Zuniga v. Western Riverside Council of Governments CA4/1

Filed 1/25/24 Zuniga v. Western Riverside Council of Governments 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

ANTONIO ZUNIGA et al., D080697

Plaintiffs and Appellants,

v. (Super. Ct. No. 37-2021-

00007702-CU-MC-NC)

WESTERN RIVERSIDE COUNCIL OF

GOVERNMENTS,

Defendant and Respondent.

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

Earl H. Maas III, Judge. Reversed and remanded.

Law Offices of Alysson R. Snow, Alysson R. Snow, for Plaintiffs and

Appellants.

Best Best & Krieger, Scott W. Ditfurth, Andrew G. Saghian, and

Kara L. Coronado, for Defendant and Respondent.

Antonio and Maria Zuniga (the Zunigas) appeal from the judgment of

dismissal of their causes of action against Western Riverside Council of

Governments (WRCOG) after the trial court sustained a demurrer without

leave to amend. The trial court concluded the Zunigas had failed to file suit

against WRCOG within six months of WRCOG’s rejection of the claim filed

by the Zunigas pursuant to the Government Claims Act (Gov. Code, § 810

et seq.).1

According to the Zunigas, because the operative First Amended

Complaint (FAC) did not allege a claim for “money or damages” against

WRCOG (§§ 905, 945.4), the trial court erred in applying the six-month

limitations period in the Government Claims Act. (§ 945.6, subd. (a)(1).)

Alternatively, the Zunigas contend that the trial court abused its discretion

in not granting them leave to amend their pleadings to clarify that they

currently do not seek money or damages against WRCOG.

We conclude that the trial court properly sustained the demurrer to the

FAC based on the failure of the Zunigas to file suit within the six-month

limitations period. However, in light of recent factual developments, the trial

court abused its discretion in failing to grant leave to amend for the Zunigas

to clarify that they no longer seek money or damages against WRCOG. We

accordingly reverse the judgment of dismissal, and we remand for further

proceedings consistent with this opinion.

1 Unless otherwise indicated, all further statutory references are to the

Government Code.

2

I.

FACTUAL AND PROCEDURAL BACKGROUND

A. WRCOG’s Role as a Lender in the PACE Program

To understand the factual context in which this litigation arises, we

begin with an overview of California’s Property Assessed Clean Energy

program and the role of WRCOG in that program.

“In 2008, California enacted a property assessed clean energy program

(PACE) as a method for homeowners to finance energy and water

conservation improvements. Like an ordinary home equity loan, a PACE

debt is created by contract and secured by the improved property. But like a

tax, the installment payments are billed and paid as a special assessment on

the improved property, resulting in a first-priority tax lien in the event of

default.” (Morgan v. Ygrene Energy Fund, Inc. (2022) 84 Cal.App.5th

1002, 1007.) In enacting the PACE program, the Legislature created “a

voluntary contractual assessment program that provides the legislative body

of any public agency with the authority to finance the installation of

distributed generation renewable energy sources and energy or water

efficiency improvements that are permanently fixed to residential,

commercial, industrial, agricultural, or other real property.” (Sts. & Hy.

Code, § 5898.14, subd. (b).)

As the FAC explains, WRCOG is a joint powers authority (§ 6502) that

participates in the PACE program as a lender providing financing for energy

efficient home improvement projects through voluntary property tax

assessments. According to the FAC, the name of the financing program

provided to homeowners by WRCOG is the “HERO program.” WRCOG

allegedly uses an entity called Renovate America, Inc. “to run the day-to-day

operations and contract with its PACE solicitors and solicitor agents to sell

3

and market its HERO program.”2 WRCOG and Renovate America, in turn,

allegedly “use a network of thousands of home improvement contractors to

facilitate homeowners entering into PACE loans.” According to the FAC, the

contractors “act as de facto mortgage brokers and are the primary and, in

many cases, the only point of contact between the homeowner and . . .

WRCOG and Renovate America.” As explained in the FAC, when WRCOG

and a homeowner enter into an assessment agreement under the HERO

program to fund the home improvements, “[u]nder terms of the WRCOG’s

assessment agreement, the homeowner agrees to repay the loan through a

voluntary property tax assessment, which is recorded as a priority lien on the

home. As this is a tax assessment, WRCOG has a super priority lien over

even the first mortgage lender.” (Italics and boldface omitted.)

B. The Assessment Agreement Between the Zunigas and WRCOG

The Zunigas are an elderly couple.3 In February 2018, a consultant for

Suneco Solar Energy came uninvited to the Zunigas’ home, claiming that the

Zunigas could qualify for a free solar energy system. Purportedly to facilitate

a credit check, the Zunigas supplied their social security numbers and other

personal identifying information. The consultant said she would return on

another day. Several days later the consultant returned to the Zunigas’

home. On this second visit, the consultant represented that she worked for

San Diego Gas and Electric and wanted to talk to the Zunigas about a new

energy efficient appliance program. The consultant said she would return a

2 The FAC alleges that Renovate America filed a petition for bankruptcy

in December 2021 and was undergoing liquidation. The FAC nevertheless

refers to Renovate America’s involvement with WRCOG in the present tense,

and we accordingly do so as well in describing the allegations of the FAC.

3 As this appeal is from an order sustaining a demurrer, we describe the

factual background as it is alleged in the FAC.

4

third time, but she did not do so. The Zunigas accordingly assumed they did

not qualify for either program.

In November 2019, the Zunigas discovered that their property taxes

had increased by $4,222.40 due to a HERO assessment. After a family

member investigated and contacted Renovate America, the Zunigas became

aware of two documents, both dated February 28, 2019, in which they

purportedly agreed to a HERO assessment on their property. The first

document was a HERO Financing Application. The second document was an

Assessment Agreement that purported to be entered into by the Zunigas and

WRCOG. According to the Zunigas, they had never before seen or signed

either document. Moreover, the HERO Financing Application contained

multiple errors, such as an incorrect phone number and email address for the

Zunigas. The Zunigas concluded that a “fake” email address was used to

generate their signatures without their knowledge or approval.

The Zunigas also discovered a third relevant document: a HERO

Financing Program Completion Certificate, dated March 6, 2019, that was

signed by Martinez Construction. According to that document, Martinez

Construction had used HERO funding proceeds of $37,200 to install a solar

energy system on the Zunigas’ house. However, as the Zunigas alleged in the

FAC, no such work was ever performed. After learning of the document, the

Zunigas contacted Martinez Construction, which denied having entered into

any contract with the Zunigas and stated that it was not in the business of

installing solar energy systems. Renovate America then sent an inspector to

the Zunigas’ home, who confirmed that no solar energy system had been

installed.

5

In February 2020, the Zunigas sent a notice of claim to WRCOG.4 On

February 26, 2020, WRCOG mailed a notice of rejection of claim to the

Zunigas (Notice of Rejection). The Notice of Rejection informed the Zunigas

of the six-month deadline to file a court action on their claim pursuant to

section 945.6, subdivision (a)(1).

C. The Zunigas’ Litigation Against WRCOG

On February 19, 2021, almost a year after WRCOG mailed the Notice

of Rejection, the Zunigas filed a lawsuit against numerous defendants,

including WRCOG,5 arising from the HERO assessment that they alleged

had been wrongly imposed on their property.6 As alleged in the operative

FAC, the Zunigas’ claims against WRCOG were premised on the allegations

that (1) “[e]ven after the HERO Program’s inspector confirmed that no work

was performed, WRCOG and Renovate America continue to maintain the

super priority lien on the Zunigas’ home and to add the assessment to the tax

rolls each year”; and (2) “WRCOG persists in reporting the assessment on the

tax rolls, retaining the proceeds from the assessments, and maintaining the

super priority lien on their home.”

4 Although the FAC alleges that the notice of claim that the Zunigas sent

to WRCOG is attached as Exhibit G, that attachment is, in fact, not a notice

of claim addressed to WRCOG but instead is a notice of cancellation directed

to Renovate America. Accordingly, we are unable to describe the content of

the notice of claim that the Zunigas sent to WRCOG.

5 The other defendants named in the FAC are Martinez Construction

and an individual associated with it, other contractors, two bonding

companies, and two individuals employed by WRCOG.

6 Another couple, Salvador and Amalia Sanchez, joined the lawsuit as

plaintiffs in the FAC, alleging a similar experience with a HERO assessment

based on falsified documents.

6

The FAC alleged two causes of action against WRCOG: (1) financial

abuse in violation of the Elder Abuse and Dependent Adult Civil Protection

Act (Welf. & Inst. Code, §§ 15600, 15610, 15657.5) (the financial elder abuse

cause of action); and (2) “Cancellation of Written Instrument . . . due to

Fraud, Unconscionability, and Illegality” pursuant to Civil Code section 3412

(the cancellation of contract cause of action). In both of those causes of

action, the Zunigas indicated they had suffered monetary damages and were

seeking monetary relief from WRCOG.

The financial elder abuse cause of action specifically alleged that “[t]he

Zunigas and Mrs. Sanchéz [sic] have suffered damages as a direct and

proximate result of WRCOG’s actions, including, without limitation, their

property being encumbered with a super priority lien, the loss of the ability to

alienate property, assessment payments, and severe emotional distress.” The

cancellation of contract cause of action specifically alleged that “Plaintiffs

have suffered a pecuniary loss because of [the Assessment Agreement],

including but not limited to: the assessment payments, interest, fees, and

costs associated with the illegal, unconscionable, and fraudulent loan.”

More generally, the FAC alleged in its preliminary discussion that

“[t]he Zunigas have suffered damages, including the amounts paid for the

assessment proceeds, the costs of mailing the notice of claims certified mail,

and the costs associated with having to litigate these issues to have the

illegal assessments and liens cancelled.” Also in the preliminary discussion,

the FAC alleged that “Plaintiffs have suffered damages, including injury in

fact and money damages, as a direct and proximate result of Defendants’

actions,” including “property taxes that have increased,” a “loss of equity in

7

their homes, emotional distress, and costs associated with this lawsuit.”7

The prayer for relief by the Zunigas at the end of the FAC included a prayer

that “WRCOG repay the amounts paid by the Zunigas for the assessments

from the assessment proceeds.”

WRCOG filed a demurrer to the FAC, targeting the causes of action

alleged by both the Zunigas and the Sanchezes. As to the Zunigas, WRCOG

set forth multiple grounds for its demurrer.

First, WRCOG argued that the Zunigas’ claims against it were moot

and should be dismissed on that basis. Specifically, WRCOG explained that

it had (1) paid the Zunigas a full refund of all of their property tax payments

that were the result of the disputed assessment, and (2) recorded a notice of

discharge of the assessment lien. WRCOG requested that the trial court take

judicial notice of documents that (1) established the discharge of the

assessment lien, and (2) indicated that a check repaying the Zunigas in the

amount of $8,444.80 had been sent to the Zunigas’ attorney on June 29, 2021,

which is one day after the FAC was filed.8

7 The use of the collective term “Plaintiffs” in the FAC to refer to both the

Zunigas and the Sanchezes makes it unclear whether the FAC is alleging

certain categories of damages only on behalf of one of the two couples. We

note that in the briefing of WRCOG’s demurrer, the parties all seem to have

proceeded with the understanding that only the Sanchezes sought damages

based on emotional distress. This understanding may have been based on

the fact that the FAC’s prayer for relief mentions emotional distress damages

against WRCOG only as to the Sanchezes, although the FAC alleges more

generally in another paragraph that “Plaintiffs” suffered emotional distress.

8 In ruling on the demurrer, the trial court granted the request to take

judicial notice of those documents.

8

Second, WRCOG argues that, pursuant to section 945.6, subdivision

(a)(1) the FAC failed to state a claim for relief because the Zunigas filed suit

more than six months after WRCOG mailed its Notice of Rejection.

Third, WRCOG argued that there were substantive deficiencies with

both the financial elder abuse cause of action and the cancellation of contract

cause of action, so that neither of those causes of action stated a cognizable

claim against WRCOG.

In their opposition, the Zunigas addressed each of the grounds for

demurrer. First, they argued that their claims against WRCOG were not

moot because they still sought a ruling that the Assessment Agreement they

entered into with WRCOG was void. The Zunigas explained that although

WRCOG had repaid them and discharged the assessment lien, it had not

cancelled the Assessment Agreement itself, and that agreement contained

provisions, such as an indemnification clause, that continued in force.

Second, they argued that, for multiple reasons, the six-month limitations

period in the Government Claims Act did not apply to their causes of action

against WRCOG. Third, they argued that WRCOG’s substantive challenges

to the financial elder abuse cause of action and the cancellation of contract

cause of action lacked merit. The Zunigas also requested that, if the

demurrer was sustained, that they be granted leave to amend. However,

they did not specify how they would amend to overcome any of the grounds

for demurrer advanced by WRCOG.

The trial court sustained the demurrer to the Zunigas’ causes of action

against WRCOG without leave to amend. The trial court rejected WRCOG’s

mootness argument, explaining that WRCOG had not addressed the Zunigas’

argument that the indemnification clause in the Assessment Agreement

remained in force. Next, the trial court concluded that (1) the six-month

9

limitations period in the Government Claims Act applied to the Zunigas’

causes of action against WRCOG alleged in the FAC, and (2) the Zunigas’

lawsuit against WRCOG was barred because it was filed outside of that

six-month limitations period. Finally, presumably because it concluded that

the Zunigas’ causes of action against WRCOG were time-barred, the trial

court did not reach WRCOG’s argument that neither the financial elder

abuse cause of action nor the cancellation of contract cause of action, stated a

cognizable claim against WRCOG.

The trial court subsequently entered a judgment of dismissal of the

Zunigas’ claims against WRCOG. The Zunigas appeal from the judgment of

dismissal.

II.

DISCUSSION

A. Legal Standards for Review of a Demurrer

“ ‘On appeal from an order of dismissal after an order sustaining a

demurrer, the standard of review is de novo: we exercise our independent

judgment about whether the complaint states a cause of action as a matter of

law.’ ” (Villafana v. County of San Diego (2020) 57 Cal.App.5th 1012, 1016.)

In reviewing the complaint, “we must assume the truth of all facts properly

pleaded by the plaintiffs, as well as those that are judicially noticeable.”

(Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th

809, 814.)

“We review a court’s denial of leave to amend a complaint on sustaining

a demurrer for abuse of discretion.” (SLPR, L.L.C. v. San Diego Unified Port

Dist. (2020) 49 Cal.App.5th 284, 317.) “This abuse of discretion is reviewable

on appeal ‘even in the absence of a request for leave to amend’ [citation], and

even if the plaintiff does not claim on appeal that the trial court abused its

10

discretion in sustaining a demurrer without leave to amend.” (Aubry v.

Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 971 (Aubry).) The question is

whether “ ‘ “there is a reasonable possibility that the defect can be cured by

amendment.” ’ ” (Ibid.) “The burden of proving such reasonable possibility is

squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

B. The Trial Court Properly Sustained the Demurrer on the Ground That

the Zunigas Did Not File Their Lawsuit Against WRCOG Within Six

Months of the Notice of Rejection of Their Claim

1. Relevant Provisions of the Government Claims Act

Under the Government Claims Act, subject to certain express

exceptions,9 no suit “for money or damages” may be brought against a public

entity unless a written claim has first been presented to the entity and the

claim either has been acted upon or is deemed to have been rejected. (§§ 905,

945.4; see also DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th

983, 990.) Once a public entity has delivered or mailed a notice of rejection of

a claim, a claimant has only six months to commence a lawsuit against the

public entity. (§ 945.6, subd. (a)(1).)

“The six-month statute of limitations for bringing suit is mandatory

and must be strictly complied with. [Citation.] Failure to commence an

action within the prescribed period constitutes a valid ground for dismissal,

9 Section 905 sets forth several exceptions to the requirement that a

plaintiff must present a claim for money or damages to a public entity prior

to filing a lawsuit. In the trial court, the Zunigas contended that the

exception set forth in section 905, subdivision (h) applied. (§ 905, subd. (h)

[setting forth an exception for “[c]laims that relate to a special assessment

constituting a specific lien against the property assessed and that are payable

from the proceeds of the assessment, by offset of a claim for damages against

it or by delivery of any warrant or bonds representing it”].) The trial court

concluded the exception was not applicable here. The Zunigas have not

challenged that ruling on appeal.

11

absent waiver, estoppel or a tolling period.” (Julian v. City of San Diego

(1986) 183 Cal.App.3d 169, 176.) However, when the causes of action alleged

in a lawsuit do not constitute a claim “for money or damages,” for which a

claim is required to be presented under the Government Claims Act, the

six-month statute of limitations does not apply. (§ 945.8.) In that

circumstance, the lawsuit “must be commenced within the time prescribed by

the statute of limitations that would be applicable if the action were brought

against a defendant other than a public entity.” (Id.; see also Cornejo v.

Lightbourne (2013) 220 Cal.App.4th 932, 943 [six-month limitations period

did not apply because the relevant claim in the lawsuit was not subject to the

claims presentation requirement of the Government Claims Act].)

2. The Zunigas’ Causes of Action Against WRCOG in the FAC Are

Subject to the Claims Presentation Requirement Because They

Allege Claims for Money or Damages

The Zunigas do not dispute that they failed to file suit within six

months after WRCOG mailed the Notice of Rejection. As we have explained,

WRCOG’s Notice of Rejection was mailed on February 26, 2020, and the

Zunigas’ lawsuit was filed almost a year later, on February 19, 2021.

However, the Zunigas contend that the six-month limitations period

does not apply to their causes of action against WRCOG in the FAC because

those causes of action do not seek “money or damages” (§§ 905, 945.4), and

thus are not subject to the claims presentation requirement of the

Government Claims Act. Specifically, the Zunigas contend that the FAC “did

not seek tort damages (or any other damages) against [WRCOG]” but rather

sought only “declaratory and injunctive relief relating to the assessment

agreements.” The argument lacks merit.

A suit seeking “money or damages” within the meaning of the

Government Claims Act (§§ 905, 945.4) “includes all actions where the

12

plaintiff is seeking monetary relief.” (Sparks v. Kern County Bd. of

Supervisors (2009) 173 Cal.App.4th 794, 798, italics added.) “ ‘[T]he claims

presentation requirement applies to all forms of monetary demands,

regardless of the theory of the action.’ ” (Nasrawi v. Buck Consultants LLC

(2014) 231 Cal.App.4th 328, 338 (Nasrawi).) It is well established that the

references to “ ‘money or damages’ now found in sections 905 and 945.4 were

always intended to embrace contract as well as tort claims.” (City of Stockton

v. Superior Court (2007) 42 Cal.4th 730, 740, italics added (City of Stockton).)

Further, even if the Zunigas characterize their claims in the FAC as seeking

declaratory or injunctive relief to recover the assessment payments, “[a]ctions

for restitution or reimbursement are subject to the claim requirements.”

(Sparks, at p. 799.)

As we have detailed above, the FAC alleges that the Zunigas suffered

damages and pecuniary loss as a result of the Assessment Agreement with

WRCOG. Further, the FAC specifically prays for monetary relief in the form

of an order requiring that “WRCOG repay the amounts paid by the Zunigas

for the assessments from the assessment proceeds.” Although “ ‘ “the theory

of the action” ’ ” (Nasrawi, supra, 231 Cal.App.4th at p. 338) against WRCOG

in the FAC is based on relief from a contractual agreement and the Zunigas

characterize the FAC as asserting claims for declaratory or injunctive relief,

the FAC indisputably seeks an order requiring that WRCOG pay money to

the Zunigas by, at a minimum, refunding the assessment payments. The fact

that the Zunigas were seeking monetary relief from WRCOG in the FAC is

underscored by the subsequent factual development of WRCOG actually

paying the amount of $8,444.80 to the Zunigas. Accordingly, the Zunigas

were required to file a lawsuit seeking that relief within six months of

WRCOG’s Notice of Rejection.

13

The Zunigas rely on section 814 to argue that a claim for liability based

on contract is not subject to the claims presentation requirement. However,

our Supreme Court has squarely rejected that argument. Specifically, section

814 provides, “Nothing in this part [i.e., the Government Claims Act] affects

liability based on contract or the right to obtain relief other than money or

damages against a public entity or public employee.” (§ 814.) As our

Supreme Court has explained, “section 814 pertains only to immunity from

liability, and has no effect on the claims requirements.” (City of Stockton,

supra, 42 Cal.4th at p. 740, italics added.) “Section 814 simply reaffirms the

longstanding rule that governmental immunity does not encompass

contractual liability. . . . That proposition has no necessary connection to the

requirement that a claim be presented before suit is filed. Prior notice of

claims serves the purpose of facilitating investigation and possible

settlement, whether or not the public entity would otherwise be immune from

liability.” (City of Stockton, at p. 741.)

The Zunigas also argue that no claim was required to be presented

pursuant to section 815.6. That provision states, “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.” (§ 815.6.) The Zunigas argue that Welfare and

Institutions Code section 15600 imposed a mandatory duty on WRCOG to

protect elderly and dependent adults from financial abuse, and that, in

entering into to the Assessment Agreement with the Zunigas, WRCOG

breached that duty.

14

We reject the Zunigas’ attempt to rely upon section 815.6 to establish

the FAC’s causes of action against WRCOG are not subject to the claims

presentation requirement of the Government Claims Act. On its face, section

815.6 does nothing more than set forth a theory of liability against public

entities based on the existence of a mandatory statutory duty. Just like

section 814, section 815.6 has nothing to do with the claims presentation

requirement. Further, as we have explained, “ ‘[t]he claims presentation

requirement applies to all forms of monetary demands, regardless of the

theory of the action.’ ” (Nasrawi, supra, 231 Cal.App.4th at p. 338, italics

added.) The inquiry is whether the lawsuit seeks “money or damages,” not

what the theory of liability is. (§§ 905, 945.4.) Accordingly, when the “the

primary outcome sought” in a lawsuit is “not money or damages, but an order

compelling performance of a mandatory duty,” the claims presentation

requirement does not apply. (Board of Administration v. Wilson (1997)

52 Cal.App.4th 1109, 1125, italics added.) However, when, as here, a claim

based on a theory of mandatory duty does seek money or damages, the

plaintiff must first present a claim to the public entity. (Canova v. Trustees

of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th

1487, 1493.)

In sum, the trial court properly sustained WRCOG’s demurrer to the

causes of action that the Zunigas alleged against it in the FAC because the

Zunigas failed to file their lawsuit within six months of WRCOG’s mailing of

the Notice of Rejection.10

10 Because we conclude that the trial court properly sustained the

demurrer to the FAC on the ground that the Zunigas filed suit more than six

months after WRCOG’s Notice of Rejection, we need not, and do not, address

whether there is any merit to the other bases for WRCOG’s demurrer to the

FAC that the trial court did not rule upon.

15

C. The Trial Court Abused Its Discretion in Denying Leave to Amend

The final issue we address is whether the trial court abused its

discretion by denying leave to amend. As we have explained, a trial court

abuses its discretion in denying leave to amend when “ ‘ “there is a

reasonable possibility that the defect can be cured by amendment.” ’ ”

(Aubry, supra, 2 Cal.4th at p. 971.)

The Zunigas argued in their opening appellate brief that the trial court

abused its discretion because it did not grant leave to amend. However, the

Zunigas did not specifically focus on the significance of the recent factual

developments, namely, WRCOG’s discharge of the assessment lien and

refund of the assessment payments to the Zunigas. We asked the parties to

provide supplemental briefing addressing how those factual developments

impact the analysis of whether leave to amend should have been granted.

Having reviewed the supplemental briefing, we conclude that there is a

reasonable possibility that the Zunigas will be able to amend their pleadings

to overcome the basis on which WRCOG’s demurrer to FAC was sustained.

As we have detailed, the demurrer was sustained based on the premise that

the FAC sought money or damages from WRCOG, triggering the application

of the six-month limitations period in the Government Claims Act. (§ 945.6,

subd. (a)(1).) The Zunigas explain in their supplemental briefing that due to

WRCOG’s refund of the assessment payments and discharge of the

assessment lien, the relief they currently seek is limited to “cancellation of

the assessment agreement and the indemnification clause.”11 If the Zunigas

11 In explaining the relief against WRCOG that they will seek in an

amended complaint, the Zunigas state that they will seek an award of

attorney fees. A prayer for an award of attorney fees would not, in itself,

trigger the application of the Government Claims Act. (Lozada v. City and

16

amend their pleadings to make clear that, due to current circumstances, they

do not seek monetary relief against WRCOG, there is a reasonable possibility

that, unlike the FAC, their amended pleading will not be subject to the six-

month limitations period because it will not assert a claim for money or

damages against WRCOG.12

WRCOG argues in its supplemental briefing that the Zunigas should be

precluded from filing an amended complaint due to the sham pleading

doctrine. Under the sham pleading doctrine, “[w]hen a plaintiff files an

amended complaint, it may not ‘omit harmful allegations . . . from previous

complaints.’ [Citations.] Unless the plaintiff provides a ‘plausible’

explanation for dropping the harmful allegations (such as the need to correct

a mistaken allegation or to clarify ambiguous facts), the trial court will take

judicial notice of the harmful allegations and disregard the new and contrary

allegations.” (Smyth v. Berman (2019) 31 Cal.App.5th 183, 195.) The sham

pleading doctrine “ ‘is intended to enable courts “ ‘to prevent an abuse of

process.’ ” [Citation.]’ ” (Larson v. UHS of Rancho Springs, Inc. (2014)

County of San Francisco (2006) 145 Cal.App.4th 1139, 1160 [“recovery of

attorney fees . . . are not a separate item of monetary relief or damages to

which the Government Claims Act applies” as they are “defined as costs, not

damages” and thus a “claim for attorney fees cuts neither for nor against

application of the claim filing requirement as to the action as a whole”].)

12 Although contrary to WRCOG’s apparent assumption throughout the

litigation that the Zunigas do not seek emotional distress damages against it

in the FAC (see fn. 7, ante), for the first time in its supplemental letter brief

WRCOG appears to interpret the FAC as stating that the Zunigas are

seeking emotional distress damages. As we have noted, the FAC is somewhat

unclear on that issue due to the use of the collective term “Plaintiffs.” (See

fn. 7, ante.) If the Zunigas do not intend to seek emotional distress damages

against WRCOG, they should clearly specify that position in any amended

complaint that they file.

17

230 Cal.App.4th 336, 344.) “Plaintiffs therefore may avoid the effect of the

sham pleading doctrine by alleging an explanation for the conflicts between

the pleadings.” (Ibid.) WRCOG argues that the sham pleading doctrine

applies because an amended complaint seeking only limited nonmonetary

relief would “completely contradict [the Zunigas’] original pleadings in which

they are alleging pecuniary loss and other damages as a result of the PACE

Assessment Agreement.” The argument fails because there is an obvious

good-faith explanation for the Zunigas’ proposed amendment to delete their

prayer for monetary relief against WRCOG. Specifically, during the

pendency of the litigation, WRCOG discharged the assessment lien and

refunded all of the Zunigas’ assessment payments.

Further, WRCOG contends that leave to amend should be denied

because the Zunigas were “dilatory” in amending their pleadings to specify

that they no longer seek money or damages from WRCOG. According to

WRCOG, it discharged the assessment lien and refunded the assessment

payments “on or around June 22, 2023,” which was before the Zunigas filed

the FAC on June 28, 2021. WRCOG argues that the FAC should have

specified that the Zunigas already received a refund and therefore did not

seek monetary relief. We reject the argument because the documents in the

record do not support WRCOG’s statement that the Zunigas received a

refund of the assessment payments before they filed the FAC. Specifically,

the record contains a letter from WRCOG to counsel for the Zunigas dated

one day after the FAC was filed. That June 29, 2021 letter states, “included

with this letter please find the following, [¶] 1. A check in the amount of

$8,444.80 fully refunding property tax payments made by the property owner

on the assessment.” The Zunigas, therefore, have not had an opportunity to

attempt to amend their pleadings to specify that, based on changed

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circumstances, they have no basis on which to seek money or damages

against WRCOG.

In sum, we conclude that there is a reasonable possibility that the

Zunigas will be able to amend their pleadings to remedy the basis for the

trial court’s order sustaining the demurrer to the FAC.13 The trial court

accordingly abused its discretion by failing to grant leave to amend.

DISPOSITION

The judgment of dismissal is reversed, and this matter is remanded for

proceedings consistent with this opinion. The parties shall bear their own

costs on appeal.

IRION, J.

WE CONCUR:

O’ROURKE, Acting P. J.

KELETY, J.

13 Although, in their supplemental briefing, the Zunigas generally

describe the relief against WRCOG that they propose to seek in an amended

complaint, we express no view on whether any amended complaint that the

Zunigas ultimately file might still be subject to demurrer on the ground that

it does, in fact, persist in seeking money or damages against WRCOG or that

any of the causes of action fail to state a claim for relief.

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