MICHAEL KARPOVICH TEMPLETON VS. TOWN OF ATHERTON, ET AL

8/13/2026 – Law and Motion Calendar Judge: Honorable Mark A. McCannon – Department 2 Page 25 of 33

2:00 PM LINE: 7 25-CIV-09703 MICHAEL KARPOVICH TEMPLETON VS. TOWN OF ATHERTON, ET AL

MICHAEL KARPOVICH TEMPLETON PRO SE TOWN OF ATHERTON MONA G EBRAHIMI

RESPONDENTS TOWN OF ATHERTON, ELIZABETH LEWIS AND MONA G. EBRAHIMI’S AND REAL PARTY IN INTEREST FAB HOMES 94 PALMERLLC’S JOINT NOTICE OF DEMURRER AND DEMURRER TO PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

TENTATIVE RULING:

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For the reasons stated below, Respondents Town of Atherton, Elizabeth Lewis, and Mona G. Ebrahimi, and Real Party in Interest Ninety Four Palmer, LLC’s Joint Demurrer to Petitioner Michael Karpovich Templeton’s Second Amended Petition for Writ of Administrative Mandamus is SUSTAINED WITH LEAVE TO AMEND.

PRELIMINARY MATTERS

As a preliminary matter, the demurrer is unopposed. Petitioner filed a request to continue the hearing after the deadline for filing opposition had expired. (See Code Civ. Proc., § 1005, subd. (b) [opposition papers must be filed and served at least nine court days before the hearing].) No proof of service of the continuance request was filed. Moreover, the request is styled as a noticed motion but was noticed for a date and time at which the Court does not hear motions.

A court “lacks jurisdiction to rule on a motion that has not been properly noticed for hearing on the date in question.” (Diaz v. Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1204–1205.) Accordingly, Petitioner’s request for a continuance is DENIED.

As an additional preliminary matter, Respondents’ electronically filed exhibits have not been electronically bookmarked as required by California Rules of Court, rule 3.1110(f)(4). The Court has nonetheless considered the materials for purposes of this demurrer. Counsel are advised that future noncompliance with the California Rules of Court may subject the responsible party or counsel to sanctions. (See Cal. Rules of Court, rule 2.30.)

BACKGROUND

The Second Amended Petition for Writ of Administrative Mandamus (“SAP”) seeks a writ setting aside the Town Council’s decision denying Petitioner’s appeal and thereby leaving in place the Atherton Planning Commission’s written decision granting certain variances and exceptions for a proposed development at 94

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Palmer Lane in Atherton. Petitioner seeks an order directing Respondent Town of Atherton (the “Town”) to reverse the Planning Commission’s decision. (July 21, 2026 Second Amended Petition (“SAP”), passim.)

Respondents Town of Atherton, Elizabeth Lewis, and Mona G. Ebrahimi, and Real Party in Interest Ninety Four Palmer, LLC (collectively, the “Demurring Parties”) demur to the SAP on several grounds, including that the petition is barred by the applicable 90-day statute of limitations.

The Demurring Parties identify both Government Code section 65009 and Code of Civil Procedure section 1094.6 as potential sources of the applicable limitations period. Government Code section 65009, subdivision (c)(1)(E), is the more specific and controlling statute here.

Section 65009 applies to an action seeking to attack, review, set aside, void, or annul a decision concerning a variance or other matter identified in Government Code sections 65901 and 65903 and requires that the action be commenced and the legislative body served within 90 days after the legislative body’s decision. (Gov. Code, § 65009, subd. (c)(1)(E).)

In Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1049–1050, the Court of Appeal held that Government Code section 65009, subdivision (c)(1)(E), rather than the more general provisions of Code of Civil Procedure section 1094.6, governs a judicial challenge to a city’s decision approving a variance. (See also Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 526–528 [applying section 65009 to a challenge whose gravamen was the propriety of a zoning variance].)

THE PETITION IS TIME-BARRED ON ITS FACE

The SAP alleges that the Town Council denied Petitioner’s appeal on July 16, 2025. (SAP, pp. 4–5.) Atherton Municipal Code section 17.06.100(E) provides that, in ruling on an appeal, the City Council shall state the basis for its action and that the Council’s action “is final on the date of decision.”

Accordingly, under Government Code section 65009, subdivision (c)(1)(E), Petitioner was required to commence this proceeding and serve the Town within 90 days after the Town Council’s July 16, 2025 decision. The 90-day period expired on October 14, 2025. Petitioner did not file the original Petition until December 15, 2025. (See Dec. 15, 2025 Petition.) The action therefore was untimely when commenced.

The SAP alleges that Petitioner believed the Town Council was required to issue a written decision and that the operative decision date should instead be September 17, 2025, when the minutes of the July 16, 2025 hearing were approved and entered into the Town’s records. (SAP, pp. 4–5.)

The allegations do not establish a later accrual date. Neither Government Code section 65009 nor Atherton Municipal Code section 17.06.100(E) makes finality dependent upon subsequent approval of meeting minutes. To the contrary, the Municipal Code expressly provides that the City Council’s action is final on the date of decision. The later approval of minutes memorializing that action does not, on the allegations of the SAP, constitute a new substantive decision restarting the limitations period.

Nor does Petitioner’s alleged belief that a written decision was required, standing alone, avoid the statutory bar. Equitable estoppel ordinarily requires conduct amounting to a misrepresentation or nondisclosure of material fact and reasonable reliance upon that conduct. A misunderstanding or inaccurate statement of law,

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where the pertinent facts and law are equally available to the parties, generally does not support estoppel from asserting a statute-of-limitations defense. (Millview County Water Dist. v. State Water Resources Control Bd. (2019) 32 Cal.App.5th 585, 599–601.)

Accordingly, the SAP affirmatively demonstrates on its face that this proceeding was commenced more than 90 days after the Town Council’s July 16, 2025 decision and is therefore barred by Government Code section 65009, subdivision (c)(1)(E).

The demurrer is SUSTAINED.

LEAVE TO AMEND

Although Petitioner did not oppose the demurrer or request leave to amend, this appears to be his first opportunity to amend in response to a ruling sustaining a demurrer to his pleading. The issue of leave to amend remains open even when amendment has not been specifically requested. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746–747.)

Accordingly, the Court grants LEAVE TO AMEND so that Petitioner may allege, if he can do so in good faith, additional facts establishing a legally sufficient basis for tolling, equitable estoppel, or another exception to the applicable limitations period, and may address any other pleading defects raised by the demurrer.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the Demurring Parties shall prepare and submit a proposed written order consistent with this ruling pursuant to California Rules of Court, rule 3.1312, and shall provide notice of the ruling as required by law.

8/13/2026 – Law and Motion Calendar Judge: Honorable Mark A. McCannon – Department 2 Page 28 of 33

2:00 PM LINJE: 8 25-CIV-09703 MICHAEL KARPOVICH TEMPLETON VS. TOWN OF ATHERTON, ET AL

MICHAEL KARPOVICH TEMPLETON PRO SE TOWN OF ATHERTON MONA G EBRAHIMI

PETITIONER MICHAEL TEMPLETON’S WRIT OF ADMINISTRATIVE MANDAMUS CCP 1094.5

TENTATIVE RULING:

Considering the court’s previous ruling, the court will not rule on this matter at this time.