Natasha Todorovic v. City of Santa Barbara, et al.

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 asserts 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 seeks 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 this hearing date of 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 and a demurrer in opposition to the demurrer. On May 26, 2026, Todorovic filed amended opposition to the demurrer. 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.

Analysis

"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.)

(1) 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); and (item 5) the original petition in this proceeding was filed on December 10, 2025.

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 Sate 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 FAP.

Riviera responds to the objection by arguing that the objections are not to the facts of which Riviera seeks judicial notice, but of the legal effects of such facts. Judicial notice is therefore appropriate as to the facts for which judicial notice is sought. 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, Sec. 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, Sec. 452, subd. (d)(1).)

In opposition to the demurrer, Todorovic requests that the Court take judicial notice of: (Petitioner's Request for Judicial Notice [PRJN], item 1) Minutes of the November 14, 2019, Special Joint Work Session of the Santa Barbara City Council and Planning Commission; (item 2) an email chain among Riviera's counsel and City Planning Staff, August 12 to September 9, 2025, Re: NOE (Andersen decl., exhibit 1); (item 3) the NOE; (item 4) State of California Department of Fish and Wildlife Environmental Document Filing Fee Form (DFW 753.5a) for PLN2024-00156; (item 5) County of Santa Barbara Receipt No. X2194969; (item 6) Resolution No. 25-097; and (item 7) the dates of filings of the original petition, the FAP, petitioner's request for preparation of the administrative record, and petitioner's request for hearing.

Riviera objects that item 1 is not relevant to the issues presented, the other documents presented lack authentication, and the PRJN contains improper argument on the merits. "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.)

As to item 1, although the minutes are the type of document for which judicial notice may be proper, those minutes are not relevant to the issues raised in Riviera's demurrer. The request for judicial notice is denied as to item 1. As to item 2, the email chain is presented by Riviera to provide authentication of the dates identified in the NOE and the same email chain is the subject of the PRJN. The Court will grant the request for judicial notice as to the existence of the email chain as official acts of City.

Judicial notice does not extend to the truth of any factual matter set forth in the emails. As to items 4 and 5, the Court will grant judicial notice of these documents as official records. (See Evid. Code, Sec. 452, subd. (h).) The Court grants Riviera's request for judicial notice as to the same document, Resolution No. 25-097, as PRJN item 6. The Court grants judicial notice as to item 7 as to the filing dates appearing in the Court's records.

In opposition to the demurrer, Todorovic filed her own declaration providing a factual background. Riviera objects to consideration of the declaration as outside the pleadings or matters subject to judicial notice. "Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice." (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) The Court will not consider factual matter provided in any declaration filed with the Court in determining the merits of the demurrer.

In response to Riviera's reply, Todorovic filed an objection to alleged misstatements made in the reply. Riviera objects to the consideration of the objection as additional, and improper, argument. For the same reasons the Court does not consider matter presented by declaration in support of the merits of a demurrer, the Court does not consider factual matter stated in demurrer papers that do not appear as allegations or as judicially noticed matter. The Court does consider arguments made as to inferences that may be made from the allegations and judicially noticed matter. In any case, however, the Court does not consider additional arguments made in documents outside the memoranda in support, in opposition, or in reply.

(2) Writs of Mandate Statutes of Limitations

Riviera, joined by City, argues that each of the causes of action of the FAP assert a claim for writ of mandate and each is barred by any applicable statute of limitations. Riviera posits only three possible applicable statutes of limitations: Government Code section 65009, subdivision (c)(1)(E) (90-day limitations period for challenges to land use decisions); Code of Civil Procedure section 1094.6, subdivision (b) (90-day limitations period for administrative writ of mandate); and Public Resources Code section 21167, subdivision (d) (35-day limitations period for challenge under CEQA).

Todorovic argues that because she alleges the NOE is invalid, these limitations periods do not begin to run. Todorovic further argues that the first 10 causes of action fall outside the scope of Government Code section 65009, that the 35-day limitations period does not appear on the face of the FAP, and that Government Code section 1094.6 is inapplicable.

(A) Government Code Section 65009

"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: [P.] ... [P.] "(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, Sec. 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, P. 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., Sec. 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, Sec. 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, Sec. 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, Sec. 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.

(B) CEQA Action

The eleventh cause of action arises under the California Environmental Quality Act (CEQA, Pub. Resources Code, Sec. 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, P. 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: [P.] ... [P.] "(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, Sec. 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, Sec. 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, P. 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, Sec. 21167, subd. (d) [person issued a permit is a person specified in Pub. Resources Code, Sec. 21065, subd. (c)]; CEQA Guidelines, Sec. 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, P. 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.

(3) Failure to Request a CEQA Hearing

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, Sec. 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, 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., Sec. 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, P.P. 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. The demurrer will therefore be sustained to the eleventh cause of action on this alternative ground.

(4) Leave to Amend

This is the first demurrer on which the Court has ruled. Although it does not appear that Todorovic can truthfully amend the petition to state a claim, as reflected in the above discussion, the Court will grant leave to amend for Todorovic to state her best case.

Tentative Ruling: Douglas W. Gotthard v. Sonatech, LLC, et al. Tentative Ruling: Douglas W. Gotthard v. Sonatech, LLC, et al.