Plaintiff’s Failure to Request CEQA Hearing Within 90 Days of Filing Petition Due to Lead Attorney’s “Excusable” Calendaring Error Warrants Discretionary Relief Under CCP § 473, Holds Second District

by Miller Starr Regalia

The important legislative policy of expediting CEQA litigation sometimes inevitably conflicts with the policy favoring resolution of cases on their merits. This conflict is never more sharp than when a CEQA plaintiff’s counsel seeks relief from a default or mistake that would otherwise terminate a CEQA action in the defendant’s favor. In the recently-published decision in Comunidad En Accion v. L.A. City Council (2nd Dist., Div. 8, 9/20/13) ___ Cal.App.4th ___, 2013 WL 5306190, the Second District Court of Appeal resolved such a conflict by reversing the dismissal of a CEQA action and holding the trial court abused its discretion by denying discretionary relief under Code of Civil Procedure § 473 for counsel’s failure to timely comply with CEQA’s mandatory hearing request requirement due to an “excusable” failure to calendar the deadline. Due to reasoning that seems to conflict with that of other decisions involving CEQA’s mandatory hearing request and statute of limitations provisions, and the case’s unusual posture – i.e., reversing a trial court’s discretionary CCP § 473 decision under the “abuse of discretion” standard – the decision is noteworthy.

The case’s basic facts are simple. Comunidad, a community organization plaintiff, sued the City of L.A. under Government Code § 11135’s antidiscrimination provision and CEQA for approving Sun Valley – a predominantly Latino community – as the site of a new 104,000-square foot waste transfer station and expanded recycling and green waste processing facilities at the existing Bradley Landfill. While the Court of Appeal affirmed summary adjudication of the discrimination claims in the City’s favor (because it was a separate entity from the state-funded LEA and its siting approval was not a state-funded activity), it reversed the trial court’s dismissal of the CEQA claims. With respect to those, it held the trial court abused its discretion in not granting Comunidad’s CCP § 473 motion for discretionary relief from mandatory dismissal due to its one-week delay in requesting a hearing.

Public Resources Code § 21167.4(a) requires a CEQA petitioner to file a written request for a hearing on the merits of its mandate petition with the Court within 90 days of filing the petition. It states: “the petitioner shall request a hearing within 90 days from the date of the filing the petition or shall be subject to dismissal on the court’s own motion or on the motion of any party interested in the action or proceeding.” In this case, Comunidad filed its petition June 10, 2010; the parties stipulated on August 25, 2010 to extend time for preparation of the record and the court ordered the record be certified by October 18, 2010; and real party Waste Management moved on September 14, 2010, to dismiss the CEQA claims due to Comunidad’s failure to comply with Section 21167.4’s hearing request requirement. The next day – September 15, 2010 – Comunidad belatedly filed a request for a hearing and a week later it filed a motion for relief under CCP § 473. The motion was supported by Comunidad’s lead attorney’s declaration “that he inadvertently omitted the 90-day hearing request from his personal calendaring system” and this “mistake was compounded by a family illness that required counsel to leave the state from August 26, 2010 to September 8, 2010.” The trial court denied the motion, concluding failure to calendar a litigation deadline was not excusable neglect and “that electronic litigation calendar reminders are now ubiquitous and the failure to use one fell below the standard of care.”

Despite the facts that CEQA’s hearing request requirement is a “mandatory provision” and that “Comunidad filed the hearing request seven days late and only after respondents had moved to dismiss the CEQA claims[,]” the Court of Appeal held it was an abuse of discretion not to grant relief. Noting the competing policies of expediting CEQA litigation and the “strong preference for a trial on the merits,” the Court observed CEQA does not categorically bar CCP § 473 relief, but allows relief for failure to properly request a hearing under section 21167.4 if the moving party shows “excusable error.” The test is whether “‘a reasonably prudent person under the same or similar circumstances’ might have made the same error” – i.e., the mistake was one “anyone could have made” as opposed to “[c]onduct falling below the professional standard of care[.]” According to the Court, “[w]here the mistake is excusable and the party seeking relief has been diligent, courts have often granted relief pursuant to the discretionary relief provision of section 473 if no prejudice to the opposing party will ensue.”

Relying on these principles, the Court reasoned: “It cannot be disputed that Comunidad’s counsel was diligent in prosecuting this case and the motion for relief was filed a week after the hearing request, well within a reasonable time. Nor can it reasonably be argued respondents would have suffered prejudice from Comunidad’s one-week delay in requesting a hearing as respondents successfully sought extensions to prepare the administrative record, which was not ready at the time Comunidad requested a hearing.” Relying on a line of authority stemming from a nearly century-old Supreme Court precedent, the Court found “calendar errors” by an attorney or staff may under appropriate circumstances be excusable, and distinguished contrary cases as not “stand[ing] for the proposition that a calendaring error cannot constitute excusable neglect.” It concluded the trial court abused its discretion in denying relief because “[t]he one-week delay in requesting a hearing was an isolated mistake in an otherwise vigorous and thorough presentation of Comunidad’s claims” and was the result of the lead attorney’s “single calendaring error, not a series of errors resulting from disorganization.” Further, it opined that “[t]ransporting a date from a timeline to a calendar is a clerical type mistake, not one involving professional skill” and one that “anyone could have made.” It concluded: “Although electronic calendaring systems may be more prevalent than when the high court decided [the 1916 and 1985 precedents it relied on], the technology advancement does not change the nature of the error – the failure to enter the date on the calendar, an error that could occur regardless of the sophistication of the calendaring system.”

While its heart may have been in the right place, the Court of Appeal’s reasoning in this case is certainly questionable. It appears to give inadequate weight to the Legislative policies animating the carefully crafted statutory scheme of expedited CEQA litigation. Nor does it appear to adequately describe the burden required under the applicable standard of appellate review, i.e., the deference that must be applied in determining whether the trial court “abused its discretion.” That standard has generally been described as “lenient” to the trial court’s decision and not met unless the trial court acted “whimsically” or “no reasonable basis for the action is shown.” (Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 176.) That hardly seems to have been the case here, and merely disagreeing with the trial court’s reasoning, weighing of relevant factors, or assessment of the credibility of the evidence should not be enough to overturn its decision.

Further, the Court’s treatment of the parties’ stipulation to an order extending time for preparation of the administrative record as an important factor in the calculus of “prejudice” from a late hearing request is equally dubious. While briefing and a hearing on the writ petition certainly require a certified administrative record, the filing of a written request for a hearing with the court does not. Given trial courts’ typically crowded calendars, and the fact that writ hearings consume more court time and resources than typical law-and-motion matters, the timely filing of a request for hearing is important to the orderly and expeditious prosecution of CEQA actions regardless of the status of record preparation. Timely filing of the request is clearly intended to expeditiously procure a reserved hearing date on the Court’s busy calendar, even  though the first available appropriate date still likely will be many weeks or even many months away. Indeed, other courts in related contexts have rejected arguments attempting to excuse a petitioner’s failure to timely file a hearing request by pointing to stipulated extensions and a yet-to-be prepared record. (See County of Sacramento v. Superior Court (3d Dist. 2009) 180 Cal.App.4th 943, 952 [“…stipulation [to extend record preparation time] had nothing to do with whether [plaintiff] complied with its obligation to request a hearing within 90 days of filing its petition.”]; Fiorentino v. City of Fresno (5th Dist. 2007) 150 Cal.App.4th 596, 598, 601-605 [affirming order dismissing CEQA action where request for hearing filed one day late and before motion to dismiss; portion of opinion affirming denial of discretionary relief under CCP § 473 was unpublished]; compare also Nacimiento Regional Water Management Advisory Com. (1st Dist. 2004) 122 Cal.App.4th 961, 969 [“Plainly, the legislature’s carefully crafted plan for prompt resolution of CEQA litigation would be undermined by application of section 473(b)’s mandatory relief provision to dismissals entered for delay in prosecuting a CEQA action under section 21167.4(a).”].)

In any event, this case serves as a reminder to CEQA litigators that while inexcusable attorney error in failing to timely request a hearing in CEQA cases will never furnish a basis for either mandatory or discretionary relief under CCP §473, “excusable” attorney error – i.e., a clerical-type mistake not falling below the standard of professional care – may be a ground for relief in the trial court’s (or, apparently, the Court of Appeal’s) discretion. Also, CEQA plaintiffs’ attorneys should always use an electronic calendaring system in addition to their personal calendars – or, better yet, multiple back-up calendaring systems – to avoid creating this problem in the first place.

Written by:

Miller Starr Regalia

Miller Starr Regalia on:

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