Opinion
Page 74e
168 Cal.App.4th 74e __ Cal.Rptr.3d__ MT. HOLYOKE HOMES, LP, et al., Plaintiffs and Respondents, v. CALIFORNIA COASTAL COMMISSION, Defendant and Appellant BARBARA SCHELBERT, Real Party in Interest and Appellant. B201517 California Court of Appeal, Second District, Seventh Division November 12, 2008Los Angeles County Super. Ct. No. BS084800
THE COURTIt is ordered that the opinion filed herein on October 21, 2008, (167 Cal.App.4th 830; __Cal.Rptr.3d__), upon denial of rehearing. be modified as follows:
1. On page 12 [167 Cal.App.4th 841, advance report, at the end of the 1st, at the end of the first full paragraph, after the sentence ending “Commission acted in excess of jurisdiction.” add the following citations and new footnote 7.
(See Edwards v. Steele (1979) 25 Cal.3d 406, 412 [158 Cal.Rptr. 662, 599 P.2d 1365] [“seemingly mandatory language need not be construed as jurisdictional where to do so might defeat the very purpose of the enactment or destroy the rights of innocent aggrieved parties”]; California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1147 [43 Cal.Rptr.2d 693, 899 P.2d 79] [“[w]hen the Legislature has specified a time within which an administrative board is to render a decision, that time limit may be mandatory in the obligatory sense, but this ‘does not necessarily mean that a failure to comply with its provisions causes a loss of jurisdiction’”]; cf. People v. Allen (2007) 42 Cal.4th 91, 101-105 [64 Cal.Rptr.3d 124, 164 P.3d 557] [time provision held mandatory but its violation did not deprive court of fundamental jurisdiction]; see generally 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 103, pp. 676-678 [explaining whether statutes of limitations and other time provisions are “mandatory” or “directory”].)
Our conclusion the Commission’s failure to act within the prescribed statutory period constitutes only an act in excess of its jurisdiction, rather than divesting it of jurisdiction in the fundamental sense, is reinforced by the Legislature’s express authorization for a waiver of the time limit by the applicant. (§ 30625, subd. (a); see Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 1008 [9 Cal.Rptr.3d 723] [“[s]ubject matter jurisdiction cannot be conferred by consent, waiver or estoppel”].)
Page 74f
2. On page 13 [167 Cal.App.4th 842, advance report, at the end of the 1st full par.], at the end of the first full paragraph, after the sentence ending “. . . regarded as a consent to a continuance.”].)” add as footnote 8 the following:
To the extent Klitgaard & Jones, Inc. v. San Diego Coastal Regional Com. (1975) 48 Cal.App.3d 99, 110 [121 Cal.Rptr. 650] -- a case cited by Schelbert to support her estoppel argument -- suggests in dicta that conduct after the expiration of a statutory time period demonstrating consent or acquiescence in the exercise of jurisdiction cannot be the basis for a finding of estoppel, we respectfully disagree.
3. The remaining footnote will require renumbering.
Plaintiffs’ petition for rehearing is denied. There is no change in the judgment.