Templeton Action Committee v. County of San Luis Obispo

Filed 7/28/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

TEMPLETON ACTION COMMITTEE, 2d Civil No. B251788 (Super. Ct. No. CV118113) Plaintiff and Appellant, (San Luis Obispo County)

v.

COUNTY OF SAN LUIS OBISPO et al.,

Defendants and Respondents;

TEMPLETON PROPERTIES,

Real Party in Interest and Respondent.

Plaintiff seeks to set aside a county's decision to allow a development. Here we decide, among other things, that the developer, an indispensable party, may assert the statute of limitations even though it did not comply with Business and Professions Code section 17900, the so-called fictitious name statute. A rule designed for one purpose is not necessarily a rule designed for other purposes. From this it follows that a penalty for one purpose is not necessarily a penalty for other purposes. Government Code section 66499.37 requires a party seeking to attack an appeal board's or legislative body's decision concerning a subdivision to commence a proceeding and serve the summons within 90 days of the decision. Appellant filed a petition for mandate and administrative mandate attacking the

county's decision approving a subdivision application, but failed to serve the real party in interest within 90 days. The trial court sustained the county's and real party in interest's demurrers without leave to amend. We affirm the ensuing judgment. FACTS On January 25, 2011, San Luis Obispo County Board of Supervisors (County) approved on appeal an application for a tentative subdivision map and conditional use permit. On April 25, 2011, the Templeton Action Committee (Committee), a nonincorporated association, filed a petition in superior court challenging the County's approval. The petition named the County as defendant. It also named Templeton Properties and Will Tucker as real parties in interest (RPI). The petition alleged that Will Tucker, individually and doing business as Templeton Properties, is the project applicant. Templeton Properties is the owner of the land subject to the application. The petition alleges three causes of action. The first two causes of action are for mandate or administrative mandate to overturn the County's approval. These are alleged against the County and RPI. The third cause of action, for declaratory relief, is alleged against the County only. It alleged that the County has a pattern and practice of ignoring its general plan in approving land use permits. The Committee served the summons and petition to the County on April 25, 2011. That was 90 days after the County approved the tentative subdivision map and conditional use permit. On April 25, 2011, the Committee also attempted to serve Templeton Properties and Tucker. The Committee left an envelope with Camile Sundahl at the Templeton Livestock Market office. The process server told Sundahl the envelope was for Bobbie Kay Davis, a partner in Templeton Properties. The Committee attempted to serve Tucker by serving Cindy Chambers of the Wallace Group as his agent.