Gilray v. Cambria Com. Services Dist. CA2/6

Filed 4/3/13 Gilray v. Cambria Com. Services Dist. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

JOHN F. GILRAY et al., 2d Civil No. B239158 (Super. Ct. No. CV118265A) Plaintiffs and Appellants, (San Luis Obispo County)

v.

CAMBRIA COMMUNITY SERVICES DISTRICT,

Defendant and Respondent.

Property owners petitioned for a writ of mandate and administrative mandate to compel a community services district to act on their applications for a service review and for sewer service. They also included a cause of action alleging a taking of their properties. The trial court sustained the district's demurrer without leave to amend. The court concluded the district had no duty to conduct a piecemeal service review or to hold a hearing on a petition for sewer service without water service. It also concluded the takings claim is not ripe for adjudication. We affirm. FACTS John F. Gilray, Donald C. Berry and Mary E. Craighead (collectively Gilray) own individual parcels of undeveloped property in Cambria. Cambria is an

unincorporated area in San Luis Obispo County (County). The Cambria Community Services District (District) is responsible for providing services to the area, including water and sewer services. Gilray filed a petition against the District for writ of mandate, writ of administrative mandate and for damages in inverse condemnation. The petition alleges: Gilray has paid special assessments to fund and operate the District's sewage treatment plant, but has never received sewer service. Gilray has applied to the District for public service review and for sewer service, but the District has refused to accept or process either application. The District has failed to point out any incompleteness in the applications and they are deemed complete pursuant to Government Code section 65943, subdivision (a).1 The District has sufficient sewage capacity to serve Gilray's parcel. Gilray requested that the trial court order the District to conduct a service review and grant his application for sewer services, or pay just compensation for taking his property. Gilray did not attach copies of the applications to his petition. The district demurred to the petition on the ground it has no legal duty to consider Gilray's application. DISCUSSION I The function of a demurrer is to test the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In reviewing the sufficiency of a demurrer, we deem all facts pled in the complaint to be true. (Holland v. Thacher (1988) 199 Cal.App.3d 924, 928.) But we do not assume the truth of contentions, deductions or conclusions of fact or law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) If upon consideration of all the facts alleged or of which the court has taken judicial notice the plaintiff is entitled to any relief, the complaint will be held good. (Chase Chemical Co. v. Hartford Accident Indemnity Co. (1984) 159 Cal.App.3d 229, 242.)