Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. N-06-0770
Pollak, Acting P. J.
Plaintiff Friends of Garrity Creek (Friends) appeals from a judgment of dismissal of its first amended petition for writ of mandate and complaint for declaratory relief under the California Environmental Quality Act, Public Resources Code section 21000 et seq. (CEQA). The court dismissed the action after sustaining without leave to amend a demurrer filed jointly by defendants County of Contra Costa and the Board of Supervisors of Contra Costa County (the County) and real party in interest Brilliant Management, LLC (sometimes Brilliant) on the ground that Friends failed to name Brilliant as the real party in interest until after the applicable 30-day statute of limitations had expired. Friends contends that the trial court erred because the amendment naming Brilliant as a real party in interest related back to the original complaint which named as real parties in interest Siavash Afshar, the owner of Brilliant, as well as a number of fictitious Does. We agree and reverse.
Factual and Procedural Background
On April 11, 2006, after preparation and consideration of an environmental impact report, the County approved a permit and subdivision map authorizing a 35-unit housing development on property identified as part of the Garrity Creek watershed. The permit identifies the applicant for the project as follows:
Siavash Afshar
Brilliant Management
114 Camino Pablo
Orinda, CA 94583
The second page of the permit includes the caption: “Conditions of approval for subdivision 018533 in the El Sobrante area (Siavash Afshar - Applicant & Owner) per Board of Supervisors April 11, 2006 approval.” On April 14, 2006, the County filed a notice of determination pursuant to Public Resource Code section 21152, subdivision (c), approving the project.
Friends, a group of interested citizens that had participated in the environmental review process and hearings before the various county boards, has argued throughout the proceedings that the County should consider a lower density development plan. Accordingly, on May 15, 2006, Friends timely filed a verified petition for writ of mandate and complaint for declaratory relief (the complaint), alleging that in approving the project the County had failed to comply with CEQA. The complaint names Siavash Afshar as the real party in interest and alleges that Afshar “is an individual applicant for [the project], and owner of Brilliant Management Company located at 114 Camino Pablo in Orinda, California.”
May 14, 2006 was a Sunday so that the 30-day period for filing the complaint was extended to May 15. (Code Civ. Proc., § 12.)
On June 7, following service of the complaint on Afshar, Afshar’s attorney Joshua Safran contacted Friends’s attorney, Michael Graf, to advise him that Brilliant rather than Afshar was the property owner and applicant for the project. Safran also explained that “in addition to being an improper party, Mr. Afshar has and will continue to suffer certain hardships by being named improperly as a defendant in a civil action.” The attorneys agreed that Friends would amend its complaint to dismiss Afshar and name Brilliant as the real party in interest. According to Afshar’s attorney, he also explained that the amended complaint needed to be filed “no later that June 16, 2006, because otherwise we would run up against the 30-day response date by when we would have to file a motion to dismiss or a demurrer.” Safran asserts he gave plaintiff 10 days to correct the improper pleading. Graf denies that he was given a deadline by which to file the amendment. He claims that he told Safran he “was happy to substitute in Brilliant Management LLC as the real party defendant for Mr. Afshar, and that [he] was also happy to give [Safran] an extension to avoid [his] client having to file an answer before the 30-day due date.”
In any event, on June 19, as the time for responding to the original complaint was about to expire and an amended complaint had not yet been filed, the County and Afshar filed a demurrer on the ground that Friends had not named the proper real party in interest. Two days later, Friends filed an amended complaint deleting Afshar and naming Brilliant as the real party in interest. The amended complaint alleges that Brilliant “is a California Limited Liability Company and owner of the subject parcel and applicant for [the project]. Real party’s address is 114 Camino Pablo in Orinda, California.”
On July 24, the County and Brilliant jointly demurred to the amended complaint on the ground that it was time barred because Brilliant had not been named as the real party in interest before expiration of the 30-day limitations period. Friends responded that it had properly and timely named Afshar in the original complaint and had merely substituted Brilliant at the request of Afshar’s attorney. It argued secondarily that it was entitled to substitute Brilliant for a fictitious party under section 474 because it was justifiably ignorant of the fact that Brilliant was the real party in interest.
The trial court sustained the demurrer without leave to amend. The court explained, “It is undisputed that petitioner failed to name Brilliant Management, LLC, as a real party in interest in the original petition. As a ‘recipient of an approval’ challenged under CEQA, the naming of Brilliant was mandatory. [Citation.] [¶] Brilliant Management, LLC, is a California Limited Liability Company . . . . [Citation.] As a matter of law, Mr. Afshar’s position as the managing member of Brilliant does not render Brilliant an alternative or fictitious name for Mr. Afshar. The approved permit issued by the County on April 11, 2006 lists both Mr. Afshar and Brilliant Management. Therefore, the petitioner was not ignorant of the developer’s true name, and it cannot take advantage of section 474 to avoid the statute of limitations as to Brilliant.” The trial court’s order and judgment of dismissal was entered on September 18, 2006. Plaintiff filed a timely notice of appeal.
After the demurrer was sustained, Friends filed a motion for relief under section 473, subdivision (b), seeking to set aside the court’s ruling on the demurrer based on counsel’s excusable mistake of fact. The court denied the motion on the ground that section 473 may not be applied to circumvent the statute of limitations. The court added, “Even if relief were available . . ., this court finds that the failure to sue Brilliant Management LLC in a timely manner was not excusable neglect. Plaintiff was advised that it had named the wrong party, yet was given until June 16, 2006, to name and serve Brilliant Management LLC ‘without prejudice.’ The failure to name and serve Brilliant until June 21 is inexcusable in light of the strict statute of limitations for CEQA petitions.” While the notice of appeal also challenges the denial of the section 473 motion for relief, we do not reach this issue in light of our conclusion that the demurrer was improperly sustained without leave to amend.
Discussion
When a public agency approves a project subject to CEQA, it is required to file a brief notice, called a notice of determination. (Cal. Admin. Code, tit. 14, § 15035; El Dorado Union High School Dist. v. City of Placerville (1983) 144 Cal.App.3d 123, 129.) “The filing of the notice of determination begins a 30-day statute of limitations on court challenges to approval of the project under CEQA.” (El Dorado Union High School Dist. v. City of Placerville, supra, at p. 129; Pub. Resources Code, § 21167, subd. (c).) Under Public Resources Code section 21167.6.5, subdivision (a), a plaintiff in an action challenging a public agency’s approval of a project under CEQA must name as a real party in interest “any recipient of an approval” within the 30-day limitations period. (Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 502.) The failure to name the recipient of an approved permit as a real party in interest within the limitations period may require dismissal if the missing person is found to be indispensable under section 389. (County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 31-32.)
Here, the trial court concluded that the action was time-barred because Brilliant is an indispensable party and was not named as a real party in interest prior to the expiration of the 30-day limitations period. The manner in which Friends amended its original complaint, deleting Afshar as a party, precludes acceptance of its principal arguments as to why the trial court erred. However, there is merit in its alternative argument that the amended complaint naming Brilliant as the real party in interest indicates that Brilliant may be substituted for a fictitious party pursuant to section 474, in which case the relation-back doctrine will deem the amended complaint filed as of the date on which the original complaint was filed. While Friends acknowledges that the proper procedure for substituting a fictitious party was not followed, the procedural error is easily curable by amendment. Therefore, it was an abuse of discretion for the trial court to sustain the demurrer without leave to amend. “ ‘It is axiomatic that if there is a reasonable possibility that a defect in the complaint can be cured by amendment or that the pleading liberally construed can state a cause of action, a demurrer should not be sustained without leave to amend.’ ” (Streicher v. Tommy’s Electric Co. (1985) 164 Cal.App.3d 876, 884-885; Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176-177.)
Friends argues at length that Afshar was properly named as the real party in interest in the original complaint and that Brilliant was not indispensable. However, Afshar was dismissed from the action when his name was omitted from the amended complaint. The statute of limitations having expired, he cannot be renamed. (Troche v. Daley (1990) 217 Cal.App.3d 403, 412 [If a defendant is named in a complaint but is subsequently dismissed, it is as though no action had been filed against him. An amended complaint that renames the defendant does not relate back to the date of the original complaint for purposes of the applicable limitations period].) Thus, even if Afshar was properly named in the original complaint, that fact was of no consequence in considering the sufficiency of the amended complaint. Friends challenges the trial court’s statement that “[a]s a ‘recipient of an approval’ challenged under CEQA, the naming of Brilliant was mandatory,” arguing that even if Brilliant was the recipient of the approval, it was not an indispensable party because Afshar adequately represented Brilliant’s interests. (See Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 161 [owner not an indispensable party because the developer had been joined and had “ably argued” on behalf of the owner’s interests].) This argument too was no longer viable after Afshar had been dismissed from the action.
“The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. [Citation.] A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. [Citation.] If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Woo v. Superior Court, supra, 75 Cal.App.4th at p. 176.) There are two requirements for application of the relation-back doctrine under section 474: (1) the procedural requirement that the new defendant must be substituted for an existing fictitious Doe defendant; and (2) the substantive requirement that the plaintiff must be “genuinely ignorant” of the new defendant’s identity at the time the original complaint was filed. (Id. at pp. 176-177.) The relevant inquiry as to whether the plaintiff was “genuinely ignorant” of the new party’s identity is what facts the plaintiff actually knew at the time the original complaint was filed, not whether plaintiff might by the use of reasonable diligence have discovered the facts. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170; McOwen v. Grossman (2007) 153 Cal.App.4th 937, 942.) Moreover, “[i]n keeping with th[e] liberal interpretation of section 474, it is now well established that even though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though the plaintiff knows the defendant’s actual identity (that is, his name), the plaintiff is ‘ignorant’ within the meaning of the statute if he lacks knowledge of that person’s connection with the case or with his injuries.” (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593-594.) On appeal, “ ‘[w]e review the trial court’s findings of fact to determine whether they are supported by substantial evidence. [Citation.] To the extent the trial court drew conclusions of law based upon its findings of fact, we review those conclusions of law de novo.’ ” (Balon v. Drost (1993) 20 Cal.App.4th 483, 487.)
Here, while it is undisputed that plaintiff knew of “Brilliant Management,” it does not appear that it had actual knowledge that Brilliant Management, LLC, rather than Afshar, was the property owner and applicant for the project. The original complaint alleged that Afshar was the applicant for the project and owner of Brilliant Management Company. Plaintiff asserts that it relied on County documents in determining the name of the real party in interest. This assertion is supported by the permit issued by the County which identifies the applicant and owner as Siavash Afshar. In addition, the request for an environmental impact report, the agenda for the hearing on the permit before the Board of Supervisors and numerous other documents prepared by the County include the same statement that Afshar alone is the “applicant & owner” for the project. It was not until July 18, 2006, that the County issued a corrected permit replacing Afshar’s name as the property owner and applicant with the name, “Brilliant Management, LLC.”
The inclusion of “Brilliant Management” under Afshar’s name on the permit does not support the finding that Friends knew that Brilliant Management, LLC and not Afshar was the owner. There were no words or abbreviations indicating that Afshar was not acting on his own behalf, nor was there any indication that Brilliant Management was a limited liability company. For all that appeared, Brilliant Management was a fictitious name used by Afshar or simply part of the address to which communications to Afshar should be sent. The multiple references in the public record to “Siavash Afshar- Applicant & Owner” were further confirmation of the apparent fact that Afshar alone was the owner and applicant for the project. Thus, there was no basis for the trial court to reject Friends’s claim of actual ignorance that a limited liability company named “Brilliant Management, LLC” was the true owner and applicant for the project.
“The requirement of good faith ignorance of the true name of a fictitiously designated defendant is directed at preventing an abuse of the statute, primarily by requiring those whose names and connection with the cause of action are known to be named and served in order that they may properly prepare their defenses.” (Motor City Sales v. Superior Court (1973) 31 Cal.App.3d 342, 346.) Friends made a good faith and reasonable attempt to name the proper real party in interest based on the County’s documents available at the time the complaint was filed. Amendment under section 474 is appropriate based on the subsequently available information that Brilliant rather than Afshar is in fact the real party in interest.
Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, relied on by Brilliant and the court, is distinguishable. In that case, the court held that plaintiffs could not take advantage of section 474 because the record included copies of minutes of city council meetings disclosing a developer’s identity and demonstrating that the plaintiffs were not ignorant of the developer’s true name. (Id. at pp. 1189-1190.) The complaint in that case named only the city and fictitious parties as defendants. (Id. at p. 1185.) Although the plaintiffs knew the identity of the developer and its connection to the case, they did not name it as a real party in interest because the developer “had not concluded an agreement to acquire the site when zoning for the project was approved. In the absence of such an agreement, they characterize [the developer] as a ‘mere speculator’ with no ‘vested rights’ in the project.” (Id. at p. 1189.) Thus, there was no misunderstanding or confusion regarding the true identity of the project applicant in that case. In contrast, in the present case Friends believed, consistent with many County documents, that Afshar was the owner and applicant for the project and was ignorant of Brilliant’s status. Accordingly, the trial court erred in sustaining the demurrer without leave to amend to properly substitute Brilliant for a Doe fictitiously named in the complaint.
Disposition
The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion. Friends shall recover its costs on appeal.
We concur: Siggins, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
All statutory references are to the Code of Civil Procedure unless otherwise noted.