LINK HOLDINGS, LLC vs. CITY OF SAUSALITO, A MUNICIPAL CORPORATION, ET AL

The Demurrer of Respondent City of Sausalito (“City”) and Real Parties-in-Interest Kostas Kassaras and Kathy Pappas-Kassaras (“Real Parties”) is SUSTAINED with leave to amend.

REQUESTS FOR JUDICIAL NOTICE

The City and Real Parties’ Request for Judicial Notice No. 1 is GRANTED. (Evid. Code, § 452, subd. (d).)

Petitioner’s Requests for Judicial Notice A-C are GRANTED. (Evid. Code, § 452, subds. (b), (c).) Request D is DENIED.

LEGAL STANDARD

Demurrers are permitted in writ of mandate proceedings. (Code Civ. Proc., § 1108, 1109.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civ. Proc., § 430.30, subd. (a); Blank v. Kirwan, (1985)39 Cal.3d 311, 318.) The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94.)

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. (Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403.) Nevertheless, this rule does not apply to allegations expressing mere

conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709.)

A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily barred. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232. Internal citations omitted.) In order for the bar to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint [or matters subject to judicial notice]; it is not enough that the complaint shows that the action may be barred. (Ibid; see also Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658.)

If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 317.)

DISCUSSION

Respondent and Real Parties demur on the grounds that the Court lacks jurisdiction because Petitioner failed to timely file and serve the Petition for Writ of Mandate (“Petition”). (Gov. Code, § 65009.) Government Code Section 65009 provides a 90-day statute of limitations for challenges to planning and zoning decisions. Sausalito Municipal Code states the City Council’s decision “shall become final on the date action was taken by the City Council.” (SMC § 10.84.070(A).)

Here, Petitioner challenges the City Council’s December 2, 2025 design review approval of a residential project located at 33 San Carlos Avenue (owned by Real Parties). Petitioner owns the adjacent residential property at 25 San Carlos. Petitioner filed the Petition on March 3, 2026, 91 days after the public hearing and Resolution adopting the approval. Respondent City contends the Writ is therefore time barred by Government Code Section 65009.

In Opposition, Petitioner counters that the December 2, 2025 City Council decision was not final because: (1) The City failed to provide required written notice of decision under Sausalito Municipal Code section 10.84.050, delaying the limitations period and violating due process; (2) The administrative process was incomplete on December 2, 2025 and relied upon several post hearing actions by staff; and, (3) Even if December 2 was a “final decision,” staff materially changed the conditions in January 2026.

However, the Petition itself does not allege any of these facts. Indeed, the Petitioner is clear the challenge is to the December 2, 2025 approval. (See Pet. ¶¶ 1, 2, 8, 19-21, 25, 31, 36- 38, 43, Prayer ¶ 1.)

Petitioner appears to concede that Government Code Section 65009 applies and that if the 90-day period is applied to the December 2, 2025 approval, the Petition was filed after the expiration of this 90-day period. Accordingly, the Petition, on its face, is barred by the applicable statute of limitations.

However, because Petitioner outlined amendments which could potentially cure the defect, the Court will SUSTAIN the Demurrer with leave to amend.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for July, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1615487764?pwd=Ob4B5J7LLKcpnkxzJjjEOSHNzEGafG.1

Meeting ID: 161 548 7764 Passcode: 502070

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov