Opinion
G032623.
11-13-2003
SOUTH OF AIRPORT NEIGHBORHOOD ASSOCIATION, Plaintiff and Appellant, v. CITY OF LA QUINTA et al., Defendants and Respondents.
Criste, Pippin & Golds, Robert L. Pippin and Hans P. Fleischner for Plaintiff and Appellant. Rutan & Tucker, M. Katherine Jenson, John A. Ramirez and Michael R.W. Houston for Defendants and Respondents.
Plaintiff South of Airport Neighborhood Association filed a complaint and petition challenging the adoption of an environmental impact report by defendants the City of La Quinta and its city council. Several months later, the court granted defendants motion to dismiss the action because plaintiff failed to request a hearing within 90 days as required by Public Resources Code section 21167.4, subdivision (a). Since the evidence supports the trial courts finding that the parties did not stipulate to waive the 90-day deadline, and plaintiff fails to establish its entitlement to relief under either the mandatory or discretionary provisions of Code of Civil Procedure section 473, we affirm the judgment.
Plaintiff also claims that the trial court failed to hear its motion for reconsideration. At oral argument, counsel acknowledged this argument is not supported by the record and noted he merely intended to ask this court to remand the case for reconsideration by the trial court. Defendants moved this court to take judicial notice of one of the citys ordinances. Because we affirm the judgment for the reasons stated, we deny this motion as moot.
FACTS
Plaintiff filed its complaint and petition on April 19, 2002; the 90th day was July 18. Between late May and late June, the parties attorneys corresponded with each other concerning preparation of the administrative record, the cost of its preparation, and the responsibility for paying this expense. In a June 24 letter, defendants counsel indicated plaintiffs counsel had stated his client would make advance payment to the city for record preparation and he was considering obtaining the services of a transcription service to transcribe some of the oral proceedings. None of the parties correspondence makes any reference to the approaching 90-day deadline.
Finally on July 17, one day before the deadlines expiration, plaintiffs lawyer wrote defendants lawyer, enclosing a proposed stipulation. The letter stated the writer was confirming a telephone conversation "as follows: [¶] A. [Defendants counsel will supply tapes for transcription] [¶] B. I have prepared and have enclosed herein a stipulation for continuation of the date to schedule a hearing in this matter . . . ." The letter then asks counsel to "[p]lease sign the stipulation . . . ." Defendants counsel did not sign or return the stipulation. Conspicuously absent from the letter is an express statement confirming an agreement to continue the deadline; at best, the letter is ambiguous. Nor is there any apparent relationship between the delays in the preparation of the record and the notice of the hearing. Plaintiff does not suggest it had to await completion of the administrative record before filing a notice of hearing.
On August 13, defendants moved to dismiss the action for failing to comply with Public Resources Code section 21167.4, subdivision (a). Plaintiff opposed the motion, arguing the parties lawyers had orally agreed to waive the 90-day deadline. Defendants lawyer characterized this allegation as "100% flatly, fundamentally, and unequivocally false." (Bold and italics deleted.) The trial court granted the dismissal request, declaring it was "not persuaded by [plaintiffs] claims in this regard."
Plaintiff also moved to set aside its default in failing to timely request a hearing on the complaint and petition, relying on Code of Civil Procedure section 473. (All further statutory references are to this code unless otherwise noted.) The matter was heard at the same time as defendants dismissal motion. The trial court denied plaintiffs request to vacate and set aside the default.
DISCUSSION
Substantial Evidence Supports the Trial Courts Determination There Was No Stipulation
Plaintiffs opening brief unequivocally states that defendants lawyer agreed to waive the mandatory 90-day deadline. In several of its arguments, plaintiff proceeds as if this fact were established. It was not. Plaintiffs claim that there was such an agreement was disputed in the trial court and resolved by that court against it. Thus, we review the record to determine whether the courts conclusion is supported by substantial evidence. Because it is, we must accept the trial courts factual determination.
Where the lower court resolves disputed factual issues our review is limited to a determination whether the record contains substantial evidence supporting its findings and we presume those findings are correct. We do not concern ourselves with evidence that supports an opposite result. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) A court of appeal has "`"no power to judge . . . the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom." . . . [Citation.]" (White v. Inbound Aviation (1999) 69 Cal.App.4th 910, 927.) Here the trial court did not believe there was a stipulation; we are bound by that determination. The declaration of citys attorney, wherein he denied having entered into any agreement to waive or toll the time for noticing the hearing, provides substantial evidence to support the trial courts decision.
Aside from the conflicting declarations of the lawyers, there also was circumstantial evidence supporting a conclusion the parties did not discuss the 90-day requirement. Over a period of several months, the lawyers corresponded concerning the preparation of the administrative record. But until the day before the deadline ran, these letters were silent on the subject of the approaching 90-day deadline.
Because we are bound by the trial courts factual determination, we also reject plaintiffs argument that the court should have denied the dismissal motion based on the grounds of estoppel or defendants extrinsic fraud. In addition, neither contention was presented to the trial court, making it inappropriate for us to consider them in any event. (See Jones v. Dutra Construction Co. (1997) 57 Cal.App.4th 871, 876-877.) Although defendants assert other grounds to support the trial courts dismissal, in light of our decision on the sufficiency of the evidence issue, it is unnecessary for us to consider these additional claims.
Section 473 Does Not Entitle Plaintiff to Relief From the Timely Filing Requirement
Although not set out as a separate ground for the appeal, plaintiffs brief makes several references to section 473, the statute permitting relief from default. It is unclear from the brief whether plaintiff relies on the statutes discretionary relief provisions or the mandatory relief provision based on attorney fault. In either case, the trial court did not err in denying plaintiffs motion to vacate and set aside its default.
Section 473, subdivision (b) permits the court to "relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." The subdivision also provides the court must grant a motion for relief if it is "accompanied by an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect . . . ."
Plaintiffs lawyer filed a declaration arguably satisfying the criteria for a declaration of fault. But mandatory relief under section 473 is available only where dismissals are the procedural equivalent of a default; that is, where plaintiffs are deprived of their day in court. (See Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 618.) The statute applies where "the plaintiffs attorney has failed to oppose a dismissal motion. [Citation.]" (Bernasconi Commercial Real Estate v. St. Josephs Regional Healthcare System (1997) 57 Cal.App.4th 1078, 1082; also see English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 143; Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 996-997.) Here the motion to dismiss was fairly litigated and the order was based upon the courts determining its merits, rather than upon some default by plaintiff or any fault of its lawyer in failing to respond to the motion.
That brings us to the discretionary provisions of section 473, subdivision (b). Assuming the statute would permit relief under these circumstances, an issue we do not here decide, we review the courts denial of relief under those provisions for an abuse of discretion. Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court. (County of Alameda v. Risby (1994) 28 Cal.App.4th 1425, 1431; In re Marriage of Carter (1971) 19 Cal.App.3d 479, 494.) "`"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. . . ."" (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.)
Section 473, subdivision (b) has been applied to avoid dismissals for failure to comply with Public Resources Code section 21167.4, subdivision (a). But each of these cases involved unique circumstances, quite different from the case at hand, where plaintiff had acted diligently and the failure to request a hearing in a timely manner was not the fault of the plaintiff or its lawyers. (Dakin v. Department of Forestry & Fire Protection (1993) 17 Cal.App.4th 681, 687, fn. 2 [uncertainty whether the 90-day deadline applied in a proceeding challenging a timber harvest plan]; Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1135-1137 [uncertainty whether a timely hearing on a motion for provisional remedies qualified as a "hearing"]; Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644 [failure of court to advise plaintiff of transfer to another court], disapproved on another ground in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 569-573, fn. 2; and McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 359-360 [lack of clear guidance in the law; lawyer made good faith attempt to comply with the law].)
The plaintiffs in these cases had acted diligently but because of uncertainties in the law or procedural events outside their control, fairness demanded they be excused from strict compliance. Here, on the other hand, there were no procedural irregularities or uncertainties in the law and plaintiff did not act diligently, delayed in obtaining a record and made no attempt to set a hearing. We cannot conclude the trial court exceeded the bounds of reason and therefore conclude the court did not abuse its discretion in refusing to grant relief under section 473.
DISPOSITION
The judgment is affirmed. Respondents motion asking this court to take judicial notice is denied as moot. Respondents shall recover their costs on appeal.
WE CONCUR: MOORE, J. and IKOLA, J.