No Relief Under CCP Section 473 For Missed Filing Deadline In CEQA Challenge

by Sheppard Mullin Richter & Hampton LLP
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Alliance for the Protection of the Auburn Community Environment, et al. v. County of Placer, SCV0028200 (3rd Dist., February 18, 2013)

In Alliance for the Protection of the Auburn Community Environment v. County of Placer, the California Court of Appeal for the Third District considered plaintiff and appellant Alliance for the Protection of the Auburn Community Environment's ("Alliance") appeal from trial court's granting of real party in interest Bohemia Properties, LLC's ("Bohemia") demurrer, which was sustained without leave to amend, and the trial court's concurrent denial of Alliance's motion seeking relief on the grounds of mistake or excusable neglect under Code of Civil Procedure ("CCP") Section 473, subdivision (b) ("Section 473").

At issue on appeal was whether or not Section 473, which generally provides relief for excusable neglect, would excuse the late filing of a petition for a writ of mandate pursuant to the California Environmental Quality Act ("CEQA"; Pub. Resources Code, § 21000 et seq.). Those seeking some measure of comfort from the Court of Appeal that a missed Public Resources Code Section 21167 ("Section 21167") deadline may, under certain circumstances, be forgiven were forced to face a tough reality. In short, CEQA's aim to "ensure extremely prompt resolution of lawsuits claiming noncompliance with the act" dictates strict adherence to Section 21167 – Section 473 provides no basis for relief.

In so holding, the court brought the Third District in line with the Court of Appeal for the First District's holding in Nacimiento Regional Water Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, which found Section 473's mandatory provisions inapplicable where the plaintiff failed to file a request for a hearing within 90 days of filing an action under Public Resources Code Section 21167.4, subdivision (a).

Factual and Procedural Background

In 2008, Bohemia submitted an application submitted an application for its proposed development project and a draft Environmental Impact Report ("EIR") was circulated, followed by the requisite public comment period and eventually a final EIR. The final EIR was certified on July 16, 2010. Alliance appealed and the County of Placer ("County") again certified the final EIR on September 28, 2010. A notice of determination ("NOD") was then filed on September 29, 2010, meaning that Alliance's petition for a writ of mandate ("Petition") was due by no later than October 29, 2010. Alliance filed its Petition on November 1, 2010.

Bohemia then demurred to the Petition, alleging it was not filed within the limitations period mandated by Section 21167. Alliance responded with its own motion for relief under Section 473 and opposed the demurrer. Alliance argued that the late filing resulted from a "miscommunication from its attorney service as to the deadline for receipt of the Writ." Specifically, the attorney service was provided the Petition prior to the filing deadline but arrived at the court too late on October 29, 2010 to file.

The trial court nevertheless concluded that Alliance's petition was barred by the mandatory provisions of Section 21167. The trial court therefore granted Bohemia's demurrer (without leave to amend) and denied Alliance's motion for relief based on excusable neglect.

Public Resources Code Section 21167 Is Mandatory

On appeal, Alliance argued that the trial court erred in sustaining Bohemia's demurrer based on pertinent case law mandating that the provisions of Section 473 be liberally construed and California's general policy considerations favoring the determination of lawsuits on their merits rather than technicalities. The court however was swayed by the California's Supreme Court's guidance in Maynard v. Brandon (2005) 36 Cal.4th 364 ("Maynard").

In Maynard, the Supreme Court stated "[n]or does section 473, subdivision (b) generally apply to dismissals attributable to a party's failure to comply with the applicable limitations period in which to institute an action, whether by complaint [citations] or by writ petition [citation]." (Maynard, supra, 36 Cal.4th at p. 372.) The court noted that, in Maynard , the court found Section 473 relief was unattainable due to the mandatory nature of statute of limitations.

Based on its understanding of Maynard and its reading of Section 21167, the court was satisfied that Section 21167 is mandatory in nature and makes no provision for extending the limitations period for actions alleging CEQA violations, even if Section 473 might otherwise provide relief. The court reasoned that "[w]hile CEQA should be broadly interpreted to protect the environment, CEQA also aims to ensure extremely prompt resolution of lawsuits claiming noncompliance with the act." Section 473 therefore affords no relief for parties failing to file their actions challenging CEQA violations within the applicable Section 21167 filing deadline.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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