Filed 7/7/21 Tchejeyan v. The City Council of the City of Thousand Oaks 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

GREGORY TCHEJEYAN,

 Plaintiff and Appellant,

v.

THE CITY COUNCIL OF 

THE CITY OF THOUSAND 

OAKS,

 Defendant and Respondent.

2d Civil No. B309108

(Super. Ct. No. 56-2020-

00541772-CU-WM-VTA)

(Ventura County)

Gregory Tchejeyan appeals from a judgment of 

dismissal after he failed to timely serve the amended petition for 

writ of administrative mandate on the City of Thousand Oaks 

(Gov. Code,1 § 65009, subd. (c)(1)). We affirm.

1 Further unspecified statutory references are to the 

Government Code. 
2

FACTUAL AND PROCEDURAL HISTORY

In August 2019, the City of Thousand Oaks (City) 

planning commission approved Verizon Wireless’s land use 

permit to install a wireless telecommunication facility on 

property owned by a water company. The property was located 

near Tchejeyan’s home. Tchejeyan appealed the planning 

commission’s decision to the City Council.

On January 14, 2020, the City Council denied the 

appeal and adopted Resolution No. 2020-002 (the Resolution), in 

which it upheld the planning commission’s approval of the land 

use permit. Two days later, the city clerk certified the 

Resolution.

In June 2020, Tchejeyan filed a petition for a writ of 

administrative mandate (Code of Civ. Proc., § 1094.5) in Ventura 

County Superior Court. Tchejeyan did not serve the City with 

the original petition. In July 2020, Tchejeyan filed an amended 

petition, in which he sought to set aside the Resolution. 

Tchejeyan served the City with the amended petition on August 

13. He did not name Verizon Wireless as a party to the action. 

In September 2020, Tchejeyan served the City with a summons.

The City moved to dismiss the amended petition on 

the grounds that Tchejeyan (1) did not timely serve the amended 

petition, and (2) did not name Verizon Wireless as an 

indispensable party.

The trial court granted the City’s motion to dismiss, 

finding the amended petition was not served within the 90-day 

deadline pursuant to section 65009, subdivision (c)(1)(E). 

Because the court determined the action was time-barred, it

deemed the issue of whether Verizon Wireless was an 

indispensable party moot.
3

DISCUSSION

Tchejeyan contends the trial court erred when it 

dismissed his amended petition because (1) it applied the wrong 

statute of limitation, (2) even if a 90-day statute applied, the 

petition was timely served, (3) its error deprived him of the 

opportunity to name Verizon Wireless as a party to the action, 

and (4) relief should have been granted pursuant to Code of Civil 

Procedure section 473.

The Statute of Limitation

Tchejeyan argues the deadline to serve the petition 

was 180 days pursuant to section 65009, subdivision (d)(2)(C), 

and not 90 days pursuant to subdivision (c)(1)(E). He is wrong. 

Which subdivision of section 65009 applies presents a 

question of statutory interpretation, which we review de novo. 

(McKee v. Orange Unified School Dist. (2003) 110 Cal.App.4th 

1310, 1316.) Our objective is to ascertain the intent of the 

Legislature in enacting the statute. (Weiss v. City of Del Mar 

(2019) 39 Cal.App.5th 609, 618 (Weiss).) We begin by examining 

the statutory language, giving the words their plain and ordinary 

meanings. (Ibid.) If the statutory text is “‘unambiguous and 

provides a clear answer, we need go no further.’” (Ibid.)

Section 65009, subdivision (c)(1)(E) provides: “Except 

as provided in subdivision (d), no action or proceeding shall be 

maintained in any of the following cases by any person unless the 

action or proceeding is commenced and service is made on the 

legislative body within 90 days after the legislative body’s 

decision: [¶] . . . [¶] To attack, review, set aside, void, or annul 

any decision on the matters listed in Sections 65901 and 65903, or 

to determine the reasonableness, legality, or validity of any 
4

condition attached to a variance, conditional use permit, or any 

other permit.” (Emphasis added.)

Section 65901 states that “[t]he board of zoning 

adjustment or zoning administrator shall hear and decide 

applications for conditional uses or other permits when the 

zoning ordinance provides therefor and establishes criteria for 

determining those matters.” (§ 65901, subd. (a).) “In the event 

that neither a board of zoning adjustment or the office of a zoning 

administrator has been created and established, the planning 

commission shall exercise all of the functions and duties of said 

board or said administrator.” (§ 65902.) “The legislative body of 

a county may provide that an area planning commission shall 

exercise all of the functions and duties of a board of zoning 

adjustment or a zoning administrator in a prescribed portion of 

the county.” (Ibid.)

Here, the approval of Verizon Wireless’s land use 

permit by the planning commission was a decision on a matter 

described in section 65901. The City’s Municipal Code provides 

that applications for land use permits such as the one Verizon 

Wireless submitted “shall be considered by the [Planning] 

Commission.” (Thousand Oaks Mun. Code, §§ 1-9.107; 9-4.2803, 

9-4.4402; see also Weiss, supra, 39 Cal.App.5th at pp. 621-622

[noting that a planning commission’s decision on land use and 

zoning matters constituted a decision under section 65901 and 

that actions to set aside such decisions must comport with the 

90-day filing and service rule pursuant to section 65009, 

subdivision (c)(1)(E)].)

Moreover, the City Council’s denial of Tchejeyan’s 

appeal is a decision described under section 65903. That section 

provides that a “board of appeals, if one has been created and 
5

established by local ordinance, shall hear and determine appeals 

from the decisions of the board of zoning adjustment or the 

zoning administrator, as the case may be.” (§ 65903.)

Here, the City’s Municipal Code (Thousand Oaks 

Mun. Code, § 9-4.2808) states that after a decision by the 

planning commission, “an appeal to the Council may be taken by

. . . any person aggrieved.” Pursuant to this code section, the City 

Council heard and decided the appeal of the planning 

commission’s decision and adopted a resolution upholding the 

decision. (See Honig v. San Francisco Planning Dept. (2005) 127 

Cal.App.4th 520, 528 [board of appeal’s upholding approval of a 

building permit authorizing an expansion of a home is a decision 

described under 65903, and an action to set aside the board of 

appeal’s decision must comport with the 90-day filing and service 

rule pursuant to section 65009, subd. (c)(1)(E)].)

Accordingly, section 65009, subdivision (c)(1)(E) 

applies because Tchejeyan’s petition is an action to “attack, 

review, set aside, void, or annul any decision on the matters 

listed in Sections 65901 and 65903.”

Tchejeyan argues the deadline to serve the amended 

petition was 180 days pursuant to section 65009, subdivision 

(d)(2)(C). But, subdivision (d) is inapplicable because it relates to 

governmental actions pertaining to regional housing. 

Subdivision (d)(2)(C) provides that “[a]n action or proceeding 

challenging an action taken pursuant to Section 65863.6 . . . shall 

be served within 180 days after the accrual of the cause of action 

as provided in this subdivision.” Section 65863.6 provides that a

city shall consider the “effect of ordinances . . . on the housing 

needs of the region in which the local jurisdiction is situated and 

balance these needs against the public service needs of its 
6

residents and available fiscal and environmental resources. Any 

ordinance adopted which, by its terms, limits the number of 

housing units which may be constructed on an annual basis shall 

contain findings as to the public health, safety, and welfare of the 

city or county to be promoted by the adoption of the ordinance 

which justify reducing the housing opportunities of the region.”

The approval of the land use permit was not an 

action under section 65863.6. The permit approved the

installation of a telecommunication facility on property owned by 

a water company. It does not relate to an ordinance concerning

regional housing needs. (Contrast with Lee v. City of Monterey

Park (1985) 173 Cal.App.3d 798, 809 [the city’s statement of 

findings on an initiative measure, which established a 

development allotment system limiting the number of dwelling 

units permitted, constituted the city’s consideration of the effect 

of the measure as required pursuant to section 65863.6].) 

Moreover, section 65863.6 was neither mentioned in the planning 

commission’s nor the City Council’s decisions on the permit, nor

in Tchejeyan’s amended petition. Section 65009, subdivision (d) 

does not apply.

Calculation of the 90-day Service Limitation

Tchejeyan argues that even if the 90-day service 

limitation applies, he timely served the petition on the City on 

the 90th day. We disagree.

Pursuant to 65009, once the 90-day service limitation 

expires, “all persons are barred from any further action or 

proceeding.” (§ 65009, subd. (e).) “Even if a petition is timely

filed under Government Code section 65009, subdivision (c), if it

is not personally served as required by statute, the petition must

be dismissed.” (Royalty Carpet Mills, Inc. v. City of Irvine (2005) 
7

125 Cal.App.4th 1110, 1119; see Wagner v. City of South

Pasadena (2000) 78 Cal.App.4th 943, 950 (Wagner) [writ petition 

did not meet the statute of limitation because it was served on 

the 91st day].)

The City Council adopted the Resolution on January 

14. Tchejeyan served the City on August 13. Because of the 

Judicial Council’s Emergency rule 9(b) related to COVID-19, the 

90-day time period was tolled from April 6 to August 3. (Cal.

Rules of Court, Appendix I: Emergency Rules Related to COVID19, Emergency rule 9(b).) Including this emergency tolling 

period, Tchejeyan was required to file and serve the amended 

petition on the City no later than August 11 (the limitation 

period ran for 82 days from January 15 and April 5, and eight 

days from August 4 and August 11).

Tchejeyan argues that the statute of limitation 

commenced on January 16, when the Resolution was certified by 

the city clerk, and not on January 14. We disagree.

Tchejeyan was required to file and serve the petition 

“within 90 days after the legislative body’s decision.” (§ 65009, 

subd. (c), emphasis added.) The City Council rendered its 

decision and adopted the Resolution on January 14, and it was 

effective immediately. (See Marquez v. Medical Bd. of California

(2010) 182 Cal.App.4th 548, 558 [“But a resolution is adopted by 

a recorded vote of the governing body in accordance with 

statutory open meeting and agenda laws. It is usually adopted at 

the time it is presented, and it is usually effective immediately 

unless it states otherwise”].) The city clerk’s certification was not 

a “legislative body’s decision”; rather, it was a clerical act that did 

not impact the underlying decision. (See Wagner, supra, 78 
8

Cal.App.4th at pp. 946, 950 [statute of limitation began to run 

the date the city adopted a resolution].) 

Tchejeyan cites to Hensler v. City of Glendale (1994) 8 

Cal.4th 1 (Hensler), and County of Sonoma v. Superior Court 

(2010) 190 Cal.App.4th 1312 (Sonoma), to support his claim that 

the 90-day time period commences on the date of “final 

administrative action,” which he asserts is the date of the clerk’s 

certification. But these cases do not support his assertion. First, 

neither case holds that a clerk’s certification is a “final 

administrative action.” Moreover, Hensler and Sonoma involved 

a challenge to a city ordinance, and not a resolution on an 

individual permit. The courts in these cases recognized that the 

statute of limitation for a facial challenge to an ordinance 

commences on the date it becomes effective. (Hensler, at p. 22; 

Sonoma, at p. 1324.) Where an as-applied challenge is raised, 

the statute of limitation commences on the date of the final 

administrative decision. (Hensler, at p. 22; Sonoma, at p. 1324.)

A final administrative decision includes a denial of an 

administrative appeal of a county’s decision regarding issuance of 

a permit. (See Travis v. County of Santa Cruz (2004) 33 Cal.4th 

757, 764, 767.) Tchejeyan cites no authority to support his 

contention that a clerk’s certification constitutes a “final 

administrative action.”

The statute of limitation commenced on January 14.

Because Tchejeyan served the amended petition on the 92nd day, 

his action was time-barred. (§ 65009, subd. (c)(1)(E).) 2

2 Tchejeyan also argues that he was prejudiced by the trial 

court’s error because it deprived him of the opportunity to name 
9

Code of Civil Procedure section 473

Tchejeyan contends the trial court erred when it 

denied relief pursuant to Code of Civil Procedure section 473. 

This contention lacks merit.

Code of Civil Procedure section 473, subdivision (b)

allows a trial court to set aside a decision procured by “mistake, 

inadvertence, surprise, or excusable neglect.” We review a trial 

court’s decision for abuse of discretion. (Estate of Carter (2003) 

111 Cal.App.4th 1139, 1154.)

The trial court did not abuse its discretion. Relief 

under Code of Civil Procedure section 473, subdivision (b), is 

generally unavailable when the Legislature has made the 

limitations period mandatory. (See Alliance for Protection of

Auburn Community Environment v. County of Placer (2013) 215 

Cal.App.4th 25, 31-32; Kupka v. Board of Administration (1981) 

122 Cal.App.3d 791, 794-795 [“Statutes of limitation ‘“are, of 

necessity, adamant rather than flexible in nature,”’ and are 

‘“upheld and enforced regardless of personal hardship.”’

[Citation.] When the Legislature has decided to introduce an 

element of flexibility in a particular instance, it has expressly 

provided for extension of the limitation period on a showing of 

good cause, and courts have interpreted the ‘good cause’ standard 

as equivalent to a showing under section 473. [Citation.] In the 

absence of such a specific provision for extension, it must be 

inferred the Legislature did not intend to permit relief on 

grounds of good cause or under section 473. [Citation.]”].) 

Verizon Wireless in the action. Because we conclude there was 

no error, we need not decide this issue. 
10

Because Tchejeyan did not meet the 90-day deadline, the court 

did not abuse its discretion when it denied his motion.

DISPOSITION

The judgment is affirmed. Respondent shall recover 

costs on appeal.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
Mark S. Borrell, Judge

Superior Court County of Ventura

______________________________

Kirtland & Packard, Michael Louis Kelly and Connor 

M. Karen for Plaintiff and Appellant. 

Tracy Noonan, City Attorney, David S. Womack, 

Assistant City Attorney; Gatzke Dillon & Ballance, Kevin P. 

Sullivan and Yana L. Ridge for Defendant and Respondent.