Friends for
City of Fullerton
Filed 6/26/12 Friends for Fullerton’s Future v. City of Fullerton CA4/3
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
FRIENDS FOR FULLERTON’S FUTURE
et al.,
Plaintiffs and Appellants,
v.
CITY OF FULLERTON et al.,
Defendants and Respondents.
G044597
(Super. Ct. No. 30-2009-00307451)
O P I N I O N
Appeal
from a judgment of the Superior Court
of
County, Franz E. Miller, Judge. Affirmed.
C.
Robert Ferguson for Plaintiffs and Appellants.
Rutan
& Tucker, Jeffrey M. Oderman and William H. Ihrke for Defendants and
Respondents City of Fullerton, City Council of the City of Fullerton and
Fullerton Redevelopment Agency.
Nicholas
S. Chrisos, County Counsel,
and James C. Harman, Deputy County Counsel, for Defendant and Respondent
Auditor-Controller for the County of Orange.
* * *
Plaintiffs
and appellants Friends for Fullerton’s Future and Tony Bushala (collectively,
“Plaintiffs”
appeal from a judgment rejecting their challenges to the amendedredevelopment plan defendants and respondents City of Fullerton, City Council
of the City of Fullerton, and Fullerton Redevelopment Agency (collectively,
“City”
adopted. The trial court enteredjudgment without reaching the merits of Plaintiffs’ claims after it denied
their application for relief from their failure to timely serve the Attorney
General as required by Health and Safety Code section 33501.3.
Section
33501.3 prohibits a court from granting relief in an action challenging a
redevelopment plan unless the party files proof it served its pleading and
briefs on the Attorney General within three days of filing those documents with
the court. Section 33501.3 allows a
court to permit a party to serve the Attorney General after this three-day
period, but only upon showing (1) good cause for failing to timely serve
the Attorney General and (2) the untimely service will not prejudice the
Attorney General’s ability to review and possibly participate in the action.
Plaintiffs
sought permission to serve the Attorney General more than a year after they
filed this action based on their attorney’s declaration stating he did not know
about section 33501.3 and its service requirements. The trial court denied Plaintiffs’
application based on its finding that the attorney’s mistake of law did not
constitute good cause for failing to comply with section 33501.3. We agree and affirm the trial court’s
judgment.
I
Facts and Procedural History
In
September 2009, Plaintiffs filed this action to challenge the City’s decision
to amend its redevelopment plan to add nearly 1,200 acres to the City’s
redevelopment project. Plaintiffs
alleged these new areas did not qualify for inclusion in a redevelopment
project because they did not meet the statutory definition of blighted
areas. According to Plaintiffs, the City
improperly sought to use redevelopment to subsidize economic development in the
areas rather than revitalize blighted areas.
The complaint sought a judgment invalidating the ordinance the City
adopted to amend its redevelopment plan and also requested
Plaintiffs
served the City and published the summons as required for any challenge to a
redevelopment plan or amendment. The
City answered Plaintiffs’ complaint in December 2009 and the defenses it
alleged included Plaintiffs’ failure to serve a copy of the complaint “on
public entities, state agencies and/or third parties pursuant to applicable
law, including but not limited to Health and Safety Code section 33500
860 et seq., and Code of Civil
Procedure section 417.10.”
The
court originally set an October 2010 trial date, but continued it to December
2010 when the parties experienced delays in preparing the administrative
record. Plaintiffs filed their trial
brief on September 1, 2010, and the City filed its trial brief on October 14,
2010. The City’s brief argued section
33501.3 prohibited the court from granting Plaintiffs any relief because they
failed to timely serve their complaint and trial brief on the Attorney General
and could not establish good cause for their failure to do so. Plaintiffs served both their complaint and
trial brief on the Attorney General by overnight delivery on October 18,
2010.
On
November 2, 2010, Plaintiffs filed an ex parte application seeking “relief from
an inadvertent non-compliance with Health & Safety Code §33501.3 in that
the California Attorney General was not served with copies of their Complaint
and Opening Brief within the three days allowed.” Plaintiffs sought relief based on
section 33501.3’s good cause exception only. They did not request relief under either the
mandatory or discretionary relief provisions in Code of Civil Procedure section
473, subdivision (b).
In
support of the application, Plaintiffs’ counsel declared that he reviewed
sections 33500 and 33501 to confirm that 2006 amendments to those sections
extended the statute of limitations from 60 days to 90 days, but “I was unaware
that any other changes had been made or that there were several new
subdivisions. As a result, I
inadvertently did not know of any reason to look further. Section 33501 is on page 330, but section
33501.3 is on page 334 of Deering’s Pocke[t] Supplement.” Plaintiffs’ counsel also declared that “I
have commenced over sixty (60) reverse validation actions” and “have always
worked diligently to make sure that all of the barriers placed in the statutes
to discourage reverse validation actions are complied with.”
The
trial court continued the hearing on Plaintiffs’ ex parte application to give
the parties an opportunity to submit further briefing. On November 16, 2010, the court denied
Plaintiffs’ application because it found they did not establish good cause for
their failure to serve the Attorney General.
The court explained:
“[I]t’s
very clear from the cases that I can find that they split this concept of good
cause for relief from some sort of procedural defalcation in terms of things
like notice to the Attorney General and the element of no harm. There has to be good cause for the mistake,
and there has to be no prejudice.
“I
have no problem making the no prejudice finding in this case. But then you get down to what’s good
cause. And the cases — you know, these
cases seem to embrace [Code of Civil Procedure section] 473 as an analysis as
to what good cause is. And the cases
that seem to say uniformly that the attorney’s ignorance is not good cause, and
that certainly is something that would have led to the Legislature to enact
[Code of Civil Procedure section] 473[, subdivision] (b), that when the lawyer
does make a mistake like that, you’re — in fact, you’re absolutely entitled to
relief if it’s the attorney’s fault and they do a declaration of fault.[
that because you said, ‘Hey, I just didn’t see the new statutory requirement
here. When they changed some of this
stuff, I just didn’t see it.’ And it’s a
lawyer’s nightmare. I mean that’s part
of the reason that I’m somewhat empathetic.
[¶] . . . [¶]
“But
to the extent there’s any law talking about whether the Legislature would
[e]ngraft [Code of Civil Procedure section] 473[, subdivision] (b) onto this
type of requirement, the cases, to the extent there is — there are cases, seem
to be to the contrary. So I believe as a
matter of law there’s not good cause to grant relief.”
The
trial court then entered judgment against Plaintiffs because their “failure to
serve timely the Attorney General and lack of good cause authorizing late‑service
pursuant to Health & Safety Code § 33501.3 [prevented] the Court [from]
grant[ing] any relief, temporary or permanent, to Plaintiffs as prayed for in
their Complaint . . . .”
Plaintiffs timely appealed.
II
Discussion
A. Applicable
Law Regarding Validation and Reverse
Validation Actions
Under
the validation statutes, a public agency may seek a judicial determination
regarding the validity of many of its actions, including its decision to adopt
or amend a redevelopment plan. (Code
Civ. Proc., § 860; §§ 33500, subds. (a) & (b), 33501, subds. (a)
& (b); Katz v. Campbell Union High
School Dist. (2006) 144 Cal.App.4th 1024, 1027-1028 (
“If the agency does not seek validation within the time required, any
‘interested person’ may file what is sometimes called a reverse validation
action to test the validity of the matter.
[Citation.]” (
Proc., § 863.) If neither the
public agency nor an interested person files a lawsuit within the statutory
period, “the agency’s action will become immune from attack whether it is
legally valid or not.”
name="_ftnref4" title="">[4] (City
of Ontario v. Superior Court
(1970) 2 Cal.3d 335, 341‑342 (City
of Ontario).) Accordingly, “an
agency may indirectly but effectively ‘validate’ its action
at p. 341, original italics.)
“The
validation procedure is intended to provide a uniform mechanism for prompt
resolution of the validity of a public agency’s actions. [Citation.]
The procedure ‘assures due process notice to all interested persons’ and
settles the validity of a matter ‘once and for all by a single lawsuit.’ [Citation.]”
(Katz, supra, 144 Cal.App.4th at p. 1028.)
The
validation statutes include a number of strict procedural requirements,
including publishing the summons and identifying a date certain for responding
to the validation or reverse validation complaint. (Katz,
supra, 144 Cal.App.4th at
p. 1028.) Failure to follow the
governing procedures may result in the action’s dismissal without a ruling on
the merits. (Id. at pp. 1028, 1035.)
In
actions challenging a redevelopment plan or amendment based on the agency’s
blight determinations, section 33501.3 requires all parties to serve their
pleadings and briefs on the Attorney General within three days of filing the
documents with the court. If a party
fails to file proof of timely service on the Attorney General, “[r]elief,
temporary or permanent, shall not be granted to [the] party . . . .” (§ 33501.3.) “A court may, by court order, allow a party
to serve the Attorney General after the three‑day period, but only upon
showing of good cause for not complying with the three‑day notice
requirement, and that late service will not prejudice the Attorney General’s
ability to review, and possibly participate in, the action.” (Ibid.) Accordingly, to obtain relief from failing to
timely serve the Attorney General, a party must establish both good cause for the failure and
lack of prejudice to the Attorney General.
Here,
Plaintiffs concede they did not serve the Attorney General until a year after
they filed their complaint and one and one-half months after they filed their
opening brief. Nonetheless, they contend
they established good cause for these failures based on their attorney’s declaration
stating he did not know the complaint and brief had to be served on the
Attorney General.
B. Standard
of Review
No
reported case addresses section 33501.3’s good cause exception, but several
reported cases address a good cause exception established by another statute in
the validation action statutory scheme. Specifically, several cases address Code of
Civil Procedure section 863’s good cause exception, which allows a trial court
to excuse a plaintiff’s failure to complete publication of the summons within
the statutory time period if the plaintiff shows good cause for that
failure. (City of Ontario, supra,
2 Cal.3d at pp. 345-346; Community
Youth Athletic Center v. City of National City (2009) 170 Cal.App.4th
416, 430-431 (Community Youth);
61 Cal.App.3d 570, 575-576 (Card);
Community Redevelopment Agency v.
Superior Court (1967) 248 Cal.App.2d 164, 173-174 (
These
cases uniformly hold that whether a “plaintiff demonstrated good cause for
failing to comply with the summons publication requirements [citation] is a
question that is committed to the sound discretion of the trial court. Accordingly, we review the trial court’s
decision on that point for abuse of discretion.” (Katz,
supra, 144 Cal.App.4th at
p. 1031; see also City of Ontario,
supra, 2 Cal.3d at
pp. 345-346; Community Youth,
pp. 430-431; Card,
pp. 575-576; Community Redevelopment,
supra, 248 Cal.App.2d at
pp. 173-174.) Indeed, because good
cause for failing to perform a procedural requirement is a factual question
based on the surrounding circumstances, the “proper decision ‘“rests almost
entirely in the discretion of the court below, and appellate tribunals will
rarely interfere, and never unless it clearly appears that there has been a
plain abuse of discretion.”’
[Citations.]” (
Plaintiffs
acknowledge these authorities and the abuse of discretion standard they apply,
but nonetheless argue we should independently review the trial court’s ruling
because the court ruled “as a matter of law there’s not good cause to grant
relief.” They are mistaken.
In
analyzing whether a party’s excuse for failing to comply with a statute’s
procedural requirements constitutes good cause, “the [trial] court has to
utilize its discretion to analyze the circumstances before it.” (Community
Youth, supra,
170 Cal.App.4th at p. 426.)
Here, the trial court’s determination that the excuse Plaintiffs offered
did not constitute good cause as a matter of law did not change the nature of
the court’s analysis, or the standard under which we review the court’s
ruling.
The
trial court did not conclude it lacked the discretion to grant Plaintiffs
relief from section 33501.3’s service requirements; it merely ruled the excuse
Plaintiffs offered could not satisfy the governing standards for good
cause. To overturn that determination,
we must conclude that Plaintiffs’ excuse constituted good cause as a matter of
law and therefore the trial court had no discretion to deny Plaintiffs
relief. Plaintiffs do not contend the
court erroneously interpreted section 33501.3 or applied an erroneous legal
standard. Accordingly, we review the
court’s ruling under the abuse of discretion standard.
C. The
Trial Court Did Not Abuse Its Discretion in Finding Plaintiffs Failed to Establish
Good Cause
Plaintiffs
contend they established good cause for relief because their attorney declared
he was unaware of section 33501.3’s service requirements. The trial court, however, properly found this
mistake of law did not constitute good cause for failing to serve the Attorney
General.
As
explained above, no reported decision addresses section 33501.3 and its good
cause exception, but several cases address what amounts to good cause under
Code of Civil Procedure section 863 for failing to timely publish the summons
in a reverse validation action. Those
cases explain that good cause “‘“may be equated to good reason for a party’s
failure to perform that specific requirement [of the statute] from which he [or
she] seeks to be excused.” [Citation] . . .’ [Citation.]”
(Katz, supra, 144 Cal.App.4th at p. 1036, quoting
p. 174; see also City of Ontario,
supra, 2 Cal.3d at
pp. 345-346.)
In
determining whether good reason exists for failing to comply with statutory
requirements, courts apply the same standards used to decide whether to grant
relief from a default or dismissal under the discretionary relief provision in
Code of Civil Procedure section 473, subdivision (b). (City
of Ontario, supra, 2 Cal.3d
at pp. 345-346 [good cause under Code of Civil Procedure section 863
governed by same standard as relief from default under Code of Civil Procedure
section 473, subdivision (b)]; Community
Redevelopment, supra,
248 Cal.App.2d at pp. 173-175 [relying on cases decided under Code of
Civil Procedure section 473, subdivision (b), to decide good cause question
under Code of Civil Procedure section 863]; see also Community Youth, supra,
170 Cal.App.4th at p. 430 [relying on City of Ontario and Community
Redevelopment to evaluate good cause]; Katz,
supra, 144 Cal.App.4th at
p. 1036 [same]; Card,
pp. 575-576 [same].)
A
mistake of law, like the one Plaintiffs present, “is not sufficient in itself
to support a good-cause finding.” (
constitute excusable neglect presents a fact question; the determining factors
are the reasonableness of the misconception and the justifiability of lack of
determination of the correct law.
[Citation.] Although an honest
mistake of law is a valid ground for relief where a problem is complex and
debatable, ignorance of the law coupled with negligence in ascertaining it will
certainly sustain a finding denying relief.”
[Citation.]’ [Citation.]” (City
of Ontario, supra, 2 Cal.3d
at p. 346, quoting Community
Redevelopment, supra,
248 Cal.App.2d at p. 174; see also Katz, supra,
144 Cal.App.4th at p. 1036.)
In short, “‘[i]gnorance of the law, at least where coupled with
negligence in failing to look it up, will not justify a trial court in granting
relief . . .’
[Citation.]” (
pp. 174-175.)
In
Community Redevelopment, the Court of
Appeal concluded the trial court abused its discretion by finding good cause
existed for the plaintiffs’ failure to publish summons under Code of Civil
Procedure section 863. (
248 Cal.App.2d at p. 175.) The
plaintiffs argued good cause existed based on their attorney’s “‘honest mistake
of law’” on whether Code of Civil Procedure section 863 applied to the
challenges the plaintiffs brought against a redevelopment plan. (Id.
at pp. 171-172.) The Court of
Appeal rejected that argument because whether the publication requirement
applied was not debatable and the statute’s procedures were not complex. (Id.
at pp. 174-175.) The
amendments to the Health and Safety Code enacted three years before the
plaintiffs filed their action plainly made Code of Civil Procedure section 863
applicable to challenges regarding redevelopment plans, and the plaintiffs’
attorney’s failure to look up the “readily available” law did not constitute
good cause under the foregoing standards.
(Ibid.)
Here,
as in Community Redevelopment, the
Legislature amended the Health and Safety Code to add section 33501.3
approximately three years before Plaintiffs filed this action. That section’s requirements are not complex
and their application to this action is not debatable. Indeed, Plaintiffs’ attorney does not claim
he failed to understand section 33501.3’s service requirements nor does he
dispute they applied to this action.
Plaintiffs’ attorney acknowledged he knew the Legislature amended the
Health and Safety Code provisions regarding challenges to redevelopment plans,
but also conceded he did not look past the statutory provisions specifying the
statute of limitations for those challenges.
It appears Plaintiffs’ attorney failed to find the plainly applicable
law. As the trial court did, we
empathize with Plaintiffs’ attorney because the practice of law is filled with
traps for the wary and unwary alike.
Section 33501.3, however, requires a showing of good cause to grant
relief from its service requirements and empathy is not enough.
Plaintiffs
fail to cite any authority supporting their contention that an attorney’s
failure to find the plainly applicable law provides good cause for failing to
comply with that law. They argue
court to find Plaintiffs established good cause.
finding that the plaintiff did not establish good cause for failing to properly
publish summons in a reverse validation action.
(Community Youth,
p. 432.) That case, however, did
not involve an attorney’s failure to find the plainly applicable law. Instead, the attorney mistakenly relied on an
incorrect date in the published summons for the deadline to respond to the
complaint. (Id. at p. 423.) The
Court of Appeal found good cause existed for allowing the plaintiff to
republish the summons because the attorney’s mistake “was directly attributable
to the administrative difficulties he encountered in obtaining an appropriate
order for publication . . . .”
(Id. at p. 431.) The difficulties the attorney encountered
included the trial judge’s unavailability, a countywide wildfire closed the
entire court for several days, and the newspaper in which the attorney sought to
publish the summons changed the publication schedule the attorney relied on in
calculating the return date. (
to excuse their attorney’s failure to discover the applicable law.
In
Card, the Court of Appeal affirmed
the trial court’s ruling that the plaintiffs established good cause for failing
to publish the summons. There, the
plaintiffs failed to publish the summons because they did not believe Code of
Civil Procedure section 863 applied to their challenges regarding a city’s
amended redevelopment plan. The
action involved was simply a validation action and nothing more,” but the
plaintiffs in Card sought injunctive
and declaratory relief rather than relief under the validation statutes. (Card,
supra, 61 Cal.App.3d at
pp. 575-576.)
Nonetheless,
the Card court explained the trial
court was not required to find the
plaintiffs established good cause for their failure to publish the
summons. Indeed, based on the
plaintiffs’ “noncompliance with a plainly mandated procedure” for publishing
summons, the trial court could have found the plaintiffs failed to establish
good cause and the Court of Appeal stated it would have upheld that
ruling. (Card, supra,
61 Cal.App.3d at p. 576.) The
trial court, however, exercised its discretion in favor of finding good cause
and the Court of Appeal deferred to that decision based on the governing abuse
of discretion standard of review. (
Accordingly, Card does not
support Plaintiffs’ contention that their attorney’s failure to look up the
controlling law required the trial court to grant relief. Card
merely emphasized the importance of deferring to a trial court’s reasonable
good cause determination.
In
a rather confusing attempt to establish good cause, Plaintiffs point to a
related action Orange County filed to challenge the City’s amended
redevelopment plan. Plaintiffs argue the
trial court granted Orange County relief in that action by entering a default
against certain defendants despite the fact the register of actions did not
include a proof of service showing Orange County served its complaint on the
Attorney General. According to Plaintiffs,
this leads to one of two possibilities: (1) Orange County served the
Attorney General with its complaint and therefore “the Attorney General would
have become aware of th[is] pending action” or (2) Orange County obtained
relief without complying with section 33501.3.
Neither of these possibilities, however, establishes good cause for
Plaintiffs’ failure to serve the Attorney General.
Plaintiffs
did not present any evidence showing that Orange County served the Attorney
General with its complaint or that Orange County’s service prompted the
Attorney General to discover Plaintiffs’ action. Plaintiffs merely argue these are
possibilities. Even assuming these facts
exist, they speak to whether Plaintiffs’ failure to serve the Attorney General
prejudiced the Attorney General, not whether Plaintiffs had good cause for
failing to serve the Attorney General.
It
is not enough for Plaintiffs merely to show their failure to serve the Attorney
General caused no prejudice. Section
33501.3 required Plaintiffs to show both
good cause for failing to serve the Attorney General and no prejudice. These are
separate requirements and Plaintiffs do not contend Orange County’s service on
the Attorney General caused their attorney to refrain from serving the Attorney
General. To the contrary, Plaintiffs’
attorney conceded he failed to serve the Attorney General because he did not
know section 33501.3 required him to do so.
Moreover,
whether a court clerk entered a default against some defendants in Orange
County’s action without requiring proof of service on the Attorney General is
irrelevant to this action. It
establishes neither good cause for Plaintiffs’ failure to serve the Attorney
General nor a lack of prejudice to the Attorney General.
Finally,
Plaintiffs argue we should relieve them from their failure to serve the
Attorney General because they worked diligently to properly publish the summons
and satisfy all other procedural requirements for a reverse validation
action. Plaintiffs emphasize that the
foregoing cases defining good cause involve a statute that establishes
requirements for serving summons to obtain jurisdiction over parties to the
litigation, but section 33501.3 merely establishes a requirement to give a
nonparty notice to allow it an opportunity to intervene in the action. None of that, however, alters the analysis
regarding the trial court’s decision to deny Plaintiffs’ relief from section
33501.3’s service requirements.
Section
33501.3 allows a court to excuse a party’s failure to serve the Attorney
General only on a showing of good cause.
Plaintiffs do not challenge section 33501.3’s validity nor do they
argue an alternative interpretation of the statute that would allow them to
proceed with this action despite their failure to timely serve the Attorney
General or establish good cause.
Plaintiffs do not argue a substantial compliance exception should apply
or that section 33501.3’s requirements are directory rather than
mandatory. Instead, Plaintiffs solely
argue that they made an adequate showing of good cause and lack of prejudice to
obtain relief from section 33501.3’s service requirements. The foregoing authorities compel the
conclusion that Plaintiffs did not establish good cause and therefore we need
not reach the prejudice question. We
affirm the trial court’s ruling.
D. Plaintiffs
May Not Obtain Relief Under the Mandatory Relief Provision in Code of Civil
Procedure Section 473, Subdivision (b)
The
mandatory relief provision in Code of Civil Procedure section 473, subdivision
(b) generally requires the court to vacate a default or dismissal entered
against a party if the party’s attorney declares that his or her mistake or
neglect caused the default or dismissal.
(Vaccaro, supra, 63 Cal.App.4th at p. 770 [“This provision requires
the court to vacate a dismissal upon the attorney’s sworn statement of neglect,
regardless whether the neglect was excusable or whether other conditions for
(original italics)].) Nonetheless,
Plaintiffs may not obtain relief under this mandatory relief provision for two
reasons.
First,
they did not ask for relief under this provision in the trial court, and did
not raise the issue in their opening brief. (Luri
v. Greenwald (2003) 107 Cal.App.4th 1119, 1124-1125 [mandatory relief
under Code of Civil Procedure section 473, subdivision (b) not required unless
motion specifically requests relief under that provision].) Their reply brief on appeal includes a single
paragraph discussing the mandatory relief provision, but that paragraph is not
set off by any specific heading to distinguish it from Plaintiffs’ request for
relief under section 33501.3’s good cause exception. (Karlsson
v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1216 [party waived
arguments by raising them for the first time in the reply brief];
Retirement System (2002) 95 Cal.App.4th 29, 51-52 [failure to apply a
heading to an appellate argument results in a waiver of that argument].)
Second,
granting Plaintiffs relief under the mandatory relief provision would render
section 33501.3 meaningless and defeat the policies underlying validation
statutes. “‘Although the language of the
mandatory provision of section 473, subdivision (b), on its face, “affords
relief from unspecified ‘dismissal’ caused by attorney neglect, our courts
have, through judicial construction, prevented it from being used
indiscriminately by plaintiffs’ attorneys as a ‘perfect escape hatch’
[citations] to undo dismissals of civil cases.”’ [Citation.]
For example, ‘courts have held the mandatory provision [of section
473(b)] is inapplicable to voluntary dismissals [citation] and dismissals for
lapsing of the statute of limitations [citation], failure to serve a complaint
in a timely manner [citation], failure to prosecute [citation], and failure to
file an amended complaint after a demurrer has been sustained with leave to
amend. [Citation.]’ [Citation.]”
(Nacimiento,
p. 967; see also Gotschall v. Daley
(2002) 96 Cal.App.4th 479, 483 [“Section 473, subdivision (b) was never
intended to be a ‘catch-all remedy for every case of poor judgment on the part
of counsel which results in dismissal’”].)
In
Nacimiento, the Court of Appeal held
the mandatory relief provision did not apply to a dismissal entered in a
California Environmental Quality Act (CEQA) action after the plaintiff’s
counsel failed to timely request a hearing on the merits because he
miscalculated the statutory deadline for doing so. (Nacimiento,
supra, 122 Cal.App.4th at
pp. 964-966.) CEQA requires public
agencies to assess the environmental impacts of all activities they approve or
carry out, but it also demands that any challenge to an agency’s environmental
assessment must be expeditiously resolved.
CEQA therefore contains several procedural provisions to ensure that all
challenges are promptly filed and diligently prosecuted. These provisions include a short statute of
limitation ranging from 30 to 180 days and the requirement that a plaintiff
request a hearing on the merits within 90 days or be subject to dismissal. “‘Patently, there is legislative concern that
CEQA challenges, with their obvious potential for financial prejudice and
disruption, must not be permitted to drag on to the potential serious injury of
the real party in interest.’
[Citation.]” (
In
light of these policies underlying CEQA’s short statutory deadlines, the
mandatory relief under Code of Civil Procedure section 473, subdivision
(b) was not available for the plaintiff’s failure to timely request a
hearing. If mandatory relief was
permitted, CEQA’s statutory deadlines “would effectively be nullified, and the
legislative intent that CEQA challenges be promptly resolved and diligently
prosecuted would be defeated,” because a party could always avoid the deadlines
by submitting a declaration from its attorney taking responsibility for failing
to comply with the statutes. (
[because] ‘the repeal or abrogation of statutes by implication is disfavored,
as is any construction of a statute which would render related statutes a
nullity.’ [Citation.]” (Ibid.)
Similar
to CEQA, validation and reverse validation actions “are based upon the
important public policy of securing a speedy determination of the validity of
certain actions taken by a public agency.”
(Community Youth,
p. 427.) “‘The validating statutes
should be construed so as to uphold their purpose, i.e., “the acting agency’s
need to settle promptly all questions about the validity of its action.” [Citation.]
[¶] . . . [¶] A
key objective of a validation action is to limit the extent to which delay due
to litigation may impair a public agency’s ability to operate financially. [Citation.]’
[Citation.]” (California Commerce
Casino, Inc. v. Schwarzenegger (2007) 146 Cal.App.4th 1406,
1420-1421.)
“Validation
actions are . . . subject to a shorter statute of limitations to
further the important public policy of speedy determination of the public
agency’s action . . . .”
(Hollywood Park Land Co., LLC v.
Golden State Transportation Financing Corp. (2009) 178 Cal.App.4th
924, 941.) In addition to a short
statute of limitations — 90 days for actions challenging a redevelopment
plan or amendment (§§ 33500, subds. (a) & (b), 33501, subd. (a) &
(b)) — the plaintiff in a reverse validation action must complete publication
of the summons within 60 days (Code Civ. Proc., § 863) and, when the action
challenges a blight determination made to support a redevelopment plan, the
plaintiff must serve the Attorney General with his or her complaint and briefs
within three days of filing those documents (§ 33501.3).
As
in Nacimiento, these short statutory
deadlines would be rendered meaningless if a party could avoid them by simply
submitting a declaration from its attorney stating he or she was unaware of the
deadline or failed to properly calendar it.
Here, the trial court did not enter judgment in this action based on
Plaintiffs’ failure to serve the Attorney General until 14 months after
Plaintiffs filed this action. The
mandatory relief provision in Code of Civil Procedure section 473, subdivision
(b) allows an application for relief to be made at any time up to six months
after the court dismisses the action and there is no diligence
requirement. (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861,
868.) Accordingly, applying the
mandatory relief provision in this case could result in a delay of more than 20
months before the trial even begins.
That clearly contradicts the important public policy of securing a
speedy determination in validation actions.
Moreover,
unlike the statute at issue in Nacimiento,
section 33501.3 authorizes the trial court to grant a party relief from their
failure to timely serve the Attorney General on a showing of good cause and
lack of prejudice. When a statute
defines the terms on which relief from its requirements may be granted, relief
under the mandatory relief provision in Code of Civil Procedure section 473,
subdivision (b) is generally unavailable.
(See St. Paul Fire & Marine
Ins. Co. v. Superior Court (1992) 2 Cal.App.4th 843, 852 [because the
Discovery Act defined conditions on which a party may obtain relief from an
order deeming requests for admissions admitted, relief under Code of Civil
Procedure section 473, subdivision (b) was unavailable], overruled on other
grounds in Wilcox v. Birtwhistle
(1999) 21 Cal.4th 973, 983.)
III
Disposition
The judgment is
affirmed. The City shall recover its
costs on appeal.
ARONSON,
J.
WE CONCUR:
MOORE, ACTING P. J.
IKOLA, J.
All statutory references are to
the Health and Safety Code unless otherwise noted.
Assembly Bill No. 26, passed by
the Legislature and signed by the Governor in June 2011, may render this action
moot. In general, that bill dissolves
all redevelopment agencies and prohibits future redevelopment projects. After the Supreme Court rejected various
challenges to Assembly Bill No. 26 (California
Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231), we asked the
parties to submit supplemental briefing to address the issue. The parties, however, failed to provide us
with sufficient information to determine whether Assembly Bill No. 26
definitively rendered this action moot and therefore we decide this appeal on
the merits. In support of its
supplemental brief, the City asked us to judicially notice documents regarding
proposed legislation relating to Assembly Bill No. 26 and other litigation
challenging the bill. Because we decide
this appeal on the merits, these documents are irrelevant and therefore we deny
the City’s request. (
County (2011) 193 Cal.App.4th 453, 457, fn. 2 (
judicially notice a variety of matters [citation], only relevant material may be noticed’” (original italics)].)
