Briggs Law Corporation, Cory J. Briggs, and Anthony N. Kim for Plaintiff and Appellant. Mara W. Elliott, City Attorney, George Schaefer, Assistant City Attorney, Heidi Vonblum and Jana Mickova Will, Deputy City Attorneys, for Defendant and Respondent. Sheppard, Mullin, Richter & Hampton, Dana J. Dunwoody, and Karin D. Vogel, for Real Parties in Interest and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2013-00062168-CU-TT-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Affirmed. Briggs Law Corporation, Cory J. Briggs, and Anthony N. Kim for Plaintiff and Appellant. Mara W. Elliott, City Attorney, George Schaefer, Assistant City Attorney, Heidi Vonblum and Jana Mickova Will, Deputy City Attorneys, for Defendant and Respondent. Sheppard, Mullin, Richter & Hampton, Dana J. Dunwoody, and Karin D. Vogel, for Real Parties in Interest and Respondents.
Plaintiff North Park Preservation Coalition (Coalition) appeals from a judgment following a bench trial in favor of the City of San Diego (City) and real parties in interest Jack in the Box, Inc. and John O. Thomas (together, Jack in the Box). The Coalition sought declaratory relief, injunctive relief, and a writ of mandate based on allegations that Jack in the Box had failed to obtain, and the City had failed to require that Jack in the Box obtain, a discretionary neighborhood development permit (NDP) before demolishing the exterior walls of one of its restaurants as part of an extensive remodel project. The Coalition alleged these acts violated the San Diego Municipal Code (SDMC) and the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).
The trial court previously granted summary judgment in favor of the defendants on grounds that the Coalition's claims were time-barred under the applicable 90-day statutes of limitation. We reversed that ruling on appeal, concluding that the defendants had not satisfied their threshold burden of showing the Coalition's claims were untimely. Drawing all inferences in favor of the Coalition, we determined there were triable issues of material fact as to when the City had authorized the demolition of the restaurant's exterior walls. Specifically, a factual dispute existed as to whether the City approved the demolition when it first granted Jack in the Box a building permit for the project or, alternatively, midway through the remodel when it approved changes to the project.
On remand, the trial court received supplementary briefs and evidentiary submissions, conducted a hearing, and again concluded that the Coalition's action was time-barred. The court determined that the City had authorized the demolition of the restaurant's exterior walls when it initially granted the building permit, the Coalition did not file its lawsuit within 90 days from the date of the approval, and the Coalition's causes of action were thus untimely. The court also rejected the Coalition's argument that the defendants were equitably estopped from asserting a statute of limitations defense, due to allegedly misleading statements they made to members of the Coalition.
We conclude that substantial evidence—evidence that had not previously been made available on summary judgment—supports the trial court's finding that the statute of limitations began running when the City issued the building permit to Jack in the Box and, therefore, the Coalition's action was untimely. Further, we conclude that substantial evidence supports the trial court's determination that the defendants are not equitably estopped from asserting a statute of limitations defense. Accordingly, we affirm.
STATEMENT OF THE CASE
A. Jack in the Box's Permit Applications
Since 1961, a Jack in the Box restaurant and drive-through has operated at the intersection of 30th Street and Upas Street in the North Park community of San Diego. When the restaurant opened, zoning restrictions on drive-throughs and hours of operation did not exist in the area at issue. However, such restrictions have been implemented in the intervening decades. Jack in the Box has not been required to adhere to these new zoning restrictions because its restaurant is a previously conforming structure, i.e., a structure that complied with prior versions of the regulations before their amendment.
In 2010, Jack in the Box applied to the San Diego Planning Commission (Planning Commission) for a discretionary planned development permit to demolish the existing structure and build a new, larger restaurant. The SDMC required Jack in the Box to obtain a planned development permit for the project—not merely a ministerial building permit—because Jack in the Box hoped to both build a larger restaurant and maintain its previously conforming rights to a drive-through and extended hours of operation. In August 2012, the Planning Commission denied Jack in the Box's application.
Rather than appealing the denial of its application for a planned development permit, Jack in the Box filed a new application for a ministerial building permit to remodel its existing restaurant. Unlike its prior proposal, Jack in the Box's new proposal retained the same stem wall foundation as the original 1961 restaurant. On May 2, 2013, the City's Development Services Department (DSD) approved the application and issued a building permit for the remodel. Throughout this litigation, the parties have disputed the scope of the building permit, as discussed post. In particular, the City and Jack in the Box have argued, and the Coalition has disputed, that the building permit authorized Jack in the Box to demolish the restaurant's exterior walls.
B. Demolition of the Restaurant's Exterior Walls
On May 31, 2013, Jack in the Box construction manager Michael Hogenboom wrote a letter to the North Park Planning Committee about the forthcoming remodel project. He stated that Jack in the Box had obtained all permits necessary for the remodel and, in accordance with attached plans and elevations, "[t]he location and size of the building [were] not changing." Hogenboom also stated that Jack in the Box was "not demolishing any of the exterior walls." Roger Lewis and Rick Pyles—founding members of the Coalition, a not-for-profit organization dedicated to the responsible and equitable development of the North Park community—received the Hogenboom letter on June 1, 2013. However, within a few weeks of receiving this letter, Lewis and Pyles observed that demolition of the restaurant's exterior walls had taken place.
On June 21, 2013, Lewis communicated with Linda Perine, a representative from (then) San Diego Mayor Robert Filner's office, about the demolition of the restaurant's exterior walls. Perine informed Lewis she would discuss the matter with the mayor. A few days later, the City issued an inspection correction notice, requesting clarification from Jack in the Box regarding which walls would remain as part of the remodel project and which walls had already been removed. Work at the location stopped at or about this time, leading Lewis and Pyles to believe the mayor had intervened to halt the demolition.
On July 3, 2013, Lewis and Pyles attended a meeting with Perine during which Perine stated the mayor was considering legal options to "remedy" the demolition of the exterior walls. During the meeting, Lewis and Pyles received a copy of a legal services request form sent from DSD to the City Attorney's office, which stated in pertinent part as follows: "[Jack in the Box] is currently out of compliance with the issued permit due to the partial demolition of two walls that were not identified on the approved plans. Further inspections have been placed on hold pending a thorough review and approval of a construction change to the plans, which has been submitted by the applicant. . . . [¶] . . . [¶] Note that many members of the community have strongly voiced their opposition to the project. [Jack in the Box] has shown a flagrant disregard for the welfare of the community and the integrity of the permitting process. . . . [¶] This office seeks a determination from the City Attorney if the violation of the ministerial permit, and the misrepresentations of fact to the community, constitute grounds for a Stop Work Order and forfeiture of vested rights."
SDMC section 121.0309 grants the City Manager authority to issue a stop work order whenever any work is being performed that is contrary to the provisions of the SDMC Land Development Code. A stop work order requires the person served with the order to stop work until authorized by the City Manager to proceed.
On July 16, 2013, Lewis and Pyles attended a meeting at which Perine informed attendees the City Attorney had issued a decision in response to DSD's request for legal services. She stated she could not reveal the substance of the decision, but told attendees the mayor was reviewing his options and was in the community's corner. Perine urged attendees to support the mayor's efforts and "go on a public-relations blitz."
On July 20, 2013, Lewis, Pyles, and other community members again met with Perine to discuss the Jack in the Box restaurant. Perine repeated that she could not reveal the substance of the City Attorney's decision, but disclosed that the City employees who had investigated the matter believed the demolition had occurred without proper permitting and the mayor would take "definitive action" on the community's behalf.
On July 29, 2013, DSD approved construction changes affecting the "interior and exterior partitions" of the structure. The DSD form approving these changes stated in pertinent part as follows: "Scope to include clarifications to which walls were demolished and reconstructed, exterior wall adjustments, and footing alterations." Throughout this litigation, the parties have disputed the scope of the construction changes. As discussed post, the Coalition has argued that the City approved demolition of the restaurant's exterior walls for the first time with these construction changes. The defendants, on the other hand, have argued that the construction changes involved only minor deviations from the original project plans.
On August 1, 2013, Lewis and Pyles learned that the mayor did not intend to halt the demolition. On that date, Perine forwarded Lewis and Pyles an email from the mayor's chief of staff, which stated the City Attorney had "opined that the process used to issue the permits was inconsistent with the City's Land Development Code [Chapters 11-14 of the SDMC]." However, the City Attorney also had "advised that Jack-in-the-[B]ox was too far along in the construction, the company would likely sue the City if [it] stopped the development, and [Jack in the Box] very well might win. Consequently, [a] stop-work order was not issued and . . . construction has moved on."
C. The Petition for Writ of Mandate and Post-filing Developments
On August 12, 2013, the Coalition filed a verified complaint against the City and Jack in the Box for declaratory and injunctive relief, as well as a petition for writ of mandate. The Coalition alleged it was challenging "recent demolition and new construction activities at the Jack in the Box restaurant . . . because the activities [were] being done without valid development and construction permits" or environmental review under CEQA. In particular, the Coalition alleged the remodel project did not initially "propose an expansion of the existing building footprint" or the demolition of exterior walls, yet Jack in the Box nevertheless had demolished the structure's exterior walls. The Coalition alleged that the City approved these project changes in July 2013, without requiring that Jack in the Box obtain a discretionary NDP. The Coalition alleged the defendants' failure to issue and obtain a NDP for the modified project violated SDMC section 126.0405. Further, the Coalition alleged the failure to require the remodel project to undergo environmental review violated CEQA.
SDMC section 126.0405 provides in pertinent part as follows: "It is unlawful for any person to maintain, use, or develop any premises without a Neighborhood Development Permit if such a permit is required for that use or development or to maintain, use or develop any premises contrary to the requirements or conditions of an existing Neighborhood Development Permit." (Italics omitted.)
Two weeks later, Mayor Filner—notwithstanding his chief of staff's earlier statement that he did not intend to issue a stop work order—issued a stop use order declaring that Jack in the Box had lost its previously conforming right to operate a drive-through, "[b]ased on the extent of the demolition, construction, removal, and/or relocation of one or more of the [s]tructure's exterior walls . . . ." The stop use order was not long-lived, however, as Mayor Filner resigned the same day for unrelated reasons, and interim Mayor Todd Gloria retracted the stop use order the following day.
SDMC section 121.0310 grants the City Manager authority to issue a stop use order whenever any structure or equipment regulated by the Land Development Code is being used contrary to the provisions of the Land Development Code. A stop use order may order that the use be discontinued and the structure, or portion thereof, vacated.
In December 2013, the City, joined by Jack in the Box, moved for summary judgment on grounds that the Coalition's action was time-barred under SDMC section 121.0102 and Government Code section 65009, subdivision (c)(1), which set forth 90-day statutes of limitations. The City identified just two undisputed material facts in support of its motion: (1) the building permit was issued on May 2, 2013, and (2) the Coalition filed suit on August 12, 2013, 102 days later. With respect to the first fact, the City presented no substantiating evidence; instead, it merely represented that all parties had stipulated on the record that the building permit was issued on May 2, 2013.
The Coalition opposed summary judgment, maintaining that the City had failed to satisfy its initial burden to present competent evidence supporting its affirmative defense, in part, because it had not filed a copy of the May 2, 2013 building permit. The Coalition also argued it did not discover and could not have discovered the demolition of the restaurant's exterior walls until June 1, 2013, at earliest, such that its action was timely when it was filed 72 days later. Further, the Coalition argued the defendants were equitably estopped from asserting a statute of limitations defense because Hogenboom's letter and Perine's representations caused the Coalition to refrain from filing suit.
Together with its reply brief, the City attached as an exhibit a document captioned "Approval." The City did not file a declaration authenticating the "Approval" document; instead, it merely referred to the "Approval" document as the building permit in its reply brief. The "Approval" document stated that it was issued on May 2, 2013 at 1:42 p.m. and included a timestamp in the upper right-hand corner that read "9/12/13 12:30 pm." It further read: "Scope: For extensive demolition of interior and exterior walls and roof structure, and construction of new roof structure, partition walls, restrooms, and associated mechanical, electrical and plumbing."
The trial court granted the City's motion for summary judgment, relying on the unauthenticated "Approval" document to conclude that the building permit authorized the demolition of the structure's exterior walls on May 2, 2013, and the Coalition's action— filed 102 days later—was untimely. It also rejected the Coalition's equitable estoppel argument, reasoning that the Coalition had "failed to meet the required elements to assert estoppel." Therefore, the court entered judgment in favor of the defendants.
D. The Initial Appeal
The Coalition appealed and, in an unpublished decision, North Park Preservation Coalition v. City of San Diego (May 23, 2016, D067927) [nonpub. opn.] (North Park I), we reversed on grounds that the defendants had failed to satisfy their threshold burden to demonstrate that the statutes of limitations barred the Coalition's causes of action.
Specifically, we determined that disputed issues of material fact existed as to the scope of the May 2, 2013 building permit. (North Park I, supra, D067927 at p. 16.) As we explained, a reasonable fact finder could infer the building permit did not encompass the demolition of exterior walls, as evidenced by Hogenboom's letter indicating that Jack in the Box would not demolish exterior walls, DSD's advisement to the City Attorney that Jack in the Box was out of compliance with its permit, and the "construction changes" DSD had approved on July 29, 2013. (Id. at pp. 16-17.) Although the "Approval" document filed with the City's reply brief purported to authorize "extensive demolition of interior and exterior walls," we noted that the date and timestamp in the corner of the document read September 12, 2013 at 12:30 p.m. (Id. at pp. 11, 17, fn. 4.) Drawing all inferences in the Coalition's favor, "we read these date and time references as reflecting the scope of the permit as it existed at those times, after City approved the construction changes [on July 29, 2013], not as of May 2, 2013." (Id. at p. 17, fn. 4.)
Additionally, we concluded that summary judgment was improper because the Coalition's theory of liability, as pleaded in the operative complaint, was not that the May 2, 2013 building permit was illegal or faulty, but rather that the City subsequently authorized Jack in the Box to exceed that permit by demolishing and relocating the structure's exterior walls. (North Park I, supra, D067927 at p. 18.) "Thus, the gravamen of [the] Coalition's challenge was to City's decision to allow construction changes—which occurred at some point after [Jack in the Box] began to remove or move exterior walls—without also requiring [Jack in the Box] to obtain an NDP under [the] City's municipal code." (Ibid.) As we explained, that decision did not occur until some point after May 31, 2013, or on July 29, 2013. (Id. at p. 20.) Therefore, construing all evidence in the Coalition's favor as the nonmoving party, we found there was sufficient evidence for a reasonable trier of fact to conclude that the Coalition's August 12, 2013 action was filed within the applicable 90-day statutes of limitations. (Id. at p. 24.)
E. Proceedings on Remand
On remand, the Coalition filed a motion to conduct discovery regarding two issues relevant to the statute of limitations: (1) the scope of the May 2, 2013 building permit on its date of issuance; and (2) representations from the defendants to Coalition members. According to the Coalition, such discovery was necessary "for the purpose of disproving the trigger date for [the defendants'] statute-of-limitations defense, and proving that they are estopped from asserting that defense" at trial. The court denied the Coalition's motion in a minute order, without extended analysis. However, it granted the parties permission to submit "extra-record declarations" regarding these matters.
In accordance with a stipulated briefing order, the Coalition filed an opening brief in which it presented both timeliness and merits-based arguments. Together with its brief, the Coalition filed declarations from Lewis and Pyles detailing their receipt of the Hogenboom letter, their receipt of DSD's request for legal services, and their conversations with Perine. The Coalition also filed a request for judicial notice of the pertinent provisions of the SDMC that it claimed the defendants had violated.
The City filed an opposition to the Coalition's opening brief, joined by Jack in the Box, in which it argued the Coalition's lawsuit was time-barred and meritless. The City filed declarations from DSD Director Robert Vacchi, DSD Deputy Director Afsaneh Ahmadi, and DSD Deputy Director Louis Myers, among others, in which the declarants averred that the City uses a "Project Tracking System" (PTS) online program to track development projects and does not maintain hard copies of permits. Myers averred that the timestamp generated in the corner of the "Approval" document reflected only the date the permit was printed from PTS and does not bear upon the scope of the permit. Myers also averred that any change to the scope of a permit automatically generates a "scope change" entry on the PTS system, but the PTS records for the Jack in the Box project contained no such entry. Vacchi, Ahmadi, and Myers all averred that the scope of the building permit had not changed since DSD issued it on May 2, 2013.
Additionally, Deputy Director Myers averred that DSD generates an inspection plan when it issues building permits and DSD issued an inspection plan for the Jack in the Box project one minute after it issued the building permit. The inspection plan described the scope of the building permit as follows: "For extensive demolition of interior and exterior walls and roof structure, and construction of new roof structure, partition walls, restrooms, and associated mechanical, electrical, and plumbing."
Jack in the Box also submitted declarations from Hogenboom, Steven Schneider (the project's engineering manager), and Daniel Souza (the project's managing contractor), all of whom averred that the construction changes approved by the City on July 29, 2013 involved the type of minor deviations that commonly occur during construction projects. According to these declarants, Jack in the Box had removed the "skin" of the walls to expose electrical, plumbing, and other in-wall conditions, but discovered a four-inch discrepancy in placement between one of the as-built walls and the City-approved plans, which were based on the 1961 restaurant floor plans. Because Jack in the Box had already manufactured roof trusses to fit the dimensions of the City-approved plans, a four-inch deviation from the original plans was required. The construction crew also discovered dry rot in one of the walls, which required replacement of another wall and a second deviation from the original plans. The City's declarants likewise averred that these types of construction changes are minor, common in construction projects, and do not require discretionary permit approvals.
On October 5, 2017, the trial court entered judgment in favor of the defendants after again concluding that the Coalition's action was time-barred. In its order, the court found the "evidence presented by the City indicate[d] that the building permit did encompass exterior demolition of the walls." Therefore, "sufficient evidence exist[ed] to establish that [the] statute of limitations began to run as of May 2, 2013, rather than when the construction changes were approved," and the Coalition's claims were time-barred. Further, the court concluded the Coalition had not carried its burden of proving equitable estoppel because "there [was] no evidence that [the Coalition] informed the City that [it] [was] purposely holding off on litigation based on the City's representations," "there [was] no evidence that the City or [Jack in the Box] expected [the Coalition] to refrain from filing litigation based on the communications [the Coalition] had with them," and "[e]ngaging in the political process does not toll the statute of limitations."
In the alternative, the court concluded that judgment in favor of the defendants was warranted because the Coalition was required to set forth all evidence relevant to the City's decision, not just its own evidence, and the Coalition had failed to file a copy of the applicable 2013 SDMC regulations that were effective at the time the City issued the building permit. The trial court noted that the 2013 regulations, which the Coalition failed to provide, did not prohibit the demolition of exterior walls.
A. Statute of Limitations
1. Governing Law
The trial court rendered judgment in favor of the defendants after concluding that the Coalition had failed to file suit within the 90-day statutes of limitations codified in SDMC section 121.0102 and Government Code section 65009, subdivision (c)(1). At the outset, therefore, we must determine whether these statutes of limitations apply to the Coalition's causes of action. This is a question of law which we review independently. (McLeod v. Vista Unified School Dist. (2008) 158 Cal.App.4th 1156, 1164.)
SDMC section 121.0102 provides as follows:
"Any action or proceeding to challenge, review, or void any decision made in accordance with the Land Development Code [i.e., Chapters 11-14 of the SDMC] shall commence no later than 90 calendar days after the date on which the decision becomes final. Thereafter; all persons are barred from taking any such action or invoking any defense of invalidity or unreasonableness of the decision."
In its opening brief, the Coalition initially argued that SDMC section 121.0102 did not apply to its causes of action because those causes of action did not challenge "decision[s] made in accordance with the Land Development Code . . . ." (SDMC, § 121.0102.) However, in its reply brief, the Coalition explained it was "not arguing that [s]ection 121.0102 [was] inapplicable; the argument [was] that [the] lawsuit [was] not barred under that provision of law." (Italics added.) We accept the Coalition's apparent concession that SDMC section 121.0102 applies to its claims. Even if the Coalition had not made this concession, we would reach the same conclusion. SDMC section 121.0102 broadly governs "any decision" made in accordance with the SDMC Land Development Code provisions, which encompasses building and neighborhood development permitting decisions of the nature at issue here. (SDMC, § 121.0102, italics added; see id., § 126.0401 et seq.; see also id., § 129.0201 et seq.)
The trial court concluded that the 90-day statute of limitations in Government Code section 65009, subdivision (c)(1) also applied to the Coalition's claims. That provision "is intended ' "to provide certainty for property owners and local governments regarding decisions made pursuant to [division 1 (Planning and Zoning) of title 7 (Planning and Land Use)]" ([Gov. Code,] § 65009, subd. (a)(3)) and, thus, to alleviate the "chilling effect on the confidence with which property owners and local governments can proceed with projects" (id., subd. (a)(2)) created by potential legal challenges to local planning and zoning decisions.' " (Honig v. S.F. Planning Dept. (2005) 127 Cal.App.4th 520, 526 (Honig).) After the statute of limitations expires, "all persons are barred from any further action or proceeding." (Gov. Code, § 65009, subd. (e).)
As relevant to this case, Government Code section 65009, subdivision (c)(1) provides in pertinent part as follows:
"[N]o action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body's decision: [¶] . . . [¶] (E) To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit."Because the Coalition does not challenge a "condition attached to a variance, conditional use permit, or any other permit," the question whether Government Code section 65009, subdivision (c)(1) applies depends on whether the Coalition seeks to attack, review, set aside, void, or annul a decision on a matter "listed" in Government Code section 65901.
Government Code section 65903 authorizes a board of appeal to hear and determine appeals from the decisions of boards of zoning adjustments and zoning administrators, and is inapplicable to this action.
Government Code section 65901, in turn, provides in pertinent part as follows:
"The board of zoning adjustment or zoning administrator shall hear and decide applications for conditional uses or other permits when the zoning ordinance provides therefor and establishes criteria for determining those matters, and applications for variances from the terms of the zoning ordinance. The board of zoning adjustment or the zoning administrator may also exercise any other powers granted by local ordinance, and may adopt all rules and procedures necessary or convenient for the conduct of
the board's or administrator's business." (Gov. Code, § 65901, subd. (a), italics added.)
On appeal, the Coalition asserts just one argument in support of its contention that Government Code section 65009, subdivision (c)(1) does not apply to its causes of action, claiming "[t]here is no City ordinance to [the Coalition's] knowledge establishing the office of the zoning administrator." In response, the City has directed us to provisions in the SDMC indicating that DSD "act[s] as the decision maker to decide permits, maps or other matters in accordance with the decision-making procedures of the Land Development Code," including building and permitting decisions. (SDMC, § 111.0205; id. § 22.2401 ["The [DSD] Director . . . shall be responsible for enforcing the provisions of the Land Development Code . . . ."]; see Citizens for Beach Rights v. City of San Diego (2017) 17 Cal.App.5th 230, 238-239 [applying section 65009, subdivision (c)(1) statute of limitations to DSD decision to issue building permit].)
We need not decide whether DSD staff members constitute "zoning administrators" because the Coalition, though it cursorily disputes the applicability of Government Code section 65009, subdivision (c)(1), does not articulate its position with respect to numerous issues essential to its argument, including the individuals or entities it believes are responsible for rendering decisions under Government Code section 65901 et seq. (if not the DSD), the implications if no such individuals or entities have been designated, or whether and how the Coalition's argument would make any difference in this action, given that the Coalition itself concedes that the 90-day statute of limitations set forth in the SDMC section 121.0102 applies to its causes of action. Because the Coalition has not developed a coherent and supported argument as to why the statute of limitations in Government Code section 65009, subdivision (c)(1) does not apply, we assume that all prerequisites necessary for application of that statute of limitations have been satisfied. (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1099 [" 'We are not bound to develop appellants' arguments for them.' "].)
Accordingly, we apply the 90-day statutes of limitation codified in SDMC section 121.0102 and Government Code section 65009, subdivision (c)(1), to the Coalition's claims.
2. Running of the Statutes of Limitations
We turn now to the primary disputed issue in this appeal—when the applicable 90-day statutes of limitations began to run. The Coalition argues that substantial evidence does not support the trial court's finding that the May 2, 2013 building permit authorized the demolition of the restaurant's exterior walls and, therefore, the issuance of the permit did not trigger the running of the statutes of limitations. The Coalition claims its causes of action began to accrue, at earliest, when Jack in the Box began its demolition of the restaurant's exterior walls in June 2013, or else when the City allegedly approved the demolition of exterior walls as a "construction change" on July 29, 2013. The defendants, by contrast, contend that there was substantial evidence in the record from which the trial court could have found that the May 2, 2013 building permit approved the demolition of the restaurant's exterior walls and thus started the clock on the 90-day statutes of limitations applicable to the Coalition's causes of action.
i. The Law of the Case Doctrine Does Not Apply
The Coalition claims our prior decision in North Park I established that the statutes of limitations began running in June 2013, at earliest, or when the City approved "construction changes" on July 29, 2013, and that ruling is "law of the case." (Leider v. Lewis (2017) 2 Cal.5th 1121, 1127 [" ' "The doctrine of 'law of the case' deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case." [Citation.]' "].)
In support of this argument, the Coalition cites the following language from North Park I:
"[T]he pertinent decision challenged by Coalition is City's approval of construction changes that Coalition asserts required issuance of an NDP. The 90-day limitation period did not begin to run until that decision was made at some point after May 31, 2013, or on July 29, 2013. Either way, Coalition's August 12, 2013 action was filed within the 90-day statute of limitations." (North Park I, supra, D067927 at pp. 23-24.)
The Coalition misreads North Park I. Drawing all inferences in favor of the Coalition for purposes of summary judgment, we concluded that disputed issues of material fact existed as to whether the City's decision to authorize the demolition of the restaurant's exterior walls—i.e., the gravamen of the Coalition's action—occurred on May 2, 2013 (as the defendants claimed), or when the City approved construction changes on July 29, 2013 (as the Coalition claimed). The above-referenced passage must be read with that context in mind, not as an expression that the City's approval of the demolition in fact occurred on July 29, 2013, or that the statute of limitations did not begin running on May 2, 2013. Indeed, we emphasized that "there [were] disputed facts as to the scope of the permit issued on May 2, 2013." (North Park I, supra, D067927 at p. 14.) Accordingly, the "law of the case" doctrine has no application. (Building Industry Assn. v. City of Oceanside (1994) 27 Cal.App.4th 744, 762 [declining to apply law of the case to prior opinion involving appeal from summary judgment ruling, which involved "conclusions [that] were preliminary on [the] record"].)
ii. The Coalition's Claims are Time-barred
Next, the Coalition argues the trial court erred in finding that the May 2, 2013 building permit authorized the demolition of the restaurant's exterior walls—in essence, arguing that substantial evidence does not support the trial court's factual finding. (Vasquez v. Happy Valley Union School Dist. (2008) 159 Cal.App.4th 969, 980 ["In reviewing a trial court's judgment on a petition for writ of ordinary mandamus, we apply the substantial evidence test to the trial court's factual findings."].)
When reviewing the trial court's factual finding on this matter, our analysis " 'begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination.' [Citation.] Substantial evidence is reasonable, credible, of solid value, and of ponderable legal significance. [Citation.] [¶] . . . 'The substantial evidence standard of review is generally considered the most difficult standard of review to meet, as it should be, because it is not the function of the reviewing court to determine the facts.' [Citation.] [Citation.] In this review we cannot ' "reweigh the evidence or reassess the credibility of witnesses." ' [Citation.]" (Caldera v. Dept. of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 37-38.) "Where multiple inferences can be drawn from the evidence, we defer to the trial court's findings. [Citation.] 'If the trial court's resolution of the factual issue is supported by substantial evidence, it must be affirmed.' " (Orange Catholic Foundation v. Arvizu (2018) 28 Cal.App.5th 283, 292.)
Applying this standard of review, we reject the Coalition's argument that substantial evidence does not support the trial court's finding regarding the scope of the building permit on May 2, 2013. The "Approval" document contained within the administrative record, for instance, indicated that the building permit issued on May 2, 2013 authorized the "extensive demolition of interior and exterior walls." Further, the City submitted declarations from numerous DSD employees, who averred that the scope of the building permit has not changed since it was issued on May 2, 2013. DSD Deputy Director Myers also averred that DSD issued an inspection plan one minute after approving the building permit, which stated that the building permit authorized the demolition of the restaurant's exterior walls. The "Approval" document, the DSD declarations, and the inspection plan constitute substantial evidence to support the trial court's finding that the May 2, 2013 building permit's scope included demolition of the exterior walls. (Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201 [declaration in writ proceeding constituted substantial evidence to support finding].)
As noted, we previously concluded in North Park I that a disputed issue of material fact existed as to whether the "Approval" document reflected the scope of the building permit when it was first issued on May 2, 2013, or, alternatively, on a later date, in large part due to a timestamp in the corner of the document that post-dated the filing of this litigation. In this appeal, the Coalition again argues the "Approval" document is "suspiciously dated," citing the timestamp. However, where the evidence is "susceptible of conflicting inferences, the general rule is not to disturb the judgment. All presumptions are in favor of the judgment." (Rivard v. Bd. of Pension Comrs (1985) 164 Cal.App.3d 405, 412.) Here, the trial court rejected the Coalition's assertions regarding the allegedly "suspicious" nature of the "Approval" document after hearing the City's explanation regarding its permitting process. DSD Deputy Director Myers averred in his declaration that the timestamp merely indicates the date the document was printed from the City's PTS program, which the City uses because it does not maintain hard copies of the 60,000 permits it issues annually. The trial court credited these averments in its order denying the Coalition's petition for writ of mandate and it is not our role, on a substantial evidence review, to second-guess the trial court's deduction. (Conservatorship of Amanda B. (2007) 149 Cal.App.4th 342, 350-351.)
In addition, Jack in the Box filed declarations from Hogenboom, the project engineering manager, and the managing contractor, all of whom explained that the construction changes approved on July 29, 2013 were minor deviations from the originally-approved plans, which arose due to the discovery of dry rot in one of the walls and a four-inch discrepancy between the City-approved plans and on-the-ground conditions. Declarants associated with both defendants explained that such deviations are common and do not require discretionary permit approvals. Although these construction changes were central to the Coalition's theory that its action was timely, the Coalition does not address or rebut the defendants' evidence on this issue.
Finally, the Coalition argues that its own evidence conclusively established that the building permit did not authorize the demolition of the restaurant's exterior walls. In particular, it cites the Hogenboom letter, DSD's request for legal services from the City Attorney's office, the statement by Mayor Filner's chief of staff that "the process used to issue the permits was inconsistent with the City's Land Development Code," and Mayor Filner's issuance of a stop use order, among other evidence. However, Hogenboom averred in his declaration that his letter was unartfully worded and was intended only to convey that the framed studs of the walls would remain in place. According to Hogenboom, Jack in the Box always planned for the exterior (stucco) and interior (drywall) coatings of the walls to be removed. Further, the City filed a declaration from former DSD Director Tom Tomlinson in which he stated he had never opined that the project violated the SDMC and did not believe that Jack in the Box had shown "a flagrant disregard for the welfare of the community"; rather, those words were included in the DSD request for legal services at the direction of Mayor Filner's office.
In any event, the Coalition's evidence, at most, contradicts the evidence defendants presented to the trial court. However, "the test on appeal is not whether substantial evidence supports a finding the appellant wishes the court had made but rather whether substantial evidence, contradicted or not, supports the conclusions the court did make." (Adoption of A.B. (2016) 2 Cal.App.5th 912, 925; see IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 646 ["[I]t does not matter that there was evidence that contradicts the version of events set forth above. The evidence presented at trial was solid, reasonable, and credible, and therefore met the legal definition of substantial evidence to support the judgment."].) Therefore, the Coalition's conflicting evidence does not preclude us from concluding that substantial evidence supports the trial court's finding as to the scope of the building permit on its date of issuance.
Because substantial evidence supports the finding that the building permit authorized demolition of the restaurant's exterior walls on May 2, 2013, the 90-day statutes of limitations applicable to the City's decision began running on May 2, 2013, and expired on July 31, 2013. (SDMC, § 121.0102; Gov. Code, § 65009, subd. (c)(1).) The Coalition's action—filed 102 days later—was untimely.
3. The Discovery Order
The Coalition also filed a motion with the trial court seeking permission to conduct discovery into two matters related to the defendants' statute of limitations defense—(1) the scope of the May 2, 2013 permit on the date of its issuance, and (2) representations from the defendants to the Coalition. The trial court denied the motion, without extended analysis, but permitted the parties to submit declarations regarding these issues. On appeal, the Coalition argues the trial court's discovery order stymied its ability to rebut the defendants' statute of limitations defense and, under Western States Petroleum Association v. Superior Court (1995) 9 Cal.4th 559, extra- record evidence is admissible where, as here, disputed facts exist in an original mandamus proceeding challenging a ministerial or informal administrative action.
The trial court had previously denied the Coalition's request for discovery before the prior appeal in North Park I, and the trial court explained the bases for its ruling in detail at that time. The Coalition did not seek a writ or challenge that ruling in the prior appeal.
We review the order denying the Coalition's discovery motion for abuse of discretion. (Seahaus La Jolla Owners Assn. v. Superior Court (2014) 224 Cal.App.4th 754, 766.) Under this standard of review, we will not set aside the order unless it has no legal justification. (Lickter v. Lickter (2010) 189 Cal.App.4th 712, 740.) Moreover, where, as here, the "plaintiff does not seek writ review of the trial court's discovery rulings and instead appeals from the judgment, he or she must 'show not only that the trial court erred, but also that the error was prejudicial'; i.e., the plaintiff must show that it is reasonably probable the ultimate outcome would have been more favorable to the plaintiff had the trial court not erred in the discovery rulings." (MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1045.)
We need not decide whether the trial court erred in denying the Coalition's discovery motion because the Coalition, which did not seek writ relief of the trial court's discovery ruling, has not carried its burden of establishing that the asserted error was prejudicial. The Coalition's discovery motion did not identify any specific discovery requests or deposition notices that the Coalition had propounded or intended to propound on the defendants, making the scope of any alleged harm speculative. The trial court also permitted each side to submit declarations regarding the broad topics discussed in the Coalition's discovery motion, which allowed the Coalition to obtain some evidence on those matters. Further, as discussed ante, substantial evidence supported the trial court's finding regarding the scope of the building permit on its date of issuance, including the "Approval" document and declarations filed under penalty of perjury by current and former DSD Directors and Deputy Directors. Finally, the Coalition was presumably in possession of, or had access to, any communications the defendants sent to its members, and thus was not prejudiced when the trial court denied discovery of such communications.
On this record, we conclude the Coalition has not carried its burden of establishing that it is reasonably probable that the ultimate outcome would have been more favorable to the Coalition, had the court granted the Coalition's discovery motion.
B. Equitable Estoppel
In its order denying the Coalition's petition for writ of mandate, the trial court rejected the Coalition's argument that the defendants were equitably estopped from asserting a statute of limitations defense. The Coalition challenges this finding on appeal. " '[W]hether an estoppel exists—whether the acts, representations or conduct lulled a party into a sense of security preventing him from instituting proceedings before the running of the statute, and whether the party relied thereon to his prejudice—is a question of fact and not of law,' " to which we apply substantial evidence review on appeal. (Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th 907, 925-926.) However, "[w]hether the trial court provided legally sufficient reasons for determining that the doctrine of equitable estoppel does not apply in this case presents a question of law that we review de novo." (Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, 748.) Applying these standards, we find that substantial evidence supports the trial court's conclusion that the City was not estopped from asserting its statute of limitations defense.
" 'The doctrine of equitable estoppel is founded on notions of equity and fair dealing and provides that a person may not deny the existence of a state of facts if that person has intentionally led others to believe a particular circumstance to be true and to rely upon such belief to their detriment. . . . " '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.' " . . . Where, as here, a party seeks to invoke the doctrine of equitable estoppel against a governmental entity, an additional element applies. That is, the government may not be bound by an equitable estoppel in the same manner as a private party unless, "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." ' " (Krolikowski v. San Diego City Employees' Retirement System (2018) 24 Cal.App.5th 537, 564-565 (Krolikowski).)
The trial court determined that the Coalition failed to establish any of the four elements involved in a standard equitable estoppel analysis. To better understand the trial court's ruling, we summarize the parties' respective positions as presented to the trial court. The Coalition did not specifically refer to "estoppel" in its opening brief in support of its request for a writ of mandate. Nonetheless, the Coalition claimed Jack in the Box perpetrated a "bait and switch"—by demolishing exterior walls after claiming it would not do so—and that the City was helping to "cover up" the fraud by reneging on its promise to take enforcement action against Jack in the Box. The Coalition further alleged it "relied on the City's efforts and promises of enforcement instead of filing its own lawsuit"; the City worked "behind the scenes" to make it look like the building permit included "the restaurant's complete demolition and rebuild from the start"; and the Coalition did not learn the City would do "nothing" to bring Jack in the Box into compliance with CEQA, the SDMC, or the "permit as originally issued" until the 90-day statute of limitations had run. As previously noted, the Coalition also submitted supporting declarations from Lewis and Pyles explaining their receipt of the Hogenboom letter (stating Jack in the Box did not intend to demolish the walls), and their communications with the mayor's office assuring them that their concerns would be addressed. With respect to the latter communications, the declarants alleged they were told by Perine "that the mayor could resolve this problem for the community" and that they were never advised they should hire a lawyer—and later in the same declarations stated they were told "that the mayor would fix the problem administratively, without litigation or private lawyers." (Italics added.)
Neither the parties nor the trial court specifically addressed the additional element that applies when evaluating equitable estoppel against a government entity.
In response to the Coalition's claims that an agreement could or would be reached without litigation, the City contended the first element of equitable estoppel could not be established without evidence the Coalition advised the City "that it was holding off on litigation based on the City's representations." The second element could not be met because there was no evidence the City expected the Coalition to refrain from filing litigation based on the City's representations. The third element required the Coalition to be "ignorant of the true facts," but there was no evidence the City and the Coalition "were aware of any different facts," and the Coalition and the mayor's staff "were working together and against DSD and [Jack in the Box]." The fourth element of reasonable reliance was missing because a reasonable person would not have relied on the "statements by the mayor's staff as inducement to forego timely litigation," and the Coalition knew that Jack in the Box "had the permit and was building in accordance with it." The City additionally argued that the Coalition did not describe the City's alleged representations with the specificity required to support estoppel, the Coalition could not rely on purported ignorance of its legal rights to support its estoppel claim, and applying estoppel based on a City employee's meetings with citizens lobbying for project changes would contravene the Legislature's intent in enacting a 90-day statute of limitations.
In reply, the Coalition asserted it was "preposterous" to claim the City was not advised the Coalition was holding off on filing a lawsuit "as both [Jack in the Box] and the City were well aware of [the Coalition's] interest in the project." On the second element, the Coalition contended it had a right to believe the defendants' representations—namely their statements that Jack in the Box's walls would not be demolished and that any demolishing of walls would be remedied by the City. The third element was met because the Coalition "was not aware of the true state of the facts because both [Jack in the Box] and the City's staff informed [the Coalition] on numerous occasions that there would be no demolition to the exterior walls," and the "original building permit was generated and back-dated after this lawsuit was filed . . . ." Regarding the fourth element, it was reasonable for the Coalition to rely on the representations because they came from Jack in the Box's construction manager and the City's chief executive officer and his staff. In sum, the Coalition claimed that Hogenboom's statement that Jack in the Box would not demolish the restaurant's exterior walls and the City's statements that it would "remedy" the demolition caused the Coalition to refrain from filing suit until August 12, 2013.
The trial court rejected the Coalition's equitable estoppel claim. With respect to the first element, it found the defendants were not "apprised of the facts" because "there [was] no evidence that [the Coalition] informed the City that [it was] purposely holding off on litigation based on the City's representations." As for the second element, the court found "there [was] no evidence that the City or [Jack in the Box] expected [the Coalition] to refrain from filing litigation based on the communications [the Coalition] had with them." For the third element, the court concluded the Coalition failed to satisfy its burden because "the scope of the building permit encompassed the demolition of the exterior walls" and "[e]ngaging in the political process does not toll the statute of limitations." Finally, for the fourth element, the court found "it was not reasonable for [the Coalition] to forego taking steps to preserve its legal rights given the above noted facts before it."
As seen by the trial court's ruling, the court addressed the City's claim that it was not aware the Coalition was refraining from filing a lawsuit based on the City's representations. But the first element is not limited strictly to whether the defendants were aware of the Coalition's potential litigation plans; rather, it also depends on whether defendants knew all along that the City did not in fact intend to intervene to halt the demolition. The trial court also found the third element of the analysis was not satisfied because "the scope of the building permit encompassed the demolition of the exterior walls." However, the trial court did not specifically address whether the Coalition knew about the building permit's true scope or the City's alleged intention not to intervene. Despite these omissions in the trial court's estoppel analysis, we agree with the trial court's ultimate determination that the Coalition failed to satisfy its burden of proving equitable estoppel because substantial evidence supports the trial court's finding regarding the fourth element of reasonable reliance.
The fourth element of the estoppel analysis asks whether the party asserting the estoppel reasonably relied on the other party's conduct to his or her injury. (Honig, supra, 127 Cal.App.4th at p. 529; Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 655 (Mills) ["Reliance by the party asserting the estoppel on the conduct of the party to be estopped must have been reasonable under the circumstances."].) On appeal, the Coalition claims it reasonably relied on Hogenboom's statement that Jack in the Box would not demolish the restaurant's exterior walls because Hogenboom was the "most informed party" regarding the construction. However, the Coalition has not shown that Hogenboom was acting in privity with the City in making this statement about demolition of the walls. (See The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 841 [" ' "[E]quitable estoppel requires privity, reliance, and prejudice because the doctrine concentrates on the relationship between the parties to a specific case." ' "]; Cal. Tahoe Regional Planning Agency v. Day & Night Electric (1985) 163 Cal.App.3d 898, 903-904 [whether a regional planning agency and city are in privity for purposes of equitable estoppel depends on whether the party to be estopped " 'so identified in interest with [the relied upon party] that he represent[ed] the same legal right.' "].)
Even if privity were established, Lewis and Pyles averred in their trial court declarations that they observed Jack in the Box demolishing the restaurant's exterior walls "[w]ithin a couple of weeks after receiving the Hogenboom letter," i.e., by mid-June 2013—long before the statute of limitations expired. This constitutes substantial evidence from which the trial court reasonably could have determined that it was unreasonable for the Coalition to forego taking steps to preserve its legal rights. (Mills, supra, 108 Cal.App.4th at p. 655 [" 'If there is still ample time to institute the action within the statutory period after the circumstances inducing delay have ceased to operate, the plaintiff who failed to do so cannot claim an estoppel.' "]; Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 716 [reliance on equitable estoppel was precluded where appellants still had two months before jurisdictional limit for filing a government claim expired].)
The Coalition also argues it reasonably refrained from filing suit based on the City's own representations to the Coalition's members, particularly Perine's statements to Lewis and Pyles. We disagree. "For a defendant to be equitably estopped from asserting a statute of limitations, the plaintiff must be 'directly prevented . . . from filing [a] suit on time.' " (Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 746.) Here, according to the Coalition's own declarations, Perine stated only that the mayor was "reviewing [his] options," stood in the community's "corner," and intended to take "definitive" action. These generic statements disclose nothing specific about the mayor's intentions and the Coalition fails to specify what Perine said to reasonably give the impression that it was unnecessary to file a timely lawsuit. (Smith v. City and County of S.F. (1990) 225 Cal.App.3d 38, 48 ["conclusory allegation[s] that they reasonably and justifiably relied on the City's promises" are insufficient to support estoppel claim].) On the contrary, merely engaging in discussions with the hope of avoiding litigation is not sufficient to invoke equitable estoppel. (Lobrovich v. Georgison (1956) 144 Cal.App.2d 567, 573.) Further, there is no indication that Perine (or anyone else) stated that the City was waiving any available statute of limitations defense, or that the Coalition did not have to file a timely lawsuit to preserve its rights. (See Orr v. City of Stockton (2007) 150 Cal.App.4th 622, 671 [public entity defendant "had no affirmative duty to remind [plaintiff] that he had not yet commenced suit."].) On this evidentiary record, drawing all inferences in favor of the judgment rendered below, we conclude that the Coalition did not carry its burden as to the fourth element of the estoppel analysis.
Perine also expressly refused to disclose the contents of the City Attorney's determination regarding the legality of Jack in the Box's conduct, further undermining the Coalition's reasonable reliance claim.
Because substantial evidence supports the trial court's determination that the Coalition did not reasonably rely on the alleged representations of Jack in the Box and the City, we need not decide whether the Coalition's equitable estoppel argument fails for any of the other reasons discussed in the trial court's ruling. (Krolikowski, supra, 24 Cal.App.5th at pp. 564-565.)
Given our resolution of this appeal on timeliness grounds, we do not address Jack in the Box's argument that the equitable doctrine of laches precluded the Coalition's action, the City's argument that the judgment should be affirmed based on the Coalition's failure to submit a copy of the applicable 2013 SDMC regulations, or the parties' arguments regarding the merits of the Coalition's petition. We also deny the City's request for judicial notice of an excerpt from the 2013 version of the SDMC, which is unnecessary to the resolution of this appeal. (County of San Diego v. State of Cal. (2008) 164 Cal.App.4th 580, 613, fn. 29.) --------
The judgment is affirmed.
GUERRERO, J. WE CONCUR: NARES, Acting P. J. DATO, J.