On June 27, 2011, the First District Court of Appeal in Latinos Unidos De Napa v. City of Napa (2011) 196 Cal.App.4th 1154 (Case No. A129584), reversed a judgment dismissing a California Environmental Quality Act (CEQA) challenge on statute of limitations grounds. The court concluded the applicable statute of limitations was 180 days, not 30 days, because the notice of determination (NOD) had not been posted for a full 30 days as required by Public Resources Code section 21152, subdivision (c). Significantly, the court held that Code of Civil Procedure section 12 applies to the calculation of how long an NOD must be posted, and thus the first day on which an NOD is posted does not count as part of the 30-day posting period. Since the county clerk failed to post the notice for the entire 30th day as statutorily required, the 30-day statute of limitations was never triggered and the longer 180-day statute of limitations of Public Resources Code section 21167, subdivision (a), applied.
On June 16, 2009, the Napa City Council approved resolutions adopting amendments to the housing and land use elements of its general plan, and considered an ordinance containing related amendments to the zoning code and map (the Project). The City Council did not approve the ordinance until July 7, 2009. On June 17, 2009, at 9:05 a.m., the City filed an NOD with the Napa County Clerk stating that an environmental impact report (EIR) was not required because the City had completed a general plan program EIR in 1998 and no new significant environmental effects would result from the Project. According to a subsequent declaration, the county clerk posted the NOD from 10 a.m. on June 17, 2009, until at least 10 a.m. on July 17, 2009. Counsel for affordable housing advocates Latinos Unidos de Napa visited the Napa County Clerk’s office on July 17, 2009, and took a picture of the bulletin board at 11:29 a.m. to document that the NOD was not posted at that time.

On September 17, 2009, Latinos Unidos filed a petition for writ of mandate under CEQA against the City and other city officials, asserting that an EIR was required for the Project. The City moved to dismiss the CEQA challenge on the grounds that it was barred by the running of the 30-day statute of limitations prescribed in Public Resources Code section 21167, subdivision (e). The trial court found that a 30-day statute of limitations was triggered when the City filed the NOD with the county clerk and granted the City’s motion for judgment on the CEQA cause of action. Latinos Unidos voluntarily dropped other causes of action it had added in an amended petition and appealed the dismissal of its CEQA challenge to the First District Court of Appeal.

The court started its discussion by quoting Code of Civil Procedure section 12 (Section 12): “The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.” Then the court declared the controlling law to be the rule in Ley v. Dominguez (1931) 212 Cal. 587, which established that Section 12 governs the calculation of all statutorily prescribed time periods unless there is clear legislative intent that a different method of calculation must be used. Applying Section 12 to the facts of the case, the court concluded that the 30th day of posting was July 17, 2009, and that the county clerk had erred in posting the NOD for only a fraction of the last day. Since the NOD was not filed and posted pursuant to Public Resources Code section 21152, subdivision (c), the longer 180-day statute of limitations found in Public Resources Code section 21167, subdivision (a) applied instead of the 30-day statute of limitations found in subdivisions (b) or (e). Under the 180-day statute of limitations, the petition for writ of mandate was timely, and the trial court erred in dismissing the petition.

The court rejected the City’s reliance on Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, for the argument that filing an NOD, without posting the NOD for 30 days, is enough to trigger the 30-day statute of limitations under CEQA. Citing CEQA Guidelines, Cal. Code Regs., tit. 14, sections 15094 and 15112, as well as various cases, the court concluded that the 30-day statute of limitations cannot be triggered unless a notice is both filed and posted pursuant to statutory requirements. Furthermore, the court found that the opinion in Green Foothills actually supported the application of Code of Civil Procedure section 12 to computations of how long an NOD must be posted.

The court also rejected the City’s argument that posting for part of the 30th day satisfies the posting requirement. The City cited Scoville v. Anderson (1901) 131 Cal. 590, but the court concluded that language in Scoville related to disregarding fractions of days did not support a contention that posting for the whole of the 30th day was not required. The court also rejected the City’s argument that the posting had substantially complied with statutory requirements and should be considered sufficient. The court concluded that applying the substantial compliance doctrine to the calculation of statutory time periods would undermine the predictability and certainty that enable people to comply with legal requirements.