(2013) 215 Cal.App.4th 25
On February 28, 2013, the Third Appellate District upheld the trial court’s sustainment of a demurrer filed by Bohemia Properties and joined by Placer County, finding that a petitioner’s petition for writ of mandate under CEQA was time barred under the statute of limitations set forth in Public Resources Code section 21167. The court held that Code of Civil Procedure section 473, subdivision (b), which provides relief from mistake or excusable neglect, did not apply.
On September 28, 2010, Placer County certified an EIR prepared by Bohemia for the development of a 155,000-square-foot commercial building. The county filed its notice of determination (NOD) for the project on September 29, 2010, triggering the 30-day statute of limitations set forth in Public Resources Code section 21167. Under this limitations period, the deadline to bring a challenge to the County’s approval of Bohemia’s EIR expired on October 29, 2010. Although counsel for Petitioner Alliance for the Protection of the Auburn Community Environment (Alliance) requested the petition be filed on October 29, 2010, the filing service arrived too late and did not file the petition until three days later on November 1, 2010. Based on these facts, Alliance argued that Code of Civil Procedure section 473 applies and the trial court should have overruled the demurrer.
The appellate court held that under the precedent set out in Maynard v. Brandon (2005) 36 Cal.4th 364, CCP section 473 only applied to procedural errors and not mandatory deadlines. Therefore, in order to extend a mandatory deadline, the court would need statutory authorization. The court noted that Public Resource Code section 21176 did not contain a “provision extending the limitations period on a showing of good cause.”
Additionally, the court believed that the legislative intent that CEQA lawsuits be resolved promptly would be defeated if section 473 were applied to CEQA deadlines. The court found persuasive the Second District Court of Appeal’s decision in Nacimiento Regional Water Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 968, which states that because CEQA deadline violations are almost always caused by mistake or excusable neglect, “few dismissals would be final if mandatory relief under section 473 were applied.” [RMM Partners James Moose and Howard Wilkins represented real party in interest Bohemia Properties, LLC].