlord’s Right to Appeal, and Unresolved Violation Report” (REAP notice) to Los Altos’s correct business address at 15303 Ventura Boulevard in Sherman Oaks.
The REAP notice informed Los Altos that its property had been placed into REAP because of outstanding code violations. In addition, the notice specified: “If you wish to appeal the Housing Department’s (LAHD) acceptance of your property into REAP and the implementation of the corresponding rent reduction, you must complete the enclosed form titled “REAP Appeal Hearing-Request Form” as instructed in Part III of this letter. If you fail to do so, the Hearing Officer at your upcoming General Manager’s hearing will not hear your appeal of the REAP and rent reduction issues, and you may be at risk of losing rental income for the property listed above and you may incur other penalties!” (Original bolding.) The notice informed Los Altos that the rent of its tenants would be reduced.
The REAP notice notified Los Altos of two hearings before LAHD’s General Manager scheduled for March 20, 2007, beginning at 8:00 a.m. in the Garland Building, 1200 West 7th Street, Los Angeles (referral hearing). The referral hearing would determine whether alleged violations of law pertaining to housing at the property should be referred to the City Attorney’s office for possible criminal prosecution or other enforcement.
The second hearing would allow Los Altos to appeal the acceptance of the property into REAP. The procedure Los Altos was required to follow was set forth as follows:
“The landlord may request a hearing before the LAHD General Manager to appeal the decision of the LAHD to accept the property and/or unit(s) into REAP and implement the corresponding Rent Reduction Determination. To request a hearing before the General Manager, the landlord must do the following:
“Request a hearing in writing;
“The request must be on the form provided by the Department (REAP Appeal Hearing Request Form), enclosed;
“The request must include specific grounds for the appeal;
“The request must include the names of the tenants, current rent levels, and rent due dates for units accepted into REAP; and
“The request must be received by the LAHD no later than 3/2/2007.” (Original bolding.)
The “REAP Appeal Hearing Request Form, ” included with the REAP notice, also specified that it must be turned in by March 2, 2007, in order to appeal the REAP acceptance.
Los Altos did not request a hearing to appeal the REAP acceptance decision by the March 2, 2007 deadline. Instead, Los Altos filed its request for appeal on March 5, 2007. The City took the position that the appeal was late and that its decision to accept the property into REAP was final as of March 2, 2007.
The letter denying Los Altos’s appeal was dated March 12, 2007, and was erroneously mailed to 15306 Ventura Boulevard, Sherman Oaks, California, rather than Los Altos’s proper mailing address of 15303 Ventura Boulevard, Sherman Oaks, California. The letter indicated that Los Altos’s request for an appeal was denied on the ground that it was not timely filed. Because the letter was incorrectly addressed, Los Altos did not see the letter until the time of the referral hearing on March 20, 2007.
5. Referral hearing
The referral hearing took place as scheduled on March 20, 2007. Los Altos was able to participate and present evidence before the LAHD General Manager, who noted a discrepancy between the unresolved violation report and the evidence presented by Los Altos. The General Manager continued the hearing to April 24, 2007, “due to the fact that all violations, except unapproved construction, have been repaired. At the time of the hearing, the owner submitted a Certificate of Occupancy to claim that the subject units are approved.” The continuance allowed the City the opportunity to review all the documentation provided by Los Altos.
On April 12 and 17, 2007, the City sent Los Altos letters of compliance acknowledging Los Altos’s certificate of occupancy and confirming that there were no uncorrected violations as of the August 24, 2006 inspection. All violations noted in previous inspections had been corrected.
On April 24, 2007, the continued General Manager’s hearing was completed. On May 9, 2007, the General Manager issued a decision confirming that all corrections had been made by the August 24, 2006 inspection.
PROCEDURAL HISTORY
On May 30, 2007, Los Altos filed a petition for writ of administrative mandate, asking, among other things, that the City be required to vacate its decision to place the property in REAP; that the City ask all tenants to pay 100 percent of all back rent, current rent and future rent to Los Altos; and for attorney fees, costs of suit and all other proper relief.
Immediately upon service of the petition, the City removed the property from REAP, granting Los Altos all the nonmonetary relief it sought. After the property was removed from REAP, the City remitted to Los Altos all sums which had been deposited into the REAP escrow account by tenants. However, Los Altos did not recover the other 50 percent of rent which would have been due if the property had never been accepted into REAP.
The Los Angeles City Council is authorized by ordinance to restore to landlords funds which are placed into the REAP account by tenants. (L.A. Mun. Code, § 162.08.)
On March 3, 2008, Los Altos presented a claim for damages to the city clerk of the City of Los Angeles. Los Altos explained that the damage occurred when the “City of Los Angeles erroneously put property 4121 Wilshire Blvd. into REAP. Tenants wrongfully withheld rent.”
On May 1, 2008, the City sent Los Altos a letter formally denying its claim.
On July 28, 2008, Los Altos filed its first amended complaint and amended petition for writ of administrative mandamus. Los Altos sought a writ of mandate directing the City to vacate a change to the certificate of occupancy, and sought damages in excess of $100,000 as a proximate cause of the City’s wrongful action in placing the property into REAP. In April 2009, having failed to pursue its administrative remedies regarding the change to the certificate of occupancy, Los Altos dismissed the writ portion of its complaint.
At a status conference on April 13, 2009, Los Altos was granted five days to file a second amended petition with a legal theory for the recovery of damages. The second amended complaint for damages (SAC) was filed on April 20, 2009, setting forth a single cause of action for intentional interference with contractual relations. On April 22, 2009, the matter was reassigned from the writs and receivers department to a trial court.
On May 20, 2009, the City filed a demurrer to the SAC. The City argued that there is no statutory basis for liability as to the first cause of action in the SAC; there is no common law governmental tort liability in California; and except as expressly provided by statute, there is no liability on the part of a public entity for any act or omission of itself, a public employee, or any other person. Further, the City argued, section 818.8 provides public entities with absolute immunity for intentional or negligent misrepresentations which result in alleged interferences with either a commercial or financial interest. In addition, under section 818.6, the City is immune from liability for failure to make an inspection or for making an inadequate inspection.
In opposition, Los Altos argued that section 815.2 provides for liability on the part of the City for the acts or omissions of its employees within the scope of their employment.
On July 13, 2009, the trial court sustained the City’s demurrer to the SAC, granting Los Altos 30 days leave to amend.
The TAC was filed on August 12, 2009, alleging a first cause of action for intentional interference with contractual relations and a second cause of action for violation of article I, section 7 of the California Constitution due to a deprivation of property without due process. The City’s demurrer to both causes of action was filed September 14, 2009. As to the first cause of action, the City again argued that there was no basis for tort liability, citing sections 815, 818.8, and 818.6. Further, the City argued, the second cause of action must fail because California does not recognize a tort remedy for violations of article I, section 7 of the California Constitution.
In opposition, Los Altos argued that damages were provided for under Code of Civil Procedure section 1095 and section 815.2. Los Altos also argued that there is a direct cause of action for damages under article I, section 7 of the California Constitution, as set forth in Katzberg v. Regents of University of California (2002) 29 Cal.4th 300.
The matter was heard on October 30, 2009, and the trial court took it under submission. On November 24, 2009, the court issued an order sustaining the demurrer as to both causes of action, without leave to amend. The court found that Los Altos had failed to provide a statutory basis for liability under California law. Further, the trial court found that Los Altos had failed to exhaust its administrative remedies by adjudicating its writ of administrative mandamus. Finally, the court determined that Los Altos failed to comply with government claims requirements.
On December 9, 2009, a judgment of dismissal as to Los Altos’s TAC was entered. On the same date, Los Altos filed a motion for reconsideration of the trial court’s decision. On January 13, 2010, the trial court denied the motion.
On February 5, 2010, Los Altos filed a notice of appeal.
DISCUSSION
I. 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 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.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
The legal sufficiency of the complaint is reviewed de novo. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.)
II. The law governing tort claims against the government
“There is no common law governmental tort liability in California; and except as otherwise provided by statute, there is no liability on the part of a public entity for any act or omission of itself, a public employee, or any other person. [Citations.]” (Cowing v. City of Torrance (1976) 60 Cal.App.3d 757, 761; § 815, subd. (a).) Thus, Los Altos must provide specific statutory authority for its position that the City may be held liable for intentional interference with contractual relations and the alleged violation of article I, section 7 of the California Constitution.
In addition to the general tort immunity provided by section 815, subdivision (a), the City also claims that it is immune from liability under sections 818.6 (providing immunity for inadequate or negligent inspections); 818.8 (providing immunity for alleged intentional or negligent misrepresentations made by government employees); and 822.2 (providing immunity for misrepresentations of a government employee acting in the scope of his employment).
Tort claims against the City are also governed by the Tort Claims Act (§ 900 et seq.). Under this act, a plaintiff is required to present a written claim to the public entity prior to filing suit. (§ 945.4.) “[T]he timely filing of a claim is an essential element of a cause of action against a public entity and failure to allege compliance with the claims statute renders the complaint subject to a general demurrer. [Citation.]” (Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1119.) Under section 911.2, subdivision (a):
“A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2... not later than six months after accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2... not later than one year after the accrual of the cause of action.”
“‘Injury’ means death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings or estate, of such nature that it would be actionable if inflicted by a private person.” (§ 810.8)
Under the foregoing authority, Los Altos was required to prove that a statutory basis for its claims exists. Further, Los Altos was required to present a timely claim to the City pursuant to the provisions of section 900 et seq.
III. The action is barred for failure to timely present a claim under section 911.2
The TAC alleges that Los Altos suffered damage to its right to collect rent when the acceptance of the property into REAP became final on March 2, 2007. Thus, the date that Los Altos’s causes of action accrued was March 2, 2007. Los Altos’s contractual right to collect rent is a form of personal property. However, as specifically alleged in the TAC, Los Altos’s claim for damages was not filed with the city clerk until March 3, 2008. Because Los Altos’s claim for injury to personal property was not presented to the City within six months after the accrual of its causes of action, Los Altos’s suit is barred. (See Shirk v. Vista Unified School Dist., supra, 42 Cal.4th at p. 209 [“Complaints that do not allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused are subject to a general demurrer for not stating facts sufficient to constitute a cause of action”].)
“The general rule for defining the accrual of a cause of action sets the date as the time ‘when, under the substantive law, the wrongful act is done, ’ or the wrongful result occurs, and the consequent ‘liability arises.’ [Citation.]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) “Accrual of the cause of action for purposes of the government claims statute is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants. [Citations.]” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208-209.)
Los Altos asserts that its claims do not involve damage to personal property, but damage to real property. Thus, Los Altos argues, the one-year claim period of section 911.2, subdivision (a) is applicable. Further, although its claim was not received by the City until March 3, 2008, it was mailed on February 29, 2008. Under section 915.2, a claim is “deemed to have been presented and received at the time of the deposit.” On this theory, Los Altos insists that its claim was timely presented to the City.
We disagree. As set forth in Voth v. Wasco Public Util. Dist. (1976) 56 Cal.App.3d 353, 356, “the statutory language clearly indicates that the 100-day clause covers tort claims only, and the one-year clause was intended to cover claims arising out of contract and to claims for injury to real property. [Citation.]” Los Altos’s causes of action against the City are tort claims, which frame the action as a tortious interference with Los Altos’s contractual right to collect rent.
Section 911.2 was amended in 1987 to substitute “six months” for “the 100th day.” (See Historical and Statutory Notes, 32 Wests’s Ann. Gov. Code (1995 ed.) foll. § 911.2, p. 561.)
Los Altos correctly asserts that claims for injury to real property are subject to the one-year time frame. However, cases in which the one-year time frame have been found to apply generally involve physical injury to real property. (See, e.g., Amador Valley Investors v. City of Livermore (1974) 43 Cal.App.3d 483, 488-489 [city’s discharge of sewage into creeks prevented construction of homes]; Mosesian v. County of Fresno (1972) 28 Cal.App.3d 493, 495 [inverse condemnation action against county based on county’s construction of ponding basin on private land designated for development].) Los Altos is not suing for damage or injury to its real property. As set forth in Wheeler v. County of San Bernardino (1978)76 Cal.App.3d 841, 847 (Wheeler), “[t]he right sued upon... determines the nature of the action. [Citation.]” The right which Los Altos is suing upon is its right to collect rent from its tenants.
Wheeler, cited by Los Altos, is distinguishable. In Wheeler, the Court of Appeal determined that the plaintiff’s allegations, fairly read, stated a cause of action for damage to real property. The court explained: “The essential allegations are that the county is somehow responsible for the recording of a survey which shows plaintiff’s property to be smaller than it really is. The recorded survey is therefore a cloud upon plaintiff’s title which must be removed.” (Wheeler, supra, 76 Cal.App.3d at p. 846.) Los Altos does not allege a cloud on its title to the property. Instead, Los Altos’s causes of action are based on its essential allegations that the City interfered with its right to collect rent from its tenants. The rent was personal property to which Los Altos was allegedly entitled. Thus, the essence of Los Altos’s allegations set forth an injury to personal property, and the six-month time frame applies.
We conclude that the trial court’s decision sustaining the City’s demurrer to both causes of action should be affirmed on this ground.
IV. Los Altos has failed to provide a statutory basis for its claims
We have determined that Los Altos’s claim is barred for failure to timely file a claim for damages with the City. As explained below, Los Altos has also failed to present a statutory basis for its action, as required by section 815, subdivision (a).
A. Code of Civil Procedure section 1095 is inapplicable
Los Altos first argues that damages are authorized under Code of Civil Procedure section 1095. Los Altos explains that this action was originally brought as a writ of mandate under section 1094.5, seeking to compel the City to remove the property from REAP. After the writ proceeding was filed, the City acknowledged its error and removed the property from REAP. Next, Los Altos explains, the matter was transferred out of writs and receivers to a trial court for trial on what Los Altos refers to as “the damages issue.” Los Altos argues that section 1095 “specifically authorizes” such damages.
Code of Civil Procedure section 1095 states, in pertinent part, “[i]f judgment be given for the applicant, the applicant may recover the damages which the applicant has sustained, as found by the jury, or as may be determined by the court or referee....”
We find that Code of Civil Procedure section 1095 does not provide a statutory basis for this action against the City. The statute is applicable only in writ proceedings. Los Altos abandoned its writ proceeding after the property was released from REAP, and declined to pursue damages under section 1095. Even if it had pursued compensation in the writ proceeding, the statutory immunity provided in Government Code section 815, subdivision (a) would still apply. (See, e.g., O’Hagan v. Bd. of Zoning Adjustment (1974) 38 Cal.App.3d 722, 730 [“the Legislature cannot be deemed to have intended to impose liability and abrogate immunities through writ proceedings”].)
Next, Los Altos argues that liability may be imposed against the City under section 815.2, which provides:
“(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.
“(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”
Los Altos argues that the City’s employees gave improper notice, wrongfully put the property into REAP, and improperly refused to hear an appeal without legal cause. Los Altos argues that the City is liable for the wrongful conduct of its employees under this statute.
Again, we disagree. A public entity may be held vicariously liable for the conduct of its employee under section 815.2 “only if it is established that the employee would be personally liable for the conduct upon some ‘acceptable theory of liability.’ [Citation.]” (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819.) Los Altos has failed to allege personal liability on the part of any employee of the City under any theory of liability.
Next, Los Altos argues that section 815.6 specifically provides for liability on the part of the City for its failure to comply with its mandatory duty to give notice and to allow its appeal. Section 815.6 states:
“Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
Los Altos argues that the City had a constitutionally-imposed mandatory duty to provide it with proper notice and allow its appeal. Los Altos contends that the City’s failure to provide such notice is therefore actionable.
Los Altos points to the due process clauses of the state and federal Constitutions as the specific “enactments” imposing upon the City a mandatory duty to provide notice and allow an appeal. However, we find that these laws do not create the sort of mandatory duty suggested by section 815.6. “[A]pplication of section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity;... [i]t is not enough... that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion. [Citation.]” (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498-499.)
As Los Altos points out, the due process clauses of the state and federal Constitutions “generally require that the government provide notice and an opportunity to be heard before it deprives a person of property.” (Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 400.) However, the extent of the notice and opportunity to be heard is not specifically set forth. Therefore, some level of discretion on the part of the public entity is permitted. Furthermore, Los Altos does not deny that it received the REAP notice in February of 2007, nor that it was informed of the deadline by which it must file a request for appeal. Therefore, Los Altos was technically provided with both notice and an opportunity to be heard, which it failed to take advantage of in a timely manner.
In addition, despite the numerous notices that the City erroneously sent to Los Altos’s former address, Los Altos has not shown that the City did not “exercise[] reasonable diligence to discharge” its duty to provide sufficient notice.
Los Altos argues that various provisions of the Los Angeles Municipal Code set forth mandatory obligations on the part of the City to notify the property owner of any violations and set forth in detail the outstanding violations. However, as set forth above, all that is required of the City is reasonable diligence. In addition, Los Altos’s failure to receive the notices of violations were not the cause of the harm Los Altos alleges. As alleged in Los Altos’s complaint, it was the wrongful placement into REAP and subsequent reduction of tenant rents which caused the financial harm of which Los Altos complains. Los Altos was notified of both these imminent actions in the REAP notice, which Los Altos received in February 2007.
In sum, neither section 815.6, nor any of the other statutes cited by Los Altos, provide statutory authority for this action.
Because we have determined that Los Altos has failed to state a basis for tort liability, we decline to address the elements of the cause of action for intentional interference with contractual relations.
D. Constitutional tort liability
Los Altos argues that, if the City is immune from tort liability for its actions, a direct action for violation of article I, section 7 of the California Constitution is allowed under the law. As support for its argument, Los Altos cites Katzberg v. Regents of University of California (2002) 29 Cal.4th 300 (Katzberg). In Katzberg, a university professor argued that article I, section 7(a) of the California Constitution afforded him a right to damages for violation of his due process liberty interest. In considering the question, the California Supreme Court noted that the vast majority of California cases addressing the availability of an action for damages to remedy a violation of the state Constitution have declined to permit such an action. (Katzberg, supra, at p. 311.) The determinative consideration, according to the high court, is “whether an action for damages exists in (or can be inferred from) the constitutional provision at issue.” (Id. at p. 314.) If no affirmative intent to authorize or withhold a damages remedy is found, the next step for the court is to undertake an analysis to consider several factors, including “whether an adequate remedy exists, the extent to which a constitutional tort action would change established tort law, and the nature and significance of the constitutional provision.” (Id. at p. 317.)
The Supreme Court determined that the relevant language of article I, section 7 of the California Constitution does “not explicitly disclose an intent either to authorize or to withhold damages as a remedy for a violation of the provision.” (Katzberg, supra, 29 Cal.4th at p. 318.) After an analysis of the relevant factors listed above, the high court concluded that such factors “militate[d] against recognition of a constitutional tort to remedy the asserted violation of due process liberty interests in this case.” (Katzberg, at p. 329.)
Los Altos argues that this case is distinguishable from Katzberg because there is no adequate alternative remedy to claim the damages at issue. We disagree. In discussing this factor, the Katzberg court pointed out that the professor’s alternative remedies included timely seeking a writ of mandate, declaratory relief or injunctive relief. (Katzberg, supra, 29 Cal.4that p. 326.) All of those remedies were also available to Los Altos.
Katzberg does not support Los Altos’s claim that it is entitled to damages for violation of article I, section 7 of the California Constitution. In fact, Katzberg suggests that an action for damages under the California constitution should be permissible only where such an action is clearly contemplated under the language of the constitutional provision, or in the rare situation where consideration of certain specific factors leads a court to conclude that a constitutional tort action for damages should be recognized. Those circumstances are not present here therefore Los Altos’s constitutional tort claim is not permissible.
V. Amendment
Los Altos’s final argument is that it should be permitted to amend the TAC to attempt to state a cause of action under section 1983 of title 42 of the United States Code (USC section 1983). This cause of action was not previously alleged in the TAC, nor did Los Altos argue to the trial court that it should be permitted to amend its TAC to allege such a cause of action. However, because a demurrer raises only questions of law, “an appellant challenging the sustaining of a general demurrer may change his or her theory on appeal. [Citation.]” (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959.)
Citing Williams v. Horvath (1976) 16 Cal.3d 834, 841-842, Los Altos asserts that its failure to fail a timely claim with the City under section 911.2 cannot impair its claim under USC section 1983. Because we find that Los Altos has failed to allege facts which establish a cause of action under USC section 1983, it is not necessary that we address this issue, and we decline to do so.
We reject Los Altos’s request that it be allowed to amend its complaint because the facts alleged do not establish a cause of action under USC section 1983.
Under USC section 1983, municipalities may be sued directly for damages resulting from deprivation of a constitutional right. However, “[t]o find a municipality liable under [USC] section 1983, a plaintiff must identify a municipal policy or custom that caused the constitutional injury. [Citations.]” (Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 1295.) In other words, it is only “‘when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible for under [USC section] 1983.’ [Citations.]” (Pitts v. County of Kern (1998) 17 Cal.4th 340, 349.) In addition, the plaintiff must demonstrate that the deprivation of rights was undertaken deliberately, and with the requisite degree of culpability. (Ibid.) The burden is on the plaintiff to demonstrate that such a policy or custom exists. (Harman, supra, at p. 1296.)
Los Altos has failed to allege that its acceptance into REAP was the result of a custom or policy of the City intended to deprive Los Altos of its constitutional rights. Instead, Los Altos outlines actions on the part of city employees which caused the property to be erroneously and wrongfully placed into REAP, contrary to policies and laws of the City. Such errors are not actionable under USC section 1983.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD Acting P. J., ASHMANN-GERST J.