Judge: Joel L. Lofton, Case: 22STCP03357, Date: 2023-04-10 Tentative Ruling
Case Number: 22STCP03357 Hearing Date: April 10, 2023 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: April
10, 2023 TRIAL DATE: No date set.
CASE:
Protect Our Emergency Evacuation
Routes vs City of Agoura Hills and Agoura Hills City Council
CASE NO.: 22STCP03357
MOTION
TO DISMISS
MOVING PARTY: Respondents/Defendants City of
Agoura Hills and Agoura Hills City Council
RESPONDING PARTY: Petitioner/Plaintiff
Protect Our Emergency Evacuation Routes
RELIEF
REQUESTED
Motion to Dismiss
the FAP due to Petitioner’s failure to file a timely request for hearing pursuant to Public Resources Code section
21167.4(a).
TENTATIVE RULING
Plaintiff’s
motion to dismiss the first and second causes of action is tentatively
GRANTED.
BACKGROUND
On
September 12, 2022, Protect our Emergency Evacuation Routes (“Petitioner”)
filed a Petition for a Peremptory Writ of Mandate and Complaint for Declaratory
and Injunctive Relief against City of Agoura Hills and Agoura Hills City
Council (“Respondents”). On September
16, 2022, Petitioner filed the operative First Amended Petition (“FAP”). The
FAP alleges three causes of action for (1) Violation of CEQA; (2) Abuse of
Discretion: Findings not Supported by Substantial Evidence; and (3) Violation
of Government Code section 65302.15. The
FAP challenges the City’s certification of a Subsequent Environmental Impact
Report, approval of a General Plan Update, and adoption of several Zoning
Ordinances amending the City’s residential density and establishing an
affordable housing overlay.
On March 9, 2023, Respondents filed this
Motion to Dismiss the FAP filed by Petitioner on the grounds that Petitioner
failed to file a written request for hearing within 90 days of its original
Petition and its FAP, pursuant to Public Resources Code section 21167.4(a). In response, Petitioner argues that relief for
the first two causes of action should be granted under Code of Civil Procedure
section 473 and that the third cause of action is not subject to the mandatory
dismissal provision.
LEGAL STANDARD
Pursuant to Public Resources Code
section 21167.4, subdivision (a), in any action alleging noncompliance with the
California Environmental Quality Act (“CEQA”), 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.” Dismissal
is mandatory when a timely request for hearing is not filed. (Fiorentino v.
City of Fresno (2007) 150 Cal.App.4th 596, 603.) The legislative intent behind this statute
serves to ensure that “CEQA challenges are promptly filed and diligently
prosecuted.” (Nacimiento Regional Water Management Advisory Committee v.
Monterey County Water Resources Agency (2005) 122 Cal.App.4th 961,
968-969.)
However, if a petitioner fails to comply with this statutory deadline,
a trial court may grant a motion for discretionary relief based on excusable
neglect, pursuant to Code of Civil Procedure section 473. (Comunidad en
Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1121.) California Code of Civil Procedure section
473, subdivision (b) states: “The court may, upon any terms as may be just,
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. Application for this relief shall be accompanied by a
copy of the answer or other pleading proposed to be filed therein, otherwise
the application shall not be granted… (Emphasis added).” Notably, only the discretionary provision of
section 473 applies to CEQA dismissals, and the mandatory relief provision for attorney
mistakes does not apply as it would defeat the legislative purpose behind section
21167.4. (Nacimiento Regional Water Management Advisory Committee, supra, 122
Cal.App.4th at 968-969.)
The original Petition was
filed by Petitioner on September 12, 2022. The First Amended Petition was filed
by Petitioner on September 16, 2022. Thus, pursuant to Public Resources Code
section 21167.4, subdivision (a), Petitioner was to file a request for hearing
by, at the latest, December 15, 2022.
The parties agree that this was not done, and Petitioner concedes therefore
that the Petition is subject to the mandatory dismissal provision.
Petitioner requests relief
under section 473, arguing that the failure to file the Request for Hearing
constituted excusable neglect. “The
decision of whether to grant relief for the failure to file a timely hearing
request implicates two competing public policies—the strong preference for a
trial on the merits and the policy favoring expeditious review of CEQA
challenges.” (Comunidad en Accion, supra, 219 Cal.App.4th at 1131.) Notwithstanding
the expedited nature of CEQA cases, CEQA does not categorically bar relief
under Code of Civil Procedure section 473. (Ibid.) Courts have afforded
plaintiffs relief for the failure to properly request a hearing under Public
Resources Code section 21167.4, but only when such failure constituted
excusable error. (Ibid.) In addition, the court must consider the
attorney’s overall diligence in prosecuting the case. (McCormick v. Board of
Supervisors (1988) 198 Cal.App.3d 352, 361.)
In Comunidad en Accion,
the court found that relief should be granted when the attorney made an
excusable single calendar error causing petitioner to file the request for
hearing one week late. (Id. at 1135.) The court found that relief was
warranted because Comunidad’s counsel was diligent in prosecuting the case, the
motion for relief was filed a week after the hearing request, and it could not
be reasonably argued that respondents would have suffered prejudice from the
one-week delay in requesting a hearing as respondents sought extensions to
prepare the administrative record. (Id. at 1133.)
Likewise, the court in McCormick
found that relief under section 473 was permitted when counsel had made a
genuine mistake in the law. (McCormick, supra, 198 Cal.App.3d at 361.)
The court also found that the petitioner was otherwise diligent in pursuing the
claim, as petitioner had promptly filed a request for preparation of the
record, consulted with opposing counsel, filed a pre-settlement and joint
settlement statement, and ensured that a hearing on the petition for writ of
mandate was already on the court’s calendar at the time of the hearing on
dismissal. (Id. at 362.) F
The
overall theme in the above cases analysis for the sought after relief is the
attorney’s overall diligence in prosecuting the case. In Comunidad en Accion, the petitioner
filed the Request a week after the deadline, and, in McCormick, the Request
was filed only with a month delay. Here, almost four months have passed
since the deadline. Petitioner argues
that relief should be granted due to excusable error. Counsel for Petitioner states he had prepared
a Request for Hearing in this action and directed his new paralegal to file it
with the Court; however, the paralegal failed to file the Request, and Counsel
failed to confirm that it was filed. (Naficy Decl., ¶ 4.) Petitioner argues
that, otherwise, Petitioner has vigorously prosecuted the case by repeatedly
contacting the City to ask for documents to complete the administrative record.
(Naficy Decl., ¶ 6.) However, counsel does
not state when he discovered the request for hearing was not actually filed and
also does not explain why he waited until April 7, 2023, to finally file it. This is nearly a month after the instant
motion was filed and over three months after the initial deadline. Therefore, although the Court finds that
Petitioner’s counsel made an isolated error in failing to file the Request for
Hearing, the Court cannot find that Petitioner has otherwise acted diligently
in remedying the error and prosecuting the action. Additionally, Petitioner has failed to comply
with the procedural requirements for seeking relief under section 473(b).
A party seeking affirmative
relief from dismissal under section 473(b) is required to file and serve a
noticed motion. (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th
333, 341.) Here, Petitioner raised their section 473(b) argument in their
opposition to the motion to dismiss, not a properly noticed motion. Additionally, the application for relief
under section 473 requires that “a copy of the answer or other pleading
proposed to be filed,” otherwise, “the application shall not be granted.” (Code
Civ. Proc. § 473(b).) Here, Petitioner has failed to attach its proposed Request
for Hearing that would remedy the dismissal.
In summary, although Petitioner argues, and
the Court agrees, that the public policy behind CEQA cases favors a resolution
on the merits, section 21167.4 was specifically drafted to ensure that “CEQA
challenges are promptly filed and diligently prosecuted.” (Nacimiento
Regional Water Management Advisory Committee, supra, 122 Cal.App.4th at
968-969.) The Legislature intended that a CEQA challenge be heard within 210
days of commencement of the lawsuit. (Id. at 968.) As of the date of this hearing, 210 days will
have passed since the filing of this lawsuit, and almost four months have
passed since the Request for Hearing Deadline.
The Court finds that granting relief in this instance would defeat the
legislative purpose behind section 21167.4.
The third cause of action in
the FAP alleges violation of Government Code section 65302.15. Government Code
section 65302.15 requires localities to adopt, review, and update local hazard
mitigation plans “to identify evacuation routes and their capacity, safety, and
viability and evacuation locations under a range of emergency scenarios.”
(Govt. Code § 65302.15, subd. (a).) Respondents
argue that this third cause of action is subject to dismissal pursuant to
21167.4 because the third cause of action “incorporates by reference each and
every allegation contained in the preceding paragraphs of this Petition.” (See
FAP ¶ 41.) This is standard language in a complaint or petition to avoid
the repetition of relevant allegations. Subsequent allegations of the FAP
discuss the City’s failure to adopt and update wildfire or flooding evacuation
plans. (FAP ¶¶ 24-29.) These facts are pertinent to the third cause of action
and are distinct from the CEQA claims in the first and second causes of action
which challenge the adequacy of the Subsequent Environmental Impact Report’s
conclusions regarding the subject development and rezoning project. The third
cause of action challenges not the adequacy of the environmental report, but
the City’s failure to review and update their evacuation plans. It is therefore
not subject to dismissal pursuant to Public Resources Code section 21167.4.
CONCLUSION
Based on the foregoing, the court dismisses only the first and second
causes of action for failure to comply with Public Resources Code section
21167.4.
Moving Party to give notice.
IT
IS SO ORDERED.
DATED:
_____________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an
email to the court indicating their
intention to submit.
Parties intending to appear are strongly encouraged to appear remotely. alhdeptx@lacourt.org