Save Our Students-Safety etc. v. County of San Diego CA4/1

Filed 7/26/22 Save Our Students-Safety etc. v. County of San Diego CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SAVE OUR STUDENTS-SAFETY D079464

OVER SORRY et al.,

(San Diego County

Plaintiffs and Appellants, Super. Ct. No. 37-2021-00001852-

CU-MC-CTL)

v.

COUNTY OF SAN DIEGO et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County,

Richard S. Whitney, Judge. Reversed with directions.

Caldarelli Hejmanowski Page & Leer and Marisa Janine-Page for

Plaintiffs and Appellants.

Office of County Counsel and Joshua M. Heinlein for Defendants and

Respondents.

Save Our Students-Safety Over Sorry and its president, Steven

Dillingham (collectively SOS2), appeal the judgment dismissing their petition

for writ of mandate against the County of San Diego and its Board of

Supervisors (collectively the County) for allegedly violating several laws in

approving the construction of a new high school by Literacy First Charter

Schools, Inc. (Literacy First). SOS2 argues the trial court erroneously

sustained without leave to amend the County’s demurrer on the ground that

SOS2 had failed to join Literacy First, an indispensable party, within the

limitations period. We agree with SOS2 and reverse the judgment.

I.

BACKGROUND

SOS2 is a nonprofit organization that formed in 2020 to oppose the

construction of a high school at a location SOS2 deems too dangerous. At the

December 9, 2020 meeting of its Board of Supervisors, the County considered

SOS2’s appeal of the decision of the County’s Planning Commission to

approve a major use permit for construction of the school and to adopt a

mitigated negative declaration. The County rejected the appeal, approved

issuance of the permit, and adopted the mitigated negative declaration. A

notice of determination was filed with the County Clerk on December 15,

2020.

SOS2 filed a “verified petition for writ of mandate and complaint for

violation of Brown Act, declaratory and injunctive relief” (the petition) in the

trial court on January 14, 2021. (Capitalization and bolding omitted.) The

caption named the County and its Board of Supervisors as defendants and

respondents,1 but did not name any real party in interest. In the first

paragraph of the petition, SOS2 alleged the County had unlawfully approved

a permit for Literacy First to construct a high school. In the section of the

petition labeled “PARTIES,” SOS2 identified Literacy First as the real party

in interest and the proponent of the construction project. SOS2 went on to

1 SOS2 also named the County’s Planning Commission as a defendant

and respondent but later dismissed it.

2

allege that in approving the project, the County violated the California

Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) by

conducting inadequate environmental review of the project, the Ralph M.

Brown Act (Brown Act; Gov. Code, § 54950 et seq.) by holding secret meetings

about the project, and the Planning and Zoning Law (Gov. Code, § 65000 et

seq.) by approving a project inconsistent with the law. SOS2 prayed for a

writ directing the County to set aside its approval of Literacy First’s high

school construction project.2

SOS2 served the County with a summons, the petition, and related

documents on February 2, 2021. A proof of service in the record states that

on February 23, 2021, SOS2 served copies of the summons, petition, and

related documents on an attorney for Literacy First by both U.S. mail and

electronic mail. Yet another proof of service in the record states that on

February 24, 2021, a registered process server served Debbie S. Beyer,

Literacy First’s registered agent for service of process, by substituted service.

According to the proof of service, the process server left copies of the

summons, petition, and related documents with a woman (who was identified

as a vice principal and described by race, age, height, weight, hair color, and

eye color) at the service address for Beyer on file with the California

2 SOS2 also included a cause of action for declaratory relief and a related

request for injunctive relief by which it sought a judicial determination that

the County had violated CEQA in approving the high school construction

project and an injunction directing the County to conduct the environmental

review required by CEQA. This portion of the petition thus merely

duplicated the allegations and request for relief of the CEQA cause of action.

The parties did not address the cause of action for declaratory and injunctive

relief in connection with the demurrer in the trial court, and they have not

addressed it in their appellate briefing either. We therefore do not further

consider that cause of action.

3

Secretary of State, and on the same day the process server mailed additional

copies to Beyer at that address.

The County demurred to the petition on March 10, 2021, on the ground

SOS2 had failed timely to join an indispensable party, namely, Literacy First.

(Code Civ. Proc., §§ 430.10, subd. (d) [authorizing demurrer for defect or

misjoinder of parties], 389, subd. (b) [authorizing dismissal when an

indispensable party has not been joined].) The County argued that because

Literacy First was the proponent of the high school construction project

whose approval SOS2 was challenging, Literacy First had to be named as a

real party in interest in the petition (Pub. Resources Code, § 21167.6.5, subd.

(a))3 and served with the summons and petition within 90 days of the date of

the County’s decision to approve the project and to issue the major use permit

(Gov. Code, § 65009, subd. (c)(1)(E)),4 but SOS2 did not name Literacy First

3 “The petitioner or plaintiff shall name, as a real party in interest, the

person or persons identified by the public agency in its notice [of

determination] . . . and shall serve the petition or complaint on that real

party in interest, by personal service, mail, facsimile, or any other method

permitted by law, not later than 20 business days following service of the

petition or complaint on the public agency.” (Pub. Resources Code,

§ 21167.6.5, subd. (a).)

4 “Except as provided in subdivision (d), no action or proceeding shall be

maintained in any of the following cases by any person unless the action or

proceeding is commenced and service is made on the legislative body within

90 days after the legislative body’s decision: [¶] . . . [¶] (E) To attack, review,

set aside, void, or annul any decision on the matters listed in Sections 65901

and 65903, or to determine the reasonableness, legality, or validity of any

condition attached to a variance, conditional use permit, or any other permit.”

(Gov. Code, § 65009, subd. (c)(1).) Sections 65901 and 65903 address,

respectively, decisions on applications for permits and appeals from such

decisions.

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in the caption of the petition or in the summons and did not serve Literacy

First within the 90-day period.5

In response to the demurrer, on March 10, 2021, SOS2 filed a notice of

errata concerning the caption of the petition by which it added Literacy First

as a real party in interest. SOS2 also requested issuance of a new summons,

but the clerk advised SOS2 that an ex parte application was required. On

March 16, 2021, SOS2 filed an ex parte application for an order directing the

clerk to issue an amended summons to conform to the corrected caption of the

petition. The County opposed the application on the ground that no new

party could be added because the 90-day period for filing and service of the

petition had expired. The trial court agreed with the County and denied the

application. In a later-filed opposition to the County’s demurrer, SOS2

argued it had properly joined Literacy First to the proceeding by identifying

it as the real party in interest in the body of the petition and by timely

serving it with a copy of the petition.

After holding a hearing, the trial court sustained the County’s

demurrer without leave to amend. The court ruled Literacy First had not

5 The County demurred to the cause of action alleging violation of the

Brown Act on the additional ground that SOS2 had not made the statutorily

required prelitigation demand for cure or correction. (See Gov. Code,

§ 54960.1, subd. (b).) In opposition to the demurrer, SOS2 argued dismissal

of the Brown Act claim was not required because its filing of the lawsuit

before making a demand for cure or correction did not prejudice the County.

The trial court did not address this issue in the order sustaining the

demurrer, and the parties do not discuss it in their appellate briefs. Nor did

the parties brief the issue of whether SOS2 filed and served the petition

within the limitations period of the Brown Act. (See id., § 54960.1, subd. (c).)

We deem these issues abandoned. (Rufini v. CitiMortgage, Inc. (2014) 227

Cal.App.4th 299, 312; Wall Street Network, Ltd. v. New York Times Co. (2008)

164 Cal.App.4th 1171, 1177; Benach v. County of Los Angeles (2007) 149

Cal.App.4th 836, 852.)

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properly been joined as a party because SOS2 did not name Literacy First as

a party in the caption of the petition and did not name it at all in the

summons. A judgment dismissing SOS2’s petition followed.

II.

DISCUSSION

SOS2 challenges the trial court’s orders denying its application for an

amended summons and sustaining the County’s demurrer without leave to

amend. SOS2 contends it named Literacy First as the real party in interest

in the petition even though it inadvertently omitted Literacy First from the

caption, and SOS2 sought to correct the omission by amending the caption

and summons before any limitations period precluded it from doing so. SOS2

further contends it was not required to serve Literacy First with a summons,

and it served Literacy First with the petition within the limitations period.

The County defends the trial court’s orders and argues SOS2’s failure to

name Literacy First in the caption of the petition and to serve it with a

summons within the limitations period requires dismissal of SOS2’s lawsuit.

As we shall explain, the trial court should have overruled the County’s

demurrer because SOS2 named Literacy First as a party within the

limitations period and did not have to serve it with a summons.6

A. Standard of Review

We begin by settling the standard of review, an issue on which the

parties disagree. SOS2 asserts the order sustaining the demurrer without

leave to amend is reviewed de novo because the demurrer raised only

questions of law. The County asserts the proper standard of review is abuse

6 Our conclusion makes it unnecessary to address SOS2’s contentions

regarding the denial of its ex parte application for issuance of an amended

summons.

6

of discretion, because the trial court found SOS2 had not named and served

an indispensable party before the limitations period expired and did not

reach the merits of the case. A dismissal for failure to join an indispensable

party is reviewed for abuse of discretion when the trial court makes fact-

specific determinations on the factors listed in Code of Civil Procedure section

389. (Citizens for Amending Proposition L v. City of Pomona (2018) 28

Cal.App.5th 1159, 1178-1179; Kaczorowski v. Mendocino County Board of

Supervisors (2001) 88 Cal.App.4th 564, 568.) The trial court here made no

such determinations, because in opposing the County’s demurrer SOS2 did

not dispute that Literacy First was an indispensable party.7 Rather, based

on the face of the petition and matters judicially noticed, the court ruled

Literacy First had not been joined within the limitations period. That was a

purely legal ruling, which is subject to de novo review. (Aryeh v. Canon

Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191; Organizacion

Comunidad de Alviso v. City of San Jose (2021) 60 Cal.App.5th 783, 790-791

(Organizacion Comunidad); Royalty Carpet Mills, Inc. v. City of Irvine (2005)

125 Cal.App.4th 1110, 1115, 1118 (Royalty).)

7 SOS2 also did not dispute that Literacy First is an indispensable party

in its briefing in this court. We have stated, “In general, a developer is an

indispensable party to a lawsuit challenging a decision regarding whether its

project can proceed.” (San Diego Navy Broadway Complex Coalition v.

California Coastal Com. (2019) 40 Cal.App.5th 563, 580.) Courts have

repeatedly ruled a project developer is an indispensable party to a lawsuit to

set aside permits authorizing the project. (See, e.g., Simonelli v. City of

Carmel-by-the-Sea (2015) 240 Cal.App.4th 480, 484-485; Beresford

Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1185,

1189; Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495,

498, 501-502.) We accept SOS2’s implicit concession Literacy First is an

indispensable party to the lawsuit against the County.

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B. Demurrer and Dismissal

We turn now to the dispositive issue, i.e., whether the trial court

correctly sustained the County’s demurrer and dismissed SOS2’s lawsuit for

failing to join Literacy First as a party before the applicable limitations

period had expired. “Failure to join an indispensable party is a ground for

demurrer. [Citations.] And failure to include a necessary and indispensable

party as a real party in interest within the applicable limitations period is a

ground for dismissal.” (Organizacion Comunidad, supra, 60 Cal.App.5th at

p. 791.) For the bar of the statute of limitations to be raised by demurrer, the

defect must clearly appear on the face of the complaint and matters subject to

judicial notice. (Code Civ. Proc., § 430.30, subd. (a); Richtek USA, Inc. v. uPI

Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658 (Richtek).) The parties

agree Literacy First is an indispensable party. (See fn. 7, ante.) We therefore

must determine the applicable limitations period and whether the petition

and matters subject to judicial notice show SOS2 did not join Literacy First

during that period.

1. Applicable Limitations Period

The County based its demurrer on the statute of limitations in the

Planning and Zoning Law, which in pertinent part provides that no action or

proceeding to set aside a decision to issue a permit for a construction project

“shall be maintained . . . by any person unless the action or proceeding is

commenced and service is made on the legislative body within 90 days after

the legislative body’s decision.” (Gov. Code, § 65009, subd. (c)(1)(E).) CEQA

has its own shorter limitations period for filing and service. A petition

attacking a public agency’s determination whether a project may have a

significant effect on the environment must be filed within 30 days of the date

on which the notice of determination was filed. (Pub. Resources Code,

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§ 21167, subd. (b).) The petition must be served on the public agency within

10 business days of the date on which the petition was filed (id., § 21167.6,

subd. (a)), and on the real party in interest within 20 business days of the

date of service on the public agency (id., § 21167.6.5, subd. (a)). The CEQA

service period may be extended for good cause, and dismissal is not

mandatory if the petitioner fails to comply with it. (Royalty, supra, 125

Cal.App.4th at pp. 1121, 1123; Board of Supervisors v. Superior Court (1994)

23 Cal.App.4th 830, 847 (Board of Supervisors).)

If, however, the petitioner challenges a decision to issue a permit under

CEQA, the “absolute limitations bar” of Government Code section 65009

applies and requires dismissal if the petition is not served within 90 days of

the decision date. (Royalty, supra, 125 Cal.App.4th at p. 1123; see Gov. Code,

§ 65009, subd. (e) [“Upon the expiration of the time limits provided for in this

section, all persons are barred from any further action or proceeding.”];

Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1048 [“The statute

‘mandates strict compliance with the statute of limitations and service

periods.’ ”].) Although, as SOS2 points out, the Planning and Zoning Law

expressly requires service only “on the legislative body” within 90 days of its

decision and does not mention service on the real party in interest (Gov.

Code, § 65009, subd. (c)(1)), CEQA requires service on the real party in

interest and prescribes a shorter service period (Pub. Resources Code,

§ 21167.6.5, subd. (a)), which, as noted, may be extended for good cause. To

“harmonize[ ]” the statutes and “accomplish the Legislature’s purpose of

limiting the time in which a decision regarding a conditional [or major] use

permit can be challenged by filing and serving a petition, in no event can

service of the petition be accomplished beyond the 90-day time bar contained

in the Government Code.” (Royalty, at p. 1123.)

9

We therefore conclude that where, as here, a petitioner files a petition

challenging a local legislative body’s decisions to issue a permit and adopt a

mitigated negative declaration, the petitioner must name and serve the real

party in interest within 90 days of the decisions. We further conclude that

where, as here, the real party in interest is an indispensable party, the

failure to do so is a ground for dismissal of the lawsuit.8

2. Joinder of Literacy First

We now turn to whether SOS2 properly joined Literacy First within the

applicable 90-day limitations period. Joinder generally is accomplished by

naming a party with others in the pleading that initiates the lawsuit and

serving the party with the process needed to subject the party to the court’s

jurisdiction. (Code Civ. Proc., § 389; Ruttenberg v. Ruttenberg (1997) 53

Cal.App.4th 801, 808 (Ruttenberg); Franke v. Claus (1953) 121 Cal.App.2d

777, 779.) We thus must determine whether the trial court correctly ruled

that SOS2 had neither named nor served Literacy First before expiration of

the limitations period.

8 Our conclusions promote “[t]he legislative policy behind both

Government Code section 65009 and CEQA,” which “is the prompt resolution

of challenges to the decisions of public agencies regarding land use.”

(Royalty, supra, 125 Cal.App.4th at p. 1121.) The short limitations period of

Government Code section 65009 “is intended ‘to provide certainty for

property owners and local governments regarding decisions made pursuant to

this division’ [citation] and thus to alleviate the ‘chilling effect on the

confidence with which property owners and local governments can proceed

with projects’ [citation] created by potential legal challenges to local planning

and zoning decisions.” (Travis v. County of Santa Cruz (2004) 33 Cal.4th 757,

765.) Similarly, “[t]he ‘primary purpose’ of the limitation[s] period in [CEQA]

‘is to protect project proponents from extended delay, uncertainty and

potential disruption of a project caused by a belated challenge to the validity

of the project’s authorization.’ ” (Save Lafayette Trees v. East Bay Regional

Park Dist. (2021) 66 Cal.App.5th 21, 39.)

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a. Naming

The trial court ruled SOS2 had not named Literacy First as a party to

the lawsuit within the limitations period because it was not included in the

caption of the petition. This was error.

The rules of civil procedure require the title of the initial pleading,

which is a petition in a proceeding for a writ of mandate, to include the

names of all the parties. (Code Civ. Proc., §§ 422.40, 1086; Cal. Rules of

Court, rule 2.111(4); Tracy Press, Inc. v. Superior Court (2008) 164

Cal.App.4th 1290, 1296-1297.) “A petition for writ of mandate must name

the real party in interest, who thereafter has a right to notice and to be heard

before a trial or appellate court issues a peremptory writ.” (Sonoma County

Nuclear Free Zone v. Superior Court (1987) 189 Cal.App.3d 167, 173 (Sonoma

County).) SOS2 did not include Literacy First in the title of the petition,

which is part of the caption (Code Civ. Proc., § 422.30, subd. (a)(2)). Had

SOS2 given its pleading greater attention and complied with the simple

requirement of including all parties in the caption, it might have avoided the

County’s demurrer and the trial court’s dismissal of the lawsuit.

SOS2’s procedural misstep does not necessarily bar its lawsuit against

the County, however. “The title of a legal pleading is of less importance than

the substance of the message it conveys.” (Gillette v. Burbank Community

Hosp. (1976) 56 Cal.App.3d 430, 434; see Civ. Code, § 3528 [“The law respects

form less than substance.”].) “It has been uniformly held in our state that in

order to determine the identity of a party courts are entitled to take into

consideration the allegations of the complaint as well as the title.” (Plumlee

v. Poag (1984) 150 Cal.App.3d 541, 547.) The first paragraph of the petition

identified Literacy First as the recipient of the major use permit whose

issuance SOS2 was attacking. The section of the petition labeled

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“PARTIES” identified Literacy First as the real party in interest and the

proponent of the construction project identified in the mitigated negative

declaration whose adoption SOS2 was challenging. The rest of the petition

described how the County allegedly violated the law in approving the project

and set out the relief SOS2 sought. The body of the petition thus made clear

Literacy First was the real party in interest for the project whose approval

SOS2 was seeking to set aside. (Cf. Bell v. Tri-City Hospital Dist. (1987) 196

Cal.App.3d 438, 449 [defendant is adequately named in complaint if “a

reasonable defendant [would] have understood the complaint to allege that it

was in some way responsible for plaintiff’s injury”].) By filing the petition on

January 14, 2021, which was less than 90 days after the County approved the

project on December 9, 2020, SOS2 named Literacy First within the

applicable limitations period. (Gov. Code, § 65009, subd. (c)(1)(E); Royalty,

supra, 125 Cal.App.4th at p. 1123.)

b. Service

The trial court also ruled SOS2 had not served Literacy First within

the limitations period because it was not named in the summons. This, too,

was error.

In general, service in a civil proceeding requires delivery of a summons

and a copy of the plaintiff’s complaint to the defendant. (Code Civ. Proc.,

§§ 413.10-416.90; Cal. Rules of Court, rule 3.110(b); Ruttenberg, supra, 53

Cal.App.4th at p. 808; Kott v. Superior Court (1996) 45 Cal.App.4th 1126,

1135.) The summons must name the parties to the action (Code Civ. Proc.,

§ 412.20, subd. (a)(2)), and if directed to a corporation, must notify the person

being served that service is on behalf of the corporation (id., § 412.30). The

summons at issue here, of which the trial court properly took judicial notice

(Evid. Code, § 452, subd. (d) [court records are subject to judicial notice];

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Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 360, 382 [court

may take judicial notice of existence of documents in file]), does not name

Literacy First and does not contain the required notice for service on a

corporation. As the County contends, these defects would render the service

ineffective if a summons were required to effect valid service. (Tresway Aero,

Inc. v. Superior Court (1971) 5 Cal.3d 431, 435; Mannesmann DeMag, Ltd. v.

Superior Court (1985) 172 Cal.App.3d 1118, 1124; National Union Fire Ins.

Co. v. Superior Court (1966) 247 Cal.App.2d 326, 328-329.) No summons was

required to be served on Literacy First, however, for several reasons.

First, a summons is “directed to the defendant” and must warn that

without a timely response default may be entered and the plaintiff may apply

to the court for the relief demanded in the complaint. (Code Civ. Proc.,

§ 412.20, subd. (a)(4).) Literacy First is a real party in interest, but not a

defendant, because its interest in the high school construction project is

directly affected by SOS2’s writ proceeding, but SOS2 sought no relief against

Literacy First. (Id., § 308 [in civil action complaining party is plaintiff and

adverse party is defendant]; Sonoma County, supra, 189 Cal.App.3d at p. 173

[real party in interest is not necessarily opposing party and includes anyone

having direct interest in result of proceeding].)

Second, ordinarily “in mandate proceedings, the traditional summons is

not used.” (Board of Supervisors, supra, 23 Cal.App.4th at p. 842, fn. 9.)

Rather, service in such proceedings is accomplished by serving the

alternative writ like a summons in a civil action unless the court directs

otherwise (Code Civ. Proc., §§ 1088, 1096; see Ocheltree v. Gourley (2002) 102

Cal.App.4th 1013, 1018 [alternative writ serves function similar to that of

summons]) or, if no alternative writ is sought, by serving the petition like a

summons (Code Civ. Proc., §§ 1088.5, 1107; see Board of Supervisors, at

13

pp. 839-840 [when no alternative writ sought petition must be served like

summons]).

Third, principles of statutory construction indicate no summons was

required in this case. The Subdivision Map Act, which is not at issue in this

case, expressly requires service of a summons on a legislative body in a

proceeding challenging a decision concerning a subdivision (Gov. Code,

§ 66499.37; see Friends of Riverside’s Hills v. City of Riverside (2008) 168

Cal.App.4th 743, 746 [service of summons requirement applies to CEQA

cause of action concerning subdivision]), but the Planning and Zoning Law

and CEQA, which are at issue, do not expressly require service of a summons

(Gov. Code, § 65009, subd. (c)(1); Pub. Resources Code, §§ 21167.6, subd. (a),

21167.6.5, subd. (a)). “When confronted with two statutes, one of which

contains a term, and one of which does not, we do not import the term used in

the first to limit the second.” (Walt Disney Parks & Resorts U.S., Inc. v.

Superior Court (2018) 21 Cal.App.5th 872, 879; see Holmes v. Jones (2000) 83

Cal.App.4th 882, 890 [use of term or phrase in one statute and omission from

another statute on related subject show different meaning was intended].)

Hence, SOS2 was not required to serve Literacy First with a summons.

Its failure to do so within the 90-day limitations period did not require

dismissal of the writ proceeding.

SOS2, of course, was required to serve the petition on Literacy First

within the 90-day limitations period to avoid dismissal. (Code Civ. Proc.,

§§ 1088.5, 1107; Gov. Code, § 65009, subd. (c)(1)(E), (e); Royalty, supra, 125

Cal.App.4th at p. 1123.) Whether SOS2 did so cannot be resolved on

demurrer, however, because only the petition and matters subject to judicial

notice may be considered. (Code Civ. Proc., § 430.30, subd. (a); Weil v.

Barthel (1955) 45 Cal.2d 835, 837.) The petition says nothing about service

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on Literacy First. The two proofs of service of which the County asked the

trial court to take judicial notice state that SOS2 served the petition on

Literacy First’s lawyer by both U.S. mail and electronic mail on February 23,

2021, and on Literacy First’s registered agent for service of process by

substituted service at Literacy First’s address for service of process on

February 24, 2021. Both dates are within the 90-day limitations period, but

the truthfulness of the statements in the proofs of service is not subject to

judicial notice. (Richtek, supra, 242 Cal.App.4th at p. 660; Intengan v. BAC

Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1057.) Moreover, the

parties disputed the validity of service in declarations filed in support of and

in opposition to the demurrer. Such declarations may not be considered on

demurrer, which is “not the appropriate procedure for determining the truth

of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873,

879; see Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126 [refusing to

consider declaration defendant filed with demurrer].) Because a demurrer

based on limitations will not lie where the proceeding may be but is not

necessarily time-barred (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232), and

neither the petition nor any document subject to judicial notice conclusively

establishes SOS2 did not validly serve the petition on Literacy First within

the limitations period, the trial court erred by sustaining the demurrer

without leave to amend and dismissing the petition.

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III.

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court

with directions to vacate the order sustaining respondents’ demurrer without

leave to amend and to enter a new order overruling the demurrer.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.

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