Filed 12/14/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

AIDS HEALTHCARE 

FOUNDATION,

Plaintiff and Appellant,

v.

CITY OF LOS ANGELES et al.,

Defendants and Respondents.

 B311144

 (Los Angeles County

 Super. Ct. No. 20STCV29238)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed.

Thomas A. Myers, Jonathan M. Eisenberg, Kirra N. Jones

and David M. Gruen for Plaintiff and Appellant.

Michael N. Feuer, City Attorney, Scott Marcus, Chief 

Assistant City Attorney, Blithe S. Bock, Managing Assistant City 

Attorney, Michael M. Walsh, Deputy City Attorney, for 

Defendants and Respondents.

__________________________________
2

INTRODUCTION

This appeal pits the anti-corruption objectives of the 

Political Reform Act of 1974 (PRA) (Gov. Code, § 81000 et seq.) 

against the desire for certainty in real estate development that 

animates the 90-day statute of limitations period in Government 

Code sections 65009 and 66499.37. Appellant AIDS HealthCare 

Foundation (AHF) challenges land use decisions by the Los 

Angeles City Council planning and land use management 

(PLUM) committee, made while two of its members allegedly 

were the beneficiaries of an extensive, ongoing bribery scheme

directed at PLUM committee projects. AHF contends the threeyear catch-all statute of limitations in Code of Civil Procedure 

section 338, subdivision (a), applies to those PRA claims. 

Respondents City of Los Angeles and the Los Angeles City 

Council (collectively the City)1 assert that the more specific 

90-day statutes of limitation in Government Code sections 65009 

and 66499.37 apply.

2 In particular, section 65009 governs any 

action designed to “attack, review, set aside, void, or annul” a 

wide variety of land use decisions, including “to adopt or amend a 

general or specific plan,” zoning, development agreements, and 

any conditions attached to variances, conditional use permits, “or 

any other permit.” (§ 65009, subd. (c).) The trial court, following 

precedent involving a predecessor statute to section 65009,

agreed with the City, sustained the City’s demurrer without 

leave to amend, and dismissed the case. We affirm.

1 Although not listed as a party on the complaint’s caption 

page, the pleading identifies Los Angeles Mayor Eric Garcetti as 

an additional defendant sued in his official capacity.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. The PLUM Committee

The PLUM committee consists of five councilmembers from 

the 15-member Los Angeles City Council.

3 It oversees the 

Planning Department’s development of land use plans and zoning 

and environmental review laws. The PLUM committee also

reviews and votes on proposed real estate projects that seek 

discretionary approvals. These approvals often require 

“overruling the usual planning and zoning rules that apply to 

average residents and small businesses of the City.” The PLUM 

committee holds considerable sway over the hearing of real estate 

development projects because, after the PLUM committee issues 

its recommendation to the city council, the clerk puts the item on 

a “consent-type section” of the meeting. From there, if no 

councilmember requests the full City Council hold a hearing 

about the project, the City Council approves the item in a “quick 

mass vote without public comment.” “These votes happen so fast 

that often times the public attending the hearing does not even 

realize it has occurred.” The chair of the PLUM committee has 

particular power because the chair exercises control over the 

committee agenda and “can be a single bottleneck for whether or 

not a real estate project receives a hearing and goes on to City 

Council with a positive recommendation.”

2 Further statutory references are to the Government Code 

unless otherwise designated.

3 We draw our recitation of the factual background from 

AHF’s complaint.
4

B. Corruption on the PLUM Committee

In 2020 a federal criminal investigation revealed that two 

former city councilmembers, Jose Huizar and Mitchell 

Englander, allegedly engaged in bribery and other corruption in 

connection with their work on the PLUM committee.

Englander sat on the PLUM committee from 2012 until his 

resignation in October 2018. In January 2020, after a five-year

investigation, a federal grand jury indicted Englander for

falsifying material facts, making false statements, and witness 

tampering. The indictment alleged that Englander had accepted 

tens of thousands of dollars of cash bribes in the bathrooms of a 

Las Vegas casino, plus additional bribes of hotel rooms and other 

gifts from a businessman while on trips to Palm Springs and Las 

Vegas with several people, including a real estate developer. 

Englander pleaded guilty to federal charges for obstruction of 

justice.

Huizar sat on the PLUM committee as a member and/or its 

chair from 2007 until his removal in November 2018. In June 

2020 federal law enforcement arrested Huizar on corruption 

charges, including racketeering, bribery, and money laundering. 

According to the Los Angeles Times, federal prosecutors alleged

that, beginning in 2013, Huizar exploited his position of power on 

the PLUM committee “‘to run a team of aid[e]s, consultants and 

other associates who extracted an enormous amount of cash and 

campaign donations, multiple casino trips and other personal 

indulgences from real estate developers.’” Huizar stands accused 

of accepting $1.5 million in bribes, gifts, and other inducements 

from real estate developers “to steer their projects for approval” 

through the PLUM committee and ultimately the City Council.
5

Around the same time as Huizar’s arrest, the City 

commenced ‘“revocation proceedings of approvals”’ as to one real 

estate development project in downtown Los Angeles linked to 

the criminal charges. Soon, prosecutors identified another 

project implicated in Huizar’s illicit behavior. AHF alleges the 

corruption taints at least two other projects. In addition, the 

Los Angeles City Attorney is investigating other real estate 

development projects with possible ties to the scandal, and other 

city councilmembers have requested a formal review of such 

projects. AHF summarizes these events as an “ongoing 

corruption scandal regarding the approval of real estate projects”

in Los Angeles.

C. AHF’s Claims

On August 4, 2020, nearly two years after either Englander 

or Huizar last sat on the PLUM committee or took any official 

act, AHF, a nonprofit organization4 with its headquarters in 

Los Angeles, filed the instant action against the City. AHF

alleged two causes of action: (1) injunctive relief for violation of 

the PRA, and (2) taxpayer action to prevent waste (Code Civ. 

Proc., § 526a). In the first cause of action, AHF alleged that, if 

the accusations against Huizar and Englander prove true, their 

misconduct violated the PRA, “including but not limited [to 

Government Code] section 87100.” AHF further alleged that 

because both Huizar and Englander sat on the PLUM committee, 

each had “the ability and influence to approve or disapprove real 

estate projects.” AHF asserted that, pursuant to section 91003,

the court is “empowered to ‘restrain the execution of any official 

4 AHF provides affordable housing to formerly homeless and 

low-income individuals and advocacy on issues of affordable 

housing, homelessness, and gentrification.
6

action in relation to which such a violation occurred’” and that 

“[t]his includes the restraining of permits.” AHF thus “seeks an 

order restraining building permits granted by the City of 

Los Angeles during” the period of time when Huizar and/or 

Englander “sat on the PLUM committee and engaged in 

violations of Government Code Section 81000 with respect to the 

permits.” In its taxpayer waste cause of action, AHF also “seeks 

an Order restraining the City from utilizing any further taxpayer 

funds, personnel efforts, or resources with respect to these 

projects.”

AHF prayed for preliminary and permanent injunctive 

relief prohibiting the City “from taking any further actions or 

expend[ing] any taxpayer funds to facilitate, review, process, or 

see to completion any building project approved during” Huizar’s

and/or Englander’s tenure on the PLUM committee “and 

established to be engaged in violations of Government Code 

Section 81000 et seq. with respect to the project’s approval.” 

AHF also sought permanent injunctive relief “setting aside any 

project approval” made during Huizar’s and/or Englander’s time 

on the PLUM committee where “it is ultimately determined that 

a violation of Government Code Section 81000 et seq. has 

occurred and that the project might not otherwise [have] been 

approved.” AHF prayed for its costs and attorneys’ fees.

D. The City’s Demurrer

On September 23, 2020, the City demurred to AHF’s 

complaint, identifying a number of purportedly incurable 

deficiencies. Central to this appeal, the City sought dismissal on 

the ground that the 90-day statutes of limitation contained in 

sections 65009 and 66499.37 barred AHF’s claim. The City relied 
7

heavily on a factually similar case, Ching v. San Francisco Bd. of 

Permit Appeals (1998) 60 Cal.App.4th 888 (Ching).

AHF opposed the demurrer, primarily by attempting to

distinguish Ching factually and legally. AHF asserted the PRA’s 

four-year statute of limitations contained in section 91011, 

subdivision (b), governed. AHF argued that applying the 90-day 

time bar applicable to land use permit challenges would 

constitute “an impermissible amendment of the PRA” and 

“decimate[]” the PRA’s “robust enforcement mechanisms” 

including its “four-year statute of limitations.” Counsel for AHF 

argued at the demurrer hearing that “[u]nder the Political 

Reform Act, under Government Code section 91011(b), there’s an 

express statute of limitations of four years.” AHF also argued

that even if the 90-day statute of limitations applied, Huizar’s 

“fraudulent concealment of his criminal acts” tolled the

commencement of the limitations period until his June 2020

arrest, making AHF’s August complaint timely even under the 

shorter statute of limitations.

On December 7, 2020, the trial court heard and sustained 

the City’s demurrer without leave to amend, stating that the 

court “disagree[s] with plaintiff” and “believe[s] that Ching is 

controlling.” The trial court issued its written judgment in favor 

of the City on December 29, 2020, dismissing AHF’s action. AHF 

timely appealed.

DISCUSSION

A. Standard of Review

“We independently review the superior court’s ruling on a 

demurrer and determine de novo whether the complaint alleges 

facts sufficient to state a cause of action or discloses a complete 
8

defense.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 

719, 725.) “We assume the truth of properly pleaded factual 

allegations, facts that reasonably can be inferred from those 

expressly pleaded, and matters that are judicially noticeable.” 

(Genis v. Schainbaum (2021) 66 Cal.App.5th 1007, 1015; accord, 

Ivanoff, at p. 725.) 

“The application of the statute of limitations on undisputed 

facts is a purely legal question,” which, on appeal from a 

demurrer, requires that we “take the allegations of the operative 

complaint as true and consider whether the facts alleged 

establish [plaintiff’s] claim is barred as a matter of law.”

(Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 

1191; accord, San Diego Unified School Dist. v. Yee (2018) 

30 Cal.App.5th 723, 730.) “De novo review is also appropriate 

where, as here, the appeal involves a question of statutory 

interpretation.” (Lopez v. Friant & Associates, LLC (2017) 

15 Cal.App.5th 773, 777; accord, Bruns v. E-Commerce Exchange, 

Inc. (2011) 51 Cal.4th 717, 724.)

Where the trial court has sustained a demurrer without 

leave to amend, we must also “‘determine whether or not the 

plaintiff could amend the complaint to state a cause of action.’” 

(Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) 

However, “the burden falls upon the plaintiff to show what facts 

he or she could plead to cure the existing defects in the 

complaint. [Citation.] ‘To meet this burden, a plaintiff must 

submit a proposed amended complaint or, on appeal, enumerate 

the facts and demonstrate how those facts establish a cause of 

action.”’ (Ibid.; see Schifando v. City of Los Angeles (2003) 

31 Cal.4th 1074, 1081 [“[t]he plaintiff has the burden of proving 

that an amendment would cure the defect”].) 
9

B. The 90-day Statute of Limitations in Section 65009 Bars 

AHF’s Claims

1. The Political Reform Act

The voters approved the PRA in 1974 as an initiative

measure (Proposition 9). The PRA “‘concern[ed] elections and 

different methods for preventing corruption and undue influence 

in political campaigns and governmental activities.’” (Howard 

Jarvis Taxpayers Assn. v. Newsom (2019) 39 Cal.App.5th 158, 

162.) 

Section 81700 of the PRA provides that “[a] public official 

at any level of state or local government shall not make, 

participate in making, or in any way attempt to use the public 

official’s official position to influence a governmental decision in 

which the official knows or has reason to know the official has a 

financial interest.” In addition to other types of permitted 

actions, section 91003, subdivision (a), provides that “[a]ny 

person residing in the jurisdiction may sue for injunctive relief to 

enjoin violations or to compel compliance with the provisions of 

this title.” Subdivision (b) states, in relevant part, that “[u]pon a 

preliminary showing in an action brought by a person residing in 

the jurisdiction that a violation of Article 1 (commencing with 

Section 87100) . . . of this title . . . occurred, the court may 

restrain the execution of any official action in relation to which 

such a violation occurred, pending final adjudication. If it is 

ultimately determined that a violation has occurred and that the 

official action might not otherwise have been taken or approved, 

the court may set the official action aside as void. The official 

actions covered by this subsection include, but are not limited to, 

orders, permits, resolutions, and contracts . . . . In considering 

the granting of preliminary or permanent relief under this 
10

subsection, the court shall accord due weight to any injury that 

may be suffered by innocent persons relying on the official 

action.” (§ 91003, subd. (b).) 

As originally enacted, the PRA included a two-year statute 

of limitations in section 91011 for civil actions brought pursuant 

to sections 91004 (reporting requirements) or 91005 (unlawful 

contributions, gifts, or expenditures and “economic benefits” 

realized from a conflict of interest), both of which provided for 

monetary damages. In 1980, the Legislature amended 

section 91011 to create subdivisions (a) and (b), the latter of 

which provided a statute of limitations period for civil actions 

other than those described in subdivision (a). That section now

provides: “(a) No civil action alleging a violation in connection 

with a report or statement required by Chapter 4 (commencing 

with Section 84100) shall be filed more than four years after an 

audit could begin as set forth in subdivision (c) of Section 90002, 

or more than one year after the Franchise Tax Board forwards its 

report to the commission, pursuant to Section 90004, of any audit 

conducted of the alleged violator, whichever period is less. [¶] 

(b) No civil action alleging a violation of any provisions of this 

title, other than those described in subdivision (a), shall be filed 

more than four years after the date the violation occurred.”

(§ 91011.)

2. Section 65009 

In contrast to the four-year statute of limitations contained 

in the PRA, section 65009 prescribes a 90-day statute of 

limitations to challenge certain land-use decisions. The 

shortened limitations period found in section 65009 predates the 

PRA by nearly a decade. In 1965, the legislature enacted former 

section 65907, the predecessor statute to section 65009. As 
11

originally enacted, former section 65907 provided in relevant 

part: “Any action or proceeding to attack, review, set aside, void 

or annul any decision of matters listed in Sections 65901 and 

65903, or concerning any of the proceedings, acts or 

determinations taken, done or made prior to such decision, or to 

determine the reasonableness, legality or validity of any 

condition attached thereto, shall not be maintained by any person 

unless the action or proceeding is commenced within 180 days 

after the date of such decision. Thereafter all persons are barred 

from any such action or proceeding or any defense of invalidity or 

unreasonableness of such decision or of such proceedings, acts or 

determinations.” (Stats. 1965, ch. 1341, § 5, p. 3228.) In 1983, 

the Legislature shortened the 180 days to the current 90 days. 

(Ching, supra, 60 Cal.App.4th at p. 893, citing to Stats. 1983, 

ch. 1138, § 2, p. 4314.) 

In 1996, the Legislature repealed former section 65907 and 

simultaneously moved its limitation language to what are now 

subdivisions (c)(1)(E) and (F) of section 65009. (Ching, supra, 

60 Cal.App.4th at p. 892, fn. 2.) Like its predecessor, 

section 65009 bars any action attacking certain land use

decisions after 90 days.5 With specific exceptions not relevant 

here, section 65009 provides that “no action or proceeding shall 

be maintained in any of the following cases by any person” unless 

commenced and served “within 90 days after the legislative 

body’s decision[.]” (§ 65009, subd. (c)(1).) 

5 Section 65009 is found in division 1 (Planning and Zoning) 

of title 7 (Planning and Land Use).
12

Subdivisions (c)(1)(A) through (F) then delineate a host of 

local land use and zoning cases to which the statute’s 90-day time 

limit applies, including actions: “(A) To attack, review, set aside, 

void, or annul the decision of a legislative body to adopt or amend 

a general or specific plan . . . . [¶] (B) To attack, review, set 

aside, void, or annul the decision of a legislative body to adopt or 

amend a zoning ordinance. [¶] (C) To determine the 

reasonableness, legality, or validity of any decision to adopt or 

amend any regulation attached to a specific plan. [¶] (D) To 

attack, review, set aside, void, or annul the decision of a 

legislative body to adopt, amend, or modify a development 

agreement . . . . [¶] (E) To attack, review, set aside, void, or 

annul any decision on the matters listed in Sections 65901[6] and 

65903,

[7] or to determine the reasonableness, legality, or validity 

of any condition attached to a variance, conditional use permit, or 

any other permit. [¶] (F) Concerning any of the proceedings, 

acts, or determinations taken, done, or made prior to any of the 

decisions listed in subparagraphs (A), (B), (C), (D), and (E).” 

(§ 65009, subds. (c)(1)(A)-(F).)

6 Section 65901 provides, in pertinent part, that “[t]he board 

of zoning adjustment or zoning administrator shall hear and 

decide applications for conditional uses or other permits when the 

zoning ordinance provides therefor and establishes criteria for 

determining those matters, and applications for variances from 

the terms of the zoning ordinance.” (§ 65901, subd. (a).) 

Section 65902 then provides “[i]n the event that neither a board 

of zoning adjustment or the office of a zoning administrator has 

been created and established, the planning commission shall 

exercise all of the functions and duties of said board or said 

administrator. [¶] The legislative body of a county may provide 

that an area planning commission shall exercise all of the 
13

Confirming that “no action” means no action, the statute 

reiterates that “[u]pon the expiration of the time limits provided 

for in this section, all persons are barred from any further action 

or proceeding.” (§ 65009, subd. (e).) The statute includes a 

statement of the underlying legislative intent and policy 

rationale for the 90-day bar: “The Legislature further finds and 

declares that a legal action or proceeding challenging a decision 

of a city, county, or city and county has a chilling effect on the 

confidence with which property owners and local governments 

can proceed with projects.” (§ 65009, subd. (a)(2).) The statute 

further makes clear “[t]he purpose of this section is to provide 

certainty for property owners and local governments regarding 

decisions made pursuant to this division.” (§ 65009, subd. (a)(3).) 

3. Section 65009’s Broad Reach Controls

Contrary to its argument in the trial court that the fouryear statute of limitations in Government Code section 91011, 

subdivision (b), applies, AHF now declares it “beyond dispute” the 

three-year statute of limitations contained in Code of Civil 

Procedure section 338, subdivision (a), a catch-all for liabilities 

created by statute, governs its action. AHF asserts “[i]t is not 

disputed that claims brought under Government Code 

section 91003 . . . have a limitations period of three years,” citing 

Code of Civil Procedure section 338, subdivision (a). However, 

AHF hedges its bets, stating that “[a]ssuming [Government Code 

functions and duties of a board of zoning adjustment or a zoning 

administrator in a prescribed portion of the county.” 

7 Section 65903 provides, “[a] board of appeals, if one has 

been created and established by local ordinance, shall hear and 

determine appeals from the decisions of the board of zoning 

adjustment or the zoning administrator.” 
14

section 91011, subdivision (b)] is applicable to this action” AHF’s 

arguments regarding voter intent and statutory construction 

“apply equally.”

The City contends, and the trial court ruled, that 

section 65009’s 90-day limitations period bars AHF’s claims. We 

agree. 

By its plain language, section 65009’s 90-day limitation on

a broad variety of challenges to land use and zoning decisions

encompasses AHF’s action to challenge and set aside certain 

unidentified “building permits granted by the City” over an

11-year period that “would not have been approved in their 

current form but for the misconduct of Councilmembers Huizar 

and Englander.” Nevertheless, AHF maintains section 65009 

does not apply, in part because it brought its action pursuant to 

the PRA. 

The Ching court, relied on by the City and the trial court in 

its ruling, confronted and rejected an identical argument. 

(Ching, supra, 60 Cal.App.4th 888.) In Ching, the plaintiff 

sought to vacate a permit appeals board’s decision to grant a 

developer’s application for a conditional use permit, based on a 

board member’s conflict of interest in violation of the PRA. (Id.

at p. 891.) Like AHF here, the plaintiff in Ching equivocated as 

to which statute of limitations applied, first arguing in opposition 

to the board’s demurrer that the three-year time bar in Code of 

Civil Procedure section 338, subdivision (a), applied, and then on 

appeal contending the four-year statute of limitations in 

Government Code section 91011, subdivision (b), governed. (Id.

at p. 892.) The Ching court rejected both contentions. (Ibid.

[“neither the four-year statute of section 91011 nor the three-year 

statute of Code of Civil Procedure section 338, subdivision (a) 
15

applies.”].) Rather, Ching determined that the 90-day limitations 

period prescribed by former Government Code section 65907 for 

challenges to a broad variety of local land use decisions 

controlled. (Id. at p. 891.) 

While agreeing that some PRA claims fall within a threeor four-year statutes of limitation, Ching rejected the argument 

that a PRA claim changes the limitations period for land use

actions governed by former section 65907 (now 65009). First, 

“former section 65907 ‘contains no exceptions,’ and uses 

‘unqualified language’ manifesting a plain intent on the part of 

the Legislature ‘to limit the time to seek review’ of an agency 

decision. There is no exception for actions filed under the 

Political Reform Act.” (Ching, supra, 60 Cal.App.4th at pp. 894-

895.) Second, “[i]t is a basic rule of statutory construction that 

specific statutes control general ones.” (Id. at p. 895, citing Code 

Civ. Proc., § 1859 [“when a general and [a] particular provision 

are inconsistent, the latter is paramount to the former”].) Even if

the catch-all time bar of Code of Civil Procedure section 338, 

subdivision (a), might normally have applied, “the specific 90-day 

statute of limitations period set by former section 65907 controls 

over the 3-year [statute of] limitations in cases challenging 

decisions of a local board of permit appeals.” (Ching, at p. 896, 

citing to In re Williamson (1954) 43 Cal.2d 651, 654 [“‘It is the 

general rule that where the general statute standing alone would 

include the same matter as the special act, and thus conflict with 

it, the special act will be considered as an exception to the 

general statute whether it was passed before or after’”].) 
16

Ching thus concluded “an action or proceeding under the 

Political Reform Act challenging a local permit appeal board 

decision must comply with the specific limitations provisions of 

former section 65907.” (Ching, supra, 60 Cal.App.4th at pp. 895-

896 [“[t]he 90-day period established by former section 65907 

thus preempts any longer period set under the Political Reform 

Act”].)

Other courts have reached similar conclusions.8 In

California Standardbred Sires Stakes Com., Inc. v. California 

Horse Racing Bd. (1991) 231 Cal.App.3d 751, 755, also cited by 

the Ching court, the plaintiff promoted breeding of standardbred 

horses. It sought a writ of mandamus to compel the California 

Horse Racing Board (Board) to issue a license for a racing meet 

(the source of the plaintiff’s funding). The plaintiff sought relief 

based on an alleged conflict of interest, which it argued violated 

the PRA. The Board demurred, arguing that Business and 

Professions Code section 19463 provided a 30-day statute of 

limitations to challenge the Board’s action. The plaintiff did not 

dispute the application of the shorter limitations period; rather, it 

argued equitable tolling should extend its time to file. The court 

of appeal in California Standardbred dismissed the PRA claim as 

untimely. (Ibid.) 

In Howard Jarvis Taxpayers Assn. v. City of Los Angeles

(2000) 79 Cal.App.4th 242, 248, disapproved on other grounds in 

Ardon v. City of Los Angeles (2011) 52 Cal.4th 241, 250, the 

plaintiffs challenged a tax ordinance. They argued the ordinance

8 Among them, AIDS Healthcare Foundation, Inc. v. City and 

County of San Francisco (N.D.Cal. 2016) 208 F.Supp.3d 1095, 

1102, where section 65009 barred AHF’s untimely challenge to a 

planning commission disapproval of a conditional use permit.
17

violated Proposition 218, a voter initiative which amended the 

California Constitution to require the electorate to vote on, and 

approve, any new tax. (Howard Jarvis Taxpayers Assn., at p. 245 

& fn. 1.) The court held the 90-day time bar set forth in section 

65009 precluded the suit even though the plaintiffs claimed the 

ordinance violated the constitutional limitations in Proposition 

218. (Id. at p. 248.) The court, like Ching, rejected the 

contention that the general three-year statute of limitations 

found in subdivision (a) of Code of Civil Procedure section 338 

should govern, noting that “it is well settled that where, as here, 

a specific limitations period applies, the more general period 

codified in Code of Civil Procedure section 338 is inapplicable.”

(Ibid.) 

The City cites another statute of limitations,

section 66499.37,

9 part of the Subdivision Map Act (SMA), which 

contains similar broad language requiring that “[a]ny action or 

proceeding to attack, review, set aside, void, or annul” decisions

“concerning a subdivision” must be brought within 90 days. The 

parties do not specifically address the extent to which any of the 

9 In pertinent part, section 66499.37 provides that “[a]ny 

action or proceeding to attack, review, set aside, void, or annul 

the decision of an advisory agency, appeal board, or legislative 

body concerning a subdivision, or of any of the proceedings, acts, 

or determinations taken, done, or made prior to the decision, or to 

determine the reasonableness, legality, or validity of any 

condition attached thereto . . . shall not be maintained by any 

person unless the action or proceeding is commenced and service 

of summons effected within 90 days after the date of the decision. 

Thereafter all persons are barred from any action or proceeding 

or any defense of invalidity or unreasonableness of the decision or 

of the proceedings, acts, or determinations.”
18

permits considered by the PLUM committee might implicate the 

SMA. However, given that section 66499.37’s broad statutory 

mandate closely resembles section 65009, cases addressing its 

applicability are instructive.

For example, the court in Presenting Jamul v. Board of 

Supervisors (1991) 231 Cal.App.3d 665, 671, noted that “the 

Legislature by design drafted section 66499.37 broadly” and 

“[c]onsequently, regardless of the nature of or label attached to 

the action challenging the legislative body’s subdivision-related 

decision, the action is governed by section 66499.37.” (Id. at 

p. 671 [“[t]he broad language the Legislature employed within 

section 66499.37 was specifically designed to include any 

challenge, regardless whether procedural or substantive in 

character”].) The court found the plaintiffs’ three causes of action 

untimely given each “challenges either directly or indirectly the 

propriety or correctness of the Board’s . . . decision” and thus

“[r]egardless of the varying legal stratagems in the causes of 

action . . . each was designed to set aside or annul the Board’s . . . 

decision.” (Id. at p. 672.) 

C. The Gravamen of the Case Implicates the 90-day Statute

To avoid section 65009, AHF contends that, 

notwithstanding its ultimate goal of invalidating any illicitlyobtained building permits, the gravamen of its action “is not 

principally a challenge to the permit decision, but instead is a 

challenge to the corruption.”

True, the gravamen of AHF’s action dictates the applicable 

statute of limitations. (See Hensler v. City of Glendale (1994) 

8 Cal.4th 1, 22-23 (Hensler) [“To determine the statute of 

limitations which applies to a cause of action it is necessary to 

identify the nature of the cause of action, i.e., the ‘gravamen’ of 
19

the cause action [citations] . . . . [T]he nature of the right sued 

upon and not the form of action nor the relief demanded 

determines the applicability of the statute of limitations under 

our code”].) Hensler rejected a plaintiff’s attempt to avoid the 

statutory reach of section 66499.37 by couching his challenge to 

an ordinance as a taking for which he sought damages. (Ibid.) 

The Supreme Court explained that “[e]very appellate decision 

which has considered the issue in a case involving a controversy 

related to a subdivision has held that section 66499.37 is 

applicable no matter what the form of the action.” (Id. at pp. 26-

27; see Aiuto v. City and County of San Francisco (2011) 

201 Cal.App.4th 1347, 1358 [the key factor in appellate decisions 

consistently applying section 66499.37 in cases involving 

controversies related to a subdivision was that “whatever wrong 

was claimed in the complaint or whatever relief was sought, the 

gravamen of the complaint was an attack on a subdivisionrelated decision under the SMA”].) 

Section 65009 has a similar reach. In Freeman v. City of 

Beverly Hills (1994) 27 Cal.App.4th 892, 897, the Court of Appeal 

rejected the plaintiffs’ attempt to side-step the time bar of 

section 65009 by arguing their underlying cause of action was one 

for monetary damages rather than for direct invalidation of the 

challenged zoning ordinance. Freeman made clear that “[t]he 

Legislature intended to foreclose any and all challenges to the 

validity of zoning ordinances unless they were filed promptly. 

Thus, it used very broad language in defining the kinds of 

challenges which had to be made within 120 days. . . . A lawsuit 

seeking monetary damages on this basis is both an ‘attack’ on the 

decision and an attempt to obtain a judicial ‘review’ of that 

decision.” (Id. at p. 897.) 
20

The same rationale applies here. While AHF may 

challenge corruption under the PRA, the gravamen of AHF’s

action is an attack on, or review of, the PLUM committee’s 

decisions related to permitting and real estate project approvals. 

Section 65009 applies directly to that challenge.10 AHF cannot 

escape the statutory time bar by couching its claim as 

“necessarily dependent on a finding of a violation of the PRA” 

when the violation itself involves challenging the PLUM 

committee’s project approvals.

D. Applying the 90-day Limitations Period Does Not 

Unconstitutionally Amend the PRA

AHF argues that applying the 90-day statute of limitations 

to its PRA claim would amount to an unconstitutional legislative 

amendment to a duly-enacted voter initiative. AHF concedes on 

appeal that the time bar in Government Code sections 65009 and 

66499.37 predate the PRA, and thus did not amend it, but still 

insists that “the use and application of these sections does work 

as a practical amendment of the text of the PRA.” This argument 

suffers from temporal and logical problems. 

The California Constitution provides, in relevant part, that 

“The Legislature may amend or repeal an initiative statute by 

another statute that becomes effective only when approved by the 

electors unless the initiative statute permits amendment or 

repeal without the electors’ approval.” (Cal. Const., art II, § 10, 

subd. (c).) As the Supreme Court explained in People v. Kelly

(2010) 47 Cal.4th 1008, 1025, “‘The purpose of California’s 

constitutional limitation on the Legislature’s power to amend 

initiative statutes is to “protect the people’s initiative powers by 

10 At oral argument, AHF conceded that the PLUM committee 

decisions it challenges fall within the scope of section 65009.
21

precluding the Legislature from undoing what the people have 

done, without the electorate’s consent.”’” However, the 

Legislature “is not thereby precluded from enacting laws 

addressing the general subject matter of an initiative” and thus 

“remains free to address a ‘“related but distinct area’” [citations] 

or a matter that an initiative measure ‘does not specifically 

authorize or prohibit.”’ (Id. at pp. 1025-1026.) “[F]or purposes of 

article II, section 10, subdivision (c), an amendment includes a 

legislative act that changes an existing initiative statute by 

taking away from it.” (Id. at pp. 1026-1027.) 

AHF does not fully account for the permissible parameters 

of legislative amendment. In quoting section 81012, AHF only 

cites subdivision (b) for the proposition that the PRA may be 

amended or repealed by statute “approved by the electors.” 

However, AHF’s briefing omits subdivision (a), which provides 

that the Legislature may also amend the PRA, albeit by twothirds vote in each house and the Governor’s signature, prior 

distribution of the proposed bill to the Fair Political Practices 

Commission, and only so long as the amendment “further[s] its 

purposes.” (§§ 81012; 82012.) Some ballot initiatives strictly 

reserve the amendment power solely to the electors. The PRA 

does not. Indeed, by 2010 the Legislature already had amended 

the PRA over 200 times. (People v. Kelly, supra, 47 Cal.4th at 

p. 1043, fn. 59.)

Putting aside this permissible legislative amendment 

process, we cannot reasonably construe the 90-day local land use 

statute of limitations as an improper amendment to, or curtailing 

of, the PRA. 

First, as explained above, the 90-day time bar currently 

codified in section 65009 pre-dates the PRA by almost 10 years. 
22

The Legislature obviously could not impermissibly have undone 

or taken away from a voter initiative that did not yet exist. 

Second, the Legislature added subdivision (b) of section 

91011 to the PRA in 1980, so that broader statute of limitations 

was “not part of the rest of the initiative legislation creating the 

Political Reform Act.” (Ching, supra, 60 Cal.App.4th at p. 895.)

Nevertheless, in the trial court, AHF argued this legislative 

amendment created the operative statute of limitations for this 

case. AHF does not explain how the legislative amendment it 

relied on in the trial court could be valid, but the other statute 

that purportedly amends the PRA is not valid. The Legislature 

enacted both. Regardless, as the Ching court properly concluded,

“Thus . . . section 91011, subdivision (b) does not automatically 

control over the 90-day limitation period set by former section 

65907 as a matter of the state constitutional law applicable to 

initiative statutes.” (Ching, at p. 895.) Even putting aside the 

temporal problems with AHF’s argument noted above, its 

“practical amendment” theory fails for this additional reason.

Moreover, even if we assume that when the electorate

passed the PRA, it intended for the existing catch-all statute of 

limitations from section 338, subdivision (a), of the Code of Civil 

Procedure to apply, we must also assume the electorate knew 

about, and did nothing to expressly abrogate, the shortened

limitations period in former section 65907. (See People v. 

Gonzales (2018) 6 Cal.5th 44, 49-50 [“a ballot initiative is 

governed by the same principles that apply in construing a 

statute enacted by the Legislature . . . [and] we presume that the 

‘adopting body’ is aware of existing laws when acting a ballot 

initiative”].) Thus, the application of the pre-existing shorter

statute of limitations does not “practically amend” section 91011, 
23

subdivision (b), or any other part of the PRA. Section 65009 does 

not conflict with, or otherwise take away from, the original PRA, 

practically or otherwise. 

E. Policy Considerations Do Not Override Clear Statutory 

Language

Finally, AHF advances certain policy reasons for

permitting a longer period of time to “discover and ferret out 

corruption.”

11 In this case, we do not reach the competing public 

policy goals at work in the PRA and section 65009. “‘Our 

fundamental task in interpreting a statute is to determine the 

Legislature’s intent so as to effectuate the law’s purpose.’ 

[Citation.] We start with the words of the statute, giving them 

their plain and ordinary meaning. [Citation.] ‘If the statutory 

language permits more than one reasonable interpretation, 

courts may consider other aids, such as the statute’s purpose, 

legislative history, and public policy.’” (Lopez v. Friant & 

Associates, LLC, supra, 15 Cal.App.5th at p. 779; accord, 

Coalition of Concerned Communities, Inc. v. City of Los Angeles

(2004) 34 Cal.4th 733, 737.) 

11 AHF also claims the PRA already addresses concerns that 

undoing government action taken a decade or more ago will prove 

disruptive because “[i]n considering the granting of preliminary 

or permanent relief under this subsection, the court shall accord 

due weight to any injury that may be suffered by innocent 

persons relying on the official action.” (§ 91003, subd. (b).) 

However, the “due weight” directive does not overwrite an 

otherwise applicable and controlling statute of limitation. 
24

Here, “[t]he Legislature intended the limitation period 

stated in former section 65907 to permit no exception.” (Ching, 

supra, 60 Cal.App.4th at p. 896.) Accordingly, like Ching, we 

must enforce the 90-day time bar. We affirm the trial court’s 

dismissal of AHF’s PRA cause of action, without leave to 

amend.12 The trial court properly dismissed AHF’s complaint13

as time barred by section 65009, the applicable 90-day statute of 

limitations in this action. 

12 In the proceedings below AHF contended that Huizar and 

Englander’s fraudulent concealment ought to toll any applicable 

statute of limitations, and that if the requisite allegations were 

not pleaded in its complaint, leave to amend should be granted 

“to provide more detailed allegations for this defense to the 

statute of limitations.” AHF does not raise, and therefore 

forfeits, these contentions on appeal. (See Tiernan v. Trustees of 

Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4

[issue not raised on appeal deemed forfeited or waived]; accord, 

Sierra Palms Homeowners Assn. v. Metro Gold Line Foothill 

Extension Construction Authority (2018) 19 Cal.App.5th 1127, 

1136.)

13 As to its second cause of action, AHF “concedes that its 

taxpayer waste claim is dependent” and “predicated and 

conditioned upon” the validity “of a PRA violation.” Given our 

ruling that section 65009 bars AHF’s PRA claim, then, by AHF’s 

admission its dependent taxpayer waste claim must also fall.
25

DISPOSITION

The judgment is affirmed. The City is to recover its costs 

on appeal. 

HOWARD, J.*

We concur:

PERLUSS, P. J.

SEGAL, J.

* Judge of the Marin County Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.