Filed 12/27/23 Calexico Unified School Dist. v. City of Calexico CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CALEXICO UNIFIED SCHOOL DISTRICT,
Plaintiff and Appellant,

v. CITY OF CALEXICO,
Defendant and Respondent. D080686

(Super. Ct. No. ECU001685)

APPEAL from a judgment of the Superior Court of Imperial County,
L. Brooks Anderholt, Judge. Affirmed. Dannis Woliver Kelley, Samuel R. Santana, Karina K. Samaniego and Luke L. Punnakanta for Plaintiff and Ap pellant. Tao Rossini and Barry Nutovic for Coalition of Adequate School Housing as Amicus Curiae on behalf of Plaintiff and Appellant. Best Best & Krieger, Carlos L. Campos and Matthew L. Green for Defend a nt and Respondent.2 INTRODUCTION
B etween 2017 and 2020, the City of Calexico (the City) issued over 2 00 building permits before obtaining certification that school impact fees had been paid to the Calexico Unified School District (the District) , as required by
Education Code 1 section 17620, subdivision (b) (section 17620(b))

. T he
District contends t his means that a large number of developers and property owners never paid fees they owed the District

. It estimates Calexico ’s public
schools were deprived of nearly $1 million i n fees that were critical to its
abilit y to provide facilities for new students brought by new development

. The central question presented by this appeal is whether the District

may recover those unpaid school impact fees from the City under Government Code section 815.6 , under which a public entity may be held liable for an “injury” proximately resulting from its failure to discharge a mandatory duty

. We conclude the answer is no. U nder Aubry v. Tri

- City Hospital Dist. (1992) 2 Cal.4th 962, 968 (

Aubry ), an actionable injury must be to the kind of
interest that ha s been protected in the courts “ ‘ in actions between private

persons .’ ” Because school impact fees are an entirely government creation,

n o private plaintiff could bring a suit agai nst a private defendant to recover
such unpaid fees. A lthough we recognize unpaid school impact fees harm school districts, and ultimately public

- school students, we are constrained by Aubry to hold the City cannot be held liable for this injury under Government Code section 815.6. W e affirm the trial court’s judgment in favor of the City as to the District’s petition for writ of mandate and complaint for damages.

1 All further undesignated statutory references are to the Education Code.3 FACTUAL AND PROCEDURAL BACKGROUND
I. Overview of School Impact Fees
W e begin with a discussion of the statutory framework that governs school impact fees to provide context

. The current system of financing public school facilities in California is accomplished through statewide bonds, local bonds , and school impact fees, with “all playing an important role in school facility finance.” (Eric J. Brunner and Jeffrey M. Vincent, Financing School Facilities in California: A
10

- Year Perspective (Sept. 2018), p. iii.) Historically, however, s chool
districts “ ‘financed the con struction and maintenance of school facilities mainly through the issuance of local bonds repaid from real property tax es

. ’ ” ( Grupe Development Co. v. Superior Court (1993) 4 Cal.4th 911, 916 ( Grupe ), quoting Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 881 .)
I n the early 1970s, resistance to rising property taxes made it more difficult for local governments to obtain voter approval of bond issues to finance school facilities . ( Grupe , supra , 4 Cal.4th at p. 916. ) At the same time, “ ‘[ a ] wave of residential development ’ ” contributed to the funding problem by “ ‘ causing serious overcrowding in local schools. ’ ” ( Ibid. ) To

“ ‘ keep pace with the continuing influx of new students, local governments began the practice of imposing [school impact] fees on developers to cover the costs of new school facilities made necessary by the new housing. ’ ” ( Ibid. ) Although the practice was generally deemed a valid exercise of the police power under California ’s Constitution , t he Legislature enacted the School Facilities Act in 1977 to grant cities and counties the specific authority

to levy school impact fees

. ( Stats. 1977, ch. 955, § 1, pp. 2902

– 2905; Grup e ,4

supra , 4 Cal.4th at p. 916 .) In 1986, the School Facilities Act was

“ ‘ substantially revised and expanded , ’ ” in part, to expressly authorize school districts themselves, rather than city councils or county boards of supervisors , to impose such fees. ( Grupe , at p. 917.)
T he authority of school districts to levy school impact fees on new development is codified at section 17620 , s ubdivision (a) , which provides :

“ T he governing board of any school district is authorized to levy, a fee

. . . against any construction within the boundaries of the district, for the purpose of funding the construction or reconstruction of school facilities .” ( § 17620, subd. (a).) The fee may be imposed against “ new commercial and industrial construction” ; “new residential construction” ; “other residential construction” that increases “assessable space” by more than 500 square feet ; and the “ location, installation, or occupancy of manufactured homes and
mobilehome s

. ” ( § 17620, subd. (a)(1)(A)

– ( D )

. ) The amount of the fee that may be imposed is limited by Government Code sections 65995 through 65998. ( Ed. Code, § 17620, subd. (a).) These
statutes create three distinct tiers of school impact fees.
Level 1 fees are the statutory maximum that may be charged per square foo t ; they are adjusted biannual ly for inflation by the State Allocation
Board

. 2 (Gov. Code, § 65995 , subd. (b)(1)

– (3).) Level 2 fees , which can be charged only on residential development, a re an alternative fee per square

2 Currently, $ 4.79 per square f oo t of assessable space may be imposed on residential construction and $0. 78 per square foot on any commercial or industrial construction . ( California Department of General Services, Annual Adjustment to SFP Grants and Developer Fee History
< https://www.dgs.ca.gov/OPSC/Resources/Page

- Content/ Office

- of

- Public

School

- Construction

- Resources

- List

- Folder/Annual

- Adjustment

- to

- SFP

Grants

- and

- Developer

- Fee

- History > [as of Dec. 27 , 2023]. )5

foot that may be imposed by a school district that needs to house additional
students

. ( Id. , § 65995.5, subd s

. (a), (b)(2)

. ) To impose Level 2 fees, school districts must conduct and adopt a “school facility needs analysi s” ( i d. , § 65995.5, subd. (b)(2) ) “to determine the need for new school facilities for
unhouse d [ 3 ] pupils that are attributable to projected enrollment growth from the development of new residential units over the next five years” ( id ., § 65995. 6 , subd. ( a ))

. School districts eligible to impose Level 2 fees can impose higher Level 3 fees if the State Allocat ion Board determines it “is no longer approving apportionments for new construction

. . . due to a lack of funds available.” ( Id. , § 6599 5 .7, subds. (a) & (b).) To adopt a school impact fee, school districts must “determine how
there is a reasonable rela tionship between the amount of the fee and the cost of the public facility

. . . attributable to the development on which the fee is imposed.” (Gov. Code, § 66001, subd. (b) [made applicable by Ed. Code, § 17621, subd. (a)].) And they m ust impose s uch fees by resolution and only after a public hearing. ( Ed. Code, § 17621, subd. (a); Gov. Code, §§ 66004, 66018, subd. (a).)
The c ollection of school impact fees from developers or property owners may be done in one of two ways. The school district and the appropriate city or county may enter into a contractual agreement by which the city or county
collects the fees on the school district’s behalf. (§ 1762 0 , subd. (a)(4).) If
there is no agreement , the school district collects the fees. B ut t o ensure payment is made to the school district , the city or county that oversee s the

3 T he District explains an unhoused student is a student who does not have a seat within District facilities, meaning the student may learn in a classroom with overloaded capacity, or in nontraditional facilities like portable classroom trailers.6

development must obtain the school district’s certification that the school
district has been paid or is not owed fees before issuing any building permit. (§ 17620, subd. (b).) This certification requirement in turn require s the school district to notify “each city and each county in which the district is situated ” whenever it adopts or increases a school impact fee. (§ 17621, subd. (c).) S ection 17621 , subdivis ion (c) (section 17621(c)) , specifies that t he school district’s notice “shall” include “a copy of the resolution ” adopting or increasing the school impact fee, “accompanied by all relevant supporting documentation and a map clearly indicating the boundari es of the area subject to the fee.” Upon the required notification , the affected city or county “shall not issue a building permit for any construction absent certification by the appropriate school district” that the developer or property owner has paid or does not owe school impact fees to the school district . ( § 17620, subds. (b) & (d).)
II. Unpaid School Impact Fees in Calexico
The District serves Calexico with 1 1 schools and approximately 8, 547
students. 4 According to its 2021 school facility needs analysis , the District estimated the cost to provide school facilities for each of its student s in grades
K

– 6, 7

– 8, and 9

– 12 w as $34,94 6 , $38,590, $38,682, respectively. In that year , the District had 470 unhoused students within its facili ties and “no funds dedicated to school facilities necessitated by future construction and development. ”

4 Calexico Unified School District, Points of Pride
< https://www.cusdk12.org/index.html > [ as of Dec. 27 , 2023].7

T he District does not have an agreement for the City to administer the collection of school impact fees on the District’s behalf. Thus the City would have been required to obtain certification from the District that it was paid or
was not owed fees on a pa rticular development project before the City could
issu e a building permit. (See Section I, infra .) In the fall of 2020 , the District
learned that b etween 2017 and 2020, the City had issued a total of 256 building permits (33 in 2017, 58 in 2018, 100 in 2019, and 65 in 2020)

. T he City , however, only received certification that fee s were paid to the District for 43 of those building permits (3 in 2017, 13 in 2018, 15 in 2019, and 12 in 2020). The District contends this mean s that , during those years , the City issued 213 building permits before the District received payment of school impact fees from the property owner or developer , or determined that no fees
were owed

. This lawsuit followed. T he District sued the City to recover what it
estimates to b e approximately $1 million of unpaid school impact fees

. In its operative petition for writ of mandate and complaint for damages , the
District asserted three causes of action : (1 ) Under Code of Civil Procedure section 1085, t he District sought a writ of mandate directing the City to comply with section 17620(b) , and to pay the District the unpaid school impact fees as retrospective relief

. (2) T he District asserted the City
breached its mandatory duty under section 17620(b) , and sought damages under G overnment Code section 815.6

. (3) T he District sought declaratory relief under Code of Civil Procedure section 1060

. T he City answered and asserted numerous affirmative defenses

. In particular , t he City asserted the District ’s petition was barred by section 17620, subdivision (d), because the District failed to comply with the notice requirements under section 17621(c). Specifically, the District had not8

provided the City with a copy of the resolutions adopting or increasing school impact fees, “ ‘accompanied by all relevant supporting documentation and a map clearly indicating the boundaries of the area subject to the fee.’ ” As a result, the City argue d , it was under no mandatory duty imposed by section 17620(b). The Ci ty also filed a cross

- complaint for equitable indemnity and contribution from 330 property owners and developers that had failed to pay school impact fees to the District

. 5 Finding “the addition of these numerous parties may be unnecessary following a tr ial on the issue of liability,” the District and the City agreed to bifurcate the issues of liability and damages.
T he y tried first the issue of liability , “on the papers [and] without [ any ] live testimony.”
T he trial court ruled in favor of the City on liability

. The court found
the District ’s c ause of action under Government Code section 815.6 failed for

two reason s: (1) T he injury asserted by the District

⎯ “unpaid developer fees”

⎯ was not the kind of injury that would allow recovery of damages against a public entity under Government Code section 815.6. (2) T he City had no mandatory duty under section 17620(b) to obtain certification from
the District before issuing any building permit because the District failed to “provide [the City with] all of the statutorily required documents and information” under section 17621(c). Last , the court rejected the District ’s request for writ of mandate as moot, finding that “the City is currently in compliance with the requirements of the Education Code and has been in compliance since 2020.” The court did not address the District ’s third cause

5 The City originally sued Roes 1 through 400. It subsequently amended its cross

- complaint to name 330 individual “building permit applicants.”9

of action for declaratory relief , but it denied the District ’s petition in its entirety. DISCUSSION
I. Second Cause of Action for Damages Under Government Code Section 815.6
T he District appeals, asserting the trial court erroneously ruled in favor of the City on all three causes of action. We begin our discussion with the District’s second cause of actio n for damages under Government Code
section 815.6. A. Mandatory Duty Liability Under Government Code Section 815.6 Except as otherwise provided by statute , “ [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity[.] ” (Gov. Code, § 815, subd. (a).) Government Code section 815.6 is one of the statutory exceptions to this rule of governmental immunity. It provides: “ Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligen ce to discharge the duty. ” (Gov. Code, § 815.6 .) An “enactment” is defined as “a constitutional provision, statute, charter provision, ordinance or regulation.” (Gov. Code, § 810.6.) Application of Government Code “ ‘ section 815.6 requires that the
enactment at issue be obligatory , rather than merely discretionary or permissive, in its directions to the public entity; it must require , rather than merely authorize or permit, that a particular action be taken or not taken. [Citation.] It is not enough, moreover, that the public entity or officer have10

been under an obligation to perform a function if the function itself involves
the exercise of discretion. ’ ” ( Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898 ( Guzman )

. ) Courts construe this requirement “ rather strictly, finding a mandatory duty only if the enactment ‘ affirmatively imposes the duty and provides implementing guidelines. ’ ” ( Ibid. ; see Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1240 ( Clausing ) [“If rules and guidelines for the implementation of an alleged mandatory duty are not set forth in an otherwise prohibitory statute, it c annot create a mandatory duty.”].) “[E]qually important, [Government Code] section 815.6 requires that the mandatory duty be ‘designed’ to protect against the particular kind of injury the plaintiff suffered. The plaintiff must show the injury is ‘ “one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty.” ’ ” ( Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499 ( Haggis ).) Last , the breach of the duty must have been a proximate cause of t he plaintiff’s injury. ( Guzman , supra , 46 Cal.4th at p. 898.) “The question of whether an enactment is intended to impose a mandatory duty on a public entity to protect against a particular kind of injury is a question of law” ( Clausing , supra , 221 Cal.Ap p.3d at p. 1239), which we review de novo ( Haggis , at p. 499).
B. Section 17620(b) Imposes a Mandatory Duty u pon t he City to Ensure the District Received Payment of School Impact Fees Before Issuing Build ing Permits The parties agree section 17620(b) impos es a mandatory duty upon the City to obtain certification that the District has been paid or is not owed school impact fees before issuing a building permit ; a nd that duty is contingent on the D istrict providing the C ity with “noti fication ” of the fee adoption or increase “ in accordance with ” s ection 17621 (c) (§ 17620, subd.11

( d )) , which specifies that “the school district shall transmit a copy of the resolution to each city and each county in which the district is situated, accompanied by all relevant s upporting documentation and a map clearly
indicat ing the boundaries of the area subject to the fee[.]” Wh ere they disagree is whether the D istrict can satisfy section 17621(c)’s notice requirements with substantial or strict compliance.
T he answer depe nds on whether section 17621(c) ’s notice requirements
have “mandatory” or “directory” effect. ( See Downtown Palo Alto Com. for Fair Assessment v. City Council (1986) 180 Cal.App.3d 384, 394 ( Palo Alto ) .) It is important to note t he distinction between mandatory and directory effect differs from the question of whether a duty is mandatory under Government Code section 815.6. ( Morris v. County of Marin (1977) 18 Cal.3d 901, 908 ( Morris ) [ “ ‘mandatory duty’ terminology of [Government Code] section 8 15.6 [is] entirely distinct and unrelated” to the “ legal doctrine pertaining to ‘directory’ or ‘mandatory’ provisions”]

. ) As used in Government Code section 815.6, “ the term ‘mandatory’ refers to an obligatory duty which a governmental entity is require d to perform, as opposed to a permissive power which a governmental entity may exercise or not as it chooses. By contrast,

t he ‘directory’ or ‘mandatory’ designation does not refer to whether a particular statutory requirement is ‘ permissive ’ or ‘ obligato ry, ’ but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates .” ( Morris , at p. 90 8

. ) Although b oth directory and mandatory provisions contain obligatory requirements , “ [i] t is only where statutory requirements are accorded ‘mandatory’ rather than ‘directory’ effect that failure to comply with a particular step” will invalidate the governmental action to which the12

procedural requirement relates

. ( Palo Alto , supra , 180 Cal.App.3d at

pp. 394

– 395 ; Morris , supra , 18 Cal.3d at pp. 908

− 909 .) In other words, strict compliance with procedural requirements is required for provision s with mandatory effect , whereas substantial compliance will suffice for provisions
with directory effect

. ( Palo Alto , at pp. 394

– 395; Morris , at pp. 908

− 909 .) As our high court has explained, “there is no simple, mechanical test for determining whether a provision should be given ‘directory’ or ‘mandatory ’ effect. ‘In order to determine whether a particular statutory provision . . . is mandatory or directory, the court, as in all cases of statutory construction
and interpretation , must ascertain the legislati ve intent. I n the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular a ct at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose. ’ ” ( Morris , supra , 18 Cal.3d

at p p. 909

− 910.) “The paramount consideration i s the objective of the statute” ( Palo Alto , supra , 180 Cal.App.3d at p. 395) , a nd “ [u] nless the intent of the statute can only be served by demanding strict compliance with its

terms , substantial compliance is the governing test ” ( i d. at pp. 394

– 395 )

. This is a question we review de novo. ( Ibid. ; Warmington Old Town Associates v. Tustin Unified School Dist. (2002) 101 Cal.App.4th 840, 849 [reviewing statutory interpretation de novo] .) The parties offer differing views of what the Legisla ture intended with the notice requirements of section 17621(c) . The District asserts the notice requirements were meant “to provide planning agencies with notice of school districts’ fee rates.” I t further contends this notice provision “serves more of a13

purpose ” where a city or county and a non

- unified school district have taken the optional step under section 17620, subdivision (a)(4), of entering into an agreement for the city or county to collect school impact fees on the school district’s behalf

. “In that case, the c ity [ or county] would need to know the rates a specific district is charging because the c ity [ or county] is the party analyzing the permit and calculating the fees.” But w here, as here, there is

no s uch agreement, the District contends the C ity need not even be made

aware of the applicable fee rates. The District points to the deposition testimony of the City’s person most knowledgeable, who testified “[t]he rate of what’s being charged should not im pact [ the City ’s] compliance” with section 17620(b) to withhold issuance of building permits until it obtains certification that fees have been paid or are not owed. The District further argues that , despite the notice provision requiring
transmission o f a boundary map showing the area subject to the school impact fee, a map serves no purpose in a unified district such as Calexico ’s where the District is the only school district within the City. Thus, in the District’s view, transmitting just enough information to allow the city and county to know whether they need to receive certification of payment of school impact fees before iss uing a particular building permit satisfies the Legislature’s objective in enacting section 17621(c)’s notice requirements. They therefore have directory effect and may be satisfied with substantial compliance. The City, on the other hand, contends secti on 17621(c) “is not a mere notice provision.” Rather, the notice requirements are meant to provide cities and counties with the information necessary to assess whether to challenge the adoption of a new or increased school impact fee. Without the resolut ion
and fees study, the City argues it cannot make that assessment. The City14

states it has only a 120

- day period to challenge new school impact fees under Government Code section 66022, subdivision (a) , and “coupled with the significant impact that develo per fees may have on cities and counties, it
makes sense that the Legislature placed the onus on school districts to provide cities and counties with the materials justifying the fees.” I n the City’s view, school districts must strictly comply with the no tice requirements.
T he District has the better argument. We disagree with the City that the Legislature intended for the notice requirements to serve the objective of providing information necessary for cities and counties to assess whether to challenge new school impact fees. The challenge provision identified by the City

— Government Code section 66022

— does not apply to school impact
fees. 6 Government Code section 66022 is part of the Mitigation Fee Act, which was passed by the Legislature “ ‘ “ in resp onse to concerns among developers that local agencies were imposing development fees for purposes unrelated to development projects. ” ’ ” ( Barratt American Inc. v. City of Rancho Cucamonga (2005) 37 Cal.4th 685, 691 .) The Mitigation Fee Act provides specific ways for developers to challenge develop ment fees. But

s ubdivision (c) of Government Code section 66022 expressly states : “This
section shall apply only to fees, capacity charges, and service charges
described in and subject to Section s 66013, 66014, and 66016.” Government Code s ection 66013 covers water and sewer connection fees. Government

6 We note that amici curiae in Western/California, Ltd. v. Dry Creek Joint Elementary School Dist. (1996) 50 Cal.App.4th 1461 , 1475, f ootnote 12 ( Dry Creek ) argued that Government Code section 66022 does not apply to school impact fees. But the court did not decide the issue and instead “assume[d] for the sake of argument that [Government Code] section 66022 applies to the type of developer fees at issue.” ( Ibid. )15

Code s ection 66014 covers zoning and permit fees. Neither applies to school impact fees. ( Barratt American Inc. , at p. 69 1 [noting these fees or charges do not relate to a development project ] .) Government Code s ection 66016 is similarly inapplicable. It applies “only to fees and charges” in a number of sections that do not cover school impact fees. 7 (Gov. Code, § 66016, subd. (d).) Contrary to the City’s argument , Government Code section 66022 does not authorize cities and counties to challenge school impact fees. 8 The City identifies no other provision under which it could affirmatively challenge a school impact fee imposed by the District. Nor has

7 Those sections include Government Code s ections 51287 (recovery of costs from cancellation of land contracts) , 56383 (fees and service charges imposed by local agency formation commissions) , 65104 (fees to support a planning agency) , 65456 (land use plan fees) , 65584.1 (fees for distributing regional housing needs) , 65863.7 (fees for closing mobile home parks) , 65909.5 (fees for use permits and zone variances) , 66013 (water and sewer connection fees) , 66014 (zoning and permit fees) , and 66451.2 (fees for processing parcel maps); Health and Safety Code s ections 17951 (building permit and enforcement fees) , 19132.3 (buildi ng permit application fees) , and 19852 (building record fees); Public Resources Code s ection 41901 (waste management fees); and Public Utilities Code s ection 21671.5 (airport land use commission fees).

8 The precursor to Government Code section 66022 ena cted in 1982 contained essentially the same language as current Government Code section 66022, except that it did not contain the restriction in current subdivision (c) regarding which fees may be challenged. (Compare Stats. 1982, ch. 289, § 5, pp. 929

– 93 0, with Gov. Code, § 66022.) The first version of the restriction in current subdivision (c) was not enacted until 1990. (Stats. 1990, ch. 1572, § 22, pp. 7505

– 7506 .) Thus there was no such restriction when the Legislature enacted the school impact fee notice requirements in 1989. (See Stats. 1989, ch. 1209, §§ 19

– 20, pp. 4693

– 4694.) To the extent cities and counties were able to challenge school impact fees under the precursor to Government Code section 66022 , the current statute forecloses th at possi bility.16

our research revealed any such provision. Education Code s ection 17621, subdivision (d), allows “[a]ny party on whom” a school impact fee “has been directly imposed” to “protest the establishment or imposition” of that sc hool impact fee under Government Code section 66020. (Italics added.) But cities and counties issuing building permits cannot challenge school impact fees under this provision, as such fees are not “directly imposed” on them, but rather on developers and property owners. ( Ed. Code, § 17621, subd. (d).) Moreover, we have not succeeded in locating any case (published or unpublished) in which a city or county has challenged a school district’s imposition of a school impact fee. We are thus unpersuaded by the City’s contention that the objective of section 17621(c)’s notice requirements is to provide cities and counties with information necessary to assess whether to challenge school impact fees. It makes more sense, as the Distr ict argues, that the objective of section 17621( c)’s notice requirements is to inform cities and counties whether they need to receive certification of payment of school impact fees before issuing building permits. This objective finds support in the legi slative history of the 1986 bill that revised and expanded the School Facilities Act to g ive school
districts direct authority to levy school impact fees . As our high court noted
in Grupe , supra , 4 Cal.4th at pages 917

− 918 : “Dispelling any doubt as to it s intent, the Legislature declared in the [enacting] bill that in many parts of California real property development was causing serious overcrowding in schools that traditional public financing was inadequate to relieve, and ‘[f]or these reasons, a compre hensive school facilities finance program based upon a partnership of state and local governments and the private sector is required to ensure the availability of school facilities to serve the population growth generated by new development.’ (Stats. 1986 , ch. 887, § 7, subd. (d),17

p. 3080.)” (Italics added.) That partnership is served by imposing a gatekeeping role on cities and counties to ensure school impact fees are paid
to school districts through the ir certification obligations

. The structure of sections 17620 and 17621 supports the objective advanced by the D istrict. In isolation, section 17621(c) has no connection to the issuance of building permits. It only requires school districts to provide notice of adopted or increased s chool impact fees. (§ 17621, subd. (c).) However, as we have already explained, section 17620, subdivision (d), makes the duty of cities and counties under section 17620(b) contingent upon notice under section 17621(c). This indicates the Legislature co nsidered the required notice to be necessary for cities and counties to perform their duty under section 17620(b) . Common sense explains this necessity : if a city or county does not know a school district has adopted or increased school impact fees, it c annot know whether to condition the issuance of building permits on the receipt of certification that such fees have been paid or are not owed. We conclude section 17621(c)’s notice requirements are intended to inform cities and counties whether they ne ed to obtain certification from
school districts that school impact fee s have been paid, or are not owed, before issuing building permits

. Because t he objective of the notice requirements may be achieved without the exact transmission of information speci fied in section 17621(c) , we conclude they have directory effect and substantial compliance is the governing test

. ( Palo Alto , supra , at 180 Cal.App.3d at p. 395

. ) For example, “a map clearly indicating the boundaries of the area subject to the [school impact] fee” does not provide any necessary information in a case like the present one, where the City only has a single school district. (§ 17621, subd. (c).) In addition, although section 17621(c) requires18

transmission of a copy of the adopting resolu tion, a document providing the
relevant information from the resolution would deviate from the notice requirements only in form, without hindering their objective. Such relevant information may include the effective date of the school impact fees and the rates imposed

— in other words, whatever is necessary for the city or county to determine whether it must receive certification of payment of school impact fees before issuing a building permit. The exact rates imposed may also not even be relevant, except where the city or county has agreed to help the school district collect the school impact fees under section 17620, subdivision (a)(4). Transmission of the relevant information in a letter or some other document, rather than the resolution itself, does no t undermine the objective of the notice requirements. The legislative history supports our conclusion . A report by the Assembly Committee on Education on the bill that enacted the precursor to section 17621(c) stated that the notice provision “[r]equires districts, upon adoption of fees, to notify the appropriate city or county and to provide maps
and su pporting documentation, as necessary .” (Assem. Com. on Education, Rep. on Assem. Bill No. 181 (1988

– 1989 Reg. Sess.) Feb. 7, 1989, p. 5, italics added.) A later report on the same bill similarly stated the notice provision requires school districts “to p rovide any necessary maps and supporting documentation.” (Concurrence in Sen. Amendments, Rep. on Assem Bill No. 181 (1988

– 1989 Reg. Sess.) as amended Sept. 13, 1989, p. 6, italics added.) The “necessary” qualifier in each of these descriptions of the no tice provision, while not included in the statutory text, indicates the Legislature did not intend for the notice requirements to be strictly applied. Last, w e find Dry Creek to be persuasive authority that section 17621(c)’s notice requirements have dire ctory effect

. In Dry Creek , a group of19

developers sought refunds of school impact fees in a mandamus action under Code of Civil Procedure section 1085 . ( Dry Creek, supra, 50 Cal.App.4th at pp. 1467

– 1468.) They argued the fees exceeded a statutory restri ction on development fees and requirements when added to the existing Mello

- Roos

taxes

. The trial court agreed and directed issuance of a peremptory writ of mandate commanding the school district to refund the fees paid by the developers. ( Id. at p. 1468 .) T he school district appealed. T he Court of Appeal reversed the judgment , concluding the developers were not entitled to a refund because Mello

- Roos taxes are not a factor in the statutory cap on school impact fees and requirements. ( Id. at pp. 1468

− 1469.) These issues, of course, are not relevant to this appeal. Relevant here, t he developers filed a protective cross

- appeal, asserting the judgment may be affirmed on the alternative ground the trial court erred in rejecting the ir claim that the school district was prohibited from collecting school impact fees because it had failed to give appropriate notice to the county , as required by the precursor to section 17621(c). ( Dry Creek , supra , 50 Cal.App.4th at p p

. 1468

− 1469, 1497.) Former Government Code section
53080.1 , subdivision (c) , t he precursor to section 17621(c) , also required the school district to transmit a copy of the resolution, supporting documentation,
and a boundary map to the county. 9 ( Dry Creek , at p. 1497.) And like here , t he school district “merely informed ” the county of its decision adopting the fee “in correspondence stating the documents were available upon request , ”
but it had not transmitted the resolution, supporting documentation, or boundary map. ( Ibid. ) The developers argued the notice requirements were

9 Education Code s ection 17621 rep l aced Government Code section 53080.1. (Stats. 1996, ch. 277, §§ 3, 8, pp. 2182

− 2184, 2219. )20

“intended for the protection of citizens” and should be accorded mandatory, not directory, effect , and thus the school district’s failure to strictly comply with the provision invalidated the imposition of fees. ( Id . at p. 1498.) That argument was rejected by the Dry Creek court

. ( Dry Creek , supra , 50 Cal.App.4th at p p . 1469 , 1491 .) The court explained that “provisions enacted to secure the orderly conduct of business (as opposed to provisions enacted for the benefit of the individual) are directory.” ( Id

. at p. 1499 [citing Ryan v. Byram ( 1935) 4 Cal.2d 596, 603 ].) Construing Government Code section 53080.1, the court found that “the only effect of noncompliance [with the notice requirements] indicated in the statutes is that the county may be excused from any obligations regarding the fee ,” namely the requirement that the county receive certification of fee payment before issuing a building permit. ( Dry Creek , at p. 1499

. ) Based on this, the court concluded the notice requirements were not designed to benefit individuals, such as the
dev elopers, and instead the y “secure [ ] the orderly conduct of business.” ( Ibid. ) This gave them directory effect. As the District acknowledges, the issue in Dry Creek (whether a school district’s failure to comply with the notice requirements excused deve lopers from having to pay school impact fees) is not the exact issue here (whether a school district’s failure to comply with the notice requirements excuses a city from having to ensure payment of school impact fees before issuing building permits). Still, t he underlying question

⎯ whether the notice requirements have mandatory or directory effect

⎯ is the same. We see no reason , and the21

City provides none, 10 why the same procedural requirements would be afforded directory effect in one setting but mandatory effect in another.
Because we conclude section 17621(c) has directory effect , substantial compliance with its notice requirements is the governing test

. We ne xt turn to whether the District did substantially compl y with the notice requirements

necessary to trigger the City’s mandatory duty under section 17620(b)

. We conclude it did.

“ Substantial compliance

. . . means actual compliance in respect to the substance essential to every reasonable objective of the statute. But when there is such actual compliance as to all matters of substance then mere technical imperfections of form or variations in mode of expression

. . . sho uld not be given the stature of noncompliance [.]” ( Stasher v. Harger

- Haldeman (1962) 58 Cal.2d 23, 29 .) In other words , “ notice must promote and satisfy the objectives of the law” to qualify as substantial compliance. ( Palo Alto , supra , 180 Cal.App.3d a t p. 396.) Substantial compliance is a question of law that we review de novo, but any underlying factual disputes must be resolved by a fact finder. ( Manderson

- Saleh v. Regents of University of California (2021) 60 Cal.App.5th 674, 706 .) Consistent wit h the objective of section 17621(c), substantial compliance requires notice that informs the city and county whether they
need to receive certification of payment of school impact fees before issuing building permits

. Based on the undisputed facts in this case, the District substantially compl ied

. The record on appeal includes five communications from the District to the City regarding adopted or modified school impact fees

10 Indeed, the City does not discuss Dry Creek in its respondent’s brief, beyond a mention in one sentence that does not discuss Dry Creek ’s analysis of the notice requirements.22

from before or during the alleged 2017

– 2020 damages period : a June 1, 2011 letter ; a June 9, 2014 letter; a July 1, 2017 letter; an October 25, 2019 email; and an October 23, 2020 letter. Only the last of those communications strictly complie d with section 17621(c). However, we conclude the other four communications substantially com plied. The 2011, 2014, and 2017 letters all informed the City that the District had adopted school impact fees and include d the rates and effective dates for the fees. Those letters “advised” the City to “not issue any building permits

to a developer of [ sic ] builder of new residential/commercial developments with [ sic ] the

. . . District’s boundaries unless and until the District has executed a Certificate of Compliance indicating that the developer has paid the [school impact fees], as appl icable.” None of the letters enclosed or attached any documents, but they a ll invited the City to contact the District “[i]f [there were] any questions or comments with respect to this matter.” Despite not enclosing the materials identified in section 17621(c), the 2011, 2014, and 2017 letters all provided information sufficient to notify the City it needed to receive certification from the District of payment of school impact fees before issuing building permits. The C ity did not need to receive
the r esolutions adopting or increasing the school impact fees, as the effective dates of those fees and the corresponding rates were included in the letters. Nor did the City need to receive a boundary map of the District, which is the only school district in the City. T he City does not dispute it had actual knowledge of the school impact fees, as evidenced by it receiving certification of their payment for at least some of the building permits that it issued. As
was the case in Dry Creek , “the [City] receive d notice, though not the supporting documents. The [City] apparently was not troubled by the absence of supporting documentation and proceeded to require from23

developers certification that the fee was paid before permits would be issued”

on at least 43 pr ojects between 2017 and 2020. ( Dry Creek , supra , 50 Cal.App.4th at p. 1499.) Thus, the 2011, 2014, and 2017 letters substantially complied with the notice requirements. As for the 2019 email , it attached “the District’s new certificate of compliance for developer fees.” It also stated that “[e]ffective today, the [D]istrict will begin charging $7.41 cents [ sic ] for new residential development.” Like the 2011, 2014, and 2017 notice letters, the 2019 email informed the City of the revised school impact fee effective date and rate. The attached certificate of compliance stated: “Payment of school impact fees to [the District] is a prerequisite to the issuance of a building permit. Pursuant to [section 17620(b)], the City/County shall not issue a building permit

. . . absent a completed Certificate of Compliance from [the District].” Nothing more was required to let the City know it needed to receive certification from the District that school impact fees had been paid before
iss uing building per mits.
W e conclude the District substantially compl ied with the notice requirements of section 17621(c). Therefore, section 17620(b) imposed a mandatory duty on the City, within the meaning of Government Code section
815.6 , to obtain the required certific ation before issuing building permits. ( Ed. Code, § 17620, subds. (b) & (d).) There is no dispute the City breached that duty by issu ing 213 building permits between 2017 and 2020 without certification that the District had been paid the school impact fe es it was
owed. C. Unpaid Developer Fees Do Not Constitute a n “ Injury ” Within the Meaning of Government Code Section s 815.6 and 810.8

. A public entity’s liability under Government Code “section 815.6 requires that the mandatory duty be ‘designed’ to protect against the24

particular kind of injury the plaintiff suffered. The plaintiff must show the injury is ‘ “one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty.” ’ ” ( Haggis , supra , 22 Cal.4t h at p. 499.) Here, in enacting the School Facilities Act, the Legislature intended for a partnership between school districts and the cities and counties to ensure school impact fees are collected to fund school facilities. That partnership failed in Ca lexico between 2017 and 2020. As a result, Calexico’s public school students ultimately bear the harm from the District not receiving school impact fees it was owed. However, the District cannot recover the unpaid fees from the City. U nder Aubry , supra , 2 Cal.4th 962, unpaid developer fees do not constitute an actionable “ injury ” within the meaning of Government Code sections 815.6 and 810.8. For that reason, we conclude the trial court correctly entered judgment against the District on its
second caus e of action for damages

. At issue in Aubry was the public works laws (Lab. Code, § 1720 et seq.), which impose a variety of duties on public entities awarding contracts for public works that are “designed to help ensure that workers are paid the prevailin g wages” on qualifying projects. ( Aubry , supra , 2 Cal.4th at p. 967.) The Division of Labor Standards Enforcement (DLSE) brought claims against a hospital district (a public entity) asserting the hospital district, “to reduce its construction costs [on a public works project], engaged in activities that ‘were part of an overall scheme’ to ‘circumvent the public works laws.’ ” ( Id

. at p. 96 6 .) The DLSE sought damages consisting of the prevailing wage shortfall and statutory penalties. ( Ibid .) The California Supreme Court
concluded DLSE’s injury was “not of the type” protected by Government Claims Act and thus “Government Code section 815.6 does not authorize an25

action against an awarding body that fails to comply with its responsibilities
under the prevailing wage laws. ” ( Id. at p. 968.)
The Aubry court noted that for the purposes of Government Code section 815.6, “injury is defined as ‘ death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings or estate, of such nature that it would be actionable if inflicted by a private person

. ’ (Gov. Code, § 810.8 , italics
added .)” (

Aubry , supra , 2 Cal.4th at p. 968 .) The Court then quoted California Law Revision Commission c omment to Government Code section 810.8’s definition of “injury,” which states that “ ‘ [t]he purpose of the definition is to make clear that public entities and public employees may be
held liable only for injuries to the kind of interests that have been protected
in the courts in actions between private persons

. ’ (Cal. Law Revision Com. com., Deering’s Ann.Gov.Code, § 810.8 (1982 ed.) p. 125, italics added.) ” ( Aubry , at p. 968 .) Because the DLSE all ege d that as a result of the hospital district’s breach of mandatory duties, “workers were paid less than the prevailing wage while engaged on a public work , ” the Court concluded “[t]his is an injury that could not exist in an action between private person s, and so it is outside the scope of the [Government] Claims Act

. ” ( I d. at p p. 968, 969 ;

s ee City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 867

− 868 [conclud ing a county’s “failure to comply with its statutory duty to correctly allocate and distribute tax revenue to other public entities does not constitute an ‘injury’ within the narrow meaning of [Government Code section] 810.8” because the “wrong plaintiffs com plain of ‘is one which by its very nature could not exist in an action between private persons’ ”] .)
The Aubry c ourt explained the allegedly deficient wages and claim for statutory penalties at issue were “predicated on the involvement of a public26

entity in the transaction.” ( Au bry , supra , 2 Cal.4th at p. 970

. ) And “if the defendant awarding body were not a public entity, no liability for the [ deficient wages or] the penalties would ever arise.” ( I bi d. ) Stated another

way, “if the defendant awarding bo dy were not a public entity, there would be no injury.” ( Id. at pp. 968, 970). Thus, if the hospital district had not been involved, the prevailing wage laws would not have been triggered and there
would be no in

jury . Th is necessity of government involv ement took the injury outside of the scope of Government Code sections 815.6 and 810.8. ( Id. at

pp. 968

– 969 .) Aubry compels the conclusion that the City cannot be held liable for such an injury under Government Code section 815.6

. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 .) The District has failed to identify a private party that could sue Calexico property owners and developers for unpaid school impact fees. It is not enough that the District or the City could sue t hose private property owners and developers. There is no private person that could bring such a suit. School impact fees are an entirely government creation. School districts set them by resolution

. Cities
and counties are required to enforce them by w ithholding building permits until such fees are paid. As in Aubry , w ithout government involvement, no liability to pay such fees would ever arise on the part of private property owners and developers

. Accordingly , the District has not suffered an
actionable injury that would allow a claim for damages under Government
Code section 815.6. 11

11 Although we are bound by Aubry to reach this conclusion, we note b oth the majority and dissent in Aubry quoted the Commission’s comment on Government Code section 8 10.8 ’s definition of injury without much analysis. ( Aubry , supra , 2 Cal.4th at pp. 968, 974.) That comment seems to be in tension with the plain language of Government Code section 810.8, which27

The District attempts to rely on the statement in City of Clovis v. County of Fresno (2014) 222 Cal.App.4th 1469, 1480 that “t he dispute is over the amount of a fee charged by the county, a type of dispute that arguably could arise between private parties.” But Clovis was explicit that it was not in the context of the Government Claims Act and therefore was distinguishable from the construction of “injury” in the context of Government Code section 815.6. ( Clovis , at pp. 1479

– 1480.) Moreover, Clovis did not address school impact fees. ( I d. at p. 1473.) Clovis does not support the District’s claim that such fees could be subjec t to a dispute between private parties. Rather, N.V. Heathorn, Inc. v. County of San Mateo (2005) 126 Cal.App.4th 1526, 1529 is instructive . There , an unpaid subcontractor on a public project had sued the public entity for damages under Government Code s ection 815.6 for failing to obtain a payment bond from the general contractor, as required by statute. The Court of Appeal concluded the injury suffered by the unpaid subcontractor fell within the meaning of Government Code section 810.8, as construed by Aubry . ( Heathorn , at p. 1536.) It based this conclusion on the fact that the payment bond required by statute was the equi valent of a mechanics lien, which can be enforced in actions between private persons. ( Ibid. ) In contrast here, the District has failed to identify an equivalent to school impact fees that could be enforced in an action between private persons. Nor are we aware of any such equivalent.

requires the injury to be “of such nature that it would be a ctionable if inflicted by a private person.” (Italics added.) The statutory language focuses on the identity of the party inflicting the injury and says nothing about the identity of the injured party. In an appropriate case, the California Supreme Cour t may want to revisit its holding in Aubry to address the tension between the Commission’s comment and the statutory language.28

The District and amicus curiae Coalition for Adequate School Housing ( Amicus ) argue that not allowing the District to recover damages from the City under Government Code section 815.6 would effectively sanction the
violati on of section 17620(b). As we have discussed, w e are constrained by Aubry . Moreover, school districts may apply for a writ of mandate (just as the District did here) to direct a city or county to comply with its duty and to seek damages for past violatio ns. (Code Civ. Proc., §§ 1085, subd. (a), 1095.) Although the trial court found the District’s application moot, to the extent a cycle of violations is followed by temporary compliance, court s may issue a prospective writ of mandate on the grounds that t he certification of payment of school impact fees “involves a question of broad public interest, which is likely to recur between the same parties

. ” ( State Bd. of Education v. Honig (1993) 13 Cal.App.4th 720, 742 ( Honig ) .)
The District and Amicus also ar gue that not holding the City liable
under Government Code section 815.6 would leave the District without compensation for past violations of the requirement to pay school impact fees. But the District may still sue the property owners that failed to pay the required fees. Indeed, the City, as part of this case, filed a cross

- complaint to recover the unpaid fees from the property owners in the event the City was held liable. The District may bring a similar complaint. As the Commission noted, if there i s some private person liable for the injury, “it is better public policy to leave the injured person to his remedy against the person actually causing the injury than it is to impose an additional liability on the government for negligently failing to prev ent the injury.” ( Cal. Law Revision Commission, Recommendation Relating to Sovereign Immunity, Number 1

— Tort Liability of Public Entities and Public Employees (Jan. 1963) , pp. 817

– 818.)29 I I

. First Cause of Action for Writ of Mandate
The District contends the trial court erred in finding its request for writ of mandate moot. The District sought a writ of mandate that would include prospective relief (i.e., directing the City to comply with section 17621(b)) and retrospective relief (i.e., directin g the City to pay school impact fees that would have been paid but for the City’s noncompliance with its statutory duty). We conclude substantial evidence supported the court’s finding. A writ of mandate “may be issued

. . . to compel the performance of an act which the law specifically enjoins.” (Code Civ. Proc., § 1085, subd. (a).) It “must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” ( Id. , § 1086.) “If judgment be given for the appl icant [for writ of mandate], the applicant may recover the damages which the appellant has sustained [

. ] ” ( Id. , § 1095.) If the evidence demonstrates that the subject of a requested writ of mandate has a

“ ‘willingness to perform without coercion, the wri t [of mandate] may be denied as unnecessary; and if [it] shows actual compliance, the proceeding will be dismissed as moot.’ ” ( Honig , supra , 13 Cal.App.4th at p. 742 , first alteration in original.) “No purpose would be served in directing the [subject] to do what has already been done.” ( Ibid. ) We review a trial court’s ruling on a request for writ of mandate for

“ ‘ “ substantial, credible and competent evidence. ” ’ ” ( Evans v. Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d 398, 407 .) In doing so, “ we must presume the court found every fact and drew every permissible inference necessary to support its judgment, and defer to its determination of credibility of the witnesses and the weight of the evidence. ” ( Betz v. Pankow (1993) 16 Cal.App.4th 919, 923 .)30

Substantial evidence supported the trial court’s denial of the City’s request for prospective relief. The City submitted the declaration of Lisa Tylenda, the Director of the Development Services Department for the City. Tylenda testified that sinc e she began working for the City in August 2021, she had “worked diligently to ensure that the City is in full compliance with its obligation to obtain the requisite certification from the District before issuing building permits pursuant to Education Code section 17620, subdivision (b).” She also testified she was “unaware of any noncompliance

. . . regarding any building permits issued by the City since [her] arrival in August 2021, let alone any allegations thereof.” In contrast, the District points to no evidence showing the City is not currently in compliance with its obligations under section 17620(b). Indeed, the District’s counsel acknowledged during the hearing that “[t]he evidence in the record, based on the declaration of Ms. Tylenda, is that t hey’re currently

. . . in compliance.” Thus, s ubstantial evidence supported the City’s actual compliance with section 17620(b). T he trial court did not err in den ying as

moot the District’s request for a prospective writ of mandate. ( Honig , supra , 13 Cal.App.4th at p. 742 .) The District contends an exception to mootness applies in this instance because the City is likely to violate its duty under section 17620(b), again. The exception applies “ when a pending case involves a question of broad public interest which is likely to recur between the same parties or others .” ( Honig , supra , 13 Cal.App.4th at p. 742.) T he District bases its argument for

recurrence on alleged noncompliance by the City “for ye ars

. . . since 2020.” But, a s we have already explained, substantial evidence supports the City’s
continued compliance since at least August 202 1. T he District offers no
evidence of recurring noncompliance by the City between 2020 and August31

2021 . Nor does the District present any evidence in support of this issue being likely to recur between any other parties. Our research has not revealed any other instance in which a school district sued a city or county for issuing building permits without certifi cation of payment of school impact fees. Accordingly, substantial evidence supported the trial court’s implicit rejection of the District’s argument for an exception to mootness. As for the requested retrospective relief, it requires that “judgment be gi ven for the applicant.” ( Code Civ. Proc., § 1095.) Courts have construed this to mean that an applicant for writ of mandate must successfully obtain prospective relief before retrospective damages may be awarded. ( County of San Diego v. State of Califor nia (2008) 164 Cal.App.4th 580, 612 [ “I t is proper
to award ‘ a money judgment in a mandamus

. . . proceeding where other grounds for the issuance of a writ of mandate exist. ’ ” ] ; Oracle v. Santa Cruz County Planning Dept. (N.D. Cal. May 15, 2009, No. C 09

- 373 JF (PVT)) 2009 WL 1371461, at p. 5 , fn. 3 [“ Where there is nothing to mandate, mandamus claims are moot, and there can be no mandamus judgment. Plaintiffs ’ suggestion that damages may be recovered through a mandamus c laim that is moot amounts to transparent bootstrapping. ”].) Here, substantial evidence supported the trial court’s denial of a prospective writ of mandate. As a result, the District may not receive damages under Code of Civil Procedure
section 1095.
I II

.

Third Cause of Action for Declaratory Relief The District acknowledges the trial court implicitly ruled against its cause of action for declaratory relief. However, it contends the court erred by not issuing an explicit statement confirming the parties’ respective rights.
T he District misconstrues the authority on which it relies. Savient32

Pharmaceuticals, Inc. v. Department of Health Services (2007) 146 Cal.App.4th 1457, 1464 says nothing about an implicit declaration of the parties’ rights being insuf ficient to dispose of a cause of action for declaratory relief. Moreover, even if Savient had deemed an implicit declaration insufficient, it held that this “procedural point, of itself, provides no basis for reversal.” ( Ibid. ) As we have already explai ned at length the respective rights of the parties under the statutes applicable to school impact fees, we see no reason to provide an additional , duplicative statement under the District’s cause of action for declaratory relief. The trial court did not c ommit reversible error in implicitly ruling against the District on this cause of
action

. DISPOSITION The judgment is affirmed. Each party shall bear its own costs on appeal.

DO, J.

WE CONCUR:

DATO, Acting P. J.

BUCHANAN, J.