Okasaki v. City of Elk Grove

Opinion

MAURO, J. Appellants David and Cathryn Okasaki petitioned for a writ of administrative mandamus against the City of Elk Grove, the Elk Grove City Council (collectively the City), and real parties in interest Chisorum and Emmanuel Okwuosa. The writ petition challenged a variance issued by the City of Elk Grove allowing the Okwuosas to build a pool and spa within a setback bordering the Okasakis’ property. The trial court, among other things, sustained the City’s demurrer to three of the Okasakis’ causes of action without leave to amend, ruling that the first and second causes of action were barred by the applicable statute of limitations (Gov. Code, § 65009), and that the third cause of action failed to state a claim.

The Okasakis contend on appeal that their first and second causes of action, which challenge the City’s approval of the variance, are not barred by the 90-day limitations period set forth in Government Code section 65009. They argue that Government Code section 65009 must be harmonized with Code of Civil Procedure section 1094.6, subdivision (d), which provides that if a petitioner makes a timely request to the local agency for the administrative record, the limitations period is extended to the 30th day following delivery of the record. The Okasakis contend that because they made a timely request to the City for the administrative record, and the City has not yet provided the record, their first and second causes of action are not barred.1

[1046]We conclude that Government Code section 65009 applies more specifically to this particular challenge to the City’s variance decision, and that Code of Civil Procedure section 1094.6 does not extend the limitations deadline on these particular facts.

We will affirm the judgment.

BACKGROUND

In reviewing an order sustaining a demurrer without leave to amend, we assume the truth of all material factual allegations, together with those matters subject to judicial notice. (Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 524 [25 Cal.Rptr.3d 649]; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].)

The Okwuosas own property in a rural area of Elk Grove known as “The Shires” project, a residential development consisting of 12 two-acre residential home sites. The Okasakis own property adjacent to the Okwuosa property and have lived there for more than 25 years.