Filed 8/24/15 Certified for Publication 9/14/15 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JACQUELINE C. SIMONELLI,

Plai ntiff and Appellant,

v.

CITY OF CARMEL

- BY

- THE

- SEA,

Defendant and Respondent. H040488 (Monterey County Super. Ct. No. M123079)

Ap pellant Jacqueline C. Simonelli appeals from a judgment dismissing her

petition for a writ of administr ative mandamus . Simonelli’s petition challenged the

approval by defendant City of Carm el

- By

- The

- Sea (the City) of non party Pot D’Oro’s

development application. The court sustained without leave to amend the City’s

demurrer on the ground that Simonelli ha d failed to join an indispensable party

. On

appeal, Simonelli contends that the court erred in finding that Pot D’Oro was an
indispensable party and in denying her leave to amend. We conclude that the court did

not err in finding Pot D’Oro to be an indis pensable party. However, we also find that the

court erred in denying Simonelli le ave to amend because the court erroneously found that2

the 90

- day limitations period set forth in Code of Civil Procedure section 1094.6 1 applied

to her action

. We therefore reverse the judgment.

I. Background

Simonelli’s May 6, 2013 administrative mandamus petition challenged the City’s

February 5, 2013 approval of an application by Pot D’Or o to develop a vacant lot. Her

petition identified Pot D’Oro as the developer who had been granted the approval, but it

did not name Pot D’Oro as a party. The exhibits attached to the petition disclosed that

the vacant lot in question was adjacent to Simonelli’s property. The petition alleged that

Simonelli’s due process rights had b een violated at the c ity c ouncil’s hearing on the

application, that the City had abused its discretion in various respects with regard to its

consideration of the application, and that the City had “committed a Taking” because the

development would intrude on Simonelli’s privacy and reduce the valu e of her property

. The City demurred on the grounds that Simonelli had failed to join an

indispensable party and that her petition was “uncertain, ambiguous, and unintelligible.”

The City also asserted in its d emurrer that Simonelli should not be granted leave to

amend because the 90

- day limitations period set forth in section 1094.6 had already

expired

. The City also moved to strike the petition on the ground that it was unverified.

Simonelli filed no opposit ion and did not appear at the July 19, 2013 hearing on the

City’s demurrer and motion

. T he court sustained the demurrer without leave to amend on
both grounds and deemed moot the motion to strike.

On August 12, 2013, the City moved for a judgment of di smissal. On

August 21, 2013, Simonelli filed op position to the City’s motion for judgment. She

asserted that Pot D’Oro was not an indispensable party and that the limitations period had

not run so she could still add Pot D’Oro as a party. Simonelli atta ched a proposed

1 Subsequent statutory references are to the Code of Civil Procedure.3

amended petition that added Pot D’Oro as a party , was verified, and was organized into

sections with headings

. The City responded that it was entitled to judgment after the

sustaining of its demurrer without leave to amend and that Simonel li’s opposition could

not be treated as a motion for reconsideration because it was untimely and was not based

on new facts or new law

. Simonelli appeared at the September 13, 2013 hearing on the

City’s motion. The court granted the City’s request and en tered judgment dismissing

Simonelli’s petition. Simonelli timely filed a notice of appeal from the judgment

.

II. Discussion

A . Standard of Review

“ ‘ We treat the demurrer as admitting all material facts properly pleaded, but not

contentions, deducti ons or conclusions of fact or law. [Citation.] We also consider

matters which may be judicially noticed.’ [Citation.] Further, we give the [petition] a
reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]

When a demurrer is sustained, we determine whether the [petition] states facts sufficient

to constitute a cause of action. [Citation.] And when it is sustained without leave to

amend, we decide whether there is a reasonable possibility that the defect can be cured by

amendment: if it can be, the trial court has abused its discretion and we reverse; if not,

there has been no abuse of discretion and we affirm. [Citations.] The burden of proving

such reasonable possibility is squarely on the plaintiff.” ( Blan k v. Kirwan (1985) 39

Cal.3d 311, 318.)

B . Indispensable Party

Simonelli argues that her failure to join Pot D’ Oro as a party did not necessitate

the dismissal of her petition because the City had “the same interest [as Pot D’Oro] in

upholding the val idity of the permit” due to a “litigation funding agreement” between Pot

D’Oro and the City

.4

S ection 389 requires that a person be joined as a party “if (1) in his absence

complete relief cannot be accorded among those already parties or (2) he claims an

interest relating to the subject of the action and is so situated that the disposition of the

action in his absence may (i) as a practical matter impair or impede his ability to protect

that interest or (ii) leave any of the persons already parties subjec t to a substantial risk of

incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed

interest.” (§ 389, subd. (a).) A person meeting these requirements is often referred to as

a “necessary party.” ( Bowles v. Superior Cou rt (1955) 44 Cal.2d 574, 583;

Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 848.)

Simonelli contends that Pot D’Oro’s “ absence ” will not “impede [its] ability to

protect [its] interest ” because the City’s shared interest with Pot D’ Oro will necessarily

cause the City to protect Pot D’Oro’s interests. Her contention is premised on the fact

that Pot D’Oro is required as a condition of approval of its permit to fund the City’s

defense against her petition. 2 The permit condition pro vides : “The applicant agrees, at

its sole expense, to defend, indemnify, and hold harmless the City

. . . from any liability;

and shall reimburse the City for any expense incurred, resulting from, or in connection

with any project approvals.

. . . The Ci ty shall promptly notify the applicant of any legal

proceedings, and shall cooperate fully in the defense.” This condition does not give Pot

D’Oro the power to control the City’s defense of Simonelli’s action. Pot D’Oro must

2 Her sole citation to the record in support of this argument is to a brief comment in the City’s brief in reply to Simonelli’s opposition to the City’s motion for judgment. The City stated: “Here, Petitioner makes no allegation that any sort of binding agreement exists that entitles Ap plicant [Pot D’Oro] to participate in or direct the litigation. Petitioner cannot make such an argument because the Applicant’s agreement to pay the City’s legal fees was a standard and required condition to the City’s permitting process. The Applicant i s in the unhappy position of paying the City’s legal fees without any contractual ability to control the litigation.” Since the litigation funding condition appears in the record in an exhibit to Simonelli’s complaint, we consider this issue despite her f

ailure to properly cite to the record.5

fund the City’s litigation co sts, but the City has no t ceded control of the litigation to Pot

D’Oro. Consequently, this permit condition does not ensure that Pot D’Oro’s interests

will be protected by the City. The City could decide not to defend against Simonelli’s

action or to con duct the litigation in such a manner as to be adverse to Pot D’Oro’s

interest. We reject Simonelli’s claim that, due to the permit condition, Pot D’Oro was not

a necessary party.
Simonelli also argues that, even if Pot D’Oro was a necessary party, the court
erred in finding that Pot D’Oro was an indispensable party. Where a necessary party
cannot be joined, “the court shall determine whether in equity and good conscience the

action should proceed among the parties before it, or should be dismissed with out
prejudice, the absent person being thus regarded as indispensable. The factors to be

considered by the court include: (1) to what extent a judgment rendered in the person’s

absence might be prejudicial to him or those already parties; (2) the extent to which, by

protective provisions in the judgment, by the shaping of relief, or other measures, the

prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s

absence will be adequate; (4) whether the plaintiff or cross

- complain ant will have an

adequate remedy if the action is dismissed for nonjoinder.” (§ 389, subd. (b).) “The

subdivision (b) factors are not arranged in a hierarchical order, and no factor is

determinative or necessarily more important than another.” ( County o f Imperial v.

Superior Court (2007) 152 Cal.App.4th 13, 35.) On the other hand, “[w]hile it is just one

of the four factors listed in Code of Civil Procedure section 389, subdivision (b), to be

considered in determining whether an unjoined person is an in dispensable party, potential

prejudice to that unjoined person is of critical importance.” ( Tracy Press, Inc. v. Superior

Court (2008) 164 Cal.App.4th 1290, 1298.)

Simonelli claims there was no potential prejudice to Pot D’Oro because the permit

condit ion permits Pot D’Oro to protect its interests. As we have already pointed out , the

permit condition regarding the City’s litigation expenses does not give Pot D’Oro the6

opportunity to protect its interests. Because potential prejudice is the critical is sue in

determining whether an absent entity is an indispensable party, and Pot D’Oro’s interests

obviously will be prejudiced if its permit is invalidated in Simonelli’s action, which is

what she seeks, the trial court did not err in finding Pot D’Oro to b e an indispensable

party. It follows that t he court did not err in sustaining the City’s demurrer to Simonelli’ s
petition. However, the validity of that ruling does not resolve the issue of whether the

court erroneously denied her leave to amend, which w e next address.

C

. Denial Of Leave To Amend

Simonelli maintains that the trial court erred in denying her leave to amend

because she could have amended her petition to add Pot D’Oro as a party. The premise

for the trial court’s denial of leave to amend was its conclusion that Simonelli could not

amend the petition because the 90

- day limitations period had already expired. Simonelli

claims that the 90

- day limitations period set forth in section 1094.6 does not apply here.

Section 1094.6 provides: “ ( a) Judicial review of any decision of a local

agency

. . . may be had pursuant to Section 1094.5 of this code only if the petition for

writ of mandate pursuant to such section is filed within the time limits specified in this

section. [¶] (b) Any such pe tition shall be filed not later than the 90th day following the

date on which the decision becomes final.

. . . [¶] . . . [¶] (e) As used in this section,

decision means a decision subject to review pursuant to Section 1094.5, suspending,

demoting, or di smissing an officer or employee, revoking

, [or] denying an application for

a permit , license, or other entitlement, imposing a civil or administrative penalty, fine,

charge, or cost, or denying an application for any retirement benefit or allowance. ” 3

(It alics added.)

3 Section 1094.6, subdivision (e) , as enacted in 1976, originally read: “As used in this section, decision means adjudicatory administrative decision made, after hearing,7

Simonelli correctly points out that the City’s decision approving Pot D’Oro’s

permit does not come within the definition of “decision” in section 1094.6, subdivision

(e), which, as to permits, applies to only the revocation or denial of a permit. The City

does not respond to this contention and has not suggested either below or on appeal that

any other pertinent limitations period precluded Simonelli from amending her petition to

add Pot D’Oro as a party. The applicability of section 1094 .6’s 90

- day limitations period

to Simonelli’s petition was the sole basis for the court’s denial of leave to amend. As that

limitations period was inapplicable, the trial court erred in denying leave to amend.

III. Disposition

The judgment is reversed. On remand, the trial court shall vacate its order

sustaining the City’s demurrer without leave to amend and enter a new order sustaining

the demurrer with leave to amend. Simonelli shall recover her costs on appeal.

suspending, demoting, or dismissing an offic er or employee, revoking or denying an application for a permit or a license, or denying an application for any retirement benefit or allowance.” (Stats. 1976, ch. 276, § 1, p. 582.) Section 1094.6, subdivision (e) was amended in 1983 to change the first phrase to: “As used in this section, decision means a decision subject to review pursuant to Section 1094.5, suspending

. . .” and to add a comma after “revoking” so that it read “revoking, or denying an application for a permit

. . . .” (Stats. 1983, c h. 818, § 3, p. 2973.) The 1995 amendment brought section 1094.6, subdivision (e) to its current form. (Stats. 1995, ch. 898 , § 1, p. 6878 .) The 1995 amendment deleted the word “or” between the words “revoking” and “denying.”8 ______________________________ _ Mihara, J.

WE CONCUR:

_____________________________ Bamattre

- Manoukian, Acting P. J.

_____________________________ Márquez, J.1

Filed 9/14/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JACQUELINE C. SIMONELLI,

Plaintiff and Appellant

,

v.

CITY OF CARMEL

- BY

- THE

- SEA,

Defendant and Respondent

. H0 40488 ( Monte rey County Super. Ct. No. M 123079 )

ORDER GRANTING REQUEST FOR PUBLICATION

BY THE COURT:

Pursuant to Cal ifornia Rules of Court, rule 8.1105(b) , the request for

publication is hereby granted. It is ordered that the opinion in this matt er, filed on

August 24, 2015 , shall be certified for publication

.

Date:

________________________ __ __ Mihara, J.

______________________ ____ __ Bamattre

- Manoukian, Acting P. J.

_____________ _____________ __ Márquez, J

.2

Trial Court: Monterey County Superior Court

Trial Judge: Honorable Lydia Villarreal

Attorney for Plaintiff and Appellant: Jacqueline C. Simonelli In propria persona

Attorney s for Defendant and Respondent : Jon R. Giffen Douglas E. Mitchell Cassie M. Bronson Ryan C

. Donlon Kennedy, Archer & Giffen

Simonelli v. City of Carmel

- By

- The

- Sea H0 40488