Erwin
v. Calaveras
Filed
1/22/13 Erwin v. Calaveras County Bd. of
Supervisors CA3
NOT
TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Calaveras)
----
BERNICE ERWIN,
Plaintiff and
Appellant,
v.
CALAVERAS COUNTY BOARD OF
SUPERVISORS et al.,
Defendants and
Respondents.
C069192
(Super.
Ct. No. 11CV37386)
Plaintiff Bernice Erwin filed a
petition for writ of administrative
mandamus against defendants Calaveras County Board of Supervisors, Planning
Commission, Planner Debra Lewis, and Department of Public Works (sometimes
collectively referred to as defendants) alleging they violated her
constitutional rights when they issued a notice of violation against a parcel
of land she purportedly acquired by gift deed (parcel 29) in 1984, and
thereafter conditioned approval of her tentative parcel map on completion of
improvements to roads accessing the property (Condition II-1) in 1995.
Defendants demurred, arguing
plaintiff’s claims were barred by the applicable statute of limitations, and by
principles of res judicata and collateral estoppel, as the issues essential to
her claims were previously decided against her in two prior federal actions she
filed against the same parties. The
trial court sustained the demurrer without leave to amend and dismissed the
lawsuit.
Plaintiff appeals, claiming the
trial court erred both in sustaining the demurrer and in denying her leave to
amend the writ petition. As we explain,
the trial court concluded correctly that plaintiff’s claims are barred by the
statute of limitations. Plaintiff’s
claims accrued on April 17, 1995, when defendants adopted her tentative parcel
map subject to Condition II-1, after which plaintiff had 90 days to challenge
the condition. The trial court also
correctly concluded that plaintiff’s claims regarding the notice of violation
are barred by res judicata and collateral estoppel, as those claims have
already been decided against her in her prior lawsuits against these
defendants. Finally, because plaintiff
has not demonstrated a possibility of correcting those defects through
amendment, the trial court properly sustained defendants’ demurrer without
leave to amend. We affirm the judgment.
Facts
and Proceedings
This litigation finds its origins in
1981, when Louie and Susie Peirano (the Peiranos), both now deceased, applied
to the County of Calaveras (County) to subdivide their approximately 20-acre
parcel to create two parcels, each approximately five acres in size, and a
remainder, and purported to transfer by gift deed one of the parcels to Susan
Reid (the Reid parcel) and the other to plaintiff (parcel 29), retaining the
remainder for themselves.
Defendant County approved the
division creating the Reid parcel, but not that creating parcel 29, having
found plaintiff paid for road improvements for the Peiranos in contravention of
the requirements for a gift deed transfer.
On November 5, 1981, defendant
Planning Commission authorized recordation of a notice of violation on parcel
29 (notice of violation) after finding it to be in violation of both the
Subdivision Map Act (Gov. Code, § 66410 et seq.) and the Calaveras County
Subdivision Ordinance based on inadequate access for development of the
proposed parcel. On April 23, 1984, defendant
Planning Commission’s decision was upheld on appeal by defendant Board of
Supervisors, and the notice of violation was thereafter recorded on May 24, 1984.
In 1988, plaintiff quitclaimed her
interest in parcel 29 to her son, Jimmie Don Erwin, thereafter acting as his
agent and power of attorney with respect to the property.
In May 1991, plaintiff filed a
complaint in the
States District Court for the Eastern District of California, case No.
CV-F-91255 (the 1991 federal complaint), including as defendants Calaveras
County Board of Supervisors, Planning Department, and numerous
individually-named County employees. The
1991 federal complaint alleged claims of due process, equal protection, and
discrimination under 42 U.S.C. section 1983 (hereafter § 1983), and takings,
all arising out of the notice of violation and defendant County’s denial of the
proposed subdivision of parcel 29.
The district court dismissed the
amended 1991 federal complaint with prejudice.
The Ninth Circuit Court of Appeals affirmed, concluding plaintiff’s
claims were barred by the one-year statute of limitations applicable to section
1983 claims.
In early 1994, plaintiff submitted
an application for a tentative parcel map to legally separate parcel 29 from
the Reid parcel. In April 1994, the
County Planning Commission approved plaintiff’s tentative parcel map subject to
Condition II-1, a condition requiring plaintiff to improve and maintain certain
roads providing access to and from Parcel 29.
Plaintiff appealed for a waiver of Condition II-1.
In the meantime, on October 4, 1994, plaintiff
filed her second complaint in the United States District Court for the Eastern
District of California, case No. CV-F-946014 (the 1994 federal complaint),
including as defendants Calaveras County Board of Supervisors, Planning
Department, Department of Public Works, and numerous individually-named County
employees. The 1994 federal complaint
alleged civil rights violations under section 1983, fraud, misrepresentation,
and conspiracy, all arising out of the notice of violation and defendant
County’s denial of the proposed subdivision of parcel 29.
On February 7, 1995, Jimmie Don
Erwin quitclaimed a 1/8th interest in parcel 29 back to plaintiff.
On April 17, 1995, the Calaveras
County Board of Supervisors adopted Condition II-1 to plaintiff’s tentative
parcel map.
On September 11, 1995, the district
court dismissed all section 1983 claims arising more than one year prior to the
filing of the complaint, as well as those claims relating to development of
parcel 29 which accrued prior to February 1995 (when plaintiff obtained a 1/8th
interest in the property via the quitclaim deed from her son). The court granted plaintiff leave to amend
the complaint to state any section 1983 claims accruing after she acquired an
interest in parcel 29 in February 1995.
Plaintiff elected not to amend her complaint.
The County and other defendants
moved for summary judgment of the fourth amended 1994 federal complaint. On July 24, 1996, with the exception of
certain of the individually-named County employee defendants, the district
court granted summary judgment in favor of the County.
On December 18, 1995, plaintiff
filed a complaint in the Calaveras County Superior Court, case No. 22449 (the
1995 state complaint), including as defendants Calaveras County Board of
Supervisors, Planning Commission, Department of Public Works, and planner Susan
Larson. The 1995 state complaint alleged
inverse condemnation, intentional tort, fraud, taking, and conspiracy, and
seeking to quiet title, all arising from defendants’ denial of plaintiff’s
appeal regarding Condition II-1.
On December 22, 1997, the trial
court dismissed plaintiff’s 1995 state complaint for delay in prosecution (Code
Civ. Proc., § 583.420).
On December 16, 2010, plaintiff
filed a notice of intent to sue with defendant Calaveras County Board of
Supervisors and defendant Planning Commission regarding the notice of violation
and adoption of Condition II-1.
On February 14, 2011, plaintiff
filed her petition for writ of administrative mandamus against defendants
Calaveras County Board of Supervisors, Planning Commission, Department of
Public Works, and planner Debra Lewis.
The Writ petition alleged fraud, misrepresentation, discrimination,
“violation of laws, and [defendants] acting outside their authority,†all
relating to the notice of violation, defendants’ denial of the proposed
subdivision of parcel 29, and the adoption of Condition II-1.
On June 9, 2011, the trial court
sustained defendants’ demurrer without leave to amend on the grounds that the
acts alleged in the writ petition were barred by the 90-day statute of
limitations (Gov. Code, § 66499.37), and alternatively by res judicata and
collateral estoppel based on plaintiff’s 1991 and 1994 federal complaints.
Discussion
We begin first with a discussion
regarding the claims presented in this appeal.
Plaintiff, appearing on her own behalf, submits arguments that are
sometimes rambling and often made without any analysis or citation to material
portions of the record. While we are
mindful that plaintiff appears without the benefit of counsel, “mere
self-representation is not a ground for exceptionally lenient treatment†and,
except when provided otherwise, “the rules of civil procedure must apply
equally to parties represented by counsel and those who forgo attorney
representation.†(Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
An appellant must present an
analysis of the facts and legal authority
on each point made, and must support the analysis with appropriate citations to
the material facts in the record. If an
appellant fails to do so, the argument is forfeited. (County
of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274;
Duarte v. Chino Community Hospital (1999)
72 Cal.App.4th 849, 856.)
Plaintiff’s first three arguments
are entitled “Regarding Pleadings,†“Switching the Burden of Proof,†and
“Appellant Has Fundamental Rights,†respectively. None of these headings describe a cognizable
issue on appeal. (Lady v. Worthingham (1942) 55 Cal.App.2d 396, 397;
compounded by the fact that the arguments assert various kinds of error without
either identifying the procedural context of the error or citing appropriate
authority in support of the claimed error.
Moreover, plaintiff's arguments are difficult to understand and
unsupported by legal or factual analysis.
As a reviewing court, we may disregard evidentiary contentions not
supported by proper page cites to the record.
(Aguimatang v. Cal. State Lottery
(1991) 234 Cal.App.3d 769, 796.) We may
also disregard contentions not supported by legal or factual analysis. (People
v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [reviewing court may disregard
contentions not adequately briefed, e.g., claims perfunctorily asserted without
development]; In re Marriage of Nichols
(1994) 27 Cal.App.4th 661, 672-673, fn. 3; Kim
v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [where
appellant asserts point without argument or authority, “it is deemed to be
without foundation and requires no discussion by the reviewing courtâ€].) These claims are forfeited.
Although plaintiff’s fourth
argument, entitled “The Court Erred in Sustaining the Demurrer Without Leave to
Amend,†provides sufficient citation to authority, it is devoid of analysis or
citation to the record and is thus forfeited as well. (County
of Solano v. Vallejo Redevelopment Agency, supra, 75 Cal.App.4th at p.
1274.)
Plaintiff’s fifth argument, entitled
“The Demurrer to the Complaint Lacked Merit,†is similarly lacking in coherent
analysis or citation to material facts in the record, simply accusing the trial
court of refusing to consider the causes of action, or to provide reasons for
its ruling or guidance on how the complaint might be amended. Plaintiff’s fifth claim is forfeited as well,
both due to form and to plaintiff’s failure to object in the trial court. (Lambert v. Carneghi (2008) 158
Cal.App.4th 1120, 1128, fn. 4.) We
nonetheless point out that the trial court did indeed state its reasons for
sustaining the demurrer, explaining that the acts alleged in the writ petition
were “barred by the ninety day statute of limitations set forth in Government
Code [section] 66499.37,†and “by res judicata and collateral estoppel based on
[plaintiff’s] [1991 federal complaint] and [1994 federal complaint],
. . . and opinions and orders therein.†We further note that the court is under no
compulsion to instruct any litigant, whether or not represented by counsel, as
to how to correct deficiencies in their pleading.
Plaintiff’s sixth and final
argument, entitled “Regarding ‘Answer to Respondents’ Demurrer’ pleading,â€
itself contains several claims. The
first claim avers defendants’ fraud is ongoing, thus precluding a statute of
limitations defense. The second claim
argues the principles of res judicata and collateral estoppel do not apply
because a court has never determined the validity or legality of the notice of
violation, the road improvements required by Condition II-1, the tentative
parcel map for parcel 29, or the Subdivision Map Act. The final claim asserts planner Debra Lewis
made knowing misrepresentations regarding parcel 29 on which plaintiff relied
to her detriment. Like plaintiff’s other
arguments, these claims lack the support of cogent analysis or citation to
material portions of the record.
We nonetheless discuss below the
defenses of statute of limitations,
and res judicata and collateral estoppel, with the hopes of laying to rest
plaintiff’s claims regarding parcel 29, the notice of violation, and Condition
II-1, once and for all.
I
Standard of
Review
“Our only task in reviewing a ruling
on a demurrer is to determine whether the complaint states a cause of
action.†(Moore
of University of California (1990) 51 Cal.3d 120, 125.) “On appeal from a judgment dismissing an
action after sustaining a demurrer without leave to amend, the standard of
review is well settled. The reviewing
court gives the complaint a reasonable interpretation, and treats the demurrer
as admitting all material facts properly pleaded. [Citations.]
The court does not, however, assume the truth of contentions, deductions
or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of
the several grounds of demurrer is well taken.
[Citations.]’ [Citation.] However, it is error for a trial court to
sustain a demurrer when the plaintiff has stated a cause of action under any
possible legal theory. [Citation.] And it is an abuse of discretion to sustain a
demurrer without leave to amend if the plaintiff shows there is a reasonable
possibility any defect identified by the defendant can be cured by amendment.†(Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 966-967.)
Since a demurrer raises pure
questions of law, we consider the matter de novo with no deference to the trial
court’s ruling. (Parsons
(1995) 31 Cal.App.4th 1513, 1521.)
Accordingly, “. . . we do not review the validity of the trial court’s
reasoning, but only the propriety of the ruling itself.†(Orange Unified School Dist.
Santiago Community College Dist. (1997) 54 Cal.App.4th 750,
757.) We must affirm if the trial
court’s decision to sustain the demurrer is correct on any theory. (Hendy v. Losse (1991) 54
Cal.3d 723, 742; Kennedy v. Baxter Healthcare Corp. (1996)
43 Cal.App.4th 799, 808.)
II
Plaintiff’s writ petition alleges
her claims accrued on December 22, 2010, the date the County replied to her
notice of intent to sue and communicated to her its “final decision†that her
claim would not be considered because it was not presented within the one-year
statute of limitation governing actions brought under section 1983.
The writ petition, at its essence,
challenges the 1984 imposition of the notice of violation and defendants’
subsequent adoption of Condition II-1 on April 17, 1995.
Government Code section 66499.37
provides that “[a]ny action or proceeding to attack, review, set aside, void,
or annul the decision of an advisory agency, appeal board, or legislative body
concerning a subdivision, or of any of the proceedings, acts, or determinations
taken, done, or made prior to the decision, or to determine the reasonableness,
legality, or validity of any condition attached thereto, including, but not
limited to, the approval of a tentative map or final map,†must be brought
“within 90 days after the date of the decision,†after which, “all persons are
barred from any action or proceeding or any defense of invalidity or
unreasonableness of the decision or of the proceedings, acts, or
determinations.†(Gov. Code, §
66499.37.) By its terms, Government Code
section 66499.37 applies “to any
action involving a controversy over or arising out of the Subdivision Map
Act.†(Hensler v. City of Glendale (1994) 8 Cal.4th 1, 23.)
Defendant Planning Commission
approved plaintiff’s application for a tentative parcel map subject to
Condition II-1 in April 1994. Plaintiff
appealed for a waiver of that condition and, on April 17, 1995, defendant
Calaveras County Board of Supervisors denied that appeal and adopted Condition
II-1 by Resolution No. 95-113 issued that same day. It was then that plaintiff’s claims
challenging defendants’ decision accrued, after which she had 90 days within
which to file her claim. (Gov. Code, §
66499.37.)
To the extent the writ petition
purports to raise section 1983 claims, those claims accrued, at the latest, on
December 18, 1995, the date plaintiff knew about defendants’ decision denying
her appeal and adopting Condition II-1 (TwoRivers v. Lewis (9th Cir.
1999) 174 F.3d 987, 991 [civil rights claim accrues when the plaintiff knows or
should know of the injury that forms the basis of the cause of action]), as
evidenced by the filing of her 1995 state complaint alleging claims arising out
of that decision. (Wilson v. Garcia (1985) 471 U.S. 261, 279-280.) Plaintiff had one year from that date to file
her claim. (Code Civ. Proc. former §
340, subd. (3); Roman v. County of Los
Angeles (2000) 85 Cal.App.4th 316, 323.)
Plaintiff filed her writ petition on
February 14, 2011, well over 15 years after the expiration of either the 90-day
or the one-year limitation period. There
can be no doubt that her claims are barred by any applicable statute of
limitation.
Plaintiff claims, without proper
analysis or citation to material portions of the record, that because
defendants’ fraud is ongoing, they are precluded from asserting a statute of
limitations defense. The claim lacks
merit.
The elements of fraud are (1) a
false misrepresentation or concealment of a material fact; (2) scienter or
knowledge of the falsity; (3) intent to induce reliance; (4) justifiable
reliance; and (5) resulting damage. (Molko
v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1108, superseded by statute on
other grounds as stated in Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 854; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 772,
p. 1121.) Aside from the issue posed by
absolute immunity for legislative acts, the writ petition fails to allege that
defendants had knowledge of the falsity of a particular misrepresentation, or
that they intended to defraud plaintiff by inducing plaintiff’s reliance on
such misrepresentation. Thus, plaintiff
fails to state a claim for fraud, let alone show that the alleged fraud is
continuing such that a statute of limitations defense is precluded.
The trial court’s decision to
sustain the demurrer on the basis that plaintiff’s claims are barred by the
applicable statutes of limitations was correct.
III
Plaintiff contends, albeit without
any analysis or authority, that there are no judgments or orders in the record
showing her claims have previously been adjudicated. She fails to acknowledge the history of this
case and the evidence in the record that is dispositive of this issue.
“ ‘A prior judgment operates as
a bar against a second action upon the same cause, but in a later action upon a
different claim or cause of action, it operates as an estoppel or conclusive
adjudication as to such issues in the second action as were actually litigated
and determined in the first action.’ â€
(Sutphin v. Speik (1940) 15
Cal.2d 195, 202.) More to the point,
“[i]f the matter was within the scope of the action, related to the
subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite
the fact that it was not in fact expressly pleaded or otherwise urged.†(Ibid.) “[T]he rule is that the prior judgment is
raised or could have been raised, on matters litigated or litigable.†(Ibid.;
see also Tensor Group v. City of Glendale
(1993) 14 Cal.App.4th 154, 160; California
Coastal Com. v. Superior Court (1989) 210 Cal.App.3d 1488, 1498-1499.)
“The doctrine of res judicata,
whether applied as a total bar to further litigation or as a collateral
estoppel, ‘rests upon the sound policy of limiting litigation by preventing a
party who has had one fair adversary
hearing on an issue from again drawing it into controversy and subjecting
the other party to further expense in its reexamination.’ [Citation.]â€
(Vella v. Hudgins (1977) 20
Cal.3d 251, 257.) “The doctrine is also
expressed statutorily in Code of Civil Procedure section 1908. Res judicata gives conclusive effect to a
previous judgment in subsequent litigation on the same controversy.†(Castro
v. Higaki (1994) 31 Cal.App.4th 350, 357, fn. omitted.)
Here, the allegations in plaintiff’s
writ petition, filed against the same County entities, center around the notice
of violation defendants placed on parcel 29 in 1984. Plaintiff concedes that “[t]he main objective
of this writ is to obtain a clear title by making [defendants] remove the violation
on parcel 29.â€
Plaintiff sought the same objective
in her 1991 federal complaint, naming the same County entities among the
lengthy list of defendants, and alleging claims arising out of the notice of
violation and denial of the proposed subdivision of parcel 29. Plaintiff amended the 1991 federal complaint
four times, each time adding additional defendants and, as noted by the
district court, “enlarg[ing] the text [to add] unrelated allegations asserting
acts she found personally objectionable as related to [parcel 29], but
referring to the same matters as in the earlier pleading.â€
Concluding plaintiff’s claims were
barred by the applicable statute of limitations, the district court dismissed
the amended 1991 federal complaint without leave to amend and entered judgment
in defendants’ favor. The Ninth Circuit
Court of Appeals affirmed, and denied plaintiff’s request for rehearing. The United States Supreme Court denied
plaintiff’s petition for writ of certiorari.
Plaintiff attempted to re-litigate
the same controversy a second time when she filed her 1994 federal complaint,
again naming the same County entities in a long list of defendants, and
alleging claims arising out of the notice of violation and the County’s denial
of the proposed subdivision of parcel 29.
All section 1983 claims relating to
development of parcel 29 accruing prior to February 7, 1995, were dismissed by
the district court, and plaintiff elected not to amend the complaint to allege
any section 1983 claims arising out of development of parcel 29 after that
date, despite having been granted leave to do so.
In July 1996, the district court
granted summary judgment in favor of the County on all claims alleged in
plaintiff’s fourth amended 1994 federal complaint, leaving only a handful of
individually-named defendants, none of which were named in the writ
petition.
The two federal complaints are
clearly based on the same controversy as that on which plaintiff’s writ
petition is based--the notice of violation on parcel 29. The opinions tendered by the district court
in both cases explain, in painstaking detail, plaintiff’s claims and the law
and facts applicable to those claims.
Both cases resulted in judgments against plaintiff, which judgments
operate as a bar to another action based on the same cause and, in a later
action based on a different claim or cause of action, they operate “ ‘as
an estoppel or conclusive adjudication’ †as to any issue actually
litigated and determined in the first action.
(Sutphin v. Speik, supra, 15
Cal.2d at p. 202.)
Like the 1991 and 1994 federal
complaints, plaintiff’s writ petition is based, at least in part, on the notice
of violation on parcel 29. The prior
judgments in the federal actions “[are] res
judicata on matters which were raised or could have been raised, on matters
litigated or litigable.†(
202.) Thus, plaintiff’s claims regarding
the notice of violation are barred by those prior judgments.
The trial court’s decision to sustain
the demurrer on the basis that plaintiff’s claims are barred under principles
of res judicata and collateral estoppel was also correct.
Plaintiff has not shown there is a
reasonable possibility the defects discussed in this opinion can be cured by amendment. As such, the trial court did not abuse its
discretion in sustaining the demurrer without leave to amend. (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at pp.
966-967.)
We find the trial court was correct
in sustaining the defendants’ demurrer to plaintiff’s petition for writ of
administrative mandamus, and that the court did not abuse its discretion in
sustaining the demurrer without leave to amend.
Accordingly, we shall affirm the judgment.
Disposition
The judgment is affirmed. Defendants are awarded their costs on
appeal. (Cal. Rules of Court, rule
8.278(a)(1).)
HULL , J.
We concur:
RAYE , P. J.
DUARTE , J.
