Calexico Unified School Dist. v. City of Calexico CA4/1

Filed 12/27/23 Calexico Unified School Dist. v. City of Calexico 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CALEXICO UNIFIED SCHOOL D080686

DISTRICT,

Plaintiff and Appellant,

(Super. Ct. No. ECU001685)

v.

CITY OF CALEXICO,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Imperial County,

L. Brooks Anderholt, Judge. Affirmed.

Dannis Woliver Kelley, Samuel R. Santana, Karina K. Samaniego and

Luke L. Punnakanta for Plaintiff and Appellant.

Tao Rossini and Barry Nutovic for Coalition of Adequate School

Housing as Amicus Curiae on behalf of Plaintiff and Appellant.

Best Best & Krieger, Carlos L. Campos and Matthew L. Green for

Defendant and Respondent.

INTRODUCTION

Between 2017 and 2020, the City of Calexico (the City) issued over 200

building permits before obtaining certification that school impact fees had

been paid to the Calexico Unified School District (the District), as required by

Education Code1 section 17620, subdivision (b) (section 17620(b)). The

District contends this means that a large number of developers and property

owners never paid fees they owed the District. It estimates Calexico’s public

schools were deprived of nearly $1 million in fees that were critical to its

ability to provide facilities for new students brought by new development.

The central question presented by this appeal is whether the District

may recover those unpaid school impact fees from the City under Government

Code section 815.6, under which a public entity may be held liable for an

“injury” proximately resulting from its failure to discharge a mandatory duty.

We conclude the answer is no. Under Aubry v. Tri-City Hospital Dist. (1992)

2 Cal.4th 962, 968 (Aubry), an actionable injury must be to the kind of

interest that has been protected in the courts “ ‘in actions between private

persons.’ ” Because school impact fees are an entirely government creation,

no private plaintiff could bring a suit against a private defendant to recover

such unpaid fees. Although we recognize unpaid school impact fees harm

school districts, and ultimately public-school students, we are constrained by

Aubry to hold the City cannot be held liable for this injury under Government

Code section 815.6. We affirm the trial court’s judgment in favor of the City

as to the District’s petition for writ of mandate and complaint for damages.

1 All further undesignated statutory references are to the Education

Code.

2

FACTUAL AND PROCEDURAL BACKGROUND

I.

Overview of School Impact Fees

We begin with a discussion of the statutory framework that governs

school impact fees to provide context.

The current system of financing public school facilities in California is

accomplished through statewide bonds, local bonds, and school impact fees,

with “all playing an important role in school facility finance.” (Eric J.

Brunner and Jeffrey M. Vincent, Financing School Facilities in California: A

10-Year Perspective (Sept. 2018), p. iii.) Historically, however, school

districts “ ‘financed the construction and maintenance of school facilities

mainly through the issuance of local bonds repaid from real property taxes.’ ”

(Grupe Development Co. v. Superior Court (1993) 4 Cal.4th 911, 916 (Grupe),

quoting Candid Enterprises, Inc. v. Grossmont Union High School Dist.

(1985) 39 Cal.3d 878, 881.)

In the early 1970s, resistance to rising property taxes made it more

difficult for local governments to obtain voter approval of bond issues to

finance school facilities. (Grupe, supra, 4 Cal.4th at p. 916.) At the same

time, “ ‘[a] wave of residential development’ ” contributed to the funding

problem by “ ‘causing serious overcrowding in local schools.’ ” (Ibid.) To

“ ‘keep pace with the continuing influx of new students, local governments

began the practice of imposing [school impact] fees on developers to cover the

costs of new school facilities made necessary by the new housing.’ ” (Ibid.)

Although the practice was generally deemed a valid exercise of the

police power under California’s Constitution, the Legislature enacted the

School Facilities Act in 1977 to grant cities and counties the specific authority

to levy school impact fees. (Stats. 1977, ch. 955, § 1, pp. 2902–2905; Grupe,

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supra, 4 Cal.4th at p. 916.) In 1986, the School Facilities Act was

“ ‘substantially revised and expanded,’ ” in part, to expressly authorize school

districts themselves, rather than city councils or county boards of

supervisors, to impose such fees. (Grupe, at p. 917.)

The authority of school districts to levy school impact fees on new

development is codified at section 17620, subdivision (a), which provides:

“The governing board of any school district is authorized to levy, a

fee . . . against any construction within the boundaries of the district, for the

purpose of funding the construction or reconstruction of school facilities.”

(§ 17620, subd. (a).) The fee may be imposed against “new commercial and

industrial construction”; “new residential construction”; “other residential

construction” that increases “assessable space” by more than 500 square feet;

and the “location, installation, or occupancy of manufactured homes and

mobilehomes.” (§ 17620, subd. (a)(1)(A)–(D).)

The amount of the fee that may be imposed is limited by Government

Code sections 65995 through 65998. (Ed. Code, § 17620, subd. (a).) These

statutes create three distinct tiers of school impact fees.

Level 1 fees are the statutory maximum that may be charged per

square foot; they are adjusted biannually for inflation by the State Allocation

Board.2 (Gov. Code, § 65995, subd. (b)(1)–(3).) Level 2 fees, which can be

charged only on residential development, are an alternative fee per square

2 Currently, $4.79 per square foot of assessable space may be imposed on

residential construction and $0.78 per square foot on any commercial or

industrial construction. (California Department of General Services, Annual

Adjustment to SFP Grants and Developer Fee History

<https://www.dgs.ca.gov/OPSC/Resources/Page-Content/Office-of-Public-

School-Construction-Resources-List-Folder/Annual-Adjustment-to-SFP-

Grants-and-Developer-Fee-History> [as of Dec. 27, 2023].)

4

foot that may be imposed by a school district that needs to house additional

students. (Id., § 65995.5, subds. (a), (b)(2).) To impose Level 2 fees, school

districts must conduct and adopt a “school facility needs analysis” (id.,

§ 65995.5, subd. (b)(2)) “to determine the need for new school facilities for

unhoused[3] pupils that are attributable to projected enrollment growth from

the development of new residential units over the next five years” (id.,

§ 65995.6, subd. (a)). School districts eligible to impose Level 2 fees can

impose higher Level 3 fees if the State Allocation Board determines it “is no

longer approving apportionments for new construction . . . due to a lack of

funds available.” (Id., § 65995.7, subds. (a) & (b).)

To adopt a school impact fee, school districts must “determine how

there is a reasonable relationship between the amount of the fee and the cost

of the public facility . . . attributable to the development on which the fee is

imposed.” (Gov. Code, § 66001, subd. (b) [made applicable by Ed. Code,

§ 17621, subd. (a)].) And they must impose such fees by resolution and only

after a public hearing. (Ed. Code, § 17621, subd. (a); Gov. Code, §§ 66004,

66018, subd. (a).)

The collection of school impact fees from developers or property owners

may be done in one of two ways. The school district and the appropriate city

or county may enter into a contractual agreement by which the city or county

collects the fees on the school district’s behalf. (§ 17620, subd. (a)(4).) If

there is no agreement, the school district collects the fees. But to ensure

payment is made to the school district, the city or county that oversees the

3 The District explains an unhoused student is a student who does not

have a seat within District facilities, meaning the student may learn in a

classroom with overloaded capacity, or in nontraditional facilities like

portable classroom trailers.

5

development must obtain the school district’s certification that the school

district has been paid or is not owed fees before issuing any building permit.

(§ 17620, subd. (b).)

This certification requirement in turn requires the school district to

notify “each city and each county in which the district is situated” whenever

it adopts or increases a school impact fee. (§ 17621, subd. (c).) Section 17621,

subdivision (c) (section 17621(c)), specifies that the school district’s notice

“shall” include “a copy of the resolution” adopting or increasing the school

impact fee, “accompanied by all relevant supporting documentation and a

map clearly indicating the boundaries of the area subject to the fee.” Upon

the required notification, the affected city or county “shall not issue a

building permit for any construction absent certification by the appropriate

school district” that the developer or property owner has paid or does not owe

school impact fees to the school district. (§ 17620, subds. (b) & (d).)

II.

Unpaid School Impact Fees in Calexico

The District serves Calexico with 11 schools and approximately 8,547

students.4 According to its 2021 school facility needs analysis, the District

estimated the cost to provide school facilities for each of its students in grades

K–6, 7–8, and 9–12 was $34,946, $38,590, $38,682, respectively. In that year,

the District had 470 unhoused students within its facilities and “no funds

dedicated to school facilities necessitated by future construction and

development.”

4 Calexico Unified School District, Points of Pride

<https://www.cusdk12.org/index.html> [as of Dec. 27, 2023].

6

The District does not have an agreement for the City to administer the

collection of school impact fees on the District’s behalf. Thus the City would

have been required to obtain certification from the District that it was paid or

was not owed fees on a particular development project before the City could

issue a building permit. (See Section I, infra.) In the fall of 2020, the District

learned that between 2017 and 2020, the City had issued a total of 256

building permits (33 in 2017, 58 in 2018, 100 in 2019, and 65 in 2020). The

City, however, only received certification that fees were paid to the District

for 43 of those building permits (3 in 2017, 13 in 2018, 15 in 2019, and 12 in

2020). The District contends this means that, during those years, the City

issued 213 building permits before the District received payment of school

impact fees from the property owner or developer, or determined that no fees

were owed.

This lawsuit followed. The District sued the City to recover what it

estimates to be approximately $1 million of unpaid school impact fees. In its

operative petition for writ of mandate and complaint for damages, the

District asserted three causes of action: (1) Under Code of Civil Procedure

section 1085, the District sought a writ of mandate directing the City to

comply with section 17620(b), and to pay the District the unpaid school

impact fees as retrospective relief. (2) The District asserted the City

breached its mandatory duty under section 17620(b), and sought damages

under Government Code section 815.6. (3) The District sought declaratory

relief under Code of Civil Procedure section 1060.

The City answered and asserted numerous affirmative defenses. In

particular, the City asserted the District’s petition was barred by section

17620, subdivision (d), because the District failed to comply with the notice

requirements under section 17621(c). Specifically, the District had not

7

provided the City with a copy of the resolutions adopting or increasing school

impact fees, “ ‘accompanied by all relevant supporting documentation and a

map clearly indicating the boundaries of the area subject to the fee.’ ” As a

result, the City argued, it was under no mandatory duty imposed by section

17620(b).

The City also filed a cross-complaint for equitable indemnity and

contribution from 330 property owners and developers that had failed to pay

school impact fees to the District.5 Finding “the addition of these numerous

parties may be unnecessary following a trial on the issue of liability,” the

District and the City agreed to bifurcate the issues of liability and damages.

They tried first the issue of liability, “on the papers [and] without [any] live

testimony.”

The trial court ruled in favor of the City on liability. The court found

the District’s cause of action under Government Code section 815.6 failed for

two reasons: (1) The injury asserted by the District⎯“unpaid developer

fees”⎯was not the kind of injury that would allow recovery of damages

against a public entity under Government Code section 815.6. (2) The City

had no mandatory duty under section 17620(b) to obtain certification from

the District before issuing any building permit because the District failed to

“provide [the City with] all of the statutorily required documents and

information” under section 17621(c). Last, the court rejected the District’s

request for writ of mandate as moot, finding that “the City is currently in

compliance with the requirements of the Education Code and has been in

compliance since 2020.” The court did not address the District’s third cause

5 The City originally sued Roes 1 through 400. It subsequently amended

its cross-complaint to name 330 individual “building permit applicants.”

8

of action for declaratory relief, but it denied the District’s petition in its

entirety.

DISCUSSION

I.

Second Cause of Action for Damages Under Government Code Section 815.6

The District appeals, asserting the trial court erroneously ruled in

favor of the City on all three causes of action. We begin our discussion with

the District’s second cause of action for damages under Government Code

section 815.6.

A. Mandatory Duty Liability Under Government Code Section 815.6

Except as otherwise provided by statute, “[a] public entity is not liable

for an injury, whether such injury arises out of an act or omission of the public

entity[.]” (Gov. Code, § 815, subd. (a).) Government Code section

815.6 is one of the statutory exceptions to this rule of governmental

immunity. It provides: “Where a public entity is under a mandatory duty

imposed by an enactment that is designed to protect against the risk of a

particular kind of injury, the public entity is liable for an injury of that kind

proximately caused by its failure to discharge the duty unless the public

entity establishes that it exercised reasonable diligence to discharge the

duty.” (Gov. Code, § 815.6.) An “enactment” is defined as “a constitutional

provision, statute, charter provision, ordinance or regulation.” (Gov. Code,

§ 810.6.)

Application of Government Code “ ‘section 815.6 requires that the

enactment at issue be obligatory, rather than merely discretionary or

permissive, in its directions to the public entity; it must require, rather than

merely authorize or permit, that a particular action be taken or not taken.

[Citation.] It is not enough, moreover, that the public entity or officer have

9

been under an obligation to perform a function if the function itself involves

the exercise of discretion.’ ” (Guzman v. County of Monterey (2009) 46 Cal.4th

887, 898 (Guzman).) Courts construe this requirement “rather strictly,

finding a mandatory duty only if the enactment ‘affirmatively imposes the

duty and provides implementing guidelines.’ ” (Ibid.; see Clausing v. San

Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1240 (Clausing)

[“If rules and guidelines for the implementation of an alleged mandatory duty

are not set forth in an otherwise prohibitory statute, it cannot create a

mandatory duty.”].)

“[E]qually important, [Government Code] section 815.6 requires that

the mandatory duty be ‘designed’ to protect against the particular kind of

injury the plaintiff suffered. The plaintiff must show the injury is ‘ “one of

the consequences which the [enacting body] sought to prevent through

imposing the alleged mandatory duty.” ’ ” (Haggis v. City of Los Angeles

(2000) 22 Cal.4th 490, 499 (Haggis).) Last, the breach of the duty must have

been a proximate cause of the plaintiff’s injury. (Guzman, supra, 46 Cal.4th

at p. 898.) “The question of whether an enactment is intended to impose a

mandatory duty on a public entity to protect against a particular kind of

injury is a question of law” (Clausing, supra, 221 Cal.App.3d at p. 1239),

which we review de novo (Haggis, at p. 499).

B. Section 17620(b) Imposes a Mandatory Duty upon the City to Ensure the

District Received Payment of School Impact Fees Before Issuing

Building Permits

The parties agree section 17620(b) imposes a mandatory duty upon the

City to obtain certification that the District has been paid or is not owed

school impact fees before issuing a building permit; and that duty is

contingent on the District providing the City with “notification” of the fee

adoption or increase “in accordance with” section 17621(c) (§ 17620, subd.

10

(d)), which specifies that “the school district shall transmit a copy of the

resolution to each city and each county in which the district is situated,

accompanied by all relevant supporting documentation and a map clearly

indicating the boundaries of the area subject to the fee[.]” Where they

disagree is whether the District can satisfy section 17621(c)’s notice

requirements with substantial or strict compliance.

The answer depends on whether section 17621(c)’s notice requirements

have “mandatory” or “directory” effect. (See Downtown Palo Alto Com. for

Fair Assessment v. City Council (1986) 180 Cal.App.3d 384, 394 (Palo Alto).)

It is important to note the distinction between mandatory and directory effect

differs from the question of whether a duty is mandatory under Government

Code section 815.6. (Morris v. County of Marin (1977) 18 Cal.3d 901, 908

(Morris) [“ ‘mandatory duty’ terminology of [Government Code] section 815.6

[is] entirely distinct and unrelated” to the “legal doctrine pertaining to

‘directory’ or ‘mandatory’ provisions”].) As used in Government Code section

815.6, “the term ‘mandatory’ refers to an obligatory duty which a

governmental entity is required to perform, as opposed to a permissive power

which a governmental entity may exercise or not as it chooses. By contrast,

the ‘directory’ or ‘mandatory’ designation does not refer to whether a

particular statutory requirement is ‘permissive’ or ‘obligatory,’ but instead

simply denotes whether the failure to comply with a particular procedural

step will or will not have the effect of invalidating the governmental action to

which the procedural requirement relates.” (Morris, at p. 908.)

Although both directory and mandatory provisions contain obligatory

requirements, “[i]t is only where statutory requirements are accorded

‘mandatory’ rather than ‘directory’ effect that failure to comply with a

particular step” will invalidate the governmental action to which the

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procedural requirement relates. (Palo Alto, supra, 180 Cal.App.3d at

pp. 394–395; Morris, supra, 18 Cal.3d at pp. 908−909.) In other words, strict

compliance with procedural requirements is required for provisions with

mandatory effect, whereas substantial compliance will suffice for provisions

with directory effect. (Palo Alto, at pp. 394–395; Morris, at pp. 908−909.)

As our high court has explained, “there is no simple, mechanical test

for determining whether a provision should be given ‘directory’ or ‘mandatory’

effect. ‘In order to determine whether a particular statutory provision . . . is

mandatory or directory, the court, as in all cases of statutory construction

and interpretation, must ascertain the legislative intent. In the absence of

express language, the intent must be gathered from the terms of the statute

construed as a whole, from the nature and character of the act to be done,

and from the consequences which would follow the doing or failure to do the

particular act at the required time. [Citation.] When the object is to

subserve some public purpose, the provision may be held directory or

mandatory as will best accomplish that purpose.’ ” (Morris, supra, 18 Cal.3d

at pp. 909−910.) “The paramount consideration is the objective of the

statute” (Palo Alto, supra, 180 Cal.App.3d at p. 395), and “[u]nless the intent

of the statute can only be served by demanding strict compliance with its

terms, substantial compliance is the governing test” (id. at pp. 394–395).

This is a question we review de novo. (Ibid.; Warmington Old Town

Associates v. Tustin Unified School Dist. (2002) 101 Cal.App.4th 840, 849

[reviewing statutory interpretation de novo].)

The parties offer differing views of what the Legislature intended with

the notice requirements of section 17621(c). The District asserts the notice

requirements were meant “to provide planning agencies with notice of school

districts’ fee rates.” It further contends this notice provision “serves more of a

12

purpose” where a city or county and a non-unified school district have taken

the optional step under section 17620, subdivision (a)(4), of entering into an

agreement for the city or county to collect school impact fees on the school

district’s behalf. “In that case, the city [or county] would need to know the

rates a specific district is charging because the city [or county] is the party

analyzing the permit and calculating the fees.” But where, as here, there is

no such agreement, the District contends the City need not even be made

aware of the applicable fee rates. The District points to the deposition

testimony of the City’s person most knowledgeable, who testified “[t]he rate

of what’s being charged should not impact [the City’s] compliance” with

section 17620(b) to withhold issuance of building permits until it obtains

certification that fees have been paid or are not owed.

The District further argues that, despite the notice provision requiring

transmission of a boundary map showing the area subject to the school

impact fee, a map serves no purpose in a unified district such as Calexico’s

where the District is the only school district within the City. Thus, in the

District’s view, transmitting just enough information to allow the city and

county to know whether they need to receive certification of payment of

school impact fees before issuing a particular building permit satisfies the

Legislature’s objective in enacting section 17621(c)’s notice requirements.

They therefore have directory effect and may be satisfied with substantial

compliance.

The City, on the other hand, contends section 17621(c) “is not a mere

notice provision.” Rather, the notice requirements are meant to provide cities

and counties with the information necessary to assess whether to challenge

the adoption of a new or increased school impact fee. Without the resolution

and fees study, the City argues it cannot make that assessment. The City

13

states it has only a 120-day period to challenge new school impact fees under

Government Code section 66022, subdivision (a), and “coupled with the

significant impact that developer fees may have on cities and counties, it

makes sense that the Legislature placed the onus on school districts to

provide cities and counties with the materials justifying the fees.” In the

City’s view, school districts must strictly comply with the notice

requirements.

The District has the better argument. We disagree with the City that

the Legislature intended for the notice requirements to serve the objective of

providing information necessary for cities and counties to assess whether to

challenge new school impact fees. The challenge provision identified by the

City—Government Code section 66022—does not apply to school impact

fees.6 Government Code section 66022 is part of the Mitigation Fee Act,

which was passed by the Legislature “ ‘ “in response to concerns among

developers that local agencies were imposing development fees for purposes

unrelated to development projects.” ’ ” (Barratt American Inc. v. City of

Rancho Cucamonga (2005) 37 Cal.4th 685, 691.) The Mitigation Fee Act

provides specific ways for developers to challenge development fees. But

subdivision (c) of Government Code section 66022 expressly states: “This

section shall apply only to fees, capacity charges, and service charges

described in and subject to Sections 66013, 66014, and 66016.” Government

Code section 66013 covers water and sewer connection fees. Government

6 We note that amici curiae in Western/California, Ltd. v. Dry Creek

Joint Elementary School Dist. (1996) 50 Cal.App.4th 1461, 1475, footnote 12

(Dry Creek) argued that Government Code section 66022 does not apply to

school impact fees. But the court did not decide the issue and instead

“assume[d] for the sake of argument that [Government Code] section 66022

applies to the type of developer fees at issue.” (Ibid.)

14

Code section 66014 covers zoning and permit fees. Neither applies to school

impact fees. (Barratt American Inc., at p. 691 [noting these fees or charges do

not relate to a development project].) Government Code section 66016 is

similarly inapplicable. It applies “only to fees and charges” in a number of

sections that do not cover school impact fees.7 (Gov. Code, § 66016, subd.

(d).) Contrary to the City’s argument, Government Code section 66022 does

not authorize cities and counties to challenge school impact fees.8

The City identifies no other provision under which it could

affirmatively challenge a school impact fee imposed by the District. Nor has

7 Those sections include Government Code sections 51287 (recovery of

costs from cancellation of land contracts), 56383 (fees and service charges

imposed by local agency formation commissions), 65104 (fees to support a

planning agency), 65456 (land use plan fees), 65584.1 (fees for distributing

regional housing needs), 65863.7 (fees for closing mobile home parks),

65909.5 (fees for use permits and zone variances), 66013 (water and sewer

connection fees), 66014 (zoning and permit fees), and 66451.2 (fees for

processing parcel maps); Health and Safety Code sections 17951 (building

permit and enforcement fees), 19132.3 (building permit application fees),

and 19852 (building record fees); Public Resources Code section 41901 (waste

management fees); and Public Utilities Code section 21671.5 (airport land

use commission fees).

8 The precursor to Government Code section 66022 enacted in 1982

contained essentially the same language as current Government Code section

66022, except that it did not contain the restriction in current subdivision (c)

regarding which fees may be challenged. (Compare Stats. 1982, ch. 289, § 5,

pp. 929–930, with Gov. Code, § 66022.) The first version of the restriction in

current subdivision (c) was not enacted until 1990. (Stats. 1990, ch. 1572,

§ 22, pp. 7505–7506.) Thus there was no such restriction when the

Legislature enacted the school impact fee notice requirements in 1989. (See

Stats. 1989, ch. 1209, §§ 19–20, pp. 4693–4694.) To the extent cities and

counties were able to challenge school impact fees under the precursor to

Government Code section 66022, the current statute forecloses that

possibility.

15

our research revealed any such provision. Education Code section 17621,

subdivision (d), allows “[a]ny party on whom” a school impact fee “has been

directly imposed” to “protest the establishment or imposition” of that school

impact fee under Government Code section 66020. (Italics added.) But cities

and counties issuing building permits cannot challenge school impact fees

under this provision, as such fees are not “directly imposed” on them, but

rather on developers and property owners. (Ed. Code, § 17621, subd. (d).)

Moreover, we have not succeeded in locating any case (published or

unpublished) in which a city or county has challenged a school district’s

imposition of a school impact fee.

We are thus unpersuaded by the City’s contention that the objective of

section 17621(c)’s notice requirements is to provide cities and counties with

information necessary to assess whether to challenge school impact fees. It

makes more sense, as the District argues, that the objective of section

17621(c)’s notice requirements is to inform cities and counties whether they

need to receive certification of payment of school impact fees before issuing

building permits. This objective finds support in the legislative history of the

1986 bill that revised and expanded the School Facilities Act to give school

districts direct authority to levy school impact fees. As our high court noted

in Grupe, supra, 4 Cal.4th at pages 917−918: “Dispelling any doubt as to its

intent, the Legislature declared in the [enacting] bill that in many parts of

California real property development was causing serious overcrowding in

schools that traditional public financing was inadequate to relieve, and ‘[f]or

these reasons, a comprehensive school facilities finance program based upon

a partnership of state and local governments and the private sector is

required to ensure the availability of school facilities to serve the population

growth generated by new development.’ (Stats. 1986, ch. 887, § 7, subd. (d),

16

p. 3080.)” (Italics added.) That partnership is served by imposing a

gatekeeping role on cities and counties to ensure school impact fees are paid

to school districts through their certification obligations.

The structure of sections 17620 and 17621 supports the objective

advanced by the District. In isolation, section 17621(c) has no connection to

the issuance of building permits. It only requires school districts to provide

notice of adopted or increased school impact fees. (§ 17621, subd. (c).)

However, as we have already explained, section 17620, subdivision (d), makes

the duty of cities and counties under section 17620(b) contingent upon notice

under section 17621(c). This indicates the Legislature considered the

required notice to be necessary for cities and counties to perform their duty

under section 17620(b). Common sense explains this necessity: if a city or

county does not know a school district has adopted or increased school impact

fees, it cannot know whether to condition the issuance of building permits on

the receipt of certification that such fees have been paid or are not owed.

We conclude section 17621(c)’s notice requirements are intended to

inform cities and counties whether they need to obtain certification from

school districts that school impact fees have been paid, or are not owed,

before issuing building permits. Because the objective of the notice

requirements may be achieved without the exact transmission of information

specified in section 17621(c), we conclude they have directory effect and

substantial compliance is the governing test. (Palo Alto, supra, at 180

Cal.App.3d at p. 395.)

For example, “a map clearly indicating the boundaries of the area

subject to the [school impact] fee” does not provide any necessary information

in a case like the present one, where the City only has a single school district.

(§ 17621, subd. (c).) In addition, although section 17621(c) requires

17

transmission of a copy of the adopting resolution, a document providing the

relevant information from the resolution would deviate from the notice

requirements only in form, without hindering their objective. Such relevant

information may include the effective date of the school impact fees and the

rates imposed—in other words, whatever is necessary for the city or county to

determine whether it must receive certification of payment of school impact

fees before issuing a building permit. The exact rates imposed may also not

even be relevant, except where the city or county has agreed to help the

school district collect the school impact fees under section 17620, subdivision

(a)(4). Transmission of the relevant information in a letter or some other

document, rather than the resolution itself, does not undermine the objective

of the notice requirements.

The legislative history supports our conclusion. A report by the

Assembly Committee on Education on the bill that enacted the precursor to

section 17621(c) stated that the notice provision “[r]equires districts, upon

adoption of fees, to notify the appropriate city or county and to provide maps

and supporting documentation, as necessary.” (Assem. Com. on Education,

Rep. on Assem. Bill No. 181 (1988–1989 Reg. Sess.) Feb. 7, 1989, p. 5, italics

added.) A later report on the same bill similarly stated the notice provision

requires school districts “to provide any necessary maps and supporting

documentation.” (Concurrence in Sen. Amendments, Rep. on Assem Bill No.

181 (1988–1989 Reg. Sess.) as amended Sept. 13, 1989, p. 6, italics added.)

The “necessary” qualifier in each of these descriptions of the notice provision,

while not included in the statutory text, indicates the Legislature did not

intend for the notice requirements to be strictly applied.

Last, we find Dry Creek to be persuasive authority that section

17621(c)’s notice requirements have directory effect. In Dry Creek, a group of

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developers sought refunds of school impact fees in a mandamus action under

Code of Civil Procedure section 1085. (Dry Creek, supra, 50 Cal.App.4th at

pp. 1467–1468.) They argued the fees exceeded a statutory restriction on

development fees and requirements when added to the existing Mello-Roos

taxes. The trial court agreed and directed issuance of a peremptory writ of

mandate commanding the school district to refund the fees paid by the

developers. (Id. at p. 1468.) The school district appealed. The Court of

Appeal reversed the judgment, concluding the developers were not entitled to

a refund because Mello-Roos taxes are not a factor in the statutory cap on

school impact fees and requirements. (Id. at pp. 1468−1469.) These issues, of

course, are not relevant to this appeal.

Relevant here, the developers filed a protective cross-appeal, asserting

the judgment may be affirmed on the alternative ground the trial court erred

in rejecting their claim that the school district was prohibited from collecting

school impact fees because it had failed to give appropriate notice to the

county, as required by the precursor to section 17621(c). (Dry Creek, supra,

50 Cal.App.4th at pp. 1468−1469, 1497.) Former Government Code section

53080.1, subdivision (c), the precursor to section 17621(c), also required the

school district to transmit a copy of the resolution, supporting documentation,

and a boundary map to the county.9 (Dry Creek, at p. 1497.) And like here,

the school district “merely informed” the county of its decision adopting the

fee “in correspondence stating the documents were available upon request,”

but it had not transmitted the resolution, supporting documentation, or

boundary map. (Ibid.) The developers argued the notice requirements were

9 Education Code section 17621 replaced Government Code section

53080.1. (Stats. 1996, ch. 277, §§ 3, 8, pp. 2182−2184, 2219.)

19

“intended for the protection of citizens” and should be accorded mandatory,

not directory, effect, and thus the school district’s failure to strictly comply

with the provision invalidated the imposition of fees. (Id. at p. 1498.)

That argument was rejected by the Dry Creek court. (Dry Creek, supra,

50 Cal.App.4th at pp. 1469, 1491.) The court explained that “provisions

enacted to secure the orderly conduct of business (as opposed to provisions

enacted for the benefit of the individual) are directory.” (Id. at p. 1499 [citing

Ryan v. Byram (1935) 4 Cal.2d 596, 603].) Construing Government Code

section 53080.1, the court found that “the only effect of noncompliance [with

the notice requirements] indicated in the statutes is that the county may be

excused from any obligations regarding the fee,” namely the requirement that

the county receive certification of fee payment before issuing a building

permit. (Dry Creek, at p. 1499.) Based on this, the court concluded the notice

requirements were not designed to benefit individuals, such as the

developers, and instead they “secure[ ] the orderly conduct of business.”

(Ibid.) This gave them directory effect.

As the District acknowledges, the issue in Dry Creek (whether a school

district’s failure to comply with the notice requirements excused developers

from having to pay school impact fees) is not the exact issue here (whether a

school district’s failure to comply with the notice requirements excuses a city

from having to ensure payment of school impact fees before issuing building

permits). Still, the underlying question⎯whether the notice requirements

have mandatory or directory effect⎯is the same. We see no reason, and the

20

City provides none,10 why the same procedural requirements would be

afforded directory effect in one setting but mandatory effect in another.

Because we conclude section 17621(c) has directory effect, substantial

compliance with its notice requirements is the governing test. We next turn

to whether the District did substantially comply with the notice requirements

necessary to trigger the City’s mandatory duty under section 17620(b). We

conclude it did.

“Substantial compliance . . . means actual compliance in respect to the

substance essential to every reasonable objective of the statute. But when

there is such actual compliance as to all matters of substance then mere

technical imperfections of form or variations in mode of expression . . . should

not be given the stature of noncompliance[.]” (Stasher v. Harger-Haldeman

(1962) 58 Cal.2d 23, 29.) In other words, “notice must promote and satisfy

the objectives of the law” to qualify as substantial compliance. (Palo Alto,

supra, 180 Cal.App.3d at p. 396.) Substantial compliance is a question of law

that we review de novo, but any underlying factual disputes must be resolved

by a fact finder. (Manderson-Saleh v. Regents of University of California

(2021) 60 Cal.App.5th 674, 706.)

Consistent with the objective of section 17621(c), substantial

compliance requires notice that informs the city and county whether they

need to receive certification of payment of school impact fees before issuing

building permits. Based on the undisputed facts in this case, the District

substantially complied. The record on appeal includes five communications

from the District to the City regarding adopted or modified school impact fees

10 Indeed, the City does not discuss Dry Creek in its respondent’s brief,

beyond a mention in one sentence that does not discuss Dry Creek’s analysis

of the notice requirements.

21

from before or during the alleged 2017–2020 damages period: a June 1, 2011

letter; a June 9, 2014 letter; a July 1, 2017 letter; an October 25, 2019 email;

and an October 23, 2020 letter. Only the last of those communications

strictly complied with section 17621(c). However, we conclude the other four

communications substantially complied.

The 2011, 2014, and 2017 letters all informed the City that the District

had adopted school impact fees and included the rates and effective dates for

the fees. Those letters “advised” the City to “not issue any building permits

to a developer of [sic] builder of new residential/commercial developments

with [sic] the . . . District’s boundaries unless and until the District has

executed a Certificate of Compliance indicating that the developer has paid

the [school impact fees], as applicable.” None of the letters enclosed or

attached any documents, but they all invited the City to contact the District

“[i]f [there were] any questions or comments with respect to this matter.”

Despite not enclosing the materials identified in section 17621(c), the

2011, 2014, and 2017 letters all provided information sufficient to notify the

City it needed to receive certification from the District of payment of school

impact fees before issuing building permits. The City did not need to receive

the resolutions adopting or increasing the school impact fees, as the effective

dates of those fees and the corresponding rates were included in the letters.

Nor did the City need to receive a boundary map of the District, which is the

only school district in the City. The City does not dispute it had actual

knowledge of the school impact fees, as evidenced by it receiving certification

of their payment for at least some of the building permits that it issued. As

was the case in Dry Creek, “the [City] received notice, though not the

supporting documents. The [City] apparently was not troubled by the

absence of supporting documentation and proceeded to require from

22

developers certification that the fee was paid before permits would be issued”

on at least 43 projects between 2017 and 2020. (Dry Creek, supra, 50

Cal.App.4th at p. 1499.) Thus, the 2011, 2014, and 2017 letters substantially

complied with the notice requirements.

As for the 2019 email, it attached “the District’s new certificate of

compliance for developer fees.” It also stated that “[e]ffective today, the

[D]istrict will begin charging $7.41 cents [sic] for new residential

development.” Like the 2011, 2014, and 2017 notice letters, the 2019 email

informed the City of the revised school impact fee effective date and rate.

The attached certificate of compliance stated: “Payment of school impact fees

to [the District] is a prerequisite to the issuance of a building permit.

Pursuant to [section 17620(b)], the City/County shall not issue a building

permit . . . absent a completed Certificate of Compliance from [the District].”

Nothing more was required to let the City know it needed to receive

certification from the District that school impact fees had been paid before

issuing building permits.

We conclude the District substantially complied with the notice

requirements of section 17621(c). Therefore, section 17620(b) imposed a

mandatory duty on the City, within the meaning of Government Code section

815.6, to obtain the required certification before issuing building permits.

(Ed. Code, § 17620, subds. (b) & (d).) There is no dispute the City breached

that duty by issuing 213 building permits between 2017 and 2020 without

certification that the District had been paid the school impact fees it was

owed.

C. Unpaid Developer Fees Do Not Constitute an “Injury” Within the

Meaning of Government Code Sections 815.6 and 810.8.

A public entity’s liability under Government Code “section 815.6

requires that the mandatory duty be ‘designed’ to protect against the

23

particular kind of injury the plaintiff suffered. The plaintiff must show the

injury is ‘ “one of the consequences which the [enacting body] sought to

prevent through imposing the alleged mandatory duty.” ’ ” (Haggis, supra, 22

Cal.4th at p. 499.) Here, in enacting the School Facilities Act, the Legislature

intended for a partnership between school districts and the cities and

counties to ensure school impact fees are collected to fund school facilities.

That partnership failed in Calexico between 2017 and 2020. As a result,

Calexico’s public school students ultimately bear the harm from the District

not receiving school impact fees it was owed. However, the District cannot

recover the unpaid fees from the City. Under Aubry, supra, 2 Cal.4th 962,

unpaid developer fees do not constitute an actionable “injury” within the

meaning of Government Code sections 815.6 and 810.8. For that reason, we

conclude the trial court correctly entered judgment against the District on its

second cause of action for damages.

At issue in Aubry was the public works laws (Lab. Code, § 1720 et seq.),

which impose a variety of duties on public entities awarding contracts for

public works that are “designed to help ensure that workers are paid the

prevailing wages” on qualifying projects. (Aubry, supra, 2 Cal.4th at p. 967.)

The Division of Labor Standards Enforcement (DLSE) brought claims against

a hospital district (a public entity) asserting the hospital district, “to reduce

its construction costs [on a public works project], engaged in activities that

‘were part of an overall scheme’ to ‘circumvent the public works laws.’ ” (Id.

at p. 966.) The DLSE sought damages consisting of the prevailing wage

shortfall and statutory penalties. (Ibid.) The California Supreme Court

concluded DLSE’s injury was “not of the type” protected by Government

Claims Act and thus “Government Code section 815.6 does not authorize an

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action against an awarding body that fails to comply with its responsibilities

under the prevailing wage laws.” (Id. at p. 968.)

The Aubry court noted that for the purposes of Government Code

section 815.6, “injury is defined as ‘death, injury to a person, damage to or

loss of property, or any other injury that a person may suffer to his person,

reputation, character, feelings or estate, of such nature that it would be

actionable if inflicted by a private person.’ (Gov. Code, § 810.8, italics

added.)” (Aubry, supra, 2 Cal.4th at p. 968.) The Court then quoted

California Law Revision Commission comment to Government Code section

810.8’s definition of “injury,” which states that “ ‘[t]he purpose of the

definition is to make clear that public entities and public employees may be

held liable only for injuries to the kind of interests that have been protected

in the courts in actions between private persons.’ (Cal. Law Revision Com.

com., Deering’s Ann.Gov.Code, § 810.8 (1982 ed.) p. 125, italics added.)”

(Aubry, at p. 968.) Because the DLSE alleged that as a result of the hospital

district’s breach of mandatory duties, “workers were paid less than the

prevailing wage while engaged on a public work,” the Court concluded “[t]his

is an injury that could not exist in an action between private persons, and so

it is outside the scope of the [Government] Claims Act.” (Id. at pp. 968, 969;

see City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 867−868

[concluding a county’s “failure to comply with its statutory duty to correctly

allocate and distribute tax revenue to other public entities does not constitute

an ‘injury’ within the narrow meaning of [Government Code section] 810.8”

because the “wrong plaintiffs complain of ‘is one which by its very nature

could not exist in an action between private persons’ ”].)

The Aubry court explained the allegedly deficient wages and claim for

statutory penalties at issue were “predicated on the involvement of a public

25

entity in the transaction.” (Aubry, supra, 2 Cal.4th at p. 970.) And “if the

defendant awarding body were not a public entity, no liability for the

[deficient wages or] the penalties would ever arise.” (Ibid.) Stated another

way, “if the defendant awarding body were not a public entity, there would be

no injury.” (Id. at pp. 968, 970). Thus, if the hospital district had not been

involved, the prevailing wage laws would not have been triggered and there

would be no injury. This necessity of government involvement took the injury

outside of the scope of Government Code sections 815.6 and 810.8. (Id. at

pp. 968–969.)

Aubry compels the conclusion that the City cannot be held liable for

such an injury under Government Code section 815.6. (Auto Equity Sales,

Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The District has failed to

identify a private party that could sue Calexico property owners and

developers for unpaid school impact fees. It is not enough that the District or

the City could sue those private property owners and developers. There is no

private person that could bring such a suit. School impact fees are an

entirely government creation. School districts set them by resolution. Cities

and counties are required to enforce them by withholding building permits

until such fees are paid. As in Aubry, without government involvement, no

liability to pay such fees would ever arise on the part of private property

owners and developers. Accordingly, the District has not suffered an

actionable injury that would allow a claim for damages under Government

Code section 815.6.11

11 Although we are bound by Aubry to reach this conclusion, we note both

the majority and dissent in Aubry quoted the Commission’s comment on

Government Code section 810.8’s definition of injury without much analysis.

(Aubry, supra, 2 Cal.4th at pp. 968, 974.) That comment seems to be in

tension with the plain language of Government Code section 810.8, which

26

The District attempts to rely on the statement in City of Clovis v.

County of Fresno (2014) 222 Cal.App.4th 1469, 1480 that “the dispute is over

the amount of a fee charged by the county, a type of dispute that arguably

could arise between private parties.” But Clovis was explicit that it was not

in the context of the Government Claims Act and therefore was

distinguishable from the construction of “injury” in the context of

Government Code section 815.6. (Clovis, at pp. 1479–1480.) Moreover,

Clovis did not address school impact fees. (Id. at p. 1473.) Clovis does not

support the District’s claim that such fees could be subject to a dispute

between private parties.

Rather, N.V. Heathorn, Inc. v. County of San Mateo (2005) 126

Cal.App.4th 1526, 1529 is instructive. There, an unpaid subcontractor on a

public project had sued the public entity for damages under Government

Code section 815.6 for failing to obtain a payment bond from the general

contractor, as required by statute. The Court of Appeal concluded the injury

suffered by the unpaid subcontractor fell within the meaning of Government

Code section 810.8, as construed by Aubry. (Heathorn, at p. 1536.) It based

this conclusion on the fact that the payment bond required by statute was the

equivalent of a mechanics lien, which can be enforced in actions between

private persons. (Ibid.) In contrast here, the District has failed to identify an

equivalent to school impact fees that could be enforced in an action between

private persons. Nor are we aware of any such equivalent.

requires the injury to be “of such nature that it would be actionable if

inflicted by a private person.” (Italics added.) The statutory language

focuses on the identity of the party inflicting the injury and says nothing

about the identity of the injured party. In an appropriate case, the California

Supreme Court may want to revisit its holding in Aubry to address the

tension between the Commission’s comment and the statutory language.

27

The District and amicus curiae Coalition for Adequate School Housing

(Amicus) argue that not allowing the District to recover damages from the

City under Government Code section 815.6 would effectively sanction the

violation of section 17620(b). As we have discussed, we are constrained by

Aubry. Moreover, school districts may apply for a writ of mandate (just as

the District did here) to direct a city or county to comply with its duty and to

seek damages for past violations. (Code Civ. Proc., §§ 1085, subd. (a), 1095.)

Although the trial court found the District’s application moot, to the extent a

cycle of violations is followed by temporary compliance, courts may issue a

prospective writ of mandate on the grounds that the certification of payment

of school impact fees “involves a question of broad public interest, which is

likely to recur between the same parties.” (State Bd. of Education v. Honig

(1993) 13 Cal.App.4th 720, 742 (Honig).)

The District and Amicus also argue that not holding the City liable

under Government Code section 815.6 would leave the District without

compensation for past violations of the requirement to pay school impact fees.

But the District may still sue the property owners that failed to pay the

required fees. Indeed, the City, as part of this case, filed a cross-complaint to

recover the unpaid fees from the property owners in the event the City was

held liable. The District may bring a similar complaint. As the Commission

noted, if there is some private person liable for the injury, “it is better public

policy to leave the injured person to his remedy against the person actually

causing the injury than it is to impose an additional liability on the

government for negligently failing to prevent the injury.” (Cal. Law Revision

Commission, Recommendation Relating to Sovereign Immunity, Number 1—

Tort Liability of Public Entities and Public Employees (Jan. 1963), pp. 817–

818.)

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II.

First Cause of Action for Writ of Mandate

The District contends the trial court erred in finding its request for writ

of mandate moot. The District sought a writ of mandate that would include

prospective relief (i.e., directing the City to comply with section 17621(b)) and

retrospective relief (i.e., directing the City to pay school impact fees that

would have been paid but for the City’s noncompliance with its statutory

duty). We conclude substantial evidence supported the court’s finding.

A writ of mandate “may be issued . . . to compel the performance of an

act which the law specifically enjoins.” (Code Civ. Proc., § 1085, subd. (a).) It

“must be issued in all cases where there is not a plain, speedy, and adequate

remedy, in the ordinary course of law.” (Id., § 1086.) “If judgment be given

for the applicant [for writ of mandate], the applicant may recover the

damages which the appellant has sustained[.]” (Id., § 1095.) If the evidence

demonstrates that the subject of a requested writ of mandate has a

“ ‘willingness to perform without coercion, the writ [of mandate] may be

denied as unnecessary; and if [it] shows actual compliance, the proceeding

will be dismissed as moot.’ ” (Honig, supra, 13 Cal.App.4th at p. 742, first

alteration in original.) “No purpose would be served in directing the [subject]

to do what has already been done.” (Ibid.)

We review a trial court’s ruling on a request for writ of mandate for

“ ‘ “substantial, credible and competent evidence.” ’ ” (Evans v.

Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d 398, 407.) In doing so, “we

must presume the court found every fact and drew every permissible

inference necessary to support its judgment, and defer to its determination of

credibility of the witnesses and the weight of the evidence.” (Betz v. Pankow

(1993) 16 Cal.App.4th 919, 923.)

29

Substantial evidence supported the trial court’s denial of the City’s

request for prospective relief. The City submitted the declaration of Lisa

Tylenda, the Director of the Development Services Department for the City.

Tylenda testified that since she began working for the City in August 2021,

she had “worked diligently to ensure that the City is in full compliance with

its obligation to obtain the requisite certification from the District before

issuing building permits pursuant to Education Code section 17620,

subdivision (b).” She also testified she was “unaware of any

noncompliance . . . regarding any building permits issued by the City since

[her] arrival in August 2021, let alone any allegations thereof.” In contrast,

the District points to no evidence showing the City is not currently in

compliance with its obligations under section 17620(b). Indeed, the District’s

counsel acknowledged during the hearing that “[t]he evidence in the record,

based on the declaration of Ms. Tylenda, is that they’re currently . . . in

compliance.” Thus, substantial evidence supported the City’s actual

compliance with section 17620(b). The trial court did not err in denying as

moot the District’s request for a prospective writ of mandate. (Honig, supra,

13 Cal.App.4th at p. 742.)

The District contends an exception to mootness applies in this instance

because the City is likely to violate its duty under section 17620(b), again.

The exception applies “when a pending case involves a question of broad

public interest which is likely to recur between the same parties or others.”

(Honig, supra, 13 Cal.App.4th at p. 742.) The District bases its argument for

recurrence on alleged noncompliance by the City “for years . . . since 2020.”

But, as we have already explained, substantial evidence supports the City’s

continued compliance since at least August 2021. The District offers no

evidence of recurring noncompliance by the City between 2020 and August

30

2021. Nor does the District present any evidence in support of this issue

being likely to recur between any other parties. Our research has not

revealed any other instance in which a school district sued a city or county for

issuing building permits without certification of payment of school impact

fees. Accordingly, substantial evidence supported the trial court’s implicit

rejection of the District’s argument for an exception to mootness.

As for the requested retrospective relief, it requires that “judgment be

given for the applicant.” (Code Civ. Proc., § 1095.) Courts have construed

this to mean that an applicant for writ of mandate must successfully obtain

prospective relief before retrospective damages may be awarded. (County of

San Diego v. State of California (2008) 164 Cal.App.4th 580, 612 [“It is proper

to award ‘a money judgment in a mandamus . . . proceeding where other

grounds for the issuance of a writ of mandate exist.’ ”]; Oracle v. Santa Cruz

County Planning Dept. (N.D. Cal. May 15, 2009, No. C 09-373 JF (PVT)) 2009

WL 1371461, at p. 5, fn. 3 [“Where there is nothing to mandate, mandamus

claims are moot, and there can be no mandamus judgment. Plaintiffs’

suggestion that damages may be recovered through a mandamus claim that

is moot amounts to transparent bootstrapping.”].) Here, substantial evidence

supported the trial court’s denial of a prospective writ of mandate. As a

result, the District may not receive damages under Code of Civil Procedure

section 1095.

III.

Third Cause of Action for Declaratory Relief

The District acknowledges the trial court implicitly ruled against its

cause of action for declaratory relief. However, it contends the court erred by

not issuing an explicit statement confirming the parties’ respective rights.

The District misconstrues the authority on which it relies. Savient

31

Pharmaceuticals, Inc. v. Department of Health Services (2007) 146

Cal.App.4th 1457, 1464 says nothing about an implicit declaration of the

parties’ rights being insufficient to dispose of a cause of action for declaratory

relief. Moreover, even if Savient had deemed an implicit declaration

insufficient, it held that this “procedural point, of itself, provides no basis for

reversal.” (Ibid.) As we have already explained at length the respective

rights of the parties under the statutes applicable to school impact fees, we

see no reason to provide an additional, duplicative statement under the

District’s cause of action for declaratory relief. The trial court did not commit

reversible error in implicitly ruling against the District on this cause of

action.

DISPOSITION

The judgment is affirmed. Each party shall bear its own costs on

appeal.

DO, J.

WE CONCUR:

DATO, Acting P. J.

BUCHANAN, J.

32