City of Chula Vista v. County of San Diego

• Decision Date: 09 March 1994
• Docket Number: No. D018644,D018644
• Citation: 29 Cal.Rptr.2d 89,23 Cal.App.4th 1713
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF CHULA VISTA, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO, Defendant and Respondent; APPROPRIATE TECHNOLOGIES II, INC., Real Party in Interest and Appellant.

Page 89

29 Cal.Rptr.2d 89

23 Cal.App.4th 1713

CITY OF CHULA VISTA, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO, Defendant and Respondent APPROPRIATE TECHNOLOGIES II, INC., Real Party in Interest and Appellant.

No. D018644.

Court of Appeal, Fourth District, Division 1, California.

March 9, 1994.

Rehearing Denied April 1, 1994.

Review Denied May 19, 1994.

Bruce M. Boogaard, City Atty., Chula Vista, John M. Appelbaum, Deputy City Atty., San Francisco, Worley, Schwartz, Garfield & Rice and Charles V. Berwanger, San Diego, for plaintiff and appellant.

Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy, Scott H. Peters and Mark C. Mead, Deputies County Counsel, for defendant and respondent.

Latham & Watkins, David L. Mulliken and Daniel E. Butcher, San Diego, for real party in interest and appellant.

WORK, Acting Presiding Justice.

The City of Chula Vista (City) appeals a judgment ¹ dismissing its action after the court sustained demurrers by the County of San Diego (County) and Appropriate Technologies II, Inc. (Aptec) without leave to amend. The City had petitioned for writ and other relief after the County approved an agreement allowing Aptec to continue to operate its hazardous waste transfer and treatment facility for five years. The court found the City's claims were barred by the statute of limitations in PUBLIC RESOURCES CODE SECTION 21167², subdivision (d). Because we conclude the City's action is barred by the 180-day limitations period in that statute and it is not reasonably possible its petition can be amended to state a cause of action, we affirm the judgment.

I

In 1980, the County decided to terminate its Otay landfill hazardous waste operations and granted Aptec a five-year lease to operate a hazardous waste facility on County property located within the City. The lease was extended through September 19, 1990, when Aptec exercised its option to renew. In 1981, the City approved a conditional use permit for the Aptec facility, finding it would have no significant environmental impact and adopting the County's negative declaration.

On November 28, 1989, the County's Board of Supervisors considered its staff's recommendation to approve a new five-year agreement for Aptec to continue operating its facility. The staff concluded the new agreement would be exempt from the provisions of the California Environmental Quality Act (CEQA) (§§ 21000 et seq.), since it would not change any existing operating condition. The staff reported that the state permit allowed Aptec to store up to 3,490 drums at any one time. A City council member, David Malcolm, spoke against the proposed agreement, citing environmental concerns and asked that at least the number of drums be reduced from that number. The staff then indicated Aptec was willing to agree to limit the number of drums to 2,000.

Following public discussion, the Board of Supervisors then took the following action:

"1. [it] finds that the project is categorically exempt under the provisions of the California Environmental Quality Act (CEQA), Section 15301; the continued operation of a facility, with no expansion beyond existing use "2. in accordance with Board Policy A-87, Restrictions for Sole Source Procurement, [it] approves and authorizes the Director of Purchasing and Contracting to enter into negotiations with the BKK Corporation [Aptec's parent company], and subject to successful negotiations and determination of a fair and reasonable price, award a service contract for five years for the operation of an Industrial Waste Transfer/Treatment Facility; and waive[s] the advertising requirement of Board Policy A-87[;]

"and directs the CAO [Chief Administrative Officer] to: 1) not wait for the health risk assessment [required for extension of Aptec's state permit] but to proceed with a Request for Proposal for operation starting 1995; 2) report every 90 days to the Board on the progress of the search for a new site and also the alternatives CAO is considering if the health risk assessment is negative; 3) explore the possibility of hiring a negotiator outside of County staff for additional support in negotiating a new service agreement with BKK Corporation; and 4) limit storage capacity to 2000 drums in [the] new agreement with BKK Corporation." (Italics added.)

That same day, the County filed a notice of exemption (NOE) stating the project was categorically exempt as an existing facility pursuant to California Code of Regulations, title 14, section 15301, because "[i]t involves the continued operation of a facility with no expansion beyond existing use." ³ The NOE also stated the project was approved on November 28, 1989, and it described the nature and purpose of the project "[t]o negotiate a service agreement with the BKK Corporation for the continued operation of the Appropriate Technologies II (Ap Tech II) hazardous waste transfer/treatment facility."

On January 29, 1992, the County and Aptec executed a lease agreement providing for an initial term of one year, renewable by the County for successive one-year periods for a total of five years. It also limits the number of storage drums to 2,000. After the City unsuccessfully demanded the County rescind the agreement, it filed this petition on July 22, 1992, setting forth four claims, of which only its claim for violation of CEQA is the subject of this appeal. The petition alleges the NOE exempted only "negotiations" for an agreement and not the "award" of the agreement. Accordingly, the petition alleges the County's "award and execution" of the agreement was not included in the project description in the NOE, requiring environmental review pursuant to CEQA before the agreement could be awarded and executed.

The County and Aptec demurred, contending the statute of limitations in section 21167 and California Code of Regulations, title 14, section 15112, preclude the City's claim. They contended the CEQA claim was barred by the 35-day limitations period because the NOE clearly indicated "approval" of the project, and, even if the 35-day period did not apply (e.g., if the NOE were somehow defective), the broader 180-day limitations provision applied. The City's opposition asserts (i) the NOE was defective because it described the project as only "negotiations" and not approval of the agreement, and (ii) the agreement executed on January 29, 1992, provided for more expansive activities by Aptec than was described as the project in 1989.

After hearing, the court sustained the demurrers without leave to amend and dismissal of the entire case as to all parties, ruling in relevant part:

"1. The demurrers to the first and second causes of action are SUSTAINED without leave to amend. The first and second causes of action are barred by Cal.Pub.Res.Code § 21167(d). The Court takes judicial notice of Exhibit B to the City's petition and Exhibit 5 to Aptec's demurrer. These documents indicate that on November 28, 1989, the County Board of Supervisors (the "Board") made a decision to negotiate and award a service contract which was exempt from the requirements of the California Environmental Quality Act ("CEQA"). Given the notice of exemption posted by the County on November 28, 1989, the 35-day statute of limitations contained in Cal.Pub.Res.Code § 21167(d) required that any lawsuit challenging the County's CEQA compliance be brought by January 2, 1990. The City's petition was not filed until July 22, 1992, well after this limitations period had expired.

"Although the City argues in opposition that the contract subsequently executed was beyond the scope of that decision, the face of the City's petition at paragraph 15 indicates otherwise.

"The Court also rejects the City's assertion that the County is estopped from asserting the statute of limitations. Because the purported misrepresentations of County employees contradict the plain meaning of Resolution No. 29, there could have been no justifiable reliance by the City." (Italics in original.)

The City's motions for reconsideration were denied.

II

A demurrer tests the sufficiency of a complaint as a matter of law. (Buford v. State of California (1980) 104 Cal.App.3d 811, 818, 164 Cal.Rptr. 264.) The allegations of fact contained in the complaint must normally be accepted as true. (Strang v. Cabrol (1984) 37 Cal.3d 720, 722, 209 Cal.Rptr. 347, 691 P.2d 1013; Noguera v. North Monterey County Unified Sch. Dist. (1980) 106 Cal.App.3d 64, 66, 164 Cal.Rptr. 808.) However, a reviewing court may also consider judicially noticeable facts which the trial court did notice or properly could have noticed, such as government resolutions and other official acts. (Long Beach Equities, Inc. v. County of Ventura (1991) 231 Cal.App.3d 1016, 1024, 282 Cal.Rptr. 877; Eldridge v. City of Palo Alto (1976) 57 Cal.App.3d 613, 621, 129 Cal.Rptr. 575, disapproved on other grounds as stated in Agins v. City of Tiburon (1979) 24 Cal.3d 266, 273, 157 Cal.Rptr. 372, 598 P.2d 25.) Accordingly, judicially noticeable facts may supersede any inconsistent factual allegations contained in a complaint. ( Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604, 176 Cal.Rptr. 824.) Further, as the California Supreme Court notes in Hendy v. Losse (1991) 54 Cal.3d 723, at p. 742, 1 Cal.Rptr.2d 543, 819 P.2d 1:

"If there is a reasonable probability that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended. [Citation.]"

With these principles in mind, we now review the trial court's order sustaining the demurrers without leave for the City to amend its petition.

III

A.

CEQA was enacted, in part, to ensure that governmental decision-makers and the public consider the potential effects of proposed actions upon the environment. (§§ 21001, 21004.) There are...