Filed 11/24/14 Sedrak v. City of Norco CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



FAYEZ SEDRAK,                                                       D066208

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. RIC10022513)

CITY OF NORCO,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of Riverside County, Daniel A.

Ottolia, Judge. Affirmed.

         The Law Office of Wende Berge and Wendy May Benge for Plaintiff and

Appellant.

         Creason & Aarvig, LLP, Maria K. Aarvig and Diane K. Huntley for Defendant

and Respondent.

         This appeal arises out of an agreement between Fayez Sedrak and the City of

Norco (Norco) in which Norco agreed to purchase an easement on Sedrak's land where he

had operated a gas station, at a cost of almost $1.5 million, to allow for the widening of a
road. That widening left insufficient space for operation of a gas station. Nevertheless,

after Norco purchased the easement, and after Sedrak had closed down and demolished

the former gas station on the property, he sought a conditional use permit (CUP) to build

a new gas station and convenience store on the property. Norco denied Sedrak the CUP.

       Sedrak filed suit, in which he initially joined a petition for writ of mandamus (writ

petition) with his complaint for declaratory relief. After the court granted Sedrak's

motion for separate trials on his declaratory relief cause of action and writ petition,

Sedrak voluntarily dismissed his writ petition. Norco thereafter filed a motion for

judgment on the pleadings on the ground Sedrak failed to exhaust his judicial remedies

by failing to bring his writ petition to a conclusion before pursuing his declaratory relief

cause of action. The court granted the motion with leave to amend. Norco demurred to

Sedrak's amended complaint, which the court sustained without leave to amend.

       Sedrak appeals, asserting (1) the court erred in sustaining the demurrer without

leave to amend, (2) he alleged sufficient facts to support each cause of action alleged, and

(3) the court's failure to make requested findings of fact in its statement of decision was

reversible error. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       A. Introduction

       As a preliminary note, we address Sedrak's claim that Norco has "twisted, ignored,

left out relevant facts, refused to rebut Appellant's claims and has falsely misstated facts

seeking to misinform this court with inaccurate and incomplete statements that have a

direct and discriminatory impact on Appellant." However, Sedrak, in the factual

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background sections of both his opening and reply briefs, has largely failed to support his

version of the events leading up to this litigation with citations to the record.

         California Rules of Court, rule 8.204(a)(1)(C) requires that briefs "[s]upport any

reference to a matter in the record by a citation to the volume and page number of the

record where the matter appears." "'When an appellant's brief makes no reference to the

pages of the record where a point can be found, an appellate court need not search

through the record in an effort to discover the point purportedly made. [Citations.] We

can simply deem the contention to lack foundation and, thus, to be forfeited.'" (Dietz v.

Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 800.)

         Therefore, we shall not consider those portions of Sedrak's factual background

sections in his briefs that are not supported by citations to the record.

         B. Factual Background

         Sedrak operated a gas station on his property on Hamner Avenue (Hamner).

However, when Norco planned to widen Hamner, it entered into negotiations with Sedrak

as to the impact of the roadwork on his gas station. As a result, Norco and Sedrak

entered into a purchase and sale agreement that provided Sedrak would be paid

$1,490,440 in exchange for shutting down the gas station, removing the structures on the

property, and conveying an easement to Norco across a portion of his property. The

agreement also required that Sedrak shut down the gas station upon 30 days notice from

Norco.

         The road construction was delayed, and Sedrak was allowed to operate his gas

station during that time. While the construction was delayed, Sedrak removed gas

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pumps, the existing canopy and other items on the property that interfered with Norco's

easement.

       Three years later Norco gave the 30-day notice that Sedrak had to close his

business. In response, he refused. Instead, he applied for a CUP to build a larger

business containing a Circle K convenience store and a Conoco-Phillips 76 gas station.

Norco's planning commission denied the CUP application. The basis for the denial of the

application given by Norco was that "[t]he size and shape of the site for the proposed use

is not adequate to allow the full development of the proposed use in a manner not

detrimental to the particular area as the proposed development does not meet all

applicable development standards." Norco's city council upheld the planning

commission's decision.

       C. Procedural Background

       Thereafter, Sedrak filed his complaint in this action, which contained his writ

petition and a cause of action for declaratory relief. Sedrak then moved for separate trials

on his writ petition and declaratory relief cause of action. The court granted Sedrak's

motion, ruling the actions should not be tried together and set a date for briefing on the

writ petition. However, on the date set for the filing of his opening brief as to the writ

petition, Sedrak dismissed his writ petition.

       Norco then filed a motion for judgment on the pleadings as to the remaining cause

of action for declaratory relief. The court granted the motion, but allowed Sedrak leave

to amend his complaint.



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       Sedrak thereafter filed his first amended complaint which, in addition to his

declaratory relief cause of action, added causes of action for breach of contract,

fraudulent misrepresentation, negligent misrepresentation, breach of the implied covenant

of good faith and fair dealing, and intentional and negligent interference with economic

advantage. These claims were all based upon an alleged agreement with Norco to build a

new gas station and convenience store.

       In response, Norco filed a demurer. The demurer asserted (1) Sedrak had failed to

allege compliance with the government tort claim act; (2) the declaratory relief cause of

action failed to state a claim to challenge the constitutionality of Norco's municipal code;

and (3) Sedrak failed to exhaust his judicial remedies before challenging the denial of his

CUP.

       At the hearing on the demurrer, the court made the following findings:

          "First, as an applied challenge to the decision of the City of Norco
          regarding plaintiff's conditional use permit, the Court finds that it is
          barred by the failure to exhaust judicial remedies. The plaintiff was
          required to seek review of the City's denial of its conditional use
          permit by timely mandamus action challenging the ordinance as
          applied to him. Plaintiff originally did so, but dismissed that cause
          of action. Now any mandamus action will be untimely. As such any
          challenge of the City's denial of plaintiff's conditional use permit is
          barred. [¶] Second, the claims are barred because plaintiff failed to
          file a government claim. The Court does not consider plaintiff's
          appeal of the decision denying his conditional use permit as
          equivalent to a government claim. [¶] Third, as to the declaratory
          relief claim, based upon a facial challenge to the constitutionality of
          the ordinance, the Court finds that the ordinance is constitutional on
          its face. Examining the ordinance to determine if it is reasonably
          related to the welfare of the public, the Court finds that the ordinance
          restricting gas stations within the city is reasonably related to the
          welfare of the public."


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       Thereafter, the court entered a written order, confirming that the demurrer was

sustained without leave to amend, "for the reasons stated in court" at the hearing.

                                       DISCUSSION

       A. Standards Governing Demurrers

       When reviewing a demurrer ruling, we determine whether the complaint states a

cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120,

125.) Although we assume that the complaint's well-pleaded allegations are true, we do

not assume the truth of conclusions of fact or law. (Ibid.) Appellate courts interpret the

complaint reasonably by "reading it as a whole and all its parts in their context." (Ibid.)

       Facts appearing in exhibits to a complaint, like well-pleaded allegations in the

complaint, are taken as true on demurrer. (Dodd v. Citizens Bank of Costa Mesa (1990)

222 Cal.App.3d 1624, 1627.) When the facts in exhibits are contrary to the facts alleged

in the complaint, however, the exhibits take precedence. (Ibid.)

       We need not accept as true allegations that are contradicted or inconsistent with

matters subject to judicial notice, including exhibits attached to the complaint. (Del E.

Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; Holland v.

Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447.) Appellate courts may

rely on and accept as true the contents of exhibits attached to the complaint and "treat as

surplusage the pleader's allegations as to the legal effect of the exhibits." (Barnett v.

Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.)




                                              6
                                       II. ANALYSIS

       A. Failure To Exhaust Judicial Remedies

       As we shall explain, before Sedrak could pursue a damages claim against the City

he was required to exhaust his judicial remedies under Code of Civil Procedure1 section

1094.5. In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 484, the

California Supreme Court held that unless a party to a quasi-judicial proceeding

challenges the agency's adverse findings made in that proceeding, by means of a mandate

action in superior court, those findings are binding in later civil actions. This requirement

of exhaustion of judicial remedies is to be distinguished from the requirement of

exhaustion of administrative remedies. (Knickerbocker v. City of Stockton (1988) 199

Cal.App.3d 235, 241.)

       Exhaustion of administrative remedies is "a jurisdictional prerequisite to resort to

the courts." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293.)

Exhaustion of judicial remedies, by contrast, is necessary to avoid giving binding "effect

to the administrative agency's decision, because that decision has achieved finality due to

the aggrieved party's failure to pursue the exclusive judicial remedy for reviewing

administrative action." (Briggs v. City of Rolling Hills Estates (1995) 40 Cal.App.4th

637, 646, fn. omitted.)




1      All further statutory references are to the Code of Civil Procedure unless otherwise
specified.
                                             7
       In the absence of a successful challenge under section 1094.5, the underlying

decision of the administrative tribunal is presumed correct and has binding effect because

it has achieved finality. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-70.)

       In this case, rather than seeking to exhaust his judicial remedies, Sedrak

voluntarily dismissed his writ petition on the day his opening brief was due. By doing

this, he could not exhaust his judicial remedies before pursuing the remainder of his

claims. Therefore, this defect could not be corrected by further amendment of his

complaint and the court properly sustained the demurrer without leave to amend.

       Sedrak asserts that his complaint is sufficient because he pleaded a cause of action

for declaratory relief and that is akin to a writ petition. This contention is unavailing.

       As the California Supreme Court held in State v. Superior Court (1974) 12 Cal.3d

237, 251: "[the applicant] is essentially seeking to review the validity of an

administrative action and . . . such review is properly brought under the provisions of

[section 1094.5] rather than by means of declaratory relief." (Italics added.) As this

court explained in City of Santee v. Superior Court (1991) 228 Cal.App.3d 713, 718-719:

          "[A] proceeding under [section 1094.5] is the exclusive remedy for
          judicial review of the quasi-adjudicatory administrative action of the
          local-level agency. [Citation.] :Unless a party seeks a declaration a
          statute or ordinance controlling development is facially
          unconstitutional as applied to all property governed and not to a
          particular parcel of land, an action for declaratory relief may not be
          had. [Citations.] An action for declaratory relief is not appropriate
          to review the validity of an administrative decision. [Citations.]
          Rather, the proper method to challenge the validity of conditions
          imposed on a building permit is administrative mandamus under
          [section 1094.5]. . . . In other words, because the validity of the
          permit condition was at issue in the prior administrative
          proceeding, . . . failure to contest the validity of the . . . conditions

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          by the means provided for judicial review through administrative
          mandamus estops it now from relitigating the same issue . . . ." (Fn.
          omitted.)

       In support of his position that his declaratory relief cause of action sufficed,

Sedrak relies on Lee v. Blue Shield (2007) 154 Cal.App.4th 1369 (Lee). However, that

case is distinguishable.

       Lee involved a failure to exhaust administrative remedies, not a failure to exhaust

judicial remedies. Moreover, in Lee the Court of Appeal noted that because the object of

the plaintiff's complaint was an order compelling an organization to hold a hearing, it

would be treated as a petition for writ of mandate even though it was not labeled as such.

(Lee, supra, 154 Cal.App.4th at p. 1379.) Here, by contrast, Sedrak did file a writ

petition, but then dismissed it voluntarily, evidencing an intent to abandon that claim.

       Further, by failing to obtain a judgment on his writ petition, Sedrak failed to

exhaust his judicial remedies. "There is an obvious and fundamental distinction between

initiating mandamus and obtaining a judgment. The Supreme Court tells us '[a] final

administrative decision includes exhaustion of any available review mechanism.'" (Mola

Development Corp. v. City of Seal Beach (1997) 57 Cal.App.4th 405, 407, italics

omitted.) Because Sedrak failed to bring his writ petition to resolution, he cannot

challenge the City's denial of his CUP application.

       B. Failure To File Governmental Claim

       As noted, ante, one basis upon which the court relied in dismissing Sedrak's action

was his failure to file a governmental tort claim. Sedrak asserts this was error because (1)

he dispensed with the need to file a claim by filing his complaint less than a month after

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the decision of the city council; and (2) the claim filing requirement was tolled because

statutes of limitation "'shall be tolled during the period that charges are pending before

the superior court.'" These contentions are unavailing.

       As to the tolling argument, Sedrak quotes from Government Code section 945.3

(erroneously cited as section 945), which provides: "No person charged by indictment,

information, complaint, or other accusatory pleading charging a criminal offense may

bring a civil action for money or damages against a peace officer or the public entity

employing a peace officer based upon conduct of the peace officer relating to the offense

for which the accused is charged, including an act or omission in investigating or

reporting the offense or arresting or detaining the accused, while the charges against the

accused are pending before a superior court. [¶] Any applicable statute of limitations for

filing and prosecuting these actions shall be tolled during the period that the charges are

pending before a superior court."

       However, this is not an action against a peace officer, and there are no charges

pending in the superior court. Accordingly, Government Code section 945.3 has no

application to this case.

       Moreover, Sedrak's appeal to the city council after the planning commission

denied his CUP application did not constitute a presentation of a government tort claim.

The claim filing statutes require a written document that alleges the factual basis for

recovery, such that it places the public entity on notice of an intent to file a lawsuit.

(Castaneda v. Department of Corrections and Rehabilitation (2013) 212 Cal.App.4th

1051, 1062.)

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       Sedrak asserts that he did not need to comply with the claim filing requirement

because, since he appealed the denial of his CUP application to the city council, Norco

knew about the circumstances of his claim. We reject this contention.

       "The purpose of the claims statutes is not to prevent surprise, but 'to provide the

public entity sufficient information to enable it to adequately investigate claims and to

settle them, if appropriate, without the expense of litigation. [Citations.] It is well-settled

that claims statutes must be satisfied even in face of the public entity's actual knowledge

of the circumstances surrounding the claim.'' (City of Stockton v. Superior Court (2007)

42 Cal.4th 730, 738, italics added.)

       Thus, the trial court properly found that the complaint was barred and properly

sustained Norco's demurrer without leave to amend on this ground as well.

       C. Sedrak's Constitutional Challenge to Ordinances

       Sedrak asserts that he properly challenged the constitutionality of Norco's city

codes and ordinances as to its denial of his CUP through a declaratory relief cause of

action. This contention is unavailing.

       In support of the assertion, Sedrak relies on State v. Superior Court (1974) 12

Cal.3d 237. However, that decision actually supports the court's sustaining of Norco's

demurrer. In State, the California Supreme Court held that "[i]t is settled that an action

for declaratory relief is not appropriate to review an administrative decision." (Id. at p.

249.) Our high court in State acknowledged that declaratory relief is available to

challenge the facial validity of an ordinance, but held that as to a cause of action

attacking the "application" of an ordinance to a particular plaintiff, "such review is

                                              11
properly brought under the provisions of [section 1094.5] rather than by declaratory

relief." (State, at p. 251.)

          Further, to the extent that Sedrak is asserting Norco's ordinances are "facially"

unconstitutional, that claim fails as well. A facial challenge to an ordinance will be valid

only if the plaintiff can show the ordinance is arbitrary and unreasonable, having no

substantial relation to the public health, safety or general welfare. (Associated

Homebuilders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 604-605.) Moreover,

it is presumed that the ordinances are constitutional and, if it is fairly debatable that the

ordinances are reasonably related to the public welfare, the ordinances are constitutional.

(Ibid.)

          Here, the subject ordinances are rationally related to Norco's power to regulate

land use, and, in particular, gas stations. (Clemons v. City of Los Angeles (1950) 36

Cal.2d 95, 99.) As we shall explain, post, in support of its demurrer, Norco requested

that the trial court take judicial notice of its ordinances establishing the reasonableness of

its decision to deny Sedrak a CUP. Sedrak has not cited any facts to dispute those

findings.

          In January 1973 Norco adopted Ordinance No. 243, its first comprehensive zoning

ordinance incorporating the service station development requirements, including the

1,500-foot buffer, as well as the minimum lot size of 22,500 square feet and the

requirement that each service station have no less than three visitor parking spaces.




                                                12
       In September 1981 Norco adopted Ordinance No. 460, slightly modifying the

development standards. A staff report issued in support of the ordinance provides in

relevant part:

          "The Planning Commission noted that the reason Norco's Code is
          restrictive on service station location is to preclude the proliferation
          of service stations on every main intersection and key lot as
          happened in Orange County in the 1960's. . . . However, it appears
          now that the same concerns are reduced . . . . Nevertheless, the
          Planning Commission expressed a desire to retain some criteria on
          location. CALTRANS was contacted for their opinion. They feel
          that corner lots or rear corner lots of interchanges with traffic control
          devices are the safest sites to move fuel trucks on and off while other
          sites need to be carefully reviewed for proper access, traffic visibility
          and ability to cross or move with street traffic. [¶] The present code
          appears to take care of most problems noted by the Planning
          Commission and CALTRANS simply because it restricts service
          stations to very few sites. However, the restrictive nature may also
          prohibit new service station development where the problem can be
          mitigated. Therefore, staff believes the code needs to be amended to
          provide some flexibility while retaining restriction on proliferation
          and development on inappropriate sites."

       In November 1983 Norco adopted Ordinance No. 500, slightly modifying the

parking requirement to address retail uses such as mini marts. As the staff report

supporting the ordinance stated:

          "The multiple use a of service station site takes on characteristics
          different from a typical retail development. The gas dispensing
          areas create a potential safety hazard and must be properly designed
          to allow free movement of vehicles. Adequate queing [sic] of
          vehicles must be planned for so as not to interfere with retail parking
          areas and traffic circulation on the City's streets. Therefore
          effectiveness mixing gasoline sales and retail use depends primarily
          on the design of the site."

       Thus, in sum, Norco's restrictions on service stations are reasonably related to the

public welfare, and the ordinances are therefore constitutional.

                                             13
      D. Failure To Make Requested Findings

      Last, Sedrak asserts that the trial court erred by failing to make findings of fact in

its statement of decision that he requested. However, he does not identify what findings

he requested. Therefore, we need not reach this contention. (Cal. Rules of Court, rule

8.204(a)(1)(C); City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239.)

                                      DISPOSITION

      The judgment is affirmed. Norco shall recover its costs on appeal.


                                                                                  NARES, J.

WE CONCUR:


BENKE, Acting P. J.


IRION, J.




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