Opinion
D072404
05-03-2018
ENDANGERED HABITATS LEAGUE, INC., Plaintiff and Appellant, v. CITY OF SAN MARCOS et al., Defendants and Respondents; FAROUK KUBBA et al., Real Parties in Interest and Respondents.
KEVIN K. JOHNSON, Jeanne L. MacKinnon and Kevin K. Johnson for Plaintiff and Appellant. LOUNSBERY FERGUSON ALTONA & PEAK, Helen Holmes Peak and Alena Shamos for Defendants and Respondents. GORDON & HOLMES, Frederic L. Gordon, Rhonda J. Holmes and Andrew G. Nagurney for Real Parties in Interest and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2017-00001434-CU-WM-NC) APPEAL from a judgment of the Superior Court of San Diego County, Ronald F. Frazier, Judge. Reversed and remanded. KEVIN K. JOHNSON, Jeanne L. MacKinnon and Kevin K. Johnson for Plaintiff and Appellant. LOUNSBERY FERGUSON ALTONA & PEAK, Helen Holmes Peak and Alena Shamos for Defendants and Respondents. GORDON & HOLMES, Frederic L. Gordon, Rhonda J. Holmes and Andrew G. Nagurney for Real Parties in Interest and Respondents.
Public Resources Code section 21167.4, subdivision (a), a provision of the California Environmental Quality Act (CEQA), provides: "In any action or proceeding alleging noncompliance with [CEQA], the petitioner shall request a hearing within 90 days from the date of 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." (§ 21167.4, subd. (a).) The primary purpose of section 21167.4 is to expedite CEQA litigation. Several appellate decisions have construed section 21167.4, subdivision (a) as requiring a written request for a hearing to serve the purposes of the statute. (See, e.g., Torrey Hills Community Coalition v. City of San Diego (2010) 186 Cal.App.4th 429, 439-442 (Torrey Hills); County of Sacramento v. Superior Court (2009) 180 Cal.App.4th 943, 948-952 (County of Sacramento).)
Further unspecified statutory references are to the Public Resources Code.
Endangered Habitats League, Inc. (EHL) is a nonprofit organization that filed a writ petition challenging City of San Marcos's approval of a proposed housing development by real parties in interest, Farouk Kubba and Vista San Marcos Limited (collectively, Kubba). Within 90 days of EHL's filing its petition, EHL orally requested a hearing from the court, provided written notice of its request to all parties, and filed and served a declaration that attested to the request for a hearing. However, EHL did not file a document entitled "request for a hearing." On Kubba's motion, the trial court dismissed the action based on the court's belief that it was foreclosed from applying the substantial compliance doctrine.
On appeal, EHL contends that its actions fulfilled the objectives of the statute and, thus, that it substantially complied with section 21167.4. We agree with EHL's contention and accordingly reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 13, 2017, EHL filed a verified petition for writ of mandate, alleging that it was a public interest corporation and that many of its members resided in San Diego County. Through its writ petition, EHL challenged City of San Marcos's approval of a housing development project, which Kubba had applied for and obtained. EHL alleged that the environmental impacts from the project had not been properly analyzed and that the City of San Marcos had failed to comply with CEQA. EHL elected to prepare the administrative record under section 21167.6, subdivision (b)(2). EHL had until April 13, or 90 days from January 13, to request a hearing on its writ petition.
Further dates occurred in 2017 unless otherwise specified.
Between February and March, Kubba served written discovery, requests for production of documents, and deposition notices on EHL, for the stated purpose of determining whether EHL had standing to bring the CEQA action and was properly acting as a corporation. Kubba also served deposition notices and requests for production of documents on several third parties. In response to the propounded discovery, EHL filed a motion to stay discovery and motions for protective orders. The court temporarily stayed discovery until the motions could be heard in April. In February, the parties also engaged in an unsuccessful settlement conference. EHL worked on preparing the administrative record, which would require the City of San Marcos's certification of accuracy.
On March 14, EHL sent all parties a proposed stipulation pertaining to various matters, including a deadline for preparation of the administrative record, a briefing schedule, and a hearing date on the writ petition. The proposed stipulation recited in an opening paragraph: "WHEREAS, all parties agree that by entering into this Stipulation, [EHL] has fully complied with its duty to request a hearing 90 days from the filing of this action under Public Resources Code section 21167.4 [subdivision] (a)[.]" The parties began negotiating some of the dates and points contained in the proposed stipulation.
On March 15, Kubba filed a "motion for order to show cause why the matter should not be dismissed" (capitalization omitted; motion for an OSC), arguing that EHL was a "sham plaintiff," that it had failed to participate in good faith in the settlement conference, and that it had unduly delayed in preparing the administrative record.
On March 16, EHL filed a first amended petition for writ of mandate. That same day, counsel for EHL received a call from the court's (Judge Frazier) research attorney regarding EHL's motion for a protective order. During the conversation, counsel informed the research attorney that he would be requesting a hearing on the writ petition. The research attorney indicated in response that EHL could reserve a hearing date. EHL's counsel told the research attorney that the parties were currently working on a proposed stipulation.
On March 29, EHL circulated to all parties a revised proposed stipulation, which contained the same language as the original proposed stipulation regarding EHL's compliance with section 21167.4. Kubba did not agree to the dates in the proposed stipulation. Consequently, counsel for EHL contacted Judge Frazier's calendar clerk and requested a hearing date of November 17, as well as a status conference to resolve the parties' disagreement over scheduling matters. After receiving the dates for the hearing and status conference from the calendar clerk, EHL's counsel e-mailed the parties, stating: "[P]lease be advised that the hearing on the Writ Petition has been set with the Court for November 17, 2017 and a status conference to resolve the briefing schedule has been set for April 28 at 10 a.m. Notice of the Status Conference will be sent out by the Court." The request for a hearing, and related e-mail notice of the request, occurred well within 90 days of the date on which the petition was filed.
On March 30, the court independently sent a "notice of hearing" to the parties, stating that a status conference was scheduled to be held on April 28 "to set br[ie]fing schedule for writ of mandate set for 11-17-17." Also on March 30, EHL filed and served an opposition to Kubba's motion for an OSC, supported by a memorandum of points and authorities and declarations of its counsel. The first page of each of these filed/served documents stated: "Trial date: November 17, 2017." EHL's counsel, Jeanne L. MacKinnon, attested in her declaration: "As the record preparation and extension terms of the proposed stipulation are at an impasse, on March 29, 2017, I contacted [Judge Frazier's department] and requested that the matter be set for hearing on the merits of the First Amended Petition on November 17, 2017[,] and that the Court set a status conference to address outstanding record preparation, scheduling and briefing issues on April 28, 2017." (Italics added.) Service of this declaration on respondents occurred well within 90 days of the filing of the petition.
The court and parties often referred to the hearing on EHL's writ petition as the "trial" or "trial date."
On April 7, EHL filed and served a reply in support of its motions for protective orders, which again noted the requested hearing date of November 17. This document was also served on respondents within 90 days of the filing of the petition.
On April 13, the court issued a tentative ruling on Kubba's motion for an OSC, denying the motion and stating as follows: "The parties should be prepared to discuss specific dates for when the record will be ready for certification by City and trial dates. The Court proposes a trial date of November 17, 2017 at 1:30 [p.m.] (moving papers due by September 15, opposition due by October 1, reply due by October 17[;] excerpts from the record should be submitted in conjunction with the reply papers)."
At the combined hearing on Kubba's motion for an OSC and EHL's motions for protective orders on April 14, the court and parties discussed scheduling issues. Counsel for Kubba reported that Kubba intended to file a dispositive motion based on EHL's "fail[ure] to follow a statutory scheme," i.e., to file and serve a written request for a hearing, and that she was comfortable discussing scheduling matters only if Kubba's objection to any selection of dates was preserved. With the court's assurance that Kubba's objection was preserved, counsel provided Kubba's scheduling preferences, which were, in essence, that the trial take place as soon as possible. Kubba's counsel also stated that the writ petition was "supposed to get to trial within 210 [days]" of being filed. After considering the parties' comments and arguments, the court moved up the hearing on the writ petition to November 3, with briefing to be completed by October 6.
On April 27, Kubba filed a motion to dismiss the action under section 21167.4, based on EHL's failure to file and serve a written request for a hearing within 90 days of the date that it filed its petition (i.e., by April 13). In its order granting Kubba's motion to dismiss, the trial court expressed its belief that it was required to dismiss the case, under the holdings of County of Sacramento and Torrey Hills, but stated that it would otherwise have been inclined to deny the motion to dismiss and "to find that [EHL] substantially complied with [section] 21167.4[.]" The court explained why EHL had fulfilled the objectives of the statute and summarized its view, stating: "By all accounts, and in this [c]ourt's opinion, [EHL] has taken affirmative steps to move this case forward in an expeditious manner with notice and participation from all parties as contemplated by Public Resources Code [section] 21167.4." The court entered judgment in respondents' favor. EHL filed a timely appeal.
On appeal, respondents City of San Marcos and City Council of the City of San Marcos (collectively, City) filed a notice of joinder and joinder to Kubba's brief. EHL moved to strike the City's joinder on the ground that the City waived its right to oppose EHL's appeal by not joining Kubba's motion to dismiss before the trial court. The City filed an opposition to EHL's motion to strike. Having considered the parties' arguments, EHL's motion to strike the City's notice of joinder and joinder is denied. (Cal. Rules of Court, rule 8.200(a)(2) & (5).)
DISCUSSION
I. Standard of review
"We independently review an order granting a motion to dismiss a petition for writ of mandate." (Torrey Hills, supra, 186 Cal.App.4th at p. 434.) II. Background of CEQA and section 21167 .4
"CEQA requires assessment of the environmental consequences of activities approved or carried out by public agencies. [Citations.] Allegations that the public agency failed in its duty to make an adequate environmental assessment must be expeditiously resolved, and CEQA contains a number of procedural provisions evidencing legislative intent that the public interest is not served unless CEQA challenges are promptly filed and diligently prosecuted. [Citation.] For example, CEQA sets short statutes of limitations of only 30 to 180 days in length, requires a settlement conference within 45 days of service of the petition, and grants trial preference over all other civil actions. [Citations.] 'Patently, there is legislative concern that CEQA challenges, with their obvious potential for financial prejudice and disruption, must not be permitted to drag on to the potential serious injury of the real party in interest.' " (Nacimiento Regional Water Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 965 (Nacimiento).)
"Section 21167.4[, subdivision] (a), at issue in this case, is among the procedural provisions designed to expedite CEQA litigation." (Nacimiento, supra, 122 Cal.App.4th at p. 965.)
Section 21167.4 states in relevant part:
"(a) In any action or proceeding alleging noncompliance with this division, the petitioner shall request a hearing within 90 days from the date of 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.
"(b) The petitioner shall serve a notice of the request for a hearing on all parties at the time that the petitioner files the request for a hearing.
"(c) Upon the filing of a request by the petitioner for a hearing and upon application by any party, the court shall establish a briefing schedule and a hearing date. In the absence of good cause, briefing shall be completed within 90 days from the date that the request for a hearing is filed, and the hearing, to the extent feasible, shall be held within 30 days thereafter. Good cause may include, but shall not be limited to, the conduct of discovery, determination of the completeness of the record of proceedings, the complexity of the issues, and the length of the record of proceedings and the timeliness of its production. The parties may stipulate to a briefing schedule or hearing date that differs from the schedule set forth in this subdivision if the stipulation is approved by the court."
In County of Sacramento, supra, 180 Cal.App.4th 943, the court was "called on to determine whether a request for a hearing in an action alleging noncompliance with . . . CEQA . . . must be made in a writing filed with the court to avoid dismissal under section 21167.4, subdivision (a) for failure to 'request a hearing' within 90 days of the filing of the petition." (Id. at pp. 945-946.) In that case, the petitioner "telephoned the court clerk . . . and reserved a hearing on the merits" of the writ petition within the 90-day deadline, but did not give notice of the request to the respondent within the 90-day time frame. (Id. at pp. 947-948.) The respondent did not learn that petitioner had requested a hearing until at least one month after the request was made. (Id. at pp. 946-948.) The court analyzed section 21167.4 and determined that the request for a hearing under subdivision (a) of the statute is required to be in writing and filed with the court, thereby triggering subdivisions (b) and (c) of the statute. (County of Sacramento, at pp. 949-950.)
Similarly, in Torrey Hills, supra, 186 Cal.App.4th 429, the petitioner telephoned the court clerk to obtain a hearing date for the writ petition within 90 days of filing the petition, but did not give notice of its request to any other parties within the 90-day period. (Id. at pp. 434, 439-440.) The court noted that "an oral request for hearing does not serve the purposes of section 21167.4. After the petitioner serves and files a written request, any party may request a briefing schedule and hearing date. (§ 21167.4, subd. (c).) An oral request of which the opposing party has no notice defeats that purpose. Torrey Hills was required to file a written request for a hearing." (Torrey Hills, at pp. 440-441, italics added.) III. EHL's actions substantially complied with section 21167 .4
EHL contends that its actions satisfied the objectives of section 21167.4 and that it thus substantially complied with the statute. Kubba, joined by the City, effectively conceded in its brief that the substantial compliance doctrine could apply to section 21167.4, but argued that EHL's actions did not constitute substantial compliance with the statute. At oral argument, respondents changed their position and indicated that the substantial compliance doctrine could not apply to section 21167.4. However, they have not cited any case, and our independent research has not uncovered a case, that precludes application of the doctrine to section 21167.4.
To the extent that EHL maintains that it literally complied with section 21167.4, we disagree. As we have noted and as the trial court found, EHL did not file a written "request for a hearing" within 90 days from the date of its writ petition. Although subdivision (a) of section 21167.4 does not specify that the request for a hearing must be in writing, subdivisions (b) and (c) of section 21167.4 refer to a "filed" request, and courts have accordingly construed subdivision (a) as requiring a written request. (E.g., Torrey Hills, supra, 186 Cal.App.4th at p. 441.)
" ' "Substantial compliance, as the phrase is used in the decisions, means actual compliance in respect to the substance essential to every reasonable objective of the statute." [Citation.] Where there is compliance as to all matters of substance technical deviations are not to be given the stature of noncompliance. [Citation.] Substance prevails over form. When the plaintiff embarks [on a course of substantial compliance], every reasonable objective of [the statute at issue] has been satisfied.' " (Cal-Air Conditioning, Inc. v. Auburn Union School District (1993) 21 Cal.App.4th 655, 668.)
"Unless the intent of the statute can only be served by demanding strict compliance with its terms, substantial compliance is the governing test." (Downtown Palo Alto Committee for Fair Assessment v. City Council of Palo Alto (1986) 180 Cal.App.3d 384, 394.) Even when a statute uses "mandatory" terms, substantial compliance with statutory directives will suffice if the purpose of the statute is thereby satisfied. (Id. at p. 395.) "The paramount consideration is the objective of the statute." (Ibid.; see Hanf v. Sunnyview Development, Inc. (1982) 128 Cal.App.3d 909, 915 [collecting numerous cases applying substantial compliance doctrine to various statutes].)
The objective of section 21167.4 is "to promote prompt resolution of CEQA matters" (Nacimiento, supra, 122 Cal.App.4th at p. 966) and to provide for "judicial oversight and involvement in the scheduling process" (Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, 1522 (Leavitt)). The statute contemplates that filing a written request for a hearing provides timely notice of the request to the opposing parties and enables the court to establish an expedited briefing schedule and hearing date. (§ 21167.4; Torrey Hills, supra, 186 Cal.App.4th at pp. 440-441; County of Sacramento, supra, 180 Cal.App.4th at p. 951 ["all (petitioner) had to do was 'request a hearing' and serve notice of that request"].) In County of Sacramento, at page 951, and Torrey Hills, at pages 440-441, the courts' construction of section 21167.4 to require a written request for a hearing supported the statutory objective because the respondents in those cases otherwise were provided no notice of the petitioners' oral requests for hearing and, therefore, had no opportunity to apply for a hearing date and briefing schedule under subdivision (c) of the statute. We do not disagree with County of Sacramento and Torrey Hills that the statute contemplates a written request for a hearing. However, those cases are readily distinguishable from the present case and did not involve any issue of substantial compliance.
In this case, EHL sent an e-mail to respondents on March 29—the same day it requested a hearing—notifying respondents of the requested hearing date and the date for a status conference to discuss a briefing schedule. The following day, EHL served on respondents an opposition to Kubba's motion for an OSC, supported by a memorandum of points and authorities and declarations of its counsel. The documents all indicated that the "trial date" had been set for November 17, 2017. In addition, EHL's counsel attested in her declaration that she had contacted the court to request a hearing on the petition, that the court had set a hearing for November 17, and that the court had also set a status conference to address outstanding issues on April 28. On April 7, EHL filed and served a reply in support of its motions for protective orders, which again noted the requested hearing date of November 17. The e-mail and filed documents were all sent or served, and received by respondents, within the statutory 90-day period.
While EHL admittedly did not file a document entitled "request for a hearing," it did request a hearing within 90 days from the filing of the petition, as the statute requires, and provided written notice to respondents of the request well within the statutory time frame. In County of Sacramento and Torrey Hills, the statutory objectives were not met because respondents received no notice of the requests for hearing and proceedings were delayed as a result. Those decisions do not foreclose application of the substantial compliance doctrine in an appropriate circumstance where, as here, respondents were clearly provided notice of EHL's request for a hearing within the statutory 90-day period and were in fact heard on the scheduling issues.
Moreover, no court has held that section 21167.4 is jurisdictional in nature. To the contrary, various courts have held that discretionary, equitable relief from dismissal is available if a litigant has failed to strictly comply with section 21167.4. (E.g., Comunidad En Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1132-1135 [relief from dismissal for failure to make timely written hearing request is available under Code Civ. Proc., § 473 based on an excusable mistake]; Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1136-1137 [same].) The "subject to dismissal" language contained in section 21167.4, subdivision (a), appears designed to expedite judicial review of CEQA cases while allowing for equitable relief under limited circumstances. (E.g., Comunidad En Accion, at p. 1132; compare § 21167.4, subd. (a) with Code Civ. Proc., § 583.250 [action "shall be dismissed" for failure to make timely service of summons].)
Further, subdivision (a) of section 21167.4, which contains the dismissal language, does not specify that the request for a hearing must be in writing. (County of Sacramento, supra, 180 Cal.App.4th at pp. 949-950.) Rather, subdivision (a) requires only that a request for a hearing be made within 90 days from the filing of the petition:
"(a) In any action or proceeding alleging noncompliance with this division, the petitioner shall request a hearing within 90 days from the date of 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." (§ 21167.4, subd. (a).)The requirement of a written request for a hearing is discerned only after employing "principles of statutory interpretation" and reading the statute "as a whole." (County of Sacramento, supra, 180 Cal.App.4th at pp. 949-950.) Section 21167.4, subdivision (a) thus cannot reasonably be construed as constituting a clear and unambiguous statutory mandate that would require strict compliance. Accordingly, section 21167.4 is amenable to application of the substantial compliance doctrine.
"Substantial compliance with a statute 'will suffice if the purpose of the statute is satisfied [citation] but substantial compliance means actual compliance in respect to that statutory purpose.' " (Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 384.) In this case, EHL's actions complied in substance with every reasonable objective of section 21167.4. (Cf. Torrey Hills, supra, 186 Cal.App.4th at pp. 440-441 [requiring written request for a hearing because otherwise opposing party had no notice that it may request a briefing schedule and hearing date].) Although EHL did not file a document entitled "request for a hearing," the multiple written documents provided to respondents (a number of which were filed with the court)—all within the requisite 90-day period—can be construed as the functional equivalent of a written request for a hearing. Thus, the purpose of filing a written request for a hearing within 90 days of the filing of the petition—i.e., to provide notice to the other parties of the request—was clearly met.
Further, section 21167.4 operated as intended in this case, and respondents have not demonstrated that they were prejudiced by the lack of a filed document entitled "request for a hearing." EHL's actions did not, as respondents claim, prevent the court from setting, or preclude respondents from requesting, an earlier or different hearing date. Respondents received timely notice of EHL's request for a hearing. Upon receiving EHL's request, the trial court set a status conference to discuss scheduling matters, including the propriety of the reserved hearing date. Given that the trial court immediately set a status conference to discuss scheduling, nothing prevented respondents from taking any actions necessary to protect their interests, including applying for an earlier hearing date and/or objecting to EHL's requested hearing date. In fact, they did just that. In response to the objections and comments of Kubba's counsel, the court set an earlier hearing date than the date EHL had requested.
Respondents' contention that EHL's failure to file a written request for a hearing enabled EHL to obtain a "greatly delayed" hearing date is entirely belied by the record. Our independent review of the record reveals that the court endeavored to set an earlier hearing date; however, given the ongoing discovery disputes, motion practice, need for a complete record, and scheduling conflicts, the court implicitly found good cause to set a briefing schedule and hearing that would be completed more than 90 days from the date of EHL's request. "Good cause may include, but shall not be limited to, the conduct of discovery, determination of the completeness of the record of proceedings, the complexity of the issues, and the length of the record of proceedings and the timeliness of its production." (§ 21167.4, subd. (c).) Respondents do not explain how EHL's filing of a document entitled "request for a hearing" would have served some statutory objective or purpose that was not fulfilled in this case.
The trial court made clear findings that support our conclusion that EHL substantially complied with section 21167.4. The court noted that EHL took "affirmative steps to move this case forward in an expeditious manner with notice and participation from all parties as contemplated by [section] 21167.4," including requesting a hearing well within 90 days of the filing of the petition and notifying respondents of this request and, thus, substantially complied with section 21167.4. The record supports the court's findings; EHL did not merely make an oral request for a hearing. EHL e-mailed, and also served and filed various documents, that functioned as the equivalent of a written request for a hearing before the 90-day period expired, such that respondents had actual notice of the request for a hearing before the expiration of the 90-day period.
For the foregoing reasons, we conclude that EHL substantially complied with section 21167.4. Our decision comports with "this state's long-standing judicial policy that strongly favors determination of disputed issues on the merits." (Nasir v. Sacramento County Office of the District Attorney (1992) 11 Cal.App.4th 976, 986.) The action was therefore not subject to dismissal.
Although the particular facts of this case support application of the substantial compliance doctrine, we caution counsel that failure to timely file and serve a written "request for a hearing" will ordinarily result in dismissal of the action. --------
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.
AARON, J. WE CONCUR: O'ROURKE, Acting P. J. GUERRERO, J.