Third District Court of Appeal Upholds Trial Court’s Conclusion that Petition for Writ of Mandate Challenging Placer County’s Approval of a Development Project is Time-Barred under CEQA

On April 4, 2013, the Third District Court of Appeal ordered published its decision in Alliance for the Protection of the Auburn Community Environment et al. v. County of Placer (2013) ___Cal.App.4th___ (Case No. C067961). Real party in interest, Bohemia Properties, LLC (Bohemia), was represented by James Moose and Howard Wilkins of Remy Moose Manley, LLP. The Court of Appeal upheld the trial court’s sustainment of a demurrer filed by Bohemia and joined by Placer County. The court found that petitioner’s petition for writ of mandate was time barred under the statute of limitations set forth in Public Resources Code section 21167. Further, Code of Civil Procedure section 473, subdivision (b), which provides relief from an otherwise applicable statute of limitations for excusable mistakes, did not apply.

On July 8, 2010, the County of Placer certified an EIR prepared by Bohemia for the development of a 155,000-square-foot building. Alliance for the Protection of the Auburn Community Environment (Alliance) filed an appeal of the certification on Jul 16, 2010. On September 28, 2010, the County held a public hearing on Alliance’s appeal and again certified the final EIR. 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. Alliance did not file its petition until three days later, on November 1, 2010.

In January 2011, Bohemia filed a demurrer to Alliance’s petition, alleging that it was not filed within the limitations period. Alliance filed a motion for relief under Code of Civil Procedure 473. The trial court determined that Alliance’s petition was time barred and entered an order sustaining Bohemia’s demurrer without leave to amend and denying Alliance’s motion seeking relief under Code of Civil Procedure section 473.

On appeal, Alliance argued that the trial court erred in sustaining Bohemia’s demurrer, because, according to Bohemia, Code of Civil Procedure section 473 provides relief from its excusable mistake that resulted in the late filing of the CEQA petition. Code of Civil Procedure section 473, subdivision (b), states that a “‘court may, upon any terms as may be just, relieve a party of his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect,’” provided that the relief is sought within a reasonable time. The provisions of section 473 are to be liberally construed.

Alliance argued that the late filing was the result from a miscommunication from its filing service as to the deadline for receipt of the writ at the superior court. Alliance submitted the petition to the filing service prior to the statute of limitation’s deadline, in order to ensure its timely filing. Although Alliance’s counsel 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. Based on these facts, Alliance argued that Code of Civil Procedure section 473 applies and the trial court should have overruled the demurrer.

The court of appeal, however, found Alliance’s argument unpersuasive under the Supreme Court’s decision in Maynard v. Brandon (2005) 36 Cal.4th 364 (Maynard). In Maynard, the Supreme Court found that section 473, subdivision (b) does not generally apply to dismissals attributable to a party’s failure to comply with the applicable limitations period in which to initiate a lawsuit. Rather, that section only provides relief from the consequences of many procedural errors committed during the course of a proceeding. Because the trial court in this case sustained the demurrer based on Alliance’s failure to file its initial petition within the applicable limitations period, the Court of Appeal found that relief was not available under section 473, subdivision (b).   

Finally, citing a series of cases in which courts have provided relief from CEQA’s short limitations period, Alliance argued that the court should provide similar relief here. The court disagreed, finding each of the cases relied upon by Alliance distinguishable in that they did not address a petitioner’s failure to timely file a petition for writ of mandate in the first instance.

Instead, 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. In that case, the court noted that nearly every dismissal for failing to comply with CEQA’s timelines is “due to mistake, inadvertence or neglect on the plaintiff’s attorney, and thus few dismissals would be final if mandatory relief under section 473 were applied to such dismissals.’” As such, the dismissal statute would be “‘effectively nullified, and the legislative intent that CEQA challenges be promptly resolved and diligently prosecuted would be defeated.’”  Based on this reasoning, the Court of Appeal found that the trial court did not err in sustaining Bohemia’s demurrer without leave to amend.