1 Filed 2/28/13 Alliance for Protection of Aubu rn Com Environment v. County of Placer CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)

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ALLIANCE FOR THE PROTECTION OF THE AUBURN COMMUNITY EN VIRONMENT et al., Plaintiffs and Appellants,

v. COUNTY OF PLACER, Defendant and Respondent;
BOHEMIA PROPERTIES, LLC, Real Party in Inte rest and Respondent. C067961 (Super. Ct. No. SCV0028200)

Defendant County of Placer (County) certified an en vironmental impact report (EIR) prepared by real party in interest Bohemia Properties, LLC (Bohemia) for the development of a 155,000-square -foot building (the project). Plaintiffs Alliance for the Protection of the Auburn Community Envir onment, Joseph H. Marman, and Lari L. Knedel (Alliance) filed a petition for a writ of mandate under the California2 Environmental Quality Act (CEQA; Pub. Re sources Code, § 21000 et seq.) challenging the project’s approval and alleging CEQA vi olations. Bohemia filed a demurrer, which the County join ed, arguing the petition was barred by th e applicable statute of limitations. The court sustained the demurrer without l eave to amend and denied Alliance’s motion seeking relief on the grounds of mistake or excusable neglect. Alliance appeals, contending it is entitled to relief under Code of Civil Proc edure section 473. 1 We shall affirm the judgment. FACTUAL AND PROCED URAL BACKGROUND In 2008 Bohemia submitted an applicatio n for the proposed development of the project. The County concluded the project required an EIR. A draft EIR was circulated, followed by a public comment period and eventually a final EIR. The final EIR was circulated on June 16, 2010, and the C ounty certified it on July 8, 2010. Alliance filed a written appeal of the certific ation on July 16, 2010. On September 28, 2010, the County held a public hearing on Alliance’s appeal and again certified the final EIR. The notice of dete rmination (NOD) was filed on September 29, 2010. Based on the September 29, 2010, filing of the NOD, Alliance’s petition challenging the EIR was due by October 29, 2010. Howe ver, Alliance filed its petition on November 1, 2010. In its petition, Alliance argued the EIR di d not comply with CEQA’s requirements and the County based its appr oval on inadequate findings in violation of CEQA. According to Alliance, the EIR failed to analyze significant impacts posed by the project on air quality, traffic and circulation, and urban decay; failed to analyze cumulative impacts or mitigate impacts; and failed to co nsider a reasonable range of alternatives.

1 All further statutory references are to the Code of Civil Procedure unless otherwise designated.3 Alliance contended the County violated CE QA by adopting findi ngs not supported by substantial evidence. Alliance submitted an ex parte applicati on for relief on the grounds of mistake or excusable neglect, which was denied withou t prejudice on November 10, 2010. The court found the request premature since Bohe mia had not yet challenged the filing of the petition as untimely. In January 2011 Bohemia filed a demurrer to Alliance’ s petition, alleging it was not filed within the limitations period. Alliance filed a motion for relief under section 473 on January 19, 2011, and filed an opposition to the demu rrer two weeks later. The trial court concluded that Allian ce’s petition was barred by the mandatory provisions of Public Resources Code sectio n 21167. Under section 21167, the 30-day statute of limitations within which to brin g a challenge to the County’s approval of Bohemia’s EIR expired on October 29, 2010. As the court noted, Alliance conceded it filed its petition three days after the statute had run. The trial court entered an order sustai ning Bohemia’s demurrer without leave to amend and denying Alliance’s motion seekin g relief on the grounds of mistake or excusable neglect. Following en try of judgment, Alliance filed a timely notice of appeal. DISCUSSION I. The function of a demurrer is to test th e sufficiency of the complaint by raising questions of law. We give the complaint a reasonable interpretation and read it as a whole with its parts considered in their context. A genera l demurrer admits the truth of all material factual allegations. We are not concerned with the plai ntiff’s ability to prove the allegations or with any possible difficulti es in making such proof. We are not bound by the construction placed by the trial court on the pleadings; instead , we make our own independent judgment. ( Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 824.)4 When the trial court sustains the demurrer without leave to amend, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. If we find that an amendment co uld cure the defect, we must find the court abused its discretion and reverse. If not, th e court has not abused its discretion. The plaintiff bears the burden of proving an amendment would cure the defect. ( Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.) II. Alliance argues the court erred in sustaining Bohemia’s demurrer, since section 473 provides relief from its excusable mistake that resu lted in the late filing of the CEQA petition. Section 473, s ubdivision (b) provides that a “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 agai nst him or her through his or her mistake, inadvertence, surprise, or ex cusable neglect” provided th at relief is so ught within a reasonable time, not exceeding six months after the judgment, dismissal, order, or proceeding was taken. The provisions of sect ion 473 are to be libera lly construed, and policy considerations favor the determinati on of actions on their merits. ( Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256.) Because the law strongly favors trial on the merits, we resolve an y doubts as to the applicability of section 473 in favor of the party seeking relief. ( Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) On appeal, Alliance asserts the late filing resulted from a “miscommunication from its attorney service as to the deadline for receipt of the Wr it” at the superior court. Alliance’s counsel submitted the filing to the attorney serv ice prior to the service’s deadline to ensure timely filing. However, the atto rney service info rmed counsel it would not file until the following business day. Although Alliance’s counsel requested the petition be filed that day, the attorney se rvice arrived too late to file on October 29,5 2010. Therefore, Alliance argues, secti on 473 applies and the court should have overruled Bohemia’s demurrer and granted relief under section 473. However, in order to succeed with this argument, Alliance must come to terms with the Supreme Court decision in Maynard v. Brandon (2005) 36 Cal.4th 364 ( Maynard ). In Maynard, the Supreme Court stated: “Nor does section 473, subdivision (b) generally apply to dismissals attributable to a part y’s failure to comply with the applicable limitations period in which to institute an action, whether by complaint [citations] or by writ petition [citation].” ( Maynard , at p. 372.) Alliance characterizes the Supreme Court’s opinion in Maynard as “dicta” and “based on a faulty premise, th at statutes of limitation are jurisdictional.” Alliance also seeks to distinguish th e authority upon which Maynard relies.
In Maynard, the Supreme Court held that secti on 473 relief was not available for a party who failed to meet the 30-day deadline for seeking a trial de novo following an arbitration under the Mandatory Fee Arbitra tion Act (MFAA; Bus. & Prof. Code, § 6200 et seq.). ( Maynard, supra, 36 Cal.4th at p. 369.) Maynard noted section 473 provides relief from the consequences of many procedur al errors committed during the course of a proceeding. Among those procedures are “the issuance of untimely demands for expert witness disclosures [citation], erroneous o ffers to compromise [citation], inadvertent dismissals [citation], failures to timely res pond to requests for admissions . . . and the untimely filing of cost bills [cita tion], just to name a few.” ( Maynard , at p. 372.) In contrast, Maynard noted: “Notwithstanding the broad construction afforded section 473, subdivision (b), the statute doe s not offer relief from mandatory deadlines deemed jurisdictional in nature. [Citations.] Thus section 473, subdivision (b) cannot extend the time in which a party must move for a new trial, since this time limit is considered jurisdictional. [Citations.] No r does section 473, subdivision (b) generally apply to dismissals attributab le to a party’s failure to comply with the applicable limitations period in which to institute an action, whethe r by complaint [citations] or by6 writ petition [citation]. [¶] Furthermore, except as authorized by statute, section 473, subdivision (b) may not excuse the untimely filing of a notice of appeal. [Citation.] ‘The requirement as to the time for taking an ap peal is mandatory, and the court is without jurisdiction to consider one which has been taken subseque nt to the expiration of the statutory period. In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for a ppeal, even to relieve against mistake, inadvertence, accident, or misfortune.’ [Citation.]” ( Maynard, supra, 36 Cal.4th at pp. 372-373.) Maynard considered the provisions of the MFAA and determined that the terms, goals, and legislative history of the act led to the conclusion that section 473 could not relieve a party from the consequences of runnin g afoul of the 30-day deadline for seeking a trial following an arbitration. ( Maynard, supra, 36 Cal.4th at p. 369.) According to the court, “The conclusion that section 473, su bdivision (b) relief is unavailable under these circumstances may impose a hardship on client s who do not timely seek a trial following fee arbitration. We do believe , however, that the Legislature has determined that, in the long run, clients benefit from an arbitration system that produces a binding result if the parties do not invoke the judicial process with in a fixed period of time following issuance of an award.” ( Maynard , at p. 382.) Alliance argues strenuously that Maynard found section 473 relief unattainable for missed statutes of limitation solely because such deadlines are juri sdictional and contends Maynard conflicts with prior precedent, which held statutes of limitation are not jurisdictional. However, in Maynard, the court found relief unavailable based on the mandatory nature of the statute of limitations , not simply because statutes of limitation are jurisdictional in nature. ( Maynard , supra , 36 Cal.4th at pp. 372-373.) In reaching this conclusion, Maynard relied on Kupka v. Board of Administration (1981) 122 Cal.App.3d 791 ( Kupka ). In Kupka , the court considered Government Code section 11523, which requires the filing of a petition for writ of mandate to review an7 administrative decision within 30 days of th e last day on which re consideration can be ordered. The court noted the statute did not provide for an extension of the filing period on a showing of good cause and denied relief under section 473. The Kupka court determined that providing relief under section 473 “would work a prof ound change in our system of procedure.” ( Kupka , at p. 794.) Kupka reasoned that statutes of limitation ar e, of necessity, adamant rather than flexible in nature. If the Legislature desire s to allow some flexib ility in a statute of limitations, it expressly provides for an extens ion of the limitations period on a showing of good cause. Such a show ing of good cause is the e quivalent to a showing under section 473. If the Legislature is silent ab out such a good cause extension, the court infers that the Legislature did not intend such an extension on the grounds of good cause or under section 473. ( Kupka, supra, 122 Cal.App.3d at pp. 794-795.) The court noted section 473 applies to an amendment of pleadings, but only if the recovery sought in both pleadings is on the same set of facts. A complaint may be amended after the statute has run to correct th e misdescription of a party, but not to add a new party. In addition, a de fendant cannot invoke the bar of limitation if the defendant’s conduct caused the plaintiff to delay filing th e action, but a plaintiff’s innocent mistake, not caused by the defenda nt, will not excuse a late filing. ( Kupka , supra , 122 Cal.App.3d at pp. 795-796.) The Kupka court concluded: “These limitations on the power of the court to permit amendment of a complaint after the statute of limitati ons has run, even on a showing of good cause, indicate that a show ing of mistake or excusable neglect is not by itself sufficient to overcome the bar of limitations.” ( Id . at p. 795.) III. Public Resources Code section 21167 se ts forth the limitations periods for all actions alleging CEQA violations. Howe ver, section 21167 makes no provision for extending the limitations period on a showing of good cause.8 While CEQA should be broadly interp reted to protect the environment, CEQA also aims to ensure extremely prompt re solution of lawsuits claiming noncompliance with the act. ( Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259; Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 500.) “[W]hile these precepts [requiring a broad inte rpretation of CEQA] ar e validly applied to the substantive merits of challenges brough t under CEQA, in which it is asserted that certain projects will or may have a significant effect on the environment, that does not mean that the same standard of liberality should necessarily be applied in interpreting the procedural requirements of the Act. The Ac t contains a number of provisions evidencing the clear ‘legislative determination that the pu blic interest is not served unless challenges under CEQA are filed promptly’ [citation], and the same policy must certainly be said for similar provisions which require that a CEQA ac tion, once filed, be diligently prosecuted and heard as soon as r easonably possible.” ( Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, 836.) However, Alliance argues courts have provided relief from CEQA’s short limitation periods. We find these cases distinguishable.
In Citizens of Lake Murray Area Association v. City Council (1982) 129 Cal.App.3d 436, a dispute arose as to when the statute of limitations began to run. The court found the statute ran from the date the county clerk pos ts the NOD, not from the agency’s earlier submission of the NOD to the clerk. In construing Public Resources Code section 21152, the court noted the stat ute states the clerk “shall” post NODs for public display. The court reasoned that “shall” is statutorily defined as mandatory in its construction unless the context requires otherwise. ( Citizens of Lake Murray , at pp. 440- 441.) Here, in contrast, there is no dispute as to when the statute of limitations began to

run. The plaintiff in Garrison v. Board of Directors (1995) 36 Cal.App.4th 1670 requested leave to amend his pe tition after the statute of limita tions period had run to add9 an individual plaintiff, a member of the orig inally named unincorpora ted association that lacked the capacity to sue. The court found the relation- back doctrine applied, since the proposed change was of form and not substance. ( Id. at p. 1678.) The relation-back doctrine does not apply in this case. Finally, in McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, the court considered what constituted a request for hearing under Public Resources Code section 21167.4. The court noted no appella te case had addressed the question of what constituted a “request for hearing” as required by sec tion 21167.4. ( McCormick , at pp. 357-358.) The la w surrounding section 2 1167.4 was unsettled and local rules created an ambiguity about requesting a hearing. ( McCormick , at pp. 360-361.) The court determined that the plaintiff’s counsel had made an honest mistake of law in failing to satisfy section 21167.4. ( McCormick , at p. 362.) Here, Alliance does not argue counsel made a mistake in interpreting an unclear st atute, but instead argues the late filing was excusable. In contrast, the court in Nacimiento Regional Wate r Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 968 found Code of Civil Procedur e section 473 inapplicable. In Nacimiento the plaintiff failed to file a request for a hearing within 90 days of filing an action under Public Resources Code section 211 67.4, subdivision (a). ( Nacimiento , at pp. 964-965.) In finding section 473 inapplicable, the court noted CEQA’s objective of prompt resolution of litigation. ( Nacimiento , at pp. 965-966, 968-969.) The court acknowledged McCormick , noting discretionary relief under s ection 473, subdivision (b) for a section 21167.4, subdivision (a) dismissa l caused by an ex cusable mistake was unquestionably available. However, the issue in Nacimiento was whether mandatory relief under section 473 caus ed by an inexcusable mi stake was required. ( Nacimiento , at p. 966.)10 Nacimiento concluded: “Nearly every sectio n 21167.4 dismissal for failing to request a hearing on alleged CEQA violations is caused by the mistak e, inadvertence, or neglect of the plaintiff’s attorney, and thus few dismissals would be final if mandatory relief under section 473 were applied to such dismissals. The CEQA dismissal statute would effectively be nullified, and the le gislative intent that CEQA challenges be promptly resolved and dilig ently prosecuted would be defeated. [Citation.]” ( Nacimiento, supra, 122 Cal.App.4th at p. 968.) Al though Alliance strenuously argues
Nacimiento is “clearly erroneous,” we find no fault with the decision. Alliance fails to cite any authority for the proposition th at Code of Civil Procedure section 473 provides relief fro m a litigant’s failure to file its petition within the 30-day limitations period under Public Resources Code section 21167. Our reading of the statute and relevant authority does not support Alliance’s contention that such relief is available. Accordingly, the trial court did not err in sustaining Bohemia’s demu rrer without leave to amend. DISPOSITION The judgment is affirmed. Bohemia and County shall recover costs on appeal.

RAYE , P. J.

We concur:

ROBIE , J.

MAURO , J.