Tentative Ruling: Natasha Todorovic v. City of Santa Barbara, et al.
Case Number
25CV07692
Case Type
Hearing Date / Time
Wed, 10/07/2026 - 10:00
Nature of Proceedings
1. Demurrer; 2. Joinder; 3. Motion for Relief from Default
Tentative Ruling
For Petitioner Natasha Todorovic: Self-represented
For Respondent City of Santa Barbara: John S. Doimas, Tom R. Shapiro, Delany R. Satz, Office of the City Attorney
For Real Party in Interest Riviera Vista I, LLC: Beth A. Collins, Matthew L. Hofer, Alina C. Werth, Brownstein Hyatt Farber Schreck, LLP
RULING
For the reasons set forth herein:
(1) The demurrer of real party in interest Riviera Vista I, LLC, joined by respondent City of Santa Barbara, is sustained, without leave to amend, as to each cause of action of the second amended petition of petitioner Natasha Todorovic and to the second amended petition as a whole.
(2) The motion of petitioner for relief from her failure timely to request a hearing on her CEQA claim is denied.
Background
As alleged in petitioner Natasha Todorovic’s second amended petition (SAP): (Note: Unlike the first amended petition (FAP) which mostly follows customary pleading practice, paragraphs are not numbered in the SAP.)
Petitioner Todorovic resides immediately across the street from a four-story, 90-unit mixed use development at 418 N. Milpas Street and 915-923 E. Gutierrez Street (the Project). (SAP, pp. 3, 13.) The Project was approved by respondent City of Santa Barbara (City) by Resolution No. 25-097 (the Resolution) on September 9, 2025. (SAP, p. 3.)
The Project requires demolition of all existing improvements, including eight senior-occupied residential units on the Gutierrez Street parcel that are restricted to senior occupancy by recorded covenant. (SAP, p. 4 & exhibit 1.) The Project was submitted, processed, and approved under the City’s Average Unit-Size Density (AUD) Incentive Program and State Density Bonus Law. (SAP, p. 4.)
The Priority Housing Overlay was adopted on the Milpas corridor through the General Plan process. (SAP, p. 6.) The Gutierrez parcel was not within it as adopted, and the City’s official maps continue to depict that parcel as outside the Overlay to this day. (SAP, p. 6 & exhibits 3, 4.) In approving the Project, the City determined it categorically exempt from CEQA under the Class 32 infill exemption and presented a Notice of Exemption (NOE) to the Santa Barbara County Clerk of the Board of Supervisors. (SAP, pp. 6-7.) The certified notice bears a “received” stamp dated September 9, 2025, but with no completed filing notation, no posting dates, and no signature on the clerk signature line. (SAP, p. 7.)
Todorovic filed her original petition in this matter on December 10, 2025. The original petition asserted four causes of action: (1) traditional writ of mandate under Code of Civil Procedure section 1085; (2) administrative writ of mandate under Code of Civil Procedure section 1094.5; (3) writ of mandate under Public Resources Code sections 21168 and 21168.5; and (4) declaratory and injunctive relief.
Real party in interest Riviera Vista I LLC (Riviera) is the applicant and developer of the Project. (FAP, ¶ 3.) (Note: Todorovic has omitted a number of allegations from the SAP that appear in the FAP. “If a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations.” (Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151.) Todorovic does not explain such omissions or inconsistencies as errors. Thus, in addition to procedural history, the FAP is cited for those omitted facts.)
On February 23, 2026, Riviera filed its notice of appearance in this proceeding.
On February 27, 2026, Riviera filed a demurrer to the original petition. The demurrer was noticed for hearing on April 29.
On March 20, 2026, Todorovic filed her FAP. The FAP asserted 11 causes of action: (1) writ of mandate—decision procured by improper threats and coercion; (2) builder’s remedy misrepresentation; (3) improper inclusion of 915-923 E. Gutierrez Street in AUD Priority Housing Overlay; (4) failure to implement 2019 City Council Directive to Remove Priority Overlay from Milpas Corridor; (5) unlawful second density bonus on land already benefited by 1996 State Density Bonus; (6) ARB abuse of discretion and procedural violations; (7) defective notice and denial of due process; (8) HAA and SB 35 misapplication; (9) undisclosed network influence; (10) compatibility findings legally insufficient; and (11) CEQA categorical exemption abuse. The FAP sought a peremptory writ of mandate to set aside and vacate City Resolution No. 25-097 and all approvals for the Project, a peremptory writ of mandate to require the City to make various determinations regarding the Project, for a temporary restraining order and preliminary injunction to cease physical work on the Project, for declaratory relief that Resolution No. 25-097 was adopted in violation of various laws, and for an award of attorney fees. (FAP, prayer, pp. 75-77.)
On March 24, 2026, Todorovic filed a request for preparation of the administrative record. Also on March 24, Todorovic filed 21 declarations in support of the FAP. On March 25, Todorovic filed exhibits to her declaration in support of the FAP.
On March 26, 2026, City filed its joinder to Riviera’s demurrer to the original petition.
On April 1, 2026, Todorovic filed her request for a hearing on the petition for writ of mandate pursuant to Public Resources Code section 21167.4, subdivision (a).
On April 8, 2026, Todorovic filed opposition to the demurrer to the original petition.
On April 10, 2026, Riviera filed its demurrer to the FAP. This demurrer was noticed for hearing date on June 24, 2026.
On April 13, 2026, City filed its joinder in the demurrer of Riviera to the FAP.
On April 15, 2026, Riviera filed objections to the declaration of Todorovic in opposition to the demurrer to the original petition. Also on April 15, the court held a case management conference in this proceeding. At that conference, the court determined that the demurrer to the original petition was mooted by the filing of the FAP and the hearing on that demurrer was taken off calendar at counsel’s request. The court also confirmed the hearing on demurrer to the FAP for June 24.
On April 27, 2026, Todorovic filed the declaration of Emiliano Campobello in support of the FAP.
On May 13, 2026, Todorovic filed opposition to the demurrer to the FAP and a demurrer in opposition to the demurrer.
On May 26, 2026, Todorovic filed amended opposition to the demurrer to the FAP.
On June 16, 2026, Riviera filed its reply in support of its demurrer, its combined response and objections to petitioner’s declaration in support of opposition, objection to Riviera’s request for judicial notice, and request for judicial notice in opposition to the demurrer. Also on June 16, City filed its joinder in Riviera’s reply.
On June 17, 2026, Todorovic filed “Petitioner’s Objection to Real Party in Interest’s Misstatements of the Record in Support of Demurrer.” On June 18, Riviera filed its own objection to petitioner’s objection.
On June 24, 2026, the court heard the demurrer to the FAP. The court sustained the demurrer, with leave to amend, to each of the causes of action on timeliness grounds.
On July 9, 2026, Todorovic filed the SAP. The SAP asserts two causes of action: (1) traditional mandate and declaratory relief—unauthorized alteration of the official general plan map; and (2) violation of CEQA—improper reliance on categorical exemption.
On August 3, 2026, Riviera filed its demurrer to the SAP, request for judicial notice, and two declarations. On August 7, 2026, City filed its joinder to Riviera’s demurrer.
On September 22, 2026, Todorovic filed her opposition to the demurrer, request for judicial notice, objection to Riviera’s request for judicial notice, and declaration. Also on September 22, Todorovic filed a motion under Code of Civil Procedure section 473 for relief from default. These documents do not attach a proof of service. A separate proof of service was filed on September 28, 2026, showing service by mail on September 23.
On September 30, 2026, Riviera filed its reply and objections to Todorovic’s request for judicial notice, both in support of its demurrer. Also on September 30, Riviera filed its opposition to Todorovic’s section 473 motion. On October 1, Todorovic filed her reply to that opposition and a proof of electronic service of the reply.
Also on October 1, 2026, the parties submitted their stipulation and proposed order to advance the hearing on the section 473 motion to October 7. The court advanced the hearing on the section 473 motion to October 7 by ex parte order on October 6.
Analysis
(1) Service Issues
In reply to the demurrer, Riviera complains that Todorovic has failed to serve the opposition to the demurrer and only discovered the opposition by looking at the court’s docket. (Riviera Reply, at p. 5, fn. 1.) The opposition to the demurrer was due to be filed and served on September 23, 2026, nine court days before the hearing. (See Code Civ. Proc., § 1005, subd. (b).) The opposition was filed on September 22, but without a proof of service. The court’s docket includes a proof of service by mail for the demurrer opposition filed on September 28, showing service by mail on September 23. There is an issue whether service by mail is reasonably calculated to ensure delivery to the other party no later than then close of the next business day. (Code Civ. Proc., § 1005, subd. (c).) Nevertheless, the proof of service shows timely service by mail, even if there was an issue regarding delivery of the mail.
A further problem is the failure to meet the requirements for proof of service by mail. “The copy of the notice or other paper served by mail pursuant to this chapter shall bear a notation of the date and place of mailing or be accompanied by an unsigned copy of the affidavit or certificate of mailing.” (Code Civ. Proc., § 1013, subd. (b).) This requirement provides the court and the parties with information regarding when the mailing was supposed to occur so as to avoid the issue raised here about whether and service was actually accomplished.
The court expects the parties to comply with service and proof of service requirements.
(2) Section 473 Motion
Todorovic has filed a motion for relief from default in failing timely to request a hearing as to the second cause of action of the SAP based upon CEQA.
In ruling on Riviera’s demurrer to the CEQA cause of action in the FAP (the eleventh in the FAP), the court sustained the demurrer to that cause of action on one of two alternative grounds as follows:
“Riviera additionally demurs to the eleventh cause of action on the grounds that Todorovic did not timely request a hearing as the CEQA claims.
“ ‘In any action or proceeding alleging noncompliance with this division, the petitioner shall request a hearing within 90 days from the date of filing the petition or shall be subject to dismissal on the court’s own motion or on the motion of any party interested in the action or proceeding.’ (Pub. Resources Code, § 21167.4, subd. (a).)
“The original petition was filed on December 10, 2025. March 10, 2026 is 90 days after December 10, 2025. The FAP was filed on March 20, 2026. The request for hearing was filed on April 1, 2026. The request for hearing is therefore untimely if measured from the filing of the original petition but timely if measured from the filing of the FAP. Riviera argues that the time runs from the original petition; Todorovic argues that the time runs from the filing of the FAP.
“There is no case law construing ‘date of filing the petition’ where there is also an amended petition. In Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1135, 1138 [(Miller)], the court held that a request for hearing must be filed and served, but that, under limited circumstances, relief from default may be available. Nothing in Miller suggests that the 90-day clock is restarted upon the filing of an amended petition.
“The plain text of Public Resources Code section 21167.4, subdivision (a) is that the 90-day period runs from the filing of the original petition. The text could have stated ‘or any amended petition’ if the Legislature intended the deadline to move with the filing of an amended petition, but that language is absent.
“In the absence of a case directly construing section 21167.4 with respect to an amended petition, a reasonable analogy is to the timing of a special motion to strike under Code of Civil Procedure section 425.16: ‘The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.’ (Code Civ. Proc., § 425.16, subd. (f).) In Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637 (Newport), the California Supreme Court construed this language to refer to the service of the original complaint and not generally restarted by the filing of an amended complaint:
“ ‘ “An anti-SLAPP motion is not a vehicle for a defendant to obtain a dismissal of claims in the middle of litigation; it is a procedural device to prevent costly, unmeritorious litigation at the initiation of the lawsuit.” [Citation.] To minimize this problem, section 425.16, subdivision (f), should be interpreted to permit an anti-SLAPP motion against an amended complaint if it could not have been brought earlier, but to prohibit belated motions that could have been brought earlier (subject to the trial court’s discretion to permit a late motion). This interpretation maximizes the possibility the anti-SLAPP statute will fulfill its purpose while reducing the potential for abuse.’ (Newport, supra, 4 Cal.5th at p. 645.)
“The requirement of Public Resources Code, section 21167.4, generally fulfills the same goals of the timing requirement of an anti-SLAPP motion and uses much the same language. In both cases, the purpose is to resolve the issue expeditiously. The original petition here expressly brought an action to set aside the CEQA determination set forth in the NOE. (Petition, ¶¶ 24-27.) Under these circumstances, the 90-day requirement began to run from the filing of the original petition. Todorovic could have, and was required to, request an expeditious hearing as to this claim. Todorovic failed to do so. Extending the deadline to run from the filing of the FAP would defeat the purpose of expeditious resolution and, like the problem of a delayed anti-SLAPP motion, would artificially extend the time for as long as amended complaints or petitions may be filed. This is contrary to the purpose of section 21167.4.” (Minute Order, filed June 24, 2026, pp. 9-10.)
In response to this determination, Todorovic seeks relief. Todorovic states in her declaration that she thought the ninety-day period ran from the filing of the FAP not from the filing of the original petition. (Todorovic decl., ¶ 4.)
The motion is opposed by Riviera.
In Miller, the court held that a dismissal pursuant to Public Resources Code section 21167.4 may be subject to a motion for relief under Code of Civil Procedure section 473. (Miller, supra, 13 Cal.App.4th at pp. 1135-1136.) In Miller, the court reversed a trial court’s denial of a motion for relief where there was an excusable mistake of law because the petitioner did not understand that requests for hearing on injunctive relief, rather than the merits of the writ petition, was insufficient under section 21167.4. (Id. at pp. 1136-1137.) The Miller court also noted: “We must also consider the degree of Miller’s diligence in prosecuting this matter in reviewing the denial of Miller’s Code of Civil Procedure section 473 motion requesting relief from default.” (Id. at p. 1137.) Petitioner’s request in Miller was only 14 days late. (Ibid.)
Here, there are two problems with Todorovic’s motion. First, it is questionable as to whether the mistake asserted by Todorovic is excusable. As the court identified in sustaining the demurrer to the FAP, the most natural reading of section 21167.4 is that a request for a hearing must be made after filing of the initial petition. Todorovic’s original petition included a CEQA challenge. Based upon such language, it is not reasonable to assume that the filing of the FAP, which reasserted the same CEQA claim, would restart the 90-day time period “from the date of filing of the petition” where, as here, the FAP was not filed within 90 days of the filing of the original complaint. Such a construction would give a petitioner essentially an unlimited time to request a hearing where all responding parties have not yet answered.
Second, the evidence presented shows a lack of diligence by Todorovic.
“The court may, upon any terms as may be just, relieve a party or the party’s legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the party’s mistake, inadvertence, surprise, or excusable neglect. … [T]he application … shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b), italics added.)
The original petition was filed on December 10, 2025. The FAP was filed on March 20, 2026. The request for hearing was not filed until April 1, 2026. Riviera’s demurrer to the FAP was filed on April 10, 2026, asserting the untimeliness of the request as a ground for the demurrer. Todorovic filed opposition to the demurrer, including a citation to Miller for the proposition that untimeliness may be addressed by a motion under Code of Civil Procedure section 473. (Opposition to Demurrer to FAP, at p. 17.) The demurrer to the FAP was sustained, including on grounds that the request for hearing under Public Resources Code section 21167.4 was untimely, on June 24, 2026, with the language citing Miller quoted above. The SAP was filed on July 9, 2026. The demurrer to the SAP was filed on August 3, 2026, again asserting the same untimeliness as discussed in the ruling on the demurrer to the FAP. No motion under section 473 was filed by Todorovic until September 22, 2026, concurrently with opposition to the demurrer. The court finds that this motion was not brought “within a reasonable time” under section 473.
Based upon the nature of the asserted mistake, Todorovic’s lack of diligence in seeking relief from default, and the totality of circumstances, Todorovic’s motion for relief from default in untimely filing the request for hearing as required by Public Resources Code section 21167.4 will be denied.
(3) Demurrer
“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, internal quotation marks omitted.)
(A) Requests for Judicial Notice and Evidentiary Matters
In support of the demurrer, Riviera requests that the court take judicial notice of: (Riviera’s Request for Judicial Notice [Riviera RJN], item 1) the fact that the Notice of Exemption, City of Santa Barbara, 418 N. Milpas St and 915-923 E. Gutierrez St (NOE) was filed with the Santa Barbara County Clerk of the Board on September 9, 2025 (Andersen decl., exhibit 2); (Riviera RJN, item 2) the NOE was posted to the County of Santa Barbara’s website on either September 9, 2025 or September 10, 2025; (item 3) the NOE was submitted to the California CEQA Clearinghouse on September 9, 2025 and posted to its website on September 9, 2025 or September 10, 2025; (item 4) Resolution No. 25-097 was included as an exhibit to Petitioner’s Petition for Administrative Writ of Mandate and includes the City’s finding that the project described therein is exempt from the California Environmental Quality Act (CEQA); (item 5) the original petition in this proceeding was filed on December 10, 2025; (item 6) the FAP; and (item 7) exhibit 17 to Todorovic’s declaration in support of the FAP.
Todorovic filed opposition to the Riviera RJN. With respect to items 1, 2, and 3, Todorovic objects that, although she does not object to the Court acknowledging that the NOE was received by the Santa Barbara County Clerk on September 9, 2025, or that a submission was made to the State clearinghouse on that date, the NOE presented (Andersen decl., exhibit 2) shows only a receipt stamp and the posting start date field is blank. Todorovic also objects that the NOE was not validly filed by the lead agency and is not facially valid. With respect to item 4, Resolution No. 25-097, Todorovic does not object to judicial notice of the existence and content of that resolution. Todorovic challenges the legal effect of mailing. Todorovic also does not object to judicial notice of the date of filing of the original petition, but again challenges the legal effect of such facts on the SAP.
The court will take judicial notice of the NOE. There is no dispute that the copy of the NOE attached to the Andersen declaration is correct and genuine. (See Evid. Code, § 452, subd. (c).) The legal effect of the information set forth in the NOE is a matter for argument rather than judicial notice. The court will similarly grant judicial notice as to item 4, Resolution No. 25-097. The court will also grant judicial notice as to the filing date of the original petition in this proceeding. (See Evid. Code, § 452, subd. (d)(1).)
The court will also take judicial notice of items 5, 6, and 7, which are court records. (See Evid. Code, § 452, subd. (d)(1).) Judicial notice does not extend to the truth of factual matters set forth in court documents. (See Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120.)
In opposition to the demurrer, Todorovic requests that the court take judicial notice of: (Petitioner’s Request for Judicial Notice [PRJN], exhibit A) the NOE; (exhibit B) County of Santa Barbara’s published “Environmental Filing Fees Page; and (exhibit C) a screenshot of the County of Santa Barbara’s online repository of filed environmental notices.
The court grants the unopposed request for judicial notice of exhibit A (the NOE), as discussed above, and of the exhibit B (the page showing “Environmental Filing Fees”).
Riviera objects that exhibit C is not relevant to the issues presented.
“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.)
Todorovic requests judicial notice of exhibit C for the purpose of showing that the Project’s NOE does not appear on that page. Riviera points out that there is no showing that the list shown in exhibit C is complete, and provides a link to a different County of Santa Barbara webpage demonstrating that the list is not complete for the purpose asserted by Todorovic. It appears that the completeness of exhibit C is questionable and so the court cannot take judicial notice that the absence of the Project’s NOE on exhibit C has the meaning argued by Todorovic. Consequently, exhibit C is not relevant to the disposition of the demurrer. The request for judicial notice of exhibit C will be denied.
(B) Government Code Section 65009
Riviera argues that the first cause of action is barred by the limitations of Government Code section 65009. In addressing this issue when raised in the demurrer to the FAP, the court stated:
“ ‘Except as provided in subdivision (d), no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision: [¶] … [¶]
“ ‘(E) To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.
“ ‘(F) Concerning any of the proceedings, acts, or determinations taken, done, or made prior to any of the decisions listed in subparagraphs (A), (B), (C), (D), and (E).’ (Gov. Code, § 65009, subd. (c)(1)(E), (F).)
“Government Code section 65009, subdivision (c)(1)(E) ‘is to be applied broadly to all types of challenges to permits and permit conditions, as long as the challenge rests on a “decision” of a local authority relating to a permit or seeks to “determine the reasonableness, legality, or validity of any condition attached to a ... conditional use permit, or any other permit.” [Citation.] In short, an action challenging “any decision” by a “legislative body” regarding a variance, a conditional use permit, or other permit provided for by a local zoning ordinance must be filed and served within 90 days of the decision.’ (Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, 155–156.)
“Underlying all non-CEQA claims in the FAP is the allegation that the City’s approval of the Project by the adoption of Resolution No. 25-097. (E.g., FAP, ¶ 31.) On its face, Resolution No. 25-097 is an approval of a Project permit, and a denial of Todorovic’s appeal, clearly falling within Government Code section 65009, subdivision (c)(1)(E). Any complaint regarding actions or inactions of persons or boards leading up Resolution No. 25-097 also necessarily fall within Government Code section 65009, subdivision (c)(1)(F). As identified in the PRJN, Resolution No. 25-097 was adopted, i.e., the final decision was made, on September 9, 2025.
“The 90th day following September 9, 2025, was December 8, 2025 (a non-holiday Monday). (See Code Civ. Proc., § 12 [‘The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.’].) The original complaint in this matter was filed on December 10, 2025. There is nothing in the court’s file, or in the judicially noticed material, addressing service. However, because process must be served upon a party to constitute ‘service’ under section 65009, the only reasonable inference is that service was effected on City no earlier than December 10, 2025. (See Wagner v. City of South Pasadena (2000) 78 Cal.App.4th 943, 949–950 [claims for declaratory relief must be served with a summons; alternative writs must be served in the manner of a summons].) In either case, the causes of action in the FAP which are based upon the final decision of Resolution No. 25-097 are on their face barred by Government Code section 65009.
“(Note: In the text of the FAP, Todorovic alleges that the Project was approved on the earlier date of August 12, 2025. For purposes of this analysis, the court assumes that approval occurred upon the later date of September 9, 2025, when Resolution No. 25-097 was adopted. If the earlier date is used as the date of decision, the delay between the date of decision and the filing of the original complaint is an additional 28 days, missing the limitations date by almost a month more.)
“Todorovic argues that the first ten causes of action of the FAP are to enforce constitutional due process rights, mandatory statutory duties, and protections against fraud in the administrative record, not permit conditions or zoning decisions. (Opposition, at p. 8.) However, the 90-day limitations period applies to all challenges to the City’s final decision, including due process and statutory duty issues. (Save Lafayette Trees v. City of Lafayette, supra, 32 Cal.App.5th at pp. 158-159.) The prayer of the FAP makes clear that the purpose of these causes of action is to set aside Resolution No. 25-097, with the various causes of action reflecting the different legal theories asserted to challenge the Resolution.
“ ‘The Legislature finds and declares that there currently is a housing crisis in California and it is essential to reduce delays and restraints upon expeditiously completing housing projects.’ (Gov. Code, § 65009, subd. (a)(1).)
“ ‘The Legislature further finds and declares that a legal action or proceeding challenging a decision of a city, county, or city and county has a chilling effect on the confidence with which property owners and local governments can proceed with projects. Legal actions or proceedings filed to attack, review, set aside, void, or annul a decision of a city, county, or city and county pursuant to this division, including, but not limited to, the implementation of general plan goals and policies that provide incentives for affordable housing, open-space and recreational opportunities, and other related public benefits, can prevent the completion of needed developments even though the projects have received required governmental approvals.’ (Gov. Code, § 65009, subd. (a)(2).)
“ ‘The purpose of this section is to provide certainty for property owners and local governments regarding decisions made pursuant to this division.’ (Gov. Code, § 65009, subd. (a)(3).)
“The purpose of section 65009 is to require prompt challenges to governmental decisions in order to provide certainty to persons who rely upon those decisions. The first ten causes of action all challenge the final decision of Resolution No. 25-097. Consequently, the first ten causes of action are barred by Government Code section 65009. The demurrer to the first ten causes of action will be sustained on that ground.
“Because of this resolution, it is not necessary for the court to address Riviera’s alternative bases for demurrer as to these causes of action.” (Minute Order, filed June 24, 2026, pp. 6-7.)
Todorovic has repackaged the non-CEQA claims of the FAP into a single cause of action (the first) entitled, “Traditional Mandamus and Declaratory Relief—Unauthorized Alteration of the Official General Plan Map; Code Civ. Proc. §§ 1085, 1060.” Todorovic now argues that she seeks a writ compelling the City to correct the internal Planning Department mapping to remove the unauthorized Priority Housing Overlay designation from the Gutierrez parcel and to conform that internal mapping to the official public maps, declaring that the unauthorized alteration is void. (Opposition, at p. 2.) Todorovic asserts that this is a challenge to the present condition of internal mapping, not a challenge to a decision, including Resolution No. 25-097. (Opposition, at p. 4.) Riviera argues that Todorovic is still seeking to challenge the decision of the City expressed in Resolution No. 25-097 and consequently, the first cause of action is barred by the statute of limitations for the reasons stated in the court’s ruling as to the FAP.
As both parties agree, the title of the cause of action is not dispositive of whether or not a cause of action is stated. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) It is significant, however, that the prayer of the first cause of action of the SAP seeks not only a declaration that the Priority Housing Overlay was made without authority, but also a declaration that City’s approvals based upon the allegedly-unauthorized map alteration are not valid. (SAP, prayer, ¶ 5.) Similarly, the SAP seeks a declaration that the approvals based on the removal of the senior occupancy restrictions are invalid. (SAP, prayer, ¶ 6.)
As a matter of the limitations period of Government Code section 65009, it does not matter how the map alteration issue is characterized. If the action is characterized as in the FAP as a direct challenge to the approvals set forth in Resolution No. 25-097 on the grounds that Resolution No. 25-097 is inconsistent with the actual requirements of the Priority Housing Overlay and senior occupancy restrictions, then the action is untimely because it is a challenge to the City approval decision as the court discussed in sustaining the demurrer to the FAP. If the action is characterized as a challenge to the unauthorized changes to the underlying Priority Housing Overlay and senior occupancy restrictions, then the challenge is necessarily based upon the legal assertion that Resolution No. 25-097 improperly amends the general plan by implication. (See Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540–541 [implied amendments or repeals by implication are disfavored].) A challenge to an amendment to the general plan by implication by Resolution No. 25-097 is subject to the same limitations period. (Gov. Code, § 65009, subd. (c)(1)(A).) In either case, the action is untimely. (See Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 768 [“A plaintiff, therefore, may not avoid the short 90–day limit of section 65009 by claiming that the permit or condition is ‘void’ and thus subject to challenge at any time.”].)
Todorovic further argues that the discovery rule should toll the limitations period.
“[I]n order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light. In order to adequately allege facts supporting a theory of delayed discovery, the plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808–809.)
Assuming without deciding that the discovery rule would apply to the claims in the first cause of action, Todorovic does not plead facts sufficient to invoke this rule and has alleged facts making the rule inapplicable. Todorovic has alleged that her allegations regarding the Priority Housing Overlay are consistent with Todorovic’s own screenshots of the City’s online GIS captured between the ABR hearings and the Council appeal in 2025. (FAP, ¶ 62.) This confirms that Todorovic was on notice of the factual basis for this claim no later than the Council appeal dated April 14, 2025, and heard on August 12, 2025. (See FAP, ¶ 26 [dates of appeal and hearing].) Because Todorovic was on notice under the discovery rule before the cause of action accrued to challenge the adoption of Resolution No. 25-097, the discovery rule provides no basis for extending the limitations period under Government Code section 65009.
The first cause of action is untimely to the extent that the first cause of action seeks to avoid Resolution No. 25-097, either directly or by attacking its legal underpinnings. Todorovic’s arguments suggest that she more generally seeks to compel the correction of the altered maps. Under the above analysis, such correction—assuming the truth of Todorovic’s allegations—would not affect the approvals set forth in Resolution No. 25-097. Because of the approvals set forth in Resolution No. 25-097, further correction would appear to be moot; any correction would be ineffective for any purpose related to the development of the Project. A fair reading of the SAP in context is that the purpose of the sought-after correction is to effect some change in the state or status approvals to the Project. Because any challenge to such approvals is barred by the statute of limitations, nothing remains in the first cause of action for adjudication.
Based on the foregoing, the court concludes that Todorovic’s first cause of action is barred by the limitations period set forth in Government Code section 65009. The demurrer to the first cause of action will be sustained on that ground.
(C) CEQA Action Statute of Limitations
In ruling on Todorovic’s CEQA claim in the demurrer to the FAP (the eleventh cause of action), the court stated as an alternative ground to the untimeliness of the request for hearing:
“The eleventh cause of action arises under the California Environmental Quality Act (CEQA, Pub. Resources Code, § 21000 et seq.) and relates to the NOE. Todorovic alleges that the NOE was filed on September 10, 2025, claiming that the Project qualifies for a categorical exemption. (FAP, ¶ 134.) Todorovic further alleges that the administrative record and undisputed physical characteristics of the Project site establish that the categorical exemption is defeated by the ‘unusual circumstances’ exception under CEQA Guidelines section 15300.2, subdivision (c). (Ibid.) (Note: The CEQA Guidelines are found in California Code of Regulations, title 14, section 15000 et seq.)
“ ‘An action or proceeding to attack, review, set aside, void, or annul the following acts or decisions of a public agency on the grounds of noncompliance with this division shall be commenced as follows: [¶] … [¶]
“ ‘(d) An action or proceeding alleging that a public agency has improperly determined that a project is not subject to this division pursuant to subdivision (b) of Section 21080 shall be commenced within 35 days from the date of the filing by the public agency, or person specified in subdivision (b) or (c) of Section 21065, of the notice authorized by subdivision (b) of Section 21108 or subdivision (b) of Section 21152. If the notice has not been filed, the action or proceeding shall be commenced within 180 days from the date of the public agency’s decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days from the date of commencement of the project.’ (Pub. Resources Code, § 21167, subd. (d).)
“Thus, ‘[i]f an agency determines a project is categorically exempt from the environmental review requirements of CEQA and proceeds to approve the project, any party objecting that such determination was improper must file an action within 35 days after a valid NOE has been filed by the agency. If none was filed or the NOE is defective in some material manner, the filing period for actions is limited to 180 days after the project is approved. [Citations.]’ (City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1719–1720.) Only minimal compliance with CEQA Guidelines, section 15062, subdivision (a) is required to trigger the 35-day limitations period. (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 515.)
“ ‘When a public agency decides that a project is exempt from CEQA pursuant to Section 15061, and the public agency approves or determines to carry out the project, the agency may, file a notice of exemption. The notice shall be filed, if at all, after approval of the project. Such a notice shall include:
“ ‘(1) A brief description of the project,
“ ‘(2) The location of the project (either by street address and cross street for a project in an urbanized area or by attaching a specific map, preferably a copy of a U.S.G.S. 15′ or 7-1/2′ topographical map identified by quadrangle name),
“ ‘(3) A finding that the project is exempt from CEQA, including a citation to the State Guidelines section or statute under which it is found to be exempt,
“ ‘(4) A brief statement of reasons to support the finding, and
“ ‘(5) The applicant’s name, if any.
“ ‘(6) If different from the applicant, the identity of the person undertaking the project which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies or the identity of the person receiving a lease, permit, license, certificate, or other entitlement for use from one or more public agencies.’ (CEQA Guidelines, § 15062, subd. (a).)
“Todorovic argues that the NOE is defective because it characterizes the Project as a Builder’s Remedy Project and that no unusual circumstances exist in contradiction to the administrative record. The reference to the Builder’s Remedy in the description is sufficient in that the Project description need only be brief and the Builder’s Remedy was discussed as part of the final determination by the City. (See FAP, ¶ 29.) The fact that a party disagrees with the basis for the conclusion regarding no unusual circumstances does not mean that the 35-day limitations period does not run. (Indeed, such a construction of the rule would mean that the merits of the claim determine the limitations period, which defeats the purpose of the short limitations period that applies regardless of the merits of the claim.) The NOE here is shown at least to minimally comply with CEQA Guidelines, section 15062, subdivision (a). (See PRJN, item 3.)
“The ‘received’ stamp on the face of the NOE showing a received date of September 9, 2025, implies that the NOE was filed on September 9. The NOE may be filed either by the City itself or by the applicant. (Pub. Resources Code, § 21167, subd. (d) [person issued a permit is a person specified in Pub. Resources Code, § 21065, subd. (c)]; CEQA Guidelines, § 15062, subd. (c)(4)(C).) Under these circumstances, who filed the NOE is irrelevant to the running of the limitations period.
“On the face of the FAP, the 35-day limitations period applies. As discussed above, the original petition was filed more than 35 days after September 9, 2025 (or September 10, 2025 (FAP, ¶ 134)). The limitations period therefore appears to have expired as to the eleventh cause of action. The demurrer to the eleventh cause of action will be sustained on that ground.” (Minute Order, filed June 24, 2026, pp. 7-9.)
The same timeliness issue is presented in the SAP. Todorovic does not allege in the SAP that the NOE was not filed and posted so that the 35-day limitations period did not apply. The SAP alleges only that the filing and posting “is not established on this record”—consisting principally of the failure of the clerk to complete all blank fields on the “received” copy of the NOE. (SAP, pp. 14-15.) In view of the judicially noticed facts, these allegations are insufficient to avoid the 35-day limitations period. The demurer to the second cause of action will therefore be sustained on the same grounds as stated previously.
(D) Failure to Request a CEQA Hearing
As quoted above, the court sustained the demurrer to the CEQA cause of action appearing in the FAP on the alternative grounds that it was barred by the 35-day limitations and that Todorovic had timely failed to request a CEQA hearing as required by Public Resources Code section 21167.4. As discussed above, Todorovic moves for relief from this untimeliness pursuant to Code of Civil Procedure section 473. As further discussed above, the court will deny the motion for relief under section 473.
As a consequence of the denial of relief under Code of Civil Procedure section 473, the request for hearing remains untimely under Public Resources Code section 21167.4. The demurrer to the second cause of action will therefore be sustained on the same grounds as the demurrer was sustained to the FAP.
(D) Leave to Amend
This is a demurrer to the SAP on the same grounds the court sustained the demurrer to the FAP. As noted above, in sustaining the demurrer to the FAP, the court noted that Todorovic needed to plead her best case.
No further amendment appears possible to cure the untimeliness of the first cause of action pursuant to Government Code section 65009 or of the second cause of action pursuant to Public Resources Code section 21167.4. Todorovic has demonstrated that no further truthful amendment appears possible to cure the untimeliness of the second cause of action pursuant to Public Resources Code section 21167. The demurrer will therefore be sustained without leave to amend.