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

> California Court of Appeal · December 27, 2023

URL: https://www.frixlaw.com/law-library/cases/9913342

## Case

- **Court:** California Court of Appeal
- **Decided:** December 27, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

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,

3
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
[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
[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

11
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

18
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

24
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.)

28
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9913342. Public record. Not legal advice.