futility exception in California

2025(Wise v. Pacific Gas & Electric Co. (2005) 132 Cal.App.4th 725, 740 .) The doctrine is subject to a futility exception: “[I]t is improper to invoke the primary jurisdiction of an administrative agency if it is clear that further proceedings within that agency would be futile.” (Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 936 (Jonathan Neil).) Defendants initially claim that under the doctrine of primary jurisdiction this matter should never have been in court at all and should have been considered “in the first instance” by the Insurance Commissioner.

2022“Failure to exhaust administrative remedies is excused if it is clear that exhaustion would be futile. [Citation.] Similarly, it is improper to invoke the primary jurisdiction of an administrative agency if it is clear that further proceedings within that agency would be futile.” (Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 936 (Jonathan Neil).) The futility exception is narrowly applied, however.

2024The futility exception requires a party to affirmatively state “‘“the [agency] has declared what its ruling will be on a particular case.”’” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080-1081 .) Casa Blanca asserts the futility exception applies because the Commission’s decision is “certain to be adverse.” Nothing in the record supports this assertion.

2024The futility exception requires a party to affirmatively state “‘“the [agency] has declared what its ruling will be on a particular case.”’” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080-1081 .) Casa Blanca asserts the futility exception applies because the Commission’s decision is “certain to be adverse.” Nothing in the record supports this assertion.

2024Second, the futility exception only applies in “‘unusual’ or ‘extreme’ circumstances.” (People v. Lima (2022) 80 Cal.App.5th 468 , 479.) For example, the rule applies if an objection would have been baseless under then-controlling law but the relevant law subsequently changes (e.g., People v. Sandoval (2007) 41 Cal.4th 825 , 837 & fn. 4), or if continuous objections to prosecutorial or judicial misconduct would have been pointless and counterproductive to a defendant’s interests (e.g., People v. Hill (1998) 17 Cal.4th 800, 821 ).

2021(People v. Seumanu (2015) 61 Cal.4th 1293, 1328 ; People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 .) An objection is futile if making it would have been “fruitless” or an “‘idle act[ ].’” (People v. Kitchens (1956) 46 Cal.2d 260, 263 ; People v. Curlee (2015) 237 Cal.App.4th 709, 715 ; People v. Hopkins (1992) 10 Cal.App.4th 1699, 1702 .) To invoke the futility exception, the defendant must demonstrate, with citations to the record, that an objection would have been futile; the “ritual incantation that [the] exception applies is not enough.” (People v. Panah (2005) 35 Cal.4th 395, 462 .)

2026In order to invoke the futility exception, a plaintiff must show ‘“that the [agency] has declared what its ruling will be on a particular case.”’” (Howard, supra, 184 Cal.App.4th at p. 1430 .) The exception is “‘extremely narrow.’” (Calprop Corp. v. City of San Diego (2000) 77 Cal.App.4th 582, 594 .) “‘To come within the exception, a sort of inevitability is required: the prospect of refusal must be certain (or nearly so).’” (Toigo, supra, 70 Cal.App.4th at p. 327 .) The first amended petition alleged that the TPO constituted a taking of Fox Hills’s property for which it was entitled to compen

2024In order to invoke the futility exception, a plaintiff must show ‘ “that the [agency] has declared what its ruling will be on a particular case.” ’ ” (Howard v. County of San Diego, supra, 184 Cal.App.4th at p. 1430 .) “ ‘[U]nder the “futility exception” to the requirement of a final decision . . . the submission of another development plan is excused if such an application would be an “ ‘idle and futile act.’ ” ’ [Citation.] ‘ “[T]he futility exception . . . relieves a developer from submitting ‘multiple applications when the manner in which the first application was rejected makes it clear t

2021Futility The “futility” exception to the exhaustion of administrative remedies “is a very narrow one.” (County of Contra Costa v. State of California (1986) 177 Cal.App.3d 62, 77 .) “ ‘The futility exception requires that the party invoking the exception “can positively state that the [agency] has declared what its ruling will be on a particular case.” ’ ” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072 , 1080–1081; Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1313 .) Here, Foster does not contend that prison

2018The "futility" exception to the exhaustion of administrative remedies "is a very narrow one." ( County of Contra Costa v. State of California (1986) 177 Cal.App.3d 62 , 77, 222 Cal.Rptr. 750 .) "Failure to exhaust administrative remedies is excused if it is clear that exhaustion would be futile." ( Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917 , 936, 16 Cal.Rptr.3d 849 , 94 P.3d 1055 .) " 'The futility exception requires that the party invoking the exception "can positively state that the [agency] has declared what its ruling will be on a particular case." ' " ( Coachella Valley

2021(Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 418 .) In asserting the futility exception, plaintiffs relied on the over 150 letters submitted to the district by other customers in advance of the rate increase hearing.

1997“The futility exception . . . is a very narrow one.” (County of Contra Costa v. State of California (1986) 177 Cal.App.3d 62, 77 [ 222 Cal.Rptr. 750 ].) It does not apply “ ‘ “unless the petitioner can positively state that the [administrative body] has declared what its ruling will be in a particular case.” ’ ” (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 418 [ 194 Cal.Rptr. 357 , 668 P.2d 664 ]; see also County of San Diego v. State of California (1997) 15 Cal.4th 68, 89 [ 61 Cal.Rptr.2d 134 , 931 P.2d 312 ].) EEF contends that the futility exception applies here

2025(Cf. Automotive Management Group, Inc. v. New Motor Vehicle Bd. (1993) 20 Cal.App.4th 1002, 1015 , cited by CEMEX and analyzing “the futility exception.”) Second, CEMEX argues awaiting a decision on its water application is an inadequate remedy “because the harms CEMEX seeks to avoid would already have been incurred.” In its opening brief, CEMEX argued the re-noticing “will have massive consequences on the proceedings . . . that cannot be corrected by review after the Board’s action on the application,” such as CEMEX incurring additional costs and delays to respond to new protests.

2015The futility exception applies when “resort to the administrative process would be futile because it is clear what the agency’s decision would be.” (Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 222 [ 239 Cal.Rptr. 470 ]; accord, Cummings v. Stanley (2009) 177 Cal.App.4th 493, 506, fn. 8 [ 99 Cal.Rptr.3d 284 ]; see, e.g., Automotive Management Group, Inc. v. New Motor Vehicle Bd. (1993) 20 Cal.App.4th 1002, 1015-1016 [ 24 Cal.Rptr.2d 904 ] [Automobile dealer objecting to the termination of its franchise was not required to pursue additional administrative remedies where the ALJ stated,

2026We disagree. “ ‘[R]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by 7. substantive law then in existence.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 92 .) However, although reviewing courts “ ‘ “have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile” ’ ” (People v. Perez (2020) 9 Cal.5th 7–8), this futility exception only applies in “ ‘unusual circumstances’ ” or “extreme case[s].” (People v. Riel (2000) 22 Cal.4th 1153, 1212 , i

2025(See People v. Hill (1998) 17 Cal.4th 800, 821 [finding that the prosecutor’s “continual misconduct, coupled with the trial court’s failure to rein in her excesses, created a trial atmosphere so poisonous” that continual objections “would have been futile and counterproductive”]; People v. Riel (2000) 22 Cal.4th 1153 , 1212–1213 (Riel) [rejecting a futility claim and describing Hill — on which defendant relies — as “an extreme case”].) Turning to the prosecutor’s reference to defendant not calling Dude as a witness, although defendant timely objected, he failed to request a curative admonition

2026We disagree. “ ‘[R]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by 7. substantive law then in existence.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 92 .) However, although reviewing courts “ ‘ “have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile” ’ ” (People v. Perez (2020) 9 Cal.5th 7–8), this futility exception only applies in “ ‘unusual circumstances’ ” or “extreme case[s].” (People v. Riel (2000) 22 Cal.4th 1153, 1212 , i

2025(See People v. Hill (1998) 17 Cal.4th 800, 821 [finding that the prosecutor’s “continual misconduct, coupled with the trial court’s failure to rein in her excesses, created a trial atmosphere so poisonous” that continual objections “would have been futile and counterproductive”]; People v. Riel (2000) 22 Cal.4th 1153 , 1212–1213 (Riel) [rejecting a futility claim and describing Hill — on which defendant relies — as “an extreme case”].) Turning to the prosecutor’s reference to defendant not calling Dude as a witness, although defendant timely objected, he failed to request a curative admonition

2026There is no legal or factual support for Smith’s assertion “the requirement to seek administrative review would have had no effect given that [the District] had already determined that [the] time to seek corrective action was over.” Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486 and Doster v. County of San Diego (1988) 203 Cal.App.3d 257 , cited by Smith, are distinguishable.

2010(Doster v. County of San Diego (1988) 203 Cal.App.3d 257, 261 [ 251 Cal.Rptr. 507 ].) Thus, in Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830 [ 112 Cal.Rptr. 761 ], the defendant city enacted ordinances declaring a moratorium on building permits and a permanent rezoning ordinance preventing the *1431 plaintiff’s contemplated land use.

2014However, “‘“[f]utility is a narrow exception to the general rule”’ requiring exhaustion of remedies. [Citation.] The exception applies only if the party invoking it can positively state that the administrative agency has declared what its ruling will be in a particular case.” (Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1313 .) An administrative remedy is not inadequate “‘merely because additional time and effort would be consumed by its being pursued through the ordinary course of the law.’” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relat

2005(Public Employment Relations Bd. v. Superior Court (1993) 13 Cal.App.4th 1816, 1827 [ 17 Cal.Rptr.2d 323 ].) Under one of these exceptions, “[f]ailure to exhaust administrative remedies is excused if it is clear that exhaustion would be futile.” (Jonathan Neil & Assoc., Inc. v. Jones, supra, 33 Cal.4th at p. 936 ; see also Honig v. Doe (1988) 484 U.S. 305, 327 [ 98 L.Ed.2d 686 , 108 S.Ct. 592 ].) “The futility exception requires that the *1081 party invoking the exception ‘can positively state that the [agency] has declared what its ruling will be on a particular case.’ ” (Jonathan Neil & Asso

2021Determining eligibility for AFDC-FC is “a function that rests with [the] Agency as part of the executive branch of government.” (A.F., supra, 219 Cal.App.4th at p. 59 ; In re Darlene T. (2008) 163 Cal.App.4th 929, 938-939 (Darlene T.).) “The courts do not have the authority to order a social services agency to make AFDC-FC payments without an administrative determination of eligibility for those payments, and judicial review of eligibility determinations is ordinarily limited to the consideration of a petition for writ of administrative mandate of the eligibility decision.” (A.F., at p. 60; se

2021Determining eligibility for AFDC-FC is “a function that rests with [the] Agency as part of the executive branch of government.” (A.F., supra, 219 Cal.App.4th at p. 59 ; In re Darlene T. (2008) 163 Cal.App.4th 929, 938-939 (Darlene T.).) “The courts do not have the authority to order a social services agency to make AFDC-FC payments without an administrative determination of eligibility for those payments, and judicial review of eligibility determinations is ordinarily limited to the consideration of a petition for writ of administrative mandate of the eligibility decision.” (A.F., at p. 60; se

2021Futility The “futility” exception to the exhaustion of administrative remedies “is a very narrow one.” (County of Contra Costa v. State of California (1986) 177 Cal.App.3d 62, 77 .) “ ‘The futility exception requires that the party invoking the exception “can positively state that the [agency] has declared what its ruling will be on a particular case.” ’ ” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072 , 1080–1081; Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1313 .) Here, Foster does not contend that prison

2018The "futility" exception to the exhaustion of administrative remedies "is a very narrow one." ( County of Contra Costa v. State of California (1986) 177 Cal.App.3d 62 , 77, 222 Cal.Rptr. 750 .) "Failure to exhaust administrative remedies is excused if it is clear that exhaustion would be futile." ( Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917 , 936, 16 Cal.Rptr.3d 849 , 94 P.3d 1055 .) " 'The futility exception requires that the party invoking the exception "can positively state that the [agency] has declared what its ruling will be on a particular case." ' " ( Coachella Valley

2021Failure to Object Excused Where Futile or Unsupported Under Existing Law “Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.” (People v. Welch (1993) 5 Cal.4th 228, 237 ; accord, People v. Gomez (2018) 6 Cal.5th 243 , 286–287; People v. Black (2007) 41 Cal.4th 799, 810 .) Defendant argues that the futility exception to the forfeiture doctrine is applicable here.

2018In referencing the futility rule in its footnote, the Sandoval court cited People v. Welch (1993) 5 Cal.4th 228 , 19 Cal.Rptr.2d 520 , 851 P.2d 802 ( Welch ). ( Sandoval, supra , 41 Cal.4th at p. 837, fn. 4 , 62 Cal.Rptr.3d 588 , 161 P.3d 1146 .) The defendant in Welch contested on appeal the reasonableness of probation conditions. ( Welch , at p. 230, 19 Cal.Rptr.2d 520 , 851 P.2d 802 .) An established line of Court of Appeal decisions had held a defendant was not required to object in the trial court to preserve such a contention on appeal. ( Id . at pp. 231-233, 19 Cal.Rptr.2d 520 , 851 P.2

1983Respondent cites Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830 [ 112 Cal.Rptr. 761 ], and Eldridge v. City of Palo Alto (1976) 57 Cal.App.3d *215 613 [ 129 Cal.Rptr. 575 ] (disapproved on other grounds in Agins v. Tiburon (1979) 24 Cal.3d 266, 273 [ 157 Cal.Rptr. 372 , 598 P.2d 25 ]) to support its contention that the futility exception applies in this case.

1983Respondent cites Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830 [ 112 Cal.Rptr. 761 ], and Eldridge v. City of Palo Alto (1976) 57 Cal.App.3d *215 613 [ 129 Cal.Rptr. 575 ] (disapproved on other grounds in Agins v. Tiburon (1979) 24 Cal.3d 266, 273 [ 157 Cal.Rptr. 372 , 598 P.2d 25 ]) to support its contention that the futility exception applies in this case.

2000“The futility exception is extremely narrow: ‘[T]he mere possibility, or even the probability, that the responsible agency may deny the permit should not be enough to trigger the excuse. [Citations.] To come within the exception, a sort of inevitability is required: the prospect of refusal must be certain (or nearly so).’ [Citation.] . . . [W]here a ‘general plan does not preclude all development,’ futility cannot be demonstrated in the absence of a development proposal that ‘conforms to the existing general plan or at least does not require as drastic a modification to present land use design

2000“The futility exception is extremely narrow: ‘[T]he mere possibility, or even the probability, that the responsible agency may deny the permit should not be enough to trigger the excuse. [Citations.] To come within the exception, a sort of inevitability is required: the prospect of refusal must be certain (or nearly so).’ [Citation.] . . . [W]here a ‘general plan does not preclude all development,’ futility cannot be demonstrated in the absence of a development proposal that ‘conforms to the existing general plan or at least does not require as drastic a modification to present land use design

2026In order to invoke the futility exception, a plaintiff must show ‘“that the [agency] has declared what its ruling will be on a particular case.”’” (Howard, supra, 184 Cal.App.4th at p. 1430 .) The exception is “‘extremely narrow.’” (Calprop Corp. v. City of San Diego (2000) 77 Cal.App.4th 582, 594 .) “‘To come within the exception, a sort of inevitability is required: the prospect of refusal must be certain (or nearly so).’” (Toigo, supra, 70 Cal.App.4th at p. 327 .) The first amended petition alleged that the TPO constituted a taking of Fox Hills’s property for which it was entitled to compen

2005The futility exception is “extremely narrow.” (Toigo, supra, 70 Cal.App.4th at p. 327 .) It is not triggered by the mere possibility, or even the probability, that the responsible agency will deny the requested development permit.

2021Castillo-Lopez relies on People v. Gomez (2018) 6 Cal.5th 243, 286-287 , which held that although, at trial, defense counsel may have objected only on the basis of Evidence Code section 352 to the trial court’s admission of evidence that the defendant refused to come to court on one morning of trial, defense counsel previously raised extensive objections to that evidence during court hearings, which the trial court overruled in a manner indicating that it “would have rejected any objection to the testimony.” (Gomez, at p. 287.) Applying a futility analysis as in Gomez, Castillo-Lopez argues th

2021Failure to Object Excused Where Futile or Unsupported Under Existing Law “Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.” (People v. Welch (1993) 5 Cal.4th 228, 237 ; accord, People v. Gomez (2018) 6 Cal.5th 243 , 286–287; People v. Black (2007) 41 Cal.4th 799, 810 .) Defendant argues that the futility exception to the forfeiture doctrine is applicable here.

1997We do not have a situation where the agency: has no procedure for dealing with the claim (Jacobs v. State Bd. of Optometry (1978) 81 Cal.App.3d 1022 [ 147 Cal.Rptr. 225 ]); declined to take jurisdiction over the claim (Department of Personnel Administration v. Superior Court (1992) 5 Cal.App.4th 155, 171-172 [ 6 Cal.Rptr.2d 714 ]); already rejected the claim (Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 384 [ 216 Cal.Rptr. 733 , 703 P.2d 73 ]; Doster v. County of San Diego (1988) 203 Cal.App.3d 257, 262 [ 251 Cal.Rptr. 507 ]; Collins v. Woods, supra, 158 Cal.

1997We do not have a situation where the agency: has no procedure for dealing with the claim (Jacobs v. State Bd. of Optometry (1978) 81 Cal.App.3d 1022 [ 147 Cal.Rptr. 225 ]); declined to take jurisdiction over the claim (Department of Personnel Administration v. Superior Court (1992) 5 Cal.App.4th 155, 171-172 [ 6 Cal.Rptr.2d 714 ]); already rejected the claim (Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 384 [ 216 Cal.Rptr. 733 , 703 P.2d 73 ]; Doster v. County of San Diego (1988) 203 Cal.App.3d 257, 262 [ 251 Cal.Rptr. 507 ]; Collins v. Woods, supra, 158 Cal.

2025(Wise v. Pacific Gas & Electric Co. (2005) 132 Cal.App.4th 725, 740 .) The doctrine is subject to a futility exception: “[I]t is improper to invoke the primary jurisdiction of an administrative agency if it is clear that further proceedings within that agency would be futile.” (Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 936 (Jonathan Neil).) Defendants initially claim that under the doctrine of primary jurisdiction this matter should never have been in court at all and should have been considered “in the first instance” by the Insurance Commissioner.

2010It requires the court to enable a “referral” to the agency, staying further proceedings so as to give the parties reasonable opportunity to seek an administrative ruling.’ ” (Wise v. Pacific Gas & Electric Co. (2005) 132 Cal.App.4th 725, 740 [ 34 Cal.Rptr.3d 222 ], quoting Reiter v. Cooper (1993) 507 U.S. 258, 268-269 [ 122 L.Ed.2d 604 , 113 S.Ct. 1213 ].) Also, like the closely related doctrine of exhaustion of administrative remedies, the doctrine of primary jurisdiction is subject to a futility exception: “[I]t is improper to invoke the primary jurisdiction of an administrative agency if it

2023Our Supreme Court has “never expanded the futility exception to encompass a situation where, as here, the defendant made a belated objection after forgoing multiple earlier opportunities to object.” (People 8 v. Bonilla (2007) 41 Cal.4th 313, 336 .) Like that court, “we decline to do so here.” (Ibid.) Regardless, we cannot determine on this record whether an objection before A.W. began testifying on the first day of trial would have been futile.

2021(See People v. Bonilla (2007) 41 Cal.4th 313, 336 [“We have never expanded the futility exception to encompass a situation where, as here, the defendant made a belated objection after forgoing multiple earlier opportunities to object, and we decline to do so here”].) We therefore conclude defendant forfeited the issue.