CEQA Plaintiff’s Failure To Appeal Incorrectly Labeled “Interlocutory” Decision Granting Peremptory Writ Barred Appellate Review Of Decision On Later Appeal From Post-Judgment Order Erroneously Labeled “Final Judgment”

by Miller Starr Regalia
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“What’s in a name? That which we call a rose by any other name would smell as sweet;” – William Shakespeare, Romeo and Juliet, Act II, Scene II, ll. 47-48.

In a partially published 40-page opinion filed on November 26, 2018, the Sixth District Court of Appeal affirmed the trial court’s post-judgment order determining that respondents’ (City of San Juan Bautista and its city council) supplemental return complied with a previously issued peremptory writ and CEQA as directed.  But the opinion’s most valuable message to those toiling in the garden of the law – a profession where using the correct words is of paramount importance – is a simple Shakespearean one, to wit:  a final judgment by any other name is still a final judgment.  Alliance of Concerned Citizens Organized For Responsible Development v. City of San Juan Bautista (Harbhajan Dadwal, Real Party in Interest) (2018) ___ Cal.App.5th ___.

The 28-page published portion of the opinion applies settled law, but does so in a factual and procedural context that serves to provide valuable reminders to CEQA litigators and parties about the nature and appealability of final judgments in writ of mandate actions – and it underscores the adverse consequences that can result from a litigant’s failure to recognize and timely appeal the final judgment.  (The Court did not publish the 12-page portion of its opinion concluding plaintiff/appellant ACCORD failed to identify substantial evidence supporting a fair argument that the challenged project – a fuel station, convenience store, and quick serve restaurant on The Alameda near the SR 156 intersection – would have significant noise impacts requiring an EIR rather than a Mitigated Negative Declaration (MND), and that part of the opinion therefore will not be further discussed in this post.)

Relevant Factual and Procedural Background

ACCORD filed a petition for writ of mandate and complaint for injunctive relief (petition) challenging the project and related MND, alleging numerous CEQA violations (including failure to prepare an EIR) and also violations of the state planning and zoning law, including that the project was inconsistent with the City’s general plan and violated its zoning and municipal codes.

After a hearing on the petition held on two days in February 2016, the trial court issued a so-called “Peremptory Writ of Interlocutory Remand For Reconsideration of Potential Noise Impacts” (the “March 2016 decision”), which had been prepared by attorneys for the real party in interest/project approval recipient.  Despite its “interlocutory” label, the March 2016 decision was not tentative or partial in substance or effect; it disposed of all CEQA and non-CEQA issues raised by the petition, and granted a peremptory writ that required respondents to set aside the resolutions approving the project, reconsider the significance of the project’s potential noise impacts, take further action consistent with CEQA, and file a return to the writ not later than October 10, 2016.  Apart from the noise-impacts issue, it resolved all other claims in favor of the respondents and real party.  The March 2016 decision left for future judicial determination only whether the return that respondents were required to file complied with the requirements of the peremptory writ and CEQA going forward, new actions which obviously were not the subject of any claim of error raised in the petition.

However, the March 2016 decision itself expressly stated that it was not a final judgment; that following the return the court would “conduct such further proceedings as are necessary and appropriate and determine whether to enter a final judgment”; and that: “Nothing contained herein shall be construed as a final judgment for purposes of appellate review by any party to this action.”  ACCORD did not appeal from the March 2016 decision.

A supplemental return later filed by respondents stated they had filed a return prior to the required date; that they had adopted resolutions setting aside those that had approved the project, conducted a new noise study, and prepared a new Initial Study/Mitigated Negative Declaration; and that following duly noticed public proceedings the city council adopted new resolutions again approving the project.  The City then requested entry of a “final judgment.”

ACCORD objected to the adequacy of respondents’ supplemental return, arguing it failed to comply with CEQA or the peremptory writ and that adopting the MND was an abuse of discretion, and it also objected to the proposed final judgment.  On December 12, 2016, the trial court filed a so-called “Final Judgment on Petition for Writ of Mandamus” (the “December 2016 decision”).  The December 2016 decision stated (among other things) that the trial court had “ruled in favor of RPI and Respondent on all matters presented by the Petitioner except for the [noise impacts] issue,” that “[p]ursuant to this Court’s Peremptory Writ” respondents had taken further actions (including filing a return “[i]n compliance with the terms of the Peremptory Writ”), and that Respondents’ supplemental return demonstrated compliance with the peremptory writ and CEQA.  While the trial court had already resolved the petition’s allegations and granted a peremptory writ in its March 2016 decision, the December 2016 decision purportedly “denied” the petition for writ of mandate and entered “Judgment” in favor of respondents and real party “in all matters.”

Well beyond the maximum possible (180-day) period to appeal the March 2016 decision, in February 2017, ACCORD appealed from the December 2016 decision.  It argued an EIR was required based on substantial record evidence supporting a fair argument the project may have significant unmitigated traffic and noise impacts, and that the project violated the “formula retail business” provisions of City’s municipal code.

The Court of Appeal’s Decision

The Court of Appeal ordered supplemental briefing on: “(1) whether the March 2016 decision was the final judgment despite its label; (2) whether the December 2016 decision was a post-judgment order despite its label; and (3) whether ACCORD’s contentions had been forfeited and are not cognizable on this appeal except insofar as they relate to whether the trial court erred in determining that respondents fully complied with its March 2016 decision.”  It ultimately held, based on an extensive analysis of well-settled legal principles, that “the March 2016 decision was the final judgment and the December 2016 decision was a post-judgment order”; it then rejected ACCORD’s cognizable arguments on the limited issues it had validly raised on appeal.

Key principles and takeaways from the published portion of the Court of Appeal’s opinion include:

  • The statutory right to appeal in civil cases generally allows an appeal to be taken “[f]rom a judgment, except an interlocutory judgment’ and also from an order made after an appealable judgment. (Code Civ. Proc., §§ 904.1(a)(1), (2).)
  • As in civil actions generally (Code Civ. Proc., § 577), “[a] judgment in a special proceeding [such as writ of mandate actions] is the final determination of the rights of the parties therein.” (Code Civ. Proc., § 1064; see § 1109.)
  • In order to prevent piecemeal disposition of litigation and multiple appeals in a single action, under the “one final judgment rule” an appeal lies only from the final judgment in an action, and review of intermediate rulings must generally await a case’s final disposition. Under California’s “one shot” rule, if an order is appealable it must be timely appealed or the right to challenge any part of it is “forfeited” and “forever lost.”  (Citing In re Baycol Cases I & II (2011) 51 Cal.4th 751, 762, fn. 8.)
  • “It is not the form of the decree but the substance and effect of the adjudication which is determinative [of whether it constitutes a final judgment]. As a general test,… it may be said that when no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.”  (Quoting Lyon v. Goss (1942) 19 Cal.2d 659, 670; accord Griset v. Fair Political Practices Com’n (2001) 25 Cal.4th 688, 698-699.)
  • “A judgment labeled “interlocutory” nevertheless may be final for purposes of appeal if it is [in fact] a final determination of the parties’ rights…. [¶] Contrariwise, an order labeled a “ ‘final judgment’ ” may not be a final judgment [if it does not, in fact, conclude the issues raised between the parties].” (Citations omitted.)  “Finality” – in the sense of finally determining the rights of the parties in an action or proceeding – is an attribute of every judgment upon its being rendered, and “[f]inality in this sense not only makes a judicial determination a judgment, but also makes that judgment appealable…. ‘A judgment that leaves no issue to be determined except the fact of compliance with its terms is appealable.’ ”  (Citations omitted.)
  • “When the trial court issues its judgment granting a peremptory writ of mandate, the respondent has two choices: to appeal the judgment or comply with it.”  (Citation.)  “But if a writ petition has been joined with other causes of action and a decision leaves substantive issues or causes of action to be resolved in future proceedings, there may not be a final judgment yet.” (Citations.)
  • A peremptory writ may include a return date as a mechanism to ensure compliance; unlike a return to an alternative writ, the purpose of the return to a peremptory writ is to ensure respondent took the actions required by the writ, and a return generally either attempts to demonstrate respondent has complied or shows that it has appealed. The fact that additional judicial proceedings occur in connection with the return do not affect the finality of the judgment issuing the peremptory writ.  The court’s order determining the adequacy of a return is appealable as an order enforcing the judgment; i.e., an appealable post-judgment order.  While a trial court retains continuing jurisdiction to ensure compliance with its peremptory writ, “the writ’s validity is not at issue on appeal from an order enforcing the writ.” (Citation.)
  • With the above principles in mind, the Court of Appeal “examine[d] the substance and effect of the [March 2016] decision to determine whether it was the final judgment[.]” Because it disposed of all CEQA and non-CEQA issues raised by the petition and left for future determination only whether respondents complied with the peremptory writ, the Court held that it was, indeed, the final judgment, notwithstanding its misleading “interlocutory” label and incorrect statements regarding its own finality and appealability.  It thus held that:  “By failing to appeal from the March 2016 decision, ACCORD forfeited appellate review of the trial court’s findings under [Public Resources Code]  section 21168.9 and its other CEQA and non-CEQA determinations, express or implied, in favor of respondents.”  As observed by the Court in an earlier portion of its opinion:  “The parties have not directed us to any California case holding that the subjective intentions of the court or the parties as to the finality of a decree can trump its actual substance and effect for purposes of appeal.  Although the March 2016 decision had the effect of sending the matter back to respondents for further action and thus could be regarded as a remand in the most general sense, its self-description as a non-appealable interlocutory remand was not determinative.”
  • It followed from the Court’s holding that the March 2016 decision was the final judgment, that the December 2016 could not be the final judgment, and despite the latter decision’s own misleading label it was actually an appealable post-judgment order; i.e., an order discharging the peremptory writ. Because the December 2016 decision was the only one ACCORD timely appealed, the Court’s appellate review was limited to that decision.
  • The Court thus rejected ACCORD’s argument that the March 2016 decision should be construed as an unappealable interlocutory remand order. It distinguished Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, a non-CEQA, administrative mandamus action; that case upheld a trial court’s interlocutory remand to a regional water board to reconsider a finding lacking evidentiary support as being consistent with certain provisions of the administrative mandamus statute (Code Civ. Proc., §§ 1094.5(e), (f)), which do not prohibit appropriate use of a prejudgment remand.  Justice Werdegar’s concurring opinion in Voices, joined by Chief Justice Cantil-Sakauye, acknowledged the majority opinion’s limited scope as having no occasion to consider whether such a prejudgment remand could be made in a CEQA action, consistent with Pubic Resources Code § 21168.9, without issuing a peremptory writ of mandate.  (Citing also Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883 [upholding use of interlocutory remand procedure in context of ordinary mandamus claim involving “discrete, non-CEQA issue of general plan consistency”], my August 31, 2017 post on which can be found here.)
  • Public Resources Code § 21168.9(b) requires a mandate order in CEQA cases to be made by issuance of a peremptory writ of mandate specifying what action the public agency must take to comply with CEQA, and states the trial court must “retain jurisdiction over the public agency’s proceedings by way of a return to the peremptory writ until the court has determined that the public agency has complied with CEQA” – a “provision… reflect[ing] the rule that a court issuing a peremptory writ of mandate retains jurisdiction to determine the adequacy of the return and ensure full compliance with the writ.” (Citing Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 479.)
  • Finally, the Court also rejected ACCORD’s arguments that due process and fundamental fairness required a ruling that it was entitled to rely on the trial court’s characterization of the March 2016 decision as interlocutory and non-appealable. This argument was unsupported by precedent and inconsistent with longstanding Supreme Court precedents.  (Citing Estate of Hanley (1943) 23 Cal.2d 120, 123 [“Nor can jurisdiction be conferred upon the appellate court by the consent or stipulation of the parties, estoppel or waiver”]; Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674 [“notion of estoppel” has no “place in determining whether a timely notice of appeal has been filed within the jurisdictional period therefor,” the expiration of which “is not, and by its nature cannot, be affected by the actions of the parties”].)  Per the Court:  “This court is not changing the character of the March 2016 decision.  We merely recognize its actual substance and effect as the final judgment.  The December 2016 decision was mischaracterized as the final judgment.”

Conclusion and Implications

While the plaintiff and appellant did not emerge from this CEQA litigation “smelling like a rose,” its efforts nonetheless resulted in a published opinion teaching a number of valuable lessons.  The first and foremost is that the final judgment is the final judgment, no matter what the court or the parties may choose to call it; its nature as such is determined by its substance and effect, rather than the label the trial court attaches to it.  A final judgment in a CEQA writ action is any order that disposes of all the claims raised by the petition (including any non-CEQA claims that may be joined) on their merits, and any order granting a peremptory writ of mandate that does so is a final judgment, notwithstanding the trial court’s inherently retained jurisdiction to take further action to enforce and determine compliance with the writ upon the respondent’s return.

The “one final judgment” rule, combined with California’s “one shot” rule governing appeals and the strict jurisdictional time limit for appeals, attach extremely important litigation consequences to the issuance of final judgments.  This makes it imperative that attorneys for parties wishing to challenge them recognize them for what they are and take action within the jurisdictional time period for appeal.  Neither due process considerations of “fairness” nor estoppel will operate to extend the time to appeal – even where the trial court or opposing counsel have mischaracterized or mislabeled an order that is in substance and effect a final judgment.

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