Ziburtovicz v. City of
Filed 4/3/13 Ziburtovicz v. City of Oroville 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Butte)
----
ALEXANDER ZIBURTOVICZ,
Plaintiff and Appellant,
v.
CITY OF OROVILLE,
Defendant and Respondent.
C070745
(Super. Ct. No. 154714)
Representing
himself, plaintiff Alexander Ziburtovicz filed a petition for writ of mandate
under the California Environmental Quality
Act (CEQA; Pub. Resources Code, § 21000 et seq.) challenging approval of an affordable senior
housing project by defendant City
of Oroville (the city). Ziburtovicz’s
petition failed to name the project applicant as a real party in interest. The trial court sustained the city’s demurrer
without leave to amend because Ziburtovicz failed to join a necessary and
indispensible party (the project applicant) and the
to do so. On Ziburtovicz’s appeal (in
which he also represents himself) from the resulting judgment of dismissal, we
affirm because the trial court got it right.
FACTUAL
AND PROCEDURAL BACKGROUND
Ziburtovicz
lived on the same street of the proposed senior housing project. The proposed site was the location of the
now-closed Oroville Hospital
in the city’s historic downtown district.
In May
2011, Petaluma Ecumenical Properties applied to develop the site with a senior
housing project. In June 2011, the city
held a public hearing to receive testimony about the proposed project. In June 2011, after public comment and
discussion, the Oroville Planning Commission (the planning commission) approved
the proposed project. Ziburtovicz
appealed the approval to the Oroville City Council (the city council). After public comment and discussion, the city
council denied the appeal and confirmed the approval.
On August 19, 2011, the city filed a
notice that the proposed senior housing project was categorically exempt from
CEQA because it met the requirements for affordable housing.
On September 15, 2011, Ziburtovicz filed
a petition for writ of mandate seeking to compel the city to “perform [d]ue
[p]rocess under CEQA†and file an environmental impact report. The only party named in the lawsuit besides
Ziburtovicz was the city. The city filed
a demurrer to the petition for Ziburtovicz’s failure to name Petaluma
Ecumenical Properties, a necessary and indispensible party, as a real party in
interest.
The trial
court sustained the demurrer without leave to amend because Petaluma Ecumenical
Properties was a necessary and indispensible party and the statute of
limitations had run on naming it in the petition. The trial court then dismissed the case.
DISCUSSION
To properly
file a mandamus proceeding against a public agency, “[a]ppropriate entities
must be named by the petitioner as parties.
Any ‘recipient of an approval that is the subject of the action or proceeding’ must be named as a real party in interest and
must be served within 20 days of service on the public agency and failure to
serve may result in dismissal under Code Civ. Proc. §389. [Pub. Resources Code, §21167.6.5 subd. (a)(d)
effective January 1, 2003].†(Robie et al., Cal.
Civil Practice: Environmental Litigation
(2012) § 8:26.)
Here,
Petaluma Ecumenical Properties was a recipient of an approval that had to be
named as a party. It applied to develop
the site and then received approval of its proposed senior housing project from
the planning commission and then confirmation of that approval from the city
council. Nevertheless, Ziburtovicz
contends the approval was only a “ ‘pre-approval,’ †so Petaluma Ecumenical
Properties “holds no [c]ontract, but
just a [n]on[-][b]inding [a]greement.â€
He cites no law to support his position and nothing to refute the facts
demonstrating Petaluma Ecumenical Properties received approval of its project. As such, it had to be named as a party, and
the trial court was correct in so holding.
The trial
court was also correct in denying leave to amend his petition to add Petaluma
Ecumenical Properties as a real party in interest because the statute of
limitations to do so had expired. An
action challenging an agency’s determination that a project is exempt from CEQA
must be filed within 35 days of the notice of exemption’s filing by the public
agency. (Pub. Resources Code, § 21167,
subd. (d).) Here, the notice of
exemption was filed August 19, 2011.
Thirty five days after that was September 23, 2011. Ziburtovicz had until then to add Petaluma
Ecumenical Properties to his petition.
He never did so. Nor was the
statute tolled. The filing of the
original petition stops the running of the statute of limitations only as to
the parties named at the time the petition was filed. (Thompson
v. Palmer Corp. (1956) 138 Cal.App.2d 387, 395.)
The trial
court therefore did not abuse its discretion in sustaining the city’s demurrer
without leave to amend because Ziburtovicz had failed to join a necessary and
indispensible party and the time had passed in which he could do so. (See Cooper
v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 [standard of review].)
DISPOSITION
The judgment (order of dismissal) is
affirmed. The city shall recover its
costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(1).)
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
DUARTE , J.
