Filed 7/24/14 Excelaron v. County of San Luis Obispo CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

EXCELARON, LLC,
Plaintiff and Appellant,

v.
COUNTY OF SAN LUIS OBISPO,
Defendant and Respondent. 2d Civil No. B248051 (Super. Ct. No. CV120675) (San Luis Obispo County)

Excelaron, LLC (Excelaron) applied to the County of San Luis Obispo (the County) for a conditional use permit to drill fo r oil on County land. The County denied the application and mailed Excel aron notice of its decision. Ninety days later, Excelaron filed a writ petition and complaint for invers e condemnation and damages. Excelaron then waited over a month before serving the action on the County. The County demurred, asserting that the entire action was barred because it wa s not both filed and served within 90 days of the County's decision as mandate d by Government Code 1 section 65009. The trial court agreed and accordingly sustained the County's demurrer
without leave to amend.

1 Unless otherwise noted, all further undesi gnated statutory references are to the Government Code.2 In appealing the ensuing judgment of dismissal, Excelaron contends the County should be estopped from asserting section 65009 as a defense because the County's notice of decision misled Excelaron to believe the statute did not apply to its
action. Excelaron also claims section 65009 is preempted by a County ordinance, and that the County intentionally waived the former's statute of limitations by enacting the latter. Finally, Excelaron asserts that the statut e of limitations set forth in section 65009 does not apply to its cause of action for invers e condemnation or its cl aim that the County violated the California Environmental Qu ality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) by failing to consider reason able alternatives to Excelaron's proposed project. We affirm.
FACTS AND PROCEDURAL HISTORY Excelaron is the owner, lessee, and assi gnee of claims to mineral estates in an unincorporated area of th e County. On July 22, 2009, Excelaron filed an application with the County (the application) for a co nditional use permit to drill and operate oil wells on the subject property (the project ). The County Planning Commission (the Commission) voted to deny the ap plication on March 8, 2012. 2 Excelaron appealed to the County Board of Supervisors (the Board). On August 21, the Board voted to deny the appeal and uphold the Commission's de cision to deny the application. On August 23, the Coun ty mailed Excelaron and its counsel a "Notice of Final County Action on Appeal" (the notice of final action). After advising that the County had taken "final action" on the applic ation, the notice of final action stated:
"Pursuant to Section 1.09.040 of the San Lu is Obispo County Code , please be advised that the time within which judicial review mu st be sought is govern ed by the provisions
of California Code of Civil Procedure sec tion 1094.6 and Chapter 1.09 of the San Luis Obispo County Code (copy enclosed)." The enclosed copy of Chapter 1.09 of the San

2 All further date references are to the year 2012.3 Luis Obispo County Code (Chapter1.09) included section 1.09.020, 3 which states in pertinent part that "[j]udicial review of an y decision subject to the provisions of this chapter and Code of Civil Procedure Section 1094.6 may be had on ly if the petition for judicial review is filed with in ninety days after the de cision becomes final . . . ." On November 19—90 days after th e County denied the application— Excelaron filed a petition for writ of mandate and complaint for inverse condemnation against the County. Two days later, Excelaron filed a firs t amended petition for writ of mandate and complaint for inverse condemna tion and damages (the complaint), adding three individual petitioners and plaintiffs who are not partie s to the appeal. Both causes of action included an allegation that the County had failed to proceed in the manner prescribed by law by declining to consider alternatives to the project, as required under CEQA. The complaint sought approximately $6.24 billion in damages, which Excelaron
estimates to be the value of the oil reserves it would ha ve extracted had the County approved the application.
Excelaron served the co mplaint on the County on December 28, 129 days after the County's decision. The County demu rred on the ground that Excelaron had not served the complaint within 90 days after the County i ssued its decision, as required
under section 65009. Excelar on opposed the demurrer, clai ming among other things that the County was estopp ed from relying on section 65009. The court issued a tentative ruling sustaining the County's demurrer without leave to ame nd. The court subsequently adopted the tentative ruling as its final ruling, and incorporated the court's response to an additional argument Excelaron raised at the hearing on the demurrer. A judgment of dismissal and notice of entry of judgment followed.
DISCUSSION
Excelaron contends the court erred in sustaining the County's demurrer
without leave to amend on the ground that the complaint was not served within 90 days

3 Chapter 1.09 consists of sections 1.09 .010, 1.09.020, 1.09.030, and 1.09.040. All of these sections are hereinafter individua lly referred to by their section number only, and are collectively referred to as Chapter 1.09.4 of the County's decision denying Excelaron's application, as required under section 65009. Excelaron argues, as it did below, th at (1) the County is equitably estopped from relying on section 65009; (2) section 65009 is preempted by Chapter 1.09; and (3) the County waived section 65009 by enacting Chap ter 1.09. Excelaron also reiterates its arguments that section 65009 do es not apply to its claim that the County failed to proceed in the manner required by CEQA or its cause of action for inverse condemnation. As we shall explain, none of th ese contentions has merit. Standard of Review On appeal from a judgment dismissing an action following the sustaining of
a demurrer without leave to ame nd, our standard of review is de novo, i.e., we exercise our independent judgment to determine whethe r the action alleges facts sufficient to state a cause of action under any possible legal theory. ( Lafferty v. Wells Fargo Bank (2013) 213 Cal.App.4th 545, 564 [complaint]; Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1118 ( Royalty ) [writ petition].) "'"We treat the demurrer as admitting all material facts properly plea ded, but not conten tions, deductions or conclusions of fact or law. . . .". . .'" ( Lafferty , at p. 564; Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1189, fn. 1.) We affirm the trial court's ruling if there is any ground upon which the demurrer could have been properly sustained. ( Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App. 4th 1047, 1052.) Equitable Estoppel Section 65009 provides that any action challenging a legislative body's denial of an application for a conditional us e permit must be commen ced and served upon the legislative body within 90 days of the decision. (§§ 65 901, 65009, subd. (c)(1)(E); see Honig v. San Francis co Planning Dept. (2005) 127 Cal. App.4th 520, 529 ( Honig ).) "Upon the expiration of the time limits provided for in this section, all persons are barred from any further action or proceeding." (§ 65009, subd. (e); Honig , at p. 526.) Section 65009 is strictly construed, such that "ser vice is untimely even if it is only one day late[.]" ( Beresford Neighborhood Assn . v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1186–1187 ( Beresford ).)5 Excelaron does not dispute that the co mplaint challenges the denial of its application for a conditional use permit, or that it failed to both file and serve the complaint in complian ce with section 65009. It clai ms, however, that the County is equitably estopped from relying on section 65 009 here because the notice of final action
stated "the time within whic h judicial review must be sought is governed by the provisions of California Code of Civil Procedure section 1094.6 and Chapter 1.09[.]" Code of Civil Procedure section 1094.6 (sec tion 1094.6), which gene rally applies when a party files a writ petition seeking judicial re view of a city, coun ty, or local agency decision, does not impose a deadline for se rvice. Rather, it merely provides (with exceptions not relevant here) that the petition mu st be filed "not later than the 90th day following the date on which th e decision becomes final." ( Id. at subd. (b).) Chapter 1.09 states that section 1094.6 applies "except where a limitation of actions is otherwise provided by this code," then goes on to restate the very same statute of limitations. 4 (San Luis Obispo County Code, ch. 1.09, § 1.09.010, added by Ord. No. 2403, § 1 (part), 1989.) According to Excelaron, the notice of final action misled it to believe the complaint would be timely so lo ng as it was filed no more than 90 days after the County's decision became final, as provided in section 1094.6 and Chapter 1.09. Two cases are essentially disp ositive of this claim. In Honig, supra , 127 Cal.App.4th 520, the notice provid ed that "'[i]f this decision is subject to review under Code of Civil Procedure [section] 1094.5, th en the time within wh ich judicial review must be sought is governed by [section] 1094.6.'" ( Id. at p. 529, fn. omitted.) In concluding that the applicati on of section 65009 was not barred by equitable estoppel, the

4 Section 1.09.10 states: "Pursuant to the provisions of Section 1094.6 of the Code of Civil Procedure, the provisions of sa id section are hereby made applicable to the decisions of all commissions, boards, officers and agents of the county, except were a limitation of actions is otherwise provided by this code." Sec tion 1.09.020, which immediately follows, states in pertinent part: "Judicial review of any decision subject to the provisions of this chapter and Code of Civil Procedure Section 1094.6 may be had only if the petition for judicial review is filed within ni nety days after the decision becomes final . . . ."6 Court of Appeal reasoned among other thin gs that subdivision (g) of section 1094.6 "cautions that section 1094.6 'shall prev ail over any conflicting provision in any otherwise applicable law relating to the subj ect matter, unless the conflicting provision is a state or federal law which provides a shorte r statute of limitations, in which case the shorter statute of limitations shall apply.' This subdivision was suffi cient to put appellant on notice that a conflicting, shorter limitati ons provision relating to the subject matter might exist." ( Id. at pp. 530–531.)
In Beresford, supra , 207 Cal.App.3d 1180, the allegedly misleading notice consisted of a footnote in the city council's meeting minutes stating that "[j]udicial review may be had only if a petition is filed with th e Court not later than the 90th day following the date the decision is made." ( Id. at p. 1185.) The court found the city was not estopped from relying on secti on 65009 because "[t]he notic e did not indicate that a timely filing would be sufficient to secure judicial review. It did not purport to address any other requirements for maintaining a lega l action, nor did it state that failure to comply with such requirements would be excused." ( Id. at pp. 1186–1187.) Excelaron is in no better position here. Although the notice of final action stated that Excelaron's right to judicial review was go verned by section 1094.6 and Chapter 1.09, both made clear that a shorter limitations period might apply. (§ 1094.6, subd. (g); San Luis Obispo County Code, ch. 1.09, supra, § 1.09.010.) 5 Section 1094.6
also dictated that the notice of final action ha d to include "notice to the party that the time within which judicial review must be sought is governed by this section." ( Id. at subd. (f).) Chapter 1.09 similarly requires that "[e] very written decision or notice thereof to

5 Excelaron misreads section 1.09.010's statement that section 1094.6 applies "except where a limitation of ac tions is otherwise provided by this code." Although Excelaron construes "this code" as a reference to Chapter 1.09 rather than section 1094.6, the former is elsewhere consistently referre d to as "this chapter." (San Luis Obispo County Code, ch. 1.09, supra, §§ 1.09.020, 1.09.030, subd. (a), 1.09.040.) Moreover, Chapter 1.09 does no t "otherwise provide" a limitation of actions, but rather merely adopts section 1094.6's limitations period.7 which the provisions of this chapter and Secti on 1094.6 . . . apply sh all refer to and be accompanied by (by attachment) a copy of the provisions of th is chapter." (§ 1.09.040.) The County complied with both provisions. A lthough it might be better practice to include a reference to section 65009, the County's failu re to do so here provides no basis for us to deem it estoppe d from asserting the statute as a defense. Excelaron—who has been represented at all relevant times by counsel—was not misled
to believe that section 6 5009 did not apply. (See Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1316, quoting Kuntsman v. Mirizzi (1965) 234 Cal.App.2d 753, 757 ["the law 'particularly' di sfavors estoppels 'where the party attempting to raise the estoppel is represented by an attorney at law'"]; see also Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1497 ["The invocation of estoppel is particularly inappropriate where the party seeking it was represented by counsel at the time of the misrepresentation of law"].) Moreover, nothi ng in the record indicates that the County sought to foster such a belief. Excelaron 's claim of equitable estoppel thus fails. Preemption Excelaron alternatively contends th e County is precluded from asserting
section 65009 as a defense because the statut e is preempted by Chapter 1.09. We have already effectively disposed of this claim to the extent it relies on a misreading of section 1.09.010. (See ante , fn. 4.) In any event, the claim is defeated by the express language of section 65009, which makes clear that "no action or proceeding" challenging the denial of an application for a conditional use permit "shall be maintained" unless it is filed and served within 90 days of th e challenged decision. (§ 650 09, subds. (c)(1) & (c)(1)(E).) Although the statute provides an exception for any law with a shorter limitations period ( id. at subd. (g)), Chapter 1.09 is not such a law.
Excelaron seeks to avoid this realit y by asserting that "[t]he general statutory scheme of which [s ection ] 65009 is a part explic itly favors local control, and permits local governments to adopt their ow n review procedures governing land use
decisions." Excelaron then purports to establish the Co unty had the right "to adopt8 review procedures via local ordinance that are different from [section] 65009's default provisions." 6
Even if Excelaron could establish that the County had the authority to "opt out" of section 65009, the record affirmativ ely demonstrates that Chapter 1.09 was not
enacted for such a purpose. When Chapte r 1.09 was enacted pursuant to Ordinance No. 2403 in 1989, section 1094.6 stated that "[t]his section shall be applicable to a local

6 In attempting to make this showing, Ex celaron primarily relies on section 65903. Notwithstanding that the statute on its face merely establishes a county's right to set procedures for administrative review of a decision, Excelaron asserts that "[l]ocal ordinances setting the pr ocedures for appeal by judicial review appear to be included in the scope of this authorization." (Italics added.) For support, Excelaron cites an unpublished federal case that makes reference to a local county ordi nance that "tracked" the language of section 65009. ( Pajaro Dunes Rental Agency, Inc. v. Pajaro Dunes Assn. (9th Cir. 2003) 73 Fed.Appx. 9 53, 955.) The case merely notes this fact, however, and makes no mention of section 65903.

Excelaron also relies on Pan Pacific Properties, Inc. v. County of Santa Cruz (1978) 81 Cal.App.3d 244 and Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247 ( Friends of Mammoth ), disapproved on another point in Kowis v. Howard (1992) 3 Cal.4th 888, 896-897. When th ose cases were decided, section 65009's predecessor statute (former § 65907) merely pr ovided that actions challenging the denial of a conditional use permit had to be "commen ced within 180 days after the date of the decision." The appellant in Pan Pacific , who challenged the rezoning of its property, argued that a county ordinance providing a 30-day statute of limitations for judicial review was preempted by state law. In conc luding otherwise, the court reasoned that "Chapter 4 of title 7 of the Go vernment Code (§ 65800 et seq.), which authorizes local governments to enact zoning ordinances, co ntains no limitations periods within which such ordinances must be challenged." ( Pan Pacific , at p. 252.) That is no longer true in light of section 65009, in wh ich the Legislature made clear its intent to preempt local laws relating to the grant or denial of a co nditional use permit as contemplated in section 65901, which is included in the aforementioned Chapter 4. Moreover, the ordinance in Pan Pacific expressly excepted all matters gover ned by section 65009's predecessor, former section 65907. ( Ibid. )
Friends of Mammoth is inapposite because there was no claim or discussion as to whether the local ordinance at issue in the ca se was preempted by fo rmer section 65907. The defendants merely argued that the plaintiffs had failed to comply with the ordinance, and the court held otherwise. ( Friends of Mammoth, supra , 8 Cal.3d at p. 268.)9 agency only if the g overning board thereof adopts an or dinance or resolution making this section applicable. If such or dinance or resolution is adop ted, the provisions of this section shall prevail over any conflicting provision in any otherwise applicable law relating to the subject matter, unless the c onflicting provision is a state or federal law which provides a shorter statute of limitati ons, in which case the shorter statute of limitations shall apply." (Former § 1094.6, subd. (g).) 7 The legislative history of Chapter 1.09—of which the trial court took judicial notice at Excelaron's re quest, and is part of the record on appeal—makes clear that Ordinance No. 2403, which became Chap ter 1.09, was enacted for the purpose of "opting in" to section 1094.6. It is equally clear that the County enacted Chapter 1.09 for that very purpose. There is thus no merit in Excelaron's claim that the County intended to
create "a different statute of limitations" that was not subject to section 1094.6's exception for state laws with a shorter stat ute of limitations, such as section 65009. As a subset of its preemption argume nt, Excelaron anticipates the County's argument that section 65009 applies because it provides a shorter limitations period than that set forth in Chapter 1.09 . In challenging this argument, Excelaron relies on the rule that "a specific limitations provision prevails over a mo re general provision." ( Creditors
Collection Service v. Castaldi (1995) 38 Cal.App.4th 1039, 10 43.) Excelaron then offers, without any legal support, that "[a]n ordinanc e enacted by a local government to apply to its own decisions is undeniably more specific that a generalized state statute covering the same subject matter, particularly wh ere the same section of state law authorizes the local
ordinance." Excelaron further asserts that we "should give deference to the County legislative body's considered, official position, as reflected in its enactment of Chapter

7 As the County correctly notes, the legisl ative history of sec tion 1094.6 indicates the statute was enacted for the very purpose of "giving local agencies . . . the option of adopting, by ordinance or resolution, a 90 -day limitation period for seeking judicial review of their administrative decisions." ( Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 386.)10 1.09, that [section] 1094.6's filing and serv ice procedures apply to review of its
administrative decisions." We are not persuaded. As we have explained, the County enacted Chapter 1.09 with the intent to adop t the provisions of section 1094.6. Those provisions include an exception for state laws with shorter statut es of limitations (§ 1094.6, subd. (g)), and
section 65009 is such a law. 8 Moreover, section 65009 is more specific than Chapter 1.09. The latter sets forth a general limitati ons period for judicial review of all County decisions, while the former only applies to a sp ecific set of decisions, including decisions to deny a conditional use permit. (See Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1049 [recogn izing that section 1094.6 "applies more generally to challenges to local agency d ecisions" while section 65009 "a pplies more specifically to this particular challenge to the City's vari ance decision"].) Excelaron's preemption claim
thus fails.
Waiver
Excelaron claims "the County cannot seek refuge under [section] 65009 because it waived the protections of that stat ute when it adopted Chap ter 1.09." As we have already explained, the County enacted Ch apter 1.09 for the sole purpose of adopting the provisions of section 10 94.6. The two are thus esse ntially one and the same.

8 Excelaron asserts that "[ s]ection 1094.6(g) does not . . . address locally enacted ordinances." The statute makes clear, howev er, that it "prevail[s] over any conflicting provision in any otherwise applicable law re lating to the subject matter." (§ 1094.6, subd. (g).) Only state or fede ral laws with shorter limita tions periods are excepted. ( Ibid. ) Chapter 1.09 is not such a law.
Excelaron also attaches signifi cance to the fact that the version of section 65009 in effect when the County enacted Chapter 1.09 provided a 120-day period for filing and service. According to Excelar on, this proves "the County was setting its own [shorter] statute of limitations when it enacted Chapter 1. 09." We fail to see ho w this is so. When Chapter 1.09 was enacted, se ction 1094.6 provided—as it still does—that its 90-day limitations period was to be preempted by an y state or federal law providing a shorter statute of limitations for a given action. (Former § 1094.6, subd. (g).) The fact that section 65009 did not then provide a shorter limitations period is of no moment.11 According to Excelaron, "the legislative histor y of Chapter 1.09, of which the trial court properly took judicial notice, raises questions of fact" as to whether the County intended to waive its right to rely on the statute of limitations set forth in section 65009. On the contrary, Chapter 1.09's legislative history se ts forth the County's intent to adopt the provisions of section 1094.6. Those provisi ons include subdivisio n (g), which provides an exception for state statutes like section 65009 that provide a shorter limitations period.
There was no waiver here. CEQA Claim
Excelaron asserts that section 65009 cannot bar its claim that the County failed to proceed in accord ance with CEQA by refusing to consider reasonable alternatives to the project. In so arguing, Excelaron overlook s a case that is fatal to its
claim. In Royalty, supra , 125 Cal.App.4th 1110, the ap pellant (Royalty) filed a writ petition challenging the city of Irvine's i ssuance of a conditional use permit to an apartment builder. The trial court sustained the city's demurrer w ithout leave to amend on the ground that Royalty had not complied with section 65009. On appeal, Royalty claimed the trial court should have granted it leave to amend its petition to allege among other things that "the City had improper ly delegated discreti onary approval for the Project's mitigation measures to other city officials and departments and to other agencies[.]" ( Royalty , at p. 1124.) Royalty argued that "the amended petition would have challenged the City's fa ilure to comply w ith CEQA by improperly delegating discretionary approval for cert ain mitigation measures." ( Id. at p. 1125.) In disposing of this claim, the Court of Appeal reasoned that "[t]his, too, is an attack on the conditions
attached to the conditional use permit, and is time-barre d. . . . [S]ection 65009, subdivision (c)(1)(E), by its terms, applies not only to a challenge to the issuance of a conditional use permit, but also to any action to 'determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.'" ( Ibid. )
Excelaron's claim that th e City violated CEQA is even more clearly barred under section 65009. The claim essentially and necessarily cha llenges the County's12 decision to deny Excelaron's application for a conditional use permit. Thus, any action or proceeding "[t]o attack, review, set aside, void, or annul any decision" to deny a conditional use permit must be di smissed unless it is filed an d served within 90 days of the challenged decision. (§ 65009, subds. (c)(1) & (c)(1)(E ).) It thus follows that Excelaron's CEQA claim is time-barred. Urban Habitat Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, which Excelaron cites, does not compel a different result. The court in that case held section 65009 did not apply to claims th at did not challenge th e respondent city's decision to enact a housing ordinance, but ra ther were based on events that took place after the ordinance's enactment. ( Id. at pp. 1577-1578.) Excela ron's CEQA claim is part and parcel of its attack on the City's decisi on to deny the application. Accordingly, the claim is not exempted from the filing a nd service requirements of section 65009.
Inverse Condemnation Excelaron finally contends the court e rred in finding that its cause of action
for inverse condemnation was barred under s ection 65009. Excelaron argues that "the
inverse condemnation claim is a stand-alone constitutional clai m that does not depend on the writ claim for its success, and therefore, ev en if the demurrer is sustained as to the writ claim, the takings claim su rvives." Two Supreme Court cases are dispositive of this
claim.
In Hensler v. City of Glendale (1994) 8 Cal.4th 1 ( Hensler), the plaintiff filed an action alleging that the City of Glendale's adoption and application of an ordinance restricting the development of his pr operty amounted to a taking. In affirming the dismissal of the action as untimely, the c ourt explained: "If the challenge is to the facial validity of a land-use regulation, the statute of limitations runs from the date the statute becomes effective. [Former] Govern ment Code section 6 5009 establishes a 120- day period of limitation for such actions. By contrast, if the challenge is to the application of the regulation to a specific pi ece of property, the statute of limitations for initiating a judicial challenge to the administ rative action runs from the date of the final13 adjudicatory administrative decision. Government Code section 66499.37[ 9 ] establishes a 90-day period of limitation fo r these actions. Thus, there is no uncertainty regarding
the commencement of the period. Whether the complaint is deemed a facial challenge or an applied challenge, it is untimely." ( Id. at p. 22, fns. omitted.) The court went on to reason: "When the gravamen of the cause of action is a claim that a land-use ordinance or regulation . . . , or administrative acti ons taken pursuant to su ch an ordinance or regulation, has had the effect of 'taking' th e plaintiff's property without compensation, the action necessarily challenges the validity either of the ordinance or regulation or of the acts taken by the local agency or appeal boar d pursuant to the ordinance or regulation." ( Id. at p. 24.) In rejecting the claim that section 66499.37 was "limited to actions for specific relief," the court explained that the statute "includes actions for compensation for a regulatory taking because the validity of the ordinance or its application to the plaintiff's property, if uncompe nsated, must be determined in the action-i.e., the court
must determine if there has been a taking. Before he or she is entitled to any relief, either compensation or exemption of th e property from the developmen t restriction, the plaintiff
must establish that the ordina nce, regulation, or administra tive action is not lawful or constitutionally valid if no compensation is pa id. The action theref ore comes within the broad language of section 66499.37." ( Id. at p. 25.)
In Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, the plaintiffs brought an action against the County of Santa Cruz challenging certain conditions imposed on permits granted to them for the constructions of "granny" units on their property. The plaintiffs filed a writ petition seeking removal of the conditions along with an order requiring the county to cease imposing such conditions against other applicants. ( Id. at pp. 766-767.) Plaintiffs also asserted a takings claim. In rejecting the plaintiffs'

9 Section 66499.37 applies to "[a]ny action or proceedin g to attack, review, set aside, void, or annul the decision of an adviso ry 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, in cluding, but not limited to, the approval of a tentative map or final map . . . ."14 assertion that the latter claim was governed by the five-year limita tions period provided
under Code of Civil Proced ure sections 318 and 319, 10 the court reasoned that "plaintiffs' taking claim rests on the County's demand that , as conditions of their permit approvals, they record rent and occupancy restrictions on their deeds. The specific statute of limitations for such a challenge to permit conditions . . . is Government Code section 65009, subdivision (c)(1)(E). Code of Civil Procedure sections 3 18 and 319 are thus inapplicable. [Citations.]" ( Id. at p. 775.)
Excelaron's inverse condemnation clai m begins by incorporating factual allegations relating to the application, the ad ministrative review thereof, and the County's final decision denying the appli cation. Excelaron then assert s that "[a]s a result of the County's actions, [Excelaron] has suffered a co mplete denial of all use of, and value in, its property, and [Excelaron] is entitled to just compensation pursuant to Article I,
Section 19 of the California Cons titution." It could not be cl earer that this claim hinges on the validity of the County's decision to deny the application. Because "the gravamen"
of Excelaron's inverse condemnation cause of action is that the County's decision denying the application "has had the e ffect of 'taking' [its] prope rty without compensation, the action necessarily challenges the valid ity" of the County's decision. ( Hensler, supra , 8 Cal.4th at p. 24.) It thus follows that the cause of action is subject to section 65009's
statute of limitations. Excelaron purports to distinguish Hensler on the ground that the case "expressly does not apply to total or categor ical takings[.]" But this distinction is
irrelevant. As the court in Hensler makes clear, "when restrictions on use of real property are the basis for a taking claim, the owne r must pursue any available administrative permit process before seeking compensation or challenging the statute or regulation. The California permit process includes both admi nistrative and judicial review of any

10 Code of Civil Procedure section 318 prov ides a five-year statute of limitations for an "action for the recovery of real property." Code of Civil Procedure section 319 similarly provides a five-year limitation for actions "arisi ng out of the title to real property, or to rents or profits out of the same."15 conditions to which the landowner objects. Only when the review process has been completed is it possible to determin e whether a taking has occurred." ( Hensler, supra , 8 Cal.4th at p. 17.) That is the case here. It is also essentially irrelevant whet her Excelaron alleges a "total" taking. In arguing to the contrary, Excelar on misstates the relevant holding in Uniwill L.P. v. City of Los Angeles (2004) 124 Cal.App.4th 537. Accordin g to Excelaron, the court denied the city's contention that the plaintiff's takings claim was barred under section 66499.37 because the plaintiff was alleging a total taki ng rather than a partial taking. Although Excelaron is correct in noting that the court found section 66499. 37 did not apply, its discussion as to whether the plaintiff had alle ged a partial or total taking had nothing to do with that finding. Rather, the court addresse d that issue in disposing of "the [c]ity's additional argument that 'the complaint fails to state an inverse condemnation claim because Uniwill has not alleged that it has been denied all economically viable uses of the property' . . . ." ( Id. at p. 544.) Uniwill is thus inapposite. Excelaron's additional arguments and citations are equally inapt.
DISPOSITION The judgment is affirmed. The Coun ty shall recover its costs on appeal.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.16 Martin J. Tangeman, Judge Superior Court County of San Luis Obispo

________________ ______________

Treder Land Law, Sophia J. Treder; Law Offices of J. Tavener Holland, J. Tavener Holland, for Plaintiff and Appellant. Rita L. Neal, County Co unsel, Whitney G. McDonald, Deputy County Counsel, for Defendant and Respondent.