Schmier v. City of Berkeley CA1/1

Filed 2/25/22 Schmier v. City of Berkeley CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

KENNETH J. SCHMIER,
Plaintiff and Appellant, A161556

v. (Alameda County
CITY OF BERKELEY, Super. Ct. No.
RG19036596)
Defendant and Respondent.

This is an appeal from a judgment of dismissal following the sustaining
of a demurrer without leave to amend on the ground the case is barred by the
90-day statute of limitations set forth in Government Code section 66499.37.1
We reverse.
BACKGROUND
In 1996, appellant Kenneth J. Schmier converted two apartment units
in Berkeley into condominiums.2 At that time, Berkeley Municipal Code
section 21.28.060(A) required that an owner converting an apartment to a

1 All further undesignated statutory references are to the Government
Code.
This was a joint project with his brother, Eric Schmier. However,
2

Eric Schmier is now deceased, and Schmier is the sole plaintiff as “the owner
in fee simple of two real properties which are condominium units . . . in the
City of Berkeley.”

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condominium execute and record a lien on the property obliging the owner to
pay an “ ‘Affordable Housing Fee’ ” based on a formula set forth in the code.
Accordingly, Schmier executed two lien agreements as a condition of approval
of the conversion.
The agreements provided in part, “[e]ach of the duties of the
undersigned is created in consideration of the City’s approval of an
Application for Conversion of TIC to Condominiums for the undersigned prior
to the payment of the full Affordable Housing Fee required by law. . . .”
(Boldface omitted.) It further specified,
“[t]he undersigned represent and agree that they intend to
convert this unit and that the applicable Affordable Housing Fee is 30
percent of the difference between the sale price of the unit when it is
sold as a condominium and eight (8) times the annual rental value at
the time of the application for conversion. The annual rental value,
$6040.56, is 12 times the permanent rent ceiling of $503.38. Eight
times the annual rental value (8X503.38X12) is equal to $48,324.48.
Thus, the Affordable Housing Fee would be calculated at the time of
sale as 30 percent of the difference between the sales price and
$48,324.48. . . . [S]aid sum will be paid . . . at the time of sale of this
converted unit.” (Boldface omitted.)
The lien agreements also provided, “Execution of this document shall
not prejudice the right of the undersigned to challenge the validity of the
Affordable Housing Fee. In the event that the Affordable Housing Fee is
determined to be invalid by a court of competent jurisdiction, or is rescinded
by the City of Berkeley, this lien shall be void and have no effect.”
In his first amended complaint, Schmier alleged that more than 10
years later, in 2008, Berkeley “formally rescinded [Berkeley Municipal Code

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section] 21.28.060(A) under which the Liens were demanded by [Berkeley]
and recorded, and instead enacted [Berkeley Municipal Code section]
21.28.070. . . .” The new code section sets forth a different formula for
calculation of the affordable housing fee, under which the fee owed by
Schmier is significantly less.
Another 10 years later, in February 2019, counsel for Schmier “advised
[Berkeley] in writing of [Schmier’s] intention to sell . . . and that escrow had
opened on the sale at a gross selling price of $539,000.” Berkeley responded
with a request that Schmier pay an affordable housing fee of $147,202.66,
calculated under the long since rescinded section of the municipal code. Had
the city applied the current code section, the fee would have been less than
half of what was requested.
Schmier “formally protested” the requested fee on multiple grounds,
including that Berkeley Municipal Code section 21.28.060(A) had been
rescinded, rendering the liens void by their own terms. Berkeley rejected
Schmier’s protest on July 29, 2019 and demanded payment of $147,202.66
upon the close of escrow. Schmier filed the instant action on September 25,
2019.
Berkeley interposed a demurrer to Schmier’s first amended complaint 3
on the ground the action is barred by the 90-day statute of limitations set
forth in the Subdivision Map Act (Gov. Code, § 66410 et seq.) section
66499.37, which, according to the Berkeley, commenced running more than
20 years earlier when Schmier signed the lien agreements. Berkeley further
asserted “the facts alleged in the [first amended complaint] show that the
Affordable Housing Fee imposed on each of [Schmier’s] units as a condition of

The court had sustained Berkeley’s demurrer to Schmier’s initial
3

complaint with leave to amend.

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their conversion to condominiums was not rescinded by City of Berkeley
Ordinance No. 7,025.”
The trial court sustained the demurrer without leave to amend, ruling
Schmier “entered into an agreement involving the city Ordinance that existed
at the time the agreement [was] memorialized in a recorded lien. Whether or
not the ordinance was later rescinded or amended is immaterial. The City
may still enforce the agreed upon recorded lien on the property.”4
DISCUSSION
Schmier contends the Subdivision Map Act’s statute of limitations is
inapplicable, and even if it were applicable, it did not begin running until the
instant dispute arose over the meaning of the language of the lien
agreements.
“[I]t is difficult for demurrers based on the statute of limitations to
succeed because (1) trial and appellate courts treat the demurrer as
admitting all material facts properly pleaded and (2) resolution of the statute
of limitations issue can involve questions of fact. Furthermore, when the

4 Our standard of review is well-established. “ ‘We review the trial
court’s sustaining of the general demurrer independently, and “[o]ur task in
reviewing a judgment of dismissal following the sustaining of a demurrer is
to determine whether the complaint states a cause of action.” [Citation.] We
treat the demurrer as admitting all the properly pleaded material facts and
consider matters which may be judicially noticed, but we do not treat as
admitted contentions, deductions, or conclusions of fact or law. [Citation.]
Further, “ ‘we give the complaint a reasonable interpretation, reading it as a
whole and its parts in their context.’ ” [Citation.] Because a demurrer tests
only the legal sufficiency of the pleading, we accept as true even the most
improbable alleged facts, and we do not concern ourselves with the plaintiff’s
ability to prove its factual allegations. [Citation.] “Facts appearing in
exhibits attached to the first amended complaint also are accepted as true
and are given precedence, to the extent they contradict the allegations.” ’ ”
(Gray v. Dignity Health (2021) 70 Cal.App.5th 225, 236, fn. 10.)

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relevant facts are not clear such that the cause of action might be, but is not
necessarily, time-barred, the demurrer will be overruled. [Citation.] Thus,
for a demurrer based on the statute of limitations to be sustained, the
untimeliness of the lawsuit must clearly and affirmatively appear on the face
of the complaint and matters judicially noticed.” (Coalition for Clean Air v.
City of Visalia (2012) 209 Cal.App.4th 408, 420, fns. omitted (Visalia).)
Section 66499.37 provides in part, “Any action or proceeding to attack,
review, set aside, void, or annul the decision of an advisory agency, appeal
board, or legislative body concerning a subdivision, or of any of the
proceedings, acts, or determinations taken, done, or made prior to the
decision, or to determine the reasonableness, legality, or validity of any
condition attached thereto, including, but not limited to, the approval of a
tentative map or final map, shall not be maintained by any person unless the
action or proceeding is commenced and service of summons effected within 90
days after the date of the decision. Thereafter all persons are barred from
any action or proceeding or any defense of invalidity or unreasonableness of
the decision or of the proceedings, acts, or determinations. . . .”
Schmier maintains he has never disputed “the reasonableness or
legality of any condition” of approval of the condominium conversion. Rather,
what is in dispute is the meaning of certain language in the lien
agreements—that “ ‘[i]n the event that the Affordable Housing Fee is . . .
rescinded by the City of Berkeley, this lien shall be void and have no
effect’ ”—that arose in light of circumstances that did not even exist at the
time of the approval.
Berkeley asserts, in contrast, that Schmier “conced[ed] that the liens
are a condition of approval of a subdivision that is subject to the Subdivision
Map Act . . . [and] that this action challenges a condition of approval of a

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subdivision” and therefore “cannot avoid the conclusion that the action is
untimely . . . [because it was] filed more than two decades too late.” Berkeley
cites to paragraphs 8 and 9 of Schmier’s first amended complaint in support
its assertion.
Berkeley misreads the amended complaint. What Schmier actually
alleged in those two paragraphs is “a ‘[c]ondominium conversion is the
process of subdividing a multi-unit property into separately owned housing
units with individual mortgages. . . .’ [¶] Plaintiff alleges that ‘[s]uch
[s]ubdivisions are regulated under the California Subdivision Map Act and
Subdivided Lands Act.’ ” He further alleged that “[o]n February 27, 1996,
pursuant to [Berkeley Municipal Code section] 21.28.060(A), Plaintiff
executed and recorded . . . the liens demanded by [Berkeley] on the
Properties, as a mandatory precondition of approval of Plaintiff’s conversion
application. . . .”
What these paragraphs allege are the historic facts—that Schmier
applied for a conversion approval and executed the documents required for
the approval. They do not allege that Schmier is contesting the imposition of
any of the conditions of approval. Rather, as the remainder of Schmier’s
allegations make clear, this dispute, which could not possibly have existed at
the time of the conversion approval, concerns the meaning of certain
language in the lien agreements and the consequences of Berkeley’s alleged
rescission of the then-operative Berkeley Municipal Code provision and
enactment of a new provision in its place.
Berkeley’s reliance on Aiuto v. City and County of San Francisco (2011)
201 Cal.App.4th 1347 is misplaced. In Aiuto, the plaintiffs were owners of
condominium units subject to restrictions imposed by San Francisco’s Below
Market Rate Condominium Conversion Program (BMR Program). (Id. at

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p. 1350.) The plaintiffs’ complaint “challeng[ed] [the] adoption of the
ordinance,” specifically alleging a regulatory taking, state law preemption,
and a violation of their civil rights. (Id. at p. 1352.) They sought “to set aside
the City’s decision to adopt [the] ordinance.” (Id. at p. 1359.) Because the
plaintiffs challenged the adoption of the ordinance, itself, the court held “the
90-day litigation limitation period prescribed by section 66499.37 applies to
plaintiffs’ facial claims.” (Id. at pp. 1359–1360.) Schmier made no such facial
claim—he did not challenge the requirement that he execute a lien
agreement, nor did he challenge the city’s adoption of the former Affordable
Housing Fee code section, or its alleged recission thereof and adoption of a
new code section.
Thus, Schmier’s complaint is not subject to the 90-day limitations
period set forth in the Subdivision Map Act. 5
But even if it were, Schmier correctly maintains it did not begin to run
until the instant dispute over the meaning of the lien agreement language.
Honchariw v. County of Stanislaus (2020) 51 Cal.App.5th 243 (Honchariw), to
which Schmier cites, is illustrative.
In Honchariw, the plaintiff sought to divide a parcel of land into eight
residential lots. (Honchariw, supra, 51 Cal.App.5th at p. 246.) The county
ultimately approved the plaintiff’s application, subject to 42 “conditions of
approval.” (Id. at p. 249.) Certain of these pertained to water supply and fire
hydrants. (Id. at pp. 249–250.) The plaintiff interpreted the conditions to
mean “a functional fire suppression system was not required for approval of a
final map and, instead, could be built out as the lots were developed.” (Id. at

5Schmier also asserts section 66499.37 does not apply to this action
because the voidness provision of the lien agreement is “self-executing.” We
need not and do not reach this claim.

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p. 253.) The county, however, interpreted the conditions to “ ‘require the
Developer to install a fire suppression system based on functional fire
hydrants’—something the draft developer agreement did not require.” (Id. at
p. 252.) The plaintiff filed an action for declaratory and writ relief, which the
trial court denied, agreeing with the county’s reading of the conditions. (Id.
at p. 253.)
On appeal, the county maintained the 90-day statute of limitations in
the Subdivision Map Act barred the suit because the plaintiff’s complaint
assertedly challenged the “ ‘reasonableness, legality, or validity of any
condition.’ ” (Honchariw, supra, 51 Cal.App.5th at p. 255.) The appellate
court ruled otherwise, explaining section 66499.37 “covers lawsuits
challenging a variety of decisions by the local agency and lawsuits ‘to
determine the reasonableness, legality, or validity of any condition attached,’
to a decision about a subdivision.” (Honchariw, at p. 255.) However, the
plaintiff’s “main issue is not with the reasonableness, legality or validity of
any of the conditions of approval adopted in May 2012. Instead, he contends
the County has misinterpreted and misapplied the conditions of approval.”
(Ibid.) Accordingly, the statute of limitations period did not accrue until “the
interpretation of the conditions of approval set forth in the June and July
2017 correspondence of the [County, which] is the act or determination being
challenged in this lawsuit.” (Ibid., italics omitted.)
The analysis in Honchariw is equally apropos here—the limitations
period did not accrue until the city disagreed with Schmier as to the meaning
of the language in the lien agreements. Indeed, the city’s assertion that the
90-day period commenced at the time the conversion project was approved
defies logic given that the events giving rise to the instant dispute did not
exist at that time but occurred more than 20 years later. Like the plaintiff in

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Honchariw, Schmier did not challenge the reasonableness, legality or validity
of any of the conditions of approval of the condominium conversion. Rather,
he alleged Berkeley “misinterpreted and misapplied” the language of the lien
agreements stating, “this lien shall be void and have no effect” if the
affordable housing fee is “rescinded by the City of Berkeley.”
Thus, even assuming the 90-day statute set forth in section 66499.37
applies, as in Honchariw, it could not have begun to run until Berkeley
rejected Schmier’s assertion that the lien agreement, by its own terms, was
no longer operative when the city rescinded the then-applicable municipal
code provision.6
In sum, “the untimeliness of the lawsuit [did not] clearly and
affirmatively appear on the face of the complaint,” (Visalia, supra,
209 Cal.App.4th at p. 420), and the court erred in sustaining the demurrer to
the first amended complaint on that basis.
Although the trial court sustained Berkeley’s demurrer solely on the
basis of the 90-day statute of limitations, Berkeley demurred on the
additional ground that the “facts alleged in the Petition show that the
Affordable Housing Fee imposed on each of [Schmier’s] units as a condition of
their conversion to condominiums was not rescinded by City of Berkeley
Ordinance No. 7,025.” Berkeley reasserts this ground on appeal, asserting

6 Berkeley asserts it did not interpret the terms of the lien agreements
but simply applied “the mathematical formula in the lien agreements to
calculate the amount of the Affordable Housing Fees.” Schmier, however, is
not challenging the calculation itself. Rather, he disputes the city’s reading
of the agreements as requiring use of the formula set forth in the allegedly
rescinded ordinance despite the agreements’ provisions that “[i]n the event
that the Affordable Housing Fee is . . . rescinded by the City of Berkeley, this
lien shall be void and have no effect,” a dispute that did not arise until the
city disagreed with Schmier.

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Schmier’s “interpretation of the lien agreements is incorrect,” because he
“conflates the so-called ‘rescission’ of an ordinance with the rescission of the
‘Affordable Housing Fee’ defined by the lien agreements.” 7
At this juncture, we have only the amended complaint before us.
Schmier alleged that Berkeley “rescinded [Berkeley Municipal Code section]
21.28.060(A) under which the Liens were demanded by [Berkeley] and
recorded and instead enacted [Berkeley Municipal Code section] 21.28.070,”
which provided for a new, differently calculated, Affordable Housing Fee. He
further alleged the “Affordable Housing Fee” under the lien agreement
specifically referred to the “Affordable Housing Fee required by law,” which
at the time was Berkeley Municipal Code section 21.28.060(A). In short,
Schmier alleged the “Affordable Housing Fee” under the lien agreement was
rescinded when Berkeley rescinded the ordinance imposing it.
The language of the lien agreements is ambiguous, rendering both
Schmier’s alleged interpretation and the Berkeley’s asserted construction
arguably reasonable. “ ‘[W]here an ambiguous contract is the basis of an
action, it is proper, if not essential, for a plaintiff to allege its own
construction of the agreement. So long as the pleading does not place a
clearly erroneous construction upon the provisions of the contract, in passing
upon the sufficiency of the complaint, we must accept as correct plaintiff’s
allegations as to the meaning of the agreement.’ ” (Aragon-Haas v. Family
Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239 (Aragon-Haas).)
“Where a complaint is based on a written contract which it sets out in full, a
general demurrer to the complaint admits not only the contents of the

7 “ ‘We affirm if any ground offered in support of the demurrer was well
taken.’ ” (Modacure v. B&B Vehicle Processing, Inc. (2018) 30 Cal.App.5th
690, 694, italics omitted.)

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instrument but also any pleaded meaning to which the instrument is
reasonably susceptible. [Citation.] While plaintiff’s interpretation of the
contract ultimately may prove invalid, it was improper to resolve the issue
against her solely on her own pleading. ‘In ruling on a demurrer, the
likelihood that the pleader will be able to prove his allegations is not the
question.’ ”8 (Aragon-Haas, at p. 239.)
Schmier’s first amended complaint does not place a “ ‘clearly erroneous
construction’ ” on the voidness provisions of the lien agreements. (Aragon-
Haas, supra, 231 Cal.App.3d at p. 239.) Accordingly, sustaining the
demurrer on this ground would likewise have been improper.
DISPOSITION
The judgment is reversed with directions to the superior court to vacate
its order sustaining the demurrer to the first amended complaint without
leave to amend and enter a new order overruling the demurrer. Schmier is
entitled to recover his costs on appeal.

8 Indeed, extrinsic evidence may be necessary to show the meaning of
the lien agreement. “ ‘Where the meaning of the words used in a contract is
disputed, the trial court must provisionally receive any proffered extrinsic
evidence which is relevant to show whether the contract is reasonably
susceptible of a particular meaning. [Citations.] . . . Even if a contract
appears unambiguous on its face, a latent ambiguity may be exposed by
extrinsic evidence which reveals more than one possible meaning to which
the language of the contract is . . . reasonably susceptible.’ ” (Wolf v. Superior
Court (2004) 114 Cal.App.4th 1343, 1350–1351.)

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 _________________________
Banke, J.

We concur:

_________________________
Margulies, Acting P.J.

_________________________
East, J.*

*Judge of the San Francisco Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

A161556, Schmier v. City of Berkeley

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