Opinion
Review Granted April 13, 1994.
Review Granted Previously published at: 26 Cal.App.4th 1573, 21 Cal.App.4th 892
Opinion on pages 1573-1584 omitted.
REVIEW GRANTED. [Copyrighted Material Omitted] COUNSEL
[26 Cal.Rptr.2d 454] Baker & Hostetler, Donna R. Black, and Bradley R. Hogin, Los Angeles, for petitioner.
No appearance for respondent.
Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Walter E. Wunderlich, Sr. Asst. Atty. Gen., and M. Anne Jennings, Deputy Atty. Gen., for real party in interest Air Resources Bd.
OPINION
MIRIAM A. VOGEL, Associate Justice.
We hold in this case that, except when there is a return by way of a demurrer or by an answer admitting the truth of all material allegations, relevant evidence which was not presented at the administrative level is admissible in support of a petition for traditional mandate alleging non-compliance with the California Environmental Quality Act (CEQA), section 21000 et seq. of the Public Resources Code.
FACTS
The Western States Petroleum Association (WSPA) is dissatisfied with recent air quality " reactivity regulations" adopted by the Air Resources Board (ARB) to permit vehicles powered by " alternative" fuels to emit more air pollutants than those powered by conventional gasoline. Reduced to simplistic terms, the reactivity regulations assume certain emissions produced by alternative-fueled vehicles are less reactive than the same quantity of emissions produced by gasoline-powered vehicles and thus form less ozone in the lower atmosphere.
Following the ARB's adoption of the reactivity regulations and WSPA's unsuccessful administrative petition for their repeal (Gov.Code, § 11346 et seq.), WSPA filed a combined complaint and petition for writ of mandate (Code Civ.Proc., § 1085) in the superior court. The pleading claims the regulations are based on inaccurate and unsound data and (in one of nine causes of action) alleges the regulations were adopted sans CEQA compliance.
Unless otherwise stated, all section references are to the Code of Civil Procedure.
The ARB answered, after which WSPA propounded discovery requests in various forms. In response, the ARB filed a motion to limit evidence, contending WSPA's claims must be resolved solely on the administrative record of the ARB's rulemaking proceedings, without reference to any evidence outside that record. WSPA opposed the motion, contending that, at least as to its CEQA cause of action, judicial review is not limited to the administrative record. Following some irrelevant procedural glitches, the trial court agreed with WSPA that its CEQA claim was properly brought under section 1085 but nevertheless ruled that additional evidence is inadmissible because it would merely " challenge [the] materiality and the integrity of the [ARB's] determinations."
WSPA filed a petition asking for our assistance. Our review of the issue suggested this is an appropriate case for extraordinary relief and we therefore issued an order to show cause.
DISCUSSION
WSPA contends a petition for a traditional writ of mandate attacking an agency's quasi-legislative action on the ground the agency did not comply with CEQA may be supported by evidence which was not presented at the administrative level. We agree, subject to the qualification (explained below) that additional relevant evidence is admissible only when a question of fact is raised by the pleadings.
I.
Traditional mandate, as codified in section 1085, is the modern equivalent of the [26 Cal.Rptr.2d 455] common law prerogative writ of mandamus, and may be issued by any court, except a municipal or justice court, to any inferior tribunal, board or agency " to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person." (§§ 1084, 1085; 8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, § 4, pp. 643-644.) Administrative mandate (§ 1094.5), on the other hand, is the procedure used to obtain judicial review of adjudicatory decisions (i.e., decisions determining what the facts are in relation to specific private rights or interests) of state-level or local governmental bodies. (Deering, Cal. Administrative Mandamus (Cont.Ed.Bar 2d ed. 1989), § 1.1, p. 2.)
In traditional mandate, an alternative or peremptory writ may issue upon the filing of a verified petition. (§§ 1086, 1087.) Section 1088 precludes issuance of a peremptory writ without " due notice" and precludes issuance of either writ by default. Proof of service of a copy of the petition must be filed before a hearing is held (§ 1088.5) and the time within which an answer or demurrer (the " return") must be filed is geared to the time at which a record of the administrative proceedings is received by the court (§§ 1089, 1089.5). In the trial court's discretion, disputed questions of fact may be tried before a jury (§ 1090) and, at trial, the petitioner is not precluded by the " return from any valid objection to its sufficiency, and may countervail it by proof either in direct denial or by way of avoidance." (§ 1091.) If no return is made, the case may be heard on the petitioner's papers; if the return raises only questions of law, or puts in issue immaterial statements not affecting the substantial rights of the parties, the court must hear argument; and if the petition presents no triable issue of fact " or is based solely on an administrative record," the matter may be heard on noticed motion. (§ 1094.)
More specifically, subdivision (a) of section 1094.5 contemplates a petition for writ of administrative mandate " for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer...." Under subdivision (b) of the same section, the " inquiry in such a case shall extend to the questions whether the [agency] has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence."
CEQA recognizes this inherent distinction. It requires a petition for writ of administrative mandate when an action seeks review of a " determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance" with CEQA. (Pub. Resources Code, § 21168.) Conversely, CEQA requires a petition for a writ of traditional mandate in all other actions brought " to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance" with CEQA, in which event " the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (Pub. Resources Code, § 21168.5; Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal.App.4th 712, 729, 12 Cal.Rptr.2d 785).
In the context of the issue at bench, the type of mandate determines the result. Under subdivision (e) of section 1094.5, additional evidence is admissible only on a strictly limited basis: " Where the court finds that there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing before [the agency], it may enter judgment ... remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may [26 Cal.Rptr.2d 456] admit the evidence at the hearing on the writ without remanding the case." For reasons we will now explain, there is no similar limitation in matters (such as this case) which are properly brought under section 1085.
II.
The issue before us was resolved by the Supreme Court in 1974 and it is subject to continuing debate only because the waters have been muddied by a recent Court of Appeal decision. In No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 79, 118 Cal.Rptr. 34, 529 P.2d 66, footnote 6, the court recognized the availability of both types of mandate in CEQA proceedings and directly addressed the evidentiary issue:
" In an action for administrative mandamus, the court reviews the administrative record, receiving additional evidence only if that evidence was unavailable at the time of the administrative hearing, or improperly excluded from the record.... In a traditional mandamus action, on the other hand, the court is not limited to review of the administrative record, but may receive additional evidence. (Felt v. Waughop (1924) 193 Cal. 498, 504 [225 P. 862];
Lassen v. City of Alameda (1957) 150 Cal.App.2d 44, 48 [309 P.2d 520]; Cal.Civil Writs (Cont.Ed.Bar 1970) § 17.9.) Hence the issue before the superior court in the present case was whether substantial evidence, on the whole record including the evidence presented to that court, supported the [city council's] determination.... The superior court's finding— that the council's resolution was supported by substantial evidence ‘ in the administrative record’ — is not responsive to that issue." (Emphasis added.)
Lassen v. City of Alameda, supra, 150 Cal.App.2d at pages 47-48, 309 P.2d 520 (cited by the Supreme Court in the quoted portion of No Oil), explains the reason for this holding: " When a question of fact is raised by the defendant's answer, the applicant has the right to countervail it by proof, either in direct denial or by way of avoidance (Code Civ.Proc., § 1091). If only a question of law is raised the court may hear the matter upon the papers filed and the argument (Code Civ.Proc., § 1094). Applicant may also waive his right to countervail and the matter may be heard on the papers filed and the argument." (See also §§ 589 [an issue of law arises upon a demurrer or motion to strike]; 590 [an issue of fact arises upon a material allegation in the complaint controverted by the answer and upon new matters in the answer, except an issue of law].)
Read together, No Oil and Lassen teach that it is only when the agency fails to answer or admits the truth of the petitioner's allegations (affirmatively or by way of demurrer), or when the petitioner waives its right to dispute the factual averments alleged in the agency's return, that the petitioner may be deprived of its right to present additional evidence in a traditional mandate action. Stated in the language of a demurrer (§§ 1089, 430.30, subd. (a)), the trial court's determination of the merits of a petition for traditional mandate is limited to the administrative record only when there is no factual dispute and the agency says, in effect, " Assuming everything you say is true, we win and you lose." With one exception, all of the cases decided after No Oil support this conclusion.
In Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 271 Cal.Rptr. 393, an attack on a city's certification of an environmental impact report (EIR), the Sixth District held the city's actions were quasi-legislative within the meaning of section 21168.5 of the Public Resources Code and that, therefore, the Sierra Club's writ petition was properly treated as one for traditional mandate under section 1085. (Id. at p. 39, 271 Cal.Rptr. 393.) For this reason, the Court of Appeal held the trial court was wrong when it refused to receive in evidence a report which was not presented at the administrative level. (Id. at pp. 38, 41, 271 Cal.Rptr. 393.) In Friends of La Vina v. County of Los Angeles (1991) 232 Cal.App.3d 1446, 284 Cal.Rptr. 171, another challenge to an EIR, Division Two of our District reached the same result, holding the trial court had improperly [26 Cal.Rptr.2d 457] excluded declarations offered in opposition to the petition (which elaborated on what went on at the administrative level and explained actions which were not reflected in the administrative record). On remand, said the court, the agency must be allowed to present the declarations to support its position and the Friends of La Vina, in turn, must be given an opportunity to respond to those declarations. (Id. at p. 1457, 284 Cal.Rptr. 171.)
In Del Mar Terrace Conservancy, Inc. v. City Council, supra, 10 Cal.App.4th 712, 12 Cal.Rptr.2d 785, another attack on an EIR, Division One of the Fourth District reached the same result and, citing Sierra Club v. Gilroy City Council, supra, 222 Cal.App.3d at page 40, 271 Cal.Rptr. 393, explained that the " importance of the distinction between the two types of mandate ... lies in the rule that in ordinary mandamus conducted under section 21168.5 [of the Public Resources Code] and ... section 1085, the trial court is allowed to receive evidence outside the administrative record.... However, that procedure is not available under section 21168 [of the Public Resources Code because it incorporates] ... section 1094.5." (Del Mar Terrace Conservancy, Inc. v. City Council, supra, 10 Cal.App.4th at pp. 725-726, 12 Cal.Rptr.2d 785; see also Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 630, fn. 18, 216 Cal.Rptr. 502.)
But then we come to Shapell Industries , Inc . v. Governing Board (1991) 1 Cal.App.4th 218, 1 Cal.Rptr.2d 818, the cause of the confusion in our case. Shapell Industries , which is not a CEQA case, nevertheless involved quasi-legislative action— a school board's approval of two resolutions compelling the payment of school-impact fees. Shapell, a developer, filed a petition for a traditional writ of mandate attacking the resolutions as arbitrary, capricious and without evidentiary support and, in support of its petition, presented a report which was not before the Board at the time the resolutions were passed. The trial court granted Shapell's petition and on appeal the Board claimed the trial court should not have considered the report because it was not considered when the resolutions were adopted. Relying on No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at page 79, footnote 6, 118 Cal.Rptr. 34, 529 P.2d 66, and Sierra Club v. Gilroy City Council, supra, 222 Cal.App.3d at page 40, 271 Cal.Rptr. 393, Shapell claimed evidence outside the administrative record is admissible in traditional mandamus proceedings. ( Shapell Industries , Inc . v. Governing Board , supra , 1 Cal.App.4th at p. 233, 1 Cal.Rptr.2d 818.) This is what the Sixth District held:
Although the Sixth District also decided Sierra Club v. Gilroy City Council, supra, 222 Cal.App.3d 30, 271 Cal.Rptr. 393, Shapell Industries was decided by a different panel. The Sierra Club case was authored by Justice Cottle, with Justices Premo and Elia concurring. Shapell Industries was authored by Justice Bamattre-Manoukian, with Justices Agliano and Capaccioli concurring.
" The cited cases involved actions brought under the California Environmental Quality Act. Such cases are governed by specific standards of review contained in Public Resources Code sections 21168 and 21168.5, providing for a stricter inquiry than is indicated here. (See, e.g., Fullerton Joint. Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 794, fn. 14 [187 Cal.Rptr. 398, 654 P.2d 168].) While we do not reject the general proposition that a court may consider new evidence in a mandamus proceeding where factual questions are raised by the pleadings, we do not believe that rule applies here where we are presented only with the legal question whether an agency acting in its quasi-legislative capacity has exceeded its authority.... ‘ [T]he determination whether the decision was arbitrary, capricious or entirely lacking in evidentiary support must be based on the " evidence" considered by the administrative agency.’ ... Consideration of reports prepared long after the agency has acted would therefore be improper." ( Shapell Industries , Inc . v. Governing Board , supra , 1 Cal.App.4th at p. 233, 1 Cal.Rptr.2d 818.)
[26 Cal.Rptr.2d 458] Since Shapell Industries by its own terms excludes CEQA cases, it is immaterial whether we agree with its holding. As WSPA correctly notes, every case which has considered whether additional evidence may be presented to support or oppose a petition for writ of mandate brought pursuant to section 21168.5 of the Public Resources Code has concluded that such evidence is admissible except when no question of fact is presented by the pleadings— which occurs when the agency's return is by an answer expressly admitting the truth of the petitioner's allegations or by way of a demurrer, which by implication has the same affect. (No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at p. 79, 118 Cal.Rptr. 34, 529 P.2d 66; Lassen v. City of Alameda, supra, 150 Cal.App.2d at p. 48, 309 P.2d 520; §§ 589, 590, 1091, 1094.)
Shapell Industries holds that even where a question of fact is raised by the pleadings, new evidence may not be considered in a non-CEQA traditional mandamus action where the issue is whether an agency acting in a quasi-legislative capacity has exceeded its authority. ( Shapell Industries , Inc . v. Governing Board , supra , 1 Cal.App.4th at p. 233, 1 Cal.Rptr.2d 818.) In light of No Oil, we think Shapell Industries goes too far. No Oil was only the second CEQA case to reach the Supreme Court (No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at p. 73, 118 Cal.Rptr. 34, 529 P.2d 66) and the views expressed in that opinion about traditional mandate were necessarily based on non-CEQA cases, i.e., Felt v. Waughop, supra, 193 Cal. 498, 504, 225 P. 862, and Lassen v. City of Alameda, supra, 150 Cal.App.2d 44, 48, 309 P.2d 520. In Lassen, for example, where the petition sought a writ of traditional mandate to set aside a city's order for the formation of a reclamation district, the court held additional evidence was admissible to prove the city council had considered erroneous information when it fixed the district's boundaries. (Lassen v. City of Alameda, supra, 150 Cal.App.2d at p. 47, 309 P.2d 520.)
III.
When we apply the proper rule to the case before us, it is clear the trial court was wrong when it refused to admit WSPA's additional evidence on the ground that WSPA's CEQA cause of action does not give rise to a disputed question of fact because all it does is challenge the " materiality and the integrity" of the ARB's decision. The question at this stage is not whether the additional evidence proves WSPA's claims, but only whether the ARB concedes the truth of the allegations set out in WSPA's petition. Since those allegations are hotly contested, it follows that WSPA has made a prima facie showing for the admissibility of additional evidence. But this does not mean that every scrap of evidence WSPA offers is per se admissible.
No evidence is admissible unless it is relevant and evidence is " relevant" only when it tends in reason to prove or disprove " any disputed fact that is of consequence to the determination of the action," or to prove or disprove the truthfulness of testimony. (Evid.Code, §§ 350, 210.) In the context of a petition for a traditional writ of mandate under section 21168.5 of the Public Resources Code, the trial court's " determination of the action" extends " only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (See also § 1094.5, subd. (b).) No court has ever fine-tuned this arguably oxymoronic definition.
Standing alone, " abuse of discretion" is shown (1) where the lower court or other tribunal has (by statute or rule of policy) a discretionary power to decide an issue and (2) the decision it makes is arbitrary, capricious or whimsical, or an exhibition of ungoverned will, or a manifestation of unbridled power. It is the opposite of a sound judicial decision, enlightened by intelligence and learning, controlled by sound principles of law, of firm courage combined with the calmness of a cool mind, free from partiality, not swayed by sympathy nor warped by prejudice nor moved by any kind of influence save the overwhelming passion to do that which is just. (Gossman v. Gossman (1942) 52 Cal.App.2d 184, 195, 126 P.2d 178.) But as the court recognized in Shapell Industries , Inc . v. Governing Board , supra , 1 Cal.App.4th at p. 233, 1 Cal.Rptr.2d 818, CEQA requires a " stricter inquiry." [26 Cal.Rptr.2d 459] The ARB contends, and we agree, that run-of-the-mill " abuse of discretion" review must be based upon the record which was before the lower court or tribunal at the time it exercised its discretion. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 86 Cal.Rptr. 65, 468 P.2d 193.) Under CEQA's definition, however, " abuse of discretion" does not mean " abuse of discretion." In the wonderland of environmental review, it means the agency has either " not proceeded in a manner required by law" or that its " decision is not supported by substantial evidence." (Pub. Resources Code, § 21168.5.) This means evidence is relevant to the " determination of the action" if it tends in reason to prove the agency has " not proceeded in a manner required by law" or that its " decision is not supported by substantial evidence."
In Alice's wonderland, the March Hare told her to " say what you mean." She replied, " ‘ I do, ... at least I mean what I say— that's the same thing, you know.’ ‘ Not the same thing a bit!’ said the Hatter. ‘ Why, you might just as well say that " I see what I eat" is the same thing as " I eat what I see" !’ " (Lewis Carroll, Alice's Adventures in Wonderland (1865).) Or, as Humpty Dumpty put it, " ‘ When I use a word, ... it means just what I choose it to mean— neither more nor less.’ " (Ibid. )
No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at pp. 74-75, 118 Cal.Rptr. 34, 529 P.2d 66, an action arising out of a city's decision that it was not required to prepare an EIR before it approved two test oil wells, teaches that there are, as the statute states, two separate ways to establish abuse of discretion. In No Oil, the City of Los Angeles adopted ordinances approving the test wells before undertaking any kind of environmental review, a sequence of events the trial court found immaterial based on its conclusion that an EIR is required only when the project may have an " important" or " momentous" effect of semi-permanent duration. The Supreme Court rejected the trial court's limitation and concluded the environmental review process had to precede the agency's action. For these reasons, the Court held, the agency had failed " to proceed in the manner required by law" and it was thus unnecessary to " reach the question whether [the agency's] decision [was] supported by substantial evidence." At a minimum, therefore, we know that a failure to proceed in the manner required by law is not just another way of saying the agency reached a decision which was not supported by substantial evidence. At this stage of the case before us, it is not for us to say which items of additional evidence are admissible in support of WSPA's CEQA claims. At trial (§§ 1090, 1091), WSPA may offer evidence, in addition to the administrative record, and may at that time explain to the trial court how each proffered item tends reasonably to prove that the ARB " has not proceeded in a manner required by law" or has reached a decision which is " not supported by substantial evidence." (Pub. Resources Code, § 21168.5.) The ARB, in turn, will then have the opportunity to offer its own relevant evidence. [26 Cal.Rptr.2d 460] (Friends of La Vina v. County of Los Angeles, supra, 232 Cal.App.3d at p. 1457, 284 Cal.Rptr. 171.) And the trial court, as in any other case, will decide what is admissible and what is not. In making these decisions, the court may find some guidance (at least by analogy) in the discussion of subdivision (b) of section 1094.5 (abuse of discretion in administrative mandate proceedings " is established if the [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence") in Deering, California Administrative Mandamus, supra, section 4.43 et seq.
Dozens of cases refer to Public Resources Code section 21168.5. They reach different results, depending upon whether judicial review is sought before, during or after an agency makes its environmental decision or depending upon considerations which are not present in this case. Some are decided on the basis of whether an agency proceeded in the manner required by law, others on the question of substantial evidence. See, e.g., Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392, 253 Cal.Rptr. 426, 764 P.2d 278; Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1072, 230 Cal.Rptr. 413; Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1316-1318, 8 Cal.Rptr.2d 473; City of Poway v. City of San Diego (1984) 155 Cal.App.3d 1037, 1041, 202 Cal.Rptr. 366; Environmental Council v. Board of Supervisors (1982) 135 Cal.App.3d 428, 436, 185 Cal.Rptr. 363; Plaggmier v. City of San Jose (1980) 101 Cal.App.3d 842, 857, 161 Cal.Rptr. 886; Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 355, 182 Cal.Rptr. 317; Dehne v. County of Santa Clara (1981) 115 Cal.App.3d 827, 835-836, 171 Cal.Rptr. 753; Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577, 589, 284 Cal.Rptr. 498; Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 563-564, 276 Cal.Rptr. 410, 801 P.2d 1161; Marin Mun. Water Dist. v. KG Land California Corp. (1991) 235 Cal.App.3d 1652, 1660, 1 Cal.Rptr.2d 767.
DISPOSITION
Let a writ of mandate issue, commanding the superior court to (1) vacate its order of August 31, 1993, and (2) enter a new order denying the ARB's motion to exclude evidence.
ORTEGA, Acting P.J., and MASTERSON, J., concur.