Filed 7/28/14




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SECOND APPELLATE DISTRICT

                                         DIVISION SIX


TEMPLETON ACTION COMMITTEE,                                     2d Civil No. B251788
                                                             (Super. Ct. No. CV118113)
     Plaintiff and Appellant,                                 (San Luis Obispo County)

v.

COUNTY OF SAN LUIS OBISPO et al.,

     Defendants and Respondents;

TEMPLETON PROPERTIES,

     Real Party in Interest and Respondent.



                    Plaintiff seeks to set aside a county's decision to allow a development.
Here we decide, among other things, that the developer, an indispensable party, may
assert the statute of limitations even though it did not comply with Business and
Professions Code section 17900, the so-called fictitious name statute. A rule
designed for one purpose is not necessarily a rule designed for other purposes.
From this it follows that a penalty for one purpose is not necessarily a penalty for
other purposes.
                    Government Code section 66499.37 requires a party seeking to attack
an appeal board's or legislative body's decision concerning a subdivision to
commence a proceeding and serve the summons within 90 days of the decision.
Appellant filed a petition for mandate and administrative mandate attacking the
county's decision approving a subdivision application, but failed to serve the real
party in interest within 90 days. The trial court sustained the county's and real party
in interest's demurrers without leave to amend. We affirm the ensuing judgment.
                                        FACTS
               On January 25, 2011, San Luis Obispo County Board of Supervisors
(County) approved on appeal an application for a tentative subdivision map and
conditional use permit. On April 25, 2011, the Templeton Action Committee
(Committee), a nonincorporated association, filed a petition in superior court
challenging the County's approval.
               The petition named the County as defendant. It also named
Templeton Properties and Will Tucker as real parties in interest (RPI). The petition
alleged that Will Tucker, individually and doing business as Templeton Properties,
is the project applicant. Templeton Properties is the owner of the land subject to the
application.
               The petition alleges three causes of action. The first two causes of
action are for mandate or administrative mandate to overturn the County's approval.
These are alleged against the County and RPI. The third cause of action, for
declaratory relief, is alleged against the County only. It alleged that the County has
a pattern and practice of ignoring its general plan in approving land use permits.
               The Committee served the summons and petition to the County on
April 25, 2011. That was 90 days after the County approved the tentative
subdivision map and conditional use permit.
               On April 25, 2011, the Committee also attempted to serve Templeton
Properties and Tucker. The Committee left an envelope with Camile Sundahl at the
Templeton Livestock Market office. The process server told Sundahl the envelope
was for Bobbie Kay Davis, a partner in Templeton Properties. The Committee
attempted to serve Tucker by serving Cindy Chambers of the Wallace Group as his
agent.



                                           2
              Templeton Properties and Tucker moved to quash service. Templeton
Properties declared that it is a general partnership. Sundahl declared she is not an
employee or agent of Templeton Properties; her office is not an office of Templeton
Properties, and Bobbie Kay Davis does not work in her office. In support of
Tucker's motion, Chambers declared she is not Tucker's agent. The trial court
granted both motions to quash on April 29, 2011. The Committee did not appeal.
              The Committee finally served Bobbie Kay Davis on April 3, 2012. In
lieu of a motion to quash, the parties stipulated that Templeton Properties was
deemed served as of that date.
              Templeton Properties demurred on the ground that the service of the
summons and petition was more than 90 days after the County's decision to approve
Templeton Properties' project. The County joined in the demurrer on the ground
that Templeton Properties, the real party in interest, is an indispensible party.
              The trial court sustained the demurrers as to the causes of action for
mandate. The cause of action for declaratory relief alleged against the County
remains.1
                                       DISCUSSION
                                           I.
              The function of a demurrer is to test whether, as a matter of law, the
facts alleged in the complaint state a cause of action under any legal theory.
(Intengan v. BAC Home Loans Servicing, LP (2013) 214 Cal.App.4th 1047, 1052.)
We assume the truth of all facts properly pleaded, as well as facts of which the trial
court properly took judicial notice. (Ibid.) But we do not assume the truth of
contentions, deductions or conclusions of law. (Ibid.) Our review of the trial
court's decision is de novo. (Ibid.)



1
 The Committee concedes the appeal does not contest the trial court's order as to
Tucker. We have dismissed the appeal as to Tucker.


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              We review the trial court's decision to allow an amendment to the
complaint for an abuse of discretion. (Fontenot v. Wells Fargo Bank, N.A. (2011)
198 Cal.App.4th 256, 273.) Where there is no reasonable possibility that plaintiff
can cure the defect with an amendment, sustaining a demurrer without leave to
amend is not an abuse of the court's discretion. (Id. at p. 274.)
                                           II.
              Government Code section 66499.37 provides in part: "Any action or
proceeding to attack, review, set aside, void, or annul the decision of an . . . appeal
board, or legislative body concerning a subdivision . . . shall not be maintained by
any person unless the action or proceeding is commenced and service of summons
effected within 90 days after the date of the decision."
              The Committee does not contest that Government Code section
66499.37 applies to its causes of action for mandate and administrative mandate.
The Committee argues, however, that because the decision of the County's board of
supervisors is the only action being attacked, only the County is an indispensible
party. The Committee concludes it was not required to serve Templeton Properties.
The Committee cites no authority to support its argument. But when plaintiff seeks
affirmative relief that would injure or affect a third person's interest, the third person
is an indispensible party. (Beresford Neighborhood Assn. v. City of San Mateo
(1989) 207 Cal.App.3d 1180, 1188.) When plaintiff seeks to set aside a developer's
permit, it is obvious that such relief directly affects and can injure the developer's
interests. (Ibid.) Templeton Properties is an indispensible party that must be
served.
              The Committee also argues that Templeton Properties is estopped
from relying on the statute because it failed to file a fictitious business name
statement.
              Business and Professions Code section 17900, subdivision (b)(2),
requires a general partnership to file a fictitious business name statement if it does
business under a name that does not include the surname of each general partner.


                                            4
Templeton Properties concedes it is a general partnership, but does not claim to
have complied with the section.
                The Committee cites no California authority to support its argument
that failure to comply with the statute estops a business from relying on a statute of
limitations. Instead, the Committee cites cases from other jurisdictions that have
applied estoppel where failure to comply with a similar statute has deprived a party
of information necessary to the commencement of litigation. (Citing Bechtel v.
Robinson (3d. Cir. 1989) 886 F.2d 644; Munday v. Mayfair Diagnostic Laboratory
(1992, Ky.) 831 S.W.2d 912, 914.)
                Whatever may be the law in other jurisdictions, in California the
penalty for failure to comply with Business and Professions Code section 17900 is
stated in Business and Professions Code section 17918. That section provides the
penalty for failure to comply is a bar from maintaining an action on contracts made
in the fictitious business name until the statement is filed. That is the sole penalty
for failure to comply. (9 Witkin, Summary of Cal. Law (10th ed. 2005) Partnership,
§ 8, p. 582.)
                Moreover, the Committee does not claim that a fictitious business
name filing was the only way it could have found the proper parties for timely
service. In fact, it unsuccessfully attempted to serve Bobbie Kay Davis on behalf of
Templeton Properties on April 25, 2011. That service if successful would have
been timely. As the trial court pointed out in its ruling on the demurrer, "[the
Committee] does not explain how it was aware of the existence of Bobbie K. Davis
as a partner of the partnership at the time it attempted to serve her on behalf of
Templeton Properties." In addition, the administrative record identifies Jan F.
Davis as one of the landowners, and gives her address. The Committee never
attempted to serve her.
                The Committee argues service on Templeton Properties was satisfied
by service on Cindy Chambers on April 25, 2011. But Chambers was served on
behalf of Tucker. That service was the subject of a motion to quash. The trial court


                                            5
granted the motion on April 29, 2011. The Committee could have appealed the
grant of the motion. (Code Civ. Proc., § 904.1, subd. (a)(3).) The Committee
elected not to appeal and the ruling has long since become final. (Cal. Rules of
Court, rule 8.104(a).) We have no power to review a judgement or order from
which an appeal might have been taken. (Code Civ. Proc., § 906; Strathvale
Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1248.)
               Because we affirm the judgment on the merits, we need not consider
the respondents' motion to dismiss the appeal based on defects in the appellant's
opening brief. That motion is denied. We also deny appellant's request for judicial
notice of a letter certifying the results of a search of the County's fictitious name
index. The request is an untimely attempt to introduce new evidence on appeal.
(See J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214.)
               The judgment is affirmed. Costs on appeal are awarded to
respondents.
               CERTIFIED FOR PUBLICATION.




                                           GILBERT, P. J.


We concur:



               YEGAN, J.



               PERREN, J.




                                            6
                     Dodie A. Harman, Jac Arthur Crawford, Judges

                       Superior Court County of San Luis Obispo
                         ______________________________


              The Jencks Law Group, Michael R. Jencks for Plaintiff and Appellant.
              Rita L. Neal, County Counsel, Elizabeth L. Martyn, Deputy County
Counsel for Defendants and Respondents.
              Clifford Sarkin for Real Party in Interest and Respondent Templeton
Properties.
