Filed 3/20/13 Yosemite Title v. County of Tuolumne CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
YOSEMITE TITLE, INC., as Trustee, etc., et al., Plaintiffs and Appellants,

v. COUNTY OF TUOLUMNE, Defendant and Respondent. F063949 (Super. Ct. No. CV55695)



### OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. Dambacher, Trujillo & Wright, Gary P. Dambacher, Timothy T. Trujillo, Joseph L. Wright and Brandon M. K ilian for Plaintiffs and Appellants. Anwyl Scoffield & Stepp, Ja mes. T. Anwyl and Lynn A. Garcia for Defendant and Respondent.
-ooOoo-2. Here, a local government mistakenly issu ed building permits in violation of its own ordinance, realized its error and subseque ntly revoked the permits, but not before the individuals obtaining the permits had relied to their detriment. May those individuals pursue a damage remedy against the local gove rnment under a promissory estoppel cause of action? Under the circumstances presente d in this case, we hold the answer is no. Yosemite Title, Inc., as trustee of the Lake Don Pedro Revocable Trus t, and Seven Legends Ranches, LLC (plaintiffs), applied to defendant Tuolumne County (County) for building permits to erect a gate across the road at th e entrance to a housing development. The County initially granted the permits and, in reliance thereo n, plaintiffs installed the gate and related infrastructure at considerab le expense. Afterwards, the County revoked the permits because the gate was in violation of a County ordinance that prohibited the blocking of easements and rights-of-way. Th e parties discussed a possible agreement to allow the gate to remain despite the violati on, but that option was apparently foreclosed by a subsequent Court of Appeal decision. U ltimately, the County notif ied plaintiffs that the gate would have to be ta ken down. When plaintiffs fa iled to do so, the County had the gate removed. Plaintiffs then sued th e County under various legal theories. After
several rounds of demurrers a nd opportunities to amend, plain tiffs’ case ultimately came down to whether the trial court would grant pl aintiffs’ motion to ame nd their complaint to allege a cause of action for promissory estoppe l. The trial court denied leave to amend on the ground that the proposed new theory of liability (promissory estoppel) was not fairly reflected in plaintiffs’ government claim. 1 A judgment of dismissal followed. Plaintiffs appeal from that judgment, contendi ng that the trial court abused its discretion

1 We refer to the claim as a government claim, rather than the usual term “tort claim” to avoid confusion. In City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 741, the Supreme Court noted that it was pref erable to refer to the statute governing claims against public entities as the “‘Government Claims Act ,’” rather than the “‘Tort Claims Act’” because the statute was in tended to include contract claims.3. when it denied their motion for leave to amend. We reject plaintiffs’ contention because, under the facts of this case, pl aintiffs had no viable cause of action against the County for promissory estoppel. Accordingly, the trial court properly denied leave to amend and we affirm the judgment below.
FACTS AND PROCED URAL HISTORY Plaintiffs were the developers and one time owners of real property located in Tuolumne County and commonly known as Se ven Legends Ranches (t he development or the subdivision). On July 9, 2003, the County issued to plaintiffs a building permit to construct a gate and façade entrance to the development at Road J-59. On April 20, 2004, the County issued to plaintiffs a second building permit for the electrical installation related to said gate entrance at Road J-59. After the pe rmits were issued by the County, plaintiffs expended significant sums of money in reliance on the permits to build the subject gate and façade and to insta ll the necessary electric al infrastructure for the gate. On September 7, 2004, the County revoked both of the permit s it had issued to plaintiffs. The explanation gi ven by the County was that the subject permits were issued in error because the gate violated Tuolumne County Ordinance Code section 17.56.110, which section prohibited the obstruction of easements and rights-of-way. After the County revoked the permits, it co ntinued to work with plaintiffs in an effort to reach a “development agreement” to possibly allow the gate to re main. However, the County believed that option was no longer available af ter a Court of Appeal decision indicated that such development agreements could not be used to allow projects to circumvent existing laws and ordinances. 2 On April 1, 2009, the C ounty issued a notice entitled “‘Opportunity to Correct,’” which required th e removal of the gate by April 20, 2009.

2 Plaintiffs’ complaint identifies that Court of Appeal case as Neighbors in Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Ca l.App.4th 997.4. According to plaintiffs, the Opportunity to Co rrect was served on the successor owners of the parcels on which the gate wa s situated, but not on plainti ffs directly. In any event, neither plaintiffs nor any ot hers who were actually awar e of the County’s notice did anything to comply with it. On Octobe r 2, 2009, the County had the gate removed. 3 Plaintiffs presented two government claims to the County. The first claim was filed by plaintiffs on April 10, 2009, and raised issues concerning the County’s Opportunity to Correct notice. The County rejected that claim on May 22, 2009. The second government claim, refe rred to by plaintiffs as “A MENDED C LAIM A GAINST
P UBLIC E NTITY ,” was filed by plaintiffs with th e County on October 6, 2009, and addressed issues and claims arising fro m the removal of the gate(s) (amended government claim). Plaintiffs’ amended government claim st ated, among other things, as follows: “From July 9, 2003, the date the first building permit was i ssued, to September 7, 2004, when both permits were revoked, [plainti ffs] expended significant sums of money building the subject gate and installing elect rical in reliance upon the building permits issued by [the County]. As such, [plaintiffs] seek a judi cial determination as to the existence of a vested right pur suant to the issuance of th e subject building permits and [plaintiffs’] reliance thereon, and in the a lternative for damages based upon [plaintiffs’] justifiable reliance on the subject permits.” The amended government claim stated further: “[A]t all times men tion[ed] herein there was in place a mandatory rule that prohibited the obstruction of an easement or right-of-way for the purpose it was created. (See Tuolumne [County Ordinan ce] Code Section 17.56.110). Thus, [plaintiffs] will also seek damages in tort based upon [the Co unty’s] breach of a mandatory duty in the

3 According to the County, plaintiffs sold the parcels on which the gates sat in 2004 and 2005.5. issuance of the subject permits for the purpose of blocking [an] easement or right-ofway.” On November 20, 2009, th e County rejected plainti ffs’ amended government claim. The rejection letter included the following statement: “Subject to certain exceptions, you have only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim. See Government
Code Section 945.6.” 4 On May 20, 2010, within the six-month pe riod, plaintiff Seve n Legends Ranches, LLC, filed a complaint against the County. The complaint alleged the same core facts that were presented in the amended governmen t claim and then set forth the headings of several causes of action. The purported causes of action included writ of mandate, violation of mandatory duty, an d violation of civil rights. On November 1, 2010, plaintiffs filed their first amended complaint (FAC) against the County. The FAC added pl aintiff Yosemite Title, Inc., as trustee of the Lake Don Pedro Revocable Trust, and withdrew the two causes of action for writ of mandate. The FAC alleged as a first cause of action several discrete claims for violation of mandatory duty under section 815.6, broken down into three counts. Count I was predicated on the County’s alleged violation of Tuolumne County Ordinance Code section 17.56.110. It asserted that Tuolumne County Ordinance Co de section 17.56.110 “imposed a mandatory duty on [the County] to deny the applicatio ns for the above-referenced permits because the permitted gate would necessarily block a County easement.” Allegedly, “If [the County] had carried out [its] responsibility to deny the applic ation for the construction of the subject gate and façade across the allege d public easement, plaintiff[s] would not have expended money to construct the gate and would not have marketed and sold

4 Unless otherwise indicated, all further st atutory references are to the Government Code.6. properties therein as a ‘gated community.’” C ounts II and III of plaintiffs’ first cause of action, for violation of a manda tory duty under section 815.6, were largely predicated on the County’s alleged failure to comply with procedural requirements involving summary abatement. These procedur al requirements were set forth in other provisions of Tuolumne County Ordinance Code, including s ections 1.10.150 and 1.10.250 thereof. In addition, the FAC included a second cause of action, for declaratory relief, which asserted that a controversy existed between plaintiffs and the County “concerning their respective rights and duties with respect to is suance by [the Coun ty], and the reliance thereon by plaintiff[s] in the above-referenced building pe rmits.” Accordingly, plaintiffs sought “a judicial determination of the respec tive rights and duties of plaintiff[s] and [the County] concerning reliance upon the above-referenced building permits.” The County generally demurred to the FAC. The trial court sustained the general
demurrers to counts I and II of the first cause of action without leave to amend. It sustained the general demurrer to count III of the first cause of action with leave to
amend. As to the second cause of action for declaratory relief, the trial court sustained the general demurrer without leave to amend. On February 28, 2011, plai ntiffs filed their second am ended complaint (SAC). As permitted in the trial court’s order sustaining the demurrer to the FAC, the SAC amended the alleged cause of action for breach of ma ndatory duty under se ction 815.6 that had been premised on Tuolumne County Ordinanc e Code section 1.10.250. However, the
SAC also added two new causes of action without pr ior leave of the trial court: (1) a new first cause of action for breach of contract/p romissory estoppel and (2) a new third cause
of action for violation of title 42 of Unite d States Code secti on 1983, premised on violation of rights under the Fourth and Fo urteenth Amendments to the United States
Constitution to be free from unreasonable search and seizure. The County generally demurred to the SAC and moved to strike the two new
causes of action that were included therein with out leave of the trial court. As to the7. cause of action for breach of mandatory du ty premised on Tuolum ne County Ordinance Code section 1.10.250, the trial court sust ained without leave to amend the County’s general demurrer because that ordinance pertai ned only to fee owne rs of the land and, therefore, plaintiffs (who merely had easement ri ghts) did not have standing to assert that code provision. The unauthorized new cause s of action (labeled as the first and third causes of action) were stricken by the tria l court from the SAC. Concerning said new causes of action, plaintiffs we re given 30 days “to file an d serve an appropriate motion
for leave to amend the S econd Amended Complaint.” On July 14, 2011, plaintiffs filed their motion for leave to amend. Plaintiffs’ motion sought permission to plead a single cause of action against the County for “[p]romissory [e]stoppel.” According to pl aintiffs’ proposed third amended complaint (attached to the motio n), the County’s issuance of the two building perm its constituted a promise that plaintiffs could build a gate and façade across the entrance to the development, and plaintiffs relied on that promise to thei r detriment by completing the construction of the gate and façade. The Co unty allegedly breached the promise when it removed the gate on October 2, 2009, causing damages based on the cost of building the gate and façade and electrical in frastructure related thereto, as well as lost sales because the development could no longer be marketed as a “g ated” community. The County opposed the motion to amend. The County argued that plaintiffs’ motion failed to present any explanation fo r waiting 14 months from the filing of the initial complaint to request th e addition of a cause of acti on for promissory estoppel. Additionally, the County argued that the promi ssory estoppel claim was not viable for several other reasons, such as failure to file a timely government claim and failure to state
a viable cause of action. On August 31, 2011, after oral argument, the trial court denied plaintiffs’ motion
for leave to amend. The trial court’s wr itten order explained: “The legal theory advanced in the proposed third amended compla int varies from the lega l theories set forth8. in the claims filed with [the County] in 2009.” The trial court’s written order added that it was too late to file another government claim; therefore, the defect could not be cured. Accordingly, the motion was denied. A judgment of dismissal was entered on September 26, 2011, and plai ntiffs’ appeal followed.
DISCUSSION
I. Standard of Review
A trial court has wide discretion in deci ding whether to allow amendment of any pleading, and its ruling in such matters will be upheld unless a clear abuse of discretion is shown. ( Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175-176.) Although courts are bound to a pply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings , up to and including trial, this policy should be applied only where no prejudice is sh own to the adverse party. ( Magpali v. Farmers Group, Inc . (1996) 48 Cal.App.4th 471, 487.) Appellate courts are less likely to find an abuse of discretion wh ere the proposed amendment is “‘offered after long unexplained delay ... or where ther e is a lack of diligence ....’” ( Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 11 59.) “‘The law is well settled that a long deferred presentation of the proposed amendment with out a showing of excuse for the delay is itself a significant factor to uphol d the trial court’s denial of the amendment. [Citation.]’ [Citation.]” ( Leader v. Health Industries of America, Inc . (2001) 89 Cal.App.4th 603, 613.) Nevertheless, the liberal policy of allowing amendment will generally prevail unless the delay in seeking amendment would re sult in surprise, prejudice or unfairness to the opposing party. ( Magpali v. Farmers Group, Inc ., supra , at p. 487; Higgins v. Del
Faro (1981) 123 Cal.App. 3d 558, 564-566; Melican v. Regents of University of California , supra , at p. 176.) A trial court undoubtedly has discretion to deny a proposed amendment where it fails to state a valid cause of action. ( California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281; 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading,9. § 1198, p. 630.) Such a denial is most appropriate where the pleading is deficient as a matter of law and the insufficiency could not be cured by further amendment. ( California Casualty Gen. Ins. Co. v. Superior Court , supra , at pp. 280-281.)
II. Motion to Amend Wa s Properly Denied Here, the trial court denied the motion to amend on the gro und that the legal theory of promissory estoppel was not fair ly reflected in plaintiffs’ government claim filed with the County. We begin with that issue—na mely, whether the proposed amendment was impermissible because it was not fairly reflected in Plaintiffs’ prior government claim. After addressing that i ssue, we shall then consider other factors bearing on the question of whether the trial court’s order denying leave to amend was an
abuse of discretion.
A. Proposed Amendment Adequately Reflected in Government Claim No suits for money or damages agains t public entities may be brought unless a timely written claim is presente d to the public entity and is e ither acted upon or deemed rejected. (§ 945.4.) Under section 910, th e claim must state, among other things, the “date, place and other circumstances of the o ccurrence or transaction which gave rise to the claim asserted” and provide “[a] general description of the inde btedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.” (§ 910, subds. (c) & (d).) As our Supreme Court has explained: “The purpose of these statutes is ‘to provide the public entity sufficien t information to enable it to ade quately investigate claims and to settle them, if appropriate, without th e expense of litigation.’ [Citation.] Consequently, a claim need not contain the detail and specific ity required of a pleading, but need only ‘fairly describe what [the] en tity is alleged to have done.’ [Citations.] As the purpose of the claim is to give the go vernment entity notice sufficien t for it to investigate and evaluate the claim, not to eliminate meritorious actions [citation], the claims statute ‘should not be applied to sn are the unwary where its purpo se has been satisfied.’10. [Citation.]” ( Stockett v. Association of Cal. Water Agencies Join t Powers Ins. Authority (2004) 34 Cal.4th 441, 446 ( Stockett ), italics added.) “If the claim is rejected and the plain tiff ultimately files a complaint against the public entity, the facts underl ying each cause of action in th e complaint must have been fairly reflected in a timely claim. [Citati on.] ‘[E]ven if the cl aim were timely, the complaint is vulnerable to a demurrer if it alle ges a factual basis for recovery which is not fairly reflected in the writte n claim.’ [Citation.]” ( Stockett , supra , 34 Cal.4th at p. 447, citing Nelson v. State of California (1982) 139 Cal.App.3d 72, 79; see also Fall River Joint Unified School Di st. v. Superior Court (1988) 206 Cal.App.3d 431, 434.) Where the complaint and the claim are “‘predicated on the same fundamental facts,’” the demurrer on this ground will be overruled. ( Dixon v. City of Livermore (2005) 127 Cal.App.4th 32, 40.) As explained further in Stockett , supra , 34 Cal.4th at page 447: “A complaint’s fu ller exposition of the factual ba sis beyond that given in the claim is not fatal, so long as the complaint is not based on an ‘entirely different set of facts.’ [Citation.] Only wh ere there has been a ‘complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those desc ribed in the claim’ have courts generally found the complaint barred. [C itation.] Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts ha ve generally found the claim fa irly reflects the facts pled in the complaint. [Citation.]” Moreover, as long as the policie s of the claims statutes are effectuated, the statutes are given a liberal construction to permit full adjudication on the merits.” ( Id . at p. 449.) Thus, “[i]f the claim gi ves adequate information for the public entity to investigate, additional detail and el aboration in the complaint is permitted.” ( Ibid .) Applying these principles to the case before us, we conclude that plaintiffs’ proposed amendment to plead a promissory estoppel cause of action was not an11. impermissible departure from the fundamental facts set fo rth in plaintiffs’ amended government claim. The amended government claim plainly asserted that plaintiffs had detrimentally relied on the County’s issuance of the building permits and, in particular, that plaintiffs incurred substan tial expenses in reliance on the permits, such as for the cost of constructing the gate and electrical infrastructure. Based on these facts, the amended government claim further stated that pl aintiffs had acquired a “vested right.” 5 Plaintiffs’ proposed promissory estoppel cause of action, although pres enting a distinct legal theory , was not based on different facts, conduct or events than were set forth in the amended government claim. 6 Rather, the claim and the pr oposed amended pleading were “predicated on the same fundamental actions or failures to act by the defendant[]” ( Stockett , supra , 34 Cal.4th at p. 447)—that is, th e County’s issuance of the building permits, plaintiffs’ reliance thereon, and th e County’s later revocation of the same permits based on a violation of an ordinance. We conclude the trial court erred when it held that the proposed cause of action was not fairly reflec ted in the amended government
claim.

5 We note plaintiffs’ amended governmen t claim set forth facts that inherently reflected a potential claim based on pr inciples of estoppel (see, e.g., Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 321-322 ( Toigo ); Anderson v. City of La Mesa (1981) 118 Cal.App.3d 657, 660), which was analogous to that of promissory estoppel (see discussion herein of elements of that cause of action).
6 One legal treatise accu rately summarized the Stockett case as follows: “[T]he claimant is not barred from asserting additional legal theories or further details to the facts alleged in the claim, as long as the comp laint is predicated on the same fundamental actions or failures to act by the persons an d at the times specified in the claim. [Citation.]” (Weil & Brown, Cal. Practice Gu ide: Civil Procedure Before Trial (The Rutter Group 2012) ¶ 1: 702, p. 1-156.5.)12. B. Delay or Untimeliness Although the reason given by the trial court was mistaken, we next consider
whether the trial court’s denial of leave to amend was nevertheless correct on other grounds. In this part, we address the Coun ty’s several arguments that the motion to amend was properly denied due to delay and/or failure to meet stat utory deadlines. We find the County’s arguments on each of thes e points unavailing, as explained below. First, the County argues th at the unexplained 14-month delay between the original complaint and the filing of the motion to am end was sufficient, by itself, to justify the
trial court’s denial of the motion to amend. We disagree. While there may be unusual cases where delay, under the particular ci rcumstances of the litig ation, provides an adequate basis for denial of leave to ame nd, ordinarily there must be, along with the delay, some showing of prejudice . Without such prejudice, the liberal policy of allowing amendment will generally prevail. ( Magpali v. Farmers Group, Inc ., supra , 48 Cal.App.4th at p. 487; Higgins v. Del Faro , supra , 123 Cal.App.3d at pp. 564-566; Melican v. Regents of Un iversity of California , supra , 151 Cal.App.4th at p. 176.) Here, we discern no such prejudice or surprise. Indeed, although the promissory estoppel theory was not identified, the e ssential facts giving rise to that cause of action were set forth in plaintiffs’ amended government claim as well as in the several versions of their complaint. Second, the County contends that the prom issory estoppel cause of action in the proposed third amended complain t would not relate back to the filing of the original complaint and, therefore, it allegedly wa s untimely filed under Government Code deadlines (i.e., § 945.6, subd. (a)(1)) or under other statute of limitations. We disagree.
Relation back is available where the amended complaint (1) rests on the same general set of facts, (2) involves the same injury, and (3) refers to the same instrumentality as the original one. ( Norgart v. Upjohn Co . (1999) 21 Cal.4th 383, 408-409.) Moreover, “[a]n amended complaint relates back to an earlier complaint if it is based on the same general13. set of facts, even if the plaintiff alleges a di fferent legal theory or new cause of action.” ( Pointe San Diego Reside ntial Community, L.P. v

. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 277 ( Pointe San Diego ); see also Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 11 99-1200 [“amendments alleging a new theory of liability agains t the defendant have been fo und to relate back to the original complaint, so long as the new cause of action is based on the same set of facts previously alleged”].) “In determining whether the amended complain t alleges facts that are sufficiently similar to those alleged in th e original complaint, the critical inquiry is whether the defendant had adequate notice of the claim based on the original pleading.” ( Pointe San Diego , supra , at p. 277.) Here, as we have already observed, the core facts constituting the basis for the prom issory estoppel cause of action— namely , the issuance of the building permits, plaintiffs’ detrim ental reliance thereon in undertaking the expense to construct the gate, facade and infrastructure, and th e County’s subsequent revocation of the permits and removal of the gate—were adequately alleged in the original pleading. Since the same general set of facts were alleged, and the same injurycausing events, we conclude the re lation-back doctrine applied here. Third, the County argues that plaintiffs’ government claims and lawsuit were untimely filed because a cause of action for promissory estoppel would have accrued long ago, at the time the permits were firs t revoked (in 2004), not wh en the County gave its Opportunity to Co rrect notice and removed the gates (in 2009). We note that a challenge to a pleading based on the statute of limitations will not be sustained unless it affirmatively and necessarily appears from the pleading that the statute must have expired. ( Committee for Green Foothills v. Sant a Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42 [demurrer based on statute of limitations will not lie if complaint merely may be barred; it must be necessarily barred].) Since promissory estoppel is akin to a breach of contract claim ( US Ecology v. State of California (2005) 129 Cal.App.4th 887, 902-905), its accrua l would apparently commence when the breach14. occurred—as that is the general rule for accrua l of causes of action sounding in contract. (See Reichert v. General Ins. Co . (1968) 68 Cal.2d 82 2, 831; 3 Witkin, Cal. Procedure (5th ed. 2008) Actions , § 520, p. 664.) 7 Here, as long as the C ounty continued to allow the gate to remain in place, the essential promise or representation that the permits allegedly embraced (i.e., permission to builda gated entrance to the development) arguably was not yet materially breached. More over, plaintiffs alle ged that the County had been in discussions or negotiations with plaintiffs about whether the gate could potentially remain. Under these allegations, we are unable to conclude that, as a matter of law, the cause of action accrued at th e time the permits we re first revoked. Fourth and finally, the County argues that because the original complaint was not filed within six months after the County’s notice of rejection of plaintiffs’ first government claim, plaintiffs entire acti on is time-barred un der section 945.6, subdivision (a)(1). This argumen t also fails since the facts pl ed do not establish that the lawsuit was necessarily time-barred. Before expiration of the original six-month period, plaintiffs filed their amended government cl aim with the County. The County’s response to said amended government cl aim was to serve a second no tice of rejection, but that second notice of rejection also represented to plaintiffs that they would have six months
after that notice to file a lawsuit premised on the matters set forth in the amended government claim. Plaintiffs alleged that th ey relied on the representation set forth in the second notice of rejection. Under nearly identical facts, it has been he ld by this court that if reasonable reliance on a representation in a second notice of reject ion (that a party has
six months thereafter to file a lawsuit) is proven, the County may be equitably estopped from asserting the deadline under the first notice. ( Sofranek v. County of Merced (2007)

7 The law is clear that the “statute of limit ations to be applied is determined by the nature of the right sued upon, not by the fo rm of the action or the relief demanded. [Citations.]” ( Day v. Greene (1963) 59 Cal.2d 404, 411.)15. 146 Cal.App.4th 1238, 1251-1252.) Therefore, in the present case , the County has not
established that the claims are necessarily time-barred.
C. Failure to State a Cause of Action
We next consider whether the trial court’ s denial of plaintiffs’ motion for leave to amend may be upheld based on failure to st ate a cause of action. Specifically, we consider if the proposed amendment was insuffi cient to state a valid cause of action for promissory estoppel and the defect was such that it could not be cured by further
amendment. We conclude that was the case here, as we now explain.
1. Overview of Promissory Estoppel We begin by briefly summarizing the law of promissory estoppel, including its availability where the defend ant is a government entity. “In California, under the doctrine of pr omissory estoppel, ‘A promise which the promisor should reasonably expect to indu ce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.’ [Citations.] Promisso ry estoppel is ‘a doctrine which employs equitable principles to satisfy the requirement that consideration must be given in exchange for the promis e sought to be enforced.’ [Citation.]” ( Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 310 ( Kajima ).) “The elements of promissory estoppel are (1) a clear promise, (2) reliance, (3) substantial detriment, and (4) damages ‘measured by the extent of the obligation assumed a nd not performed.’ [Citation.]” ( Toscano v. Greene
Music (2004) 124 Cal.App.4t h 685, 692; see also Cooper v. State Farm Mutual
Automobile Ins. Assn . (2009) 177 Cal.App.4th 876, 892, fn. 3 [stating elements of promissory estoppel claim].) “[A]n estoppel will not be applied agains t the government if to do so would effectively nullify ‘a strong rule of policy, adopted for the benefit of the public ....’”16. ( City of Long Beach v. Mansell (1970) 3 Cal. 3d 462, 493 ( Mansell ); see also Poway Royal Mobilehome Owners Assn. v. City of Poway (2007) 149 Cal.App.4th 1460, 1471 ( Poway ); Kajima , supra , 23 Cal.4th at p. 316.) “‘The courts of this state have been careful to apply the rules of estoppel against a public agency only in those special cases where the interests of justice clearly require it.’” ( Mansell , supra , at p. 495, fn. 30.) The “‘facts upon which such an estoppel must re st go beyond the ordinary principles of estoppel and each case must be examined carefully and rigidly to be sure that a precedent is not established through wh ich, by favoritism or otherwise, the public interest may be mulcted or public policy defeated.’” ( Ibid. ) A government entity may be estopped where “the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or po licy which would result from the raising of an estoppel.” ( Id . at pp. 496-497; see also Anderson v. City of La Mesa , supra , 118 Cal.App.3d at p. 661.) These limiting principles regarding claims of equitable estoppel against a government entity are likewise applicable to promissory es toppel. Hence, promissory estoppel may not be invoked against a governme nt body where it would operate to defeat the effective operation of a policy ad opted to protect the public. ( Kajima , supra , 23 Cal.4th at p. 316; US Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113, 135.) Because of this concern, it has been stated that “exceptional circumstances” must be present to justify the application of prom issory estoppel against a government entity. ( Poway , supra , 149 Cal.App.4th at p. 1471.) 8 Nevertheless, “where justice and right require it[,] promissory estoppel may be invoked against a governmental body where it would not operate to defeat any strong public policy or result in the indirect enforcement

8 In Poway , for example, the Court of Appeal st ated that promisso ry estoppel “may not be raised against a public entity when it would defeat th e public policy of requiring adherence to statutory procedures for entering into contracts.” ( Poway , supra , 149 Cal.App.4th at p. 1476.)17. of an illegal contract.” ( Hilltop Properties, Inc. v. State of California (1965) 233 Cal.App.2d 349, 364-365.) 9

In Kajima , promissory estoppel was applied ag ainst a government entity where the application of that doctrine would further public policie s and prevent injustice. ( Kajima , supra , 23 Cal.4th at p. 315 [noting that allowi ng promissory estoppel remedy in that case would do “rough justice” and “further certain public policies” regarding public contract bids].) In that case, a contractor was the lo w bidder on a project but the city wrongfully failed to award it the contract, as required by statute. ( Id . at pp. 309-310.) The Supreme Court held that although the co ntractor could not state a breach of contract action against the city, the contractor was entitled to recover its bid preparation costs under a promissory estoppel theory. ( Id . at pp. 313-321.) The court observed that the city represented it would award the contract to th e lowest responsible bidder, the contractor relied on that representation, and the city ther eafter violated its promise. A promissory estoppel remedy limited to recovery of bid preparation costs was appropriate under the circumstances because it would prevent injus tice and further the public policy goals of deterring government misconduct in the bidding process and encouraging contractors to participate. ( Id . at pp. 315-316.) The court noted it was necessary to limit the recoverable damages to bid preparation cost s—rather than allowing recovery of lost profits—because the public polic y of keeping the taxpayers’ co sts low in public contracts (the very purpose of the low- bid statutes) would be defeat ed by granting a broad damage remedy. ( Id . at pp. 316-321.)

9 While promissory estoppel is equitable, it is also treated as closely akin to a contract , and it is allowed under the government claim statutes on that latter basis. ( Kajima , supra , 23 Cal.4th at p. 314 [citing § 814]; see also US Ecology, Inc. v. State of California , supra , 129 Cal.App.4th at pp. 902-905 [explainin g “contract” basis of promissory estoppel].)18. 2. Plaintiffs’ Argument Th at Promissory Estoppel is Applicable Plaintiffs argue that promi ssory estoppel is applicable here based on analogy to cases in which equitable estoppel has been applied to prevent a municipality from revoking a building permit after the owner or developer detrimentally relied thereon. 10 For example, it has been held that “if a pr operty owner has performed substantial work
and incurred substantial liabiliti es in good faith reliance upon a permit issued by the government, he acquires a vested right to co mplete construction in accordance with the terms of the permit.” ( Avco Community Developers, Inc. v. South Coast Regional Comm

. (1976) 17 Cal.3d 785, 791; accord, Trans-Oceanic Oil Corp. v. City of Santa Barbara (1948) 85 Cal.App.2d 776, 784.) Similarly, a developer’s right to complete a project as proposed vests when “a valid building permit ... has been issued and the developer has performed substantial work and incurred substantial liabilities in good faith reliance on the permit.” ( Toigo , supra , 70 Cal.App.4th at p. 321.) In cases involving such vested rights, principles of equitable estoppel are applied in appropriate cases to prevent the government from subsequently revoking the building permit: “The principle of estoppel,
when invoked in this cont ext, prohibits a government al entity from exercising its regulatory power to prohibit a proposed land use when a de veloper incurs substantial expense in reasonable and good faith reliance on some governmental act or omission so that it would be highly inequitable to depriv e the developer of the right to complete the development as proposed.” ( Ibid .) By analogy to the vested rights cases, plaintiffs argue that the County would be estopped from revo king the permits or removing the gates, since plaintiffs detrimentally relied on the building permits by incu rring the expense of constructing the gates, facade and electrical in frastructure. Plaintiffs argue further that

10 For an elaboration of the differences between equitable estoppel and promissory estoppel, see Youngman v. Nevada Irrigation Dist . (1969) 70 Cal.2d 240, 249, footnote 7.19. since the gates have been removed, merely preventive or injunctive relief is insufficient; allegedly, a damage remedy (i.e., promi ssory estoppel) is necessary and just. The County responds that promissory estoppel does not apply because, among other reasons, the building permits were i ssued in violation of an existing zoning ordinance that prohibited obstruction of ea sements and rights-of-way. (See Tuolumne County Ordinance section 17.56.110.) In this regard, the County points us to the case of Pettitt v. City of Fresno (1973) 34 Cal.App.3d 813 ( Pettitt ).
In Pettitt , a building permit was is sued to and relied upon by the plaintiff to construct a beauty salon in a location that was zoned exclusively for single family residences. When the City later revoked the permit because the beauty salon was built contrary to the applicable zoning ordinan ce, the plaintiff argued that pursuant to principles of equitable estoppel, the City could not revoke the permit. ( Pettitt , supra , 34 Cal.App.3d at pp. 816-818.) On appeal, we considered the question of whether a municipality could be estoppe d to deny the validity of a building permit issued in violation of a zoning ordinance. We answer ed that question in the negative, explaining that “the public and community interest in preserving the community patterns established by zoning laws outweigh[ed] the injustice th at may be incurred by the individual” who relied upon “an invalid permit to build issued in vi olation of zoning laws.” ( Id . at p. 820.) The principle undergirding our hold ing was “the thesis th at estoppel will not be invoked against a government agency where it would defeat the effective operation of a policy adopted to protect the public.” ( Id . at p. 822.) We explained further: “In the field of zoning laws, we are dealing with a vital public interest—not on e that is strictly between the municipality and the individual litig ant. All the residents of the community have a protectable property and personal intere st in maintaining the character of the area as established by comprehensive and carefu lly considered zoning plans in order to promote the orderly physical de velopment of the district and the city and to prevent the property of one person from being damaged by the use of neighboring property in a20. manner not compatible with th e general location of the two parcels. [Citation.] These protectable interests further manifest themse lves in the preservation of land values, in
esthetic considerations and in the desire to increase safety by loweri ng traffic volume. To hold that the City can be estopped would not punish the City but it would assuredly injure the area residents, who in no way can be held responsible for the City’s mistake. Thus, permitting the violation to continue gives no consideration to th e interest of the public in the area nor to the strong public policy in fa vor of eliminating nonconforming uses and against expansion of such uses. [Citations.]” ( Id . at pp. 822-823, fn. omitted.) Moreover, in Pettitt , we found that the cases applying equitable estoppel based on vested rights were distinguishable because the permits in those cases were va lid when i ssued to the developer or owner. ( Id . at pp. 823-824.) “It is ... a wh olly different situation when the permit is invalid from the beginning because issued in violation of the zoning law for the area.” ( Id . at p. 824.) 11 We note that while the principles in Pettitt were stated in broa d terms, they do not necessarily cover every situa tion where a building permit was issued in violation of an
ordinance. Each case must be considered on its own facts, including the nature of the ordinance and the alleged violation. In Anderson v. City of La Mesa , supra , 118 Cal.App.3d 657, Anderson was issued a permit by the city to build a house that had a
setback of seven feet from the side lot. The city’s standard zoning ordinance required a minimum setback of five feet. Later, the city realized that a speci fic plan ordinance in effect for that area required a 10-foot setback . The trial court found that the city was estopped to deny the building permit because An derson detrimentally relied in good faith on the permit by constructing the house. On appeal, the city argued the trial court erred

11 As should be clear, Pettitt , supra , 34 Cal.App.3d 813, invol ved equitable estoppel (i.e., whether the city would be estopped to deny revocation of a permit); it did not address the appropriateness of a damage remedy based on promissory estoppel.21. on the issue of estoppel. The Court of Appe al disagreed, explaini ng as follows: “The City contends as a matter of law it cannot be estopp ed to deny a buildin g permit issued in violation of a zoning ordinance. A government entity may be estopped, however, where, as here, ‘the injustice which would result from a failure to uphold an esto ppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel .’ [Citation.] Anderson built her house according to the permit the City issued and did not violate the City’s standard zoning ordinances. Denying the variance would substantially harm Anderson, costing her mo re than $ 6,000. The court specifically found Anderson’s seven -foot setback created no ‘special problem for the area or adjacent landowners.’ More over, the court found no evidence granting Anderson a variance would ‘create any hardsh ip on any other person s.’ These findings, coupled with the nature of the zoning viol ation involved here, a two-and-one-half-foot setback encroachment, serv e to distinguish this case from holdings [such as Pettitt , supra , 34 Cal.App.3d 813,] that estoppe l may not be used to just ify nonconforming uses, based upon building permits i ssued in violation of existing zoni ng ordinances. [Citations.] In the circumstances of this case, the court coul d properly apply estoppel against the City.” ( Id . at p. 661, italics added.) Based on the above authorities, we belie ve two preliminary questions must be
answered in order to determin e whether the County is correct that plaintiffs’ cause of action is barred by the principles enunciated in Pettitt and related case law. These questions are: (1) Did the Coun ty issue the building permits to plaintiffs (to construct the gate) in violation of Tuolumne County Ordi nance section 17.56.110, which violation resulted in the permits being subsequently revoked? and (2) If so, was that ordinance adopted for the protection of the public or did it serve to eff ectuate a strong public policy, as did the zoning ordinance in Pettitt ? If we answer both of these questions in the affirmative, then plaintiffs cannot maintain a cause of action for promissory estoppel against the County if doing so would impede the effective operation of the public policy22. objectives of that ordinance. (See Pettitt , supra , 34 Cal.App.3d at pp. 819-824 [see cases digested therein]; Kajima , supra , 23 Cal.4th at p. 316 [expre ssing principle that neither equitable nor promissory estoppel may be i nvoked against a government body where it would operate to impair the effective operati on of a policy adopted to protect the public]; US Ecology, Inc. v. State of California , supra , 92 Cal.App.4th at p. 135 [same rule stated].) As to the first question, we believe it is beyond dispute that the building permits were issued to plaintiffs in violation of Tuolumne County Ordina nce section 17.56.110, which section stated, in pertinent part, as foll ows: “Except as otherwise provided herein, no person shall place or erect, nor shall any ow ner of record, or any one known to be in possession, of a parcel of land fail or refuse to remove from that parcel, any structure or object which obstructs the purpose for which an easement or right-of-way of record was
created.” Plaintiffs’ amended government claim stated that the gate was in violation of said ordinance and plaintiffs even made that violation a premise of their claim that the County was liable. Moreover, plaintiffs ’ FAC specifically asserted without any qualifying language that “Tuolumne County Ordinance Code [s ection] 17.56.110 ... imposed a mandatory duty on [the County] to deny the applications for the abovereferenced permits because the permitted gate would necessarily block a County

easement .” (Italics and underlining added.) Alth ough after the demurrer to this part of the FAC was sustained, plaintiffs did not both er to repeat that language in subsequent versions of the complaint, it is clear that plaintiffs’ earlier pleading constituted a judicial admission that the gate was in fact obstructing a County easement—hence there was a violation. Plaintiffs remain bound by that prior admission. (See 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 454, p. 587.) As stated in Cantu v. Resolution Trust Corp

. (1992) 4 Cal.App.4th 857 at page 877: “A plaintiff may not avoid a demurrer by pleading facts or positions in an amended comp laint that contradict the facts pleaded in the original complaint or by suppressing fa cts which prove the pleaded facts false.23. [Citation.]” (See also Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146 [“‘While
inconsistent theories of recovery are permitted [citati on], a pleader cannot blow hot and cold as to the facts positively stated.’”].) As to the second question, plaintiffs acknowledge that the County’s express rationale for enforcing Tuolumne County Ordinance Code section 17.56.110 (by revoking the building permits, etc.) include d a concern for public safety and, in particular, a concern that fire vehicles not be impeded from having access to the
subdivision in the event of a fast-moving fire. 12 Clearly, a government entity’s interest in protecting residents and their property from fire would constitute an important public policy. The wording of section 17.56.110 is broad and naturally includes both public and private easements and rights-of-way in its scope . It is reasonable to assume that one of the purposes of section 17.56. 110 would be to facilitate the protection of County or public easements and rights-of-way from bein g obstructed, and the importance of that purpose would be heightened wh ere public safety is concerne d. That is precisely what enforcement of the ordinance, as applied here, accomplished when the building permits
were revoked based on noncom pliance with section 17.56. 110. Additionally, not only

12 In response to our request for supplement al briefing, the parties conceded that fire safety was articulated by the C ounty as an important rationale for its action. This fire safety concern conspicuously came to light in 2005, a relativel y short time after the permit revocation, when the County denied pl aintiffs’ proposal that the County abandon the public easement as a possibl e solution to the gate/ordinance violation issue. We grant plaintiffs’ request for judicial notice of the co ntents of the County’s denial letter premised on fire safety concerns, in whic h the County Fire Marshal’s Offi ce stated that “[g]ating of any access increases the fire department’s re sponse time to an area prone with fast moving grass/wildland fires,” and that “[d] ue to the high fire hazard of this area, a reduction in road easement [access] could pote ntially have disastrous effects on both the access for emergency personnel and the ability fo r egress for the proper ty owners in the case of an emergency.” We additionally gr ant the County’s request for judicial notice that much of the Seven Legends Ranches su bdivision is in an area designated by government agencies as having a “‘high fire hazard.’”24. were the building permits issued to plaintiffs in violation of Tuol umne County Ordinance Code section 17.56.110, but said violation and the resulting obstruction of the County’s easement or right-of-way a ffected the interests of many people (i.e., the residents of the subdivision), not merely an isolated property owner. In light of the public policy served by the subject ordinance and the potential impact of the violation of that ordinance on public safety in this particular case, we conclude the County was not estopped from taking the action that it did. (See, e.g., Pettitt , supra , 34 Cal.App.3d at pp. 819-824 [notwithstanding the plaintiff’s reliance, the city was not estopped to deny building permit issued in violation of zoning ordinance that was fo r benefit of entire public]; Smith v. County of Santa Barbara (1992) 7 Cal.App.4th 770, 7 75 [county was not estopped from revoking land use permit for failure to file environmental impact report]; Chaplis v. County of Monterey (1979) 97 Cal.App.3d 249, 259 [c ounty was not estopped to deny invalid septic tank permit; there was vital pub lic policy interest in sewage disposal].) Additionally, we believe that were we to allow a damage remedy in the circumstances of this case, it would tend to discourage municipalities from acting to
correct ordinance violations of this nature where public safety concerns are involved. Hence, extension of a promissory estoppel damage remedy would not further but would impede the public policies at stake. (See Kajima , supra , 23 Cal.4th at p. 315 [promissory estoppel remedy was allowed against public entity to prevent injustice and “further certain public policies” regard ing public contract bids].) For all of these reasons, we conclude that plaintiffs’ proposed third amended complaint “does not allege exceptional circum stances necessary to ju stify application of the promissory estoppel doctrine against the [C ounty], and leave to amend would not cure the defect.” ( Poway , supra , 149 Cal.App.4th at p. 1471.) Therefore, the trial court did
not abuse its discretion when it denied plaintiffs’ motion for leave to amend.25. III. Oral Argument and Final Comments We briefly note in passing certain unexpect ed matters that were raised at oral argument, and we explain why they do no t affect the disposition of this case. At oral argument, plaintiffs’ counsel s uggested that perhaps the County did not have a dedicated public easemen t after all (where the gate wa s located), and in support of that proposition, he claimed to hold in his ha nd a parcel map that purportedly supported his new theory. We disregard this new theory, not only be cause it constitutes a departure from plaintiffs’ own pleadings an d theory of the case, but al so because we do not address matters that were not adequately raised below or that are raised for the first time in reply briefs or at oral argument. (See, e.g., Cable Connections, Inc. v. DIRECTV, Inc . (2008) 44 Cal.4th 1334, 1350-1351, fn. 12 [a party cannot change theory of case on appeal]; Mattco Forge, Inc

. v. Arthur Young & Co . (1997) 52 Cal.App.4th 820, 847 [new theory or argument presented for first time on appeal need not be considered]; Campos v.
Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 [poi nts raised for first time in reply brief need not be considered].) For similar reasons, we do not consider plaintiffs’ supposition expressed during oral argument that the County’s stated concer n about fire safety was not genuine, but was made up without any rational basis for support. Such a particular claim or theory was never alleged in a pleading, was not presen ted in a timely government claim and was not adequately raised in plaintiffs’ opening brie f in the present appeal. It also plainly contradicts the matters submitted by both par ties for judicial notice relating to the fire safety issue. (See fn. 12, ante .) Furthermore, it seems to us that such a direct and specific challenge to the County ’s position that the gate create d a fire safety issue should
have been raised with the County at an a ppropriate administrative hearing at the time plaintiffs first learned of the County’s relianc e on fire safety concerns in 2005, including any relevant administrative appeals. We have not been apprised of any such proceedings, and surely the time for an ap peal of such matters would have long ago expired.26. A closing comment is warranted. Althou gh we have conclude d in this opinion that, under all of the circumstances, plai ntiffs cannot state a cause of action for promissory estoppel against the County, we not e that we have reached that conclusion with some mixed emotions. A general princi ple of our jurisprudence is that for every wrong there is a remedy (Civ. Code, § 3523)—but that was not the outcome in this case. The County made a mistake by improvidently i ssuing the building perm its in violation of its own ordinance, while plaintiffs reasonabl y and detrimentally re lied on the County’s action. In a very real se nse then, it was the County’s fault that the gate and infrastructure were installed at plaintiffs’ considerable expe nse. Still, in the final analysis, we have found the County to be legally off the hook for damages concerning the permit revocation and gate removal because of a strong public policy aspect to its corrective actions. But that does not mean the County could not have sought out ways to minimize detrimental impacts to plaintiffs, to the extent it was feasible and la wful to do so. (We are not referring to a mandatory duty; but merely an opportunity.) That is, it seems to us that the County might have looked for opportunities to legitimately ac commodate the interests of
both sides in order to ameliorate the uninte nded detriment to those who relied in good faith on its building permits. Here, in oral argument, plaintiffs’ counsel noted several possible ways to potentially acco mmodate the County’s fire sa fety interest (e.g., special universal locking boxes and keys , etc.) while also allowing some form of gate to remain in place. Regrettably, whether or not such ideas would have le d to an acceptable solution, it was apparent to this panel that the two sides had never meaningfully discussed such possibilities.27. DISPOSITION The judgment is affirmed. Each party shall bear its own costs on appeal.

_____________________ Kane, J. WE CONCUR:

_____________________ Cornell, Acting P.J.

_____________________ Poochigian, J.