Club v. Imperial County
| Decision Date | 03 May 2011 |
| Docket Number | D056919,Super. Ct. No. 97911 |
| Court | California Court of Appeals Court of Appeals |
| Parties | SIERRA CLUB, Plaintiff and Appellant, v. IMPERIAL COUNTY et al., Defendants and Respondents, UNITED STATES GYPSUM COMPANY, Real Party in Interest and Respondent. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of Imperial County, Joseph W. Zimmerman, Judge. Affirmed in part, reversed in part and remanded.
Appellant Sierra Club appeals from an order granting the motion of respondents Imperial County, the Imperial County Planning Commission (collectively County), and United States Gypsum Company (USG) for reconsideration and dismissing Sierra Club's proceeding for a peremptory writ of mandate. In that proceeding, Sierra Club sought awrit directing respondents to prepare an Environmental Impact Report (EIR) in compliance with the California Environmental Quality Act (CEQA) for the expansion and modernization of USG's wallboard manufacturing plant in Plaster City, California (the Project). Sierra Club contends the trial court lacked jurisdiction to grant reconsideration and exceeded its authority by dismissing the proceeding. It maintains dismissal of its proceeding was unwarranted because it diligently prosecuted the matter and timely requested a hearing under Public Resources Code section 21167.4.1
As we will explain, we conclude the court did not clearly err in reconsidering its decision. However, we hold the court's dismissal on grounds of unreasonable or inexcusable delay in prosecution is without any reasonable justification, and thus was an abuse of discretion. Accordingly, we reverse the order dismissing Sierra Club's petition.
In January 1999, Sierra Club petitioned for a writ of mandate directing County to set aside a negative declaration (§ 21080, subd. (c)) it had issued for the Project and prepare an EIR. After the superior court denied the petition in July 1999, Sierra Club appealed to this court, and, in an unpublished decision, we reversed and directed the court to grant Sierra Club's petition. (Sierra Club v. Imperial County et al. (Oct. 26, 2000, D034281) [nonpub. opn.].) In March 2001, the superior court issued a peremptory writof administrative mandamus requiring County to prepare an EIR for the Project, set aside any permits issued to USG as a result of the negative declaration, and file a return within 60 days after service of the writ. County filed its return in May 2001. Thereafter, USG petitioned for Chapter 11 bankruptcy.2
In January 2008, County filed a supplemental return to the peremptory writ of mandate, which stated in part it had completed a final EIR/EIS (FEIR) that was scheduled for certification and, following a February 13, 2008 hearing, it would take "appropriate action" with regard to permits issued in reliance on the previous negative declaration. In March 2008, County filed a second supplemental return stating the planning commission had certified the EIR on February 13, 2008, and the board of supervisors denied an appeal and certified the EIR on March 18, 2008. It further stated that no objection had been filed to its supplemental return and that it had determined no further action was required with respect to any permits because the EIR had been certified.
On April 17, 2008, Sierra Club filed objections to County's second supplemental return. It asserted County abused its discretion by failing to proceed in the manner required by law in various ways, including by failing to: describe or approve feasible mitigation measures, provide an accurate description of the physical environmental conditions, provide a consistent or concise description of the Project, avoid significantimpacts, provide written responses to comments made by public agencies 10 days prior to the FEIR's certification, or timely send a copy of the FEIR to persons or agencies who commented on the draft EIR. It additionally asserted County's findings related to biological resources were not supported by substantial evidence and County did not adequately analyze each alternative.
At the same time, Sierra Club filed a notice of motion and motion for a supplemental and amended writ of mandate. In addition to other relief, Sierra Club sought to set aside County's project approval and FEIR certification, as well as any license, approval or authorization to USG to increase pumping from specified water wells beyond certain limits. It sought to have County prepare a new EIR/EIS for the Project and issue an order that USG cease all groundwater pumping in excess of specified levels until County took necessary actions to bring its determination, findings and decision into CEQA compliance. The motion was set for hearing on July 15, 2008.
USG, joined by County, opposed the motion on grounds Sierra Club's motion was not a petition for writ of mandate, and thus Sierra Club did not timely initiate an action or proceeding challenging the decision to certify the FEIR. According to USG, as a result, the superior court was deprived of authority to consider Sierra Club's challenges or set aside any decisions made in reliance on the FEIR. In reply, Sierra Club responded its challenge was timely and appropriate; that the determination of whether County's EIR was prepared in accordance with law fell within the court's continuing jurisdiction toenforce compliance with its peremptory writ of mandate.3 In August 2008, the superior court issued Sierra Club's requested order to show cause, finding it had sufficient authority to do so under its March 29, 2001 peremptory writ, section 21168.9, and case authority.
About seven and a half months passed. In May 2009, USG, again joined by County, moved to dismiss Sierra Club's action. Citing Code of Civil Procedure section 583.150, Stephen Slesinger, Inc. v. Walt Disney Company (2007) 155 Cal.App.4th 736 (Slesinger), and other authorities for the proposition that courts possess inherent power to dismiss an action for "unreasonable or inexcusable delay in prosecution," they argued Sierra Club had delayed prosecution of the matter; that despite Sierra Club's election on June 3, 2008, to prepare the record of proceeding concerning the FEIR, and despite the fact its representatives had assertedly obtained copies of all the documents that comprised the administrative record by October 2008, Sierra Club had not yet produced the administrative record. Respondents further argued delay was shown by Sierra Club's failure to take steps to have the matter set for a hearing on the merits during the eight months since the court had ruled on the jurisdictional issue. Contending Sierra Club had not pursued the litigation in good faith, they argued the superior court had the inherentpower to dismiss the action. Respondents alternatively asserted dismissal was mandatory because, assuming Sierra Club's motion was an action or proceeding under section 21167, Sierra Club had not timely sought a hearing on the merits of its remaining claims by July 16, 2008, the 90-day limit specified in section 21167.4, subdivision (a).
Relying on the standards expressed in Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502 (Leavitt), Sierra Club opposed the motion on grounds no extraordinary circumstances, such as disregard of a court order, justified dismissal and USG had not demonstrated any harm warranting a dismissal sanction. It submitted declarations from its attorney, Julie Hamilton, and Sierra Club member Edith Harmon explaining the delay in compiling, copying and preparing the approximately 20,000-page administrative record. Sierra Club later supplemented its filing with Hamilton's declaration averring that on June 8, 2009, she had transmitted the administrative record to the assistant county counsel for certification.
The superior court denied USG's and County's motion to dismiss the proceeding: "Notwithstanding considerable delay by the Sierra Club, the real party does not establish that petitioner's delays in this matter have been '... deliberate and egregious...' under that criteria as set forth in [Slesinger, supra, 155 Cal.App.4th 736]...." The court further ruled USG had not adequately shown prejudice.
USG and County moved for "reconsideration and/or clarification" of the court's decision under the court's "inherent power" and Code of Civil Procedure section 1008. They argued the "deliberate and egregious" standard cited by the court did not apply to motions to dismiss for failure to prosecute and there was no requirement that they showprejudice.4 The motion was supported by USG's counsel's accompanying declaration, in which counsel stated: "After the Court's ruling on the Motion to Dismiss, my office conducted extensive legal research and was unable to find any reported decision where a court applied a 'deliberate and egregious' standard to a motion to dismiss for failure to prosecute, or any other legal authority that authorizes courts to apply such a standard in the case of a party's failure to prosecute an action."
The matter proceeded to oral argument, during which the superior court announced it had "erred in using the deliberate and egregious standard" of Slesinger and had committed "legal error" in denying the motion to dismiss. The court stated that to the extent there were no grounds for reconsideration, it would rely on its "inherent power to correct [its] own mistake short of a judgment" and reverse its prior ruling. Following arguments, the court granted reconsideration, granted the motion to dismiss, and overruled USG's objections to Sierra Club's counsel's declarations. Sierra Club appeals from those orders.
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