Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court No. SC 083865 for the County of Los Angeles. Dzintra Janavs, Judge, and Susan Bryant-Deason, Judge.
Rehm & Rogari and Ralph Rogari for Plaintiff and Appellant.
Raymond G. Fortner, Jr., County Counsel, and Adrienne M. Byers, Principal Deputy County Counsel, for Defendants and Respondents.
COOPER, P. J.
SUMMARY
Ralph Rogari, as Trustee for the RR Profit Sharing Trust, appeals from the trial court’s denial of his petition for writ of mandate. Rogari sought a writ requiring the County of Los Angeles to issue him a permit for a private waste disposal system (septic permit) for the Trust’s undeveloped real property at 2854 Seabreeze Drive in Malibu (Trust property). The Trust property is adjacent to 2850 Seabreeze Drive, a property owned by Rogari and his wife (Rogari property). The court found Rogari was not entitled to the septic permit, and the County had no ministerial duty to issue it, principally because a proposed structure on the Trust property would encroach on an area reserved for future seepage pits for a septic system approved in 1989 for the Rogari property. Rogari also appeals from the trial court’s dismissal of his other two causes of action – inverse condemnation and civil rights violations – after the County’s demurrers to those causes of action were sustained. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
This case has a somewhat tortured procedural and factual history, much of which is unnecessary to recite. In the end, the question was whether the County had a ministerial duty to issue Rogari a septic permit. After considerable Sturm und Drang, it appeared that the septic system Rogari proposed to build for the Trust property, in and of itself, met almost all, if not all, of the County’s requirements for a private waste disposal system (more on this point later). The question whether a permit should issue therefore devolved upon one principal point. The County showed that the septic system approved in January 1989 by the Department of Health Services for the adjacent Rogari property relied, for the system’s required expansion area, on a portion of the Trust property, and the residence Rogari planned to build on the Trust property encroached on the required expansion area for the Rogari property’s septic system. (Under the Los Angeles County plumbing code, a private sewage disposal system must have enough room for future seepage pits, in case of failure of the present seepage pits.) Rogari contended the system approved for the Rogari property in 1989 could not be considered by the County in deciding his entitlement to a permit for the Trust property. Even if the Rogari property’s septic system could be considered, Rogari claimed the court should have conducted a trial to decide an asserted factual dispute over what system was actually approved for the Rogari property; Rogari presented “site and grading plans” for the Rogari property, approved by the County’s Division of Building and Safety in November 1989, showing half as many seepage pits as were shown on the sewage disposal plan approved in January 1989 (and apparently showing there would be no encroachment on those pits by the proposed residence on the Trust property). With the nature of the dispute in mind, we recite briefly how the parties got to this point.
When the County refused to issue a permit for a private sewage disposal system for the Trust property, Rogari, as trustee (hereafter, Rogari), filed a complaint in Santa Monica on December 21, 2004, asserting causes of action for writ of mandate, fraud, violation of civil rights, and inverse condemnation. (Without a septic permit, the Trust’s proposed 2400 square foot single family residence cannot be built on the property.) The County filed a motion to transfer the matter to the Central District, pursuant to a local rule requiring complaints seeking a writ of mandate to be filed there. The motion was granted.
The lawsuit was filed against the County and four employees of its Department of Health Services. We will refer to the defendants collectively as the County.
Rogari filed a first amended complaint, omitting his fraud cause of action. The petition for writ was assigned to Department 85; the remaining causes of action were assigned to Department 52. The County re-noticed a demurrer it had filed to Rogari’s initial complaint. With the writ matter pending in Department 85, the court in Department 52 continued the demurrer hearing.
Judge Janavs held a hearing on the writ petition on May 19, 2005. Rogari argued and presented evidence, including declarations and geologic and engineering reports, that his application for a septic permit met all the requirements of the Los Angeles County plumbing code for issuance of a permit. The County presented evidence that several deficiencies remained, and in addition that the residence Rogari planned to build on the Trust property would encroach on an area reserved for four seepage pits belonging to the septic system for the already-built structure on the Rogari property. Specifically, the plans for the Rogari property septic system, approved by the Department of Health Services in January 1989 (hereafter, “January 1989 approved sewage disposal plan”) included four future seepage pits located on the adjacent Trust property, and the house planned for the Trust property was closer to the expansion area for the future seepage pits than the eight-foot minimum distance required by the plumbing code.
The remaining deficiencies were discussed with Rogari on June 13, 2005, and are described in a June 17, 2005 declaration from Richard Wagener, the official at the Department of Health Services responsible for reviewing any application for a private sewage disposal system that is not approved “due to complex factors that field staff and program supervision [are] unable to resolve.” The deficiencies described in the Wagener declaration were: (1) only one of three seepage pits for Rogari’s project was “down-logged” by the consultant geologist; (2) the plot plan did not show the centerline of the street (Seabreeze Drive) and that the septic system was out of the road right-of-way; did not have a legible detail of the septic system on the front or back of the plot plan; and did not show to scale the extent of an easement on adjacent property that fully allowed for the construction of the proposed septic system and its expansion area; and (3) there were discrepancies in the documentation of the depths of the seepage pits in the various documents Rogari had submitted, which needed to be clarified and reconciled by the project geologist and engineer.
Under the County plumbing code, abutting lots may provide space for a private sewage disposal system, but such agreements must be recorded:
“Nothing contained in this Code shall be construed to prohibit the use of all or part of an abutting lot to provide additional space for a private sewage disposal system or part thereof, when proper cause, transfer of ownership, or change of boundary not in violation of other requirements has been first established to the satisfaction of the Administrative Authority. The instrument recording such action shall constitute an agreement with the Administrative Authority which shall clearly state and show that the areas so joined or used shall be maintained as a unit during the time they are so used. Such agreement shall be recorded in the office of the County Recorder as part of the conditions of ownership of said properties, and shall be binding on all heirs, successors, and assigns to such properties. A copy of the instrument recording such proceedings shall be filed with the Administrative Authority.” (L.A. County Code, tit. 28, Appen. K, § K1(f).)
Rogari replied by contending that the owners of the Rogari property – he and his wife individually – have abandoned any legal claim to a portion of the Trust property for future expansion of their septic system. Rogari pointed to the County’s approval of the site and grading plans for his house on the Rogari property (hereafter, “November 1989 approved building plan”), including a change in location of the septic tank purportedly approved by then-County building inspector Art Brooks in early 1990, and contended the septic system actually built for the Rogari property in 1990 was not the one shown in the January 1989 approved sewage disposal plan.
The trial court concluded it could not tell from Rogari’s November 1989 approved building plan (which was copied in segments and not completely legible) whether a different plan from the one shown in the January 1989 approved sewage disposal plan had been approved and installed at the Rogari property. The court encouraged the parties to sort out that question, and indicated that if it could not be resolved, further briefing would be necessary as to whether the apparent agreement by the owners of the Trust property to allow future expansion of the septic system on the Rogari property was enforceable, given that the agreement had not been recorded.
Supplemental briefing was filed and a hearing held on July 21, 2005. The County submitted evidence, including a declaration from Arthur Brooks. Brooks stated that he had been an inspector for the County’s Building and Safety Division; his signature on the building plans showing a different location for the septic tank was not a final approval, or any approval, of the septic sewage disposal system on the Rogari property; that Building and Safety Division inspectors did not approve the design or concept of septic systems, as that was the responsibility of the County’s Department of Health Services; and his signature only represented his documentation of the placement of the septic tank for the Rogari property. Another declaration stated that the septic system plan depicted in the January 1989 approved sewage disposal plan for the Rogari property indicated the final approval of the Department of Health Services for the Rogari property’s septic system. Rogari’s supplemental exhibits included an improved copy of the November 1989 approved building plan. A subsequent declaration from Rajesh Patel, superintendent of building of the Building and Safety Division, stated that the November 1989 approved building plan was the approved set of Building and Safety Division plans, showing the Division approved the structural and architectural plans under the Los Angeles County building code, and did not constitute any County approval of the septic sewer plans.
Judge Janavs denied the petition for writ of mandate. The court determined that the failure to record an agreement in accordance with the plumbing code requirement did not render the septic system approval issued in January 1989 unenforceable. The court stated:
The court rejected Rogari’s contention that the November 1989 approved building plan (the one approved by the Division of Building and Safety) was the final plan approved by the County and should govern. “The Health-Approved document . . . is the final Health Services approval. [Citations to declarations.] Consistent with the County Plumbing Code, this approval is also supported by a geology report and septic system percolation results.” (The latter documents, which state four present and four future seepage pits will suffice, are dated October 4, 1988 and are addressed to Rogari and his wife.)
“Because [Rogari] owns the adjoining properties, the agreement is valid and binding on him despite his failure to record the agreement. In the circumstances here, to find otherwise would circumvent the Plumbing Code provisions, designed for public health and safety. [¶] Moreover, the language of Subsection (f) of Appendix K does not address what happens if the agreement is not recorded and filed with the County. It does not specify subsequent nullification of a County-approved system. Appendix K(f)’s recording provision protects bona fide subsequent purchasers of the properties affected. [Rogari] is the same party who built 2850 [the Rogari property], and seeks to construct 2854 [the Trust property], and owns both properties. As shown from the approved Health Department plan, and even from [Rogari’s] own plan, the two lots were combined to benefit 2850 [the Rogari property], to allow it to fulfill Code requirements by using the abutting 2854 [the Trust property] for future seepage pits.”
The court also noted the three other deficiencies in Rogari’s permit application materials that were described in the Wagener declaration (see footnote 2, ante). However, according to a later declaration from Wagener on July 8, 2005, one of the deficiencies had been resolved (the second item, involving the details on the plot plan showing the Trust property septic system was out of the road right-of-way). At the July 21 hearing, counsel for the County stated that the other two issues remained outstanding, but she seemed to suggest that they could “be worked out fairly quickly.”
The trial court concluded that all the requirements for a permit had not been met, so there was no “clear, present, ministerial duty” to issue it, and continued: “Contrary to [Rogari’s] suggestion, [the County has] no duty to issue the permit and bring an enforcement action against the 2850 [Rogari] property, or act only after an overflow problem arises, but may make the determination here not to allow a Code violation.”
Rogari filed a motion for an order vacating the trial court’s decision and for a new trial, arguing, among many other things, that the court should have allowed either a jury or court trial at which witnesses could be cross-examined. After a hearing, Judge Janavs denied Rogari’s motion, overruled his objections to the proposed order denying the writ of mandate, and signed the order on September 30, 2005.
Meanwhile, in Department 52, the County demurred to Rogari’s first amended complaint. After a hearing on December 13, 2005, the court sustained the demurrer without leave to amend. The court concluded the doctrine of res judicata barred Rogari’s claims for writ of mandate, civil rights violations, and inverse condemnation. Judge Janavs’s order finding that the County properly denied the septic permit disposed of all the claims asserted in Rogari’s first amended complaint, because all the claims were founded “on one primary right to obtain a writ ordering [the County] to issue the private septic system permit.”
Judgment dismissing the complaint was entered on January 10, 2006, and Rogari filed this timely appeal.
DISCUSSION
Rogari contends the septic system approved for the Rogari property is irrelevant and cannot be considered by the County in deciding his entitlement to a septic permit for the Trust property. Further, even if the septic system for the Rogari property could be considered, Rogari says the court should have conducted a trial to decide a claimed factual dispute over what system was finally approved in 1989 for the Rogari property. And, he asserts the trial court erred in sustaining the demurrer to the inverse condemnation and civil rights causes of action. We find no merit in any of Rogari’s contentions, and address them in turn, together with various subsidiary points.
The County contends that Rogari’s appeal of Judge Janavs’s order denying his petition for writ of mandate was not timely. This claim has no merit. In Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743-744, the Supreme Court held that under the one final judgment rule, “an appeal cannot be taken from a judgment that fails to complete the disposition of all the causes of action between the parties even if the causes of action disposed of by the judgment have been ordered to be tried separately, or may be characterized as ‘separate and independent’ from those remaining. . . . A petition for a writ, not an appeal, is the authorized means for obtaining review of judgments and orders that lack the finality required by Code of Civil Procedure section 904.1, subdivision (a).” (Accord, Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697 [“‘the denial of a petition for writ of mandate is not appealable if other causes of action remain pending between the parties’”].) Rogari’s appeal was timely.
A. The trial court properly denied Rogari’s petition for a writ of mandate.
If Rogari fulfilled all the requirements for issuance of a septic permit, then the County had a ministerial duty to issue the permit. Rogari had the burden of showing his entitlement to the permit. (Excelsior College v. Board of Registered Nursing (2006) 136 Cal.App.4th 1218, 1237 [“[t]o obtain a writ of mandate pursuant to either section 1085 or section 1094.5 of the Code of Civil Procedure, [petitioner] must establish two basic requirements: (1) a clear, present duty upon the part of the respondent and (2) a clear, present, and beneficial right in the petitioner to the performance of that duty”].)
We agree with the trial court that Rogari did not show he was entitled to a permit, and the County therefore had no clear and present duty to issue it. The evidence showed, and the trial court found, that Rogari’s plans for the proposed residence on the Trust property would be built less than eight feet from the expansion area for the septic system serving the house on the Rogari property. This would violate the Los Angeles plumbing code. (L.A. County Code, tit. 28, Appen. K, Table K-1.) Rogari proffers several reasons why we should conclude otherwise, but none of them has merit.
In light of the acknowledgement by counsel for the County that the two remaining deficiencies it identified in Rogari’s permit application, while still outstanding, could be resolved (see footnote 4 ante), we need not determine whether Rogari’s “substantial compliance” with the relevant ordinances would have entitled him to a permit were it not for the encroachment problem.
1. The County was entitled to consider the septic system requirements for the neighboring property.
Rogari’s first argument is that the County simply couldn’t consider anything but the proposed system on the Trust property. He says the “plain language of the ordinance” prevents the County from doing so, but there is no such language. The ordinance he cites merely says no one may “construct, install, alter or repair any private sewage disposal system” without securing a permit from the director of public health (L.A. County Code, § 11.38.450), and the plumbing code requirements for such systems, as one might expect, refer to “the” system, and not to neighboring systems. But nothing in any code language prevents the County from refusing a permit based on a neighboring system’s previously approved expansion area on the subject property. Indeed, the plumbing code specifically anticipates the use of an abutting lot to provide additional space for a private sewage disposal system. (L.A. County Code, tit. 28, Appen. K, § K1(f).) To argue that the county must then ignore an approved expansion area on abutting property when the abutting property owner seeks approval of its own septic system is little short of preposterous.
Rogari does not expressly challenge the trial court’s finding that the plumbing code (Appendix K, section K1(f)) does not require the County to record the agreement for use of the abutting lot (and hence that the agreement is valid and binding despite Rogari’s failure to record it), instead arguing the document was effectively superseded by the November 1989 approved building plan. In any event, we agree with the trial court’s construction of section K1(f). Its recording provision is for the protection of bona fide subsequent purchasers of the properties affected; to construe it to permit a failure to record to vitiate the agreement where the same person effectively owns both properties would circumvent plumbing code requirements that are designed for the health and safety of the public.
2. The trial court did not err in refusing to “conduct a trial” on the question of what septic system was approved for the Rogari property.
Rogari says the court should have conducted a trial with oral testimony to decide whether the septic system finally approved in 1989 was the one approved by the County’s Department of Health Services on January 6, 1989, or the one shown on the November 1989 approved building plan. (The latter plan also shows two future seepage pits on the Trust property, but apparently the proposed residence would not encroach on these two pits.) We do not agree.
“In a law and motion, writ of mandate hearing, the trial court has broad discretion to decide a case on the basis of declarations and other documents rather than live, oral testimony.” (California School Employees Assn. v. Del Norte County Unified Sch. Dist. (1992) 2 Cal.App.4th 1396, 1405 [trial court did not abuse its discretion as facts were adequately presented by declarations and documents proffered by the parties]; see Cal. Rules of Court, rule 3.1306(a) [“[e]vidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown”]; Los Angeles Superior Court Rules, rule 9.5(g) [“[i]n other kinds of writ proceedings [other than administrative mandate, Code Civ. Proc., § 1094.5], evidence is presented by way of declarations, deposition testimony, etc., and not by oral testimony unless the court, in its discretion, permits it”].)
There was no abuse of discretion in the trial court’s failure to “conduct a trial.” First, Rogari requested no such trial in his pleadings. Indeed, he did not assert there should be a jury trial until just before the conclusion of the court’s second hearing (on July 21, 2005) on his petition for writ of mandate; the trial court then correctly told Rogari, “There is no jury trial in mandamus.” Rogari then asserted in his motion for a new trial that the court should have allowed either a jury or court trial at which witnesses could be cross-examined. But Rogari did not suggest, and does not suggest on appeal, that he has any evidence to present other than that in the declarations and exhibits considered by the trial court. He merely asserts that if Patel, Wagener and Brooks (who submitted declarations for the County) testify, “the feel of the case from their testimony will convince all who hear that [the County defendants] are disingenuous, untruthful and acting out of self interest.” But the authorities, including those cited by Rogari, do not entitle him to oral testimony. As the trial court pointed out, “[e]very 1085 case involving permits or denial of anything to do with permits, . . . has been decided and is being decided . . . on some type of written pleadings. There’s not one . . . where there has been evidentiary hearings held by the judge or jury with respect to the propriety of denying . . . or granting a permit or whatever.” “If I do it here, I’d have to do it in every single permit case, and I don’t think the law requires that.” Indeed, it does not. Accordingly, even if Rogari had raised the point in a timely fashion, the trial court did not abuse its discretion in rejecting it.
Code of Civil Procedure section 1090 permits a court “in its discretion” to order a question tried before a jury, “[i]f a return be made, which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of the allegation of which the application for the writ is based . . . .”
Rogari asserted: “That this court would simply decide a 1085 petition without a trial, even though underlying some of its legal determinations are factual questions, was not something that plaintiff could anticipate or even guard against. Plaintiff’s case is far stronger if he is able to demonstrate to an unbiased trier of fact that each of the individual defendants are not worthy of belief because they refuse to accept responsibility for the shabby treatment provided plaintiff and are trying to cover their actions.”
Rogari relies, for example, on California Standardbred Sires Stakes Com., Inc. v. California Horse Racing Bd. (1991) 231 Cal.App.3d 751, 763, in which the court reversed the trial court’s grant of plaintiff’s petition for mandamus, and held that judicial review of an agency decision to issue a license was barred by the statute of limitations. In the course of its decision, the court observed that “[t]he instant case is one in ordinary mandamus (Code Civ. Proc., § 1085), where a full trial on the factual issues is contemplated.” But the court did not state what it meant by “a full trial on the factual issues,” and it said nothing about oral testimony. Its statement was made in the context of deciding an estoppel issue, pointing out that plaintiff could not rely on its verified petition as evidence of estoppel when the petition was controverted and was not offered in evidence. (Id. at p. 764.) The other cases Rogari cites are equally inapt.
3. Substantial evidence supported the trial court’s conclusion that Rogari was not entitled to a septic permit.
On appeal following a trial court's decision on a petition for a writ of mandate under Code of Civil Procedure section 1085, this court reviews the record to determine whether the trial court’s findings were supported by substantial evidence. (Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 128-129.) They clearly were. Rogari’s plans for a structure on the Trust property showed that it would be built less than the required eight feet from the expansion area for the septic system serving the Rogari property. The County produced an authenticated document showing its approval of a septic system for the Rogari property that allowed for future expansion on the Trust property. It produced declarations stating that the January 1989 approved sewage disposal plan was the final approval of the Department of Health Services. That constitutes substantial evidence that the requirements for a septic system permit for the Trust property were not met.
Rogari asserts that the County offered no substantial evidence that the November 1989 approved building plans he produced “were not properly issued.” But that is not the question. The question is whether there was substantial evidence that the Department of Health Services approved the septic system shown on the County’s authenticated document. There is, and there is no evidence of approval by the Department of Health Services of any other septic system for the Rogari property. It is important to bear in mind that the authority to approve or disapprove all plans and specifications pertaining to private sewage waste disposal systems lies with the director of public health, not with anyone else: no private sewage disposal system may be constructed without securing a permit from the director of public health. (L.A.County Code, § 11.38.450.) And, the only evidence in the record of the director’s approval of any system for the Rogari property is the County’s exhibit showing the final approval of the Department of Health Services. While Rogari repeatedly characterizes the November 1989 approved building plan, which was approved by the Division of Building and Safety, as “approved septic system building plans,” we fail to see why building plans approved by the Building and Safety Division under the building code should be treated as evidence of the required approval, by the director of public health, of the septic system under the plumbing code. Rogari, who presumably was in a position to know the facts, produced no evidence that the director of public health approved anything other than the septic system and expansion requirements reflected in the January 1989 approved sewage disposal plan for the Rogari property. And, the County presented evidence from the superintendent of building of the Building and Safety Division (Rajesh Patel) that the November 1989 approved building plan “shows that the Division approved the structural and architectural plans under … the Los Angeles County Building Code,” and “does not constitute any County approval of the septic sewer plans.” In short, the trial court’s findings were supported by substantial evidence, and this court has no basis for reversing its judgment.
Rogari points to the declaration of Grant Lawseth, a retired employee of the County’s Division of Building and Safety, who was responsible for supervising building permits and inspections, including the permitting and installation of private waste disposal systems. Lawseth said that the Health Department’s approval of a septic system “is transmitted to the Department of Building and Safety for incorporation into the building plans for the home,” so if the January 1989 approved sewage disposal plan “was the actual approval for the system ultimately built at [the Rogari property], that approved site plan would be part of the approved building plans for [the Rogari property],” but the latter plans instead show only two current and two future seepage pits. While we do not doubt Lawseth describes procedures as they should or in ordinary course would occur, the fact remains that the only evidence of the necessary approval by the health department of a septic system for the Rogari property is the January 1989 approved sewage disposal plan.
Rogari argues that if he, as owner of the Rogari property, did something wrong in the permit process for that property, the County “must take action under the proper ordinance, not hold up the septic permit application for [the Trust property].” Rogari cites Ellis v. City Council (1963) 222 Cal.App.2d 490. In Ellis, the property owner sought a permit to build a swimming pool. She had constructed and used a bathhouse on the property in violation of certain building and zoning ordinances, and building officials refused to issue a permit to build a swimming pool until she corrected the bathhouse violations. (Id. at pp. 494-495.) The court of appeal ordered the swimming pool permit to be issued without regard to the bathhouse, because the statutory scheme did not condition issuance of a pool permit on the elimination of violations in an accessory structure. (Id. at p. 497.) Ellis is, of course, quite different from the circumstances here: the landowner in Ellis had complied with all requirements to build her swimming pool, and there was “no evidence that the elimination of violations in an accessory structure was a legal condition to the issuance of a permit to construct a swimming pool.” (Ibid.) Here, by contrast, the septic system at the Rogari property is directly related to approval vel non of the septic system at the Trust property, and Rogari has not met all the legal conditions for a septic system permit for the Trust property.
B. The County’s demurrer to Rogari’s causes of action for civil rights violations and inverse condemnation was properly sustained without leave to amend.
Because Rogari was not entitled to issuance of a septic permit, his inverse condemnation and civil rights causes of action, both based on a wrongful denial of the permit, must fail. The point is explained in Federation of Hillside & Canyon Associations v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202:
“Res judicata . . . precludes the relitigation of a cause of action that previously was adjudicated in another proceeding between the same parties . . . . Res judicata applies if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding . . . were parties to the prior proceeding. . . . [¶] Two proceedings are on the same cause of action if they are based on the same ‘primary right.’ [Citation.] The plaintiff’s primary right is the right to be free from a particular injury, regardless of the legal theory on which liability for the injury is based. [Citation.] The scope of the primary right therefore depends on how the injury is defined. A cause of action comprises the plaintiff’s primary right, the defendant’s corresponding primary duty, and the defendant’s wrongful act in breach of that duty. [Citation.]”
In this case, the County’s denial of the permit was not wrongful. Each of Rogari’s other causes of action was defined in terms of one injury: the County’s refusal to issue a permit. (His civil rights and inverse condemnation causes of action incorporated the allegations in his mandate cause of action, and he alleged that the County’s “refusal to issue to [Rogari] an approval to build a private waste disposal system as alleged in this complaint was done in violation of the due process and equal protections provisions of the 14th amendment and was an uncompensated, and consequently unconstitutional, regulatory taking of [Rogari’s] property.”) Because Rogari suffered no legal injury from the County’s refusal to issue him a septic permit, he cannot maintain causes of action for violation of his civil rights and inverse condemnation premised on that refusal.
Rogari argues his inverse condemnation claim was based on a different primary right, and claims that a regulatory taking occurred for which he must be compensated, even if the County acted properly in denying him a permit. But that is not what his complaint alleged. Moreover, Rogari does not allege, and does not claim he can allege, that the County’s denial of a septic permit has denied him “‘“economically viable use of his land.”’” (Healing v. California Coastal Com. (1994) 22 Cal.App.4th 1158, 1172 [citing Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1015, for the proposition that a property owner has suffered a taking when he has been called upon to sacrifice all economically beneficial uses of his land in the name of the common good].) The fact that Rogari is not entitled to a permit under his currently proposed plans does not suggest that his proposed plans could not be adjusted to comply with the County’s requirements. And, it is difficult to see how a regulatory taking can have occurred in any event when it is he who agreed in 1989 to the very conditions he now asserts amount to a taking of his property.
He also claims a physical taking occurred, because the County used his application for a septic permit “to coerce from him an easement for five seepage pits for the benefit of [the Rogari property].” Nonsense; the evidence showed Rogari agreed to the reservation of a four-pit expansion system on the Trust property in 1989 in order to build his residence on the Rogari property.
Rogari also argues that there are sufficient facts pled from which a jury could conclude his civil rights – to equal protection and due process – were violated. But this claim is based solely on the County’s allegedly wrongful denial of the permit, and Rogari does not claim he can allege facts showing others were granted permits in similar circumstances.
Accordingly, the trial court properly sustained the County’s demurrer and dismissed his complaint.
DISPOSITION
The judgment is affirmed. The County is entitled to its costs on appeal.
We concur: RUBIN, J., BIGELOW, J.