Statues of limitations issues frequently loom large in litigation under the California Environmental Quality Act ("CEQA") and can confound litigants and their counsel. Depending on the challenge being made and the context in which it is made, claims brought under CEQA may be subject to a range of limitations periods -- from 30 to 180 days. Moreover, the date on which a CEQA claim accrues is not always clear. For example, an agency making a CEQA decision may file a Notice of Determination, which generally triggers the shorter CEQA limitations periods, but parties with an interest in that same decision may not always get notice of the filing. For these reasons, among others, calculating the correct statute of limitations period applicable to a CEQA claim can be risky business. A new opinion from the California court of appeal, Alliance for the Protection of the Auburn Community Environment v. County of Placer, raises the stakes even higher and holds that a party may not obtain relief from a late filing by reason of mistake, inadvertence, surprise, or excusable neglect.
Trial Court Proceedings: Demurrer Sustained
In 2008, Bohemia Properties, LLC ("Bohemia") submitted to the County of Placer (the "County") an application for approval of a proposed 155,000 square foot building. The County concluded that Bohemia's project required approval of an Environmental Impact Report ("EIR"), which the County certified on July 8, 2010. The Alliance for the Protection of the Auburn Community Environment (the "Alliance") filed an administrative appeal on July 16, 2010. The County rejected the appeal on September 28, 2010. The County re-certified the EIR on the same day and filed a Notice of Determination on the following day, September 29, 2010.
The statute of limitations on a challenge to the EIR expired on October 29, 2010. The Alliance filed a petition for writ of mandate challenging the sufficiency of the EIR on November 1, 2010. Bohemia demurred to the petition on statute of limitations grounds. Alliance filed a motion for relief from the missed statute of limitations deadline under Code of Civil Procedure § 473 ("Section 473") and opposed the demurrer. The Alliance contended in its motion that the late filing of the petition was due to a "miscommunication from its attorney service as to the deadline for receipt of the Writ" at the superior court. Specifically, the Alliance provided evidence that its attorneys delivered the writ petition to its attorney service; however, the service arrived too late to file it on the October 29, 2010 deadline.
The Alliance contended that these facts justified and excused its failure to timely file its writ petition under Section 473. The trial court disagreed. It sustained Bohemia's demurrer and denied the Alliance's motion on the basis of its ruling that the 30-day statute of limitations contained in Public Resources Code § 21167 governing the Alliance's claim is mandatory and does not provide for an extension of time to file a petition based on a showing of good cause.
Court of Appeal's Analysis
Code of Civil Procedure § 473(b) provides that:
The court may, upon any terms as may be just, relieve a party or 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.
Moreover, California law strongly favors trial on the merits. Accordingly, relief under Section 473 is liberally granted and doubts regarding the applicability of the section are resolved in favor of the party seeking relief. Nevertheless, the court of appeal affirmed the trial court's ruling.
According to the court, the outcome of the appeal was essentially controlled by the California Supreme Court's opinion in Maynard v. Brandon, 36 Cal. 4th 364 (2005). The Maynard Court held that a party that had failed to meet the 30-day deadline for seeking trial de novo following an arbitration under the Mandatory Fee Arbitration Act could not seek relief under Section 473. The Court noted that Section 473 may be invoked to excuse procedural errors in a broad variety of contexts. However, Section 473 "does not offer relief from mandatory deadlines deemed jurisdictional in nature" and does not "apply to dismissals attributable to a party's failure to comply with the applicable limitations period in which to institute an action, whether by complaint or by writ petition." (Citations omitted).
Moreover, the court noted that the limitations periods applicable to CEQA actions provided by Public Resources Code § 21167 make no provision for extending the limitations period on a showing of good cause. Absent such legislative indication, the policy embodied in CEQA requiring prompt resolution of CEQA disputes controlled.
The holding of the Bohemia Properties opinion is not surprising. Indeed, even apart from what appears to be a fairly clear statement of law by the Maynard Court, the showing of "excusable neglect" by the Alliance on which it rested its appeal to the trial court's mercy was hardly compelling. For example, why did the Alliance wait until he last minute to file its petition? And, shouldn't it have become clear to the Alliance's counsel at some point that its attorney service was not going to make it to the courthouse in time to file the petition and shouldn't counsel have made alternate arrangements? Regardless, given the holding of the Maynard Court, the Alliance's writ petition died once the courthouse filing window closed on the afternoon of October 29, 2010.
The Alliance urged on appeal that the Supreme Court's opinion in Maynard was mere "dicta" and therefore not controlling. It also argued that the Court's statements were based upon "a faulty premise that statutes of limitation are jurisdictional". Putting aside whether it is sound appellate strategy to suggest to an inferior tribunal that a Supreme Court opinion was not correctly reasoned, the Alliance confused the concept of the "mandatory" nature of statutes of limitations with the question of whether such statutes are "jurisdictional". As reflected by the holding of the Bohemia Properties court, a CEQA statute of limitations is "mandatory", meaning that a litigant must comply with it or else lose its claim forever. It is not, however, "jurisdictional" in the sense that a court would lose jurisdiction over the claim following expiration of the applicable 30, 35 or 180-day period. For example, as explained in my blog article on May 29, 2012, litigants may toll a CEQA statute of limitations well beyond the initial period by entering into a written agreement to that effect with all interested parties.
In any event, the lesson of the Bohemia Properties opinion is plain. CEQA limitations periods are short. Those limitations periods are also, absent a valid tolling agreement, not subject to extension no matter how good a litigant's excuse for tardy filing may be. When considering filing a CEQA petition, diligence is the order of the day. There is no penalty for filing before the limitations period expires. However, as the facts of Bohemia Properties illustrate, waiting until the last possible minute puts CEQA claimants at risk that a traffic jam on the way to the courthouse could end their lawsuit before it is even filed.