Judge: Curtis A. Kin, Case: 24STCP01244, Date: 2024-11-12 Tentative Ruling

Case Number: 24STCP01244    Hearing Date: November 12, 2024    Dept: 86

MOTION TO DISMISS

Date:               11/12/24 (1:30 PM)

Case:                           Tangerine Holdings, LLC v. The City of Rancho Palos Verdes et al. (24STCP01244)

TENTATIVE RULING:

Respondents City of Rancho Palos Verdes and City Council of the City of Rancho Palos Verdes’ Motion to Dismiss is GRANTED.

Respondents’ requests for judicial notice are GRANTED. (Evid. Code § 452(h).)

As a preliminary matter, based on the hearing date of 11/12/24, the deadline to file an opposition was 10/29/24. (CCP § 1005(b) [opposition must be served and filed nine court days before hearing].) Petitioner Tangerine Holdings, LLC untimely served and filed its opposition on 11/4/24. Despite the untimely filing of the opposition, the Court exercises its discretion and considers the opposition. (Rule of Court 3.1300(d) [“No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)  

Respondents move to dismiss the first cause of action for violations of the California Environmental Quality Act (“CEQA”) because: (1) petitioner Tangerine Holdings, LLC did not object to the City Council’s approval of the Project before the close of the public hearing; and (2) petitioner did not file a request a hearing within 90 days of filing the action.

With respect to the first ground, respondents contend that petitioner failed to exhaust of administrative remedies. Public Resources Code § 21177(b) states: “A person shall not maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period provided by this division or before the close of the public hearing on the project before the filing of notice of determination pursuant to Sections 21108 and 21152.” Section 21177 codifies “without change the judicially created exhaustion doctrine.” (Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 591.) “Under the doctrine of exhaustion of administrative remedies, ‘where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.’ This rule ‘is not a matter of judicial discretion, but is a fundamental rule of procedure laid down by courts of last resort, followed under the doctrine of stare decisis and binding upon all courts.’” (Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1447.)

Here, respondents acknowledge that Ben Eilenburg, petitioner’s Chief Operating Officer of petitioner, presented oral testimony at the hearing. (Mtn. at 7:6-11, citing RJN Ex. 3 at 166; Ex. 6 at 105-06.) Respondents take issue with the fact that Mr. Eilenburg did not identify himself as speaking on behalf of petitioner Tangerine Holdings, LLC.  While that may be true, the Court does not find that petitioner failed to exhaust administrative remedies under the circumstances.  To begin with, section 21177(b) does not expressly require persons to identify themselves in public comments. The statute only requires a person to object to the approval of a project. The definition of “person” under CEQA includes limited liability companies like petitioner. (Pub. Res. Code § 21066; Pet. ¶ 10.) Moreover, Eilenburg stated before the City Council that his company owns properties in the City. (RJN Ex. 6 at 105:4-6.) Eilenburg’s reference to his company is reasonably viewed as an objection to the approval of the Project on behalf of petitioner. Accordingly, the Court finds that respondents’ assertion that petitioner failed to exhaust administrative remedies is without merit.

With respect to the second ground, Public Resources Code § 21167.4(a) states: “In any action or proceeding alleging noncompliance with this division [where CEQA is codified], 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.” “The meaning of the language used in section 21167.4, subdivision (a) is unambiguous. It requires superior courts to grant a motion to dismiss filed by an interested party when a CEQA petitioner has failed to file a request for hearing within 90 days from the date of filing the petition. Furthermore, dismissal is mandatory regardless of whether a request for hearing was filed before the motion to dismiss.” (Fiorentino v. City of Fresno (2007) 150 Cal.App.4th 596, 605, footnote omitted.)

Here, it is undisputed petitioner did not comply with section 21167.4. (Opp. at 4:8-9.) Petitioner has not filed any request for a hearing since the filing of the petition. Accordingly, upon motion, the CEQA cause of action is subject to mandatory dismissal. Petitioner cites to Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830 for the proposition that the Court has discretion not to dismiss the CEQA cause of action for untimely failure to request a hearing. This is inaccurate.  Indeed, the Court states explicitly: “Public Resources Code section 21167.4 provides that if the petitioner does not request a hearing within 90 days of filing a CEQA petition, the petition is ‘subject to dismissal.’ The statute has been construed as mandatory.” (Board of Supervisors, 23 Cal.App.4th at 845, citing San Franciscans for Reasonable Growth v. City and County of San Francisco (1987) 189 Cal.App.3d 498, 503.)

With respect to petitioner’s claim that respondent delayed in providing the administrative record, that fact, even if true, does not affect the mandatory dismissal here.  A delay in receiving the administrative record would not have prevented petitioner from filing the request for a hearing. The setting of the hearing would have occurred after the request for hearing was made, and the Court could have considered any delay in competition of the administrative record when setting the hearing. (County of Sacramento v. Superior Court (2009) 180 Cal.App.4th 943, 951; Pub. Res. Code § 21167.4(c).)  Petitioner’s citation to Local Rule 3.232(h) is also unavailing.  Notably, the first command of rule 3.232(h) is that “[p]etitioner must request a hearing within 90 days of filing the petition.” (LASC Rule 3.232(h), citing Pub. Res. Code § 2.1167.4.)  The only reference to the administrative record in the local rule is that “[o]rdinarily, the court will not set the matter for trial until it is assured that he administrative record is or will be ready.” (LASC Rule 3.232(h).)   That statement does not excuse a petitioner’s obligation to timely make the request for hearing.

Finally, to the extent petitioner maintains that the failure to timely request a hearing date should be excused based on attorney fault (Opp. at 6:21-7:2), no such motion is currently before the Court.

The motion is GRANTED. The first cause of action for Violations of CEQA is hereby DISMISSED.