Filed 12/9/13 Snyder v. City of Los Angeles CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 FOUR

BRUCE SNYDER,

Plaintiff and Appellant,

v.

CITY OF LOS ANGELES et al.,

 Defendants and Respondents;

LITTLE TOKYO SERVICE CENTER et 

al.,

Real Parties in Interest and

Respondents.

 B244980

 (Los Angeles County

 Super. Ct. No. BS137516)

APPEAL from an order of the Superior Court of Los Angeles County, 

Richard Fruin, Judge. Affirmed.

Bruce Snyder, in pro. per., for Petitioner and Appellant. 

Carmen A. Trutanich and Mike Feuer, City Attorneys, Amy Brothers and 

Seigmund Shyu, Deputy City Attorneys, for Defendants and Respondents City of Los 

Angeles and The City Planning Commission of the City of Los Angeles. 

Alston & Bird, Nicki Carlsen, Shiraz D. Tangri and Andrea S. Warren for Real 

Parties in Interest and Respondents Little Tokyo Service Center, LTSC Community 

Development Corporation and Korean Resource Center. 
2

This case arises from a challenge to approval of an affordable senior housing 

project in the City of Los Angeles. Appellant Bruce Snyder contends the trial court erred 

in sustaining a demurrer to his petition for administrative mandamus on the ground that it 

is time-barred. He argues the limits in the general statute governing petitions for writ of 

administrative mandamus (Code Civ. Proc., § 1094.6 (hereafter section 1094.6)) apply 

rather than time limits governing actions challenging a local government planning or 

zoning decision (Gov. Code, § 65009 (hereafter section 65009)). He also argues the 

demurrer was untimely and not properly noticed.

We conclude this action was barred by the section 65009 90-day time limit for 

filing and serving a petition challenging the approval of the project. We find no basis for 

reversal in Snyder’s other arguments. 

FACTUAL AND PROCEDURAL SUMMARY

On January 12, 2012, the Los Angeles City Planning Commission approved a 45-

foot high, 32-unit affordable senior apartment development with office space and areas 

for recreation and classrooms and 16 parking spaces (the Project). Affordable housing 

incentives were approved increasing the floor area ratio, the number of stories, the height 

of the building, and the percentage of the recreation area qualifying for the open space 

requirement. The planning commission also adopted a mitigated negative declaration 

pursuant to the California Environmental Quality Act (CEQA, Pub. Util. Code, § 21000 

et seq.). On February 29, 2012, the planning commission filed a notice of these 

determinations with the Office of the County Clerk of Los Angeles. The parties treat this 

as the date the project was approved with a mitigated negative declaration. 

On May 25, 2012, Bruce A. Snyder, Horacio Ivan Fuentes, and Stephanie Kline 

Morehouse1 challenged approval of the Project by filing a petition for writ of 

administrative mandamus pursuant to Code of Civil Procedure section 1094.5 (the 

petition). The named respondents were the City of Los Angeles and City Planning 

 

1 Only Snyder appealed from the trial court ruling.
3

Commission of the City of Los Angeles (collectively “respondents”). The Little Tokyo 

Service Center, LTSC Community Development Corporation, and the Korean Resource 

Center were named as real parties in interest. The petition alleged the Project will have 

significant environmental impacts and does not comply with applicable land use plans 

and zoning requirements. Petitioners sought a peremptory writ of mandamus ordering

respondents to set aside approvals of the Project and the mitigated negative declaration. 

They also asked the court to order respondents to refrain from granting any additional 

permits, entitlements, or other approvals related to the Project until it complies with 

CEQA, state statutes and local ordinances. They sought an order declaring the City’s use 

of planning deviations violates the law, and requiring that the deviation procedure be 

brought into compliance with public policy or the Los Angeles Municipal Code. 

Petitioners sought a stay of the Project pending the outcome of the proceeding, as well as

preliminary and permanent injunctions enjoining the city from approving any four-story 

projects in any of the three-story limit zones in the Wilshire district. Petitioners prayed 

for attorney fees pursuant to Code of Civil Procedure section 1021.5 and Government 

Code section 800. 

On May 17, 2012, over a week before the petition was filed, petitioners mailed 

copies of the petition to the department of city planning, city planning commission, and 

the real parties in interest. It is undisputed that the summons and petition for 

administrative mandamus were not personally served until May 31, 2012. 

Respondents and real parties in interest jointly demurred to the petition on the 

ground that it was not filed and served within the 90-day limit set out in section 65009, 

subdivision (c)(1)(E). They also moved to strike petitioners’ requests for declaratory and 

injunctive relief.2 Petitioners opposed the motion on the ground that the time for filing is 

governed by section 1094.6 rather than section 65009. Based on this argument, they 

argued the petition was timely since it was filed on May 25, 2012, within the 90-day 

 

2 The trial court ruled that the motion to strike was moot because the demurrer was 

sustained without leave to amend. 
4

deadline for service. Petitioners also argued that the February 29, 2012 Public Notice of 

Determination did not comply with the mandatory language of section 65009, subdivision 

(b)(2), and therefore that statute did not apply. They claimed that respondents were not 

prejudiced by service of the summons beyond the 90-day deadline because copies of the 

petition without a summons were mailed to the parties on May 17, 2012. 

Respondents and real parties in interest filed a joint reply and asked the court to 

take judicial notice of the planning commission’s Agenda Notice and the City Planning 

Recommendation Report. Also included in the request was a May 17, 2012 letter by 

petitioner Snyder advising the parties that he would file the attached petition if the Project 

was not stopped.

3

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

petition was barred by section 65009, and ordered the case dismissed. The court signed 

an order and judgment submitted by counsel for real parties in interest stating that the 

demurrer was sustained without leave to amend, and that the court’s tentative decision 

would constitute the statement of decision. Counsel for real parties in interest then filed a 

notice of entry of judgment and order on the demurrer, incorporating the notice of ruling 

with the tentative decision. Petitioner Snyder filed a timely appeal. 

DISCUSSION

I

Petitioner’s primary contention is that this case is governed by the general 

limitations period for administrative mandamus set out in section 1094.6, rather than the 

more specific limits of section 65009, which apply to challenges to specified categories 

of local government planning and zoning decisions. If this action is governed by section 

65009, it is barred since the petition, although filed within the 90-day deadline, was not 

served until 92 days after the decision. We review the judgment on demurrer de novo. 

 

3 The court’s tentative ruling on the demurrer does not indicate whether it took 

judicial notice of these documents. 
5

(General Development Co., L.P. v. City of Santa Maria (2012) 202 Cal.App.4th 1391, 

1394.) 

A. Section 1094.6

“Section 1094.6 establishes time limits for judicial review of the decision of a 

local agency and requires the petition to be filed ‘not later than the 90th day following the 

date on which the decision becomes final.’ (§ 1094.6, subd. (b).)” (Blaich v. West 

Hollywood Rent Stabilization Dept. (2011) 195 Cal.App.4th 1171, 1176.) It does not 

require service of the petition within this time frame. (Honig v. San Francisco Planning 

Dept. (2005) 127 Cal.App.4th 520, 529 (Honig).) The statute also provides that it does 

not control over another, shorter statute of limitations: “This section shall prevail over 

any conflicting provision in any otherwise applicable law relating to the subject matter, 

unless the conflicting provision is a state or federal law which provides a shorter statute 

of limitations, in which case the shorter statute of limitations shall apply.” (Section 

1094.6, subd. (g), italics added.) 

B. Section 65009

Section 65009 was enacted to avoid delays stemming from challenges to local 

planning and zoning determinations. Subdivision (a)(1) provides: “The Legislature finds 

and declares that there currently is a housing crisis in California and it is essential to 

reduce delays and restraints upon expeditiously completing housing projects. [¶] (2) The 

Legislature further finds and declares that a legal action or proceeding challenging a 

decision of a city . . . has a chilling effect on the confidence with which property owners 

and local governments can proceed with projects. Legal actions or proceedings filed to 

attack, review, set aside, void or annul a decision of a city . . . pursuant to this division, 

including, but not limited to, the implementation of general plan goals and policies that 

provide incentives for affordable housing, . . . and other related public benefits, can 

prevent the completion of needed developments even though the projects have received 

required governmental approvals. [¶] (3) The purpose of this section is to provide 

certainty for property owners and local governments regarding decisions made pursuant 

to this division.”
6

Under the express language of section 65009, subdivision (c)(1), an action 

challenging specified planning and zoning decisions must be filed and served within 90 

days of the decision: “[N]o 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 . . . .” 

(Italics added.) Section 65009, subdivision (c)(1) governs challenges to a number of 

enumerated planning and zoning decisions, including a proceeding “[t]o attack, review, 

set aside, void, or annul any decision on the matters listed in Sections 65901 [decision on 

zoning permits and variances by board of zoning adjustment or zoning administrator] or 

section 65903 [decisions of board of appeals from zoning decisions], or to determine the 

reasonableness, legality, or validity of any condition attached to a variance, conditional 

use permit, or any other permit.” (Italics added.) The petition for writ of administrative 

mandamus in this case comes squarely within section 65009, subdivision (c)(1)(E)

because it challenges the approval of the Project. 

In Gonzalez v. County of Tulare (1998) 65 Cal.App.4th 777 (Gonzalez), the court 

found the 90-day service deadline under section 650094 consistent with the purposes of 

the statute: “Requiring an aggrieved citizen to file an action within 90 days but 

permitting him or her to withhold service for months or years would effectively suspend 

the effective date of local land use and development decisions and leave such matters at 

the mercy of the complainant. We cannot imagine how effective land use regulation 

could be carried out anywhere in this state if every local zoning decision were put, for 

perhaps years, under the Damoclean sword of a filed but unserved—and therefore 

unadjudicated—lawsuit which claimed a section 65860, subdivision (a), violation. We 

 

4 The Gonzalez court construed former section 65009, which allowed 120 days to 

commence and serve an action challenging the planning and zoning decisions enumerated 

in the statute. Effective January 1, 1996, this period was shortened to 90 days. 

(Gonzalez, supra, 65 Cal.App.4th at p. 783, fn. 5, citing Stats.1995, c. 253, § 1.)
7

have little doubt every controversial zoning decision would be challenged on this ground, 

whether or not warranted.” (Id. at p. 790, fn. omitted.)

Subdivision (e) of section 65009 reiterates the impact of the statute of limitations: 

“Upon expiration of the time limits provided for in this section, all persons are barred 

from any further action or proceeding.” Strict compliance with the 90-day limitation of 

section 65009, subdivision (c)(1)(E) is required. (Okasaki v. City of Elk Grove (2012) 

203 Cal.App.4th 1043, 1048.) The Okasaki court ruled that the specific language of 

section 65009, rather than the more general limitations provision of section 1094.6,

governs the challenge to a zoning variance. It reasoned: “Under settled rules of statutory 

construction, a specific statute controls over a more general statute. [Citations.] 

Accordingly, Government Code section 65009 establishes the applicable limitation 

period, and Code of Civil Procedure section 1094.6 does not operate to extend the 

limitations deadline on these particular facts.” (Id. at p. 1049, fn. omitted.) 

In his reply brief Snyder argues for the first time, the deadline of section 65009 is 

unconstitutional and that his right to due process has been violated by application of that 

statute. The issues are forfeited. (Cates v. Chiang (2013) 213 Cal.App.4th 791, 814 

[issue forfeited because party deprived opponent of opportunity to respond by raising 

argument only in reply brief].)

C. Contentions

1. Specific Statute Governs

Snyder asserts, without citation to authority, that the housing crisis “does not exist 

for every type of housing, in every part of every city in California and many cities may 

not want more red tape to ‘fix the current red tape’ so the Legislature has given cities the 

ability to opt in or opt out. The entire 65009 code is voluntary.” Where an appellant fails 

to support an argument with citations to authority, we treat the point as waived. (Sims v. 

Department of Corrections & Rehabilitation (2013) 216 Cal.App.4th 1059, 1081.) 

In any event, the argument is contrary to the express purpose and language of the 

statute. (Honig, supra, 127 Cal.App.4th 520, 527 [argument that deadline of section 

65009 is inapplicable to challenge zoning variance “is illogical and adopting it would 
8

undermine the statutory purpose.”].) The Legislature enacted the short limitations period 

in section 65009 “to alleviate the ‘chilling effect” of legal challenges to local planning 

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

There is no language in the text of section 65009 allowing cities to opt out of its 

provisions. In addition, section 65009, subdivision (f) states that this section applies to 

charter cities. Los Angeles is a charter city. (Estrada v. City of Los Angeles (2013) 218 

Cal.App.4th 143, 152; Michael Leslie Productions, Inc. v. City of Los Angeles (2012) 207 

Cal.App.4th 1011, 1021–1022.)

Snyder argues that section 1094.6 governs because his petition was brought under 

Code of Civil Procedure section 1094.5 rather than section 65009. He fails to appreciate 

that a petition for administrative mandamus brought under Code of Civil Procedure 

section 1094.5 is the procedure to obtain judicial “review of a proceeding that required a 

hearing, the taking of evidence, and discretionary administrative determination of facts. 

[Citation.]” (Helene Curtis, Inc. v. Los Angeles County Assessment Appeals Bds. (2004) 

121 Cal.App.4th 29, 37.) As we have discussed, the specific deadlines of section 65009 

apply here.

2. Notice

Snyder also argues the petition is not governed by section 65009 because the 

notice of determination by respondents was misleading and did not incorporate 

mandatory language found in section 65009, subdivision (b). The February 29, 2012,

notice of determination stated: “Effective Date/Appeals: This action of the City 

Planning Commission is final and not further appealable upon the mailing date of 

this determination letter. [¶] The time in which a party may seek judicial review of this 

determination is governed by California Code of Civil Procedure section 1094.6. Under 

that provision, a petitioner may seek judicial review of any decision of the City pursuant 

to California Code of Civil Procedure section 1094.5, only if the petition for writ of 

mandamus pursuant to that section is filed no later than the 90th day following the date 

on which the City’s decision becomes final.” 
9

Snyder argues the notice not only omitted any reference to the requirement that the 

petition be served within the 90-day deadline of section 65009, but directed him to 

section 1094.6, which does not include that requirement. A similar argument, sounding 

in estoppel, has been rejected. In Honig, supra, 127 Cal.App.4th 520, a petitioner filed a 

writ of administrative mandamus challenging a zoning variance and building permit 

authorizing expansion of a home belonging to neighbors. Respondents demurred on the 

ground the petition was barred by section 65009. The petitioner argued the respondents 

should be estopped from asserting this deadline because they deliberately misled her as to 

the applicable limitations period. The notice of the zoning decision stated: “‘If this 

decision is subject to review under Code of Civil Procedure [section] 1094.5, then the 

time within which judicial review must be sought is governed by [section] 1094.6.’” (Id. 

at p. 529, fn. omitted.) Like Snyder, petitioner in Honig argued that this provision gave 

no warning that a writ petition must be served within 90 days pursuant to section 65009, 

subdivision (c)(1)(E). 

Analyzing the question as one of equitable estoppel, the Honig court rejected the 

contention. It reasoned: “[N]othing in the language of the notice . . . or in the Code of 

Civil Procedure sections referenced in that notice, directed appellant to apply an incorrect 

and untimely limitations period to filing or serving her petition. Contrary to appellant’s 

assertion, the notice did not indicate that timely filing of her petition would be sufficient 

to obtain judicial review, did not purport to address the requirements for serving the 

petition, and did not state that failure to comply with any service requirements would be 

excused. Moreover, subdivision (g) of Code of Civil Procedure section 1094.6 (the 

limitations statute referenced in the notice) cautions that section 1094.6 ‘shall prevail 

over any conflicting provision in any otherwise applicable law relating to the subject 

matter, unless the conflicting provision is a state or federal law which provides a shorter 

statute of limitations in which case the shorter statute of limitations shall apply.’ This 

subdivision was sufficient to put appellant on notice that a conflicting, shorter limitations 

provision relating to the subject matter might exist. In addition, appellant has failed to 

provide any authority for her assertion that the board of appeals was required to notify 
10

her of the actual statutory provisions controlling the limitations period for her petition 

challenging its building permit decision.” (Honig, supra, 127 Cal.App.4th at p. 530–

531.) 

In so holding, the Honig court relied on Beresford Neighborhood Assn. v. City of 

San Mateo (1989) 207 Cal.App.3d 1180, 1186–1187 (Beresford). In that case, the 

appellants challenged approval of a senior citizens housing project. Their complaint was 

filed and served one day beyond the 120-day deadline of former section 65009. A 

footnote to the minutes of the city council meeting at which the project was approved 

stated: “This is a final decision concluding all administrative proceedings. Judicial 

review may be had only if a petition is filed with the Court not later than the 90th day 

following the date the decision is made.” (Id. at p. 1185.) The trial court sustained a 

demurrer without leave to amend on the ground the action was barred by the statute of 

limitations. On appeal, the appellants argued the city should not be allowed to invoke the 

statute of limitation because the notice said judicial review of the decisions would not be 

available unless a petition was filed within 90 days. The court concluded “Appellants 

cannot plausibly claim that they failed to effect timely service because they were misled 

by this notice.” (Id. at p. 1186–1187.) The court observed the notice did not say that 

timely filing would be sufficient, did not purport to address any other legal requirements 

for maintaining a challenge, and did not state that any failure to comply with such 

requirements would be excused. The equitable estoppel argument was rejected. (Ibid.) 

Snyder seeks to distinguish this precedent. He points out that the notice in 

Beresford did not cite section 1094.6. While that is so, the notice in Beresford is similar 

to the notice here in that it made no reference to any deadline for service of a challenge to 

a planning or zoning decision, referring only to the filing of the challenge. Similarly, the 

notice in Honig, which referred to “the time within which judicial review must be 

sought” under section 1094.6, (127 Cal.App.4th at p. 529) was silent as to service of the 

challenge. Like the notices in Honig and Beresford, the language of the notice in this 

case was not misleading with respect to service of Snyder’s challenge to the approval of 

the Project. Respondents are not barred from invoking the deadline of section 65009. 
11

3. Section 65009, subdivision (b)

Snyder argues that section 65009 does not apply because the notice of 

determination mailed February 29, 2012 does not include mandatory language set out in 

section 65009, subdivision (b). 

Subdivision (b) of section 65009 requires, generally, that any issue in a petition 

challenging a public agency decision regarding planning and zoning must first have been 

raised in the administrative proceeding.5 Subdivision (b)(2) provides “If a public agency 

desires the provisions of this subdivision to apply to a matter,” it shall give specified 

public notice that only issues raised in the administrative proceeding may be raised in a 

court challenge. (Italics added.) This warning language has been construed as an 

exhaustion of remedies requirement which limits the scope of issues on judicial review,

rather than as a condition precedent to the applicability of other subdivisions of the 

statute, including the 90-day limit. (Building Industry Assn. of Central California v. 

County of Stanislaus (2010) 190 Cal.App.4th 582, 596–597; Park Area Neighbors v. 

Town of Fairfax (1994) 29 Cal.App.4th 1442, 1447–1448.) There is no requirement that 

the warning language of subdivision (b) of section 65009 be included in a notice of 

planning or zoning decision in order to trigger the 90-day deadline. 

We conclude that section 65009, subdivision (c)(1) sets the applicable deadline for 

the petition challenging approval of the project. The petition was not served within this 

90-day period and therefore the trial court did not err in sustaining the demurrer without 

leave to amend.6

 

5 Section 65009, subdivision (b)(1) states: “In an action or proceeding to attack, 

review, set aside, void, or annul a finding, determination, or decision of a public agency 

made pursuant to this title at a properly noticed public hearing, the issues raised shall be 

limited to those raised in the public hearing or in written correspondence delivered to the 

public agency prior to, or at, the public hearing . . .” unless they could not have been 

raised or the body conducting the hearing prevented the issues from being raised.

6 Snyder raised a number of issues for the first time at oral argument. Since they 

were forfeited because they were not raised in the briefs on appeal, we do not address 

them. (Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1508, fn. 8.)
12

II

Snyder argues that the demurrer was not timely filed because it was filed more 

than 30 days after service of the complaint, citing Code of Civil Procedure section 

430.40, subdivision (a). The summons and complaint were served on May 31, 2012. The 

joint demurrer was filed on July 20, 2012. 

Section 1089.5 governs the time for response to a petition for writ of mandamus

where, as here, no peremptory writ is sought. It provides that where the record of 

administrative proceedings has not been filed with the petition, the parties served with the 

petition have 30 days following receipt of a copy of the record to respond. The petition 

states “Within 10 days of filing of this Petition, Petitioners will serve a notice of their 

intention to prepare the administrative record themselves.” At the hearing on the 

demurrer, the representative of petitioners stated that no administrative record had been 

requested.7 The trial court’s tentative ruling found the demurrer timely under section 

1089.5 and on the alternative ground that no default had been taken and therefore the 

demurrer was still timely. At the hearing, the trial court explained that a responsive 

pleading could be filed at any time before a default was entered. It stated that even if a 

default had been entered, on application of respondents and real parties, the court would 

have vacated it and allowed filing of the demurrer. 

We agree with this approach. The respondents and real parties in interest would 

have been allowed to file a demurrer to the petition even if Snyder had obtained a default 

judgment against them. “[W]hen a party in default moves promptly to request relief, 

‘very slight evidence is required to justify a trial court’s order setting aside a default. 

[Citation.]’ [Citation.]” (Purdum v. Holmes (2010) 187 Cal.App.4th 916, 922.) We will 

 

7 The court reporter identifies two of the individuals appearing at the hearing only 

as “Right1” and “Left1.” The deputy city attorney who appeared was identified as 

“Left2” by the court reporter, but gave his appearance. The others did not. From context, 

we have been able to determine that the person identified as “Right1” was speaking for 

petitioners and that “Left1” was speaking for some or all of real parties in interest. We 

strongly discourage this usage in official court transcripts.
13

not disturb a trial court’s decision to grant relief absent clear abuse. (Ibid.) Here, 

petitioners admittedly failed to provide any administrative record to respondents and real 

parties in interest before the hearing on the demurrer. Under these circumstances, there 

would have been grounds to vacate a default judgment. We conclude Snyder was not 

harmed by the trial court’s treatment of the demurrer as timely. 

Snyder also argues the demurrer was not set for hearing in compliance with 

California Rules of Court, rule 3.1320(d). That rule requires the demurrer to be set “not 

more than 35 days following the filing of the demurrer or on the first date available to 

the court thereafter.” (Italics added.) Counsel for real parties in interest submitted a 

declaration stating that she called the clerk of the department in which the demurrer was 

to be set to request the earliest available hearing date. The clerk informed her that the 

earliest date available was September 26, 2012, the date for which the demurrer then was 

noticed. At the hearing on Friday, September 28, 2012, the individual representing real 

parties in interest informed the court that the hearing had been continued on 

“Wednesday” which was the day of the week on which September 26, 2012 fell. The 

demurrer was properly noticed.

DISPOSITION

The judgment sustaining the demurrer to the petition for writ of administrative 

mandamus is affirmed. Respondents and real parties in interest are to have their costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

WILLHITE, J. SUZUKAWA, J.