CEQA litigators can breathe a small sigh of relief knowing that a calendaring error during otherwise vigorous advocacy should not prejudice their clients. The Second District Court of Appeal in Comunidad en Accion v. Los Angeles City Council, ___ Cal. App. 4th ___, Case No. B240554 (Sept. 20, 2013) found that requesting a CEQA hearing seven days past the 90-day deadline was excusable error deserving discretionary relief. Environmental justice advocates, however, will be disheartened by the court’s separate holding that a city’s local enforcement agency is not subject to the antidiscrimination statute that applies to state-funded activities.
In May 2010, the Los Angeles City Council approved siting a new 104,000-square-foot solid waste transfer station, an expanded materials recycling facility, and an expanded green waste processing center at the Bradley Landfill site in Sun Valley, Los Angeles. Community organization Comunidad en Accion challenged the city’s decision, alleging the facility subjected the predominately Latino Sun Valley residents to a disproportionate amount of pollution.
Under CEQA, a petitioner must request a hearing within 90 days of filing its petition or be subject to dismissal on the court’s or another party’s motion. Comunidad’s counsel inadvertently omitted the 90-day deadline from his personal calendaring system, and thus was seven days late requesting a hearing. The trial court found this delay inexcusable and dismissed Comunidad’s CEQA claims.
The court of appeal disagreed and held the trial court abused its discretion in denying Comunidad’s motion for relief from dismissal. The court laid out two competing public policies at play: a strong preference for trial on the merits versus the desire for expeditious CEQA review. Previous cases had afforded plaintiffs relief in CEQA actions where there was “excusable error,” which the court defined as a mistake anyone could have made, rather than conduct falling below a professional standard of care. A calendaring error, the court believed, was a “clerical type mistake, not one involving professional skill.”
The court analogized two cases that had found calendaring errors excusable under certain circumstances. The guiding principle in those cases was that unless inexcusable neglect is clear, the policy favoring trial on the merits prevails. The court also distinguished a case of inexcusable error where counsel made numerous missteps resulting in the absence of any opposition to a summary judgment. Comunidad counsel’s one-week delay in requesting a hearing, in contrast, was “an isolated mistake in an otherwise vigorous and thorough presentation” of the client’s claims. The court emphasized that counsel had diligently prosecuted the case up to that point. Furthermore, respondents had not suffered prejudice from the delay, since their preparation of the administrative record was not complete when Comunidad requested a hearing.