Davis

In 1981 Olive Davis et al. challenged the validity of the City of Newport Beach’s housing element. They claimed it failed, in derogation of state planning and land use statutes, to adequately address and provide for low and moderate income housing.

Thereafter, the city revised or amended the element. In December 1984, the court granted the city’s motion to dismiss the third cause of action, and the second insofar as it addressed the housing element.

Petitioners contend their complaint is still viable. They insist the superseding enactments, to the extent they do not answer the original objections, are subject to scrutiny. The city insists the complaint was either (1) premature and subject to dismissal because the facts supporting any challenge to the 1984 element were not in existence when the original complaint was filed, or (2) moot because enactment of the 1984 housing element eliminates any challenge to prior versions.

I

Prematurity

Petitioners expend a great deal of energy distinguishing the city’s authorities on the issue of what facts must exist at the time of filing a complaint. Insofar as those cases uphold the somewhat outmoded “plea in abatement,” we are…