Gilbert v. State of California

• Decision Date: 26 February 1990
• Docket Number: No. A044958,A044958
• Citation: 218 Cal.App.3d 234,266 Cal.Rptr. 891
• Court: California Court of Appeals Court of Appeals
• Parties: Charles GILBERT et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents.

Page 891

266 Cal.Rptr. 891

218 Cal.App.3d 234

Charles GILBERT et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents.

No. A044958.

Court of Appeal, First District, Division 4, California.

Feb. 26, 1990.

Ronald A. Zumbrun, Orrin F. Finch, Richard M. Stehens, Sacramento, for plaintiffs and appellants.

John K. Van de Kamp, Atty. Gen., Charlton H. Holland, Asst. Atty. Gen., Stephanie Wald, Supervising Deputy Atty. Gen., Angela Botelho, Deputy Atty. Gen., San Francisco, for defendants and respondents.

ANDERSON, Presiding Justice.

Charles Gilbert and others (appellants) ¹ appeal from a judgment of dismissal following the sustaining of a demurrer without leave to amend in favor of the Department of Health Services and related defendants (collectively Department). ² We agree that appellants failed to state any cause of action against the Department and affirm the judgment.

I. FACTUAL AND PROCEDURAL SUMMARY

Appellants own unimproved real property within the territory served by the Bolinas Community Public Utility District (District). In November 1971, in response to a water shortage emergency condition, the District enacted a water moratorium on new or additional service connections. For several years thereafter the District affirmed continuation of the emergency, and in 1977 declared a continuing water shortage emergency. At that time the District also promulgated continuing prohibitions and restrictions on new or additional service connections as well as expansion or modification of existing service.

In 1982 the District applied to the Department for a permit to operate its existing water system and to make improvements. The Department's sanitary engineering branch then reviewed the District's system and recommended that the Department grant a new permit subject to the condition that the District continue its existing moratorium on service connections "until additional water sources are developed and/or an adequate supply is demonstrated to the satisfaction of the Department." The Department followed this recommendation and, accordingly, conditioned the District's new permit. Today, the moratorium apparently is still in effect.

Unable to improve their property because of the moratorium, appellants filed an action in 1987 against the Department and the District, directing five causes of action against the Department. ³ The Department demurred successfully to all causes filed against it; the court granted appellants 30 days' leave to amend.

The second time around appellants added two new causes of action against the Department and made minor changes to the existing causes. The Department again demurred, reiterating the same grounds and arguments developed in the original demurrer, and further arguing that the two "new" causes were but recycled statements of issues already aired and rejected, and the revamped causes were virtually identical to those set forth in the first complaint.

The court sanctioned appellants and their attorneys for filing a frivolous amended petition and complaint, and upheld the Department's demurrer without leave to amend. This appeal followed the judgment of dismissal with prejudice as to the Department. (We note that appellant's challenge to the validity of the District's moratorium and the District's denial of their service connections was not the subject of a demurrer and presumably is proceeding to trial below.)

II. DISCUSSION

The trial court sustained the Department's demurrer to appellants' first, second, third and seventh causes of action on the grounds they (1) were barred by the applicable statute of limitations and (2) failed to state facts sufficient to constitute a cause of action. As to the second ruling, the court explained that the agency's power to act in the matters asserted is discretionary and thus, mandamus is not available to compel it to exercise this discretion in any particular way. ⁴ Further, the court sustained demurrers to the ninth and tenth causes (inverse condemnation and entitlement to compensation) on the ground that the alleged facts did not constitute a taking under California law. We conclude that the court below correctly determined the amended petition and that the complaint did not state any cause of action against the Department; we do not reach the merits of the statute of limitations defense.

A. Standard of Review

In testing the sufficiency of a complaint against demurrer, we treat the demurrer as admitting the truth of all material factual allegations in the complaint (Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 493, 220 Cal.Rptr. 818, 709 P.2d 837; Mautner v. Peralta (1989) 215 Cal.App.3d 796, 263 Cal.Rptr. 535) but ignore allegations of conclusions of law (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499, 193 Cal.Rptr. 377). Further, we may read the complaint as including matters which may be judicially noticed. ⁵ (Code Civ.Proc., § 430.30, subd. (a); Lazzarone v. Bank of America (1986) 181 Cal.App.3d 581, 590, 226 Cal.Rptr. 855.) The noticed material may show the complaint fails to state a cause of action although the bare allegations do not disclose this defect. (Ibid.)

B. Mandamus Actions

Code of Civil Procedure section 1085 permits a court to issue a writ of mandate to compel an act which the law specially enjoins. Mandate will lie where the respondent has a clear, present and usually ministerial duty and the petitioner has a clear, present and beneficial right to performance of that duty. (Loder v. Municipal Court (1976) 17 Cal.3d 859, 863, 132 Cal.Rptr. 464, 553 P.2d 624; McClure v. County of San Diego (1987) 191 Cal.App.3d 807, 811, 236 Cal.Rptr. 653.) However, a petitioner cannot invoke mandamus to control the discretion of an administrative agency or officer. Thus, while under appropriate circumstances a court may force an agency to act by exercising its discretion, it will not compel an agency with discretionary power to act in any particular manner. (Id., at p. 812, 236 Cal.Rptr. 653.) Stated differently, a court will not "substitute its discretion for the discretion properly vested in the administrative agency." (Lindell Co. v. Board of Permit Appeals (1943) 23 Cal.2d 303, 315, 144 P.2d 4.)

(1) First Cause of Action

HEALTH AND SAFETY CODE SECTION 4010⁶ et seq. set forth the procedures and requirements governing the issuance of water permits to water districts. This statutory scheme (1) specifies the operator's responsibility to petition for a permit (§ 4011); (2) sets forth the Department's investigative responsibilities when it receives a permit application (§§ 4013); and (3) requires the Department to issue or deny the permit upon completing its investigation (§ 4014 [derivation: former §§ 4015 and 4016, which respectively (1) detailed the grounds for denying a petition and (2) specified the circumstances under which the Department must grant the permit] ).

Former section 4016 governed the Department's actions at the time it issued the District's permit and provided that the Department shall grant a permit authorizing petitioner to furnish or continue furnishing water if it determines, among other matters, "that the water to be furnished or supplied is such that under all the circumstances and conditions it is pure, wholesome, and potable and will not endanger the lives or health of human beings...." In the case of the District's petition, the Department found, after investigation, that the water system with proposed improvements would satisfy all statutory requirements, and then granted the permit with the proviso that the District should continue its existing moratorium until it develops further sources and/or demonstrates an adequate supply.

The first cause alleges that upon its determination that the District's system could comply with all statutory requirements, the Department has a "nondiscretionary duty to issue its permit without restricting or preventing additional water service connections to the system," and seeks to compel the Department to remove the continued moratorium condition from the permit. The heart of this first cause is the assertion that the Department acted in excess of its statutory authority in so conditioning the permit after determining that the water and system met the appropriate standards.

Appellants contend that, depending on the outcome of the investigation and resulting findings, the Department was empowered to either deny the petition and order changes, or grant the petition without further qualification. The "hybrid" permit which issued herein, they contend, was not allowed under the existing statutory scheme.

The Department counters that it has always had full authority to impose conditions on a water permit, ⁷ including conditions relating to quantity and, thus, appellants cannot succeed in forcing the Department to rescind the condition and issue an unrestricted permit. In 1982 when the Department issued the permit, it had authority to order any "measure necessary to insure that ... the water furnished or supplied shall at all times be pure, wholesome, and potable and without danger to the lives or health of human beings." (Former § 4017, repealed by Stats.1985, ch. 758, § 1.) Surely, this provision gave the Department discretion to safeguard water quality in any manner it saw fit, including by way of attaching conditions to a water district's operating permit. The statute did not specify the form of orders or otherwise suggest that conditions would be an inappropriate means of ensuring potability and safety. ⁸

Appellants raise several objections to this analysis. (a) 1985 Revisions: First, they claim that the District's broad interpretation of former section 4017 renders subsequent enactments meaningless. Specifically, they point out that although the 1985 enactments gave the Department express authority to prohibit new service connections (§ 4033, subd. (b)(4) added ...