Second District Court of Appeal finds Failure to Request a CEQA Hearing within 90 Days is Excusable Neglect

by Stoel Rives LLP

The Second District Court of Appeal has issued a decision in Comunidad en Accion v. Los Angeles City Council (case no. B240554 (Sept. 20, 2013), finding that the petitioner’s failure to timely request a hearing under the California Environmental Quality Act (“CEQA”) was excusable neglect.  The Court of Appeal reversed the trial court’s ruling dismissing the petitioner’s suit on this basis.[1]

Comunidad en Accion challenged the City of Los Angeles’ approval of new and expanded solid waste facilities at the Bradley Landfill in Sun Valley, where the real party in interest, Waste Management, proposed building a new solid waste transfer station and expanded recycling and green waste processing facilities. Comunidad failed to comply with Public Resources Code section 21167.4 by filing a request for a hearing within 90 days of filing the lawsuit, however, and Waste Management filed a motion to dismiss on this basis shortly after the 90-day deadline ran. 

The trial court granted the motion to dismiss Comunidad’s CEQA claims and denied its request for relief under Code of Civil Procedure section 473, which permits relief from dismissal due to mistake, inadvertence, surprise, or excusable neglect.  Comunidad’s attorney averred that he had inadvertently omitted the 90-day hearing request from his personal calendaring system and that this mistake was compounded when he was out of state for two weeks prior to the deadline due to family illness.  The trial court distinguished case precedent that found a calendaring error warranted discretionary relief under section 473, concluding that calendar shortcomings in the age of electronic litigation calendars, was not excusable neglect. 

Upon review, the Court of Appeal reversed, finding that the trial court abused its discretion in denying Comunidad relief.

[1] In addition to the CEQA claims, Comunidad challenged the siting of the waste facilities under state antidiscrimination laws.  On this issue, the Court of Appeal affirmed the trial court’s summary judgment in favor of the City.

The Court noted that CEQA does not bar relief from a dismissal under Code of Civil Procedure section 473.  In fact, relief has been granted in CEQA cases in which the attorney requested a hearing on preliminary matters, but not on the petition for writ of mandate (Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 118, 1136-37), and where an attorney requested a hearing, but not a specific hearing date (McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 363).  Although the Court reasoned that relief cannot be granted for conduct falling below the professional standard of care, where the mistake is excusable and the party seeking relief is diligent in bringing that motion before the court, relief may be granted if there is no prejudice to the opposing party. 

The Court of Appeal found that Comunidad quickly requested relief and the City would suffer no prejudice from a one week delay with respect to the request for hearing.  Among other factors, it was noted that the City was still preparing the administrative record at the time Comunidad requested the hearing, so the case was not yet ready to proceed.  The Court discussed several cases in which relief was not given for a calendaring error, but noted that this precedent did not stand for the proposition that a calendaring error could never be the basis for excusable neglect.  The Court of Appeal reasoned that counsel’s failure to enter a date on his calendar was an isolated mistake, and in that regard, it was indistinguishable from others for which courts have regularly granted relief.

In deciding the case, the Court did not touch on two decisions in which CEQA claims were dismissed, based, at least in part, on the petitioner’s failure to request a hearing within 90 days of filing suit.  See County of Sacramento v. Superior Court ((2009) 180 Cal.App.4th 943 (dismissing a CEQA lawsuit when the petitioner orally requested a hearing within 90 days of filing suit, but did not file a request for hearing); Torrey Hills Community Coalition v. City of San Diego (2010) 186 Cal.App.429 (same).  In neither case did petitioners claim excusable neglect under Code of Civil Procedure section 473. 

While the so-called 90-Day Rule still lingers overhead as an executioner’s sword for unwary CEQA counsel, Comunidad en Accion provides the possibility of relief where extenuating circumstances exist to excuse the actions (or inactions) of petitioner’s counsel. 

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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