Jana Zimmer vs County of Santa Barbara et al

Case Number

24CV00199

Case Type

Hearing Date / Time

Mon, 06/16/2025 - 10:00

Nature of Proceedings

CMC; Motion to Strike

Tentative Ruling

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

Case No. 24CV00199

           

Hearing Date: June 16, 2025                                                  

HEARING:              Motion of Defendants to Strike Plaintiff’s Supplemental Allegations in Support of Fourth Cause of Action

                            

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 motion of defendants to strike is granted. The court strikes Plaintiff’s Supplemental Allegations in Support of Fourth Cause of Action, filed on March 3, 2025.

(2)       The court clarifies its ruling of February 24, 2025, on defendants’ demurrer to plaintiff’s first amended complaint that the demurrer of defendant Das Williams is sustained with leave to amend as to the fourth cause of action. Leave to amend pursuant to this clarification is limited to the fourth cause of action for claims against defendant Williams for breach of express or implied terms of contract; leave to amend does not extend to any tort claim or to any claim against any other party. Such a second amended complaint must also reflect the court’s ruling of February 24 as to parties and causes of action for which the court sustained a demurrer without leave to amend. If plaintiff chooses to file a second amended complaint by this leave, plaintiff must file and serve such second amended complaint on or before June 30, 2025. In all other respects, the ruling of February 24, 2025, is unchanged.

(2)       Plaintiff may file and serve a motion for leave to file a further amended complaint, i.e., a proposed second or third amended complaint as discussed herein, on or before July 11, 2025.

(3)       Unless otherwise ordered by the court or stipulated in writing by the parties, defendants shall file and serve their response to the then-operative complaint by the latest of either July 25, 2025, or 10 court days following the court’s disposition of a motion for leave to amend filed on or before July 11, 2025.

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 first amended complaint (FAC):

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 and 2642 Las Encinas Lane, Santa Barbara (the Property). (FAC, ¶ 14.) The Property is in the Mission Canyon Plan area and consists of approximately one-half acre in a 1-E-1 Zone District. (Ibid.)

The Property has been served, since at least 1973, by a paved private road over which Zimmer has a 15-foot-wide easement. (FAC, ¶ 14.) The easement is over property primarily owned by the Museum of Natural History and also serves neighbors located at 2646 Las Encinas (which is within the City of Santa Barbara), 2636, 2620, and 2589 Puesta Del Sol. (Ibid.)

The Property is currently developed with a single-family residence and an attached, approved residential second unit (RSU). (FAC, ¶ 15.)

In August 2022, Zimmer proposed a “development project” which included (1) conversion of the existing RSU to a junior accessory dwelling unit (JADU), and (2) construction of a new, 1200-square-foot single-family residence as a caregiver unit (Caregiver Unit). (FAC, ¶ 15.) The new residence had been approved, but not yet built, as an accessory dwelling unit (ADU), as authorized under Government Code section 65858.2. (Ibid.) Defendants (defined below) approved the building permit, No. 22 BDP 00357, and a fire protection certificate, No. 22 FPC 00163 (FPC), for the Caregiver Unit, in April and June 2022, as consistent with all laws applicable in “Very High Fire Hazard Areas,” subject to State minimum fire safe regulations. (FAC, ¶ 16.) The Fire Marshal approved the fire protection certificate with a condition requiring “sprinklering” of the new dwelling, as a measure providing “same practical effect” as the fire equipment access requirement to Zimmer’s parcel. (Ibid.)

Zimmer relied on the terms of the approved building permit and the approved FPC, and, in consultation with County Fire (Captain Gray), proceeded to perform substantial improvements on the property, including widening of the lane along her frontage, widening of her driveway to 17 feet, enlargement of her on-site parking area, and limbing of mature oak trees along her frontage and her driveway to a minimum height of 13 feet 5 inches, all as required by the Fire Marshal. (FAC, ¶ 24.)

Zimmer then ascertained that construction under the approved building permit would put her existing home at unacceptable risk, in part because she would lose her existing fire insurance if she built on her existing lot. (FAC, ¶ 25.) She also ascertained, from her insurance company, that if the new dwelling is financed separately and constructed on a separate parcel, this risk of proceeding under her approved building permit would be eliminated. (Ibid.) Zimmer sought a

meeting on August 22, 2022, with defendants Fire Marshal Rob Hazard, Planning Director Lisa Plowman, or Deputy Planning Director Travis Seawards, and a representative from County Counsel to review and clarify the specific applicability of Government Code section 65913.4.6, subdivision (D), to confirm that the “sprinklering” to which Zimmer had already agreed would be applicable and sufficient if the approved dwelling were constructed on its own lot. (Ibid.)

Defendants Plowman, Seawards, and the Fire Marshal declined to meet and instead demanded that Zimmer submit a full application for a lot split, which she did on December 20, 2022, along with a written agreement for permit processing, and a fee deposit of $10,451. (FAC, ¶ 26.) Every six months thereafter, Zimmer applied to extend her building permit so that it would not expire while the application for the lot split was pending. (Ibid.) Each extension was granted until the request of July 21, 2024, to which there was no response. (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. (FAC, ¶ 27 & 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.” (FAC, exhibit B, p. 130.)

The Fire Marshall knew or should have known that Zimmer could not comply with the requirements stated in the June 14, 2023, letter. (FAC, ¶ 27.)

As of the filing of the FAC, defendants have failed to take action to approve or deny the application for lot split. (FAC, ¶ 27.) The Fire Marshall has refused to determine whether additional measures proposed and completed by Zimmer since June 14, 2023, have the “same practical effect” as the options set forth in the June 14 letter. (FAC, ¶ 28.) The Fire Marshall has refused to inspect the Property to confirm that Zimmer has substantially achieved the lane widening that was required. (Ibid.)

Defendants suspended processing Zimmer’s application on June 23, 2023, with a demand that Zimmer physically construct improvements not on her Property in violation of law. (FAC, ¶ 33.)

Defendant Board of Supervisors adopted amendments to their Safety Element on July 11, 2023, including minimum road width requirements which, if applied as mandatory, purported to add new requirements which defendants knew Zimmer could not meet. (FAC, ¶ 51.)

On January 16, 2024, Zimmer filed her original 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 their demurrer as to each of the causes of action of the complaint and concurrently filed a motion to strike. On July 1, 2024, the court sustained the demurrer with leave to amend as to each cause of action and ordered the motion to strike off calendar as moot.

On August 9, 2024, Zimmer filed her FAC. The FAC asserts five 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 written contract, tortious breach of contract, breach of the implied covenant of good faith and fair dealing; and (5) declaratory judgment. Defendants in this action are the County of Santa Barbara (County), the Board of Supervisors of County (Board of Supervisors), Supervisor Das Williams, Planning Director Lisa Plowman, Deputy Planning Director Travis Seawards, and Fire Marshal Rob Hazard. The first, second, third, fourth (for damages), and fifth causes of action are asserted against all defendants; the fourth cause of action (for punitive damages) is asserted against Williams, Hazard, Plowman, and Seawards.

On September 9, 2024, defendants filed their demurrer to each of the causes of action of the FAC.

On February 24, 2025, the court ruled on the demurrer and adopted its tentative ruling, with one qualification discussed below, as follows: “The demurrer of defendants and respondents to plaintiff and petitioner’s first amended complaint is (1) sustained, without leave to amend, as to the first and third causes of action as to all defendants, (2) is sustained, without leave to amend, as to the fourth cause of action as to defendants Board of Supervisors of the County of Santa Barbara, Planning Director Lisa Plowman, Deputy Planning Director Travis Seawards, and Fire Marshal Rob Hazard, (3) is overruled as to the second and fifth causes of action as to all defendants, and (4) is overruled as to the fourth cause of action as to defendant County of Santa Barbara. Defendants shall file and serve their answer to the first amended complaint, as it exists following the sustaining of demurrers herein, on or before March 24, 2025.” (Minute Order, filed Feb. 24, 2025, at p. 1.)

The court also “ordered that respondent Das Williams will remain in the action without prejudice.” (Minute Order, filed Feb. 24, 2025, at p. 1.)

At the hearing, an issue arose from the court’s tentative as to whether defendant Das Williams remained a party to the fourth cause of action of the FAC for “Breach of Written Contract, Tortious Breach of Contract, Breach of the Implied Covenant of Good Faith and Fair Dealing” (FAC, at p. 56). The following interaction occurred at the hearing:

“Ms. Richardson [for defendants]: … And then if I may while I'm just speaking, for

the Das Williams piece, so the demurrer was sustained without leave to amend as to the individual defendants on the breach of contract matter. Is the Court holding that Williams has not -- you mentioned without prejudice. Is he still in the matter or are you asking the Complaint to be amended to allege additional facts, because right now he’s not a party to the contract that Zimmer has alleged this breach is

based on, the agreement for payment of fees to process the application.

“The Court: Are you intending to amend to add him to that cause of action?

“Mr. Solomon [for plaintiff]: Yes. If that’s part of the ruling, we certainly will.

“The Court: Very well. That will be the ruling. [¶] They’ll have to supplement.” (Reporter’s Transcript, Feb. 24, 2025, at p. 8, capitalization altered.)

On March 3, 2025, plaintiff filed “Plaintiff’s Supplemental Allegations of Fact in Support of Fourth Cause of Action Against Individual Defendants, Williams, Plowman, Seawards, and Hazard” (Supplement). The Supplement adds allegation paragraph numbers 173 through 193 over 10 pages, which are intended to be inserted in the FAC following paragraph 172.6 (FAC, at p. 106). (Supplement, at p. 2.)

On March 11, 2025, defendants filed their motion to strike the Supplement as beyond the scope of the court’s leave to file a supplement. Defendants concurrently filed an ex parte application to advance the hearing on this motion.

On March 12, 2025, the court heard and denied the ex parte application to advance the hearing on the motion to strike. At the hearing on the ex parte application, counsel for Zimmer stated that he had realized his error in including individual defendants other than Williams within the Supplement as contrary to the court’s ruling on the demurrer. Counsel agreed to strike provisions of the Supplement relating to those other defendants.

On May 27, 2025, Zimmer filed opposition to the motion stating that the same facts in the Supplement support a claim against all individual defendants.

Analysis:

When the court ruled on the demurrer to the fourth cause of action on February 24, 2025, the court stated:

“Zimmer’s fourth cause of action is for damages based on breach of written contract, tortious breach of contract, and breach of the implied covenant of good faith and fair dealing.

“Defendants first argue that the court should disregard claims of breach of contract in the FAC because Zimmer asserted only a cause of action for breach of the implied covenant in the original complaint and leave to amend did not expressly permit the addition of other causes of action. As the court noted in ruling on the demurrer to this cause of action in the original complaint, ‘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.) Further articulation of allegations of breach of contract is clearly within the scope of the court’s leave to amend.

“Zimmer alleges the contract to be the agreement for payment of fees to process her application. (FAC, ¶ 113 & exhibit F.) Exhibit F is a form alleged to have come from County and on its face is an agreement between Zimmer and County for the payment of fees for the processing of her application. As discussed above in the context of the second cause of action, Zimmer has sufficiently alleged, for pleading purposes, a claim for failure to process her ministerial lot split application in violation of Government Code section 65913.4, including by the Zimmer’s allegations that the County made illegal demands in the processing of that application. Under the standards for pleading, this is a sufficient allegation of a contract for the processing of the application which is breached by County’s alleged failure to process the application as required by law. While the court agrees with County that there is no basis for tort damages under this cause of action (see Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 49), a demurrer does not lie as to part of a cause of action or remedy. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) The demurrer to this cause of action will be overruled as to defendant County.

“Defendants make the additional argument with respect to this cause of action that individually named defendants cannot be liable for breach of contract because they are not parties to the contract. The alleged contract (FAC, exhibit F) is expressly an agreement with County and not with any individual with the County. ‘ “[A]n agent is ordinarily not liable on the contract when he acts on behalf of a disclosed principal.” [Citations.]’ (Dones v. Life Insurance Company of North America (2020) 55 Cal.App.5th 665, 689.) There are no allegations by which any individual defendant would be liable under the alleged contract. The demurrer will be sustained without leave to amend as to the individual defendants on this cause of action.” (Minute Order, Feb. 24, 2025, at pp. 10-11.)

Zimmer’s fourth cause of action, as it appears in the FAC, intends to assert liability against different defendants based upon at least three different legal theories: breach of contract, breach of the implied covenant of good faith and fair dealing, and tortious breach of contract. In ruling on this cause of action, the court determined that there was no legal basis for a claim of tortious breach of contract. There was, however, a sufficient basis for a claim for breach of contract, whether stated as a claim for breach of an express term of the contract or as a claim for breach of the implied covenant of good faith and fair dealing, an implied term of the contract. While the legal theories asserted here all sound in breach of contract, the court ambiguously translated its analysis in the tentative to its ruling, in particular, in not clearly identifying whether the demurrer to the fourth cause of action as against defendant Williams would or would not be sustained and, if sustained, with or without leave to amend.

The colloquy at the hearing on the demurrer was intended to clarify this ambiguity. The court’s intent in such clarification was to sustain the demurrer as to defendant Williams with leave to amend as to the fourth cause of action only. This was to be addressed by additional allegations. The Supplement, however, has taken the court’s direction differently. As Zimmer has conceded, the Supplement contains allegations against individual defendants other than Williams. Also, Zimmer now asserts a related, but different, tort claim of interference with contract.

Because the Supplement exceeds the scope of leave to file a supplement to the complaint given by the court at the February 24 hearing, the court will strike the Supplement as not filed in conformity with an order of the court. (See Code Civ. Proc., § 436, subd. (b).) This leaves three open issues: (1) additional allegations Zimmer seeks to assert against Williams in contract claims; (2) additional allegations Zimmer seeks to assert against Williams, and other individuals, in new contract-related tort claims; and (3) the timing for defendants’ answer to the complaint.

The court will clarify its ruling on the demurrer that the demurrer was sustained, with leave to amend, solely to permit the addition of allegations as to defendant Williams on Zimmer’s claim for breach of contract as to either express or implied terms. This leave to amend does not extend to any other party and does not extend to any other cause of action or legal theory. Based upon Zimmer’s counsel’s oral arguments, it does not appear that Zimmer seeks to pursue a breach of contract theory against Williams, preferring to assert a contract-based tort claim instead. If Zimmer elects to file a second amended complaint pursuant to this grant of leave, the second amended complaint must also reflect the court’s ruling on the prior demurrer, i.e., omitting causes of action or parties against whom a demurrer was previously sustained without leave to amend.

The procedural solution to addressing the contract-based tort claim or claims Zimmer now seeks to assert is for Zimmer to file a noticed motion for leave to amend. (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [new cause of action generally requires leave to amend if outside scope of demurrer ruling].) This will place at issue the particular allegations sought to be added and provide an appropriate forum in which to address the propriety of permitting such an amendment. The court does not intend by this ruling to suggest the disposition of such a motion, one way or the other.

These two procedures—amending the FAC as to contract claims and moving for leave to amend to add one or more new causes of action—are not mutually exclusive. To avoid confusion, if Zimmer elects to amend with respect to the breach of contract theory against Williams, that document shall be filed first as discussed above. The proposed amended complaint subject to the motion for leave would then be a proposed third amended complaint and the motion must identify proposed changes to be made from the filed second amended complaint (see Cal. Rules of Court, rule 3.1324(a)). If Zimmer does not elect to amend with respect to the breach of contract theory against Williams, the proposed amended complaint would then be a proposed second amended complaint, and the motion must identify proposed changes to be made from the FAC. (Ibid.)

Defendants should not reasonably be expected to file a response to an amended complaint until it is clear what pleading requires a response. Defendants will therefore not be required to file a response until the pleadings are resolved as to these amendments.