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1 JASON M. HEATH, State Bar No. 180501
County Counsel
2 MICHAEL J. DE SMIDT, State Bar No. 327439
Assistant County Counsel
3 Office of the Santa Cruz County Counsel
701 Ocean Street, Room 505
4 Santa Cruz, California 95060
Telephone: (831) 454-2040
5 Fax: (831) 454-2115
Email: michael.desmidt@santacrucountyca.gov
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Attorneys for Defendant
7 County of Santa Cruz
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SANTA CRUZ
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11 MARC RITSON, SOLE PROPRIETOR, DBA Case No. 23CV02653
TERRA FIRMA ENGINEERING & SCIENCE,
12 DEFENDANT COUNTY OF SANTA
Plaintiff, CRUZ’S NOTICE OF DEMURRER AND
13 DEMURRER TO PLAINTIFF’S FIRST
v.
AMENDED COMPLAINT FOR
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INJUNCTIVE RELIEF AND
15 COUNTY OF SANTA CRUZ, and DOES 1 TO MONETARY DAMAGES;
10 INCLUSIVE MEMORANDUM OF POINTS AND
16 AUTHORITIES IN SUPPORT
Defendants. THEREOF
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Date: May 17, 2024
19 Time: 8:30 a.m.
Dept: 10
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NOTICE OF HEARING
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TO PLAINTIFF MARC RITSON, SOLE PROPRIETOR, DBA TERRA FIRMA
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ENGINEERING & SCIENCE, IN PROPRIA PERSONA:
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PLEASE TAKE NOTICE that on May 17, 2024, at 8:30 a.m. or as soon thereafter as the
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matter may be heard in Department “10” of the Santa Cruz County Superior Court, located at 701
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Ocean Street, Santa Cruz, California 95060, Defendant, COUNTY OF SANTA CRUZ (the
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“County” or “Defendant”) will and does, generally and specially, demur to the First Amended
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Ritson, Marc, et al. v. County of Santa Cruz, et al.
Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO
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1 Complaint of Plaintiff MARC RITSON, SOLE PROPRIETOR, DBA TERRA FIRMA
2 ENGINEERING & SCIENCE (“Ritson” or “Plaintiff”) and to each cause of action alleged therein.
3 This demurrer is based upon the pleadings and records on file herein, this notice of hearing
4 on demurrer, the demurrer and memorandum of points and authorities attached hereto, the request
5 for judicial notice accompanying this demurrer, Court file herein, and upon such additional
6 evidence and argument as may be made at the time of hearing upon the demurrer.
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8 Dated: March 25, 2024 JASON M. HEATH, COUNTY COUNSEL
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By: /s/ Michael J. De Smidt
10 MICHAEL J. DE SMIDT
11 Assistant County Counsel
Attorneys for Defendant
12 COUNTY OF SANTA CRUZ
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Ritson, Marc, et al. v. County of Santa Cruz, et al.
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1 DEMURRER TO FIRST AMENDED COMPLAINT
2 Pursuant to California Code of Civil Procedure § 430.10, Defendant County of Santa Cruz
3 (“the County”) generally and specially demurs to Mark Ritson, Sole Proprietor, DBA Terra Firma
4 Engineering & Science’s (“Ritson”) First Amended Complaint (“FAC”) in its entirety and to each
5 claim against the County. The County specifically demurs to the following causes of action:
6 1) Ritson’s FAC is vague, ambiguous, uncertain, and unintelligible in its entirety (Code
Civ. Proc., § 430.10(f)), as none of its Causes of Action comply with Rule of Court
7 2.112, the FAC fails to identify the nature of the cause of action and fails to state facts
8 substantiating each of those causes of action in ordinary and concise language. (Code
Civ. Proc., § 425.10(a)(1).)
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2) The FAC is barred by the statute of limitations in Government Code § 65009 because it
10 should have been filed within ninety (90) days of the implementation of County Code
Chapter 7.38.
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12 3) Ritson alleges neither harm nor beneficial interest in this litigation sufficient to provide
standing even under California’s liberal rules.
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4) The FAC does not state facts sufficient to constitute a cause of action under CCP
14 430.10(e) because California Business and Professions Code § 460 does not preempt
15 the County’s exercise of its safety and welfare powers.
16 5) The FAC incorrectly asserts the County is not permitted to impose greater restrictions
on septic system installation than provided under state law.
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6) The County appropriately delegated authority for implementing Santa Cruz County
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Code Chapter 7.38 to the County Health Officer.
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7) The Court lacks jurisdiction and should dismiss the FAC under CCP 430.10(a) because
20 Ritson’s claims and allegations are inherently political questions not subject to judicial
review.
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22 8) The FAC asserts claims for general negligence, which fail as a matter of law, not being
an authorized statutory basis for liability against a public entity or public employee
23 under Government Code § 815.
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WHEREFORE, Defendant, the County of Santa Cruz prays that this demurrer to Marc
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Ritson, Sole Proprietor, DBA Terra Firma Engineering & Science’s First Amended Complaint be
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sustained in its entirety, that the County’s demurrer be granted, the matter be dismissed with
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prejudice, and that the Court grant such other and further relief as it deems just and proper.
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Ritson, Marc, et al. v. County of Santa Cruz, et al.
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1 Dated: March 25, 2024 JASON M. HEATH, COUNTY COUNSEL
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By: /s/ Michael J. De Smidt _
3 MICHAEL J. DE SMIDT
4 Assistant County Counsel
Attorneys for Defendant
5 COUNTY OF SANTA CRUZ
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1 TABLE OF CONTENTS
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3 TABLE OF AUTHORITIES .................................................................................................................6
4 MEMORANDUM OF POINTS AND AUTHORITIES .......................................................................9
5 I. INTRODUCTION AND SUMMARY OF ARGUMENT ...................................................... 9
6 II. RELEVANT STATUTORY AND REGULATORY HISTORY ......................................... 10
7 III. STANDARD OF REVIEW................................................................................................... 11
8 IV. ARGUMENT ........................................................................................................................ 12
A. Ritson’s FAC is Vague, Ambiguous, Uncertain and Unintelligible In Its Entirety .............. 12
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1. The FAC’s First and Second Causes of Action Are Entirely Conclusory and Fail to State
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Facts That Constitute a Valid Cause of Action ..................................................................... 12
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2. The FAC’s Third and Fourth Causes of Action Fail as a Matter of Law .............................. 13
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3. Plaintiff’s Prayer for Relief Is Not Based on Any Stated Cause of Action........................... 14
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4. The FAC Fails to Comply With Code of Civil Procedure § 425.10 Because It Does Not
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Plead its Causes of Action In Ordinary and Concise Language............................................ 14
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B. The Statute of Limitation in California Government Code § 65009 Bars These Claims ..... 15
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C. Ritson’s Government Tort Claim Does Not Extend the Statute of Limitations Under
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Government Code § 65009, Which Still Bars His Claims. ................................................... 15
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D. Ritson Lacks Standing To File This FAC Because His Claims Are Speculative, Conjectural,
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and Hypothetical.................................................................................................................... 16
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E. Business and Professions Code § 460 Does Not Preempt Santa Cruz County’s Power to
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Impose Health and Safety Restrictions On the Installation of Septic Systems ..................... 17
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F. The County Is Permitted to Set Greater Standards Than Required By State OWTS Policy 19
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G. The County Appropriately Delegated Its Authority To Oversee OWTS Policy to The County
24 Health Officer ........................................................................................................................ 19
25 H. Ritson’s FAC’s Allegations Fundamentally Remain a Request for the Court to Render an
26 Advisory Opinion .................................................................................................................. 21
27 V. CONCLUSION ..................................................................................................................... 21
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1 TABLE OF AUTHORITIES
2 Cases
3 Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531 .............................................. 11
4 Aubry v. Tri City Hosp. Dist. (1992) 2 Cal.4th 962 ............................................................................ 11
5 Black v. Department of Mental Health (2000) 83 Cal.App.4th 739 ................................................... 11
6 Boorstein v. CBS Interactive, Inc. (2013) 222 Cal.App.4th 456 .................................................. 16, 17
7 California Veterinary Medical Assn. v. City of West Hollywood (2007) 152 Cal.App.4th 536 ......... 18
8 Carsten v. Psychology Emining Com. (1980) 27 Cal.3d 793 ............................................................. 16
9 Cochran v. Herzog Engraving Co. (1984) 155 Cal. App. 3d 405 ...................................................... 14
10 Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197 ................. 11
11 Cox Cable San Diego v. City of San Diego (1987) 188 Cal.App.3d 952 ........................................... 18
12 Department of Fair Employment & Housing v. M&N Financing Corp. (2021) 69 Cal.App.5th 434 16
13 Galvan v. Superior Court (1969) 70 Cal.2d 851 ................................................................................ 17
14 Gaylord v. City of Pasadena (1917) 175 Cal. 433 .............................................................................. 20
15 Golightly v. Molina (2014) 229 Cal.App.4th 1501 ............................................................................. 19
16 Hampton v. County of San Diego (2015) 62 Cal.4th 340 ................................................................... 14
Hensler v. City of Glendale (1994) 8 Cal.4th 1 .................................................................................. 15
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Holland v. Morse Diesel Int'l, Inc. (2001) 86 Cal.App.4th 1443 ....................................................... 11
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Holmes v. Cal. Nat. Guard (2001) 90 Cal.App.4th 297 ..................................................................... 16
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In re Hubbard (1964) 62 Cal.2d 119 .................................................................................................. 18
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Kugler v. Yocum (1968) 69 Cal.2d 371............................................................................................... 20
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Lawrence v. Bank of America (1985) 163 Cal.App.3d 431 ................................................................ 21
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Maloy v. Municipal Court of Los Angeles Judicial Dist. (1968) 266 Cal.App.2d 414....................... 18
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People v. Lim (1941) 18 Cal.2d 872 ................................................................................................... 12
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People v. Pieters (1991) 52 Cal.3d 894 .............................................................................................. 17
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San Francisco v. Boss (1948) 83 Cal.App.2d 445 .............................................................................. 18
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Schonfeldt v. State of Calif. (1998) 61 Cal.App.4th 1462................................................................... 21
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Semole v. Sansoucie (1972) 28 Cal.App.3d 714 ................................................................................. 11
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Stanislaus Co. etc. Assn. v. Stanislaus (1937) 8 Cal.2d 378 ............................................................... 20
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1 Travis v. County of Santa Cruz (2004) 33 Cal.4th 757....................................................................... 15
2 Statutes
3 Business and Professions Code § 3042............................................................................................... 13
4 Business and Professions Code § 460........................................................................................... 10, 17
5 Business and Professions Code § 6731............................................................................................... 13
6 Business and Professions Code, Chapter 7, § 460 .............................................................................. 13
7 Code Civ. Proc., § 425.10 ................................................................................................................... 14
8 Code Civ. Proc., § 425.10(a)(1) .......................................................................................................... 14
9 Code Civ. Proc., § 430.10(f) ............................................................................................................... 12
10 Code Civ. Proc., § 430.50(a)............................................................................................................... 12
11 Code Civ. Proc., § 526(b)(6) ............................................................................................................... 14
12 Government Code § 65009 ................................................................................................................. 16
13 Government Code § 65009(c)(1)(B) ................................................................................................... 15
14 Government Code § 815 ..................................................................................................................... 14
15 Government Code § 815(a) ................................................................................................................. 14
16 Government Code § 905.8 .................................................................................................................. 16
Government Code § 945.4 .................................................................................................................. 16
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Government Code § 945.6 .................................................................................................................. 16
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Government Code § 945.8 .................................................................................................................. 16
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Health and Safety Code § 101000 ...................................................................................................... 21
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Health and Safety Code § 116275 ...................................................................................................... 21
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Health and Safety Code § 116500 ...................................................................................................... 21
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Water Code §13291 ............................................................................................................................ 10
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24 Other Authorities
Assemby Bill 885................................................................................................................................ 10
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Santa Cruz County Code § 7.38............................................................................................... 9, passim
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Santa Cruz County Code § 7.38.020............................................................................................. 15, 19
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Santa Cruz County Code § 7.38.025................................................................................................... 15
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1 Santa Cruz County Code § 7.38.092 ................................................................................................... 20
2 Santa Cruz County Code § 7.38.092(A) ............................................................................................. 11
3 State OWTS Policy § 3.2 .................................................................................................................... 17
4 State OWTS Policy § 3.7 .............................................................................................................. 10, 19
5 Rules
6 California Rule of Court 2.112(2) ....................................................................................................... 12
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION AND SUMMARY OF ARGUMENT
3 Plaintiff Marc Ritson, Sole Proprietor, DBA Terra Firma Engineering Science (“Ritson”), in
4 his First Amended Complaint (“FAC”), alleges generally that the County of Santa Cruz’s
5 (“County”) adoption of County Code Chapter 7.38 prevents Ritson from the licensed practice of
6 civil engineering in Santa Cruz County. Ritson makes no factual allegations of any kind, instead
7 providing a summary of various statutes, regulations, and County Code provisions without
8 providing any indication of how those statutes provide a cause of action. The only facts Plaintiff
9 alleges, is an irrelevant detailing of projects he worked on in the County over a time period that
10 largely predates the adoption of the current County Code 7.38 and which fails to specifically
11 identify how the County Code has impeded his ability to practice his profession. It is difficult to
12 specifically identify Ritson’s legal theory or claims because the FAC is largely non-compliant with
13 this Court’s order sustaining the demurrers to the initial complaint, the Rules of Court, and the
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Code of Civil Procedure. The result is a difficult-to-parse and confusing morass of nebulous
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allegations that identify neither the legal theories they are based on nor the facts supporting those
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theories. Ultimately, Ritson fails to identify with any specificity what sections of Chapter 7.38 – if
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any – he alleged prohibit his practice. Ritson cannot make such an allegation because Chapter 7.38
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of the County Code does not prohibit the practice of civil engineering in any way.
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Even if Ritson could articulate some legal theory, the challenge comes months after the
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statute of limitation lapsed. Chapter 7.38 was implemented in February 2023 and Ritson’s FAC
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continues to raise issues that are time barred by Government Code § 65009’s ninety (90) day
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statute of limitations.
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Ritson fails to allege any beneficial interest or actual harm necessary to prove standing.
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Ritson does not allege County staff have ever relied upon Chapter 7.38 to deny his work nor any
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26 specific provision of Chapter 7.38 that allegedly prohibits the practice of civil engineering.
27 Ritson’s failure to allege any actual harm or intent to prohibit his practice as a civil engineer
28 demonstrates his lack of any beneficial interest necessary to confer standing.
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1 Nothing in County Code § 7.38 prohibits or otherwise seeks to restrict the activities of
2 Ritson or any other geological engineer licensed pursuant to California Business and Professions
3 Code § 460. California Business and Professions Code § 460 does not prohibit the County’s
4 exercise of its police powers to protect the public welfare, including defining the manner of
5 performance of licensed professionals.
6 Ritson’s claims – to the extent they can be identified – are so lacking that further
7 amendment would be futile. The County’s implementation of Chapter 7.38 was directed by the
8 State of California and falls well within the County’s express powers as a political subdivision of
9 the State. For each of the reasons set forth below, the County requests that the demurrers be
10 sustained without leave to amend as to each cause of action.
11 II. RELEVANT STATUTORY AND REGULATORY HISTORY
12 Passed by the Legislature in 1999, AB 885 required the State Water Board to adopt
13 regulations outlining the minimum standard for the permitting and operation of onsite wastewater
14 treatment systems (“OWTS” or “septic systems”). (See Water Code section 13291.) The State
15 Water Resources Control Board passed OWTS regulations on June 19, 2012 that became effective
16 as of May 13, 2013. (RJN Exhibit 1, State OWTS Plan.) The OWTS regulations identified four
17 possible pre-defined tiers of OWTS regulation, but permitted counties to create their own more
18 restrictive Local Area Management Plans (“LAMP”) to address their unique local geography. (RJN
19 Exhibit 1, at P. 2-3, Defining “Tier 2”; see also State OWTS Plan §§ 3.2, 3.7) Santa Cruz County,
20 recognizing its unique geological setting, drafted and then submitted and received approval for its
21 own LAMP from the Central Coast Regional Water Quality Control Board on October 14, 2021;
22 the County’s Board of Supervisors approved the LAMP on August 23, 2022. (RJN Exhibit 2, Santa
23 Cruz County LAMP.)
24 The County updated its sewage disposal standards for OWTS (Santa Cruz County Code
25 7.38) to comply with the LAMP and State OWTS policy. On October 18, 2022, the Board of
26 Supervisors held a public hearing and allowed comment on the proposed amendments to 7.38 of the
27 County Code. (RJN Exhibit 3, October 18, 2022 Santa Cruz County Board Minutes of Hearing.)
28 After taking public comment the Board of Supervisors approved the proposed amendments
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1 and directed the Clerk of the Board to schedule the ordinance for final adoption at the next Board of
2 Supervisors meeting. The Board of Supervisors adopted the amendments to 7.38 on October 25,
3 2022. (RJN Exhibit 4, October 25, 2022 Santa Cruz County Board Minutes of Hearing.) After
4 passage by the County, the California Coastal Commission approved Chapter 7.38 and the law
5 became effective on February 20, 2023. (RJN Exh. 6, California Coastal Commission Approval
6 Letter.)
7 Chapter 7.38 tasks the County Health Officer with ensuring compliance with the standards
8 set by the Board of Supervisors (see e.g. Santa Cruz County Code § 7.38.092(A) “A finding of
9 compliance shall not be granted unless the Health Officer determines that the proposed system
10 meets all the requirements of this chapter…”) Nothing in Chapter 7.38 permits the Health Officer to
11 alter the standards set by the Board of Supervisors. (Santa Cruz County Code Chapter 7.38,
12 passim.)
13 III. STANDARD OF REVIEW
14 A demurrer tests only the legal sufficiency of the pleading and Plaintiff’s factual assertions
15 are generally accepted as true (Committee on Children's Television, Inc. v. General Foods Corp.
16 (1983) 35 Cal.3d 197, 213, superseded on other grounds). Nonetheless, substantive allegations
17 which set forth essential facts and address the elements of the causes of action alleged are
18 absolutely required (Semole v. Sansoucie (1972) 28 Cal.App.3d 714). Moreover, as the Court held
19 in Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537, “It is settled law that a
20 pleading must allege facts and not conclusions, and that material facts must be alleged directly and
21 not by way of recital.” (Id.)
22 Thus, while Plaintiff’s factual allegations are generally presumed true for purposes of this
23 motion, there are two notable exceptions applicable here. First, this Court may disregard,
24 “contentions, deductions, or conclusions of fact or law” (Aubry v. Tri City Hosp. Dist. (1992) 2
25 Cal.4th 962, 966-967). Second, where allegations controvert an attached exhibit or a judicially
26 noticeable fact, the inapposite contentions in the complaint must give way. (Black v. Department of
27 Mental Health (2000) 83 Cal.App.4th 739, 745; and Holland v. Morse Diesel Int'l, Inc. (2001) 86
28 Cal.App.4th 1443, 1447). Therefore, in ruling on this demurrer, the Court may properly disregard
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1 Plaintiff’s legal conclusions that (e.g., that “Respondents abused their discretion”) as these are not
2 factual statements which must be accepted as true.
3 IV. ARGUMENT
4 A. Ritson’s FAC is Vague, Ambiguous, Uncertain and Unintelligible In Its Entirety
5 The FAC only makes the smallest of corrections to the initial complaint, consisting of 25
6 single-spaced pages of legal conclusions and vague contentions, absent any cognizable legal theory
7 to base relief upon. The FAC remains with this Court’s order on the demurrer to the complaint and
8 noncompliant with the Rules of Court applicable to pleadings. A demurrer may be taken to either
9 the whole complaint or to any cause of action therein, (Code Civ. Proc., § 430.50(a)) and a
10 demurrer lies where “[t]he pleading is uncertain. As used in this subdivision, ‘uncertain’ includes
11 ambiguous and unintelligible.” (Code Civ. Proc., § 430.10(f).)
12 While the FAC attempts to correct the issue of a “lack of labels” and the initial complaint’s
13 failure to comply with the Rules of Court, the FAC still fails to plead allegations “sufficiently clear
14 to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872,
15 882.) Here, Ritson’s FAC again largely fails to comply with the Rules and Code of Civil Procedure
16 section 430.50, resulting in an operative pleading that is vague, ambiguous, confusing, and difficult
17 – if not impossible – to respond to in its current form. The only cure is sustaining this demurrer.
18 1. The FAC’s First and Second Causes of Action Are Entirely Conclusory and Fail to
State Facts That Constitute a Valid Cause of Action
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20 California Rule of Court 2.112 requires that “Each separately stated cause of action, count, or
21 defense must specifically state: (1) Its number (e.g., "first cause of action"); [and] (2) Its nature (e.g.,
22 "for fraud").” (CRC 2.112(1), (2).) Ritson’s FAC, while amending the initial complaint to enumerate
23 and categorize each of the four listed causes of action, makes no attempt to go beyond general and
24 conclusory contentions violation of the Constitution and statute without providing specific factual
25 citations to authority, or legal bases for how the County has wronged him. (FAC at P. 21 ¶ 76, P. 22
26 ¶ 80.) The FAC fails to consistently describe the nature of the claim or claims alleged. While earlier
27 in the FAC, Ritson states he is primarily seeking injunctive relief so he may practice his profession
28 in the County of Santa Cruz without impediment from County Code 7.38 (FAC P. 5 ¶¶ 12-14), he
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1 also states his primary goal with his claims is to be allowed to design safe and simple septic systems
2 (FAC P. 6 ¶ 19). Even assuming the truth of the FAC as pleaded, there is simply nothing in County
3 Code 7.38 that prevents Ritson from practicing his profession or designing safe and simple septic
4 systems. Moreover, given the general and conclusory nature of the claims and the twenty-two-page
5 background and summary of facts, it is wholly unclear from the FAC where there is a factual basis
6 for any economic loss attributable to the County.
7 Again, as in the initial complaint, Ritson alleges generally that his “primary allegation is that
8 Ordinance 7.38 has lost sight of the State’s mandate requiring Plaintiff to be allowed to the practice
9 of Civil engineering: Business and Professions Code, Chapter 7, § 460.” (FAC at P. 8, ¶ 29, Ln. 19-
10 24.) Throughout the remainder of the FAC, however, Ritson cites without explanation to Business
11 and Professions Code § 6731 (P. 5, ¶ 13, Ln. 13; P. 9, ¶ 31, Ln. 14-22; P. 9, ¶ 32, Ln. 24-28, P. 10,
12 Ln. 1-18), Business and Professions Code § 3042 (Id. at P. 10, Ln. 19-20). Ritson once again makes
13 generalized allegations while referencing County Code Ch. 7.38 without identifying a single
14 subsection that is relevant to the claims made. These various, confusing, and non-specific claims
15 leave the County and Court to guess under what legal theory and from what portions of County Code
16 Chapter 7.38 Ritson concludes the County has lost sight of the State’s mandate requiring Plaintiff to
17 be allowed to the practice [of] Civil Engineering. This uncertainty, vagueness and ambiguity, like
18 the initial complaint, remains characteristic of the entire FAC and dismissal is appropriate.
19 2. The FAC’s Third and Fourth Causes of Action Fail as a Matter of Law
20 Ritson’s third and fourth causes of action appear to make claims for general negligence on
21 the part of the County, stating without any factual basis that County Code 7.38 somehow negatively
22 impacts his professional liability, but fails to state or refer to any specific facts that support such a
23 claim for negligence against the County. Even if they did, common law causes of action such as
24 negligence cannot be maintained against California public entities or its employees, including
25 elected officials. Government Code section 815(a) declares, ‘[e]xcept as otherwise provided by
26 statute, [a] public entity is not liable for an injury, whether such injury arises out of an act or
27 omission of the public entity or a public employee or any other person.” Section 815 thus abolished
28 all common law liabilities or judicially declared forms of liability, except as may be required under
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1 the state or federal constitution. (See, e.g., Cochran v. Herzog Engraving Co. (1984) 155 Cal. App.
2 3d 405, 409 (governmental liability is limited to exceptions specifically set forth by statute);
3 Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347 (public entity not liable for injury
4 except as otherwise provided by statute)).
5 3. Plaintiff’s Prayer for Relief Is Not Based on Any Stated Cause of Action
6 Ritson, on page 25 of the FAC, requests that the Court grant him “injunctive relief to be
7 allowed to practice Plaintiff’s allowed by BPC civil engineering scopes of work, that are restricted
and/or prohibited as alleged in Causes of Action 1 to 4” and monetary damages in the amount of
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$10,000, along with what appears to be an ongoing award of $25,000 for each year that he is unable
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to practice his profession in the manner he believes he is entitled.
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As to the first prayer for injunctive relief, none of the four causes of action stated include a
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cause of action for injunctive relief and the only other places injunctive relief is either mentioned or
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in any way framed is the title, page 5 paragraph 12, and the prayer. More importantly, under Cal.
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Code of Civ. Proc. § 526(b)(6), injunctive relief if unavailable “[t]o prevent the exercise of a public
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or private office, in a lawful manner, by the person in possession.” Here, Ritson is requesting that
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the Court order that the Health Officer ignore enforcement of the requirements of County Code 7.38
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in order to allow Plaintiff to freely practice his profession as he pleases. As to the second prayer, the
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County can only assume the monetary damages relate to the claims of negligence, which as
18 discussed supra, are barred by Government Code § 815.
19 4. The FAC Fails to Comply With Code of Civil Procedure § 425.10 Because It Does
20 Not Plead its Causes of Action In Ordinary and Concise Language
21 Code of Civil Procedure § 425.10 requires that “[a] complaint or cross-complaint shall
22 contain … [a] statement of the facts constituting the cause of action, in ordinary and concise
23 language.” (Code Civ. Proc., § 425.10(a)(1).) Ritson has failed to meet that low pleading bar.
24 The FAC is anything but concise, relying entirely on long and winding pages containing
25 background information on various topics and legal citations, while providing only the most general
26 factual allegations. Ritson, like in the initial complaint, makes no more specific factual allegations
27 and never identifies any actions taken by the County or its staff that would substantiate his vague
28 claims. Instead, Ritson relies upon opaque, redundant, and unrelated statutory references and legal
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1 conclusions that serve only to obfuscate what issues might actually exist. These tactics prop up the
2 FAC despite the lack of any facts or coherent legal theory to support the FAC.
3 B. The Statute of Limitation in California Government Code § 65009 Bars These Claims
4 A ninety (90) day statute of limitation applies to challenges to legislative acts adopting or
5 amending land use regulations. (Gov. Code § 65009(c)(1)(B).) “If the challenge is to the facial
6 validity of a land-use regulation, the statute of limitations runs from the date the statute becomes
7 effective.” (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22.) Chapter 7.38 is clearly a land use
regulation. The Chapter specifically identifies itself as a land use regulation (Santa Cruz County
8
Code § 7.38.020), seeks to regulate the installation and use of on-site sewage treatment and disposal
9
facilities, and in practice “regulates land use by allowing a particular use … in designated zones of
10
the county…” (Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 772, fn. 8.) Ritson’s FAC
11
challenges Chapter 7.38’s compliance with State Law and must therefore have been filed within
12
ninety days of becoming effective.
13
Chapter 7.38 was passed by the Board of Supervisors on October 25, 2022 (RJN Exh. 4,
14
County Board Minutes of Hearing, October 25, 2023; RJN Exh. 2, SCC LAMP, at P. 115.)
15
However, any amendments to SCCC 7.38 must be approved by the Coastal Commission to
16
determine whether it constitutes an amendment to the Local Coastal Program. (See County Code §
17
7.38.025.) The Coastal Commission heard and approved the proposed amendment on February 10,
18 2023 (RJN Exh. 5, Coastal Commission De Minimis Letter, February 10, 2023) and the law came
19 into effect on February 20, 2023. (RJN Exh. 6, Coastal Commission Amendment Approval Letter,
20 February 17, 2023.) Because the law came into effect as of February 20, 2023, any complaint must
21 have been filed on or before May 21, 2023. Ritson’s November 7, 2023 complaint is untimely filed
22 and its claims are barred.
23 C. Ritson’s Government Tort Claim Does Not Extend the Statute of Limitations Under
24 Government Code § 65009, Which Still Bars His Claims.
25 Ritson claims, by way of an attached exhibit 2, that he filed a complaint with the County
26 within 90 days of County Code 7.38 being effective, though this appears to have been by way of a
27 government tort claim and not a lawsuit or proceeding as required. Plaintiff’s exhibit 2 to the FAC
28 appears to be a claim rejection and right to sue letter, simply informing him of the 6-month deadline
Ritson, Marc, et al. v. County of Santa Cruz, et al.
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1 to file suit in court for his claim. Nothing in this letter relates to or extends the period of time in
2 which an interested person must file suit to challenge the enactment of an ordinance. Government
3 Code §§ 945.4 & 945.6 set forth the requirements and timeframes for making a monetary claim
4 against a public entity. Section 945.8 expressly states that any statute of limitations not described in
5 that chapter must comply with the otherwise applicable statute of limitations. In the case of
6 challenging a newly enacted ordinance, that 90-day statute of limitations is set by Government Code
§ 65009. In addressing what types of claims are covered by a tort claim under the Tort Claim Act,
7
the legislature made clear via Government Code § 905.8 that “[n]othing in this part imposes liability
8
upon a public entity unless such liability otherwise exists.” As it appears from the FAC that the
9
claim is for general negligence, Government Code § 815 bars such a claim.
10
11 D. Ritson Lacks Standing To File This FAC Because His Claims Are Speculative,
12 Conjectural, and Hypothetical
To have standing a party must be beneficially interested in the controversy; they must have
13
“some special interest to be served or some particular right to be preserved or protected over and
14
above the interest held in common with the public at large.” (Carsten v. Psychology Emining Com.
15
(1980) 27 Cal.3d 793, 796.) “The party must be able to demonstrate that he or she has some such
16
beneficial interest that is concrete and actual, and not conjectural or hypothetical.” (Holmes v. Cal.
17
Nat. Guard (2001) 90 Cal.App.4th 297, 315.) When a claim is made based upon a statutory right,
18
“[t]he prerequisites for standing … are determined from the statutory language, as well as the
19
underlying legislative intent and the purpose of the statute.” (Department of Fair Employment &
20
Housing v. M&N Financing Corp. (2021) 69 Cal.App.5th 434, 444, quoting Boorstein v. CBS
21
Interactive, Inc. (2013) 222 Cal.App.4th 456, 466.) Ritson does not have standing for three reasons.
22
First, Ritson’s claims of beneficial interest are based upon vague and purely hypothetical risks of
23
harm. Second, the stated factual circumstances in the FAC describe events that preceded the
24 enactment of County Code 7.38 at issue. Third, Business and Professions Code § 460 is not intended
25 to confer standing where a local government legitimately exercises its police powers but takes no
26 action to impose additional obligations on professionals licensed by the state of California.
27 As in the initial complaint, Ritson makes only vague and conclusory claims of beneficial
28 interest that are insufficient to confer standing. Instead of identifying actually lost business, the FAC
Ritson, Marc, et al. v. County of Santa Cruz, et al.
Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO
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1 asserts only how the County has implemented State and local regulations pertaining to the approval
2 of septic systems (FAC at Pp. 20-21, ¶ 70-75.) Ritson’s reliance on his own opinion on perceived
3 lack of “real impediments” is too speculative to warrant finding standing. The allegations themselves
4 ignore the County’s normal permitting process, which involves submittal of an application,
5 comments on the application, and corrections to address those comments. Ritson neither makes
6 mention of any actually lost business nor identifies any mechanism by which any provision of
Chapter 7.38 could be perceived or enforced as causing Ritson to lose business. Moreover, Ritson
7
fails to specifically identify any instances among the events described where the County denied any
8
of his septic system designs for non-compliance with County Code Chapter 7.38. These vague and
9
conclusory allegations are insufficient to constitute standing.
10
Business and Professions Code § 460 does not confer any standing to file suit under these
11
facts. Instead – and as discussed in Section II.D., infra – § 460 merely prohibits local governments
12
from imposing additional licensing requirements from the state. Chapter 7.38 clearly does not violate
13
that prohibition. As a result, neither the statutory history nor the text of the language can be read as
14
conferring standing to bring suit for the County’s legitimate exercise of its police powers. See
15
Boorstein v. CBS Interactive, Inc., 222 Cal.App.4th at 466.) Because § 460 does not confer standing,
16
dismissal with prejudice is appropriate.
17
E. Business and Professions Code § 460 Does Not Preempt Santa Cruz County’s Power to
18 Impose Health and Safety Restrictions On the Installation of Septic Systems
19 Where a party alleges some contradiction between laws, Courts are to interpret those laws
20 “with reference to the entire scheme of law of which it is part so that the whole may be harmonized
21 and retain effectiveness." (People v. Pieters (1991) 52 Cal.3d 894, 899) Reading Business and
22 Professions Code § 460 as proposed by Ritson would vitiate both the state’s explicit requirement
23 that the County administer OWTS installation and grant of authority for the County to exercise its
24 police power based on its local needs. (see RJN Exh. 1, State OWTS Regulation, at P. 1; See also
25 OWTS Policy §§ 3.2, 3.7.) Rather than unnecessarily reading a conflict into laws, the Court should
26 read § 460 and Chapter 7.38 as entirely consistent and completely separate from one another.
27 The statutory pre-emption analysis focuses on whether a local regulation explicitly conflicts
28 with a provision of state law. (See Galvan v. Superior Court (1969) 70 Cal.2d 851, 855-859,
Ritson, Marc, et al. v. County of Santa Cruz, et al.
Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO
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1 superseded on other grounds by statute.) Generally, the doctrine of state preemption will not apply
2 unless: "(1) the subject matter has been so fully and completely covered by general law as to clearly
3 indicate that it has become exclusively a matter of state concern; (2) the subject matter has been
4 partially covered by general law couched in such terms as to indicate clearly that a paramount state
5 concern will not tolerate further or additional local action; or (3) the subject matter has been
6 partially covered by general law, and the subject is of such a nature that the adverse effect of a local
ordinance on the transient citizens of the state outweighs the possible benefit to the municipality."
7
(Cox Cable San Diego v. City of San Diego (1987) 188 Cal.App.3d 952, 961, quoting In re
8
Hubbard (1964) 62 Cal.2d 119, 128.) None of these exist here.
9
Despite the misplaced contentions made once again by Ritson, Business and Professions
10
Code § 460 merely prohibits local governments from imposing additional licensing requirements on
11
industries licensed by the State of California. (Maloy v. Municipal Court of Los Angeles Judicial
12
Dist. (1968) 266 Cal.App.2d 414, 418.) Although § 460 clearly reflects an intent to preempt
13
licensing, § 460 “does not limit the right of local governments to exercise their police powers to
14
ensure ‘the quality and character’ of the licensees' work.” (California Veterinary Medical Assn. v.
15
City of West Hollywood (2007) 152 Cal.App.4th 536, 555 (upholding county’s prohibition of
16
certain procedures by licensed individuals when found to harm the public welfare).) Even where a
17
locality’s additional licensing requirements are preempted by state legislation, reviewing courts
18 carefully recognize that preemption “does not limit the right of local governmental agencies to
19 protect property and life through the enforcement of local regulations as to the quality and character
20 of the installations.” (San Francisco v. Boss (1948) 83 Cal.App.2d 445, 449, finding preemption of
21 loc
Preview
1 JASON M. HEATH, State Bar No. 180501 County Counsel 2 MICHAEL J. DE SMIDT, State Bar No. 327439 Assistant County Counsel 3 Office of the Santa Cruz County Counsel 701 Ocean Street, Room 505 4 Santa Cruz, California 95060 Telephone: (831) 454-2040 5 Fax: (831) 454-2115 Email: michael.desmidt@santacrucountyca.gov 6 Attorneys for Defendant 7 County of Santa Cruz 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA CRUZ 10 11 MARC RITSON, SOLE PROPRIETOR, DBA Case No. 23CV02653 TERRA FIRMA ENGINEERING & SCIENCE, 12 DEFENDANT COUNTY OF SANTA Plaintiff, CRUZ’S NOTICE OF DEMURRER AND 13 DEMURRER TO PLAINTIFF’S FIRST v. AMENDED COMPLAINT FOR 14 INJUNCTIVE RELIEF AND 15 COUNTY OF SANTA CRUZ, and DOES 1 TO MONETARY DAMAGES; 10 INCLUSIVE MEMORANDUM OF POINTS AND 16 AUTHORITIES IN SUPPORT Defendants. THEREOF 17 18 Date: May 17, 2024 19 Time: 8:30 a.m. Dept: 10 20 21 NOTICE OF HEARING 22 TO PLAINTIFF MARC RITSON, SOLE PROPRIETOR, DBA TERRA FIRMA 23 ENGINEERING & SCIENCE, IN PROPRIA PERSONA: 24 PLEASE TAKE NOTICE that on May 17, 2024, at 8:30 a.m. or as soon thereafter as the 25 matter may be heard in Department “10” of the Santa Cruz County Superior Court, located at 701 26 Ocean Street, Santa Cruz, California 95060, Defendant, COUNTY OF SANTA CRUZ (the 27 “County” or “Defendant”) will and does, generally and specially, demur to the First Amended 28 Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -1- 1 Complaint of Plaintiff MARC RITSON, SOLE PROPRIETOR, DBA TERRA FIRMA 2 ENGINEERING & SCIENCE (“Ritson” or “Plaintiff”) and to each cause of action alleged therein. 3 This demurrer is based upon the pleadings and records on file herein, this notice of hearing 4 on demurrer, the demurrer and memorandum of points and authorities attached hereto, the request 5 for judicial notice accompanying this demurrer, Court file herein, and upon such additional 6 evidence and argument as may be made at the time of hearing upon the demurrer. 7 8 Dated: March 25, 2024 JASON M. HEATH, COUNTY COUNSEL 9 By: /s/ Michael J. De Smidt 10 MICHAEL J. DE SMIDT 11 Assistant County Counsel Attorneys for Defendant 12 COUNTY OF SANTA CRUZ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -2- 1 DEMURRER TO FIRST AMENDED COMPLAINT 2 Pursuant to California Code of Civil Procedure § 430.10, Defendant County of Santa Cruz 3 (“the County”) generally and specially demurs to Mark Ritson, Sole Proprietor, DBA Terra Firma 4 Engineering & Science’s (“Ritson”) First Amended Complaint (“FAC”) in its entirety and to each 5 claim against the County. The County specifically demurs to the following causes of action: 6 1) Ritson’s FAC is vague, ambiguous, uncertain, and unintelligible in its entirety (Code Civ. Proc., § 430.10(f)), as none of its Causes of Action comply with Rule of Court 7 2.112, the FAC fails to identify the nature of the cause of action and fails to state facts 8 substantiating each of those causes of action in ordinary and concise language. (Code Civ. Proc., § 425.10(a)(1).) 9 2) The FAC is barred by the statute of limitations in Government Code § 65009 because it 10 should have been filed within ninety (90) days of the implementation of County Code Chapter 7.38. 11 12 3) Ritson alleges neither harm nor beneficial interest in this litigation sufficient to provide standing even under California’s liberal rules. 13 4) The FAC does not state facts sufficient to constitute a cause of action under CCP 14 430.10(e) because California Business and Professions Code § 460 does not preempt 15 the County’s exercise of its safety and welfare powers. 16 5) The FAC incorrectly asserts the County is not permitted to impose greater restrictions on septic system installation than provided under state law. 17 6) The County appropriately delegated authority for implementing Santa Cruz County 18 Code Chapter 7.38 to the County Health Officer. 19 7) The Court lacks jurisdiction and should dismiss the FAC under CCP 430.10(a) because 20 Ritson’s claims and allegations are inherently political questions not subject to judicial review. 21 22 8) The FAC asserts claims for general negligence, which fail as a matter of law, not being an authorized statutory basis for liability against a public entity or public employee 23 under Government Code § 815. 24 WHEREFORE, Defendant, the County of Santa Cruz prays that this demurrer to Marc 25 Ritson, Sole Proprietor, DBA Terra Firma Engineering & Science’s First Amended Complaint be 26 sustained in its entirety, that the County’s demurrer be granted, the matter be dismissed with 27 prejudice, and that the Court grant such other and further relief as it deems just and proper. 28 Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -3- 1 Dated: March 25, 2024 JASON M. HEATH, COUNTY COUNSEL 2 By: /s/ Michael J. De Smidt _ 3 MICHAEL J. DE SMIDT 4 Assistant County Counsel Attorneys for Defendant 5 COUNTY OF SANTA CRUZ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -4- 1 TABLE OF CONTENTS 2 3 TABLE OF AUTHORITIES .................................................................................................................6 4 MEMORANDUM OF POINTS AND AUTHORITIES .......................................................................9 5 I. INTRODUCTION AND SUMMARY OF ARGUMENT ...................................................... 9 6 II. RELEVANT STATUTORY AND REGULATORY HISTORY ......................................... 10 7 III. STANDARD OF REVIEW................................................................................................... 11 8 IV. ARGUMENT ........................................................................................................................ 12 A. Ritson’s FAC is Vague, Ambiguous, Uncertain and Unintelligible In Its Entirety .............. 12 9 1. The FAC’s First and Second Causes of Action Are Entirely Conclusory and Fail to State 10 Facts That Constitute a Valid Cause of Action ..................................................................... 12 11 2. The FAC’s Third and Fourth Causes of Action Fail as a Matter of Law .............................. 13 12 3. Plaintiff’s Prayer for Relief Is Not Based on Any Stated Cause of Action........................... 14 13 4. The FAC Fails to Comply With Code of Civil Procedure § 425.10 Because It Does Not 14 Plead its Causes of Action In Ordinary and Concise Language............................................ 14 15 B. The Statute of Limitation in California Government Code § 65009 Bars These Claims ..... 15 16 C. Ritson’s Government Tort Claim Does Not Extend the Statute of Limitations Under 17 Government Code § 65009, Which Still Bars His Claims. ................................................... 15 18 D. Ritson Lacks Standing To File This FAC Because His Claims Are Speculative, Conjectural, 19 and Hypothetical.................................................................................................................... 16 20 E. Business and Professions Code § 460 Does Not Preempt Santa Cruz County’s Power to 21 Impose Health and Safety Restrictions On the Installation of Septic Systems ..................... 17 22 F. The County Is Permitted to Set Greater Standards Than Required By State OWTS Policy 19 23 G. The County Appropriately Delegated Its Authority To Oversee OWTS Policy to The County 24 Health Officer ........................................................................................................................ 19 25 H. Ritson’s FAC’s Allegations Fundamentally Remain a Request for the Court to Render an 26 Advisory Opinion .................................................................................................................. 21 27 V. CONCLUSION ..................................................................................................................... 21 28 Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -5- 1 TABLE OF AUTHORITIES 2 Cases 3 Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531 .............................................. 11 4 Aubry v. Tri City Hosp. Dist. (1992) 2 Cal.4th 962 ............................................................................ 11 5 Black v. Department of Mental Health (2000) 83 Cal.App.4th 739 ................................................... 11 6 Boorstein v. CBS Interactive, Inc. (2013) 222 Cal.App.4th 456 .................................................. 16, 17 7 California Veterinary Medical Assn. v. City of West Hollywood (2007) 152 Cal.App.4th 536 ......... 18 8 Carsten v. Psychology Emining Com. (1980) 27 Cal.3d 793 ............................................................. 16 9 Cochran v. Herzog Engraving Co. (1984) 155 Cal. App. 3d 405 ...................................................... 14 10 Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197 ................. 11 11 Cox Cable San Diego v. City of San Diego (1987) 188 Cal.App.3d 952 ........................................... 18 12 Department of Fair Employment & Housing v. M&N Financing Corp. (2021) 69 Cal.App.5th 434 16 13 Galvan v. Superior Court (1969) 70 Cal.2d 851 ................................................................................ 17 14 Gaylord v. City of Pasadena (1917) 175 Cal. 433 .............................................................................. 20 15 Golightly v. Molina (2014) 229 Cal.App.4th 1501 ............................................................................. 19 16 Hampton v. County of San Diego (2015) 62 Cal.4th 340 ................................................................... 14 Hensler v. City of Glendale (1994) 8 Cal.4th 1 .................................................................................. 15 17 Holland v. Morse Diesel Int'l, Inc. (2001) 86 Cal.App.4th 1443 ....................................................... 11 18 Holmes v. Cal. Nat. Guard (2001) 90 Cal.App.4th 297 ..................................................................... 16 19 In re Hubbard (1964) 62 Cal.2d 119 .................................................................................................. 18 20 Kugler v. Yocum (1968) 69 Cal.2d 371............................................................................................... 20 21 Lawrence v. Bank of America (1985) 163 Cal.App.3d 431 ................................................................ 21 22 Maloy v. Municipal Court of Los Angeles Judicial Dist. (1968) 266 Cal.App.2d 414....................... 18 23 People v. Lim (1941) 18 Cal.2d 872 ................................................................................................... 12 24 People v. Pieters (1991) 52 Cal.3d 894 .............................................................................................. 17 25 San Francisco v. Boss (1948) 83 Cal.App.2d 445 .............................................................................. 18 26 Schonfeldt v. State of Calif. (1998) 61 Cal.App.4th 1462................................................................... 21 27 Semole v. Sansoucie (1972) 28 Cal.App.3d 714 ................................................................................. 11 28 Stanislaus Co. etc. Assn. v. Stanislaus (1937) 8 Cal.2d 378 ............................................................... 20 Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -6- 1 Travis v. County of Santa Cruz (2004) 33 Cal.4th 757....................................................................... 15 2 Statutes 3 Business and Professions Code § 3042............................................................................................... 13 4 Business and Professions Code § 460........................................................................................... 10, 17 5 Business and Professions Code § 6731............................................................................................... 13 6 Business and Professions Code, Chapter 7, § 460 .............................................................................. 13 7 Code Civ. Proc., § 425.10 ................................................................................................................... 14 8 Code Civ. Proc., § 425.10(a)(1) .......................................................................................................... 14 9 Code Civ. Proc., § 430.10(f) ............................................................................................................... 12 10 Code Civ. Proc., § 430.50(a)............................................................................................................... 12 11 Code Civ. Proc., § 526(b)(6) ............................................................................................................... 14 12 Government Code § 65009 ................................................................................................................. 16 13 Government Code § 65009(c)(1)(B) ................................................................................................... 15 14 Government Code § 815 ..................................................................................................................... 14 15 Government Code § 815(a) ................................................................................................................. 14 16 Government Code § 905.8 .................................................................................................................. 16 Government Code § 945.4 .................................................................................................................. 16 17 Government Code § 945.6 .................................................................................................................. 16 18 Government Code § 945.8 .................................................................................................................. 16 19 Health and Safety Code § 101000 ...................................................................................................... 21 20 Health and Safety Code § 116275 ...................................................................................................... 21 21 Health and Safety Code § 116500 ...................................................................................................... 21 22 Water Code §13291 ............................................................................................................................ 10 23 24 Other Authorities Assemby Bill 885................................................................................................................................ 10 25 Santa Cruz County Code § 7.38............................................................................................... 9, passim 26 Santa Cruz County Code § 7.38.020............................................................................................. 15, 19 27 Santa Cruz County Code § 7.38.025................................................................................................... 15 28 Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -7- 1 Santa Cruz County Code § 7.38.092 ................................................................................................... 20 2 Santa Cruz County Code § 7.38.092(A) ............................................................................................. 11 3 State OWTS Policy § 3.2 .................................................................................................................... 17 4 State OWTS Policy § 3.7 .............................................................................................................. 10, 19 5 Rules 6 California Rule of Court 2.112(2) ....................................................................................................... 12 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -8- 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION AND SUMMARY OF ARGUMENT 3 Plaintiff Marc Ritson, Sole Proprietor, DBA Terra Firma Engineering Science (“Ritson”), in 4 his First Amended Complaint (“FAC”), alleges generally that the County of Santa Cruz’s 5 (“County”) adoption of County Code Chapter 7.38 prevents Ritson from the licensed practice of 6 civil engineering in Santa Cruz County. Ritson makes no factual allegations of any kind, instead 7 providing a summary of various statutes, regulations, and County Code provisions without 8 providing any indication of how those statutes provide a cause of action. The only facts Plaintiff 9 alleges, is an irrelevant detailing of projects he worked on in the County over a time period that 10 largely predates the adoption of the current County Code 7.38 and which fails to specifically 11 identify how the County Code has impeded his ability to practice his profession. It is difficult to 12 specifically identify Ritson’s legal theory or claims because the FAC is largely non-compliant with 13 this Court’s order sustaining the demurrers to the initial complaint, the Rules of Court, and the 14 Code of Civil Procedure. The result is a difficult-to-parse and confusing morass of nebulous 15 allegations that identify neither the legal theories they are based on nor the facts supporting those 16 theories. Ultimately, Ritson fails to identify with any specificity what sections of Chapter 7.38 – if 17 any – he alleged prohibit his practice. Ritson cannot make such an allegation because Chapter 7.38 18 of the County Code does not prohibit the practice of civil engineering in any way. 19 Even if Ritson could articulate some legal theory, the challenge comes months after the 20 statute of limitation lapsed. Chapter 7.38 was implemented in February 2023 and Ritson’s FAC 21 continues to raise issues that are time barred by Government Code § 65009’s ninety (90) day 22 statute of limitations. 23 Ritson fails to allege any beneficial interest or actual harm necessary to prove standing. 24 Ritson does not allege County staff have ever relied upon Chapter 7.38 to deny his work nor any 25 26 specific provision of Chapter 7.38 that allegedly prohibits the practice of civil engineering. 27 Ritson’s failure to allege any actual harm or intent to prohibit his practice as a civil engineer 28 demonstrates his lack of any beneficial interest necessary to confer standing. Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -9- 1 Nothing in County Code § 7.38 prohibits or otherwise seeks to restrict the activities of 2 Ritson or any other geological engineer licensed pursuant to California Business and Professions 3 Code § 460. California Business and Professions Code § 460 does not prohibit the County’s 4 exercise of its police powers to protect the public welfare, including defining the manner of 5 performance of licensed professionals. 6 Ritson’s claims – to the extent they can be identified – are so lacking that further 7 amendment would be futile. The County’s implementation of Chapter 7.38 was directed by the 8 State of California and falls well within the County’s express powers as a political subdivision of 9 the State. For each of the reasons set forth below, the County requests that the demurrers be 10 sustained without leave to amend as to each cause of action. 11 II. RELEVANT STATUTORY AND REGULATORY HISTORY 12 Passed by the Legislature in 1999, AB 885 required the State Water Board to adopt 13 regulations outlining the minimum standard for the permitting and operation of onsite wastewater 14 treatment systems (“OWTS” or “septic systems”). (See Water Code section 13291.) The State 15 Water Resources Control Board passed OWTS regulations on June 19, 2012 that became effective 16 as of May 13, 2013. (RJN Exhibit 1, State OWTS Plan.) The OWTS regulations identified four 17 possible pre-defined tiers of OWTS regulation, but permitted counties to create their own more 18 restrictive Local Area Management Plans (“LAMP”) to address their unique local geography. (RJN 19 Exhibit 1, at P. 2-3, Defining “Tier 2”; see also State OWTS Plan §§ 3.2, 3.7) Santa Cruz County, 20 recognizing its unique geological setting, drafted and then submitted and received approval for its 21 own LAMP from the Central Coast Regional Water Quality Control Board on October 14, 2021; 22 the County’s Board of Supervisors approved the LAMP on August 23, 2022. (RJN Exhibit 2, Santa 23 Cruz County LAMP.) 24 The County updated its sewage disposal standards for OWTS (Santa Cruz County Code 25 7.38) to comply with the LAMP and State OWTS policy. On October 18, 2022, the Board of 26 Supervisors held a public hearing and allowed comment on the proposed amendments to 7.38 of the 27 County Code. (RJN Exhibit 3, October 18, 2022 Santa Cruz County Board Minutes of Hearing.) 28 After taking public comment the Board of Supervisors approved the proposed amendments Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -10- 1 and directed the Clerk of the Board to schedule the ordinance for final adoption at the next Board of 2 Supervisors meeting. The Board of Supervisors adopted the amendments to 7.38 on October 25, 3 2022. (RJN Exhibit 4, October 25, 2022 Santa Cruz County Board Minutes of Hearing.) After 4 passage by the County, the California Coastal Commission approved Chapter 7.38 and the law 5 became effective on February 20, 2023. (RJN Exh. 6, California Coastal Commission Approval 6 Letter.) 7 Chapter 7.38 tasks the County Health Officer with ensuring compliance with the standards 8 set by the Board of Supervisors (see e.g. Santa Cruz County Code § 7.38.092(A) “A finding of 9 compliance shall not be granted unless the Health Officer determines that the proposed system 10 meets all the requirements of this chapter…”) Nothing in Chapter 7.38 permits the Health Officer to 11 alter the standards set by the Board of Supervisors. (Santa Cruz County Code Chapter 7.38, 12 passim.) 13 III. STANDARD OF REVIEW 14 A demurrer tests only the legal sufficiency of the pleading and Plaintiff’s factual assertions 15 are generally accepted as true (Committee on Children's Television, Inc. v. General Foods Corp. 16 (1983) 35 Cal.3d 197, 213, superseded on other grounds). Nonetheless, substantive allegations 17 which set forth essential facts and address the elements of the causes of action alleged are 18 absolutely required (Semole v. Sansoucie (1972) 28 Cal.App.3d 714). Moreover, as the Court held 19 in Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537, “It is settled law that a 20 pleading must allege facts and not conclusions, and that material facts must be alleged directly and 21 not by way of recital.” (Id.) 22 Thus, while Plaintiff’s factual allegations are generally presumed true for purposes of this 23 motion, there are two notable exceptions applicable here. First, this Court may disregard, 24 “contentions, deductions, or conclusions of fact or law” (Aubry v. Tri City Hosp. Dist. (1992) 2 25 Cal.4th 962, 966-967). Second, where allegations controvert an attached exhibit or a judicially 26 noticeable fact, the inapposite contentions in the complaint must give way. (Black v. Department of 27 Mental Health (2000) 83 Cal.App.4th 739, 745; and Holland v. Morse Diesel Int'l, Inc. (2001) 86 28 Cal.App.4th 1443, 1447). Therefore, in ruling on this demurrer, the Court may properly disregard Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -11- 1 Plaintiff’s legal conclusions that (e.g., that “Respondents abused their discretion”) as these are not 2 factual statements which must be accepted as true. 3 IV. ARGUMENT 4 A. Ritson’s FAC is Vague, Ambiguous, Uncertain and Unintelligible In Its Entirety 5 The FAC only makes the smallest of corrections to the initial complaint, consisting of 25 6 single-spaced pages of legal conclusions and vague contentions, absent any cognizable legal theory 7 to base relief upon. The FAC remains with this Court’s order on the demurrer to the complaint and 8 noncompliant with the Rules of Court applicable to pleadings. A demurrer may be taken to either 9 the whole complaint or to any cause of action therein, (Code Civ. Proc., § 430.50(a)) and a 10 demurrer lies where “[t]he pleading is uncertain. As used in this subdivision, ‘uncertain’ includes 11 ambiguous and unintelligible.” (Code Civ. Proc., § 430.10(f).) 12 While the FAC attempts to correct the issue of a “lack of labels” and the initial complaint’s 13 failure to comply with the Rules of Court, the FAC still fails to plead allegations “sufficiently clear 14 to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 15 882.) Here, Ritson’s FAC again largely fails to comply with the Rules and Code of Civil Procedure 16 section 430.50, resulting in an operative pleading that is vague, ambiguous, confusing, and difficult 17 – if not impossible – to respond to in its current form. The only cure is sustaining this demurrer. 18 1. The FAC’s First and Second Causes of Action Are Entirely Conclusory and Fail to State Facts That Constitute a Valid Cause of Action 19 20 California Rule of Court 2.112 requires that “Each separately stated cause of action, count, or 21 defense must specifically state: (1) Its number (e.g., "first cause of action"); [and] (2) Its nature (e.g., 22 "for fraud").” (CRC 2.112(1), (2).) Ritson’s FAC, while amending the initial complaint to enumerate 23 and categorize each of the four listed causes of action, makes no attempt to go beyond general and 24 conclusory contentions violation of the Constitution and statute without providing specific factual 25 citations to authority, or legal bases for how the County has wronged him. (FAC at P. 21 ¶ 76, P. 22 26 ¶ 80.) The FAC fails to consistently describe the nature of the claim or claims alleged. While earlier 27 in the FAC, Ritson states he is primarily seeking injunctive relief so he may practice his profession 28 in the County of Santa Cruz without impediment from County Code 7.38 (FAC P. 5 ¶¶ 12-14), he Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -12- 1 also states his primary goal with his claims is to be allowed to design safe and simple septic systems 2 (FAC P. 6 ¶ 19). Even assuming the truth of the FAC as pleaded, there is simply nothing in County 3 Code 7.38 that prevents Ritson from practicing his profession or designing safe and simple septic 4 systems. Moreover, given the general and conclusory nature of the claims and the twenty-two-page 5 background and summary of facts, it is wholly unclear from the FAC where there is a factual basis 6 for any economic loss attributable to the County. 7 Again, as in the initial complaint, Ritson alleges generally that his “primary allegation is that 8 Ordinance 7.38 has lost sight of the State’s mandate requiring Plaintiff to be allowed to the practice 9 of Civil engineering: Business and Professions Code, Chapter 7, § 460.” (FAC at P. 8, ¶ 29, Ln. 19- 10 24.) Throughout the remainder of the FAC, however, Ritson cites without explanation to Business 11 and Professions Code § 6731 (P. 5, ¶ 13, Ln. 13; P. 9, ¶ 31, Ln. 14-22; P. 9, ¶ 32, Ln. 24-28, P. 10, 12 Ln. 1-18), Business and Professions Code § 3042 (Id. at P. 10, Ln. 19-20). Ritson once again makes 13 generalized allegations while referencing County Code Ch. 7.38 without identifying a single 14 subsection that is relevant to the claims made. These various, confusing, and non-specific claims 15 leave the County and Court to guess under what legal theory and from what portions of County Code 16 Chapter 7.38 Ritson concludes the County has lost sight of the State’s mandate requiring Plaintiff to 17 be allowed to the practice [of] Civil Engineering. This uncertainty, vagueness and ambiguity, like 18 the initial complaint, remains characteristic of the entire FAC and dismissal is appropriate. 19 2. The FAC’s Third and Fourth Causes of Action Fail as a Matter of Law 20 Ritson’s third and fourth causes of action appear to make claims for general negligence on 21 the part of the County, stating without any factual basis that County Code 7.38 somehow negatively 22 impacts his professional liability, but fails to state or refer to any specific facts that support such a 23 claim for negligence against the County. Even if they did, common law causes of action such as 24 negligence cannot be maintained against California public entities or its employees, including 25 elected officials. Government Code section 815(a) declares, ‘[e]xcept as otherwise provided by 26 statute, [a] public entity is not liable for an injury, whether such injury arises out of an act or 27 omission of the public entity or a public employee or any other person.” Section 815 thus abolished 28 all common law liabilities or judicially declared forms of liability, except as may be required under Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -13- 1 the state or federal constitution. (See, e.g., Cochran v. Herzog Engraving Co. (1984) 155 Cal. App. 2 3d 405, 409 (governmental liability is limited to exceptions specifically set forth by statute); 3 Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347 (public entity not liable for injury 4 except as otherwise provided by statute)). 5 3. Plaintiff’s Prayer for Relief Is Not Based on Any Stated Cause of Action 6 Ritson, on page 25 of the FAC, requests that the Court grant him “injunctive relief to be 7 allowed to practice Plaintiff’s allowed by BPC civil engineering scopes of work, that are restricted and/or prohibited as alleged in Causes of Action 1 to 4” and monetary damages in the amount of 8 $10,000, along with what appears to be an ongoing award of $25,000 for each year that he is unable 9 to practice his profession in the manner he believes he is entitled. 10 As to the first prayer for injunctive relief, none of the four causes of action stated include a 11 cause of action for injunctive relief and the only other places injunctive relief is either mentioned or 12 in any way framed is the title, page 5 paragraph 12, and the prayer. More importantly, under Cal. 13 Code of Civ. Proc. § 526(b)(6), injunctive relief if unavailable “[t]o prevent the exercise of a public 14 or private office, in a lawful manner, by the person in possession.” Here, Ritson is requesting that 15 the Court order that the Health Officer ignore enforcement of the requirements of County Code 7.38 16 in order to allow Plaintiff to freely practice his profession as he pleases. As to the second prayer, the 17 County can only assume the monetary damages relate to the claims of negligence, which as 18 discussed supra, are barred by Government Code § 815. 19 4. The FAC Fails to Comply With Code of Civil Procedure § 425.10 Because It Does 20 Not Plead its Causes of Action In Ordinary and Concise Language 21 Code of Civil Procedure § 425.10 requires that “[a] complaint or cross-complaint shall 22 contain … [a] statement of the facts constituting the cause of action, in ordinary and concise 23 language.” (Code Civ. Proc., § 425.10(a)(1).) Ritson has failed to meet that low pleading bar. 24 The FAC is anything but concise, relying entirely on long and winding pages containing 25 background information on various topics and legal citations, while providing only the most general 26 factual allegations. Ritson, like in the initial complaint, makes no more specific factual allegations 27 and never identifies any actions taken by the County or its staff that would substantiate his vague 28 claims. Instead, Ritson relies upon opaque, redundant, and unrelated statutory references and legal Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -14- 1 conclusions that serve only to obfuscate what issues might actually exist. These tactics prop up the 2 FAC despite the lack of any facts or coherent legal theory to support the FAC. 3 B. The Statute of Limitation in California Government Code § 65009 Bars These Claims 4 A ninety (90) day statute of limitation applies to challenges to legislative acts adopting or 5 amending land use regulations. (Gov. Code § 65009(c)(1)(B).) “If the challenge is to the facial 6 validity of a land-use regulation, the statute of limitations runs from the date the statute becomes 7 effective.” (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22.) Chapter 7.38 is clearly a land use regulation. The Chapter specifically identifies itself as a land use regulation (Santa Cruz County 8 Code § 7.38.020), seeks to regulate the installation and use of on-site sewage treatment and disposal 9 facilities, and in practice “regulates land use by allowing a particular use … in designated zones of 10 the county…” (Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 772, fn. 8.) Ritson’s FAC 11 challenges Chapter 7.38’s compliance with State Law and must therefore have been filed within 12 ninety days of becoming effective. 13 Chapter 7.38 was passed by the Board of Supervisors on October 25, 2022 (RJN Exh. 4, 14 County Board Minutes of Hearing, October 25, 2023; RJN Exh. 2, SCC LAMP, at P. 115.) 15 However, any amendments to SCCC 7.38 must be approved by the Coastal Commission to 16 determine whether it constitutes an amendment to the Local Coastal Program. (See County Code § 17 7.38.025.) The Coastal Commission heard and approved the proposed amendment on February 10, 18 2023 (RJN Exh. 5, Coastal Commission De Minimis Letter, February 10, 2023) and the law came 19 into effect on February 20, 2023. (RJN Exh. 6, Coastal Commission Amendment Approval Letter, 20 February 17, 2023.) Because the law came into effect as of February 20, 2023, any complaint must 21 have been filed on or before May 21, 2023. Ritson’s November 7, 2023 complaint is untimely filed 22 and its claims are barred. 23 C. Ritson’s Government Tort Claim Does Not Extend the Statute of Limitations Under 24 Government Code § 65009, Which Still Bars His Claims. 25 Ritson claims, by way of an attached exhibit 2, that he filed a complaint with the County 26 within 90 days of County Code 7.38 being effective, though this appears to have been by way of a 27 government tort claim and not a lawsuit or proceeding as required. Plaintiff’s exhibit 2 to the FAC 28 appears to be a claim rejection and right to sue letter, simply informing him of the 6-month deadline Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -15- 1 to file suit in court for his claim. Nothing in this letter relates to or extends the period of time in 2 which an interested person must file suit to challenge the enactment of an ordinance. Government 3 Code §§ 945.4 & 945.6 set forth the requirements and timeframes for making a monetary claim 4 against a public entity. Section 945.8 expressly states that any statute of limitations not described in 5 that chapter must comply with the otherwise applicable statute of limitations. In the case of 6 challenging a newly enacted ordinance, that 90-day statute of limitations is set by Government Code § 65009. In addressing what types of claims are covered by a tort claim under the Tort Claim Act, 7 the legislature made clear via Government Code § 905.8 that “[n]othing in this part imposes liability 8 upon a public entity unless such liability otherwise exists.” As it appears from the FAC that the 9 claim is for general negligence, Government Code § 815 bars such a claim. 10 11 D. Ritson Lacks Standing To File This FAC Because His Claims Are Speculative, 12 Conjectural, and Hypothetical To have standing a party must be beneficially interested in the controversy; they must have 13 “some special interest to be served or some particular right to be preserved or protected over and 14 above the interest held in common with the public at large.” (Carsten v. Psychology Emining Com. 15 (1980) 27 Cal.3d 793, 796.) “The party must be able to demonstrate that he or she has some such 16 beneficial interest that is concrete and actual, and not conjectural or hypothetical.” (Holmes v. Cal. 17 Nat. Guard (2001) 90 Cal.App.4th 297, 315.) When a claim is made based upon a statutory right, 18 “[t]he prerequisites for standing … are determined from the statutory language, as well as the 19 underlying legislative intent and the purpose of the statute.” (Department of Fair Employment & 20 Housing v. M&N Financing Corp. (2021) 69 Cal.App.5th 434, 444, quoting Boorstein v. CBS 21 Interactive, Inc. (2013) 222 Cal.App.4th 456, 466.) Ritson does not have standing for three reasons. 22 First, Ritson’s claims of beneficial interest are based upon vague and purely hypothetical risks of 23 harm. Second, the stated factual circumstances in the FAC describe events that preceded the 24 enactment of County Code 7.38 at issue. Third, Business and Professions Code § 460 is not intended 25 to confer standing where a local government legitimately exercises its police powers but takes no 26 action to impose additional obligations on professionals licensed by the state of California. 27 As in the initial complaint, Ritson makes only vague and conclusory claims of beneficial 28 interest that are insufficient to confer standing. Instead of identifying actually lost business, the FAC Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -16- 1 asserts only how the County has implemented State and local regulations pertaining to the approval 2 of septic systems (FAC at Pp. 20-21, ¶ 70-75.) Ritson’s reliance on his own opinion on perceived 3 lack of “real impediments” is too speculative to warrant finding standing. The allegations themselves 4 ignore the County’s normal permitting process, which involves submittal of an application, 5 comments on the application, and corrections to address those comments. Ritson neither makes 6 mention of any actually lost business nor identifies any mechanism by which any provision of Chapter 7.38 could be perceived or enforced as causing Ritson to lose business. Moreover, Ritson 7 fails to specifically identify any instances among the events described where the County denied any 8 of his septic system designs for non-compliance with County Code Chapter 7.38. These vague and 9 conclusory allegations are insufficient to constitute standing. 10 Business and Professions Code § 460 does not confer any standing to file suit under these 11 facts. Instead – and as discussed in Section II.D., infra – § 460 merely prohibits local governments 12 from imposing additional licensing requirements from the state. Chapter 7.38 clearly does not violate 13 that prohibition. As a result, neither the statutory history nor the text of the language can be read as 14 conferring standing to bring suit for the County’s legitimate exercise of its police powers. See 15 Boorstein v. CBS Interactive, Inc., 222 Cal.App.4th at 466.) Because § 460 does not confer standing, 16 dismissal with prejudice is appropriate. 17 E. Business and Professions Code § 460 Does Not Preempt Santa Cruz County’s Power to 18 Impose Health and Safety Restrictions On the Installation of Septic Systems 19 Where a party alleges some contradiction between laws, Courts are to interpret those laws 20 “with reference to the entire scheme of law of which it is part so that the whole may be harmonized 21 and retain effectiveness." (People v. Pieters (1991) 52 Cal.3d 894, 899) Reading Business and 22 Professions Code § 460 as proposed by Ritson would vitiate both the state’s explicit requirement 23 that the County administer OWTS installation and grant of authority for the County to exercise its 24 police power based on its local needs. (see RJN Exh. 1, State OWTS Regulation, at P. 1; See also 25 OWTS Policy §§ 3.2, 3.7.) Rather than unnecessarily reading a conflict into laws, the Court should 26 read § 460 and Chapter 7.38 as entirely consistent and completely separate from one another. 27 The statutory pre-emption analysis focuses on whether a local regulation explicitly conflicts 28 with a provision of state law. (See Galvan v. Superior Court (1969) 70 Cal.2d 851, 855-859, Ritson, Marc, et al. v. County of Santa Cruz, et al. Case No. 23CV02653 County’s Ntc; Demurrer to FAC & MPA ISO -17- 1 superseded on other grounds by statute.) Generally, the doctrine of state preemption will not apply 2 unless: "(1) the subject matter has been so fully and completely covered by general law as to clearly 3 indicate that it has become exclusively a matter of state concern; (2) the subject matter has been 4 partially covered by general law couched in such terms as to indicate clearly that a paramount state 5 concern will not tolerate further or additional local action; or (3) the subject matter has been 6 partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality." 7 (Cox Cable San Diego v. City of San Diego (1987) 188 Cal.App.3d 952, 961, quoting In re 8 Hubbard (1964) 62 Cal.2d 119, 128.) None of these exist here. 9 Despite the misplaced contentions made once again by Ritson, Business and Professions 10 Code § 460 merely prohibits local governments from imposing additional licensing requirements on 11 industries licensed by the State of California. (Maloy v. Municipal Court of Los Angeles Judicial 12 Dist. (1968) 266 Cal.App.2d 414, 418.) Although § 460 clearly reflects an intent to preempt 13 licensing, § 460 “does not limit the right of local governments to exercise their police powers to 14 ensure ‘the quality and character’ of the licensees' work.” (California Veterinary Medical Assn. v. 15 City of West Hollywood (2007) 152 Cal.App.4th 536, 555 (upholding county’s prohibition of 16 certain procedures by licensed individuals when found to harm the public welfare).) Even where a 17 locality’s additional licensing requirements are preempted by state legislation, reviewing courts 18 carefully recognize that preemption “does not limit the right of local governmental agencies to 19 protect property and life through the enforcement of local regulations as to the quality and character 20 of the installations.” (San Francisco v. Boss (1948) 83 Cal.App.2d 445, 449, finding preemption of 21 loc