Ziburtovicz v. City of Oroville CA3

Filed 4/3/13 Ziburtovicz v. City of Oroville CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte) ----

ALEXANDER ZIBURTOVICZ, C070745

Plaintiff and Appellant, (Super. Ct. No. 154714)

v.

CITY OF OROVILLE,

Defendant and Respondent.

Representing himself, plaintiff Alexander Ziburtovicz filed a petition for writ of mandate under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) challenging approval of an affordable senior housing project by defendant City of Oroville (the city). Ziburtovicz’s petition failed to name the project applicant as a real party in interest. The trial court sustained the city’s demurrer without leave to amend because Ziburtovicz failed to join a necessary and indispensible party (the project applicant) and the statute of limitations had run for him to do so. On Ziburtovicz’s appeal (in which he also represents himself) from the resulting judgment of dismissal, we affirm because the trial court got it right.

1

FACTUAL AND PROCEDURAL BACKGROUND Ziburtovicz lived on the same street of the proposed senior housing project. The proposed site was the location of the now-closed Oroville Hospital in the city’s historic downtown district. In May 2011, Petaluma Ecumenical Properties applied to develop the site with a senior housing project. In June 2011, the city held a public hearing to receive testimony about the proposed project. In June 2011, after public comment and discussion, the Oroville Planning Commission (the planning commission) approved the proposed project. Ziburtovicz appealed the approval to the Oroville City Council (the city council). After public comment and discussion, the city council denied the appeal and confirmed the approval. On August 19, 2011, the city filed a notice that the proposed senior housing project was categorically exempt from CEQA because it met the requirements for affordable housing. On September 15, 2011, Ziburtovicz filed a petition for writ of mandate seeking to compel the city to “perform [d]ue [p]rocess under CEQA” and file an environmental impact report. The only party named in the lawsuit besides Ziburtovicz was the city. The city filed a demurrer to the petition for Ziburtovicz’s failure to name Petaluma Ecumenical Properties, a necessary and indispensible party, as a real party in interest. The trial court sustained the demurrer without leave to amend because Petaluma Ecumenical Properties was a necessary and indispensible party and the statute of limitations had run on naming it in the petition. The trial court then dismissed the case. DISCUSSION To properly file a mandamus proceeding against a public agency, “[a]ppropriate entities must be named by the petitioner as parties. Any ‘recipient of an approval that is the subject of the action or proceeding’ must be named as a real party in interest and must be served within 20 days of service on the public agency and failure to serve may