LCTH Investment, L.P., et al. v. City of Hesperia, et al. (Lavender II)

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residential subdivisions.” Section 17.08.040.E was the product of a voter-approved ballot measure and, per Petitioners, stemmed from the City Council’s anti-growth shift after the tentative tract map approvals years earlier. Petitioners also claim that the City stonewalled their efforts to obtain approval of the final maps, hence the needed extensions, via a de facto development moratorium premised upon, among other things, irrational and arbitrary drainage improvement conditions. Petitioners claim that the mandated denial of extensions in the City’s Municipal Code conflicts with, and is preempted by, the Subdivision Map Act (SMA).

In particular, Petitioners rely upon Government Code section 66452.6, subdivision (e), which provides that upon timely application “before the expiration of the approved or conditionally approved tentative map, the time at which the map expires ... may be extended by the legislative body or by an advisory agency authorized to approve or conditionally approve tentative maps for a period or periods not exceeding a total of six years.” While the total dispute is much broader, Petitioners and the City stipulated to first resolving the petitions for writ of mandate in the Sunflower and Lavender II Actions and what is referred to as the “extension claims” in case no.’s CIVSB2303245 and CIVSB2303246.1 The Court, with the Honorable Michael Sachs presiding, denied the writ petitions on the grounds that they are timebarred under Government Code section 66499.37, because the summonses were not served within 90 days of the denial of the extensions. (See 12/18/25 Ruling in the Lavender II and Sunflower Actions.)

The Lavender I Action In another action related to the Lavender I tentative tract map (case no. CIVSB2225409 or the Lavender I Action), Plaintiffs contend that a condition of approval of the final map was the construction of off-site drainage improvements, but the City’s conduct made it impossible to obtain final map approval and satisfy the conditions for approval, again based on a purported moratorium. The City then denied an extension application on May 18, 2022. The planning commission denied the appeal of that denial on July 14, 2022, and the City Council denied the final appeal on August 16, 2022. (Compl. at ¶ 54-57.)

Suit was then filed on November 10, 2022, for declaratory relief and denial of equal protection (with the included writ petition claim eventually being dismissed by Plaintiffs). The summons was issued on March 14, 2023, and service was perfected on April 3, 2023 (or 230 days after the denial of the appeal by the City Council).

The Camelia I Action In another action, related to the Camelia I tentative tract map (case no. CIVSB2310835 or the Camelia I Action), it is alleged that the City approved an extension to the tentative tract map

1 In total, the following lawsuits, consisting of various complaints and writ petitions, have been filed: 1) Apex HM, LLC, et al. v. City of Hesperia, et al. (Case No. CIVSB2208845), which was commenced in April 2022 (“Drainage Fee Lawsuit”); (2) California Arroyo Fund, Inc., et al. v. City of Hesperia, et al. (Case No. CIVSB2225409), commenced in November 2022 (“Lavender I”); (3) LCTH Investment, L.P., et al. v. City of Hesperia, et al. (Case No. CIVSB2303245), commenced in March 2023 (“Sunflower”); (4) LCTH Investment, L.P., et al. v.

City of Hesperia, et al. (Case No. CIVSB2303246), commenced in March 2023 (La4vender II); and (5) LCTH Investment, L.P., et al. v. City of Hesperia, et al. (Case No. CIVSB2310835), commenced in May 2023 (“Camelia I”). Except for the Drainage Fee Lawsuit, the actions are given the names of the respective developments at-issue by the parties. In July 2023, the five lawsuits were deemed related to each other. (7/10/23 Minute Order in CIVSB2208845].) The Drainage Fee Lawsuit has also proceeded to judgment, with the Court finding Defendants had improperly established and charged the “A-04 Drainage Fees.”

However, on April 3, 2025, the Court concluded the cases were not related to another case (Desert-Candle, LP, et al. v. City of Hesperia, et al. (Case No. CIVSB2504950)).

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on September 4, 2019, and imposed offsite improvement conditions. The City then allegedly failed to determine that the final map was timely filed on August 29, 2022 (having never responded to a letter from January 23, 2023) and the City also failed to approve the final map prior to its expiration on February 21, 2023. (Compl. at ¶¶ 14, 28, 38 44 [noting February 21, 2023, is the date the City alleges the tentative map expired] and ¶ 80.) However, it is not clear from the allegations when the determination was made (as opposed to what date the City calculated as being the expiration date for the tentative tract map).

The Motions for Judgment on the Pleadings The City and City Council (collectively, the City) now move for judgment on the pleadings as to each of the four complaints. The motions are made on the grounds that the claims are all barred under Government Code section 66499.37, which is applicable to all of the claims, and that the Court’s prior determination on the writ petitions serves to collaterally estop Plaintiffs’ claims. The motions are supported by declarations from attorney John Fox and requests for judicial notice of Plaintiffs’ petitions/complaints, the summons, the proof of service of summons, the notice of hearing on the writ petition, and the Court’s December 18, 2025, ruling.2 DISCUSSION Motions for Judgment on the Pleadings and the Meet and Confer Requirement A motion for judgment on the pleadings has the same function as a general demurrer, but is made after the time to file a demurrer has expired.

For instance, a demurrer can be predicated on a complaint’s failure to state facts sufficient to constitute a cause of action (Code of Civ. Proc. §430.10, subd. (e)), but it should be sustained only when the facts alleged on the face of the complaint fail to state any valid claim entitled to the plaintiff or disclose a complete defense to relief. Even if a plaintiff is mistaken as to the nature of the case or the legal theory on which he/she could prevail, the complaint is good against a general demurrer if the essential facts allege some valid cause of action. (Gruenberg v.

Aetna Ins. Co. (1973) 9 Cal.3d 566, 572.) When the moving party is the plaintiff, it must show “that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438(c)(1)(A).) The grounds for a motion for judgment on the pleadings must similarly appear on the face of the challenged pleading or be based on facts which the court may judicially notice, in which case the judicially noticed content must be specified in the opening papers. (Code Civ.

Proc., § 438, subd. (d); compare Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5 [on “nonstatutory” motion for judgment on the pleadings, court took judicial notice of matters in parties’ exhibits].) Except as provided by Code of Civil Procedure section 438, the rules governing demurrers generally apply to motions for judgment on the pleadings. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) A motion for judgment on the pleadings was well recognized by case law prior to the enactment of section 438, but it appears the nonstatutory basis for the motion has survived.

The main distinction is that a statutory motion for judgment on the pleadings cannot be filed if a pretrial conference order has been entered or within 30 days of the date of the action is initially set for trial, whichever is later and unless the Court otherwise permits. (Code Civ. Proc., § 438(e).) “Case authority for the nonstatutory motion is rather thin. None of the cited cases expressly deal with this issue; they simply assume its existence. But these cases reach a practical result. A

2 Judicial notice of court records is proper under Evidence Code section 452, subdivision (d). As a result, the City’s request for judicial notice, which consists entirely of court records, should be granted.

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court should be able to decide there is no valid cause of action at any time. There is no point in forcing a case to go to trial because the motion was made too late or otherwise failed CCP § 438 requirements.” (The Rutter Group; Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-C (emphasis original).) If the motion for judgment on the pleadings is granted, it may be granted with or without leave to amend. (Code Civ. Proc., § 438, subd. (h)(1).) The same standards apply in granting leave to amend as for demurrers and leave is routinely granted. (People v. $20,000 U.S.

Currency (1991) 235 Cal.App.3d 682, 692; Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-C.) Finally, before filing a motion for judgment on the pleadings, the moving party must meet and confer in person, by telephone, or via video conference with the party who filed the pleading that is subject to the motion to determine if an agreement can be reached that resolves the claims to be raised in the motion. (Code Civ. Proc., § 439, subd. (a).) In this case, the motions are supported by the declarations from attorney John Fox, who indicates meet and confer correspondence was exchanged and the attorneys thereafter engaged in a Zoom meeting regarding the stated grounds for the motion for judgment on the pleadings.

Overall, the Court finds that the meet and confer requirement is satisfied.

The Sunflower and Lavender II Lawsuits The service of the summonses was untimely absent a legally valid excuse Government Code section 66499.37 provides as follows: Any action or proceeding to attack, review, set aside, void, or annul the decision of an advisory agency, appeal board, or legislative body concerning a subdivision, or of any of the proceedings, acts, or determinations taken, done, or made prior to the decision, or to determine the reasonableness, legality, or validity of any condition attached thereto, including, but not limited to, the approval of a tentative map or final map, shall not be maintained by any person unless the action or proceeding is commenced and service of summons effected within 90 days after the date of the decision.

Thereafter all persons are barred from any action or proceeding or any defense of invalidity or unreasonableness of the decision or of the proceedings, acts, or determinations. The proceeding shall take precedence over all matters of the calendar of the court except criminal, probate, eminent domain, forcible entry, and unlawful detainer proceedings.

As explained in Presenting Jamul v. Board of Supervisors (1991) 231 Cal.App.3d 665, 671–672, “[t]he broad language the Legislature employed within section 66499.37 was specifically designed to include any challenge, regardless whether procedural or substantive in character, to any subdivision-related decision of either a legislative or advisory entity, or any of the necessary precedent proceedings, acts or determinations pursued before the making of the challenged decision. (See 9 Cal. Real Estate Law & Practice, § 292.11.)

The courts have not hesitated to apply section 66499.37 so as to require litigants to timely commence their litigation challenging subdivision-related decisions at the earliest reasonable opportunity ... Moreover, the courts have not hesitated to apply it when the legislative entity has succumbed to inaction, failing to follow the statutory scheme requiring specific action ... ”3

3 The court in Presenting Jamul provided several examples of section 66499.37’s applicability, including an attack on approval of an extension of a tentative map; an attack on conditions placed on the original tentative map; an attack on

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The statute “applies where a party challenges a subdivision-related decision, arguing the entity was without the jurisdiction or legal authority to grant the request” and “whenever ‘the conduct of a local agency under the Subdivision Map Act is called into question,” even where it has allegedly exercised no discretion under the act.” (Presenting Jamul v. Board of Supervisors (1991) 231 Cal.App.3d 665, 672 [concluding that the writ petitions and claim for declaratory relief were all barred because each, directly or indirectly, challenged the propriety or correctness of the board’s decision]; see also Friends of Riverside's Hills v.

City of Riverside (2008) 168 Cal.App.4th 743, 756 [“CEQA cause of action was merely another vehicle for challenging the City’s failure to require the applicant to implement open space and other mitigation measures that were part of the Project’s conditions of approval and of the Specific Plan” and claim was therefore subject to the 90 day deadline].) In this case, it is undisputed the City denied the requested extensions on December 20, 2022. It is also undisputed that the writ petitions and complaints were filed on March 14, 2023, which was 84 days after the denials.

These facts can be reached via resort to the pleadings and the requests for judicial notice. (See Petition in CIVSB2303245 at p. 1 and ¶ 26; Second Amended Petition at ¶ 26; Petition in CIVSB2303246 at p. 1 and ¶ 81.) The judicially noticeable documents also reveal that the summonses were filed on May 12, 2023, and May 15, 2023, and the City was not served until June 9, 2023, or 171 days after the denial of the requested extensions. Even discounting the time between when the lawsuits were submitted for filing and the date the summonses were issued, the City was not served until 112 days after the denials of the extensions.

Thus, and without more, Petitioners’ efforts to attack, set aside, void, annul, or seek review of the denials of the tract map extensions are untimely because the summonses were not served within 90 days of the denials. As a result, the Court previously denied the writ petitions. As more fully explained in the City’s motion, both complaints in the Sunflower and Lavender II Actions are also essentially actions or proceedings to “attack, review, set aside, void, or annul the decision ... concerning a subdivision, or of any of the proceedings, acts, or determinations taken, done, or made prior to the decision, or to determine the reasonableness, legality, or validity of any condition attached thereto, including, but not limited to, the approval of a tentative map or final map” for purposes of Government Code section 66499.37. (See SAC in CIVSB2303245 at ¶¶ 89, 97-98 [claims arise from City’s denials and actions related to the tract maps and extensions] and pp. 48-49 [seeking the set aside the denial of the extension applications, seeking to compel the City to exercise its discretion to address the extension on the merits, and seeking to compel the City to approve the final map].)

Similarly, the third cause of action for declaratory relief in the Sunflower Action attacks the City’s actions related to the final map. (SAC at pp. 49-50 [seeking a determination that there was a moratorium based on the City’s “actions and inactions,” a determination which would effectively undermine the City’s decisions to deny the extensions or the denial of the final map].) The fourth cause of action for “denial of equal protection” also arises from the same underlying decisions, albeit in the context of claims that others were not similarly mistreated. (SAC at ¶ 111 [raising the City’s unequal determination that Plaintiffs’ final map was not timely filed].)

In the oppositions, Plaintiffs contend that the lawsuits challenge post-decisional misconduct, referencing decisions occurring after the approval of the tentative tract map, however,

school impact fee conditions of tentative map; an attack on a certificate of compliance; the failure to issue either a certificate of compliance or a conditional certificate of compliance or to issue a properly rendered decision reached by a majority of the members composing the legislative entity. (Citations omitted.)

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the lawsuits nevertheless attack the ultimate denial of the final maps and the requested extensions. The oppositions fail to adequately explain why the denial of the requested extensions on December 20, 2022 (and any conclusions inherent in that determination) did not constitute a final determination that started the 90-day deadline. While Plaintiffs cite to Uniwill v. City of Los Angeles (2004) 124 Cal.App.4th 537, that case involved demands that a developer comply with additional conditions for the issuance of a final tract map and certificate of occupancy, but those demands were deemed a mere threat instead of a requirement actually imposed.

Furthermore, the current cases involve the denial of the tract map extension requests, a more concrete and definitive action as compared to the threats in Uniwill. As for the Lavendar II Action, the same analysis outlined above applies. Plaintiffs assert, beyond the writ petition claim, causes of action for declaratory relief and denial of equal protection and due process. However, the lawsuit essentially raises claims that would either directly or indirectly serve to undermine the December 20, 2022, denial of Plaintiffs’ appeal of the tract map extension requests.

The moratorium claim would, if successful, show that the tentative map is still viable since the deadline never ran in light of the moratorium. (See Petition at ¶ 118 [City’s actions, which support the claimed moratorium, have prohibited the approval of the final map] and ¶ 122 [alleging that as a result of the moratorium the duration of the tentative map has been extended].) Government Code section 66499.37 is broadly worded such that the 90-day deadline applies to actions to “attack, review, set aside, void, or annul” not only the ultimate decision but also “any of the proceedings, acts, or determinations taken, done, or made prior to the decision....”

Plaintiffs do not suggest that the delayed service was excused in the opposition In an effort to explain the delay in service, Plaintiffs filed at least one amended petition alleging that, due to backlog at the Court, the summonses were not returned to Plaintiffs’ legal services provider (ProLegal) until June 6, 2023, and the City was promptly served three days later. Based on the delayed processing, Plaintiffs alleged the service period should be tolled between the time the suits were filed and until the summonses were received. (Second Amended Petition in CIVSB2303245 at ¶¶ 79-84.)

The Court previously overruled a demurrer because adjudicating the excuse was beyond the scope of the demurrer. However, subsequent to the demurrer, and in ruling on the writ petitions, the Court concluded that Code of Civil Procedure section 583.240, which was relied upon by Plaintiffs, did not apply. The Court also concluded that Plaintiffs had not shown that service was impossible, impracticable, or futile due to causes beyond their control. While the Court is currently addressing motions for judgment on the pleadings, which is similar to a demurrer, Plaintiffs have not renewed any argument attempting to justify the delayed service, they do not suggest the motions should be denied based on the corresponding excuse allegations, nor do Plaintiffs refute the City’s suggestion that the Court’s prior determination on the writ petitions now applies based upon collateral estoppel or issue preclusion principles; Plaintiffs only argue that the motions should be denied because the remaining claims are not subject to Government Code section 66499.37.

However, the Court finds that the statute does apply to all the claims and grants the motions. Whether Leave to Amend is Proper “Where a demurrer is sustained or a motion for judgment on the pleadings is granted as to the original complaint, denial of leave to amend constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment.” (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.) Here, the Court finds that amendments may possible and therefore grants leave to amend.

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The Lavender I Action As for the Lavender I Action, its filing, the issuance of the summons, and the service date all differ from those in the Sunflower and Lavender II Actions. As a result, it cannot be said that simply because there was an inexcusable delay in serving the summons in those cases that therefore the delayed service of the summons in Lavender I was also inexcusable. The complaint in Lavender I indicates the City Council denied the final appeal on August 16, 2022. (Compl. at ¶ 54-57.)

The judicially noticeable documents further indicate suit was filed on November 10, 2022, or 87 days later. Even ignoring the days between when suit was filed and when the summons was issued on March 14, 2023, there was no service of the summons and complaint until April 3, 2023, or 20 days after the summons was issued. The 87 and 20 day periods, when combined, exceed the 90-day period under Government Code section 66499.37. As a result, the complaint in Lavender I reveals on its face that any claims subject to section 66499.37 would be untimely. (See, e.g., SLPR, L.L.C. v.

San Diego Unified Port Dist. (2020) 49 Cal.App.5th 284, 316 [“A statute of limitations defense may be asserted by general demurrer if the complaint shows on its face that the statute bars the action”].) There are also no allegations attempting to explain the delay in service, which would be Plaintiffs’ burden to do since the affirmative defense to the action (that is section 66499.37) appears applicable from the face of the complaint and the judicially noticeable documents. (See Long v. Forty Niners Football Co., LLC (2019) 33 Cal.App.5th 550, 555, as modified (Apr. 8, 2019) [plaintiff must plead around a claim that is time-barred on its face].)

The Court finds that all causes of action in Lavender I are subject to section 66499.37. The second cause of action (with the first being dismissed) is for declaratory relief related to the alleged development moratorium. The claim, like those discussed above, essentially serves to attack the denial of the extension by suggesting the extension was automatic due to the moratorium (See, e.g., Compl. at ¶ 83ix.) The third cause of action for denial of equal protection is also based upon the conditions of approval imposed upon Plaintiffs that were not imposed upon others that were similarly situated (Compl. at ¶¶ 89-91), but section 66499.37 covers actions preceding the final determination, including actions addressing the “validity of any condition attached thereto....”

However, similar to the claims in the Lavender II and Sunflower actions, leave could be appropriate. Leave could also be appropriate as to Lavender I to the extent Plaintiffs can plead around section 66499.37.

The Camelia I Action As for the Camelia I Action, it is not clear from the face of the complaint when the determination was made that the final map was untimely. While the Complaint indicates the City has alleged that the map expired as of February 21, 2023, it is unclear when that determination was made exactly; there is a distinction between the date the map expired and the date the City decided that the map expired. In the motion, the City contends all of its actions or inactions that allegedly resulted in the failure to approve the map occurred prior to the expiration of the map on February 21, 2023.

While the actions alleged via their dates did occur prior to February 21, 2023, again there is no clear date as to when the final determination was made nor is analysis provided explaining that the determination should be deemed made by operation of law or the passage of time on a date certain. Thus, to the extent the action challenges that specific determination as to the timeliness of the final map, as opposed to certain conditions or preceding actions, the lawsuit is not barred based on the

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face of the complaint. The first cause of action for writ relief is specifically based upon the claim that the final map was timely, and the City had a duty to approve it. (Compl. at ¶ 75n.) Working backwards, the complaint was served on June 9, 2023, and 90 days prior was March 11, 2023. To the extent the City did not make a determination as to the February 21, 2023, date until a few weeks after, which is plausible, the claim would not be untimely. Therefore, the Court denies the motion as to the first cause of action. (See McMahon v.

Republic Van & Storage Co. (1963) 59 Cal.2d 871, 874 [“In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred”].) The second cause of action for declaratory relief relates to the claim that there was a moratorium as to the approval deadline. (Compl. at p. 31.) To the extent the claim is viable as to whether the denial of final approval was appropriate, that is to the extent Plaintiffs can still challenge the denial as noted above, such a claim would appear inclusive of the theory that there was a moratorium.

As a result, the Court denies the motion as to the second cause of action. Similarly, the equal protection claim is based upon the unequal treatment related to the determinations about the timeliness of the final maps (Compl. at ¶ 87), but again it is not clear when that determination was made from the face of the complaint. As a result, the Court denies the motion. RULING

The Court rules as follows: (1) Grants the City’s request for judicial notice of the court records. (2) Grants the motion for judgment on the pleadings as to the Lavender I, Lavender II, and Sunflower Actions, but with leave to amend as to the declaratory relief and the equal protection/due process claims. (3) Denies the motion as to the Camelia I Action. (4) Orders Plaintiffs to file the amended petitions by June 12, 2026. (5) Orders Defendants to serve formal notice of the court’s final rulings.

Dated: June 2, 2026,

___________ _________________ Judge Nicole Quintana Winter

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