Jun 27, 2022
TENTATIVE RULINGS                                    
Wednesday, June 22, 2022, 3:00 p.m.         
Courtroom 19 – Hon. Patrick Broderick for Hon. Gary Nadler
3055 Cleveland Avenue, Santa Rosa
PLEASE NOTE:  Masks need not be worn in the courthouse if you are fully vaccinated.
Persons are considered vaccinated two weeks after the final dose in a primary series of vaccinations.
All unvaccinated persons entering any Sonoma County Superior Courthouse, including any remote jury selection location, shall wear a face covering at all times compliant with all California State Health Orders and CAL/OSHA standards which must completely cover both the nose and mouth. 
CourtCall is not permitted for this calendar.

If the tentative ruling is accepted, no appearance is necessary unless otherwise indicated. 

The tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument, YOU MUST NOTIFY Judge Nadler’s Judicial Assistant by telephone at (707) 521-6725 (Dept. 17's JA) and all other opposing parties of your intent to appear, and whether that appearance is in person or via Zoom, no later 4:00 p.m. the court day immediately preceding the day of the hearing.

Department 16 Hearings
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Department 17 Hearings
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Department 19 Hearings

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PLEASE NOTE: The Court’s Official Court Reporters are “not available” within the meaning of California Rules of Court, Rule 2.956, for court reporting of civil cases. 


1.         MCV-257908, National Collegiate Student Loan Trust 2005-3 v. Mangiafridda:
Defendant’s Demurrer to Complaint is DROPPED. After Defendant filed this demurrer, Plaintiff filed and served a first amended complaint on June 7, 2022. This is in accordance with Code of Civil Procedure (“CCP”) section 472, rendering the demurrer moot.  CCP section 472(a) states, in pertinent part, “A party may amend its pleading once without leave of the court… or after a demurrer… is filed but before the demurrer… is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.” Papers opposing a motion must be served and filed at least 9 court days before the hearing. CCP § 1005(b); California Rule of Court (“CRC”) 3.1300(a).
2.         SCV-269854, Besanceney v. County of Sonoma:
Defendant’s Demurrer to Complaint is DROPPED. After Defendants filed this demurrer, Plaintiff filed a first amended complaint (“FAC”) on March 28, 2022. This is in accordance with Code of Civil Procedure (“CCP”) section 472, rendering the demurrer moot. A discovery facilitator was appointed and filed a report noting discussions with both parties and further indicating that the demurrer is moot in light of the FAC and based on the discussions with the parties.
3.         SCV-269993, Leczner v. County of Sonoma, Permit and Resource Management Department, Code Enforcement:
Demurrer to Petition for Writ of Administrative Mandamus SUSTAINED with leave to amend. Petitioners have leave to amend within 10 days of the service of the notice of entry of this order. Respondent is to serve the notice of entry of this order within 5 days of entry of this order. CRC 3.1320(g).
Petitioners, alleging that they are the owners of real property at 4000 Jobe Lane, Santa Rosa, CA (“The Property”), seek a writ of mandate directing Respondent to set aside the Decision and Order of Hearing Officer Kimberly Buchholz dated October 14, 2021 (“the Order”) and to grant their appeal of the Order. They contend that in the Order, the Hearing Officer incorrectly found that they had violated Sonoma County Municipal Code and owed penalties and abatement costs, had failed to file a timely appeal and thus waived their right to contest the determinations. More specifically, they allege that Respondent and the Hearing Officer improperly applied the law and “failed to recognize that Code of Civil Procedure sections 12a and 1013 applied to extend the time by seven days that [Petitioners] could appeal….” Pet. ¶14. 
This matter is now on calendar for Respondent’s Demurrer to Petition for Writ of Administrative Mandamus. It demurs on the grounds that the court lacks subject-matter jurisdiction and the petition fails to state facts sufficient to constitute a cause of action. It argues that the Petition demonstrates on its face that Petitioners failed to file a timely appeal and accordingly failed to exhaust administrative remedies because the Petition expressly relies on the application of Code of Civil Procedure (“CCP”) sections 12a and 1013 to extend the time for appealing in administrative proceedings, but those provisions as a matter of law do not apply to an agency’s administrative proceedings.
Petitioners oppose the demurrer. They argue that they did exhaust administrative remedies and challenge the very finding that they did not file a timely appeal, reiterating their allegation that their appeal was timely because Respondent and the Hearing Officer improperly applied the law and failed to recognize that CCP sections 12a and 1013 applied to extend the time for appealing by seven days in their instance. They assert that CCP sections 12a and 1013 do apply because they are procedural provisions “of general application” and have “been broadly construed,” so they have been found to apply to petitions for administrative mandamus.  
Respondent has filed a reply.
A demurrer can only challenge a defect appearing on the face of the pleading, exhibits thereto, and judicially noticeable matters. CCP section 430.30;Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The grounds for a demurrer are set forth in CCP section 430.10. The grounds, as identified in the statute, include: (a) the court lacks subject-matter jurisdiction, and (e) the pleading fails to state facts sufficient to constitute a cause of action. 
The demurrer for lack of subject- matter jurisdiction will only lie where the face of the complaint demonstrates that the court is not competent to act and lacks the power to grant the relief requested. Buss v. J.O. Martin Co. (1966) 241 Cal.App.2d 123, 133; Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1421.
Demurrer for failure to state facts sufficient to constitute a cause of action is a general demurrer, which must fail if there is any valid cause of action. CCP section 430.10(e); Quelimane Co., Inc. v. Steward Title Guar. Co. (1998) 19 Cal.4th 26, 38; Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.
It is well established that a petitioner must normally exhaust administrative remedies before filing an action challenging an agency’s actions. Jonathan Neil & Assocs, Inc. v. Jones (2004) 33 Cal.4th 917, 930-931 (explaining the history and nature of the exhaustion doctrine); Environmental Law Fund, Inc. v. Town of Corte Madera (1975) 49 Cal.App.3d 105, 111 (“The doctrine of exhaustion of administrative remedies is well settled: it is commonly held that if an administrative remedy is provided by statute or ordinance, a litigant must show that he invoked and exhausted the remedy before he may obtain judicial review of the administrative action taken”); Morton v. Superior Court (1970) 9 Cal.App.3d 977, 981 (“it is settled that the exhaustion of an administrative remedy, where one is available, is a condition precedent to obtaining judicial relief, and that ‘a court violating the rule acts in excess of jurisdiction’ [citations].”); see also, e.g.,; Metcalf v. County of Los Angeles (1944) 24 Cal.2d 267, 269; Pan Pacific Properties, Inc. v. Santa Cruz County (1978) 81 Cal.App.3d 244, 249; Mountain View Chamber of Commerce v. City of Mountain View (1978) 77 Cal.App.3d 82, 88-89; California State Employees’ Assn. v. Williams (1970) 7 Cal.App.3d 390, 394; Aebli v. Bd. of Ed. Of City and County of San Francisco (1944) 62 Cal.App.2d 706, 717-718; Coffey v. Los Angeles Fireman’s Relief Ass’n (1937) 22 Cal.App.2d 510, 511. As the court stated in California State Employees’ Assn., supra, at 394, “the general rule denies jurisdiction to grant judicial relief where the applicant has failed to exhaust an administrative remedy provided by law.”
Exhaustion is a jurisdictional prerequisite and failure to exhaust administrative remedies will deprive the court of jurisdiction. Mountain View Chamber of Commerce, supra; Environmental Law Fund, Inc. v. Town of Corte Madera, supra; Pan Pacific Properties, supra. Accordingly, it is proper to sustain a demurrer for lack of subject-matter jurisdiction or failure to state facts sufficient to constitute a cause of action where the pleading or judicially noticeable matters demonstrate on their face that the plaintiff or petitioner failed to exhaust administrative remedies. See Mountain View Chamber of Commerce, supra; Pan Pacific Properties, supra. This is also true where petitioners make a conclusory allegation that they have exhausted administrative remedies if it appears from the face of the matters which the court may consider that they in fact did not. Pan Pacific Properties, supra.
According to Sonoma County Code (“SCC”) section 1-7.3(a), code enforcement officers “may issue a notice and order requiring abatement of a violation.” Any person whom such an administrative action affects may appeal to the hearing officer. SCC section 1-7.3(e)(1). As Respondent points out, SCC section 1-7.3(e)(2) states that such an appeal “must be made in writing and submitted to the enforcing officer within ten (10) calendar days from the date of the administrative action.” 
CCP section 1013 does not apply to a municipality’s administrative procedure. White v. De Martini (1960) 183 Cal.App.2d 665, 668. In general, CCP section 1013 “relates only to the subject matter of the chapter of the code in which it appears and which deals with notices and filing and service of papers; it does not apply to notices generally which are required to be given under Civil Code sections, independently of pending actions….” Alphonzo E. Bell Corp. v. Listle (1942) 55 Cal.App.2d 300, 306 (citing Colyear v. Tobriner (1936) 7 Cal.2d 735).
CCP section 1013 does not apply to statutes setting forth jurisdictional deadlines such as a notice of appeal. San Mateo Federation of Teachers v. Public Employment Relations Bd. (1994) 28 Cal.App.4th 150, 155; Richards v. Miller (1980) 106 Cal. App.3d Supp. 13, 16; Code Civ. Proc., § 1013, subd. (a) (“the extension shall not apply to extend the time for filing . . . [a] notice of appeal.”).
Petitioners counter that CCP section 1013 “is a procedural statute of broad application,” and is “broadly construed,” not limited to rules or statutes which expressly incorporate its terms, citing Simpson v. Williams (1987) 192 Cal. App.3d 285, at 289, and California Accounts, Inc. v. Superior Court (1975) 50 Cal. App.3d 483, at 486-487. These basic statements are true, but only in the context of court proceedings to which the Code of Civil Procedure applies. The court in Simpson addressed the application to the filing of an action for declaratory relief under Business and Professions (“B&P”) Code 6204(c) while California Accounts involved timeliness in the context of discovery in a pending civil action.
Petitioners also contend that the court in California Accounts, at 487, found that CCP section 1013 “extends the statutory time for filing a petition for administrative mandamus pursuant to Code of Civil Procedure section 1094.5 where notice of the administrative action is served by mail.” See, also, Sinclair v. Baker (1963) 219 Cal. App.2d 817, at 822 (cited and relied upon in California Accounts). 
Petitioners are correct that, in the absence of an exception expressly created by statute or rules, section 1013 applies to extend any prescribed time period following service by mail. Richards v. Miller (1980) 106 Cal. App.3d Supp. 13, 17. Once again, however, the court in Richards was addressing the application to a motion in a civil proceeding in court, not an administrative proceeding.
Moreover, it is clear that CCP section 1013 does not extend the deadline where specific statutes govern petitions for writ of mandate, or where the deadline for taking action is based on a date other than the date of service. Camper v. Workers’ Comp. Appeals Bd. (1992) 3 Cal.4th 679, 684-685; Donnellan v. City of Novato (App. 1 Dist., 2001) 86 Cal.App.4th 1097, 1104-1105; Department of Industrial Relations, Div. of Labor Standards Enforcement v. Atlantic Baking Co., Inc. (App. 2 Dist., 2001) 89 Cal.App.4th 891, 894-895. Accordingly, CCP section 1013 does not, for example, apply to petitions for writ of mandate such as those under Labor code section 3725, imposing a specific 45-day period which begins to run from the date of “mailing” of the notice of findings, not the date of “service.”    Department of Industrial Relations, Div. of Labor Standards Enforcement v. Atlantic Baking Co., Inc. (2001) 89 Cal.App.4th 891, 894-895. This is because section 1013 applies to extend the deadline only “[w]here the relevant time limit begins to run from the service of a document to which a response is directed,” and “where the time period is commenced by an act other than service, section 1013 does not operate to extend the filing deadline.” Ibid. Similarly, section 1013 is inapplicable when a time period commences with “issuance” of an order rather than “service.” San Mateo Federation of Teachers v. Public Employment Relations Bd. (1994) 28 Cal.App.4th 150, 153. “Issuance” of an order occurs on the date the order is mailed. Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal.App.3d 922, 929.
CCP section 1094.6 governs judicial review of a decision of a local agency, other than a school district, pursuant to CCP section 1094.5. Section 1094.6(b) specifies a 90-day deadline and expressly states that CCP section 1013 “does not apply to extend the time, following deposit in the mail of the decision or findings, within which a petition shall be filed.” 
In any case, even assuming that CCP section 1013 applies to the deadline for bringing a petition for writ of mandate challenging Respondent’s actions and the decision, nothing indicates that it applies to Respondent’s own administrative deadlines for an appeal, which is the issue here.
Petitioners are also correct that the court in Highland Plastics v. Enders (1980) 109 Cal.App.3d Supp. 1, at 8, noted that the court in Pesce v. Dept. Alcoholic Bev. Control (1958) 51 Cal.2d 310, at 311, applied the extensions of section 1013, to service of notices of decisions and orders of an administrative agency, specifically a proceedings of the Department of Alcoholic Beverage Control subject to a 40-day appeal deadline in B&P Code section 23081. However, the Pesce court explained that section 1013 applied to the agency’s administrative proceedings because B&P Code section 25760 expressly stated that it did, making clear that any notice of the department’s acts, if by mail, must be made in the manner set forth in CCP section 1013. 
The result is that the face of the petition demonstrates a failure to exhaust administrative remedies. Petitioners allege one basis for having so exhausted their remedies yet as a matter of law on the face of the pleading, this is incorrect. 
Accordingly, the court SUSTAINS the demurrers. Because this is the first petition and Petitioners have not yet had an opportunity to amend, the court grants Petitioners leave to amend. The prevailing party shall prepare and serve a proposed order consistent with this tentative ruling within five days of the date set for argument of this matter. Opposing counsel shall inform the preparing counsel of objections as to form, if any, or whether the form of order is approved, within five days of receipt of the proposed order. The preparing party shall submit the proposed order and any objections to the court in accordance with California Rules of Court, Rule 3.1312.
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