Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist.

Decision Date16 September 1992
Docket NumberNo. A055155,DUNN-EDWARDS,A055155
CourtCalifornia Court of Appeals Court of Appeals
PartiesCORPORATION et al., Plaintiffs and Appellants, v. BAY AREA AIR QUALITY MANAGEMENT DISTRICT, Defendant and Appellant.

William M. Smiland, Robert M. Newell, Jr., Thomas N. Campbell, Donnelly, Clark, Chase & Smiland, Los Angeles, for plaintiffs and appellants.

John F. Powell, Lawrence G. Chaset, Toby Sherwood and Thomas H. Crawford, San Francisco, for defendant and appellant.

WHITE, Presiding Justice.

Bay Area Air Quality Management District (the District) appeals from a judgment granting a peremptory writ of mandate ordering the District to set aside its Regulation 8 amendments relating to certain architectural coatings adopted on January 17, 1990. The plaintiffs who obtained the writ cross-appeal on the ground the writ should be effective as of the date of the judgment. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND 1

The plaintiffs in this action are 21 California manufacturers, retailers and contractors who make, sell, and apply various enamels, lacquers, and paints (architectural coatings). In the 1950's almost all architectural coatings were solvent-borne. Solvent, rather than water, carried the pigments, resins, and additives which made up the coatings. As a result of technological advances, special resins were developed by resin suppliers, which enabled paint manufacturers to develop many architectural coatings which were water-borne. However, for certain specialized and more demanding applications, many professional painters and some homeowners continue to prefer solvent-borne coatings. Both the old and the new types of coatings contain volatile organic compounds (VOC). The traditional solvent-borne coatings typically contain two or more times the amount of VOC as the same volume of the new water-borne coatings. Solvent-borne coatings usually contain 400 or more grams of VOC per liter; water-borne products generally contain less than 250 grams of VOC per liter. VOC contribute to ozone production, and control of their use facilitates ozone control or emission reduction.

In 1986, the Technical Review Group (TRG), formed jointly by the state Air Resources Board (ARB) and the California Air Pollution Control Officers Association (CAPCOA), created an architectural coatings committee to develop a new suggested control measure for architectural coatings. The committee included representatives of ARB, various local districts, and the United States Environmental Protection Agency (EPA). On May 24, 1989, the TRG approved a final version of the ARB-CAPCOA suggested control measure for architectural coatings. The new suggested control measure was sent to local districts with a recommendation that the suggested control measure form the basis for local regulations for reducing emissions from the use of architectural coatings.

The District conducted a workshop on architectural coatings amendments on September 29, 1989. Thereafter, public hearings were conducted on December 6, 1989 and January 17, 1990, to consider proposed amendments to Regulation 8, rules 3 and 48. These amendments were designed to parallel the ARB-CAPCOA suggested control measure for architectural coatings. The District adopted the architectural coatings amendments which are the subject of this appeal on January 17, 1990.

On March 2, 1990, plaintiffs filed a petition for writ of mandate in the Superior Court of Los Angeles County against two statewide public agencies and six regional or local air pollution control agencies, including the District, which had developed, adopted, implemented or otherwise promoted regulations in California which limited the amount of solvent contained in architectural coatings. The petition specifically On or about March 28, 1990, 3 the District moved to transfer all causes of action against it to San Francisco. That motion was granted on or about April 18, 1990, only as to the CEQA claim and denied as to all other causes of action. On May 14, 1990, the District petitioned for a writ of mandate in the Court of Appeal seeking reversal of the order on all causes of action not transferred to San Francisco. The District also requested a stay of all further proceedings against the District. In December 1990, the Court of Appeal issued its order staying all proceedings. On January 8, 1991, the Court of Appeal denied the District's petition to transfer the remaining causes of action to San Francisco, but upheld the transfer of the second cause of action to San Francisco. (See Colusa Air Pollution Control Dist. v. Superior Court (1991) 226 Cal.App.3d 880, 277 Cal.Rptr. 110.)

challenged the District's adoption of amendments to Regulation 8. The petition's second cause of action alleged the District adopted its architectural coatings rules in violation of the California Environmental Quality Act (CEQA). (Pub.Resources Code, § 21000 et seq.) 2

On February 1, 1991, plaintiffs filed a motion for an order approving the stipulation between the parties to transfer the second cause of action to San Francisco County. The order was signed by the Los Angeles Superior Court on March 4, 1991. The transfer documents were received and filed in San Francisco Superior Court on April 2, 1991.

On July 8, 1991, the District filed a motion to dismiss plaintiffs' CEQA cause of action. The District argued plaintiffs had failed to request a hearing within 90 days of filing their petition in violation of section 21167.4. The motion was denied by the superior court and this court subsequently denied the District's petition for writ of mandate.

A trial on plaintiffs' petition for writ of mandate was conducted on August 16, 1991. The trial court concluded, among other things, the District's amendments to Regulation 8 comprised a project subject to CEQA, the amendments were not categorically exempt from CEQA, the administrative record contained substantial evidence on the basis of which a fair argument was made that the amendments may have a significant adverse effect on air quality, no actions or inactions of any person in connection with the January 17, 1990 adoption of the amendments estopped plaintiffs from asserting their cause of action under CEQA, and the issuance of a writ would not interfere with the federal court order in Citizens for a Better Environment v. Deukmejian (N.D.Cal.1990) 731 F.Supp. 1448 and 746 F.Supp. 976. After the District's motion for reconsideration and plaintiffs' motion to modify the effective date of the writ of mandate were denied, these appeals followed.

DISCUSSION
Section 21167.4

A threshold issue is whether plaintiffs' action is barred by their failure to request a hearing within 90 days of filing the petition for writ of mandate. According to the record before us, plaintiffs filed their original petition in Los Angeles on March 2, 1990, the CEQA cause of action was transferred and filed in San Francisco Superior Court on April 2, 1991, and the District filed its motion to dismiss the action on July 8, 1991. 4

Section 21167.4 provides: "In a writ of mandate proceeding alleging noncompliance with [CEQA], the petitioner shall request a hearing within 90 days of filing the petition or otherwise be subject to dismissal on the court's own motion or on the motion of any party interested therein." Pursuant to this statute, dismissal of a CEQA claim is mandatory when a petitioner fails to request a hearing on the writ within the designated time and a party moves to dismiss. (San Franciscans for Reasonable Growth v. City and County of San Francisco (1987) 189 Cal.App.3d 498, 504, 234 Cal.Rptr. 527.) However, there is no authority as to when a request must be filed in the event there is a change of venue.

In their opposition to the District's motion to dismiss the CEQA claim for failure to file a request for a hearing, plaintiffs took the position that the Los Angeles Superior Court lost jurisdiction over any proceedings on March 28, 1990. (See Moore v. Powell (1977) 70 Cal.App.3d 583, 587, 138 Cal.Rptr. 914.) With respect to the transfer of the case to San Francisco, plaintiffs argued that although the action was filed in superior court on April 2, 1991, no notice was given either by the transferring court (Los Angeles) or the filing court (San Francisco) pursuant to Code of Civil Procedure section 399. Plaintiffs contended the 90-day period for filing a request for a hearing did not commence until the required statutory notices had been given.

Code of Civil Procedure section 399 provides in pertinent part: "At the time of transmittal of the papers and pleadings, the clerk shall mail notice to all parties who have appeared in the action or special proceeding, stating the date on which such transmittal occurred. Promptly upon receipt of such papers and pleadings, the clerk of the court to which the action or proceeding is transferred shall mail notice to all parties who have appeared in the action or special proceeding, stating the date of the filing of the case and number assigned to the case in such court." Thus, the transferring court and the receiving court are required to notify the parties the proceeding has been transferred and filed in a new jurisdiction.

Although section 21167.4 was intended to avoid delays in litigation (see San Franciscans for Reasonable Growth v. City and County of San Francisco, supra, 189 Cal.App.3d at p. 503, 234 Cal.Rptr. 527) the rule must be relaxed where there is uncertainty concerning the forum in which the case is to be tried. We agree with plaintiffs that where the plaintiff initiates the filing of an original petition, the plaintiff knows with certainty the date of filing and can perform his duty under section 21167.4 to notice a hearing. However, with a transferred case, because the court initiates the filing, only after a plaintiff receives...

To continue reading

Request your trial
41 cases
  • Mountain Lion Foundation v. Fish & Game Com.
    • United States
    • California Supreme Court
    • 31 Julio 1997
    ...Los Angeles (1974) 13 Cal.3d 68, 74, 118 Cal.Rptr. 34, 529 P.2d 66, hereafter No Oil; Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, 653-655, 11 Cal.Rptr.2d 850, hereafter Dunn-Edwards.) Finally, CEQA does not apply if "it can be seen with certainty" t......
  • Western States Petroleum Assn. v. Superior Court, S038067
    • United States
    • California Supreme Court
    • 16 Febrero 1995
    ...Conservancy, Inc. v. City Council, supra, 10 Cal.App.4th 712, 729, 12 Cal.Rptr.2d 785; Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, 654, 11 Cal.Rptr.2d 850; Friends of La Vina v. County of Los Angeles (1991) 232 Cal.App.3d 1446, 1456-1457, 284 Cal.Rp......
  • Manufacturers Life Ins. Co. v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • 29 Julio 1994
    ... ... statute implies such intention." (Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist ... ...
  • Cummings v. Stanley
    • United States
    • California Court of Appeals Court of Appeals
    • 4 Septiembre 2009
    ...of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 417 ; Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, 658 .) (16) We are also convinced that the election of party central committee members does not have the essen......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT