California Landmark Cases on the Futility Exception

Closely related to the "final decision" rule is the "futility" exception. The failure to pursue administrative remedies does not bar judicial relief where the administrative remedy is inadequate or unavailable, or where it would be futile to pursue the remedy. (Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 936 16 Cal. Rptr. 3d 849, 94 P.3d 1055.) In order to invoke the futility exception, a plaintiff must show " 'that the agency has declared what its ruling will be on a particular case.' " (Ibid.) A plaintiff need not pursue administrative remedies where the agency's decision is certain to be adverse. (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, the defendant city enacted ordinances declaring a moratorium on building permits and a permanent rezoning ordinance preventing the plaintiff's contemplated land use. The plaintiff filed suit, challenging the permanent ordinance, and the city in response asserted the plaintiff should have sought an application for a variance. The Court of Appeal held that because it was clear the city would not have granted a variance, the plaintiff was not required to pursue that remedy: "To require appellants to apply to the city council for a variance on behalf of this project would be to require them to pump oil from a dry hole." (Id. at p. 834.) The question of whether it would be futile to pursue additional administrative remedies may be a question of fact. (Twain Harte Associates, Ltd. v. County of Tuolumne (1990) 217 Cal.App.3d 71, 91.)