ALAN WOFSY ASSOCIATES v. CITY OF BERKELEY

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Court of Appeal, First District, Division 2, California.

ALAN WOFSY & ASSOCIATES, Plaintiff and Appellant, v. CITY OF BERKELEY, Defendant and Respondent.

No. A042987.

Decided: September 25, 1989

Judith A. Mazia, P.C., San Francisco, for plaintiff and appellant. Manuela Albuquerque, City Atty., Thomas B. Brown, Senior Atty., Berkeley, for defendant and respondent.

This is an appeal by Alan Wofsy & Associates (hereinafter Wofsy) from the trial court's dismissal of its complaint without leave to amend, following the granting of the City of Berkeley's (hereinafter the City) motion for judgment on the pleadings.   The issues on appeal focus on whether or not Wofsy has a cause of action against City under Government Code section 815.6 1 for damages resulting from the city clerk's failure to perform her mandatory duty to certify and transmit Wofsy's final map from the date the map was deemed approved by law, June 18, 1985, to the date the city clerk complied with the peremptory writ, September 4, 1987.   We will hold that statutory governmental tort liability under section 815.6 (liability of public entity for breach of mandatory duty imposed by enactment designed to protect against risk of a particular kind of injury) cannot be properly imposed on the City for violation of the Subdivision Map Act.   The Subdivision Map Act provisions are part of a comprehensive legislative scheme designed to ensure procedural fairness, for both developers and the public, in the area of community development.   The Map Act does not set forth a private cause of action for damages for breach of its provisions.   Since injury of the kind sustained by Wofsy is not one of the consequences which the Legislature sought to prevent through imposition of the alleged mandatory duty, liability does not obtain under section 815.6.   This court affirms the order of the trial court.

BACKGROUND

On August 27, 1984, Wofsy submitted an application for a tract map and tentative map for the creation of a planned residential development to the Department of Public Works.

On October 3, 1984, after public hearing, the planning commission approved Wofsy's tentative map subject to certain conditions.   The most important of these were:  that the tenants were granted a 90–day option to buy the subject property for $850,000;  that the tenant group exercising the option had to include 60 percent of the existing tenants;  and that Wofsy was to provide $10,000 technical assistance for the tenants in purchasing the property.   On October 18, 1984, opponents of the proposed subdivision filed a notice of appeal of the planning commission decision with the city council.   On November 20, 1984, the city council upheld the approval of the tentative map and dismissed the appeal.

On February 11, 1985, Wofsy submitted its final map to the Department of Public Works.   On March 29, 1985, the Department of Public Works informed Wofsy that its final map had been found to be correct and in compliance with Wofsy's tentative map and that a performance bond was required prior to certification by the city engineer.

On April 4, 1985, Wofsy submitted a Performance Bond and Improvement Agreement to the Department of Public Works and requested that the city engineer certify its final map and file the map with the city clerk.

On April 15, 1985, a petition for writ of mandate (“Candelario action”) seeking revocation of Wofsy's final map was filed in superior court against the City by opponents of the proposed subdivision.   Petitioners in the Candelario action never applied for the issuance of an alternative writ or moved for a stay of proceedings concerning Wofsy's final map.

In his transmittal memo dated April 22, 1985, the assistant city engineer stated that all the required findings by the city engineer had been met and recommended that Wofsy's final map be certified by the city engineer and filed with the city council.   The assistant city engineer also advised the city engineer that he was required to certify appellant's final map and file it with the city clerk within 20 days of submittal of the map in accordance with section 66442, subdivision (b), and section 21.36.070 of the Berkeley Subdivision Ordinance.

On May 9, 1985, the city engineer certified Wofsy's final map.

On May 23, 1985, Wofsy's final map was transmitted by the Department of Public Works to the city council for its approval.   Wofsy's final map was placed on the city council's consent calendar for June 4, 1985.

On May 22, 1985, the Department of Public Works informed appellant that the senior attorney of the city attorney's office had pulled appellant's final map off the city council consent calendar of June 4, 1985.   They also informed Wofsy that its final map had been rescheduled for the city council consent calendar of June 18, 1985.

On June 3, 1985, the senior attorney informed Wofsy's counsel that Wofsy's final map had been taken off the June 18, 1985, City Council consent calendar by the city attorney's office and that the matter would be “postponed indefinitely” pending settlement negotiations in the Candelario action.

At no time did Wofsy consent to any extensions of time in the processing of its final map.   On June 6, 1985, Wofsy's counsel sent a settlement letter in the Candelario action to the city attorney's office and the petitioning party's counsel.   Neither the city attorney's office nor the petitioner ever responded to Wofsy's settlement letter.

On June 18, 1985, Wofsy's counsel requested that the city clerk certify its final map in accordance with section 66458, subdivision (b), and transmit Wofsy's final map for final recordation in accordance with section 66464, subdivision (a).

STATEMENT OF THE CASE

On July 2, 1985, Wofsy filed a petition in the superior court for writ of mandate under Code of Civil Procedure section 1085 to compel the city clerk to certify Wofsy's final map in accordance with section 66458, subdivision (b), and to transmit the final map for final recordation in accordance with section 66464, subdivision (a).   The superior court ordered the issuance of an alternative writ of mandate which was issued on July 9, 1985.   On July 25, 1985, the superior court discharged the alternative writ and denied the peremptory writ of mandate.   Wofsy filed a notice of appeal on October 21, 1985, and on February 18, 1987, the Court of Appeal directed the superior court to issue a peremptory writ compelling the city clerk to certify Wofsy's final map in accordance with section 66458, subdivision (b), and to transmit Wofsy's final map for final recordation in accordance with section 66464, subdivision (a).   On March 5, 1987, the City filed a petition for rehearing.   Rehearing was granted on March 17, 1987.   On April 27, 1987, the Court of Appeal issued a second opinion directing the superior court to issue a peremptory writ.

On June 8, 1987, the City filed a petition of review with the California Supreme Court.   The petition was denied on July 23, 1987, and a remittitur issued on August 10, 1987.

On August 28, 1987, the superior court ordered the issuance of a peremptory writ, which was issued on September 2, 1987, and served on the city clerk on September 3, 1987.

On September 4, 1987, the city clerk certified Wofsy's final map and transmitted the final map for final recordation.

On or about December 9, 1989, appellant presented a damage claim to the City under section 905 for damages resulting from the city clerk's failure to certify and transmit appellant's final map for final recordation from June 18, 1985, the date the map was deemed approved by operation of law, to September 4, 1987, the date the city clerk complied with the peremptory writ.   On January 11, 1988, the City rejected Wofsy's damage claim.

On February 23, 1988, Wofsy filed a complaint for damages under section 815.6 for damages resulting from the city clerk's failure to perform her mandatory duty to certify and transmit Wofsy's final map from June 18, 1985 to September 4, 1987.   On March 17, 1988, the City filed a demurrer to the complaint for damages based on Wofsy's alleged failure to comply with the claims-filing deadline of former section 911.2.

On April 7, 1988, the superior court overruled the City's demurrer in its entirety.   On April 21, 1988, the City filed an answer to the complaint for damages.   On April 28, 1988, the City filed a motion for judgment on the pleadings on the ground that mandamus is the exclusive remedy for violation of the Subdivision Map Act.   On May 18, 1988, the superior court granted the City's motion for judgment on the pleadings.

A judgment of dismissal was entered on June 20, 1988.   On July 13, 1988, appellant timely filed a notice of appeal.

DISCUSSION

Standard of Review

 A motion for judgment on the pleadings is made on the same grounds, and is decided on the same basis, as a general demurrer.  (6 Witkin, Cal. Procedure (3d ed.1985) Proceedings Without Trials, § 263, p. 565.)   On appeal, the appropriate standard requires an appellate court to accept facts well pled in the complaint as true.   Arriving at legal conclusions, of course, remains the province of the court.  (Palmer v. City of Ojai (1986) 178 Cal.App.3d 280, 290, 223 Cal.Rptr. 542.)

Noncompliance With Claims–Filing Statute

The City filed a demurrer to the complaint for damages based on Wofsy's alleged failure to comply with the claims-filing deadline of section 911.2.   The superior court overruled the demurrer in its entirety.   City, however, raises the issue again in this appeal.   We have affirmed the motion for judgment on the pleadings on other grounds and do not reach this issue.

Damages

 In California, governmental tort liability must be based on statute (Tort Claims Act, section 810 et seq.)  Section 815.6 is the basis for liability relied upon by Wofsy.  Section 815.6 provides as follows:  “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”   In order to establish liability under this section, three elements must be satisfied:  (1) the duty must be mandatory, not discretionary;  (2) the enactment must be intended to protect against the kind of risk of injury the plaintiff suffered;  and (3) breach of duty must be the proximate cause of the injury suffered.  (First Interstate Bank v. State of California (1988) 197 Cal.App.3d 627, 636, 243 Cal.Rptr. 8.)

The first element, the enactment imposes a mandatory duty, is satisfied by the Court of Appeal findings in the earlier case granting a writ of mandate to Wofsy.   The Court of Appeal held that the map had been approved by operation of law pursuant to section 66458, subdivision (b) (the Map Act), and compelled the city clerk to transmit the final map to the county recorder for recordation.   The law under the Subdivision Map Act is clear that approval of the final map is mandatory once the appropriate officials certify that it is in substantial compliance with the previously approved tentative map.   (Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 656, 150 Cal.Rptr. 242, 586 P.2d 556.)

The second element of section 815.6, enactment intended to protect against kind of injury suffered, is not so easily decided within the context of our facts.   Both parties concede that there is no case law or authority on the issue of whether a cause of action for damages arises from a violation of the Subdivision Map Act.   The key to the discussion then is the legislative intent behind the enactment of the Subdivision Map Act and whether or not it was designed as a basis for damage suits.   Wofsy relies on language from two cases, Youngblood v. Board of Supervisors, supra, 22 Cal.3d at p. 656, 150 Cal.Rptr. 242, 586 P.2d 556, and Great Western Sav. & Loan Assn. v. City of Los Angeles (1973) 31 Cal.App.3d 403, 411, 107 Cal.Rptr. 359, to argue that the Legislature intended that the provisions of the Map Act should prevent financial loss to a subdivider as a result of delays in the processing of a final map.

The City summarizes the primary purposes of the Map Act as follows:  (1) to encourage orderly community development by providing for the regulation and control of the design and improvement of the subdivision, with a proper consideration of its relation to adjoining areas (Santa Clara County Contractors etc. and Homebuilders Ass'n v. City of Santa Clara (1965) 232 Cal.App.2d 564, 572–573, 43 Cal.Rptr. 86);  (2) to ensure that the areas within the subdivision that are dedicated for public purposes will be properly improved by the subdivider so that they will not become an undue burden on the community (Bright v. Board of Supervisors (1977) 66 Cal.App.3d 191, 194, 135 Cal.Rptr. 758);  and (3) to protect the public and individual transferees from fraud and exploitation (Pratt v. Adams (1964) 229 Cal.App.2d 602, 606, 40 Cal.Rptr. 505).

Wofsy claims that Youngblood and Great Western show a clear legislative intent to protect the subdivider from financial loss.   Neither case, however, involves the issue of damages.  Youngblood touches on the topic of damages but only in the context of a general discussion regarding the necessity of an approval process whereby the discretionary decision to approve or disapprove a proposed subdivision comes at the tentative map stage.   Similarly, Great Western discusses the financial burden faced by a developer involved in the approval process, but again only to make the point that it would be unfair to make the developer pay out money to comply with the conditions attached to the tentative map and then not approve the final map.  Youngblood and Great Western stand for the proposition that approval of a final map that substantially complies with the tentative map and its conditions should be mandatory, and each remedied the delay in processing the final map by issuing a writ of mandate.

Both Wofsy and the City discuss Palmer v. City of Ojai, supra, 178 Cal.App.3d 280, 223 Cal.Rptr. 542, at great length.   At issue in Palmer were provisions of the Permit Streamlining Act which are analogous to those of the Subdivision Map Act.   The Permit Streamlining Act provides that if an agency fails to act on a development application within one year, the application automatically becomes “deemed approved” by operation of law.   The Court of Appeal in Palmer held monetary damages are not available for violations of the Permit Streamlining Act.   Instead, the remedy is the approval of the permits.   Although in its decision, the court quotes liberally from Agins v. City of Tiburon (1979) 24 Cal.3d 266, 157 Cal.Rptr. 372, 598 P.2d 25, the wording of the opinion makes it clear that Agins was not the sole basis for its ruling that money damages will not be awarded for illegal acts under land-use law.   The fact that the Agins rule on the inverse condemnation remedy was subsequently overruled by the United States Supreme Court in First Lutheran Church v. Los Angeles County (1987) 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250, should have no affect on the legal principles used in Palmer to decide that the appropriate remedy for violation of a mandatory duty is an action for writ of mandate or declaratory relief, not monetary damages.

What seals Wofsy's fate in this case is the mandate of the Tort Claims Act.   There shall be no liability on the part of a public entity unless it is provided for by statute.   If the Legislature had intended damages to be a remedy for a violation of the provisions of the Subdivision Map Act, it should have expressly provided for such a remedy.   City argues, and we agree, that it is not the authority of the court to impute a particular intention to a statute when nothing in the statute's language implies such an intention.   (Struckman v. Board of Trustees (1940) 38 Cal.App.2d 373, 376, 101 P.2d 151.)   As it is stated in Palmer, “[i]f a new trail is to be blazed in this area, it is more appropriately in the province of the Legislature rather than the courts.”  (Palmer v. City of Ojai, supra, 178 Cal.App.3d at p. 295, 223 Cal.Rptr. 542.)   Since it is clear that the provisions of the Subdivision Map Act were directed at the orderly approval of subdivision maps, not as a safeguard against the costs and expenses developers incur during the approval process, Wofsy has failed to state facts which satisfy the second element required for a cause of action under section 815.6.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Government Code unless otherwise indicated.

BENSON, Associate Justice.

KLINE, P.J., and SMITH, J., concur.