Burchett v. City of Newport Beach, G014383

• Decision Date: 10 March 1995
• Docket Number: No. G014383,G014383
• Citation: 40 Cal.Rptr.2d 1,33 Cal.App.4th 1472
• Court: California Court of Appeals Court of Appeals
• Parties: Paul J. BURCHETT and Doreen A. Burchett, Plaintiffs and Appellants, v. CITY OF NEWPORT BEACH et al., Defendants and Respondents.

Page 1

40 Cal.Rptr.2d 1

33 Cal.App.4th 1472

Paul J. BURCHETT and Doreen A. Burchett, Plaintiffs and Appellants, v. CITY OF NEWPORT BEACH et al., Defendants and Respondents.

No. G014383.

Court of Appeal, Fourth District, Division 3, California.

March 10, 1995.

Review Denied May 25, 1995.

Rehearing Denied March 31, 1995.

James E. Wilkoski, Costa Mesa, and Lawrence K. Harvey, Newport Beach, for plaintiffs and appellants.

Rutan & Tucker and M. Katherine Jenson, Costa Mesa, for defendants and respondents.

OPINION

SONENSHINE, Associate Justice.

Paul J. Burchett and Doreen A. Burchett appeal the dismissal of their complaint after the court (1) sustained without leave to amend the demurrer of City of Newport Beach (City) and Bob Wynn, City Manager, and (2) granted motions to quash service by certain specially-appearing City officials and department heads. The Burchetts sought $8.7 million in damages for the City's refusal to allow them to retain a nonconforming driveway in connection with proposed redevelopment of their residential property.

I

The Burchetts' property contains a 40-year-old duplex, accessible from an alley abutting the land in the rear as well as by a driveway from the street in front of the building. The front driveway, termed a "curb cut," is presently a nonconforming use (although allowed for the present building because it predated the policy) by reason of an intervening "Driveway Approach Policy" instituted by the City. Council Policy L-2, enacted to preserve street parking and reduce traffic conflict points, provides: "Street curb openings shall not be permitted to residential property which abuts an alley." A property owner may take exception to the policy and obtain an encroachment permit. The permit may be requested from the Department of Public Works in the first instance or the city council by way of appeal from a denial by the department. "No building permit shall be issued on a parcel whose access requires City Council review for an encroachment permit on public property, until said encroachment permit has been issued." And existing driveway approaches may be ordered removed as a condition of final approval of any alteration work and prior to issuance of a certificate of occupancy.

Wishing to raze the duplex and construct two condominiums, the Burchetts wrote a letter to the planning department, asking about use of the "existing driveway." No plans were included; nor was there any application for an exception to the City's driveway policy. Nonetheless, an assistant planner penned a note at the bottom stating the letter's information was "correct." ¹ Unhappily, this was neither the proper method nor the proper department to approach. Their subsequent application for a permit was denied by the Public Works Department; appeal to the council was equally unavailing.

In April 1992, the Burchetts filed a complaint for damages (approximately $30,000) ² against the City, its manager, attorney, public works director, planning director and several city council members. Ten counts covered breach of agreement, breach of fiduciary duty, fraud, bad faith, denial of equal protection and due process and deprivation of civil rights under color of law (42 U.S.C. § 1983).

The complaint was not served within 60 days as required by the local rules. An evaluation conference was set for August; the Burchetts did not appear. The complaint had still not been served by September 17, the continued date set by the court for evaluation. At that hearing, the court granted the Burchetts a reprieve, but ordered them to serve the defendants by October 15. The City and the retired city manager were personally served. The remaining defendants were not. The marshal's return indicates no attempt at personal service; each received substituted service by leaving the summons with an assistant to the city clerk and mailing a copy to the named defendants.

Defense counsel notified plaintiffs' counsel orally and in writing that the service was improper. There was no further attempt to personally serve these defendants before the October 15 deadline. A motion to quash was filed and set for hearing on November 13. Judge Schenk took the matter under submission, but later recused himself. Judge Wilkinson inherited the matter. Defendants sought ex parte relief from answering the complaint until a ruling on the motion to quash. The Burchetts immediately filed a motion to disqualify Wilkinson, halting the ex parte hearing.

A second motion to quash service/dismiss was filed in December. There was no answer. The matter was heard and granted in March 1992.

Meanwhile, the City and the city manager had demurred to the complaint in November 1991. The Burchetts made no response to this pleading before the March hearing. The court sustained the demurrer without leave to amend. A judgment of dismissal as to all defendants was entered on March 23.

II Motion to Quash Service of Process

The specially-appearing defendants contend they are entitled to dismissal because the Burchetts failed to abide by the requirements of Code of Civil Procedure section 415.20, subdivision (b): "If a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served ... a summons may be served by leaving a copy of the summons and of the complaint at such person's ... usual place of business...." (Italics added.) Rather than finding any reasonable diligence in the pursuit of personal service on these defendants, we find no evidence of any diligence whatsoever. As noted in the Legislative comment to the section, "Personal delivery must be attempted in all cases where this alternative method of service is used."

The Burchetts failed to effect or even attempt service within the time limits set by the fast track rules. They then failed to attend the August evaluation conference set by the court. They did condescend to appear at the continued hearing in September, again without having perfected service. The court leniently allowed them further time, ordering them to serve the parties by October 15. Still there was no attempted personal service; the papers were merely left with a deputy clerk ³ and copies were sent through the mail. Once that occurred, the Burchetts were told by opposing counsel the service was ineffective. Although there was time before the October 15 deadline, the Burchetts declined to act.

In Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 245 Cal.Rptr. 596, we addressed a situation where there was reasonable diligence in attempting service. "[T]he process server attempted three times to serve [defendants] personally at their home. On the fourth try, he found [wife] at home and served her. Knowing that she was Jose's wife and a codefendant in the action, the process server left Jose's copy of the summons and complaint with her.... Under these circumstances, reasonable diligence was shown. 'Ordinarily, ... two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.' [Citation.]" (Id. at pp. 1391-1392, 245 Cal.Rptr. 596.) The present case bears no resemblance to Espindola. There was not even one attempt made to effect personal service. The papers were unceremoniously dumped on the desk of a deputy clerk. Even then, with notice of time to correct the error, the Burchetts declined to follow the rules.

The Burchetts claim there was no court order (to serve the defendants by October 15) entered in the record. However, the order was clearly made and so understood by them. At the hearing on the first motion to quash, the court said, "There was a specific order made that all parties had to be served by October the 15th. And all of you, meaning both of you, have agreed that that order was made. Am I wrong?" Replied the Burchetts' attorney, "No, that's correct. Yes, your honor, the court made an order that they be served by October 15." That seems sufficiently clear.

The Burchetts complain it was the marshal's office which failed to properly serve the defendants. However, the Burchetts' instructions to the marshal, while indicating personal service was desired, stated, in the event the defendants were not served prior to the council meeting, "then do a substitute service using the city hall's address...." This was hardly a requirement for personal service. ⁴ The specially-appearing defendants were easily reachable. At the very least, they were available at scheduled council meetings. We find no error in the court's order quashing service. ⁵

III Demurrer

The City and its former city manager demurred to the complaint. The Burchetts did not respond, despite the passage of almost four months from the demurrer's filing until hearing on the matter. Now they argue the court erred in sustaining the demurrer without leave to amend.

The Burchetts offer no explanation as to how they would change their pleading. They do suggest the trial court based its conclusion on the immunity granted to the City and its employees with regard to discretionary determinations. And, claim the Burchetts, the federal tort causes of action are not subject to this immunity. Nonetheless, the court stated its ruling in the conjunctive: "Moving parties appear to be statutorily immune and there's a failure to state a cause of action as to each count." ⁶ (Italics added.)

The Complaint contains the following causes of action:

Count I: The Burchetts allege breach of a "written agreement with Defendant City of Newport Beach whereby said City agreed to allow Plaintiffs to improve said real property with a two story condominium structure and retain the existing driveway to said property...." The allegation is based on the letter to the planning department with the subscript notation by an assistant planner indicating the facts were "correct."

First, the City's charter provides it cannot be bound by any contract "unless...