Filed 6/4/13 

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION SIX 

ROBERT FREENY et al., 

 Plaintiff s and Appellants, 

v. 

CITY OF SAN BUENAVENTURA et al, 

 Defendants and Respondents. 

2d Civil No. B240893 

(Case No. 56-2011-00403267- 

CU-WM-VTA) 

(Ventura County) 

 The California Tort Claims Act (Act) confers immunity from tort 

liability on public employees when they make "basic policy decisions" in a 

legislative capacity. (Gov. Code, §§ 820.2, 821, 821.2.)1 We hold that public 

employees' tort immunity for legislative decision-making applies even when that 

decision-making is also alleged to involve the making of misrepresentations 

motivated by "actual fraud, corruption or actual malice." (§ 822.2) For this reason 

and others, we affirm the dismissal of plaintiffs' suit against a city and five city 

council members for nearly $2 million in compensatory damages, plus punitive 

damages, for voting against an application for building permits and variances. 

 1 All statutory references are to the Government Code unless 

otherwise indicated. 
2 

FACTS AND PROCEDURAL HISTORY 

 We draw these facts from the allegations in the complaint, which we 

accept as true except where contradicted by the exhibits attached to the complaint. 

(Tucker v. Pacific Bell Mobile Servs. (2012) 208 Cal.App.4th 201, 210.) 

I. Administrative Review 

 Plaintiffs Robert and Linda Freeny (plaintiffs) own two adjacent 

parcels of land in mid-town City of San Buenaventura (City). For three years, they 

worked with their own architect and consulted with the City's staff to design a living 

facility for senior citizens. The City's planning commission (Planning Commission) 

eventually approved a 44-unit, 42,172-square foot facility (the Project), and 

concomitantly granted a conditional use permit, a design review, an administrative 

variance, and a lot-line adjustment. 

 A group of 35 persons living near the proposed facility appealed the 

Planning Commission's decision to the City Council. Following a remand to the 

Planning Commission for further fact-finding, the City Council took up the matter 

at a public hearing. On a five-to-two-vote, the City Council approved the 

neighbors' appeal and overturned the Planning Commission's approval. In so doing, 

the City Council found that building a facility of that "size" on a "street-to-street 

lot" was "incompatible" with the "existing residential neighborhood." The City 

Council stated that plaintiffs "need[ed] to rethink the entirety of the project," but 

that its denial was "without prejudice" and invited plaintiffs to submit a 

"redesign[ed]" project. The City Council subsequently adopted a formal resolution 

sustaining the appeal "without prejudice." 

II. Plaintiffs' Complaint

 Plaintiffs sued the City and five City Council members (collectively, 

defendants) who voted to reject the Project.2

 The complaint includes a petition for 

 2

 Plaintiffs also sued two neighbors who oppose the Project, but the 

trial court struck plaintiffs' claims against the neighbors under the anti-SLAPP law. 

Plaintiffs do not appeal that ruling. 
3 

administrative mandamus seeking an order (1) commanding the City to approve the 

Project or (2) requiring a new hearing before the City Council. The complaint also 

prays for $1.8 million in compensatory damages and additional punitive damages 

arising from tort claims for fraud, misrepresentation and, because plaintiffs are in 

their 70s, elder abuse. 

III. The Trial Court's Ruling

 The trial court sustained defendants' demurrers without leave to 

amend on two grounds. First, the court concluded that plaintiffs' lawsuit was not 

ripe because the City's denial "without prejudice" left administrative remedies 

unexhausted. The court rejected plaintiffs' arguments that further exhaustion was 

futile or would irreparably injure plaintiffs. Second, the court ruled that defendants 

were immune from liability for adopting laws under sections 818.2 and 821; for 

denying permits or similar authorizations under sections 818.4 and 821.2; and for 

exercising their discretion under section 820.2. The court concluded that this 

immunity applied "irrespective of the specific causes of action" plaintiffs alleged. 

DISCUSSION 

 We independently review the trial court's sustaining of a demurrer. 

(San Mateo Union High Sch. Dist. v. County of San Mateo (2013) 213 Cal.App.4th 

418, 425 (San Mateo).) In so doing, we accept the complaint's allegations as true 

and construe them liberally to attain substantial justice among the parties. (Ibid.) 

We review the trial court's decision not to grant leave to amend for an abuse of 

discretion. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091 (Reynolds), 

abrogated on other grounds in Martinez v. Combs (2010) 49 Cal.4th 35, 62-66.) On 

appeal, plaintiffs bear the burden of establishing error. (San Mateo, supra, at p. 

426.) 

I. Exhaustion of Administrative Remedies

 When an administrative forum exists for presenting claims, a party is 

usually required to present claims in that forum before "resorting to the courts . . . ." 

(Coachella Valley Mosquito Vector Control Dist. v. California PERB (2005) 35 
4 

Cal.4th 1072, 1080.) "Exhaustion requires 'a full presentation to the administrative 

agency upon all issues of the case and at all prescribed stages of the administrative 

proceedings.'" (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 

49 Cal.4th 597, 609, quoting Bleeck v. State Bd. of Optometry (1971) 18 Cal.App.3d 

415, 432.) 

 This is not a case where the would-be litigant skipped the 

administrative procedures entirely. To the contrary, plaintiffs presented their 

application for building permits and variances to the Planning Commission and the 

City Council. Plaintiffs also obtained a definitive ruling rejecting their application 

as to the 42,172-square foot project that underlies this lawsuit. 

 Defendants contend that this was still not enough. Defendants note 

that the City Council's rejection was "without prejudice," and argue that plaintiffs 

have yet to avail themselves of their right under the City's municipal code (SBMC) 

to file a new application with the Planning Commission. (See SBMC 

§ 24.565.050(H).) Because the City Council advised plaintiffs that they would 

"need" to "rethink" and "redesign" "the entirety of the project" before submitting a 

new application, the question presented is whether the duty to exhaust 

administrative remedies requires plaintiffs to reexhaust their remedies by vetting an 

entirely different project through the same administrative process even though the 

project they seek to challenge judicially has already been definitively rejected 

through that process. We review this question de novo. (Sierra Club v. City of 

Orange (2008) 163 Cal.App.4th 523, 536.) 

 Whether reexhaustion with an entirely different project is required 

depends on the nature of the subsequent judicial challenge. If a plaintiff is claiming 

that a government entity has effected a regulatory taking by "'. . . deny[ing] [her] all

economically beneficial or productive use . . .'" of her property, denial of a single 

use or project may not be sufficient. (Landgate, Inc. v. California Coastal Com.

(1998) 17 Cal.4th 1006, 1017, citing Lucas v. South Carolina Coastal Council

(1992) 505 U.S. 1003, 1015, italics added.) Presentation and rejection of other 
5 

uses—that is, reexhaustion—may also be necessary to establish that the property

has no use. (See Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 

1299-1301; Del Monte Dunes v. City of Monterey (9th Cir. 1990) 920 F.2d 1496, 

1501.) 

 However, when all a plaintiff challenges is the denial of a specific use 

through denial of a special project, the plaintiff need only show that the 

administrative agency has finally ruled on that project. Requiring reexhaustion in 

these circumstances would pervert the exhaustion requirement. No longer would 

exhaustion be a means of allowing administrative agencies the opportunity to apply 

their expertise and flesh out facts. (Williams v. Housing Auth. of Los Angeles

(2004) 121 Cal.App.4th 708, 722.) Instead, exhaustion would become a tool for 

forestalling judicial review indefinitely by leaving the door open for further 

applications. 

 Because plaintiffs are not raising a regulatory takings claim and are 

challenging only the denial of the Project, the City Council's unequivocal rejection 

of the Project satisfies the exhaustion requirement. 

II. Immunity From Tort Damages

 Plaintiffs contest the trial court's ruling that defendants are immune 

from liability for tort damages under the Act. (§ 810 et seq.) We independently 

review the trial court's construction and application of the Act. (Coito v. Super. Ct.

(2012) 54 Cal.4th 480, 488 [statutory construction]; Alvarez v. State of Calif. (1999) 

79 Cal.App.4th 720, 728 [application], abrogated on other grounds in Cornette v. 

Dept. of Transportation (2001) 26 Cal4th 63, 74, fn. 3.) 

A. City Council Defendants

 When it comes to tort suits against public employees, "'the rule is 

liability, immunity is the exception.' [Citation.]" (Ramos v. County of Madera

(1971) 4 Cal.3d 685, 692, limited on other grounds by Caldwell v. Montoya (1995) 

10 Cal.4th 972, 978, fn. 8 (Caldwell); see also § 820, subd. (a) ["Except as 

otherwise provided by statute . . ., a public employee is liable for injury caused by 
6 

his act or omission to the same extent as a private person"].) However, the Act 

declares that "a public employee is not liable for an injury resulting from his act or 

omission where the act or omission was the result of the exercise of discretion 

vested in him, whether or not such discretion be abused." (§ 820.2.) At the core of 

this immunity are "'"basic policy decisions."'" (Ogborn v. City of Lancaster (2002) 

101 Cal.App.4th 448, 460.) Dovetailing neatly with this overarching immunity for 

discretionary policy making, the Act also confers immunity upon public employees 

for "fail[ing] to adopt an enactment" (§ 821); and for "deny[ing]" or "refus[ing] to 

issue" "permit[s]" and "approval[s]" (§ 821.2). The City Council defendants in this 

case are accordingly immune from tort damages under the Act. They are "public 

employees" (§ 811.4), and they are being sued for their discretionary legislative 

decision not to grant plaintiffs' application for building permits and variances (see 

Ogborn, supra, at p. 462). 

 Plaintiffs challenge this conclusion on two grounds. We consider and 

reject each. 

 1. Liability for Misrepresentations Motivated by "Actual Fraud, 

Corruption or Actual Malice"

 Plaintiffs contend that the Act's immunity for legislative policy 

making is limited by the exception to the immunity conferred by a different 

provision of the Act, section 822.2. That section provides that "[a] public 

employee acting in the scope of his employment is not liable for an injury caused by 

his misrepresentation, whether or not such misrepresentation be negligent or 

intentional, unless he is guilty of actual fraud, corruption or actual malice." (Ibid., 

italics added.) Plaintiffs assert that section 822.2's exception should also operate as 

an exception to the immunities conferred by sections 820.2, 821 and 821.2 for 

legislative policy making. The cross-applicability of section 822.2's exception 

presents an issue of statutory construction. Our touchstone in this task is the 

Legislature's intent. (People v. Skiles (2011) 51 Cal.4th 1178, 1185.) 
7 

 The starting point for ascertaining legislative intent is the language 

used in the statute itself. (People v. Valladoli (1996) 13 Cal.4th 590, 597.) The 

language here is ambiguous. On the one hand, sections 820.2, 821 and 821.2 do not 

themselves contain any exception for misrepresentations motivated by actual fraud, 

corruption or actual malice. In Tur v. City of Los Angeles (1996) 51 Cal.App.4th 

897, the court held that section 822.2's exception did not apply when a public 

employee was relying on an immunity conferred by a different section of the Act. 

(Tur, supra, at pp. 902-903 [not applying § 822.2's exception to immunity against 

malicious prosecution actions].) Tur seemingly rejects plaintiffs' similar entreaty to 

export section 822.2's exception to other immunities. On the other hand, if we 

follow the maxim that statutes are to be read "'with reference to the entire scheme of 

law of which [they are a] part'" (People v. Pieters (1991) 52 Cal.3d 894, 899, 

quoting Clean Air Constituency v. California State Air Resources Bd. (1971) 11 

Cal.3d 801, 814), we could read section 822.2's exception as an exception to every 

immunity conferred by the Act. Indeed, section 820.2 explicitly notes that its 

immunity may be abrogated "as otherwise provided by statute." 

 When the plain language of a statute is inconclusive, we must look 

elsewhere for affirmative indications of legislative intent. (Pacific Palisades Bowl 

Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 803.) In this 

case, it is clear that the Legislature intended the immunity from tort liability 

attaching to legislative policy making decisions to apply even when legislators 

acted with improper motives. Section 820.2 is the critical immunity provision here 

because the City Council defendants' discretionary decision was voting against a 

resolution and thereby denying permits and variances. On these facts, section 

820.2's broader immunity embraces the more specific immunities for voting on 

resolutions and denying permits and variances conferred by sections 821 and 821.2. 

 The Legislative Committee's comment indicates that section 820.2 

was meant to "restate[] pre-existing California law" (Legis. Com. com., West's Ann. 

Gov. Code, foll. § 820.2), and directs the reader to Lipman v. Brisbane Elementary 
8 

School District (1961) 55 Cal.2d 224, superseded by section 815, and White v. 

Towers (1951) 37 Cal.2d 727 (White). Lipman and White hold that "government 

officials are not personally liable for their discretionary acts within the scope of 

their authority even though it is alleged that their conduct was malicious. 

[Citations.]" (Lipman, supra, at p. 229; White, supra, at p. 730.) They reason that 

although absolute immunity from tort damages undercuts the "public policy of 

protecting individuals from oppressive official action" (White, supra, at p. 729), 

such immunity is necessary because "experience has shown that the common good 

is best served by permitting law enforcement officers to perform their assigned 

tasks without fear of being called to account in a civil action" (id., p. 730). White

further notes that immunity from tort damages removes one possible deterrent 

against maliciously motivated conduct, but concludes that the threats of criminal 

prosecution and of "'. . . being ousted from office on that account . . .'" are sufficient 

surrogates (ibid.). 

 The logic underlying these cases applies even more forcefully in the 

context of legislator's discretionary, policy-making decisions. Like all other public 

employees, legislators benefit from immunity that does not dissipate "'. . . upon the 

mere allegation of improper motives or unlawful acts . . .'" because such immunity 

eliminates the "'. . . threat of personal liability . . .'" (Martelli v. Pollock (1958) 162 

Cal.App.2d 655, 659), and frees public employees to exercise their "'. . . honest 

judgment uninfluenced by fear of consequences personal to themselves . . .'" (White, 

supra, 37 Cal.2d at p. 732). In short, absolute immunity makes sure that "'. . . it is 

not a tort for Government to govern. . . .'" (HFH, Ltd. v. Super. Ct. of Los Angeles 

County (1975) 15 Cal.3d 508, 519, quoting Dalehite v. United States (1952) 346 

U.S. 15, 57 (Jackson, J., dissenting).) 

 With legislators, absolute immunity also furthers the separation of 

powers. The judiciary is not in the business of "'. . . inquir[ing] into the "motivation 

or mental processes" which may underlie action by a nonjudicial agency of 

government.'" (Blank v. Kirwan (1985) 39 Cal.3d 311, 324, quoting In re Fain
9 

(1976) 65 Cal.App.3d 376, 393, fn. 14.) This is why an elected "official's motives, 

no matter how self-interested they may be, cannot vitiate otherwise valid 

government action. [Citations.]" (Blank, supra, at p. 325.) A rule hinging tort 

immunity on whether legislators made misrepresentations motivated by "actual 

fraud, corruption, or actual malice" (§ 822.2) would put legislators' motives front 

and center. It would also put judges in the uncomfortable position of "question[ing] 

the wisdom of . . . legislative decision[s] through tort litigation. [Citation.]" (Wood 

v. County of San Joaquin (2003) 111 Cal.App.4th 960, 972; Caldwell, supra, 10 

Cal.4th at p. 981 [noting how judicial review might "'. . . affect the coordinate 

body's decision-making process'"].) This threat to the constitutionally mandated 

separation of powers counsels against plaintiffs' construction. (People v. Leiva

(2013) 56 Cal.4th 498, 506-507 ["'. . . when faced with an ambiguous statute that 

raises serious constitutional questions, [we] should endeavor to construe the statute 

in a manner which avoids any doubt concerning its validity'"], quoting Young v. 

Haines (1986) 41 Cal.3d 883, 898.) 

 Even if our Legislature's intent were not so clear, we are still required 

to construe statutes to be "'. . . consistent with justice and common sense . . .'" 

rather than to "'. . . lead[] to mischief or absurdity. . . .'" (Shoemaker v. Myers

(1992) 2 Cal.App.4th 1407, 1424, quoting Lampley v. Alvarez (1975) 50 

Cal.App.3d 124, 128-129.) Plaintiffs' proffered construction falls into this latter 

category because it would allow section 822.2's exception to swallow the rule of 

immunity in sections 820.2, 821 and 821.2. By the simple expedient of specifically 

pleading that a legislator's policy decision was motivated by fraud, malice or 

corruption, an unhappy constituent could subject that legislator to protracted pretrial 

litigation or trial, even if the legislator is ultimately vindicated. This threat of 

harassment and personal liability is precisely what the immunity in sections 820.2, 

821 and 821.2 was enacted to prevent. Plaintiffs' construction of the Act would 

accordingly "frustrate the legislative purpose" behind these immunities. 

(Shoemaker, supra, at pp. 1424-1425, quoting Barber v. Blue (1966) 65 Cal.2d 185, 
10 

188.) We have rejected similar attempts to "abrogate" immunities by 

"maneuvering" the "rules of pleading and procedure." (O'Hagan v. Bd. of Zoning 

Adjustment (1974) 38 Cal.App.3d 722, 730; accord, Land Waste Management v. 

Contra Costa County Bd. of Supervisors (1990) 222 Cal.App.3d 950, 962-963;

Mikkelsen v. State of Calif. (1976) 59 Cal.App.3d 621, 630.) 

 By contrast, reading section 822.2's exception for misrepresentations 

motivated by actual fraud, corruption or actual malice as not qualifying the tort 

immunity that otherwise attaches to legislators' policy making decisions best 

harmonizes the legislative intent behind all of these provisions. It effectuates the 

intent behind sections 820.2, 821 and 821.2 by eliminating the danger of harassment 

and chilling that springs from susceptibility to tort lawsuits while preserving 

oversight by criminal prosecution and by the electorate. At the same time, this 

construction appropriately circumscribes the immunity for misrepresentations 

conferred by section 822.2. Public employees not engaged in legislative or other 

discretionary policy making remain liable for misrepresentations they make in the 

course of their employment if those misrepresentations (1) do not interfere with 

commercial or financial interests (Johnson v. State of Cal. (1968) 69 Cal.2d 782, 

790-800 [parole officer's act in not warning foster parents of teenager's homicidal 

tendencies not covered by § 822.2]; Bastian v. County of San Luis Obispo (1988) 

199 Cal.App.3d 520, 532-533 [police officer's act in misrepresenting accident 

victim's use of alcohol not covered by § 822.2]; Michael J. v. Los Angeles County 

Dept. of Adoptions (1988) 201 Cal.App.3d 859, 868 [county employees acts in 

misrepresenting adopted baby's medical condition not covered by § 822.2]); or 

(2) are pled with specific facts and subsequently proven to be motivated by actual 

fraud, corruption or actual malice, Masters v. San Bernardino County Employees 

Retirement Assn. (1995) 32 Cal.App.4th 30, 42 & fn. 9 (Masters) [county plan 

administrator may be liable under § 822.2's exception for hiding medical reports to 

prevent plaintiff from being found eligible for disability pension]; cf. Golden West 

Baseball Company v. Talley (1991) 232 Cal.App.3d 1294, 1305-1306 [city manager 
11 

would not be entitled to judgment on immunity grounds for misrepresenting 

plaintiffs' rights under lease if plaintiffs had produced any evidence of fraud or 

corruption], disapproved on other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 

512, 526-527; accord, Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 

649 ["the pleader must . . . allege facts" supporting actual fraud, corruption or actual 

malice; "conclusory allegations" insufficient to survive demurrer].3

 For these reasons, we conclude that the City Council defendants are 

immune from tort damages for their legislative denial of plaintiffs' application. 

 2. Constitutional arguments

 Plaintiffs alternatively contend that their tort suit against the City 

Council defendants is premised largely on violations of procedural due process. In 

particular, plaintiffs allege that (1) the City Council's findings differed from the 

Planning Commission's findings; (2) plaintiffs received less speaking time than the 

35 opponents to their application at the City Councils' meeting; (3) some of the City 

Council defendants labored under an unspecified "conflict of interest"; and (4) a 

staff member referred to plaintiffs' project as having the incorrect number of 

parking spaces (18 instead of 19), which shows that the City Council defendants 

were evaluating the wrong set of plans. 

 To be sure, the courts are currently divided on the question of whether 

the Act's immunities extend to claims of constitutional error. (Compare Rosenthal 

v. Vogt (1991) 229 Cal.App.3d 69, 75 [immunity applies to claim for denial of a fair 

hearing]; State of Cal. v. Super. Ct. (1974) 12 Cal.3d 237, 244-245 [same] with 

Young v. County of Marin (1987) 195 Cal.App.3d 863, 869 [immunity does not 

apply to a claim for a First Amendment violation].) But we need not resolve that 

 3 Because all of these sections were enacted together as part of the Act 

in 1963, the canons of statutory construction giving effect to specific statutes over 

general statutes (Arterberry v. County of San Diego (2010) 182 Cal.App.4th 1528, 

1536), and to later-enacted statutes (DeJung v. Super. Ct. (2008) 169 Cal.App.4th 

533, 547), are of no assistance. 
12 

issue because tort damages are in any event unavailable for the procedural due 

process violations. (Katzberg v. Regents of Univ. of Calif. (2002) 29 Cal.4th 300, 

321, 324.) 

B. The City 

The City is a "public entity" presumptively immune from tort liability. 

(§§ 815, subd. (a), 811.2; McCarty v. Dept. of Transp. (2008) 164 Cal.App.4th 955, 

961.) The Act nevertheless specifies the situations in which a public entity may be 

(1) directly liable for injuries (§§ 815.4, 815.6, 818.5); or (2) vicariously liable for 

injuries caused by its employees (§ 815.2, subd. (a); M.P. v. City of Sacramento

(2009) 177 Cal.App.4th 121, 128-129; accord, Bradford v. State of Calif. (1973) 

36 Cal.App.3d 16, 20-21 [public entity has both direct and vicarious liability].) 

 Plaintiffs allege that the City is liable for two reasons. First, they 

argue that the City is vicariously liable for the City Council defendants' actionable 

misrepresentations, even though the City cannot be held directly liable for any 

misrepresentations under section 818.8. We reject this argument for two reasons. 

As we discuss above, the City Council defendants are themselves immune. Because 

they are immune, so is the City. (§ 815.2, subd. (b) ["a public entity is not liable for 

an injury resulting from an act or omission of an employee of the public entity 

where the employee is immune from liability"].) Even if we had concluded that 

section 822.2's exception applied to the City Council defendants and rendered them 

potentially liable, it is well settled that section 818.8 confers upon public entities an 

absolute immunity for all misrepresentations, and that this immunity trumps any 

vicarious liability for egregious misrepresentations of its employees actionable 

against the employees themselves. (Harshbarger v. City of Colton (1988) 197 

Cal.App.3d 1335, 1340-1341; Universal By-Products, Inc. v. City of Modesto

(1974) 43 Cal.App.3d 145, 154.) 

 Second, plaintiffs argue that section 815.3, subdivision (a), renders the 

City jointly liable in tort as long as the City is named in their complaint as a 

codefendant with an "elected official." We disagree. Section 815.3 erects a rule of 
13 

pleading requiring a public entity to be named as a joint tortfeasor before judgments 

against an elected official may be enforced against that entity. Section 815.3 does 

not purport to eliminate all of a public entity's tort immunities once that entity is 

alleged to be a codefendant. 

III. Mandamus Petition

 Because the trial court ruled that plaintiffs had not exhausted their 

administrative remedies, it had no occasion to decide the propriety of plaintiffs' 

request for mandamus relief. The Act's immunity reaches only "personal tort 

liability" and does not immunize against or otherwise preclude mandamus review. 

(Masters, supra, 32 Cal.App.4th at p. 47, fn. 11.) Because plaintiffs' prayer for 

mandamus relief has yet to be considered, we would ordinarily remand the issue to 

the trial court. However, we conclude that remand would be futile because 

plaintiffs are not entitled to this relief as a matter of law. (Aryeh v. Canon Business 

Solutions (2012) 55 Cal.4th 1185, 1191.) 

 Plaintiffs ground their request for mandamus on three theories. First, 

they seek an order compelling defendants to grant their application because City 

Council members had so promised. This is indistinguishable from a claim that 

defendants are estopped by their prior statements, and estoppel does not lie against 

the government in this context. (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 

321-324.) 

 Second, plaintiffs seek a new hearing before the City Council because 

the City Council's review did not comply with procedural due process. A viable 

due process claim rests on the deprivation of a protected property interest. Because 

plaintiffs had no entitlement to a permit or variance at the time the City Council 

rejected their application (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 

1152, 1182-1183), they lack the necessary predicate for a procedural due process 

claim. 

 Lastly, plaintiffs allege that the defendants did not "follow legal 

standards." Because public agencies are presumed to regularly perform their 
14 

official duty (Evid. Code, § 664; Moore v. Twentynine Palms County Water Dist. 

(1957) 156 Cal.App.2d 109, 111 [presumption applies at demurrer stage]), a 

plaintiff must plead sufficient facts to overcome that presumption (Schwartz v. 

Poizner (2010) 187 Cal.App.4th 592, 599; Romero v. County of Santa Clara (1970) 

3 Cal.App.3d 700, 703-704.) Plaintiffs' bare allegation that defendants did not 

"follow legal standards," without more, is insufficient. Moreover, because plaintiffs 

have not sought to provide any additional explication to the trial court or this court, 

we conclude that plaintiffs have not established "a reasonable possibility" that this 

defect can be cured by further amendment of their complaint. (Reynolds, supra, 36 

Cal.4th at p. 1091.) 

DISPOSITION 

 The judgment is affirmed. Costs on appeal are awarded to defendants. 

 CERTIFIED FOR PUBLICATION.

 HOFFSTADT, J.* 

We concur: 

 YEGAN, Acting P. J. 

 PERREN, J 

 

 * (Judge of the Superior Court of Los Angeles County, assigned by the 

Chief Justice pursuant to art. 6, § 6 of the Cal. Const.) 
Rebecca S. Riley, Judge 

Superior Court County of Ventura 

______________________________ 

 Law Offices of James B. Devine and James B. Devine for Plaintiffs and 

Appellants. 

 Ariel Pierre Calonne, City Attorney, Andy H. Viets, Senior Assistant 

Attorney, Jennifer Lee, Assistant City Attorney for Defendants and Respondents.