Filed 6/7/22 Lance Jay Robbins Paloma Partnership v. City of Los Angeles CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

LANCE JAY ROBBINS PALOMA 

PARTNERSHIP et al.,

 Plaintiffs and Appellants,

v.

CITY OF LOS ANGELES,

 Defendant and Respondent.

 G059744

 (Super. Ct. No. 30-2020-01157399)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Melissa 

R. McCormick, Judge. Affirmed.

Law Offices of Thomas A. Nitti, Thomas A. Nitti and Andrew Kavros for 

Plaintiffs and Appellants.

Michael N. Feuer, City Attorney, Terry Kaufmann Macias, Assistant City 

Attorney, Amy Brothers and Patrick Hagan, Deputy City Attorneys, for Defendant and 

Respondent.

* * *
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INTRODUCTION

In December 2018, the City of Los Angeles (the City) adopted ordinance 

No. 185931 (the Short-term Rental Ordinance) which places restrictions on short-term 

rental units in the City. In June 2019, Lance Jay Robbins Paloma Partnership (Paloma) 

and Lance Robbins brought a petition for writ of mandate (the Petition) alleging the 

Short-term Rental Ordinance was illegal on its face within an area called the Venice 

coastal zone because the City had violated the California Coastal Act of 1976 (the 

Coastal Act) (Pub. Resources Code, § 3000 et seq.) by not first obtaining a coastal 

development permit (CDP).

The issue presented by this appeal is whether the 90-day statute of 

limitations of Government Code section 65009, subdivision (c)(1) (section 65009(c)(1)) 

or the three-year statute of limitations of Code of Civil Procedure section 338, 

subdivision (a) (section 338(a)) governs the Petition. Under section 65009(c)(1)(B), an 

action to “attack, review, set aside, void, or annul the decision of a legislative body to 

adopt or amend a zoning ordinance” must be commenced and served within 90 days 

“after the legislative body’s decision” (§ 65009(c)(1). Code of Civil Procedure section 

338(a) establishes a three-year statute of limitations for “an action upon a liability created 

by statute, other than a penalty or forfeiture.” 

The Petition was filed and served more than 90 days after, but within three 

years of, the date on which the Short-term Rental Ordinance was adopted. Thus, if 

section 65009(c)(1) governs, then the Petition is time-barred; if section 338(a) governs, 

then the Petition was timely filed.

The trial court concluded section 65009(c)(1) governed and sustained 

without leave to amend a demurrer brought by the City. Exercising de novo review, we 

reach the same conclusion: the Petition was an effort to attack, review, set aside, void, or 

annul the City’s decision to pass the Short-term Rental Ordinance and therefore was 

time-barred pursuant to section 65009(c)(1). In so concluding, we agree with Coastal Act 
3

Protectors v. City of Los Angeles (2022) 75 Cal.App.5th 526 (Coastal Act Protectors), an 

opinion from Division Four from the Second Appellate District, which likewise 

concluded a petition challenging the Short-term Rental Ordinance on the ground it was 

adopted in violation of the Coastal Act was time-barred pursuant to section 65009(c)(1).

1

We therefore affirm the judgment of dismissal.

ALLEGATIONS

The Petition has both factual allegations and citations to legal authority. 

We accept as true all facts alleged in the Petition. (Pineda v. Williams-Sonoma Stores, 

Inc. (2011) 51 Cal.4th 524, 528.) 

On December 11, 2018, the City’s council passed the Short-Term Rental 

Ordinance which, according to the Petition, bans all short-term rentals of nonprimary 

residences anywhere in the City.2The Short-term Rental Ordinance went into effect on 

July 1, 2019.

Paloma owns property and Robbins owns a single-family home in the 

Venice coastal zone within the City. The home is not Robbins’s primary residence. Both 

properties are within the coastal zone defined by Public Resources Code section 30103, 

1

 In response to our invitation, the parties submitted letter briefs on the 

effect Coastal Act Protectors may have on this appeal. The letter brief submitted by 

Paloma and Robbins is not limited to that issue but is, in effect, a supplemental brief that 

includes arguments not made in the appellants’ opening brief or the appellants’ reply 

brief. We consider only those parts of the letter brief submitted by Paloma and Robbins 

that address the issue identified in our order for supplemental briefing.

2

 The Petition did not quote or incorporate the Short-term Rental 

Ordinance. Although the allegation that the Short-term Rental Ordinance bans all shortterm rental units in the City appears to be inaccurate (see Coastal Act Protectors, supra, 

75 Cal.App.5th at p. 528), the City does not dispute the ordinance does ban all 

short-rentals of nonprimary residences within the Venice coastal zone.
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which is part of the Coastal Act. Until the Short-term Rental Ordinance became effective 

on July 1, 2019, both properties had been used for short-term rentals. 

Under the Coastal Act, any person “wishing to perform or undertake any 

development in the coastal zone” must obtain a CDP. (Pub. Resources Code, § 30600, 

subd. (a).) The word “‘development’” is defined to include “change in the density or 

intensity of use of land.” (Ibid.) The Petition alleged the Short-term Rental Ordinance 

constitutes a development under the Coastal Act and, “[a]n expansive interpretation of 

‘development’ is consistent with the mandate that the Coastal Act is to be ‘liberally 

construed to accomplish its purposes and objectives.’” (Pacific Palisades Bowl Mobile 

Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 796.)

The California Coastal Commission (the Coastal Commission) is the entity 

primarily responsible for implementing the provisions of the Coastal Act. (Pub. 

Resources Code, § 30330; see Marine Forests Society v. California Coastal Com. (2005) 

36 Cal.4th 1, 20.) The Coastal Commission is responsible for issuing CDP’s unless a 

local government has a certified local coastal program (LCP). The Coastal Act requires 

each local government lying at least in part within the coastal zone to prepare an LCP 

(Pub. Resources Code, § 30500) “designed to promote the [Coastal Act]’s objectives of 

protecting the coastline and its resources and of maximizing public access” (Pacific 

Palisades Bowl Mobile Estates, LLC v. City of Los Angeles, supra, 55 Cal.4th at p. 794).

“Once the California Coastal Commission certifies a local government’s program, and all 

implementing actions become effective, the commission delegates authority over coastal 

development permits to the local government.” (Ibid.)

The Petition alleged the City “failed to adopt an LCP as required by the 

Coastal Act.” As a consequence, a CDP issued by the Coastal Commission would be 

necessary for any development within the City’s coastal zone.

The Petition alleged the Coastal Commission in December 2016 issued a 

policy statement on the regulation of short-term rental units within the coastal zone. The 
5

policy statement, quoted in the Petition, concludes: “‘The regulation of 

short-term/vacation rentals represents a change in the intensity of use and of access to the 

shoreline, and thus constitutes development to which the Coastal Act and LCPs must 

apply. We do not believe that regulation outside of that LCP/CDP context (e.g. outright 

vacation rental bans through other local processes) is legally enforceable in the coastal 

zone, and we strongly encourage your community to pursue vacation rental regulation 

through your LCP. [¶] [T]he Commission has not historically supported blanket vacation 

rental bans under the Coastal Act, and has found such programs in the past not to be 

consistent with the Coastal Act.’” 

The Petition alleged the Short-term Rental Ordinance “violates several 

provisions of law” including the Coastal Act and the Venice Land Use Plan (the Petition 

did not allege what the Venice Land Use Plan is or requires). The Petition alleged the 

Short-term Rental Ordinance is illegal within the Venice coastal zone because a ban on 

short-term rental units constitutes a development under the Coastal Act and “[t]he City 

failed to obtain a CDP prior to passing the [Short-term Rental] Ordinance.” 

PROCEDURAL HISTORY

Paloma and Robbins filed the Petition on June 28, 2019, over six months 

after the City adopted the Short-term Rental Ordinance. The Petition was personally 

served on the City on August 30, 2019. The Petition, originally filed in Los Angeles 

County, was ordered transferred to Orange County. 

The Petition asserted four causes of action: (1) traditional mandate, 

(2) declaratory relief, (3) injunctive relief, and (4) civil fines under the Coastal Act. In 

the first and second causes of action, the Petition alleged the Short-term Rental Ordinance 

is illegal. The third cause of action alleged “[t]he illegality of the City’s [Short-term 

Rental] Ordinance in the Venice coastal zone is clear from the face of the pleadings,” and 
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the fourth cause of action alleged the City “violated the Coastal Act” by adopting the 

Short-term Rental Ordinance. 

The City brought a demurrer to the Petition on the ground it was 

time-barred under the 90-day limitations period of section 65009(c)(1). The City filed a 

request for judicial notice of the text of the Short-term Rental Ordinance and other 

documents related to its adoption. Paloma and Robbins filed opposition and a late-filed

supplemental opposition. In the opposition, and at the hearing on the demurrer, counsel 

for Paloma and Robbins requested leave to amend.

The trial court sustained the demurrer without leave to amend on the 

ground the Petition was time-barred under section 65009(c)(1). The court exercised its 

discretion to consider the supplemental opposition but concluded it did not change the 

court’s analysis. The court denied the City’s request for judicial notice except for the 

proof of service of the Petition. Paloma and Robbins timely appealed from a judgment of 

dismissal. 

DISCUSSION

I. Standard of Review

We independently review a ruling on a demurrer and determine de novo 

whether the pleading alleges facts sufficient to state a cause of action. (McCall v. 

PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) Construing the allegations in a 

reasonable manner, we assume the truth of the properly pleaded factual allegations, facts 

that reasonably can be inferred from those expressly pleaded and matters of which 

judicial notice can and has been taken. (Schifando v. City of Los Angeles (2003) 31 

Cal.4th 1074, 1081.) The determination of which statute of limitations applies to a 

particular cause of action is a legal issue reviewed de novo. (Coastal Act Protectors, 

supra, 75 Cal.App.5th at p. 531.)
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II. The Petition Is Time-barred Under Section 65009(c)(1)

A. Section 65009(c)(1), not Section 338(a), Governs

Mandamus proceedings brought under Code of Civil Procedure section 

1085 are subject to statutes of limitations that are determined “depend[ing] on the right or 

obligation sought to be enforced.” (Howard Jarvis Taxpayers Assn. v. City of La Habra

(2001) 25 Cal.4th 809, 821; see Green v. Obledo (1981) 29 Cal.3d 126, 141, fn. 10.) 

Paloma and Robbins argue the three-year statute of limitation of section 338(a) governs 

the Petition because the right or obligation sought to be enforced was based on the 

Coastal Act; that is, the City violated the Coastal Act by adopting the Short-term Rental 

Ordinance without obtaining a CDP. We reject that argument and conclude the 90-day 

statute of limitations of section 65009(c)(1) controls.

Government Code section 65009 is intended “‘to provide certainty for 

property owners and local governments regarding decisions made pursuant to this 

division’ (§ 65009, subd. (a)(3)) and thus to alleviate the ‘chilling effect on the 

confidence with which property owners and local governments can proceed with 

projects’ [citation] created by potential legal challenges to local planning and zoning 

decisions.” (Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 765 (Travis).)

To effectuate the legislative purpose, section 65009(c)(1) establishes a 

short, 90-day statute of limitations for actions challenging several types of local planning 

and zoning decisions. (Travis, supra, 33 Cal.4th at p. 765.) As relevant here, section 

65009(c)(1) reads: “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: [¶] . . . [¶] (B) To attack, review, set aside, void, or annul the 

decision of a legislative body to adopt or amend a zoning ordinance.” 

(§ 65009(c)(1)(B).)
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Section 338(a) establishes a three-year statute of limitations for “an action 

upon a liability created by statute, other than a penalty or forfeiture.” Section 338(a) 

governs “[a]n action to enforce a statutory obligation.” (Urban Habitat Program v. City 

of Pleasanton (2008) 164 Cal.App.4th 1561, 1578 (Urban Habitat).)

Which statute of limitations governs depends on whether the zoning 

ordinance under challenge was adopted before or after the allegedly conflicting statute. 

“In a facial challenge to a zoning ordinance based on preexisting statutes or the 

Constitution, plaintiffs are limited, under section 65009, subdivision (c)(1)(B), to 90 days 

from the ordinance’s adoption, which is the first time such a challenge could be brought.” 

(Travis, supra, 33 Cal.4th at p. 774, first italics added.) “When the challenge is instead 

based on a later enacted state statute, the limitations period (under Code Civ. Proc., 

§ 338, subd. (a)) also runs, as we hold above, from the first time the challenge could be 

brought, i.e., the initial accrual of the cause of action.” (Ibid., italics added.)

In Travis, the California Supreme Court addressed a facial challenge to a 

county zoning ordinance on the ground it was preempted by later-enacted state statutes. 

The plaintiffs contended section 65009(c)(1) did not apply because their challenge was 

not to the adoption of the ordinance but to the county’s failure to repeal or amend the 

ordinance, and the county’s continued enforcement of it, after the ordinance’s preemption 

by later-enacted state law. (Travis, supra, 33 Cal.4th at pp. 771-772.) The Supreme 

Court agreed and concluded the statute of limitations of section 338(a) applies to a claim 

that an ordinance has been preempted by a later-enacted state law. (Travis, supra, 33 

Cal.4th at pp. 772-773, 776.) The Supreme Court reasoned: “Plaintiffs, in claiming the 

County has breached a duty to bring its zoning code into compliance with later enacted 

state law, are not complaining of the Ordinance’s adoption but of the Board’s failure, 

since the enactment of [the new state laws], to repeal the Ordinance or amend it to 

conform to state law.” (Id. at p. 772.) A challenge to the ordinance based on a conflict 
9

with later-enacted state law could not have been brought withing 90 days of the 

ordinance’s effective date. (Id. at p. 773.)

The Supreme Court clarified its holding by explaining that section 

65009(c)(1) would apply if an ordinance is challenged based on law in existence when 

the ordinance was passed: “Lest our holding be misunderstood . . . we emphasize it 

applies only to claims of preemption by statutes enacted after the Ordinance’s adoption, 

and not to statutory or constitutional provisions already in force at the time the Ordinance 

was adopted. As the constitutional protections against taking of property without just 

compensation [citations] were already in existence when the County adopted the 

Ordinance, a facial attack on the Ordinance as a taking of property would be an action to 

‘attack, review, set aside, void, or annul the decision of a legislative body to adopt . . . a 

zoning ordinance’ (§ 65009, subd. (c)(1)(B)), subject to the 90-day statute of limitations.” 

(Travis, supra, 33 Cal.4th at pp. 772-773, fn. 9.)

Two other opinions illustrate the difference between challenges based on 

preexisting and later-enacted statutes and support our conclusion that section 65009(c)(1) 

governs the Petition. In Urban Habitat, the City of Pleasanton (Pleasanton) adopted a 

“Housing Element,” which was required by California’s Housing Element Law (Gov. 

Code, § 65580 et seq.). (Urban Habitat, supra, 164 Cal.App.4th at p. 1567.) In a 

petition for writ of mandate, a nonprofit corporation challenged Pleasanton’s Housing 

Element on the ground it did not comply with the Housing Element Law. (Id. at 

pp. 1567-1568.) The nonprofit corporation also alleged that local legislation enacted in 

1996 rendered it impossible in 2006 for Pleasanton to comply with state-mandated 

“Regional Housing Needs Allocation” and that Pleasanton’s Housing Element 

discriminated against low-income families with children. (Id. at pp. 1566, 1568-1569.) 

Those allegations were parsed into eight causes of action. (Id. at pp. 1574, 1578-1579.) 

The trial court sustained Pleasanton’s demurrer without leave to amend on the ground 
10

every cause of action was time-barred under either section 338(a) or Government Code 

section 65009. (Urban Habitat, at p. 1570.)

The Court of Appeal affirmed as to the fifth and sixth causes of action and 

otherwise reversed. (Urban Habitat, supra, 164 Cal.App.4th at p. 1567.) Relevant here 

is the court’s discussion of the fourth through eighth causes of action. The fourth cause 

of action alleged Pleasanton failed to carry out the mandatory duties imposed by its own 

Housing Element. (Id. at p. 1578.) The Court of Appeal concluded the fourth cause of 

action was governed by section 338(a) rather than section 65009(c)(1) because “[a] 

failure to comply with duties allegedly imposed by law is neither an ‘action’ nor a 

‘decision’ and, therefore, does not fall under section 65009.” (Urban Habitat, at

p. 1578.) The fifth cause of action, which alleged Pleasanton’s Housing Element did not 

comply with the Housing Element Law, and the sixth cause of action, which alleged 

Pleasanton’s Housing Element violated the Least Cost Zoning Law (Gov. Code, § 65913 

et seq.), were subject to Government Code section 65009, subdivision (d). (Urban 

Habitat, at pp. 1578-1579.) Both the fifth and sixth causes of action alleged Pleasanton’s 

Housing Element was unlawful upon adoption because it violated pre-existing law. 

(Ibid.) The seventh and eighth causes of action, which alleged unlawful housing 

discrimination under the California Fair Employment and Housing Act (Gov. Code,

§ 12900 et seq.), were subject to section 338(a) because those causes of action did not 

arise upon adoption of Pleasanton’s Housing Element but out of later events. (Urban 

Habitat, at pp. 1579-1580.) 

In 1305 Ingraham, LLC v. City of Los Angeles (2019) 32 Cal.App.5th 1253 

(1305 Ingraham) the appellant brought a petition for writ of mandate challenging a 

project permit compliance review determination on the ground it violated a municipal 

code provision requiring a hearing before the planning commission. (Id. at p. 1255.) The 

trial court sustained a demurrer without leave to amend on the ground the petition was 

time-barred under section 65009(c)(1). (1305 Ingraham, at pp. 1258-1259.) 
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The Court of Appeal agreed with the trial court and affirmed. (1305 

Ingraham, supra, 32 Cal.App.5th at p. 1266.) The Court of Appeal addressed Urban 

Habitat and distinguished the treatment of the fourth cause of action in that opinion on 

the ground it did not involve a “discrete permitting decision” but concerned “a city’s

alleged failure to comply with a law requiring the city to enact zoning regulations by a 

deadline set several years out.” (1305 Ingraham, at p. 1266.) In contrast, in 1305 

Ingraham the appellant’s challenge to the project permit compliance review 

determination was “an effort to ‘attack, review, set aside, void, or annul’ a specific 

determination” and therefore was subject to section 65009(c)(1). (1305 Ingraham, at 

p. 1266.) The Court of Appeal also noted that if section 338(a) were applicable “in a 

broad sense,” section 65009(c)(1) would control nonetheless because it is the more 

specific and shorter statute of limitations. (1305 Ingraham, at p. 1266.)

In Coastal Act Protectors, supra, 75 Cal.App.5th 526, the Court of Appeal 

faced a challenge to the Short-term Rental Ordinance similar to one made by Paloma and 

Robbins. The petitioner in Coastal Act Protectors, like Paloma and Robbins, alleged in a 

petition for writ of mandate the Short-term Rental Ordinance was illegal and 

unenforceable within the Venice coastal zone because the City had failed to obtain a CDP 

before implementing the ordinance. (Id. at p. 530.) Relying on Travis, Urban Habitat, 

and 1305 Ingraham, the court held the petition was subject to the 90-day limitations 

period of section 65009(c)(1). (Coastal Act Protectors, at pp. 531-533.) The Coastal 

Protectors court concluded: “The Coastal Act, including its CDP requirements, predates 

the [Short-term Rental] Ordinance. Thus, even assuming the City had a mandatory duty 

to obtain a CDP for application of the [Short-term Rental] Ordinance to residences within 

the Venice coastal zone . . . that duty existed at the time the City enacted the [Short-term 

Rental] Ordinance. [The] petition, therefore, is an action to ‘attack, review, set aside, 

void, or annul’ the City’s decision to adopt a zoning ordinance applicable to the Venice 

coastal zone without first obtaining a CDP.” (Coastal Act Protectors, at pp. 532-533.)
12

B. The Petition Makes a Facial Challenge to a Zoning Ordinance Based on Preexisting 

Statutes

The Petition was subject to section 65009(c)(1) because it made “a facial 

challenge to a zoning ordinance based on preexisting statutes.” (Travis, supra, 33 Cal.4th 

at p. 774.)3The Petition alleged the City’s Short-term Rental Ordinance is illegal and 

was illegal upon its adoption because the City had not complied with the Coastal Act, 

which predated the ordinance by 42 years. If the City had a duty to obtain a CDP in order 

to adopt the Short-term Rental Ordinance, that duty would have been breached, and the 

ordinance rendered illegal, upon its adoption by the City’s council. (See Coastal Act 

Protectors, supra, 75 Cal.App.5th at p. 533.) Paloma and Robbins alleged the Short-term 

Rental Ordinance was illegal on its adoption, and not due to a subsequent event or 

later-enacted law, and, therefore, their challenge to the ordinance could have been 

brought within 90 days of the date of the City’s decision. (See Travis, supra, 33 Cal.4th

at p. 773.)

Whatever injury Paloma and Robbins might have suffered was due to the 

adoption of the Short-term Rental Ordinance: It was adoption of the Short-term Rental 

Ordinance, not the failure to obtain a CDP, which prohibited Paloma and Robbins from 

using their properties as short-term rental units. The injury complained of — the inability 

to use property for short-term rentals — thus arose “solely from a law’s enactment”

(Travis, supra, 33 Cal.4th at p. 768), with the consequence that Paloma and Robbins had 

90 days from the date of adoption of the Short-term Rental Ordinance to file and serve 

the Petition.

The Petition therefore was an effort to “attack, review, set aside, void, or 

annul the decision” (§ 65009(c)(1)(B)) of the City’s council to adopt the Short-term 

3

Paloma and Robbins’s challenge to the Short-term Rental Ordinance is 

properly characterized as facial because “it ‘considers only the text of the measure itself, 

not its application to the particular circumstances of an individual.’” (Travis, supra, 33 

Cal.4th at p. 767.) 
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Rental Ordinance and was subject to the 90-day limitations period of section 65009(c)(1). 

The Petition could and should have been brought within 90 days of the decision by the 

City’s council to adopt the Short-term Rental Ordinance. The Petition was time-barred 

because it was not filed within that time frame.

C. No Continuous Accrual

Paloma and Robbins argue the Short-term Rental Ordinance, as applied 

within the coastal zone of the City, is “akin to the tort of nuisance, with a continuous and 

recurring nature.”

4

 Interpreting section 65009(c)(1) as subject to continuous accrual for 

zoning decisions would read the 90-day limitations period out of existence. Such an 

interpretation of Government Code section 65009 would therefore violate the principle 

that “‘[a]n interpretation that renders statutory language a nullity is obviously to be 

avoided’” (Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 

Cal.4th 1029, 1039) and thwart the express legislative purpose of “provid[ing] local 

governments with certainty, after a short 90-day period for facial challenges, in the 

validity of their zoning enactments and decisions” (Travis, supra, 33 Cal.4th at p. 774).

D. No Leave to Amend

Paloma and Robbins do not argue the trial court erred by denying them 

leave to amend and do not explain in their appellate briefs how they could have amended 

the Petition to bring it within the 90-day limitations period. We therefore need not 

address whether the trial court abused its discretion by denying leave to amend. 

(Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) 

4

Paloma and Robbins did not present this argument to the trial court. We 

exercise our discretion to address the argument because it raises a pure issue of law. (RN 

Solution, Inc. v. Catholic Healthcare West (2008) 165 Cal.App.4th 1511, 1518.)
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DISPOSITION

The judgment is affirmed. Respondent to recover costs on appeal.

SANCHEZ, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

GOETHALS, J.