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ORIGINAL
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DENNIS MARSHALL, COUNTY COUNSEL AUG E} 3 mi
LISA A. ROTHSTEIN, DEPUTY (Bar No. 201611) GAp-w ,.
MEL/MR ' (ficm’va .
COUNTY OF SANTA BARBARA BY , . OWCW
105 E. Anapamu St., Suite 201
Santa Barbara, CA 93101
nfi, CHAVEZ Degxr‘
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(805) 568-2950 / FAX: (805) 568-2983
U'IuwH
Attorneys for Defendants
COUNTY OF SANTA BARBARA
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Exempt From Filing Fees Pursuant To Gov. Code § 6103 5%}:
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SUPERIOR COURT OF THE STATE OF CALIFORNIA :5.
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FOR THE COUNTY OF SANTA BARBARA
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ANACAPA DIVISION PTY
12 ATT
13 JAMESON PROPERTIES LLP Case No: 1372941 000
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v.
Plaintiff,
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[W] JUDGMENT
DISMISSING DEFENDANT COUNTY
OF SANTA BARBARA FROM .
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ST -'-—
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16 PLAINTIFF ’S SECOND AMENDED
PETITION FOR WRIT OF
17 MANDAMUS
[C.C.P. § 581]
18 COUNTY OF SANTA BARBARA,
Assigned Judge: Hon. Thomas P. Anderle
19 Defendants. -
Dept: SB3
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THOMAS P. ANDERLE
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22 Good cause appearing therefore, and having sustained COUNTY OF SANTA
23 BARBARA’S Demurrer to Plaintiffs Second Amended Petition for Writ of Mandamus
24 without leave to amend, as per the Ruling After Demurrer of this Court, filed July 12, 2011,
25 attached as Exhibit A:
26 ///
COUNTY COUNSEL
County of Santa Barbara 27 ///
105 East Anapamu Slrcct
Santa Barbara, CA 9310]
(805) 568-2950 28 [PROPOSED] JUDGMENT DISMISSING DEFENDANT COUNTY OF SANTA BARBARA FROM
PLAINTIFF’S SECOND AMENDED PETITION FOR WRIT OF MANDAMUS
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1.
IT IS ORDERED, ADJUDGED AND DECREED that the above entitled action is
dismissed under the provisions of Code of Civil Procedure section 581 as to Defendant
(”NH
COUNTY OF SANTA BARBARA.
DATED: Z , 2011
uld‘ge
/
Thomas P. Anderle
THOMAS P. ANDERLE
Approved as to form:
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DATED: , 2011
12 Fred A. Jacobsen
, Attorneys for Plaintiff
13 JAMESON PROPERTIES LLP
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COUNTY COUNSEL
County ofSanla Barbara 27
105 East Anapamu Street
Santa Barbara, CA 93101
(805) 568-2950
28 [PROPOSED] JUDGMENT DISMISSING DEFENDANT COUNTY OF SANTA BARBARA FROM
PLAINTlFF’S SECOND AMENDED PETITION FOR WRIT OF MANDAMU
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F LED
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we Rmmmagam“
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JUL 2 2011
GARY M. BLAIR Exocufive Officer
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA
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ll )
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JAMESON PROPERTIES LLC
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Plaintiff ) Case Nor 1372941
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vs ) RULING AFTER DEMURRER
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MICHAEL EMMONS et a]
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Defendants
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21 The demurrer of respondents Michael Emmons and the County of Santa Barbara is
22 sustained without leave to amend on the grounds that petitioner has failed to allege facts
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23 sufficient to state a cause of action.
24 Background
25 This is a demurrer to a second amended petition for writ of mandate arising out of the
26 County of Santa Barbara’s denial of petitioner’s applications for two certificates of
27 compliance as to\'petitioner’s real property.
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EX‘m‘oi’r A
As alleged in the second amended petition (the “SAP”), in 1946, an earlier owner of the real
property created three lots under law existing at the time, commonly known respectively as
1403, 1407 and 1411 Jameson, in Montecito, California. (SAP, 11 6.) Buildings were located
on these lots. (Ibid.) The SAP asserts that these were legally created lots and therefore
petitioner is entitled to issuance of certificates of compliance recognizing those lots under
presently existing subdivision law. (SAP, 1H 10, 14.) The present owner of 1403 and 1407
Jameson, petitioner Jameson Properties, LLC, applied for and was denied issuance of the
certificates of compliance. (SAP, {I 25.)
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Respondents Michael Emmons, Surveyor for the County of Santa Barbara, and the County
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of Santa Barbara (“County”) demur to the SAP on the grounds that the filing of a .
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subdivision map in 1964 without reference to the creation of separate lots for 1403 and
l3 1407 Jameson constitutes a legal merging of the separate parcels into one parcel under
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Government Code section 66499.20 1/2.
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The SAP was filed after the court sustained respondents’ demurrer to petitioner’s amended
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petition for writ of mandate. As discussed below, the court determined that the law as set
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forth in Government Code section 66499.20 1/2 applied to the facts as pleaded. The court
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granted petitioner leave to amend to provide additional facts to place the 1964 subdivision
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map into context. The SAP added one new paragraph, which states:
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22 “At the appeal hearing before the Board of Supervisors, the surveyor’s office for the first
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time claimed that the two lots had been merged by virtue of a record of survey and
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subdivision map filed in 1964. Merger was not a grounds for denial in the surveyor’s May
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25, 2010 original denial of J ameson’s application. Merger was not a proper ground for
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denial because, unlike an ancient federal patent, the Jameson lots were created after
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County review and approval was reviewed and approved under then-County standards,
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and no notice was given to the owners of the effect of the 1964 map. The owners would have
been ignorant of the potential merger because such a merger doctrine had never been
imposed by law. Government Code § 66499.20 1/2 did not represent a codification of then-
existing law, but was instead a change in the law concerning merger of parcels.” (SAP, 1]
26.)
Respondents address the allegations of surprise in paragraph 26 by arguing that the Board
of Supervisors appeal is de novo, that the merger issue was asserted as a reason for denial
of the appeal in a posted recommendation to the Board of Supervisors well in advance of
the appeal hearing, and that petitioner had the opportunity to address this issue before the
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Board of Supervisors, both factually and legally. Respondents further argue that any notice
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issue may have been an issue for the prior owner, but may not be raised by petitioner now.
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Although petitioner added the above paragraph 26 to the SAP, petitioner has not filed
14 opposition to respondents’ demurrer. On July 1, 2011, respondents filed a notice that they
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have not received any opposition to their demurrer.
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Analysis
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19 “We treat the demurrer as admitting all material facts properly pleaded, but not
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contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters
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which may be judicially noticed. [Citation.]. Further, we give the complaint a reasonable
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interpretation, reading it as a whole and its parts in their context. [Citation.]? (Evans v.
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City of Berkeley (2006) 38 Cal.4th 1, 6, internal quotation marks omitted.)
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Respondents have requested judicial notice of (1) the lot split file showing approval on
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August 20, 1964, (2) the record of survey recorded December 7, 1964, (3) the current
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assessor’s parcel map, book 009-30, certified as of March 1, 2011, (4) Opinion of the
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California Attorney General No. 81-406 (64. Ops.Cal.Atty.Gen. 549 (1981)), (5) former
Business and Professions Code section 11537 as amended in 1963, (6) the grant deed dated
June 17, 2008 and recorded June 24, 2008, (7) Santa Barbara County Code section 21-71.4,
and (8) a Board Letter, Santa Barbara County Board of Supervisors meeting of August 10,
2010. The court will take judicial notice of the contents and recording of public documents
(1), (2), (3), and (6). (Evid. Code, § 452, subds. (c), (h).) The court will take judicial notice of
the former and current laws of California and Santa Barbara County in documents (5) and
(7). (Evid. Code, §§ 451, subd, (a), 452, subds. (c), (h).) The court will take judicial notice of
the official acts of the California Attorney General and of the Santa Barbara County Board
of Supervisors and its staff in documents (4) and (8). (Evid. Code, § 452, subds. (c), (h).) In
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granting judicial notice, the court does not take judicial notice of the truth of facts stated in
ll public documents.
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(1) Merger
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The first amended petition did not mention the 1964 recorded map at all. The SAP does not
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mention the 1964 recorded map except as set forth in paragraph 26 quoted above. Thus,
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the facts upon which the demurrer may be based concerning the substance of the 1964 map
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are the judicially noticed facts of the existence, contents and recordation of the 1964 map
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(Request for Judicial Notice [“RJN”], exhibit 2).
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Respondents argue in this motion, and argued in the previous demurrer, that the filing of
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the 1964 map constituted legal merging of the separate parcels into one parcel.
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Respondents base their argument upon Government Code section 66499.20 1/2, which
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provides (emphasis added):
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“Subdivided lands may be merged and resubdivided without reverting to acreage by
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complying with all the applicable requirements for the subdivision of land as provided by
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this division and any local ordinances adopted pursuant thereto. The filing of the final map
or parcel map shall constitute legal merging of the separate parcels into one parcel and the
resubdivision of such parcel,‘ and the real property shall thereafter be shown with the new lot
or parcel boundaries on the assessment roll. Any unused fees or deposits previously made
pursuant to this division pertaining to the property shall be credited pro rata towards any
requirements for the same purposes which are applicable at the time of resubdivision. Any
public streets or public easements to be left in effect after the resubdivision shall be
adequately delineated on the map. After approval of the merger and resubdivision by the
governing body or advisory agency the map shall be delivered to the county recorder. The
filing of the map shall constitute legal merger and resubdivision of the land affected
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thereby, and shall also constitute abandonment of all public streets and public easements
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not shown on the map, provided that a written notation of each abandonment is listed by
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reference to the recording data creating these public streets or public easements, and
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certified to on the map by the clerk of the legislative body or the designee of the legislative
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body approving themap.”
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The court noted that in opposition to the prior demurrer, petitioner'did not appear to
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challenge the proposition that if Government Code section 66499.20 1/2 applies to the lots,
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the result is as stated by the respondents. Thecourt concludes that if Government Code
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section 66499.20 1/2 applies, the effect is a legal merger of the separate lots for 1403 and
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1407 Jameson.
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(2) Application of Government Code section 66499.20 1/2 to Pre-Enactment Maps
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In paragraph 26 of the SAP, and in opposition to the prior demurrer, petitioner asserts
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that the merger doctrine set forth in section 66499.20 1/2 does not or should not apply.
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Government Code section 66499.20 1/2 was an amendment to the Subdivision Map Act in
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1977, and effective July 7, 1977. (Stats. 1977, ch. 234, § 12.) Thus, section 66499.20 1/2 was
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enacted after the 1964 map was recorded. Section 66499.20 1/2 has nevertheless been given
effect to maps filed prior to its enactment.
In ‘Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, the court applied section
66499.20 1/2 to the recording of a minor subdivision in 1976. (Id. at p. 981.) Contrary to the
1976 recorded subdivision map, the petitioner in Games sought certificates of compliance
based upon federal patents from the nineteenth century which created separate parcels.
(Ibid.) The issue there, like the issue here, is whether the recording of the subdivision had
the effect under Government Code section 66499.20 1/2 of merging the prior separate
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parcels into the parcels as set forth in the later recorded subdivision map. In Games, the
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court concluded that under section 66499.20 1/2 the 1976 recorded subdivision map did
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merge the prior-created parcels. (Id. at p. 987.)
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The decision in Games is controlling here. The court in Games was aware that the
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subdivision which effected the merger pre-dated the enactment of section 66499.20 1/2.
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(Games, supra, 37 Cal.App.4th at p. 981, & fn. 1.) Petitioner appears to attempt to
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distinguish Games by alleging in paragraph 26 of the SAP that, unlike an ancient federal
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patent, the Jameson lots were created after County reviewand approval under then-
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current standards. However, the legal issue is not whether the prior-created lots comply
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with current or former standards but whether the recordation of a subsequent map that
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eliminates lot boundaries effects a legal merger of those lots. Games holds that a subsequent
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map effects such a merger.
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Petitioner also asserts in paragraph 26 that Government Code section 66499.20 1/2 did not
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represent a codification of then-existing law, but was instead a change in the law
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concerning the merger of parcels. Respondents argue that the law prior to the enactment of
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section 66499.20 1/2 would haVe had the same result as applying that section now. (See
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generally 64 Ops.Cal.Atty.Gen. 549 (1981).) Petitioner provides no legal authority for its
bare conclusion. Games, by applying section 66499.20 1/2 to a map filed prior to its
enactment, impliedly accepted that the underlying law had not materially changed by the
enactment of section 66499.20 1/2.
(3) Subsequent Actions
Although petitioner alleges a number of actions of the parties prior to the filing of the 1964
map, petitioner alleges few actions following the 1964 map. Petitioner alleges that the
County issued a permit in 1996 allowing the replacement of the roof on 1403 Jameson
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without requiring a certificate of compliance before the permit was issued. (SAP, 1] 23.)
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Petitioner alleges that the issuance of the permit itself requires the issuance of a certificate
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of compliance under Government Code section 66499.35, subdivision (c). (SAP, 11 24.)
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Government Code section 66499.35, subdivision (c), provides that a “certificate of
14' compliance shall be issued for any real property that has been approved for development
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pursuant to Section 66499.34.”
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The permit upon which petitioner relies (attached as exhibit 9 to the SAP) references 1403
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Jameson, but does not indicate that it is a separate parcel; instead, exhibit 9 references
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parcel number 009-304-012, which is the entire parcel for 1403 and 1407 Jameson. (See
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RJN, exhibit 3.) The 1996 permit is insufficient to establish the existence of a separate lot
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for 1403 Jameson requiring a certificate of compliance under sections 66499.34’and
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66499.35.
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(4) Notice Issues
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In paragraph 26, petitioner asserts that the merger issue was raised for the first time at the
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hearing before the Santa Barbara County Board of Supervisors. However, as respondents
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point out, the merger issue was raised prior to the hearing in a Board Letter (RJN, exhibit
8) and the Board of Supervisors reviewed petitioner’s appeal de novo (Santa Barbara
County Code, § 21-71.4, subd. (d)). Petitioner had the opportunity to present opposition on
this issue to the Board of Supervisors. Petitioner provides no argument that its opportunity
to address the merger issue with the Board of Supervisors was legally insufficient.
(5) Petition for Writ of Mandate
Petitioner brings this petition for writ of mandate under Code of Civil Procedure section
1085. “The statute tersely declares that the writ is available ‘to compel the performance of
10 ....’ [Citation.] Thus it is limited to the enforcement
an act which the law specially enjoins
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of purely ministerial duties and will not lie to control discretion within the area lawfully
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entrusted to an administrative body.” (Gong v. Fremont (1967) 250 Cal.App.2d 568, 572.)
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In making the allegations discussed above, plaintiff asserts that respondent Emmons, as
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surveyor for respondent County, had the legal duty to issue the certificates of compliance.
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As discussed above, to the extent that separate lots existed in the past, the filing of the 1964
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map eliminated. the lots’ separate existence by operation of law. In 2010, respondents were
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under no legal duty to issue certificates of compliance for lots that ceased to exist in 1964.
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Plaintiff has failed to plead facts which would otherwise give rise to a legal duty in
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respondents.
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In ruling on the demurrer to the first amended petition, the court specifically gave
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petitioner the opportunity to amend in order to plead its best case. Petitioner has not
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opposed the demurrer, has made no request for leave to amend, and has given no
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indication as to how the petition could be amended to state a cause of action against
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respondents. In light of petitioner’s failure to allege any facts controverting or negating the
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effect of the filing of the 1964 map, the court concludes that petitioner is unable to amend
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to state a cause of action.
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Respondents’ demurrer will be sustained without leave to amend.
Dated: July 12, 2011
THOMAS P. ANDERLE
Thomas P. Anderle
Judge
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PROOF OF SERVICE
(C.C.P. §§ 1013(a), 2015.5)
STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA
I am citizen of the United States and a resident of the county aforesaid; I am over the age of
a
eighteen years and not a party to the within entitled action; my business address is 105 East
Anaparnu Street, Santa Barbara, California.
On July 12, 2011, I served a true copy of the within RULING AFTER DEMURRER on the
Interested Parties in said action by:
X] by mail. I am familiar with the practice of the Office of Santa Barbara County Counsel for
the collection and processing of correspondence for mailing with the United States Postal
Service. In accordance with the ordinary course of business, the above mentioned documents
would have been deposited with the United States Postal Service, after having been deposited
and processed for postage with the County of Santa Barbara Central Mail Room.
1:] by facsimile as indicated below:
D by personally delivering it to the person(s) indicated below:
I:] by Federal Express to the person(s) indicated below. I am readily familiar with the County's
practice of collection and processing correspondence on the same day with this courier service,
for overnight delivery. The delivery fees are provided for in accordance with this County's ordinary
business practices
Frederik A. J acobsen
P.O. Box 2003
Menlo Park, CA 94026
(State) I declare, under penalty of perjury, that the above is true and correct.
[:1 (Federal) I declare that I am employed in the office of a member of the Bar of this Court at
whose direction the service was made.
Executed on July 12, 201 1, at Santa Barbara, California.
saw/c
Sue Collisson
PROOF OF SERVICE
(C.C.P. §§ 1013(a), 2015.5)
STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA
I am a citizen of the United States and a resident of the county aforesaid; I am over the age of
eighteen years and not a party to the within entitled action; my business address is 105 East
Anapamu Street, Santa Barbara, California.
On July 12, 2011, I served a true copy of the within [PROPOSED] JUDGMENT
DISMISSING DEFENDANT COUNTY OF SANTA BARBARA FROM PLAINTIFF’S
SECOND AMENDED PETITION FOR WRIT OF MANDAMUS [C.C.P. § 581] on the
Interested Parties in said action by:
[Z by mail. I am familiar with the practice of the Office of Santa Barbara County Counsel for
the collection and processing of correspondence for mailing with the United States Postal
Service. In accordance with the ordinary course of business, the above mentioned documents
would have been deposited with the United States Postal Service, after having been deposited
and processed for postage with the County of Santa Barbara Central Mail Room.
E] by facsimile as indicated below:
E] by personally delivering it to the person(s) indicated below:
E] by Federal Express to the person(s) indicated below. I am readily familiar with the County's
practice of collection and processing correspondence on the same day with this courier service,
for overnight delivery. The delivery fees are provided for in accordance with this County's ordinary
business practices
Frederik A. J acobsen
PO. Box 2003
Menlo Park, CA 94026
(State) I declare, under penalty of perjury, that the above is true and correct.
El (Federal) I declare that I am employed in the office of a member of the Bar of this Court at
whose direction the service was made.
Executed on July 12, 2011, at Santa Barbara, California.
MM
sue Collisson
Dennis Marshall 105 E. Anapamu St., Suite 201
Santa Barbara, CA 93101
County Counsel
Telephone: (805)568-2950
Lisa A. Rothstcin
FAX: (805) 568—2982
Deputy County Counsel
c-mail: Irothst@co,santa-barbara.ca.us
COUNTY COUNSEL
July 12, 201 1
Frederik A. Jacobsen
P.O. Box 2003
Menlo Park, CA 94026
Re: Jameson Properties LLP v. County of Santa Barbara
Santa Barbara Superior Court, Case no. 1372941
Dear Mr. J acobsen:
’A copy of Judge Anderle’s Ruling After Demurrer is
enclosed, which sustained our
demurrer to plaintiff’s Second Amended Petition For Writ of Mandamus without leave to
amend.
Because this ruling dismisses the case against the County, we plan to submit the enclosed
proposed judgment to the court to finalize this process. Pursuant to Rule 3.1312 of the
California
Rules of Court, we are submitting the proposed judgment to you for your approval as to
form,
and as conforming to the comt’s ruling.
You 'must notify us within five (5) days as to whether or not you approve of the proposed
judgment. If you do not approve, you must state any reasons for the disapproval. Failure to
notify us within the required time shall be deemed an approval; upon expiration of the five days,
we will file thejudgment with the court.
Thank you for your cooperation in this matter.
Sincerely,
DENNIS MARSHALL
COUNTY COUNSEL
Lisa A. Rothstein
Deputy County Counsel
Enclosures
Preview
ORIGINAL .. 3:575 *r ‘4 51.95p- - g f—r 53 E: _ Lwéhilrxl‘t‘il/gfiigmfilgfiégmfiny DENNIS MARSHALL, COUNTY COUNSEL AUG E} 3 mi LISA A. ROTHSTEIN, DEPUTY (Bar No. 201611) GAp-w ,. MEL/MR ' (ficm’va . COUNTY OF SANTA BARBARA BY , . OWCW 105 E. Anapamu St., Suite 201 Santa Barbara, CA 93101 nfi, CHAVEZ Degxr‘ my“ ' D W (805) 568-2950 / FAX: (805) 568-2983 U'IuwH Attorneys for Defendants COUNTY OF SANTA BARBARA ah, Exempt From Filing Fees Pursuant To Gov. Code § 6103 5%}: ‘42: F 5294:" ~‘ ‘\ 1/ SUPERIOR COURT OF THE STATE OF CALIFORNIA :5. 5‘11}; 10 FOR THE COUNTY OF SANTA BARBARA \ J RP) 11 ANACAPA DIVISION PTY 12 ATT 13 JAMESON PROPERTIES LLP Case No: 1372941 000 14 15 v. Plaintiff, ’ [W] JUDGMENT DISMISSING DEFENDANT COUNTY OF SANTA BARBARA FROM . ' _ ST -'-— ‘ 16 PLAINTIFF ’S SECOND AMENDED PETITION FOR WRIT OF 17 MANDAMUS [C.C.P. § 581] 18 COUNTY OF SANTA BARBARA, Assigned Judge: Hon. Thomas P. Anderle 19 Defendants. - Dept: SB3 20 THOMAS P. ANDERLE 21 22 Good cause appearing therefore, and having sustained COUNTY OF SANTA 23 BARBARA’S Demurrer to Plaintiffs Second Amended Petition for Writ of Mandamus 24 without leave to amend, as per the Ruling After Demurrer of this Court, filed July 12, 2011, 25 attached as Exhibit A: 26 /// COUNTY COUNSEL County of Santa Barbara 27 /// 105 East Anapamu Slrcct Santa Barbara, CA 9310] (805) 568-2950 28 [PROPOSED] JUDGMENT DISMISSING DEFENDANT COUNTY OF SANTA BARBARA FROM PLAINTIFF’S SECOND AMENDED PETITION FOR WRIT OF MANDAMUS ' 1. IT IS ORDERED, ADJUDGED AND DECREED that the above entitled action is dismissed under the provisions of Code of Civil Procedure section 581 as to Defendant (”NH COUNTY OF SANTA BARBARA. DATED: Z , 2011 uld‘ge / Thomas P. Anderle THOMAS P. ANDERLE Approved as to form: 10 11 DATED: , 2011 12 Fred A. Jacobsen , Attorneys for Plaintiff 13 JAMESON PROPERTIES LLP 14 15 16 1'7 18 19 20 21 22 23 24 25 26 COUNTY COUNSEL County ofSanla Barbara 27 105 East Anapamu Street Santa Barbara, CA 93101 (805) 568-2950 28 [PROPOSED] JUDGMENT DISMISSING DEFENDANT COUNTY OF SANTA BARBARA FROM PLAINTlFF’S SECOND AMENDED PETITION FOR WRIT OF MANDAMU ' 2. * F LED E we Rmmmagam“ 1' JUL 2 2011 GARY M. BLAIR Exocufive Officer SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA 10 ) ll ) 12 3 JAMESON PROPERTIES LLC 13 3 Plaintiff ) Case Nor 1372941 14 ) vs ) RULING AFTER DEMURRER ‘ 15 ) MICHAEL EMMONS et a] 16 3 Defendants 17 ; ) 18 ) l 19 20 21 The demurrer of respondents Michael Emmons and the County of Santa Barbara is 22 sustained without leave to amend on the grounds that petitioner has failed to allege facts I 23 sufficient to state a cause of action. 24 Background 25 This is a demurrer to a second amended petition for writ of mandate arising out of the 26 County of Santa Barbara’s denial of petitioner’s applications for two certificates of 27 compliance as to\'petitioner’s real property. 28 EX‘m‘oi’r A As alleged in the second amended petition (the “SAP”), in 1946, an earlier owner of the real property created three lots under law existing at the time, commonly known respectively as 1403, 1407 and 1411 Jameson, in Montecito, California. (SAP, 11 6.) Buildings were located on these lots. (Ibid.) The SAP asserts that these were legally created lots and therefore petitioner is entitled to issuance of certificates of compliance recognizing those lots under presently existing subdivision law. (SAP, 1H 10, 14.) The present owner of 1403 and 1407 Jameson, petitioner Jameson Properties, LLC, applied for and was denied issuance of the certificates of compliance. (SAP, {I 25.) 10 Respondents Michael Emmons, Surveyor for the County of Santa Barbara, and the County 11 of Santa Barbara (“County”) demur to the SAP on the grounds that the filing of a . 12 subdivision map in 1964 without reference to the creation of separate lots for 1403 and l3 1407 Jameson constitutes a legal merging of the separate parcels into one parcel under 14 Government Code section 66499.20 1/2. 15 ’ 16 The SAP was filed after the court sustained respondents’ demurrer to petitioner’s amended 17 " petition for writ of mandate. As discussed below, the court determined that the law as set 18 forth in Government Code section 66499.20 1/2 applied to the facts as pleaded. The court 19 granted petitioner leave to amend to provide additional facts to place the 1964 subdivision 20 map into context. The SAP added one new paragraph, which states: 21 22 “At the appeal hearing before the Board of Supervisors, the surveyor’s office for the first 23 time claimed that the two lots had been merged by virtue of a record of survey and 24 subdivision map filed in 1964. Merger was not a grounds for denial in the surveyor’s May 25 25, 2010 original denial of J ameson’s application. Merger was not a proper ground for 26 denial because, unlike an ancient federal patent, the Jameson lots were created after 27 County review and approval was reviewed and approved under then-County standards, 28 and no notice was given to the owners of the effect of the 1964 map. The owners would have been ignorant of the potential merger because such a merger doctrine had never been imposed by law. Government Code § 66499.20 1/2 did not represent a codification of then- existing law, but was instead a change in the law concerning merger of parcels.” (SAP, 1] 26.) Respondents address the allegations of surprise in paragraph 26 by arguing that the Board of Supervisors appeal is de novo, that the merger issue was asserted as a reason for denial of the appeal in a posted recommendation to the Board of Supervisors well in advance of the appeal hearing, and that petitioner had the opportunity to address this issue before the 10 Board of Supervisors, both factually and legally. Respondents further argue that any notice 11 issue may have been an issue for the prior owner, but may not be raised by petitioner now. 12 13 Although petitioner added the above paragraph 26 to the SAP, petitioner has not filed 14 opposition to respondents’ demurrer. On July 1, 2011, respondents filed a notice that they 15 have not received any opposition to their demurrer. 16 17‘ Analysis 18 19 “We treat the demurrer as admitting all material facts properly pleaded, but not 20 contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters 21 which may be judicially noticed. [Citation.]. Further, we give the complaint a reasonable 22 interpretation, reading it as a whole and its parts in their context. [Citation.]? (Evans v. 23 City of Berkeley (2006) 38 Cal.4th 1, 6, internal quotation marks omitted.) 24 25 Respondents have requested judicial notice of (1) the lot split file showing approval on 26 August 20, 1964, (2) the record of survey recorded December 7, 1964, (3) the current 27 assessor’s parcel map, book 009-30, certified as of March 1, 2011, (4) Opinion of the 28 California Attorney General No. 81-406 (64. Ops.Cal.Atty.Gen. 549 (1981)), (5) former Business and Professions Code section 11537 as amended in 1963, (6) the grant deed dated June 17, 2008 and recorded June 24, 2008, (7) Santa Barbara County Code section 21-71.4, and (8) a Board Letter, Santa Barbara County Board of Supervisors meeting of August 10, 2010. The court will take judicial notice of the contents and recording of public documents (1), (2), (3), and (6). (Evid. Code, § 452, subds. (c), (h).) The court will take judicial notice of the former and current laws of California and Santa Barbara County in documents (5) and (7). (Evid. Code, §§ 451, subd, (a), 452, subds. (c), (h).) The court will take judicial notice of the official acts of the California Attorney General and of the Santa Barbara County Board of Supervisors and its staff in documents (4) and (8). (Evid. Code, § 452, subds. (c), (h).) In 10 granting judicial notice, the court does not take judicial notice of the truth of facts stated in ll public documents. 12 l3 (1) Merger 14 15 The first amended petition did not mention the 1964 recorded map at all. The SAP does not 16 . mention the 1964 recorded map except as set forth in paragraph 26 quoted above. Thus, ‘ 17 the facts upon which the demurrer may be based concerning the substance of the 1964 map 18 are the judicially noticed facts of the existence, contents and recordation of the 1964 map 19 (Request for Judicial Notice [“RJN”], exhibit 2). 20 21 Respondents argue in this motion, and argued in the previous demurrer, that the filing of 22 the 1964 map constituted legal merging of the separate parcels into one parcel. 23 Respondents base their argument upon Government Code section 66499.20 1/2, which 24 provides (emphasis added): 25 26 “Subdivided lands may be merged and resubdivided without reverting to acreage by 27 complying with all the applicable requirements for the subdivision of land as provided by 28 this division and any local ordinances adopted pursuant thereto. The filing of the final map or parcel map shall constitute legal merging of the separate parcels into one parcel and the resubdivision of such parcel,‘ and the real property shall thereafter be shown with the new lot or parcel boundaries on the assessment roll. Any unused fees or deposits previously made pursuant to this division pertaining to the property shall be credited pro rata towards any requirements for the same purposes which are applicable at the time of resubdivision. Any public streets or public easements to be left in effect after the resubdivision shall be adequately delineated on the map. After approval of the merger and resubdivision by the governing body or advisory agency the map shall be delivered to the county recorder. The filing of the map shall constitute legal merger and resubdivision of the land affected 10 thereby, and shall also constitute abandonment of all public streets and public easements 11 not shown on the map, provided that a written notation of each abandonment is listed by 12 reference to the recording data creating these public streets or public easements, and 13 certified to on the map by the clerk of the legislative body or the designee of the legislative 14’ body approving themap.” 15' 16' The court noted that in opposition to the prior demurrer, petitioner'did not appear to 17 challenge the proposition that if Government Code section 66499.20 1/2 applies to the lots, 18 the result is as stated by the respondents. Thecourt concludes that if Government Code 19 section 66499.20 1/2 applies, the effect is a legal merger of the separate lots for 1403 and 20 1407 Jameson. 21 22 (2) Application of Government Code section 66499.20 1/2 to Pre-Enactment Maps 23 24 In paragraph 26 of the SAP, and in opposition to the prior demurrer, petitioner asserts 25 that the merger doctrine set forth in section 66499.20 1/2 does not or should not apply. 26 Government Code section 66499.20 1/2 was an amendment to the Subdivision Map Act in 27 1977, and effective July 7, 1977. (Stats. 1977, ch. 234, § 12.) Thus, section 66499.20 1/2 was 28 enacted after the 1964 map was recorded. Section 66499.20 1/2 has nevertheless been given effect to maps filed prior to its enactment. In ‘Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, the court applied section 66499.20 1/2 to the recording of a minor subdivision in 1976. (Id. at p. 981.) Contrary to the 1976 recorded subdivision map, the petitioner in Games sought certificates of compliance based upon federal patents from the nineteenth century which created separate parcels. (Ibid.) The issue there, like the issue here, is whether the recording of the subdivision had the effect under Government Code section 66499.20 1/2 of merging the prior separate 10 parcels into the parcels as set forth in the later recorded subdivision map. In Games, the 11 court concluded that under section 66499.20 1/2 the 1976 recorded subdivision map did 12 merge the prior-created parcels. (Id. at p. 987.) 13' 14 The decision in Games is controlling here. The court in Games was aware that the 15 subdivision which effected the merger pre-dated the enactment of section 66499.20 1/2. 16 (Games, supra, 37 Cal.App.4th at p. 981, & fn. 1.) Petitioner appears to attempt to 17 distinguish Games by alleging in paragraph 26 of the SAP that, unlike an ancient federal 18 patent, the Jameson lots were created after County reviewand approval under then- 19 current standards. However, the legal issue is not whether the prior-created lots comply 20 with current or former standards but whether the recordation of a subsequent map that 21 eliminates lot boundaries effects a legal merger of those lots. Games holds that a subsequent 22 map effects such a merger. 23 24 Petitioner also asserts in paragraph 26 that Government Code section 66499.20 1/2 did not 25 represent a codification of then-existing law, but was instead a change in the law 26 concerning the merger of parcels. Respondents argue that the law prior to the enactment of 27 section 66499.20 1/2 would haVe had the same result as applying that section now. (See 28 generally 64 Ops.Cal.Atty.Gen. 549 (1981).) Petitioner provides no legal authority for its bare conclusion. Games, by applying section 66499.20 1/2 to a map filed prior to its enactment, impliedly accepted that the underlying law had not materially changed by the enactment of section 66499.20 1/2. (3) Subsequent Actions Although petitioner alleges a number of actions of the parties prior to the filing of the 1964 map, petitioner alleges few actions following the 1964 map. Petitioner alleges that the County issued a permit in 1996 allowing the replacement of the roof on 1403 Jameson 10 without requiring a certificate of compliance before the permit was issued. (SAP, 1] 23.) 11 Petitioner alleges that the issuance of the permit itself requires the issuance of a certificate 12 of compliance under Government Code section 66499.35, subdivision (c). (SAP, 11 24.) 13 Government Code section 66499.35, subdivision (c), provides that a “certificate of 14' compliance shall be issued for any real property that has been approved for development 15 pursuant to Section 66499.34.” 16-, 17 The permit upon which petitioner relies (attached as exhibit 9 to the SAP) references 1403 18 Jameson, but does not indicate that it is a separate parcel; instead, exhibit 9 references 19 parcel number 009-304-012, which is the entire parcel for 1403 and 1407 Jameson. (See 20 RJN, exhibit 3.) The 1996 permit is insufficient to establish the existence of a separate lot 21 for 1403 Jameson requiring a certificate of compliance under sections 66499.34’and 22 66499.35. 23 24 (4) Notice Issues 25 26 In paragraph 26, petitioner asserts that the merger issue was raised for the first time at the 27 hearing before the Santa Barbara County Board of Supervisors. However, as respondents 28 point out, the merger issue was raised prior to the hearing in a Board Letter (RJN, exhibit 8) and the Board of Supervisors reviewed petitioner’s appeal de novo (Santa Barbara County Code, § 21-71.4, subd. (d)). Petitioner had the opportunity to present opposition on this issue to the Board of Supervisors. Petitioner provides no argument that its opportunity to address the merger issue with the Board of Supervisors was legally insufficient. (5) Petition for Writ of Mandate Petitioner brings this petition for writ of mandate under Code of Civil Procedure section 1085. “The statute tersely declares that the writ is available ‘to compel the performance of 10 ....’ [Citation.] Thus it is limited to the enforcement an act which the law specially enjoins 11 of purely ministerial duties and will not lie to control discretion within the area lawfully 12 entrusted to an administrative body.” (Gong v. Fremont (1967) 250 Cal.App.2d 568, 572.) 13 14 In making the allegations discussed above, plaintiff asserts that respondent Emmons, as 15 surveyor for respondent County, had the legal duty to issue the certificates of compliance. 16 As discussed above, to the extent that separate lots existed in the past, the filing of the 1964 17 map eliminated. the lots’ separate existence by operation of law. In 2010, respondents were 18 under no legal duty to issue certificates of compliance for lots that ceased to exist in 1964. 19 Plaintiff has failed to plead facts which would otherwise give rise to a legal duty in 2O respondents. 21 22 In ruling on the demurrer to the first amended petition, the court specifically gave 23 petitioner the opportunity to amend in order to plead its best case. Petitioner has not 24 opposed the demurrer, has made no request for leave to amend, and has given no 25 indication as to how the petition could be amended to state a cause of action against 26 respondents. In light of petitioner’s failure to allege any facts controverting or negating the 27 effect of the filing of the 1964 map, the court concludes that petitioner is unable to amend 28 to state a cause of action. ‘ Respondents’ demurrer will be sustained without leave to amend. Dated: July 12, 2011 THOMAS P. ANDERLE Thomas P. Anderle Judge 10 11 l2 l3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (C.C.P. §§ 1013(a), 2015.5) STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA I am citizen of the United States and a resident of the county aforesaid; I am over the age of a eighteen years and not a party to the within entitled action; my business address is 105 East Anaparnu Street, Santa Barbara, California. On July 12, 2011, I served a true copy of the within RULING AFTER DEMURRER on the Interested Parties in said action by: X] by mail. I am familiar with the practice of the Office of Santa Barbara County Counsel for the collection and processing of correspondence for mailing with the United States Postal Service. In accordance with the ordinary course of business, the above mentioned documents would have been deposited with the United States Postal Service, after having been deposited and processed for postage with the County of Santa Barbara Central Mail Room. 1:] by facsimile as indicated below: D by personally delivering it to the person(s) indicated below: I:] by Federal Express to the person(s) indicated below. I am readily familiar with the County's practice of collection and processing correspondence on the same day with this courier service, for overnight delivery. The delivery fees are provided for in accordance with this County's ordinary business practices Frederik A. J acobsen P.O. Box 2003 Menlo Park, CA 94026 (State) I declare, under penalty of perjury, that the above is true and correct. [:1 (Federal) I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. Executed on July 12, 201 1, at Santa Barbara, California. saw/c Sue Collisson PROOF OF SERVICE (C.C.P. §§ 1013(a), 2015.5) STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA I am a citizen of the United States and a resident of the county aforesaid; I am over the age of eighteen years and not a party to the within entitled action; my business address is 105 East Anapamu Street, Santa Barbara, California. On July 12, 2011, I served a true copy of the within [PROPOSED] JUDGMENT DISMISSING DEFENDANT COUNTY OF SANTA BARBARA FROM PLAINTIFF’S SECOND AMENDED PETITION FOR WRIT OF MANDAMUS [C.C.P. § 581] on the Interested Parties in said action by: [Z by mail. I am familiar with the practice of the Office of Santa Barbara County Counsel for the collection and processing of correspondence for mailing with the United States Postal Service. In accordance with the ordinary course of business, the above mentioned documents would have been deposited with the United States Postal Service, after having been deposited and processed for postage with the County of Santa Barbara Central Mail Room. E] by facsimile as indicated below: E] by personally delivering it to the person(s) indicated below: E] by Federal Express to the person(s) indicated below. I am readily familiar with the County's practice of collection and processing correspondence on the same day with this courier service, for overnight delivery. The delivery fees are provided for in accordance with this County's ordinary business practices Frederik A. J acobsen PO. Box 2003 Menlo Park, CA 94026 (State) I declare, under penalty of perjury, that the above is true and correct. El (Federal) I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. Executed on July 12, 2011, at Santa Barbara, California. MM sue Collisson Dennis Marshall 105 E. Anapamu St., Suite 201 Santa Barbara, CA 93101 County Counsel Telephone: (805)568-2950 Lisa A. Rothstcin FAX: (805) 568—2982 Deputy County Counsel c-mail: Irothst@co,santa-barbara.ca.us COUNTY COUNSEL July 12, 201 1 Frederik A. Jacobsen P.O. Box 2003 Menlo Park, CA 94026 Re: Jameson Properties LLP v. County of Santa Barbara Santa Barbara Superior Court, Case no. 1372941 Dear Mr. J acobsen: ’A copy of Judge Anderle’s Ruling After Demurrer is enclosed, which sustained our demurrer to plaintiff’s Second Amended Petition For Writ of Mandamus without leave to amend. Because this ruling dismisses the case against the County, we plan to submit the enclosed proposed judgment to the court to finalize this process. Pursuant to Rule 3.1312 of the California Rules of Court, we are submitting the proposed judgment to you for your approval as to form, and as conforming to the comt’s ruling. You 'must notify us within five (5) days as to whether or not you approve of the proposed judgment. If you do not approve, you must state any reasons for the disapproval. Failure to notify us within the required time shall be deemed an approval; upon expiration of the five days, we will file thejudgment with the court. Thank you for your cooperation in this matter. Sincerely, DENNIS MARSHALL COUNTY COUNSEL Lisa A. Rothstein Deputy County Counsel Enclosures