Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. CV060766
Jenkins, J.
Appellants Glen Nagy and Ann Warner-Nagy (the Nagys) own a residence adjacent to property owned by respondent Willow Creek Community Services District (District) that is commonly known as “Camp Kimtu.” During 2006, the Nagys filed two petitions for writ of mandate and complaints for declaratory and injunctive relief against the District alleging it failed to comply with the California Environmental Quality Act (CEQA) with respect to activities within Camp Kimtu. The Nagys voluntarily dismissed the first petition and complaint the day before a scheduled hearing on the District’s motion to dismiss on a procedural defect. Subsequent to filing an answer to the Nagys’ second petition and complaint, the operative pleading in this case, the District filed a motion for sanctions against the Nagys pursuant to Code of Civil Procedure section 128.7 (hereafter section 128.7). The trial court granted the District’s motion, struck the second complaint and imposed monetary sanctions in the amount of $6,554.00 against petitioners. The Nagys’ appeal followed. We affirm the sanction striking the complaint and reverse the imposition of monetary sanctions.
Factual and Procedural Background
On March 28, 2006, the Nagys filed a petition for writ of mandate and complaint for declaratory and injunctive relief (first petition) alleging non-compliance with CEQA by the District in its operation of Camp Kimtu. The Nagys stated they own a residence on a five-acre parcel sharing a 750-foot common boundary with Camp Kimtu, and that their residence is situated close to a building on Camp Kimtu known as the “Kimtu Cookhouse.” Further, the Nagys stated that in February 2006, the District’s Board of Directors filed a Notice of Exemption (NOE) under CEQA for the lease of the Kimtu Cookhouse to the Redbud Theatre Company for its performances (Redbud lease).
The Nagys attached to the first petition a copy of the NOE, which is dated February 24, 2006. The NOE states the project title is “Kimtu Cookhouse-Redbud Theatre Lease.” It describes the nature of the project as follows: “This lease is for practice and performances of the Redbud Theatre. This lease is for specific time of use only. Performances will be held at the Cookhouse.” The NOE states the project is a categorical exemption because it “involve[s] the use of an existing public facility which complies with the current occupancy and parking norms. The history includes weddings, reunions, memorials, and youth activities such as wrestling and soccer camps and Camp Fire Girls Summer Camp.” The Nagys, however, alleged that the Redbud lease “involves uses not restricted to those consistent with previous Kimtu Cookhouse uses and that may be reasonably expected to have significant environmental impacts, including uses at times contrary to Campground rules and increased traffic, noise and dust levels at all times of use, thereby causing said project to be outside the scope of the categorical exemptions relied upon in [the District’s Notice of Exemption].”
Specifically, the District claimed categorical exemptions under Title 14 of the California Code of Regulations, sections 15301 (leasing of existing public facilities “involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination”) and 15323 (Normal Operations of Facilities for Public Gatherings). (Cal. Code Regs., tit. 14, §§ 15301 and 15323.)
In their first cause of action, the Nagys alleged the District violated CEQA because it applied an inappropriate categorical exception that prevented a meaningful analysis of the adverse impacts on the existing environment of the Redbud lease. In their second and third causes of action, the Nagys sought declaratory and injunctive relief, respectively. In their prayer for relief, the Nagys asked the court to enter judgment declaring that the District failed to comply with CEQA, that the Redbud lease is null and void, and enter preliminary and permanent injunctions restraining the District from executing the Redbud lease agreement.
On June 30, 2006, the District and Redbud Theatre filed a joint motion to dismiss the first petition on the grounds that the Nagys “failed to comply with Public Resources Code [section] 21167.4, which requires that they request a hearing within 90 days of filing their petition or it shall be dismissed upon motion of a party.” The movants noticed a hearing on the motion to dismiss for August 1, 2006.
“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.” (Pub. Resources Code, § 21167.4, subd. (a) [italics added].)
On July 27, 2006, the Nagys’ counsel wrote a letter to counsel for the District stating: “We agree with your motion with respect to lack of timeliness in requesting a hearing date and are submitting a Request for Dismissal. We do, however, still want a copy of the ‘record’ as this may impact a different action under consideration. Please let me know if you can provide this or if we need to do a formal record request directly to the agency.” The Nagys filed a request for dismissal of the first petition on July 31, 2006.
On September 26, 2006, the Nagys commenced the current action by filing their second petition for writ of mandate and complaint for declaratory and injunctive relief (second petition), again based on the District’s alleged non-compliance with CEQA. The complaint alleges: “On or about April 1, 2006, the [District] caused a parking lot to be created on its property accommodating in excess of forty vehicles as depicted in Exhibit 1. Further, [the District] has allowed the storage of a vehicle trailer as depicted in Exhibit 2 and the placement of a travel trailer as depicted in Exhibit 3 on its property. [¶] Petitioners are informed and believe that [the District] has failed to comply with CEQA or to obtain or secure any permits despite the fact that creation of such a parking lot will necessarily result in increased traffic, noise and dust levels.”
In the second petition, the Nagys assert a first cause of action under CEQA alleging that by “fail[ing] to submit the necessary environmental documents,” the District improperly foreclosed analysis on the impact of the projects, “that is creation of a forty-plus space parking lot, and placement of vehicles, including a travel trailer, on the existing environmental setting.” In their second cause of action for declaratory relief, the Nagys assert that the “District has acted in violation of CEQA, and must perform a CEQA analysis before using the subject area for a parking lot or allowing the vehicles depicted on Exhibits 2 and 3 to remain on the subject property.” The Nagys also stated a third cause of action for injunctive relief, and asked the court to declare the District acted in violation of CEQA and to enjoin it “from creating or allowing parking upon the property as depicted in Exhibit 1 and maintaining vehicles on the property as depicted in Exhibits 2 and 3.” On November 3, 2006, the District filed an answer to the allegations in the second petition, and on December 22, 2006, the Nagys filed a request, pursuant to Public Resources Code section 21167.4, for a hearing on the merits of its CEQA complaint.
Exhibit 1 comprises two photographs showing different sections of a non-paved, dirt road in a wooded area with parking stalls on either side marked out in white (chalk) lines. Exhibit 2 is a photograph of an articulated, metal storage unit parked adjacent to an unidentified building, presumably the Cookhouse. Exhibit 3 is a photograph of a mobile camper unit with its pull-down awning unfurled. The hood and front headlights of a vehicle parked next to it are also visible.
On February 5, 2007, the District filed its motion for sanctions pursuant to section 128.7. The District averred the motion “is made on the ground that the [complaint] filed in this matter asserts claims not warranted by existing law or by a nonfrivolous argument for the extension, modification, or establishment of new law, lacks evidentiary support, and is brought primarily for an improper purpose such as harassment.”
The motion for sanctions was personally served on Nagys’ counsel on January 9, 2007.
The District contended, inter alia, that the claims in the second petition were reiterative of those in the first petition and were time-barred under CEQA, thereby warranting sanctions under section 128.7. In support of that contention, the District stated that the parked vehicle trailer used by the Redbud Theatre for seating storage was placed on site on February 18, 2006, that the Nagys did not object at the time, and therefore “[a]ny objection to that trailer pursuant to CEQA is now barred by the 180 day statute of limitations (which expired on August 18, 2006).” Regarding the “travel trailer,” the District stated the Nagys were informed on March 31, 2005, it would be placed on Camp Kimtu in response to their request for a caretaker to watch over the property, and that the trailer was installed during April or May 2005. On that basis, the District argued that the allegations concerning the “travel trailer” were barred by the applicable [180-day] statute of limitations and were not made in good faith because the Nagys requested the caretaker at Camp Kimtu.
A CEQA action alleging a public agency undertook a project without a formal decision on whether the project may have a significant effect on the environment must be commenced within 180 days from the date of commencement of the project. (See Pub. Resources Code, § 21167, subd. (a).)
In their opposition to the sanctions motion, the Nagys did not discuss the issue of the placement of either the storage trailer or the caretaker’s travel trailer, and they later withdrew their allegation concerning the storage trailer. The trial court did not mention placement of the caretaker’s travel trailer in its sanctions order and the Nagys do not contest it here on appeal. Thus, we deem that issue abandoned. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119 [“[F]ailure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in an opening brief may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal.”]; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 604, pp. 638-639 [“The court need not consider an issue or alleged error where the appellant fails to offer pertinent argument on it; i.e., the court may consider the point as abandoned” (italics omitted) ].) Accordingly, we devote no further discussion to the issue of the trailers and focus solely on the parking lot allegation.
Furthermore, the District stated that the Nagys filed a prior lawsuit (the first petition) against the District alleging its non-compliance with CEQA at Camp Kimtu regarding the lease of the Cookhouse to the Redbud Theatre. The District noted that the Nagys voluntarily dismissed the first petition without prejudice one day before a hearing was scheduled on the District’s motion for mandatory dismissal for failure to request a hearing pursuant to Public Resources Code section 21167.4. Also, the District noted that less than two months after dismissal of the first petition, the Nagys filed the current petition alleging “meritless complaints, some of which relate to the Redbud Theatre Lease.” Additionally, the District averred that this “repeated litigation” has caused it to expend significant sums in attorneys fees and forego various public service capital improvements.
Specifically regarding the parking lot allegation, the District stated that the white lines shown in the photographs in Exhibit 1 to the complaint are actually temporary chalk lines placed by Steve Paine, its general manager, on March 30, 2006, the Thursday before the opening night of the Rosebud Theatre. The District stated the “white chalk temporary markings were placed on the Camp Kimtu property in an area that is historically used for parking for events held at the Cookhouse [and] . . . did not create a ‘parking lot’ but were only intended to assist in the orderly use of the historical and exempt parking use of Camp Kimtu related to the Redbud Theatre Lease.” Additionally, the District asserted that the Nagys’ “current Complaint about the ‘parking lot’ is, in fact, a complaint about parking pursuant to the Redbud Theatre Lease, the subject of the previously dismissed March 2006 litigation.” In conclusion, the District asserted the allegations in the complaint are “frivolous and lacking legal and evidentiary support,” and that the complaint constitutes “an improper attempt to have the proverbial ‘two bites of the apple’ . . . contrary to the purpose of CEQA, and is brought for an improper purpose — harassment of the [District]—and should subject Petitioners to sanctions . . . in order to deter such conduct.”
On February 23, 2007, the Nagys filed an opposition to the District’s motion for sanctions. The Nagys disputed the District’s version of the prior litigation, stating: “With regard to the [first petition] [], dismissal followed after it was represented to petitioners that the lease related only to federal property operated under permit by the United States Forest Service. Petitioners’ intent to proceed with a different action was not hidden in any fashion as the record regarding the Theatre lease was requested to confirm that it did not address the creation of parking areas along the roadway on District (state) property. Further, nowhere in the purported exemption record relating to the Redbud Theatre lease is it suggested that parking areas will be established along the roadway.” Attached to the opposition as Exhibit 3 was a map showing the roads, numbered camp spaces and other facilities at Camp Kimtu. Also, the map depicted a property line running east to west dividing Camp Kimtu between U.S. Forest Service land to the north and District land to the south.
The line on the map dividing U.S. Forest Service land and District land runs right through the middle of the Cookhouse building.
On March 14, 2007, the Nagys filed their opening brief on the merits of their CEQA complaint. The Nagys continued to assert “environmental review is required” for “the creation of parking areas along the roadway over [the District’s] property.” The District filed its opposition brief on April 11, 2007, and a hearing on the merits was scheduled for May 4, 2007. On May 2, 2007, however, the trial court vacated the May 4 merits hearing because it had “not [yet] made a ruling on sanctions and motion for dismissal due to the unavailability of the file.” The court informed the parties that a written ruling on the sanctions motion would follow, and that a merits hearing would be rescheduled if required.
On May 4, 2007, the trial court issued its “Ruling on CCP Section 128.7 motion.” In pertinent part, the trial court’s order stated: “It is the court’s belief that the petitioner concedes the issue regarding the [storage] trailer. The court also finds no merit in the argument regarding the road itself, as it has been in existence long before the limitation period. Likewise, the court finds no merit in the argument regarding the ‘parking lot.’ It is uncontested that the area has been used for many years for parking, although not with chalk lines, as were laid out on a previous occasion. Such chalk line does not rise to the level of a CEQA controversy. There is no project to which CEQA applies. Petitioner’s complaint is only to an ongoing use of an existing historical use, properly undertaken by the public entity. The motion is granted.”
On May 31, 2007, the trial court filed an order granting the District’s motion for sanctions. The order stated: “After full consideration of the evidence, and the written and oral submissions by the parties, and for all the reasons stated in the Court’s ruling dated May 4, 2007, the Court finds that the Complaint filed by [the Nagys] asserts claims not warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law, and the allegations and other factual contentions therein lack evidentiary support.” The court ordered the complaint stricken and that petitioners pay the District “its reasonable costs and attorneys fees incurred . . . according to proof.” On June 21, 2007, the trial court entered judgment in favor of the District for sanctions in the amount of $6,554.00. Notice of entry of judgment was filed on August 2, 2007, and the Nagys filed a timely notice of appeal on August 20, 2007.
Discussion
A. Standard of Review
The sole issue before us is whether the trial court erred by imposing sanctions against the Nagys. An award of sanctions is discretionary. (Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1130.) We therefore review a trial court’s order imposing sanctions for abuse of discretion. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) In reviewing an order granting or denying sanctions, we presume the trial court’s order is correct and we are not permitted to substitute our judgment for that of the trial judge. (Shelton v. Rancho Mortgage & Investment Corp. (2002) 94 Cal.App.4th 1337, 1345.) To be entitled to relief on appeal from an alleged abuse of discretion, the court’s action must be sufficiently grave to amount to a manifest miscarriage of justice. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867.) A trial court necessarily abuses its discretion, however, if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence. (Cooter & Gell v. Hartmarx Corp. (1990) 496 U.S. 384, 405 [discussing standard of review for imposition of sanctions under the Federal Rules of Civil Procedure].)
B. The Trial Court Did Not Abuse Its Discretion in Imposing Sanctions
1. Applicable Legal Principles
Section 128.7 states in pertinent part: “By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: [¶] (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation[;] [¶] (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law[; and,] [¶] (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. . . . [¶] If, after notice and a reasonable opportunity to respond, the court determines that [these conditions have] been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.” (§ 128.7, subds. (b)-(c).)
Section 128.7 was adopted to apply rule 11 of the Federal Rules of Civil Procedure (rule 11) to cases brought on or after January 1, 1995. (Guillemin v. Stein, supra, 104 Cal.App.4th at p. 167.) “Because of this intent and the fact that the wording of . . . section 128.7, subdivisions (b)(2) and (c) is almost identical to that found in rule 11(b)(2) and (c), federal case law construing rule 11 is persuasive authority with regard to the meaning of Code of Civil Procedure section 128.7. (Citations.) [¶] Under both [] section 128.7 and rule 11, there are basically three types of submitted papers that warrant sanctions: factually frivolous (not well grounded in fact); legally frivolous (not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law); and papers interposed for an improper purpose. (Citations.)” (Ibid.)
A filing is deemed frivolous where an attorney “files a pleading or other paper which no competent attorney could believe was well grounded in fact and warranted by law,” whereas a filing has an “improper purpose” if filed for reasons of “personal or economic harassment.” (Greenberg v. Sala (9th Cir. 1987) 822 F.2d 882, 885 [as amended].) However, where a complaint is challenged under section 128.7, “the ‘improper purpose’ analysis is not necessary because a non-frivolous complaint cannot be said to be filed for an improper purpose.” (Ibid. [italics in original]; see also Townsend v. Holman Consulting Corp. (9th Cir. 1990) 929 F.2d 1358, 1362 (Townsend) [as amended on denial of rehearing and rehearing en banc] [stating that the reason for the rule that “complaints are not filed for an improper purpose if they are non-frivolous” is that “it would be counterproductive to use Rule 11 to penalize the assertion of non-frivolous substantive claims, even when the motives for asserting those claims are not entirely pure”].)
The trial court’s sanctions order in this case did not comment on the purpose for filing the complaint, and its ruling was based solely on a finding that the Nagys’ complaint is legally frivolous. It is this determination we review for abuse of discretion, bearing in mind sanctions are warranted if a party’s conduct is “objectively unreasonable” and that no showing of subjective bad faith is required. (Guillemin v. Stein, supra, 104 Cal.App.4th at p. 167.) In this regard, whether a pleading is sanctionable must be based on an assessment of (1) “the knowledge that reasonably could have been acquired at the time the pleading was filed[;]” (2) “the type of claim and the difficulty of acquiring sufficient information[;]” and, (3) “which party has access to the relevant facts.” (Townsend, supra, 929 F.2d at p. 1364.)
Section 128.7 also contains certain procedural requirements designed to “strike a balance between competing interests: the need to control improper litigation ‘tactics’ and the desire to avoid chilling vigorous advocacy.” (Levy v. Blum (2001) 92 Cal.App.4th 625, 637.) In particular, section 128.7 “contains a safe harbor provision (id. at p. 637), specifying the motion for sanctions may not be filed ‘unless, within [21] days after service of the motion, . . . the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.’ (§ 128.7, subd. (c)(1).) The party seeking sanctions must follow a two-step procedure. First, the party must serve a notice of motion for sanctions on the offending party at least [21] days before filing the motion with the court, which specifically describes the sanctionable conduct. [Citation.] Service of the motion on the offending party begins a [21]-day safe harbor period during which the sanctions motion may not be filed with the court. [Citation.] If the pleading is withdrawn, the motion for sanctions may not be filed with the court. [Citation.] If the pleading is not withdrawn, the motion for sanctions may then be filed. [Citation.]” (Levy v. Blum, supra, 92 Cal.App.4th at p. 637.)
2. Analysis
(a) The District Satisfied the Safe Harbor Provisions of § 128.7.
Preliminarily, and despite the Nagys protestations to the contrary, there is no question the District fully complied with the safe harbor provisions of section 128.7. The District’s counsel declared under penalty of perjury that he caused the District’s motion for sanctions to be served on Nancy Delaney, counsel for the Nagys, on January 9, 2007, and Ms. Delaney so acknowledged in open court at the hearing on March 16, 2007. After the Nagys failed to withdraw their complaint, the District filed its motion with the court on February 5, 2007, 27 days after service of the motion.
Furthermore, the District’s motion specifically described the Nagys’ allegedly sanctionable conduct. In its sanctions motion, the District characterized the white lines shown in the photographs in Exhibit 1 to the complaint as temporary chalk lines placed by Steve Paine, its general manager, on March 30, 2006, the Thursday before the opening night of the Rosebud Theatre. The District stated the “white chalk temporary markings were placed on the Camp Kimtu property in an area that is historically used for parking for events held at the Cookhouse [and] . . . did not create a ‘parking lot’ but were only intended to assist in the orderly use of the historical and exempt parking use of Camp Kimtu related to the Redbud Theatre Lease.” Additionally, the District asserted that the Nagys’ “current Complaint about the ‘parking lot’ is, in fact, a complaint about parking pursuant to the Redbud Theatre Lease, the subject of the previously dismissed [first petition].” The District asserted in sum that the allegations in the complaint were “frivolous and lacking legal and evidentiary support,” and that the complaint constituted “an improper attempt to have the proverbial ‘two bites of the apple’ [] contrary to the purpose of CEQA, and is brought for an improper purpose—harassment of the [District]—and should subject Petitioners to sanctions . . . in order to deter such conduct.”
Accordingly, we conclude the record shows that the District’s motion for sanction satisfied the safe harbor provisions of section 128.7 because it was timely filed after the Nagys received notice of their sanctionable conduct, had ample opportunity to respond, and chose not to withdraw their complaint.
(b) Certification that the Allegations in the Nagys’ Complaint Were Legally Supportable was Objectively Unreasonable Under the Circumstances Presented Here
We assess whether a party’s certification of the allegations in a complaint is objectively unreasonable against (1) “the knowledge that reasonably could have been acquired at the time the pleading was filed[;]” (2) “the type of claim and the difficulty of acquiring sufficient information[;]” and, (3) “which party has access to the relevant facts.” (Townsend, supra, 929 F.2d at p. 1364.) Here, as explained more fully below, all three factors support the trial court’s finding that the Nagys’ certification of the allegations contained in the second petition was objectively unreasonable.
The Nagys’ second petition alleged CEQA violations. CEQA’s “procedural provisions evidenc[e] [a] legislative intent that the public interest is not served unless CEQA challenges are promptly filed and diligently prosecuted.” (Nacimiento Regional Water Management Advisory Com. v. Monterey County Water Resources Agency (Nacimiento) (2004) 122 Cal.App.4th 961, 965 [italics added].) Procedural provisions designed to expedite CEQA litigation, including “short statutes of limitations of only 30 to 180 days in length” and the petitioner’s duty to “request a hearing within 90 days” (id. at pp. 965-966) upon pain of dismissal, reflect “ ‘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.’ ” (Id. at p. 965.) (Nacimiento, supra, 122 Cal.App.4th at pp. 965-966.) Thus, in furtherance of the public interest, the statutory scheme imposes a duty on CEQA petitioners to promptly file and diligently prosecute their claims.
In this case, the legislative policy of promoting prompt and diligent prosecution of CEQA claims in order to minimize financial prejudice and disruption was frustrated by the successive and piecemeal CEQA litigation instigated by the Nagys concerning the environmental impact of the use of the Kimtu Cookhouse by the Redbud Theatre. The Nagys filed their second petition on September 26, 2006, after filing their first petition on March 28, 2006, which they voluntarily dismissed on July 31, 2006. In the first petition, the Nagys challenged under CEQA the District’s assertion of categorical exemptions, pursuant to title 14 of the California Code of Regulations, sections 15301 and 15323 (sections 15301 and 15323), for a project to lease the Kimtu Cookhouse to the Redbud Theatre for occasional performances in compliance “with current [] parking norms” and consistent with the Cookhouse’s historical use for “weddings, reunions, memorials, and youth activities such as wrestling and soccer camps and Camp Fires Girls Summer Camp.” In that petition, the Nagys specifically allege that the use of the Kimtu Cookhouse for performances by the Redbud Theatre was inconsistent with historical use due to the “increased traffic, noise and dust levels at all times of use.”
The Nagys did not diligently prosecute the claims alleged in the first petition. Instead, the Nagys allowed the first petition to languish, conceded their “lack of timeliness in requesting a hearing date,” and then voluntarily dismissed the first petition the day before the hearing on the District’s motion to dismiss on the same grounds. Upon dismissal of the first petition, however, the Nagys knew or should have known that it was then too late to seek CEQA review of the District’s categorical exemptions for the Rosebud Lease project. That is because the District’s categorical exemption of the project—on the grounds that performances of the Rosebud Theatre involved “negligible or no expansion of use beyond that existing at the time of the lead agency’s determination” and that the project conformed with normal operations for facilities of public gatherings — could not be challenged later than 35-days from the issuance of the NOE on February 24, 2006. (See Cal. Code Regs., tit. 14, § 15301, and Pub. Resources Code, § 21167, subd. (d) [filing of the NOE by agency triggers a 35-day statute of limitations to institute an action challenging the finding that the project was exempt from CEQA].) Accordingly, by dismissing their first petition, the Nagys waived or forfeited any legal challenge under CEQA to the District’s notice of categorical exemptions for the Rosebud Lease based on historical use and normal operations.
The Nagys explain that they dismissed the first petition after they learned the Redbud lease project “related to the use of federal property only” and because the District “related its position that the project was federal only after petitioners, informed by CEQA notice, had filed the action for review.” We reject this after-the-fact justification for the failure to diligently prosecute the first petition because the record clearly shows the Nagys dismissed the first petition for lack of timeliness in requesting a hearing date, whereas nothing whatsoever in the record indicates the District took the “position” that CEQA review of the Redbud lease project was obviated by federal law.
Nevertheless, the Nagys subsequently alleged in their second petition that the District “caused a parking lot to be created on its property” on or about April 1, 2006, by marking out in white chalk lines roughly 40 parking bays on each side of the dirt access road serving the Kimtu Cookhouse.
However, when the Nagys dismissed the first petition on July 31, 2006, they knew or should have known at that point that any CEQA challenge to the District’s NOE for the Redbud Lease project was time-barred. The allegations of the second petition, that the District violated CEQA by marking bays to identify parking spaces for the level of traffic associated with the Redbud lease project, are no different than the allegation encompassed by the first petition that the NOE for the Redbud lease project was invalid because traffic associated with Redbud Theatre performances would exceed historical levels and normal use. Thus, the second petition can only be viewed as an attempt to litigate the Redbud Lease issue in piecemeal fashion and get a second bite at the apple by using the issue of the parking stalls to challenge for a second time the traffic flow associated with the use of the Cookhouse by the theatre group. Accordingly, we agree in full with the trial court’s observation that the second petition challenges “only an ongoing use of an existing historical use, properly undertaken by the public entity.”
In sum, we conclude that certification of the second petition’s “parking lot” allegation was objectively unreasonable when viewed against the allegations in the first petition, that petition’s voluntary dismissal for failure to diligently prosecute, and the resultant expiry of the 35-day statute of limitations during which the Nagys’ could challenge the District’s NOE, all of which were known to the Nagys when they filed the second petition. Thus, the trial court did not abuse its discretion in finding legally frivolous a claim that the District violated CEQA by laying down temporary chalk lines to assist with orderly parking for approximately forty vehicles in connection with a Redbud Theatre performance at the Kimtu Cookhouse.
(c) The Nature of the Sanctions
Having concluded the Nagys’ complaint was legally frivolous, the trial court sanctioned the Nagys by striking the complaint and awarding monetary sanctions against them in the amount of $6,554.00. Moreover, the trial court’s sanctions order explicitly provides that the monetary sanctions lie against the Nagys, and not their attorneys, because it states that “Petitioners shall pay [the District] for its reasonable costs and attorneys fees incurred in answering the Complaint and drafting the Motion. . . . ”
Section 128.7, however, specifically states that “[m]onetary sanctions may not be awarded against a represented party for a violation of paragraph (2) of subdivision (b).” (§ 128.7, subd. (d)(1); see also Laborde v. Aronson (2001) 92 Cal.App.4th 459, 466 (“logical inference” of § 128.7’s prohibition on monetary sanctions against represented party for violation of subdivision (b)(2) is that sanctions can be awarded against a represented party for a violation of subdivision (b)(1).)) Here, the Nagys were represented by counsel and monetary sanctions were awarded solely against them for a violation of paragraph (2) of subdivision (b), namely, the filing of a legally frivolous complaint. Accordingly, the award of monetary sanctions against the Nagys directly contravenes the dictates of the statute. Therefore, the imposition of monetary sanctions against petitioners under section 128.7 constitutes an abuse of discretion.
Disposition
Judgment is affirmed in part and reversed in part. Judgment in favor of the District is affirmed, and the award of monetary sanctions against the Nagys is reversed. Each party shall bear its costs on appeal.
We concur: Pollak, Acting P. J., Siggins, J.