Know your route of review . . . and when to invoke it

If you don’t know your route of review and when to invoke it, you end up like the plaintiff in Tejon Real Estate, LLC v. City of Los Angeles, B247255 (2d Dist. January 23, 2014). In fact, not only did that plaintiff fail to seek review properly, it never even got a final determination subject to review.

The plaintiff wanted to build a residence on a vacant lot and received an informal opinion from the fire department that it could  not build a residence unless a fire hydrant was installed within 300 feet of the property. It then got  an estimate from the city Department of Water & Power (“DWP”) that extending the water line and hydrant would cost the plaintiff $77,000.

Plaintiff filed a declaratory relief action seeking an interpretation of DWP rules regarding the extension of existing water lines. When the city demurred for failure to exhaust administrative remedies and contending that any administrative decision should be reviewed by writ of mandamus rather than a declaratory relief action, the trial court sustained the demurrer and the plaintiff appealed:

The sole cause of action in appellant’s complaint was for declaratory relief. Appellant contends (1) that it “completed the application process for water service” and received a “final determination,” and (2) that it is, therefore, entitled to a declaration interpreting the pertinent rules and regulations under Code of Civil Procedure section 1060. Appellant is incorrect on both counts.

Regarding point (1), however, appellant admitted:
that it did not prepare or submit plans or seek a building permit which would have provided an opportunity for all the relevant City departments to determine precisely what conditions to impose under the City’s various building and safety provisions before appellant could commence construction of the proposed residence.
Thus, plaintiff could not rightly claim to have obtained a final determination:
Here, appellant was provided preliminary opinions and estimates from City personnel. Appellant did not receive a final determination from the City and cannot say with certainty what charges will be imposed or conditions enforced once the City has rendered its final decision based on specific plans for construction. It would be premature for a court to step in at this point before the City has had an opportunity to interpret its own rules and building requirements.

Plaintiff would have been sunk even if it had obtained a final administrative determination, though. Because plaintiff sought a declaration as to how the rules were applied to a particular parcel, it had no right to have the matter decided by a declaratory judgment action. Rather, it should have obtained the final determination and, assuming it was aggrieved, petitioned for administrative mandamus under Code of Civil Procedure section 1094.5.

Plaintiff at least mounted an effort to get around the requirement of a final determination, claiming that exhausting administrative remedies would be futile. It’s a mystery why plaintiff thought a declaratory relief action was appropriate, though, because the opinion never explains the plaintiff’s basis for that position, except the bare assertion that plaintiff was entitled to seek declaratory because of the phantom final determination.

You Might Be an Appellate Lawyer and Not Even Know it

At least, that’s one lesson you can take away from Lee v. Blue Shield of California, case no. B190441 (2d Dist. Sept. 7, 2007).

Lee alleged that Blue Shield wrongfully suspended him from its network of medical providers for medical incompetence and then illegally terminated his provider contract for failing to cooperate in the administrative process.  His suit alleged tort, contract, and declaratory relief theories.  The trial court sustained a demurrer brought on the ground that Lee did not exhaust his administrative remedies because the hearing process (commonly called an “809 hearing” because it is set out at Business and Professions Code sections 809-809.9) was terminated by Blue Shield for Lee’s failure to cooperate with discovery.

The court of appeal upholds the demurrer as to the tort and contract claims, but reverses on the declaratory relief claim.  It holds that the superior court should have treated the declaratory relief claim

as a petition requesting the court to issue a writ of mandate ordering Blue Shield to vacate its decision terminating his provider status for failure to cooperate with the 809 hearing and to reinstate the 809 proceedings.

The court has great discretion in how to construe pleadings (citations omitted):

A complainant’s remedy for the arbitrary or improper refusal by an organization to hold a hearing is an order directing the organization to do so.  Such an order is usually obtained through a petition for a writ of mandate. But not always. Regardless of how a pleading is labeled or a prayer is framed, “[a] court may grant any relief consistent with the case made by the petitioner and embraced within the issue.”

A complaint for declaratory relief “may be regarded as a petition for a writ of mandate.”

Since the allegations of the complaint, if true, would entitle Lee to a writ of mandate, the court holds that the trial court should have interpreted his declaratory relief claim as a mandate petition.  It remands to the trial court with directions to so treat it.