Jana Zimmer vs County of Santa Barbara et al

Case Number

24CV00199

Case Type

Hearing Date / Time

Mon, 07/01/2024 - 10:00

Nature of Proceedings

Demurrer; Motion to Strike

Tentative Ruling

Jana Zimmer, etc., v. County of Santa Barbara, et al.

Case No. 24CV00199      

Hearing Date: July 1, 2024                                                     

HEARING:              (1)       Demurrer of Defendants to Complaint/ Petition

                             (2)       Motion of Defendants to Strike Portions of Complaint/Petition

ATTORNEYS:        For Plaintiff and Petitioner Jana Zimmer, individually and as trustee of the Solomon-Zimmer Living Trust: Andrea Marcus; Richard C. Solomon

                                    For Defendants and Respondents County of Santa Barbara, Board of Supervisors of the County of Santa Barbara, Planning Director Lisa Plowman, Deputy Planning Director Travis Seawards, and Fire Marshal Rob Hazard: Rachel Van Mullem, Callie Kim, Office of the Santa Barbara County Counsel   

                                   

TENTATIVE RULING:

(1)       The demurrer of defendants and respondents to the complaint and petition of Jana Zimmer is sustained, with leave to amend, as to each cause of action of the complaint and petition. Zimmer shall file and serve her first amended complaint and petition on or before July 16, 2024.

(2)       Because of the sustaining of the demurrer, the motion to strike is ordered off calendar as moot.

Background:

(Note: The operative pleading is both a complaint and a petition. For ease of writing, the court refers to the pleading herein as a complaint, and the parties as plaintiff and defendants, respectively.)

As alleged in plaintiff’s complaint:

Plaintiff Jana Zimmer, individually and as trustee of the Solomon-Zimmer Living Trust (in either or both capacities, Zimmer) owns and resides at real property located at 2640 Las Encinas Lane, Santa Barbara (the Property). (Complaint, ¶ 20.) The Property is in the Mission Canyon Plan area and consists of approximately 0.4 acre in a 1-E-1 Zone District. (Ibid.) The Property is designated in the Building Code of defendant County of Santa Barbara (County) as within the “Local Agency Very High Very High Fire Severity Zone.” (Ibid.; Defendants’ Request for Judicial Notice [DRJN], exhibit 1.) The Property is not in the State Responsibility Area, but is in the local responsibility area. (Complaint, ¶ 59.) The Property is on a private lane with no access to street parking. (Complaint, ¶ 47.)

On March 29, 2022, the County approved a building permit for an accessory dwelling unit (ADU) on the Property, subject to one condition related to fire equipment access. (Complaint, ¶¶ 6, 14, 23.) Because the rear wall of the unit, as approved is more than 150 feet from the foot of Zimmer’s driveway on her private lane, Zimmer agreed to sprinkler the new dwelling, which was required prior to occupancy of the new approved dwelling. (Complaint, ¶ 14.) Zimmer proceeded to prepare the lot for construction by trimming and removing oak limbs on her property that did not meet the Fire Department’s 13-foot-5-inch vertical access requirement, by widening her driveway entrance to 17 feet, and by widening Las Encinas Lane along her frontage. (Complaint, ¶ 26.)

In August 2022, Zimmer learned that because the project location had been included on a Very High Fire Hazard Severity Area map, financing against her current residences, and other consequences such as the loss of her existing fire insurance, would result in unacceptable risks to proceeding with construction under the approved building permit. (Complaint, ¶ 27.) Zimmer sought and received an extension to that permit, and sought to ascertain whether the same unit, located and constructed exactly as already approved, could be built on its own parcel pursuant to a lot split under Government Code section 66411.7 (sometimes referred to as S.B. 9). (Complaint, ¶ 27.)

County, the Board of Supervisors of the County of Santa Barbara (Board), Planning Director Lisa Plowman, Deputy Planning Director Travis Seawards, Fire Marshal Rob Hazard, and County Supervisor Das Williams (collectively, Defendants) have known that if Zimmer proceeds under the approved building permit on her existing lot, she will lose her fire insurance on her existing home, among other risks. (Complaint, ¶ 15.) Defendants also know that the ADU is intended to function as a family caregiver unit to support Zimmer. (Complaint, ¶ 16.)

Zimmer requested to meet with County Fire, Planning & Development (P&D), and County Counsel to discuss the impact of fire maps on her lot split application. (Complaint, ¶ 28.) County Fire and County Counsel failed to respond, but P&D initially proposed to meet for a “Planner Consultation” on the project for a fee of $1,000. (Complaint, ¶ 29.) Defendants then refused to meet for a “Planner Consultation” and instead demanded that Zimmer submit a full application for development, as defined under the Permit Streamlining Act, including a proposed lot split map, and that Zimmer provide a deposit for application processing of $10,000. (Complaint, ¶ 30.)

Zimmer submitted the full application, including the $10,000 payment, on December 20, 2022. (Complaint, ¶ 30.) The application contained all of the information required for P&D to determine application completeness for processing. (Complaint, ¶ 32.)

On February 13, 2023, P&D sent Zimmer a letter stating that the project is not eligible for ministerial processing pursuant to S.B. 9. (Complaint, ¶ 37 & exhibit A.) The letter states, in part:

“The project is located on a site that is within a high or very high fire hazard severity zone in the maps adopted by the Department of Forestry and Fire Protection. The site is located in a very high fire hazard severity zone. As such, in order for your project to be eligible for ministerial processing, your project shall meet all of the development standards described in the California Building Code. In addition, the project will be required to maintain defensible space and adhere to a Vegetation Management Plan approved by the County Fire Department. Please coordinate with the County Fire Department on your project to ensure it meets all of their requirements. Clearance from County Fire is required prior to approval of the lot split application by Planning & Development[.]” (Complaint, ¶ 37 & exhibit A, p. 68.)

The letter does not state that performance of any condition was required prior to approval, does not state that construction of any improvements would be required prior to recordation, on site or off site, does not contain the words “Permit Streamlining Act,” and does not advise of Zimmer’s right to appeal any incompleteness determination either under the County Land Use Development Code (LUDC) or State law. (Complaint, ¶ 38.) Since P&D never responded to Zimmer’s questions of February 13, 2023, Zimmer reasonably believed that any additional substantive information would be requested to be submitted no earlier than prior to recordation of the lot split, and P&D never asserted otherwise, until June 23, 2023, six months after the application was submitted. (Ibid.)

The 30-day completeness deadline under the Permit Streamlining Act expired no later than January 28, 2023. (Complaint, ¶ 39.)

On February 13, 2023, in response to P&D’s eligibility letter, Zimmer emailed P&D to discuss comments with which she disagreed. (Complaint, ¶ 40.) P&D never communicated any substantive reply and instead commenced processing the application. (Ibid.) Defendants never notified Zimmer of any conversations they were having with the Fire Department, and scheduled a hearing at the County’s Subdivision Review Committee for March 2. (Ibid.) Zimmer asked to continue the Subdivision Review Committee meeting for three weeks so she could attend the hearing, but the hearing was cancelled and never rescheduled. (Ibid.)

County Fire provided no comments to P&D until March 28, 2023, which were not provided to Zimmer until she specifically requested all interdepartmental correspondence on April 4. (Complaint, ¶ 43.)

On April 13, 2023, P&D Deputy Seawards asserted, in a telephone call, that Zimmer was not eligible for a ministerial lot split and that they were not obligated to continue processing her application. (Complaint, ¶ 61.)

At Zimmer’s request, she met with P&D Director Plowman, County Fire Marshal Hazard, P&D Deputy Seawards, and County Counsel on May 16, 2023. (Complaint, ¶ 45.) At that meeting, the Fire Marshall falsely claimed that Zimmer was in noncompliance with a Fire Department condition requiring a hammerhead turnaround allegedly imposed in connection with an approval of an existing bedroom and bath to a residential second unit (RSU) at the Property in 2009. (Ibid.) The Fire Marshall asserted that this violation could enable them to require a hammerhead turnaround in connection with the lot split. (Ibid.) By May 20, 2023, Zimmer provided proof to County Counsel that the Fire Department had approved the RSU without a turnaround and that she was in full compliance in 2009. (Ibid.)

On June 14, 2023, the Fire Marshal sent Zimmer a letter stating that the Property does not currently meet fire code standards required to be eligible for a ministerial lot split approval under S.B. 9. (Complaint, ¶ 46 & exhibit B.) The letter concludes:

“The Fire Department has determined that in order to consider Same Practical Effect for your proposed SB 9 lot split, your access deficiencies require approved and installed improvements. One of the following two improvements would be considered as meeting Same Practical Effect for access requirements as it relates to your proposed lot split:

            “1.       Construct an approved Fire Department turnaround meeting the requirements of Fire Department Development Standard # 1. You would have to provide plans drawn by a licensed professional to show the turnaround meets or is equivalent to the requirements in our standard for turnarounds.

            “2.       Improve Las Encinas Road to ensure all portions of the road to your parcel is constructed to the maximum extent of your allowed easement of 15 feet. The road shall be paved and have a clear width of 15 feet and a vertical clearance of 13.5 feet.

“The above options if pursued shall be approved and installed prior to map recordation.” (Complaint, exhibit B, p. 77.)

The turnaround requirement would take up all of the area approved in 1994 and used for parking and would prohibit any parking in the turnaround. (Complaint, ¶ 47.) At the same time, the Property has no access to street parking. (Ibid.) Zimmer provided modifications to the standard hammerhead turnaround, but these were rejected by the Fire Marshal. (Ibid.) Zimmer widened the private lane in front of the Property, but Zimmer has no control of the private lane in front of all of the neighboring properties required by the alternative condition. (Complaint, ¶ 48.)

On June 23, 2023, by email, P&D Director Plowman refused to make findings of approval on the lot split and instead informed Zimmer that she must comply with the Fire Marshal’s requirements. (Complaint, ¶ 50.)

The Fire Marshal has known that its trucks and emergency vehicles can turn around on the private lane by using the bulb turnaround on the property adjacent to Zimmer’s Property. (Complaint, ¶ 51.) Zimmer provided a letter from the owner of that adjacent property that the Fire Department could continue to use that property as a turnaround. (Ibid.)

Zimmer provided a list of additional, voluntary “same practical effect” improvements on July 6, 2023, and repeatedly thereafter, some of which had already been made, to comply with the Fire Marshal’s requirements to which Defendants have never responded. (Complaint, ¶ 52.) Notwithstanding the physical widening that had been achieved, on November 7, 2023, the Board rejected Zimmer’s offer of resolution, but further required Zimmer to achieve the 15-foot lane width and pave the full length of the lane over properties at 2589 Puesta Del Sol, 2620 Las Encinas Lane, and 2636 Las Encinas Lane, prior to determination of eligibility. (Complaint, ¶ 55.)

Because County Fire and P&D both maintain that Zimmer had no administrative appeal of any of their determinations, Zimmer filed a Tort Claim under Government Code section 800. (Complaint, ¶ 64.)

On January 16, 2024, Zimmer filed her petition and complaint in this matter asserting seven causes of action: (1) violations of the Permit Streamlining Act (Gov. Code, § 65920 et seq.); (2) writ of mandate and damages for violations of Government Code section 66411.7; (3) for writ of mandate and damages for violations of Government Code section 65589.5 et seq.; (4) breach of implied covenant of good faith and fair dealing; (5) declaratory judgment re violations of Government Code sections 65913.4, subdivision (a)(6)(D), and 66411.7, subdivision (a)(3)(c); (6) writ of mandate, damages, and penalties for violation of the Housing Accountability Act (Gov. Code, §§ 65913.4, subd. (a)(6)(D), 65589.5, subds. (j)(2)(B), (j)(4), (k)(1)(A)(ii)); (7) writ of mandate and damages for violations of the California Public Records Act (Gov. Code, § 6250 et seq.).

On March 12, 2024, Defendants filed this demurrer as to each of the causes of action of the complaint and concurrently filed a motion to strike. The demurrer and motion to strike are opposed by Zimmer.

Analysis:

(A)       Demurrer

(1)       Requests for Judicial Notice

In support of their demurrer, Defendants request that the court take judicial notice of: (DRJN, exhibit 1) excerpts from Santa Barbara County Ordinance No. 5171; and (DRJN, exhibit 2) excerpts from Santa Barbara County Code, chapter 15. Zimmer objects to these requests as irrelevant, inadmissible, and highly prejudicial. (Plaintiff Request for Judicial Notice [PRJN], at p. 5.) These requests for judicial notice are granted. (See Evid. Code, § 452, subd. (b).) These exhibits are shown to be excerpts of much larger government documents showing government action. The court considers them as such.

In opposition to the demurrer, Defendants request that the court take judicial notice of: (PRJN, exhibit 1) “SB 35 An act to amend Sections 65400 and 65582.1 of, and to add and repeal Section 65913.4 of, the Government Code, relating to housing. SB 35 added Section 65913.4.6(D), and was applied to ADUs through Gov. Code Section 65582.1(g)”; (exhibit 2) “HCD Guidelines on SB 35, Streamlined Processing 9.29.2017”; (exhibit 3) “SB 8 An act to amend Sections 65589.5, 65905.5, 65913.10, 65940, 65941.1, 65943, 65950, 66300, and 66301 of the Government Code, and to amend Section 2 of Chapter 654 of the Statutes of 2019, relating to housing”; (exhibit 4) SB 9 An act to amend Section 66452.6 of, and to add Sections 65852.21 and 66411.7 to the Government Code, relating to land use”; (exhibit 5) “HCD SB 9 Fact Sheet March, 2021”; (exhibit 6) “SB 330 An act to amend Section 65589.5 of, to amend, repeal, and add Sections 65940, 65943, and 65950 of, to add and repeal Sections 65905.5, 65913.10, and 65941.1 of, and to add and repeal Chapter 12 (commencing with Section 66300) of Division 1 of Title 7 of, the Government Code, relating to housing. [Approved by Governor October 09, 2019. Filed with Secretary of State October 9, 2019.]”; (exhibit 7) California Legislative Information – Bill History SB 8 and SB 9 amending SB 330 signed together 9.16.2021; (exhibit 8) “SB 423 An act to amend Section 65913.4 of the Government Code, relating to land use. Approved by Governor October 11, 2023. Filed with Secretary of State October 11, 2023.]”; (exhibit 9) State Responsibility Area (SRA) FIRE SAFE REGULATIONS, 2020 amendments to 14 CCR, Division 1.5, Chapter 7 Fire Protection, Subchapter 2, Articles 1-5.”; (exhibit 10) “AB 1033 Ting Accessory dwelling units. local ordinances: separate sale or conveyance”; (exhibit 11) Minute Order County of Santa Barbara Board of Supervisors, Resolution No. 23-271, adoption of Housing Element 12.5.2023, with public comment letter Zimmer 12.3.2023; (exhibit 12) “Santa Barbara County Standard format and content: Determination of Application

Completeness.”; (exhibit 13) Minute Order and Resolution No. 23-18 of the Board of Supervisors of Santa Barbara County re: International Holocaust Remembrance Day 1.23.2023, with speaker list; (exhibit 14) Policy Fire MC-3, Mission Canyon Specific Plan, pp. 32-51; (exhibit 15) E-mail Attorney Solomon to County Counsel 4-1-2024 re: Plaintiff’s Index of proposed Exhibits for hearing; (exhibit 16) E-mail Response of Attorney Solomon to County Counsel re: Meet and Confer on County proposed Demurrer 3.11.2024; (exhibit 17) “E-mail cover, Fire Marshal demand of 6.21.2023 for ‘Option’ demanded prior to recordation”; (exhibit 18) “County of Santa Barbara announcement re: delays in building permit processing”; (exhibit 19) “E- mail chain Plowman, Seawards, Dargiel and Zimmer 4.13-4.14.2023 re: Status”; (exhibit 20) AICP Code of Ethics; (exhibit 21) AB 473 Public Records Act recodification; (exhibit 22) Assembly Judiciary on AB 473 recodification; (exhibit 23) “Santa Barbara County Records Notice dated 7.31.23 of ‘Extension’ under Public

Records Act to 8.14.2023”; (exhibit 24) “E-mail Fire Marshal to Zimmer 6.21.2023 demanding improvements ‘prior to recordation’ ”; (exhibit 25) “E-Mail from Fire Marshal to Zimmer 5.14.2023 admission that Local Responsibility Area Maps not sent to State in 2013”; (exhibit 26) “ ‘Anti-Semitism Uncovered: A Guide to Old Myths in a New Era’ Anti-Defamation League (2023)”; (exhibit 27) “E-mail Zimmer to Board of Supervisors Comment on Impact of Safety Element 7.6.2023 on her pending lot split application”; (exhibit 28) County of Santa Barbara Amended Resolution adopted 12.5.2022; (exhibit 29) HCD Letter to County of Santa Barbara January 30, 2024; (exhibit 30) FPPC Advice Letter 12.11.2013 re: use of campaign funds to defend litigation; (exhibit 31) FPPC Letter to SB County 3.21.03.”

Defendants do not generally oppose the taking of judicial notice of legislative materials, but oppose the taking of judicial notice of legislative history for which the underlying statutes have since been amended. (Defendants’ opposition to PRJN, at pp. 2-3.) Defendants also object to certain exhibits because of the lack of foundation. As discussed herein, legislative history of prior statutes can be useful in understanding the development of the applicable law. The court will grant judicial notice as to exhibits 1, 3, 4, 6, 7, 10, and 21. The court denies the request for judicial notice as to exhibit 8 (which appears to be a prior version of the bill before its enactment or a redlined version of some sort), but will take judicial notice of the underlying statute, Statutes 2023, chapter 423. The court denies the request as to exhibit 22, which appears to be an incomplete copy of exhibit 21. The court grants judicial notice as to exhibits 11 and 14 as government enactment providing relevant background. (See Evid. Code, § 452, subds. (b), (h).)

“Although a court may judicially notice a variety of matters [citation], only relevant material may be noticed. ‘But judicial notice, since it is a substitute for proof [citation], is always confined to those matters which are relevant to the issue at hand.’ [Citation.]” (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) The court denies the requests for judicial notice as to exhibits 12, 13, 18, 20, 26, 27, 29, 30, and 31, as not relevant to the issues presented in this demurrer.

Zimmer requests that the court take judicial notice of certain regulations or regulatory guidelines of a state agency. The court will grant judicial notice as to exhibits 2 and 5. (See Evid. Code, § 452, subds. (b), (c), (h).) The court denies the request for judicial notice as to exhibit 9 (which appears to be an undisclosed prior redlined version of the SRA Fire Safe Regulations), but the court will take judicial notice of the underlying present and former regulations to the extent cited herein.

“ ‘Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.’ [Citation.] While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein.” (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) So, judicial notice granted herein does not extend to the truth of any factual statements found in such documents.

Zimmer also requests that the court take judicial notice of various emails to and from Zimmer and particular defendants. Zimmer seeks judicial notice of these emails for the purpose of establishing the truth of statements set forth in those emails. Because judicial notice does not extend to the truth of such matters, the emails are not relevant to the issues under consideration in this demurrer. The court will deny judicial notice as to exhibits 15, 16, 17, 19, 23, 24, 25, 27, and 28.

Subsequent to the filing of the reply, Zimmer filed a supplemental request for judicial notice of two more exhibits. Defendants object to the supplemental request. In light of the court’s determination to sustain the demurrer with leave to amend as discussed below, the court does not exercise its discretion to consider further requests for judicial notice, and argument based thereon, after the filing of the reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

(2)       Permit Streamlining Act

Zimmer’s first cause of action is for violation of the Permit Streamlining Act (PSA). Zimmer alleges that her application was not a preliminary application under Government Code section 65941.1, but a full application for development. (Complaint, ¶ 73.)

Defendants argue that the PSA does not apply to ministerial lot splits as asserted by Zimmer in her complaint. Zimmer argues that the PSA applies because it has always been applied to subdivisions.

“The PSA was enacted in 1977 ‘to relieve applicants from protracted and unjustified governmental delays in processing their permit applications.’ [Citation; fn.] To expedite decisions on development projects, the PSA sets out specific time limits within which a government agency must approve or disapprove an application for a land use permit. ([Gov. Code,] § 65950.) If the agency fails to expressly approve or disapprove an application within the applicable period, ‘the failure to act shall be deemed approval of the permit application for the development project.’ (§ 65956, subd. (b).)” (Eller Media Co. v. City of Los Angeles (2001) 87 Cal.App.4th 1217, 1219–1220.)

The time requirements for approval or disapproval of a “development project” under the PSA is set forth in Government Code section 65950, subdivision (a) [“A public agency that is the lead agency for a development project shall approve or disapprove the project within whichever of the following periods is applicable ….”].)

“ ‘Development project’ means any project undertaken for the purpose of development. ‘Development project’ includes a project involving the issuance of a permit for construction or reconstruction but not a permit to operate. ‘Development project’ does not include any ministerial projects proposed to be carried out or approved by public agencies.” (Gov. Code, § 65928, italics added.)

“ ‘Development’ means, on land, in or under water, the placement or erection of any solid material or structure; … change in the density or intensity of use of land, including, but not limited to, subdivision pursuant to the Subdivision Map Act (commencing with Section 66410 of the Government Code), and any other division of land except where the land division is brought about in connection with the purchase of such land by a public agency for public recreational use ….” (Gov. Code, § 65927, 1st par.)

“ ‘Project’ means any activity involving the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.” (Gov. Code, § 65931.)

Defendants argue that because Zimmer’s petition arises solely from her application for a “ministerial lot split under SB 9” (Complaint, ¶ 15), the application is a “project” under section 65931 and is a “development” under section 65927, but is expressly excluded from the definition of “development project” under the third sentence of section 65928. Because the ministerial lot split is not a “development project” as that term is defined in the PSA, Defendants argue that the time requirements of the PSA do not apply.

In response, Zimmer argues that Government Code section 66411.7 is part of the Subdivision Map Act, rather than the PSA, and that the PSA “has always applied to subdivisions, parcel maps, and even to lot line adjustments which do not create any new lots,” citing Government Code section 66412, subdivision (d). (Opposition, at p. 7.) The alleged violation of Government Code section 66411.7 is the subject of the second cause of action; the first cause of action is for violation of the PSA. Consequently, the first cause of action must adequately plead a violation of the PSA rather than some other statute. Section 66411.7 therefore does not assist in determining whether the PSA applies by its terms to the ministerial lot split sought by Zimmer.

The citation to section 66412, subdivision (d), is also not applicable.

“This division shall be inapplicable to any of the following: [¶] … [¶] (d) A lot line adjustment between four or fewer existing adjoining parcels, where the land taken from one parcel is added to an adjoining parcel, and where a greater number of parcels than originally existed is not thereby created, if the lot line adjustment is approved by the local agency, or advisory agency. A local agency or advisory agency shall limit its review and approval to a determination of whether or not the parcels resulting from the lot line adjustment will conform to the local general plan, any applicable specific plan, any applicable coastal plan, and zoning and building ordinances. An advisory agency or local agency shall not impose conditions or exactions on its approval of a lot line adjustment except to conform to the local general plan, any applicable specific plan, any applicable coastal plan, and zoning and building ordinances, to require the prepayment of real property taxes prior to the approval of the lot line adjustment, or to facilitate the relocation of existing utilities, infrastructure, or easements. No tentative map, parcel map, or final map shall be required as a condition to the approval of a lot line adjustment. The lot line adjustment shall be reflected in a deed, which shall be recorded. No record of survey shall be required for a lot line adjustment unless required by Section 8762 of the Business and Professions Code. A local agency shall approve or disapprove a lot line adjustment pursuant to the Permit Streamlining Act (Chapter 4.5 (commencing with Section 65920) of Division 1).” (Gov. Code, § 66412, subd. (d).)

The “division” to which subdivision (d) is an exception is the Subdivision Map Act.

(Gov. Code, § 66410.) The exception of subdivision (d) is a separate procedure that itself expressly incorporates the PSA. Section 66411.7 provides for its own ministerial procedure but, unlike section 66412, section 66411.7 does not incorporate the timing provisions of the PSA. (Note: Section 66411.7, subdivision (b)(2) states that a “local agency shall approve an urban lot split only if it conforms to all applicable objective requirements of the Subdivision Map Act (Division 2 (commencing with Section 66410)), except as otherwise expressly provided in this section.” The PSA is within division 1 of title 7 of the Government Code, and not within the Subdivision Map Act. (Gov. Code, §§ 65920, subd. (a) [defining PSA as chapter 4.5 of division 1 of title 7], 66410 [defining the Subdivision Map Act as division 2 of title 7].))
 

The PSA provides the rules for its own construction: “Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.” (Gov. Code, § 65925.) The definitions in the PSA specify the extent to which the PSA applies to a “project.” Because the lot split is a “development” and a “project” under the definitions of sections 65931 and 65927, and because the section 66411.7 lot split is expressly ministerial, but is expressly excluded from the definition of “development project” under the third sentence of section 65928, the definitions of the PSA exclude the ministerial lot split from the application of the PSA.

The allegations of the complaint do not demonstrate that the ministerial lot split specifically sought by Zimmer and at issue in this complaint falls within the statutory definitions of the PSA. Zimmer’s arguments as to the purposes behind other housing legislation and as to the history of Zimmer’s efforts to effect the construction and subdivision are not shown to be exceptions to the plain statutory language. The demurrer to the first cause of action will therefore be sustained.

(3)       SB 9 Lot Split

Zimmer’s second cause of action is for violation of Government Code section 66411.7. Defendants demur to this cause of action arguing that the complaint fails to allege facts to show that the County had a mandatory duty to approve the requested lot split.

“Notwithstanding any other provision of this division and any local law, a local agency shall ministerially approve, as set forth in this section, a parcel map for an urban lot split only if the local agency determines that the parcel map for the urban lot split meets all the following requirements:

            “(1)      The parcel map subdivides an existing parcel to create no more than two new parcels of approximately equal lot area provided that one parcel shall not be smaller than 40 percent of the lot area of the original parcel proposed for subdivision.

            “(2)      (A)       Except as provided in subparagraph (B), both newly created parcels are no smaller than 1,200 square feet.

                        “(B)     A local agency may by ordinance adopt a smaller minimum lot size subject to ministerial approval under this subdivision.

            “(3)      The parcel being subdivided meets all the following requirements:

                        “(A)     The parcel is located within a single-family residential zone.

                        “(B)     The parcel subject to the proposed urban lot split is located within a city, the boundaries of which include some portion of either an urbanized area or urban cluster, as designated by the United States Census Bureau, or, for unincorporated areas, a legal parcel wholly within the boundaries of an urbanized area or urban cluster, as designated by the United States Census Bureau.

                        (C)       The parcel satisfies the requirements specified in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4.

                        (D)       The proposed urban lot split would not require demolition or alteration of any of the following types of housing:

                                    (i)        Housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income.

                                    (ii)       Housing that is subject to any form of rent or price control through a public entity's valid exercise of its police power.

                                    (iii)      A parcel or parcels on which an owner of residential real property has exercised the owner's rights under Chapter 12.75 (commencing with Section 7060) of Division 7 of Title 1 to withdraw accommodations from rent or lease within 15 years before the date that the development proponent submits an application.

                                    (iv)      Housing that has been occupied by a tenant in the last three years.

                        (E)       The parcel is not located within a historic district or property included on the State Historic Resources Inventory, as defined in Section 5020.1 of the Public Resources Code, or within a site that is designated or listed as a city or county landmark or historic property or district pursuant to a city or county ordinance.

                        (F)       The parcel has not been established through prior exercise of an urban lot split as provided for in this section.

                        (G)       Neither the owner of the parcel being subdivided nor any person acting in concert with the owner has previously subdivided an adjacent parcel using an urban lot split as provided for in this section.” (Gov. Code, § 66411.7, subd. (a).)

“An application for a parcel map for an urban lot split shall be approved in accordance with the following requirements:

            “(1)      A local agency shall approve or deny an application for a parcel map for an urban lot split ministerially without discretionary review.

            “(2)      A local agency shall approve an urban lot split only if it conforms to all applicable objective requirements of the Subdivision Map Act (Division 2 (commencing with Section 66410)), except as otherwise expressly provided in this section.

            “(3)      Notwithstanding Section 66411.1, a local agency shall not impose regulations that require dedications of rights-of-way or the construction of offsite improvements for the parcels being created as a condition of issuing a parcel map for an urban lot split pursuant to this section.” (Gov. Code, § 66411.7, subd. (b).)

Under section 66411.7, subdivision (a)(3)(C), in order to qualify for ministerial approval, the local agency must find that the “parcel satisfies the requirements specified in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4.” The requirements of section 65913.4 include:

“The development is not located on a site that is any of the following: [¶] … [¶] (D) Within a very high fire hazard severity zone, as determined by the Department of Forestry and Fire Protection pursuant to Section 51178, or within the state responsibility area, as defined in Section 4102 of the Public Resources Code. This subparagraph does not apply to sites that have adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development, including, but not limited to, standards established under all of the following or their successor provisions:

            “(i)       Section 4291 of the Public Resources Code or Section 51182, as applicable.

            “(ii)      Section 4290 of the Public Resources Code.” (Gov. Code, § 65913.4, subd. (a)(6)(D).)

Defendants point out that Zimmer alleges that the Property is located within a designated very high fire hazard severity zone. (Complaint, ¶¶ 17, 20, 27, 34.) Consequently, Defendants argue that the County, as the local agency, cannot determine that the development is not located within such a fire zone. Zimmer does not point to any particular allegations that the Property has adopted fire mitigation measures applicable to the development. Consequently, Defendants argue that section 66411.7 does not apply to the Property as alleged.

In opposition, Zimmer argues first that the Property has not been identified in a zone “as determined by the Department of Forestry and Fire Protection pursuant to Section 51178” and second that, as amended, section 65913.4, subdivision (a)(6)(D) applies only in the State Responsibility area. (Opposition, at pp. 17-19.) In support of this second argument, Zimmer cites to an earlier regulation: “These regulations have been prepared and adopted for the purpose of establishing minimum wildfire protection standards in conjunction with building, construction and development in the State Responsibility Area (SRA).” (Former Cal. Code Regs., tit. 14, § 1270.01, subd. (a), Register 2018, No. 32-Z (Aug. 10, 2018) p. 1281 [2018 CA Reg Text 500664 (West)], as amended Register 2019, No. 38-Z (Sept. 20, 2019) p. 1285 [2019 CA Reg Text 500664 (West)].)

The prior version of the SRA Fire Safe Regulations does not demonstrate that section 65913.4, subdivision (a)(6)(D) applies only in the State Responsibility area. Section 65913.4 is first referenced in section 66411.7 in its enactment in 2021, effective January 1, 2022, as: “The parcel satisfies the requirements specified in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4.” (Former Gov. Code, § 66411.7, subd. (a)(3)(C), added by Stats. 2021, ch. 162, § 2.) As of January 1, 2022, section 65913.4, subdivision (a)(6)(D) read: “Within a very high fire hazard severity zone, as determined by the Department of Forestry and Fire Protection pursuant to Section 51178, or within a high or very high fire hazard severity zone as indicated on maps adopted by the Department of Forestry and Fire Protection pursuant to Section 4202 of the Public Resources Code. This subparagraph does not apply to sites excluded from the specified hazard zones by a local agency, pursuant to subdivision (b) of Section 51179, or sites that have adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development.” (Former Gov. Code, § 65913.4, subd. (a)(6)(D), as amended by Stats. 2021, ch. 160, § 1, effective Sept. 16, 2021.)

Section 65913.4, subdivision (a)(6)(D) was amended in 2023, effective January 1, 2024, to read in its current text. (Stats. 2023, ch. 778, § 2.) This amendment replaces term relating to the fire hazard zones adopted pursuant to Public Resources Code section 4202 with “state responsibility area, as defined in section 4102 of the Public Resources Code.”

Public Resources Code section 4202 provided until December 31, 2021: “The director shall classify lands within state responsibility areas into fire hazard severity zones. Each zone shall embrace relatively homogeneous lands and shall be based on fuel loading, slope, fire weather, and other relevant factors present, including areas where winds have been identified by the department as a major cause of wildfire spread.” (Stats. 2008, ch. 366, § 7.) Thereafter it has its current text: “The State Fire Marshal shall classify lands within state responsibility areas into fire hazard severity zones. Each zone shall embrace relatively homogeneous lands and shall be based on fuel loading, slope, fire weather, and other relevant factors present, including areas where winds have been identified by the department as a major cause of wildfire spread.” (Pub. Resources Code, § 4202.)

Public Resources Code section 4102 has, since 1965, provided: “ ‘State responsibility areas’ means areas of the state in which the financial responsibility of preventing and suppressing fires has been determined by the board pursuant to Section 4125, to be primarily the responsibility of the state.”

Thus, the reference either to Public Resources Code section 4102 or section 4202 refers to a “state responsibility area.” By contrast, Government Code section 51177, subdivision (i) defines “Very high fire hazard severity zone” as “an area designated as a very high fire hazard severity zone by the State Fire Marshal pursuant to Section 51178 that is not a state responsibility area.” (Italics added.) Section 51178 provides: “The State Fire Marshal shall identify areas in the state as moderate, high, and very high fire hazard severity zones based on consistent statewide criteria and based on the severity of fire hazard that is expected to prevail in those areas. Moderate, high, and very high fire hazard severity zones shall be based on fuel loading, slope, fire weather, and other relevant factors including areas where winds have been identified by the Office of the State Fire Marshal as a major cause of wildfire spread.”
 

Returning to Government Code section 65913.4, subdivision (a)(6)(D), the two fire hazard zones stated with the disjunctive “or” refer to alternatives of being without or within a state responsibility area. Taken together, it is clear that subdivision (a)(6)(D) cannot reasonably be construed so as to refer solely to a state responsibility area. Subdivision (a)(6)(D) thus refers to any statutorily described fire hazard zone.

Zimmer also argues that the local areas were never properly identified, citing paragraph 60 of the complaint. (Opposition, at p. 18.) Zimmer alleges in paragraph 60: “Plaintiff’s property has been identified as a Local Responsibility Area (LRA) on various County - adopted maps. The property is located within the Mission Canyon Specific Plan area, well south of Foothill Road, which is the southernmost boundary of the State Responsibility Area (SRA). The Mission Canyon Specific Plan acknowledges, in relation to ADU’s that areas south of Foothill Road in the LRA pose a different and lesser level of fire hazard than areas north of Foothill, in the SRA. Owner’s parcel is directly on the City boundary, on flat land, with no brush or wildland vegetation, and has two evacuation routes. Her property location does not qualify- as a matter of fact and under the County’s own definition, as a very high fire hazard risk, at all. In fact, if Plaintiff’s property were included solely on the basis that a wind driven wildfire could reach it, then every single property in the County should be included on the maps, and every property south of the Santa Ynez Mountains should be included in the ‘Wildland Interface’ area, and the County will not be able to approve any housing at all. Based on the language of the existing HCD regulation, and the clarifying amendments in SB 423, the local Fire Marshal has no authority to deny Plaintiff’s ‘eligibility’ under SB 9, at all.”

Zimmer further cites to an email between the Fire Marshal and Zimmer. (Opposition, at p. 18, fn. 12.) Zimmer seeks judicial notice of this email (PRJN, exhibit 25) for the purpose of establishing the truth of statements set forth in that email, namely, that the maps otherwise alleged did not meet the statutory definition of a relevant fire hazard area map under sections 51178 and 65913.4, subdivision (a)(6)(D). As noted above, the court does not take judicial notice of the truth of the statements in that email, so the court does not consider that email on demurrer.

Insofar as the second cause of action seeks to enforce Zimmer’s rights under section 66411.7, which rights are dependent upon the finding that Property is not as described in section 65913.4, subdivision (a)(6)(D), Zimmer must particularly plead that the Property is not a property described in section 65913.4, subdivision (a)(6)(D), or that a statutory exception has been met. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [“[S]tatutory causes of action must be pleaded with particularity ….”].) The present, conclusory allegations are not sufficient to show either that the Property is not within a statutorily defined high fire zone or is fully compliant with an exception.

In the absence of such particularly pleaded allegations, and in the presence of allegations from which an alternative inference may be reasonably made, Zimmer fails to allege facts sufficient to show an entitlement to ministerial treatment under section 66411.7. The demurrer to the second cause of action will therefore be sustained.

(4)       Housing Accountability Act

Zimmer’s third cause of action is based upon alleged noncompliance with Government Code section 65589.5.

“A local agency shall not disapprove a housing development project, including farmworker housing as defined in subdivision (h) of Section 50199.7 of the Health and Safety Code, for very low, low-, or moderate-income households, or an emergency shelter, or condition approval in a manner that renders the housing development project infeasible for development for the use of very low, low-, or moderate-income households, or an emergency shelter, including through the use of design review standards, unless it makes written findings, based upon a preponderance of the evidence in the record, as to one of the following: [¶] … [¶]

“(2)      The housing development project or emergency shelter as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible. As used in this paragraph, a ‘specific, adverse impact’ means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. The following shall not constitute a specific, adverse impact upon the public health or safety:

            “(A)     Inconsistency with the zoning ordinance or general plan land use designation.

            “(B)     The eligibility to claim a welfare exemption under subdivision (g) of Section 214 of the Revenue and Taxation Code.” (Gov. Code, § 65589.5, subd. (d)(2).)

“Except as provided in subdivision (o), nothing in this section shall be construed to prohibit a local agency from requiring the housing development project to comply with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the jurisdiction’s share of the regional housing need pursuant to Section 65584. However, the development standards, conditions, and policies shall be applied to facilitate and accommodate development at the density permitted on the site and proposed by the development.” (Gov. Code, § 65589.5, subd. (f)(1).)

Zimmer alleges that since July 20, 2023, she has submitted evidence to the County that demonstrates that no reasonable person can conclude that her lot split is inconsistent with any applicable policies, standards, or ordinances. (Complaint, ¶ 92.) Zimmer also alleges that “[f]or purposes of compliance with the Housing Accountability Act, and SB 9, a single dwelling unit is defined as a ‘housing development,’ ” citing Government Code section 65905.5, subdivision (b)(3)(C). (Complaint, ¶ 90.)

Defendants argue that section 65589.5 does not apply to Zimmer’s development as alleged.

Government Code section 65905.5, cited by Zimmer, is inapplicable to this cause of action.

“(a)      Notwithstanding any other law, if a proposed housing development project complies with the applicable, objective general plan and zoning standards in effect at the time an application is deemed complete, after the application is deemed complete, a city, county, or city and county shall not conduct more than five hearings pursuant to Section 65905, or any other law, ordinance, or regulation requiring a public hearing in connection with the approval of that housing development project. If the city, county, or city and county continues a hearing subject to this section to another date, the continued hearing shall count as one of the five hearings allowed under this section. The city, county, or city and county shall consider and either approve or disapprove the application at any of the five hearings allowed under this section consistent with the applicable timelines under the Permit Streamlining Act (Chapter 4.5 (commencing with Section 65920)).” (Gov. Code, § 65905.5, subd. (a).)

“(b)      For purposes of this section: [¶] … [¶]

            “(3)      (A)       ‘Housing development project’ has the same meaning as defined in paragraph (2) of subdivision (h) of Section 65589.5.

                        “(B)     ‘Housing development project’ includes, but is not limited to, projects that involve no discretionary approvals and projects that involve both discretionary and nondiscretionary approvals.

                        “(C)     ‘Housing development project’ includes a proposal to construct a single dwelling unit. This subparagraph shall not affect the interpretation of the scope of paragraph (2) of subdivision (h) of Section 65589.5.” (Gov. Code, § 65905.5, subd. (b)(3).)

As the above quotation demonstrates, the definition cited by Zimmer refers only to “this section” which in turn relates to a limitation in the number of permissible hearings. Thus, this definition is not particularly helpful. However, section 65589.5 supplies its own definition of “housing development project” of sorts:

“The following definitions apply for the purposes of this section: [¶] … [¶]

            “(2)      ‘Housing development project’ means a use consisting of any of the following:

                        “(A)     Residential units only.

                        “(B)     Mixed-use developments consisting of residential and nonresidential uses with at least two-thirds of the square footage designated for residential use.

                        “(C)     Transitional housing or supportive housing.” (Gov. Code, § 65589.5, subd. (h)(2).)

After a lengthy analysis of this definition, the court in Reznitskiy v. County of Marin (2022) 79 Cal.App.5th 1016, 1037 (Reznitskiy) concluded: “Given the statutory context in which the definition of ‘housing development project’ appears and the legislative history, we hold that the [Housing Accountability Act (HAA)] does not apply to projects to build individual single-family homes.” Zimmer’s allegation to the contrary therefore is an incorrect legal proposition.

Here, as noted previously, the development project that is the basis for this cause of action is alleged as the lot split. Under the statutory definition, as interpreted by Reznitskiy, supra, an urban lot split is not a “housing development project” under section 65589.5. Zimmer therefore has not adequately alleged a violation of section 65589.5. The demurrer to the third cause of action will therefore be sustained.

Zimmer’s sixth cause of action is based upon alleged noncompliance with Government Code section 65913.4, subdivision (a)(6)(D). (Complaint, ¶ 117.) The title of the cause of action also cites Government Code section 65589.5, subdivisions (j)(2)(B), (j)(4), and (k)(1)(A)(ii), but provides no allegations specifically identifying these subdivisions. It is unclear to what extent, if any, the sixth cause of action asserts any claim different from the allegations in the first and second causes of action. Consequently, the demurrer to the sixth cause of action will be sustained for the same reasons discussed above.

(5)       Breach of the Implied Covenant of Good Faith and Fair Dealing

Zimmer’s fourth cause of action is for breach of the implied covenant of good faith and fair dealing. “Breach of the covenant of good faith and fair dealing is nothing more than a cause of action for breach of contract.” (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1344.) Consequently, “[t]he prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence of a contractual relationship between the parties, since the covenant is an implied term in the contract.” (Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 48-49.) “ ‘The implied covenant of good faith and fair dealing is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated by the contract.’ [Citation.]” (Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089, 1094, italics omitted.)

“A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

Defendants generally demur to this cause of action, arguing that Zimmer has not alleged the contract, and in particular, have not alleged the contract terms that have been breached. Defendants also specially demur on the grounds that Zimmer has not alleged whether the contract is in writing, is oral, or is implied.

 “A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.] In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

The complaint generally refers to a contract but does not attach a written contract or explain whether the terms are in writing or not. Thus, it is wholly unclear whether the contract at issue is in writing, is oral, is implied, or is partly any combination of these. The special demurrer will be sustained as to this cause of action. (See Code Civ. Proc., § 430.10, subd. (g).)

The general demurrer will also be sustained as to the pleading of the contract. While the allegations of the complaint identify an agreement for processing and provide allegations to the effect that Defendants failed to follow the law in processing the lot split application, the allegations do not identify whether the contract claim is based on the failure to process the claim, i.e., failure to perform an express obligation of the contract, or on the failure to process the claim in a manner that violates the implied covenant. (See, e.g., Pasadena Live v. City of Pasadena, supra, 114 Cal.App.4th at p. 1093.) This pleading problem stems from the failure sufficiently to allege the terms of the contract that are subject to the claim of breach of the implied covenant.

(6)       Declaratory Relief

Zimmer’s fifth cause of action is for declaratory relief.

“Any person interested under a written instrument …, or under a contract, or who desires a declaration of his or her rights or duties with respect to another …, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.” (Code Civ. Proc., § 1060.)

As identified in the complaint, the claim for declaratory relief is for declarations that the County has violated Government Code sections 65913.4, subdivision (a)(6)(D), and 66411.7, subdivision (a)(3)(c). (Complaint, ¶¶ 106-115.) These claims are wholly derivative of the claims for writ of mandate based upon the identical asserted violations of law. “[A] declaratory relief claim is subject to general demurrer where it relates to a substantive claim that is invalid as a matter law.” (City of Lancaster v. Netflix, Inc. (2024) 99 Cal.App.5th 1093, 1114.) Because the court will sustain the demurrer as to the writ claims, as discussed above, the court will also sustain the demurrer to this cause of action on the same grounds.

(7)       California Public Records Act

Zimmer’s seventh cause of action is based upon violations of the California Public Records Act (CPRA) and of the California Constitution. Zimmer cites to the CPRA as former Government Code section 6250 et seq. This section was repealed in 2021, effective January 1, 2023, and recodified at section 7920.000 et seq. (which recodification is identified in Zimmer’s opposition, but for which no citation to the new Government Code sections is provided). (See Gov. Code, § 7920.105.)

“Whenever it is made to appear, by verified petition to the superior court of the county where the records or some part thereof are situated, that certain public records are being improperly withheld from a member of the public, the court shall order the officer or other person charged with withholding the records to disclose those records or show cause why that person should not do so.” (Gov. Code, § 7923.100.)

“Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.” (Gov. Code, § 7922.530, subd. (a).)

“A response to a written request for inspection or copies of public records that includes a determination that the request is denied, in whole or in part, shall be in writing.” (Gov. Code, § 7922.540, subd. (a).) “The notification of denial shall set forth the names and titles or positions of each person responsible for the denial.” (Gov. Code, § 7922.540, subd. (b).) “An agency shall justify withholding any record by complying with Section 7922.000.” (Gov. Code, § 7922.540, subd. (c).) “An agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this division, or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (Gov. Code, § 7922.000.)

The court does not adjudicate the merits of a CPRA claim on demurrer. However, the seventh cause of action states only generally that Zimmer made three written CPRA requests “seeking disclosure of several categories of public records.” (Complaint, ¶ 126.) Zimmer neither attaches these requests to the complaint nor alleges the specific requests within the text of the complaint. In the absence of allegations of the specific requests, Zimmer fails to state a claim to compel compliance with those requests. The demurrer to the seventh cause of action will therefore be sustained.

(9)       Leave to Amend

Although, given the nature of the discussion above, Zimmer may or may not be able truthfully to allege facts sufficient to state some of the causes of action asserted in the complaint, this is a demurrer to Zimmer’s original complaint. Zimmer will be granted leave to amend as to all causes of action.

The court sustains the demurrers to the above causes of action because of the insufficiency of allegations as to the underlying claim without regard to the particular defendant against whom the cause of action may be addressed. The court does not address the issue of particular defendants here, but, in amending the complaint, Zimmer may include additional allegations, to the extent Zimmer deems it appropriate, addressing this issue. (The court also notes that the titles of the causes of action do not, contrary to the requirements of the California Rules of Court, identify the defendants against whom each cause of action is directed (see Cal. Rules of Court, rule 2.112(4)), making it more difficult to determine the specific defendants affected by each cause of action.)

(B)       Motion to Strike

Defendants also move to strike portions of the complaint. Because the court will sustain the demurrer to each cause of action of the complaint with leave to amend, the motion to strike is moot. Leave to amend extends to include, to the extent applicable, amendments to address the issues raised in the motion to strike.