South Hills Homes v. City of West Covina

Filed 5/22/08 South Hills Homes v. City of West Covina CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE COURT:

Good cause appearing, the opinion in the above entitled matter, filed on May 5, 2008, Not For Publication, is hereby modified as follows:

(a) On page 3, line 21, delete the words Simultaneously, South Hills submitted and insert the words Before January 20, 2006, South Hills submitted;

(b) On page 11, seventh line of the first full paragraph, delete the words City Engineer and;

(c) On page 14, second line, second full paragraph, before the words City Engineer insert the words County Surveyor or the;

(d) On page 15, second line from the top, before the words City Engineer insert the words County Surveyor or the;

(e) On page 16, fifth line from the top, after the words to the insert the words county surveyor or the;

(f) On page 17, eleventh line from the top, after the date 2005, delete the remainder of the sentence and insert in its place, when South Hills submitted it to the County Surveyor; or in January 2006, when South Hills submitted it to the City Engineer; or six months later when the Tentative Map expired.

(g) On page 18, fifth line from the top, after the words failure to insert the word substantially;

(h) On page 18, sixth line from the top, after the words did not file a insert the word conforming;

(i) On page 18, ninth line from the top, delete the words City Engineer and insert the words County Surveyor;

(j) On page 19, fourth line from the top, delete the words City Engineer and insert the words County Surveyor;

(k) On page 19, eighth line from the top, delete the word City and insert the word County;

(l) On page 22, seventeenth line from the top, after  1094.5.) insert the following footnote:

¹² In a petition for rehearing, South Hills argues that the City Council is collaterally estopped from denying South Hills its final extension request. South Hills reasons that each time the City Council granted South Hills previous extension requests, it found directly or indirectly that South Hills had been acting diligently. Consequently, South Hills argues, where South Hills had been diligent in the final year, the City Council is estopped to deny the final extension request for lack of diligence over the course of the entire four years. Collateral estoppel does not apply here. For an administrative decision to have collateral estoppel effect, it and its prior proceedings must possess a judicial character. [Citation.] Indicia of proceedings undertaken in a judicial capacity include a hearing before an impartial decision maker; testimony given under oath or affirmation; a partys ability to subpoena, call, examine, and cross-examine witnesses, to introduce documentary evidence, and to make oral and written argument; the taking of a record of the proceeding; and a written statement of reasons for the decision. [Citation.] (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944.) South Hills did not demonstrate either in the trial court or on appeal, that the process by which the City Council granted the prior extensions of the Tentative Map possessed the requisite judicial character as described above.

The petition for rehearing is denied.

There is no change in the judgment.

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