Opinion
2d Civ. No. B283846
05-03-2021
CALIFORNIA WATER IMPACT NETWORK, Petitioner and Appellant, v. COUNTY OF SAN LUIS OBISPO et al., Respondents, JUSTIN VINEYARDS AND WINERY, LLC et al., Parties in Interest and Respondents.
M.R. Wolfe & Associates and Mark R. Wolfe; Law Offices of Babak Naficy and Babak Naficy, for Petitioner and Appellant. Rita L. Neal, Timothy McNulty and Erica A. Stuckey, County Counsel, for Respondents County of San Luis Obispo, et al. Roll Law Group, Courtney Vaudreuil, for Real Party in Interest and Respondent Justin Vineyards and Winery, LLC. Stoel Rives, Timothy M. Taylor and Allison C. Smith, for Real Party in Interest and Respondent Lapis Land Company, LLC. Adamski Moroski Madden Cumberland & Green, Thomas D. Green and Michelle L. Gearhart, for Real Parties in Interest and Respondents Paso Robles Vineyards, Inc. and Moondance Partners, LP.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CVP-0195)
(San Luis Obispo County) OPINION FOLLOWING TRANSFER FROM SUPREME COURT
This matter has been transferred to us from the California Supreme Court for reconsideration in light of Protecting Our Water & Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479 (Protecting Our Water). We previously affirmed the trial court's determination that San Luis Obispo County's issuance of four well construction permits under chapter 8.40 of the San Luis Obispo County Code qualifies as a ministerial action and is, therefore, exempt from California Environmental Quality Act (CEQA) review. (See Pub. Resources Code, § 21000 et seq.)
Protecting Our Water held that the "blanket classification of . . . these [well] permit issuances as ministerial is unlawful." (Protecting Our Water, supra, 10 Cal.5th at p. 487.) The Court determined that at least one of the applicable standards for well construction permits - Standard 8.A of California Department of Water Resources Bulletin No. 74 - confers discretionary authority on the county in at least some instances. (Protecting Our Water, at pp. 496-499.)
The Supreme Court noted that two other standards (Standards 8.B and 8.C) also may have discretionary elements and directed the Court of Appeal for the Fifth Appellate District to consider the issue on remand. (Protecting Our Water, supra, 10 Cal.5th at pp. 500-502.) The Court of Appeal addressed that issue in an unpublished opinion. (Protecting Our Water & Environmental Resources v. County of Stanislaus (Mar. 8, 2021, F073634) [nonpub. opn.].) [Note to Panel: The Fifth District (Justice Poochigian) concluded these two standards do have discretionary elements.]
Here, the trial court sustained the demurrers to California Water Impact Network's second amended petition for writ of mandate without leave to amend. This decision, and our subsequent affirmance, were based on the erroneous premise that the issuance of well construction permits is ministerial. (See Protecting Our Water, supra, 10 Cal.5th at p. 487.)
California Water Impact Network asks us to remand the matter to the trial court for further proceedings in light of Protecting Our Water. The County of San Luis Obispo, Lapis Land Company, LLC and Justin Vineyards and Winery, LLC request that we affirm the judgment because the record confirms that even though the issuance of a well construction permit may be discretionary in some instances, no such discretion was exercised in approving the permits at issue in this case.
As a general rule, a plaintiff should be given leave to amend if there is a reasonable possibility a pleading defect can be cured by amendment. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) This is true even if the matter is on appeal. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746 ["The issue of leave to amend is always open on appeal"]; Foster v. Sexton (2021) 61 Cal.App.5th 998, 1025 [same].)
The trial court denied leave to amend because it determined the standards for issuing a well construction permit are ministerial, with no discretion to address environmental concerns. Now that the Supreme Court has clarified that such discretion may be present, California Water Impact Network should be afforded an opportunity to amend its petition. This will allow the parties and the trial court to develop a record specifically addressing Protecting Our Water.
Respondents and real parties' motion for judicial notice and to augment the record on appeal filed on February 9, 2021, is denied. --------
The judgment is reversed and the matter is remanded with directions to permit California Water Impact Network to file an amended petition for writ of mandate should it choose to do so. In the interests of justice, the parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P. J.
TANGEMAN, J.
Barry T. LaBarbera, Judge
Superior Court County of San Luis Obispo
M.R. Wolfe & Associates and Mark R. Wolfe; Law Offices of Babak Naficy and Babak Naficy, for Petitioner and Appellant.
Rita L. Neal, Timothy McNulty and Erica A. Stuckey, County Counsel, for Respondents County of San Luis Obispo, et al.
Roll Law Group, Courtney Vaudreuil, for Real Party in Interest and Respondent Justin Vineyards and Winery, LLC.
Stoel Rives, Timothy M. Taylor and Allison C. Smith, for Real Party in Interest and Respondent Lapis Land Company, LLC.
Adamski Moroski Madden Cumberland & Green, Thomas D. Green and Michelle L. Gearhart, for Real Parties in Interest and Respondents Paso Robles Vineyards, Inc. and Moondance Partners, LP.