Sunset Drive Corp. v. City of Redlands

• Decision Date: 30 June 1999
• Docket Number: No. E022234,E022234
• Citation: 86 Cal.Rptr.2d 209,73 Cal.App.4th 215
• Parties: , 99 Cal. Daily Op. Serv. 5304, 1999 Daily Journal D.A.R. 6727 SUNSET DRIVE CORPORATION, Plaintiff and Appellant, v. CITY OF REDLANDS, et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 209

86 Cal.Rptr.2d 209

73 Cal.App.4th 215, 99 Cal. Daily Op. Serv. 5304,

1999 Daily Journal D.A.R. 6727

SUNSET DRIVE CORPORATION, Plaintiff and Appellant, v. CITY OF REDLANDS, et al., Defendants and Respondents.

No. E022234.

Court of Appeal, Fourth District, Division 2, California.

June 30, 1999.

Gary S. Garfinkle, Lafayette; and Lawrence E. Smith, San Ramon, for Plaintiff and Appellant.

Best Best & Krieger; Howard B. Golds, Cynthia M. Germano, Riverside; and Daniel J. McHugh, City Attorney, City of Redlands, for Defendants and Respondents.

O P I N I O N

McKINSTER, J.

Sunset Drive Corporation ("Sunset") appeals from the dismissal of its action after demurrers were sustained without leave to amend to its combined petition for writ of mandate and complaint for damages for the violation of its civil rights. Finding that the facts alleged by Sunset are sufficient to state claims for mandate and damages, we reverse.

PROCEDURAL BACKGROUND

Sunset filed its action in May of 1996 against the City of Redlands and its city council (collectively, "Redlands" or the defendants). Alleged in two counts, it sought a writ of mandate, ordering the defendants to complete and certify an environmental impact report ("EIR") on Sunset's project, and an award of damages for its failure to do so. The defendants demurred to both counts. The demurrer was sustained with leave to amend.

Sunset's first amended pleading again alleged two counts, seeking the same relief. The defendants again demurred. That demurrer was sustained without leave to amend the mandate count, and with leave to amend the count for damages.

Sunset's second amended pleading alleged solely the count for damages. The defendants again demurred, and the demurrer was again sustained, this time without leave for further amendments. Thereafter, judgment was entered dismissing the action. Sunset appeals, challenging the rulings sustaining the demurrers to both counts.

DISCUSSION

A. STANDARD OF REVIEW FOR RULINGS ON DEMURRERS

"In evaluating an order sustaining a demurrer to a pleading, we give the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479.) We assume the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672, 34 Cal.Rptr.2d 386, 881 P.2d 1083; Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403, 44 Cal.Rptr.2d 339.)" (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 564, 71 Cal.Rptr.2d 625.) Because the factual allegations are assumed to be true, the possibility that they may be difficult to prove is irrelevant. (Concerned Citizens of Costa Mesa, Inc. v. 32nd. Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 936, 231 Cal.Rptr. 748, 727 P.2d 1029.)

"When considering the legal effect of those facts, we disregard any erroneous or confusing labels employed by the plaintiff. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908, 274 Cal.Rptr. 186.) A complaint is sufficient if it alleges facts which state a cause of action under any possible legal theory. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, 9 Cal.Rptr.2d 92, 831 P.2d 317.) However, because it is not a reviewing court's role to construct theories or arguments which would undermine the judgment (People v. Stanley (1995) 10 Cal.4th 764, 793, 42 Cal.Rptr.2d 543, 897 P.2d 481), we consider only those theories advanced in the appellant's briefs." (Mead v. Sanwa Bank California, supra, 61 Cal.App.4th at p. 564, 71 Cal.Rptr.2d 625.)

B. THE PETITION FOR WRIT OF MANDATE IS SUFFICIENT.

1. The Allegations of the Petition

Sunset's petition for writ of mandate alleges the following facts. Sunset owns real property in Redlands. In September of 1992, Sunset applied to Redlands' planning department for various permits necessary to allow Sunset to develop a low-income housing project on its property. It also paid to Redlands over $100,000 in fees for those applications to be processed by Redlands.

In November of 1992, Redlands deemed the applications complete and determined that the project would require the preparation of an EIR. Redlands prepared an initial study in June of 1993, which identified the issues to be addressed in an EIR.

In January of 1994, Sunset submitted to Redlands a proposed draft EIR which had been prepared by consultants retained by Sunset. Sunset paid over $15,000 to Redlands to hire another set of consultants to evaluate the draft EIR. In March of 1994, those consultants issued a report critical of the proposed draft EIR.

In response to those criticisms, Sunset's consultants extensively revised the proposed draft EIR and submitted that second proposal to Redlands in March of 1995. Redlands' consultants again issued a written review criticizing that proposal. Sunset again revised the proposed draft EIR and submitted its third proposal to Redlands in August of 1995.

Since the submission of the third proposed draft EIR, Sunset has repeatedly demanded of Redlands that it either approve that proposed draft or advise Sunset of the manner in which Redlands determined the draft to be inadequate. Redlands has done neither. In addition, Sunset has complied with all requests of Redlands for further information and for funds with which to complete, review, and certify an EIR. Nevertheless, Redlands has refused to take any action toward doing so.

Redlands has a ministerial duty to complete and certify a final EIR, and Sunset has no administrative remedy available to it to compel the performance of that duty. Sunset prayed for a writ of mandate ordering the defendants to perform.

2. The Petition Alleges that Redlands Violated its Statutory Duty to Complete And Certify an EIR Within One Year.

An EIR must be prepared whenever a proposed project may have a significant effect on the environment. (Pub. Resources Code, § 21082.2, subd. (d).) When an EIR is required, the lead agency is responsible for preparing it. (Id., §§ 21082.1, subd. (a), & 21100, subd. (a).) Rather than prepare it with its own staff, an agency may contract with outside consultants or even the applicant's consultants (Guidelines, § 15084, subd. (d)(3) ¹) so long as the agency applies its "independent review and judgment to the work product before adopting and utilizing it" (Friends of La Vina v. County of Los Angeles (1991) 232 Cal.App.3d 1446, 1454, 284 Cal.Rptr. 171; accord, Guidelines, § 15084, subd. (e)). The steps in the process include the preparation of a draft EIR; the circulation of that draft for comment; the preparation of a final EIR which responds to those comments; and the certification that the final EIR has been completed in compliance with CEQA. (Laurel Heights Improvement Assn. v. Regents of the University of California (1993) 6 Cal.4th 1112, 1123-1124, 26 Cal.Rptr.2d 231, 864 P.2d 502.)

Local agencies are required to establish time limits by which EIRs for projects involving the issuance of a permit by that agency must be completed and certified. (Pub. Resources Code, § 21151.5, subd. (a)(1)(A).) Those time limits must not exceed one year (ibid.) and must "be measured from the date on which an application requesting approval of the project is received and accepted as complete by the local agency" (id., subd. (a)(2); accord, Guidelines, § 15108). Accordingly, Redlands has adopted a time limit requiring that the final EIR shall be completed and certified by its council "no later than one (1) year" from the date on which the application was accepted as complete. (Redlands' Local CEQA Guidelines, § 4.04.)

The petition filed in October of 1996 alleges that Sunset's permit applications were accepted as complete by Redlands in November of 1992, but that Redlands had failed and refused either to complete the draft EIR or to complete and certify a final EIR. From the facts alleged, therefore, Redlands has violated its duties to complete that process within one year of its acceptance of the applications.

The issue on which the parties focus is whether Sunset has any remedy for that breach by Redlands.

3. Mandamus Is an Appropriate Remedy for such a Violation.

A writ of mandate may be issued by a court to compel the performance of a duty imposed by law. (Code Civ. Proc., § 1085, subd. (a).) For instance, if a court finds that any determination, finding, or decision of a public agency has been made without compliance with CEQA, the court shall issue a writ of mandate ordering the agency either to void the decision or to take the action necessary to bring the decision into compliance. (Pub. Resources Code, § 21168.9, subd. (a).) Because Redlands' refusal to complete the EIR is contrary to the maximum time limits prescribed by CEQA, the trial court was not only authorized, but required, to issue a writ of mandate ordering Redlands to take corrective action.

Redlands contends that mandate is not available in this instance, asserting three basic arguments. None of them are persuasive.

a. Mandate Is Appropriate to Compel Redlands to Exercise its Discretionary Powers.

As alluded to previously, "[b]efore using a draft prepared by another person, the Lead Agency shall subject the draft to the agency's own review and analysis. The draft EIR which is sent out for public review must reflect the independent judgment of the Lead Agency." (Guidelines, § 15084, subd. (e); accord, Pub. Resources Code, § 21082.1, subd. (c).) The issues which must be addressed in any EIR are prescribed by statute. (Pub. Resources Code, § 21100, subd. (b).) Within those broad parameters, however, "the quality and the content of the EIR lies in the sole discretion" of the agency. (Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713,...