Opinion
C080667
02-02-2018
ROGER TOWERS, Plaintiff and Appellant, v. COUNTY OF SAN JOAQUIN, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 39201400317662CUWMSTK)
Plaintiff Roger Towers filed a petition for writ of administrative mandamus (the Petition), alleging that in 2014 the County of San Joaquin (the County) acted improperly in enacting County ordinance No. 4454, which benefitted mining operators by extending the previously approved deadline for initiating land use entitlements by an additional 24 months. Upon hearing the County's motion to dismiss, the trial court concluded that Towers had failed to name the permit-holders and other beneficiaries of ordinance No. 4454 as real parties in interest, requiring dismissal due to the absence of indispensable parties.
On appeal, Towers argues that we should reverse because (1) the County acted improperly in failing to provide him notice of the ordinance No. 4454 hearings before the planning commission and the Board of Supervisors; (2) ordinance No. 4454 is void because it is unconstitutional and violates the Government Code; and (3) the trial court improperly exercised its authority under Code of Civil Procedure section 389, subdivision (b), in dismissing the Petition after concluding that Towers failed to join indispensable parties.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
County Proceedings
On September 23, 2014, the County adopted ordinance No. 4454, which benefitted mining operators and other parties by extending the time for initiating land use entitlements the County previously approved. Under the County's zoning code, a party that receives a development authorization ordinarily has 18 months from the date of approval to take all steps necessary to initiate the approved use. (San Joaquin County Code, tit. 9, chs. 9-215, 9-220, §§ 9-215.14, 9-220.13; hereafter, Development Title.) Ordinance No. 4454 extended this deadline by 24 months for all then-existing and unexpired permits.
Ordinance No. 4454 stated in part: "On July 15, 2009, the California Legislature enacted AB 333 as an urgency statute extending the life of certain tentative maps twenty-four (24) months. The Board of Supervisors adopted Ordinance 4381 as a companion measure to AB 333 in order to preserve development projects that could not proceed because of adverse economic conditions in the construction industry. In a judicial opinion the San Joaquin Superior Court found fault with the manner of adoption of Ordinance 4381. This Ordinance is being adopted in response to that decision." Ordinance No. 4454 specified the extension was being adopted "[n]otwithstanding the provisions of Section 9-215.14 and Section 9-220.13 of the Development Title of San Joaquin County . . . ."
Like its predecessor, ordinance No. 4381, ordinance No. 4454 did not change or amend the uses permitted by any projects. It merely extended the deadlines for commencing such uses on a countywide basis.
The County adopted both ordinance No. 4454 and its predecessor, ordinance No. 4381, to address the economic realities that had prevailed since the recession that began in 2008. As a staff report related to ordinance No. 4454 presented to the County Board of Supervisors explained: "Consistent with prior practices, when the Legislature has enacted such measures [concerning subdivision maps], the County has adopted companion measures that grant similar extensions for Site Approvals, Use Permits and Quarry Excavation permits. Because the economy has not significantly improved and local conditions for the construction industry remain difficult, this Ordinance grants a similar extension for these discretionary permits."
The County began the process for adopting ordinance No. 4454 in March 2014. Community development staff referred the project to several County departments, other governmental agencies, and various organizations. County staff then conducted an initial study under the California Environmental Quality Act (CEQA, Pub. Resources Code, § 21000 et seq.) to determine whether the adoption of the ordinance would have any significant environmental impacts. Staff concluded that the ordinance's approval would not create any such impacts and recommended that a negative declaration be adopted.
The County followed a different process for enacting ordinance No. 4454 than it had in approving ordinance No. 4381 in 2009. Ordinance No. 4381 was presented only to the Board of Supervisors, rather than the planning commission. In prior trial court litigation over ordinance No. 4381, Towers objected to this process, claiming the ordinance was a zoning ordinance that should have been referred to the planning commission under the process in Government Code sections 65853 through 65857. In a statement of decision and order, the superior court agreed, ruling that the ordinance was a "qualifying amendment to a zoning ordinance" in that it modified land uses by extending their initiation dates. The court dismissed plaintiffs' challenge on an independent ground, failure to exhaust administrative remedies.
Undesignated statutory references are to the Government Code in effect at the time the Petition was filed.
The trial court's exhaustion ruling on this issue and other issues arising out of the earlier litigation were affirmed on appeal. (Towers v. County of San Joaquin (Aug. 2, 2017, No. C073598) [nonpub. opn.], review den. Nov. 1, 2017, S244280.)
Because of the trial court's ruling on ordinance No. 4381, the County followed the zoning ordinance process in adopting ordinance No. 4454. Staff completed its CEQA review, prepared the proposed ordinance for hearing consideration, and presented it to the planning commission. The commission scheduled a public hearing for the ordinance for May 15, 2014. However, the hearing was twice continued to allow the county counsel to propose amendments to the ordinance. The amendments were made and the commission thereafter considered the ordinance on August 7, 2014. By unanimous vote, it recommended approval of the ordinance to the Board of Supervisors and adopted a negative declaration under CEQA.
In finding ordinance No. 4454 would not result in any significant environmental impacts, the commission concurred with community development staff, whose report to the commission had explained: "The environmental impacts of these applications have been previously reviewed to ensure any impacts would be reduced to less than significant. Also, the applications for these projects have been previously reviewed for compliance with Development Title regulations and all appropriate findings have been made in the affirmative. Therefore, the proposed Text Amendment request to extend the expiration date of these applications for twenty-four (24) months would not conflict with any existing environmental determination and the Community Development Department is recommending that the Planning Commission adopt a Negative Declaration for the proposed Text Amendment."
The Board of Supervisors considered ordinance No. 4454 at a public hearing on September 23, 2014, and approved the ordinance unanimously.
On September 12, 2014, ten days before the Board's approval, the County published notice of the proposed ordinance in the Stockton Record, as required for generally applicable zoning ordinances. (See § 65090, subd. (a).) But the County did not provide Towers notice of the public hearing by mail despite having recorded Towers's request for such notice. (See § 65092, subd. (a) [requiring agencies to provide mailed notice 10 days in advance of any public hearing concerning any project for which parties request mailed notification].) Nor had the County provided notice to Towers as requested concerning the planning commission meeting where the commission finally considered and recommended approval to the Board of Supervisors.
However, Towers was aware a negative declaration was proposed for the ordinance as he objected to community development staff about its adoption. He identified a number of deficiencies he felt existed in the ordinance's initial study. He claimed these deficiencies were the same as those he discussed in the approximately 120 pages of his opening brief he had submitted to this court in support of his appeal of the County's earlier time-extension ordinance, a copy of which he furnished and asked staff to consider.
Trial Court Proceedings
Plaintiffs initiated this lawsuit on October 23, 2014. The pleading was styled: "PETITION FOR WRIT OF ADMINSTRATIVE MANDATE (C.C.P., § 1094.6); WRIT OF MANDATE (C.C.P., § 1085) TO DECLARE ORDINANCE # 4454 INVALID OR OTHERWISE INVALIDATE ORDINANCE # 4454."
In the Petition, plaintiffs identified four causes of action titled, "Violation of Due Process," "Ordinance No. 4454 is Void Ab Initio," "Failings Related to the General Plan," and "Failure to Comply with CEQA." Plaintiffs sought the following remedies based on these causes of action:
(1) "Find that COUNTY failed to proceed in the manner required by law and issue an administrative writ of mandate, pursuant to Code of Civil Procedure section 1094.5, directing COUNTY vacate and rescind Ordinance 4454";
(2) "Find that the adoption of Ordinance 4454 is void ab initio and issue a writ of mandate, pursuant to Code of Civil Procedure section 1085, directing COUNTY vacate and rescind Ordinance 4454";
(3) "Find that San Joaquin County improperly determined whether PA-1400047 will have significant effect on the environment and issue a writ of mandate, pursuant to Code of Civil Procedure section 1094.5, directing COUNTY vacate and rescind Ordinance 4454"; and
(4) For the award of attorney's fees, costs, and other relief as the court deems proper.
The County's answer asserted Towers's failure to name indispensable parties as an affirmative defense. After answering, the County moved to dismiss Towers's complaint for failure to name indispensable parties, the real parties in interest, mining operators who benefit from the time extensions granted by ordinance No. 4454. These are the same mining operators Towers had joined in his previous lawsuit. The trial court heard the County's motion at the same time as it considered the Petition on its merits. The court granted the County's motion and also denied the Petition in its entirety. Thereafter, the trial court entered judgment. Towers moved for reconsideration and new trial, but the trial court denied those motions.
DISCUSSION
I. Failure to Mail Notice
A. The Parties' Contentions
On appeal, Towers claims his petition to vacate and set aside ordinance No. 4454 based on the failure to provide him notice of the planning commission meeting on August 7, 2014, and the County Board of Supervisors hearing held on September 23, 2014, was erroneously denied. Towers contends that the County failed to mail him notice as requested pursuant to section 65092 in violation of "minimum standards of due process." There is no dispute that the County failed to mail Towers notice despite having received his request to be notified. However, the County contends that "the right to mailed notice under the circumstances of this case is one created by statute, not the Federal or California Constitutions." The County points out that under section 65093, the failure of any person to receive the statutory notice "shall not constitute grounds for any court to invalidate the actions of a local agency for which the notice was given." (§ 65093.)
B. Analysis
Section 65093 specifically provides as to the notice requirement under section 65092, "[t]he failure of any person or entity to receive notice given pursuant to this title, or pursuant to the procedures established by a chartered city, shall not constitute grounds for any court to invalidate the actions of a local agency for which the notice was given." (Italics added.) Even if section 65093 somehow does not apply, there is no presumption of prejudice that results from the failure to provide notice. (§ 65010, subd. (b) ["There shall be no presumption that error is prejudicial or that injury was done if the error is shown"]; see also 7 Miller & Starr, Cal. Real Estate (4th ed. 2017) § 21:15, p. 21-114.) Towers must show prejudice in order to overturn enactment of the ordinance. Section 65010, subdivision (b), provides that no action by a public agency shall be set aside "by reason of any error, irregularity, informality, neglect, or omission (hereafter error) as to any matter pertaining to petitions, applications, notices, findings, records, hearing, reports, recommendations, appeals, or any matter of procedure subject to this title, unless the court finds that the error was prejudicial and that the party complaining or appealing suffered substantial injury from that error and that a different result would have been probable if the error had not occurred." (Italics added; see, e.g., Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 919 & fn. 7 (Rialto Citizens) ["Under the Planning and Zoning Law, a court may not set aside the actions of a legislative body based on an error or omission in a notice of public hearing, unless the court finds the error was prejudicial, the complaining party suffered substantial injury, and a different result was probable had the error not occurred" and "[n]either prejudice, substantial injury, nor the probability of a different result may be presumed based on a showing of error alone"].)
Here, Towers provides no explanation of how he was prejudiced by the County's failure to provide notice or why a different result was probable. The burden of demonstrating prejudice, substantial injury, and the probability of a different result under section 65010, subdivision (b), is on him. (Rialto Citizens, supra, 208 Cal.App.4th at p. 920.) By his own admission, Towers "became aware of the proposed ordinance, made substantial comment and followed that matter until it was continued indefinitely at the third [planning commission] hearing" in June 2014. It is thus undisputed that Towers was aware of the proposed ordinance, had the ability to access the relevant materials and information prior to its enactment and had made substantial comments about the proposal to the County staff. Moreover, not only has Towers failed to allege he would have provided comments to the planning commission and the Board had he known about the hearing, but he has failed to explain what specific comments or testimony he would have given at the hearings. (See Roberson v. City of Rialto (2014) 226 Cal.App.4th 1499, 1507, 1508 [rejecting plaintiff's claim of prejudice where plaintiff merely asserted that had he known about the public hearing, he would have shared his views with the city council and urged that it not approve the proposal, but "did not explain what comments or testimony he would have submitted to the city council"].)
Additionally, notice of the hearings was published in the Stockton Record as required by statute. (See § 65854 [requiring that notice of actions be given per § 65090]; § 65090, subd. (a) [stating that notice of the action must be given in a newspaper of record].) Such publication provides adequate notice and meets the minimum requirements of due process. (Claremont Taxpayers Assn. v. City of Claremont (1963) 223 Cal.App.2d 589, 593; see also Calvert v. County of Yuba (2006) 145 Cal.App.4th 613, 622 [legislative action does not require the same procedural due process standards of reasonable notice and opportunity to be heard as adjudicative governmental action implicating a significant or substantial property deprivation].) While the County failed to mail Towers notice as required under section 65092, such failure does not violate his right to procedural due process as long as otherwise adequate notice was provided. In McMaster v. City of Santa Rosa, the city failed to mail notice of the sale of property at auction for delinquent taxes in accordance with a city ordinance requiring such notice. (McMaster v. City of Santa Rosa (1972) 27 Cal.App.3d 598, 604.) However, the city provided notice by publication pursuant to another section in the city ordinance. (Id. at pp. 602-603.) The court reasoned that "publication of notice is all of the 'due process' notice to which the delinquent taxpayer is entitled, and that '[a]s far as the mailing of additional notices of sale prior to the sales to and from the State, or the mailing of any additional notices at all is concerned, such notices could have been done away with or not required by the legislature in the first instance without doing violence to due process.' " (Id. at p. 605.)
Towers complains that the County "actively deceived" him by failing to provide notice to him as impliedly promised by the County when it committed to put his name on the project notification list. As a result, he was deprived of due process. But Towers has not cited any case holding that a due process violation results from the failure to provide notice when no prejudice has been shown, and we see no reason to so hold here.
Indeed, in our view, Towers cannot establish a due process violation for the failure to provide actual notice without establishing prejudice from the notice violation. In City of Sausalito v. County of Marin (1970) 12 Cal.App.3d 550, 558-559 (City of Sausalito), the plaintiffs challenged the validity of an ordinance on the grounds that the agency's hearing was published only six days before the proceedings were convened, although a statute in effect at the time required 10 days' notice. (Id. at p. 555.) Applying former section 65801 retroactively, the trial court determined that late publication of the notice was not prejudicial and that it was not probable that a different result would have ensued if notice had been published 10 days in advance. (City of Sausalito, at p. 556.) Former section 65801 was similar to section 65010. On appeal, the plaintiffs argued that substantively, section 65801 could not be construed to eliminate the 10-day notice requirement, because it was essential to due process. (City of Sausalito, at p. 558.) The appellate court in City of Sausalito agreed that the Legislature could not dispense with notice entirely, but it was not constitutionally required to provide 10 days' notice. (Id. at pp. 558-559.) It reasoned that former section 65801, required the plaintiff to show prejudice from failure to comply with zoning notice requirements in order to establish a due process violation. (City of Sausalito, at p. 559.) In this regard, the court stated: "[S]ection 65801, imposing a test of prejudice as the basis of invalidating a zoning ordinance for 'irregularity' in 'notices,' has in effect substituted the adequacy of notice in fact, as distinguished from its formulary duration, as the test of its adequacy for purposes of due process." (City of Sausalito, at p. 559.) A showing of prejudice to establish a due process violation is required in other contexts. (See People v. Nelson (2008) 43 Cal.4th 1242, 1250 [a criminal defendant seeking to dismiss a charge on the ground of precharging delay must demonstrate prejudice to establish a due process violation].)
Former section 65801 provided in significant part: " 'No action, inaction or recommendation regarding any zoning matter by any legislative body or any administrative body or official of any county or city shall be held void or invalid or be set aside by any court on the ground of the improper admission or rejection of evidence or by reason of any error, irregularity, informality, neglect or omission (hereinafter called "error") as to any matter pertaining to petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals or any matters of procedure whatever, including, but not limited to, those included in this section, unless after an examination of the entire case, including the evidence, the court shall be of the opinion that the error complained of was prejudicial, and that by reason of such error the party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error had not occurred or existed. There shall be no presumption that error is prejudicial or that injury was done if error is shown.' " (City of Sausalito, supra, 12 Cal.App.3d at p. 556, fn. 3, last italics added.)
Here again, Towers has failed to set forth the comments he would have made in front of the planning commission and the Board of Supervisors and he has not shown how he was injured as a result of not making any such comments; nor has he shown that the result would have been different had he made those comments to the planning commission or the Board or that he was otherwise prejudiced. Thus, Towers has not met his burden of showing he was prejudiced by the County's failure to mail him the requested notice under section 65092. Nor has he shown a due process violation. Accordingly, we reject Towers's claims related to the County's failure to provide him with actual notice of the public hearing.
II. Claim that Ordinance No. 4454 is Void Ab Initio
A. The Parties' Contentions
Towers also argues that the County violated the California Constitution and Government Code through the manner in which it adopted ordinance No. 4454. First, Towers contends that the ordinance is void ab initio because "[b]y definition, Ordinance 4454 is an amendment by reference in violation of our State Constitution." (Citing Cal. Const., art. IV, § 9.) Second, Towers contends that the ordinance is void ab initio under section 25129 because "[o]nce [the] County ha[d] adopted its Ordinance Code pursuant to § 25126, any changes must be amendatory of the previous code sections."
In response, the County contends that the "constitutional provision Towers relies upon, Article IV, Section 9, applies to enactments by the State Legislature and is entirely inapplicable." The County argues that under article XI, section 7 of the California Constitution, "the only limitation on the form and procedure for adopting County ordinances are that they comply with the 'general laws,' i.e., the statutes of the State of California." Additionally, the County contends that it did not amend any provision of its zoning codes through ordinance No. 4454 in violation of section 25129. It argues that Development Title establishes 18 months as the standard period by which permit holders must initiate their approved uses (Development Title, chs. 9-215, 9-220, §§ 9-215.14, 9-220.13), and that the County also has authority under the County Development Title to extend time for any approved land use (id., ch. 9-881). The County contends that by enacting ordinance no. 4454, "the Board simply exercised its 'review authority' prerogative to extend the use-initiation dates for a broad class of permit holders." (See id., chs. 9-110, 9-205, 9-881, §§ 9-110.4, 9-205.3, 9-881.4.)
B. Analysis
As the County points out, the constitutional provision Towers cites expressly applies to amendments of statutory actions by the Legislature and is inapplicable to ordinance No. 4454. (Cal. Const., art. IV, § 9.) Towers cites no other applicable constitutional provision that would compel this court to hold that ordinance No. 4454 is unconstitutional and void ab initio. Indeed, the constitutional provision applicable to municipal ordinances contains no language similar to the constitutional provision upon which Towers relies. Article XI, section 7, provides in pertinent part: "A county or city may make and enforce within its limits all local . . . ordinances and regulations not in conflict with general laws." (Cal. Const., art. XI, § 7, italics added.) Accordingly, we reject Towers's state constitutional claim.
California Constitution, article IV, section 9, appears under the provisions concerning the legislative power of the state. It provides: "A statute shall embrace but one subject, which shall be expressed in its title. If a statute embraces a subject not expressed in its title, only the part not expressed is void. A statute may not be amended by reference to its title. A section of a statute may not be amended unless the section is re-enacted as amended." (Italics added.)
Towers states that ordinance No. 4454 violated the Government Code and partially quotes section 25129 without any argument as to how or why this section is applicable and how the ordinance violates it. Accordingly, we reject this perfunctory claim. (See Cal. Rules of Court, rule 8.204(a)(1)(B)-(C); see also People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 ["We discuss those arguments that are sufficiently developed to be cognizable. To the extent [a party] perfunctorily asserts other claims, without development . . . , they are not properly made, and are rejected on that basis"].)
In its entirety, section 25129 provides: "After the code has been adopted all ordinances thereafter adopted pertaining to the subjects in the code shall be amendatory or revisory of the code. No section or subsection of the code shall be revised or amended by reference. The ordinance section or subsection revised or amended shall be adopted and published in the manner prescribed in Section 25124. Nothing in this section shall preclude repealing or rendering inoperative by reference any section or subsection if language in the ordinance fairly identifies the subject matter of the sections or subsections which would be repealed or rendered inoperative by the ordinance."
III. Dismissal for Failure to Name Indispensable Parties
A. The Parties' Contentions
Towers argues that the trial court erred in dismissing his action for failure to name the real parties in interest as indispensable parties on the ground that he was only required to name as indispensable parties the persons identified by the County in its notice of determination under Public Resources Code section 21167.6.5. Towers notes that "[t]he Notice of Determination filed by [the County] does not name any real party in interest." The County responds that, "despite having received a list (at his request) of at least some of [the] entities that benefit from Ordinance 4454 [citation], Towers plainly failed to name any party that received the two-year time extension the ordinance provides."
B. Analysis
Where a plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined, the trial court must decide how to proceed, using section 389. (Code Civ. Proc., § 389; Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 500-501.) Under Code of Civil Procedure section 389, if such a third person "cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; [and] (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder." (Code Civ. Proc., § 389, subd. (b).) "[T]he decision whether to proceed [or not] with the action in the absence of a particular party is one within the [trial] court's discretion, as governed by [these] factors." (Sierra Club, at p. 500.) The requirement to name necessary parties in mandamus proceedings is likewise well established: "A petition for writ of mandate must name the real party in interest, who thereafter has a right to notice and to be heard before a trial or appellate court issues a peremptory writ." (Sonoma County Nuclear Free Zone '86 v. Superior Court (1987) 189 Cal.App.3d 167, 173, citing Code Civ. Proc., §§ 1088, 1107.)
Under subdivision (b) of section 389, when a court has found that an unnamed person or entity meets the requirements of subdivision (a), it must decide if the person or entity "cannot be made a party" to the action. Here, there is no dispute that Towers failed to preserve his right to amend to add Doe defendants, and the statutes of limitation had run on the Towers's causes of action under both CEQA and the Planning and Zoning Law. Accordingly, there was no longer any remedy the trial court could have ordered in the absence of real parties in interest, compelling dismissal under subdivision (b) of Code of Civil Procedure section 389.
At oral argument, Towers conceded he knew of at least two real parties when he filed the Petition, Teichert and CEMEX. Both were mentioned in his earlier lawsuit and again in the Petition underlying the instant appeal. Nevertheless, he contended he should have been allowed to amend the Petition to add real parties after the statute of limitations expired because the Petition against the county was timely. He is wrong. Even if he was genuinely ignorant of real parties' identities, there is no relation back after the statute of limitations has run when Doe defendants are not named in the pleading. (See Code Civ. Proc., § 474; Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176-177; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶¶ 6:740-6:741, p. 6-201.) Of course, it is clear Towers was not genuinely ignorant of Teichert and CEMEX or their relationship to his Petition. (See Miller v. Thomas (1981) 121 Cal.App.3d 440, 444.)
Because a negative declaration was approved for ordinance No. 4454, the statute of limitations governing Towers's CEQA claim expired on October 27, 2014 (i.e., 30 days after the posting of a notice of determination). (See Pub. Resources Code, § 21167, subd. (b).)
Under the Planning and Zoning Law, Towers had 90 days from the date of adoption to commence an action challenging the approval of ordinance No. 4454. (Gov. Code, § 65009, subd. (c)(1)(B).) Thus, Towers's last day to name real parties in interest for his planning and zoning claims was December 22, 2014.
Towers's contention that he was not required to name real parties in interest under Public Resources Code section 21167.6.5 is unpersuasive. Public Resources Code section 21167.6.5, subdivision (a), provides in pertinent part: "The petitioner or plaintiff shall name, as a real party in interest, the person or persons identified by the public agency in its notice filed pursuant to . . . Section 21152." In a CEQA action, his section supplants Code of Civil Procedure section 389, which requires joinder of necessary parties. (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 855.) Section 21152 of the Public Resources Code relates to the notice of approval or determination of local agencies and provides that the notice shall identify the persons or persons in Public Resources Code section 21065, subdivision (b) or (c) as reflected in the agency's record of proceedings. Towers points out that the real parties in interest are not named in the notice of determination. Subdivision (d) of Public Resources Code section 21167.6.5 states: "Failure to name potential persons, other than those real parties in interest described in subdivision (a), is not grounds for dismissal pursuant to Section 389 of the Code of Civil Procedure."
However, Public Resources Code section 21167.6.5 does not apply outside of a CEQA action. After initially pleading a cause of action under CEQA, Towers made no effort to pursue that claim, effectively waiving it. Indeed, Towers concedes that "[t]here is no cause of action in CEQA before this court." Towers nevertheless cites this CEQA procedural rule in an attempt escape dismissal of his non-CEQA claims under Code of Civil Procedure section 389. But Code of Civil Procedure section 389 applies to his non-CEQA claims. Having abandoned his CEQA claims, Towers cannot bootstrap his non-CEQA claims with CEQA-specific procedural requirements. Accordingly, we reject his argument.
Towers asserts in his briefing on appeal that Public Resource Code section 21167.6.5 argument is "the short answer to the question of whether TOWERS was required to serve the Petition on additional unknown parties, in unknown numbers. Without the benefit of the Public Resources Code section, the answer is much longer. However, TOWERS also supplied the Superior Court with nine pages of briefing on this point, exclusive of the Public Resources Code. TOWERS' argument, as contained in 'MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RESPONDENT'S MOTION FOR JUDGMENT OR DISMISSAL' [citation] is incorporated here." We reject Towers's attempt to tack on additional arguments to his opening brief by incorporating his argument in the trial court without developing these arguments in his appellate briefing. This attempt effectively evades the word count limit for appellate briefs under California Rules of Court, rule 8.204(c)(1). "To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.] When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.' " (In re S.C. (2006) 138 Cal.App.4th 396, 408.) An appellant must present each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made. (Cal. Rules of Court, rule 8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4 [reviewing court may disregard claims perfunctorily asserted without development].)
DISPOSITION
The judgment is affirmed. The County shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
MURRAY, J. We concur: BLEASE, Acting P. J. DUARTE, J.