Filed 8 / 15 / 23 Cal. Regional Water Q uality Control etc. v. Balcom Ranch CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD OF LOS ANGELES,

Plaintiff and Respondent,

v.

BALCOM RANCH,

Defendant and Appellant. 2d Civil No. B313543 (Super. Ct. No. 56

- 2017

- 00505151

- CU

- JR

- VTA) (Ventura County)

Balcom Ranch, a general partnership, purports to appeal
an order of the Superior Court finding it in contempt after it failed to comply with a subpoena duces tecum issued by the California Regional Water Quality Control Board of Los Angeles (the Water Board). Conceding the contempt order is not appealable, Balcom Ranch urges us to treat the notice of appeal as a petition for writ of mandamus. Balcom Ranch waited more than two years after the Superior Court’s contempt order to seek writ or appellate review and has not shown any extraordinary2

circumstances justifying the delay. In light of this unreasonable delay, we decline to exercise our di scretion to treat the notice of appeal as a petition for writ of mandate and, accordingly, dismiss the appeal.
Facts and Procedural History Balcom Ranch is a general partnership that owns a commercial citrus grove and row crop farm in Santa Paula. T he Water Board requires commercial irrigated farming operations
like Balcom Ranch to monitor and test the waste water they discharge. Farming operations are required to submit a Notice of Intent that details their plan to conduct the tests individually or as part of a “Discharger Group.” In late 2007, the Water Board
issued a notice of violation to Balcom Ranch because it had failed

to comply with requirements for testing its waste water discharge

. Balcom Ranch did not respond to the notice or indicate i ts intent to comply with the requirements

. The Water Board issued an administrative civil liability complaint (ACL) against Balcom Ranch in early 2010. In July 2011, after an administrative hearing, the Water Board ’s hearing panel determined that Balcom Ranch had violated California
Water Code , § 13260 by failing to comply with the waste discharge requirements

. It assessed a penalty of $193,850 against Balcom Ranch

. Balcom Ranch filed a petition in the Superior Court for a peremptory writ, arguing the proposed penalty was so excessive that it violated due process. In particular, Balcom Ranch objected that, in calculating the penalty, the Water Board had
failed to consider its ab ility to pay the penalty and remain in
business. The Superior Court granted the writ, vacating the penalty and remanding the matter to the Water Board to hold an3

administrative hearing at which it would re consider Balcom Ranch’s ability to pay a civil pen alty.
T he Water Board ’s prosecution team issued a revised ACL
recommend ing a penalty of $51, 0 45

. It also issued a subpoena
duces tecum to Balcom Ranch and three of its partners, requiring the production of financial records , the partnership agreement

a nd related organizational documents, and documents related to property owned by the partnership. The prosecution team stated
these documents were required to confirm that Balcom Ranch
had the ability to pay the penalty

. Balcom Ranch objected to the subpoena on several procedural grounds and asserted a right to privacy in the financial records an d partnership documents called for. It declined to produce responsive documents without a protective order.
T he parties engaged in negotiati ons over the terms of a protective order but were unable to agree. In October 2016, the Water Board’s hearing panel overruled most of Balcom Ranch’s objections but granted its motion to quash production of its tax returns. The hearing panel rejected the proposed protective order and directed Balcom Ranch to produce responsive documents by November 2016. Balcom Ranch failed to produce any documents in response
to the Water Board’s order. On March 1, 2017, the hearing panel issued a contempt citation to Balcom Ranch

. It then moved to
enforce the citation in the Superior Court. I n a July 2018 tentative ruling, the Superior Court overruled Balcom Ranch’s objections to the subpoena and found it in contempt. In February 2019, nearly two years after th e Water Board issued its contempt citation, the Superior Court confirmed the
citation by entering an Order re Contempt. The order includ es4

findings that the Water Board’s subpoena was “authorized, lawful and valid,” that its decision to deny a protective order was “lawful and valid” and that Balcom Ranch had failed “[w]ithout substantial justification” to comply with the sub poena. The Superior Court concluded that Balcom Ranch’s refusal to comply with the subpoena “constitutes contempt.” Becau se Balcom Ranch was “guilty of contempt,” the Superior Court ordered that Balcom Ranch, through its par tner Mark Brown, be imprisoned
until it responded to the subpoena . It further ordered Balcom
Ranch to pay both a $1,000 fine and the Water Board’s

“ reas onable attorney ’s fees and costs incurred in connection with this contempt proceeding

. ”
Balcom Ranch responded to the subpoena and denied possessing many of the documents called for in it. Among other things, Balcom Ranch asserted that it did not posse ss a written partnership agreement or other documents describing the rights and responsibilities of its partners , nor did it possess any documents relating to an appraisal of its real property

. It stated it would produce other documents, including state a nd federal tax returns and related schedules for a limited number of years, “pursuant to an executed protective order.” In April 2019, the Superior Court entered a protective order governing Balcom Ranch’s production of confidential
materials in the c ontempt action and the revised ACL proceeding

. It noted the Water Board’s jurisdictional objections and specified
that the protective order did not invalidate or modify the Board’s
contempt citation

. Balcom Ranch and its partners filed amended responses to the subpoena in which they agreed to produce tax returns and related documents for the years 201 1 through 2017
and denied the existence of other documents described in the5

subpoena. Balcom Ranch ref used to produce documents relating to its current ability to pay a penalty. The partners also refuse d to provide affidavits verifying their responses, as required by the subpoenas, contending the affidavits were unnecessary. At a
status conference in Jun e 2019, the Superior Court concluded that, once the affidavits were supplied, Balcom Ranch would have “substantially complied” with the subpoenas

. In August 2020, the Water Board filed a motion to set the amount of its attorney ’s fee s award as provided in the Febru ar y 2019 Contempt Order

. The S uperior C ourt granted that motion, awarding the Water Board attorney’s fees of $167,400. J udgment
was entered against Balcom Ranch on April 22, 2 021. The judgment s tates , “For the reasons stated in the attached Contempt Order, Balcom Ranch is guilty of contempt.” It further orders Balcom Ranch to “pay $167,400 to [the Water Board],
which amount represents the attorney’s fees reasonably incurred by the Board in connection with this proceeding.” Balcom Ranch filed its notice of appeal on July 12, 2021.
Discussion A judgment or order of contempt is not appealable. ( People
v. Gonzalez (1996) 12 Cal. 4th 804, 816 ; Imuta v. Nakano (1991) 233 Cal.App.3d 1570, 1584, fn. 18 .) It may, however, “ be reviewed by certiorari or, where appropriate, by habeas corpus [.]” ( In re Buckley (1973) 10 Cal.3d 237, 259 ; s ee also, People v.
G o nzalez , supra, at p. 816 [“review of the contempt judgment is by extraordinary writ”].) Balcom Ranch acknowledges, as it must, that the contempt order is not appealable. It requests that we exercise our
discretion to treat the notice of appeal as a writ petition. Although we have discretion to do so, that discretion is exercised6

sparingly a nd only in unusual circumstances. ( Black Diamond Asphalt , Inc. v. Superior Court (2003) 114 Cal.App.4th 109, 114 ;

s ee also Podiatric Medical Board of California v. Superior Court (2021) 62 Cal.App.5th 657, 666 [court of appeal exercises “unusual power” to treat unauthorized appeal as a writ petition ].)
We decline to exercise it here because no unusual or extraordinary circumstances exist. First, the length of the delay was unreasonable. Balcom
Ranch filed its notice of appeal on July 12, 2021, more than two years after the Superior Cou rt entered the contempt order on February 6, 2019

. As a general rule, a writ petition should be
filed within the 60

- day period applicable to appeals. ( Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 310.) “ ‘ An appellate court may consider a petition for an extraordinary writ at any time [citation], but has discretion to deny a petition filed after the 60

- day period applicable to appeals,
and should do so absent “ extraordi nary circumstances ” justifying the delay. ’ ” ( Volkswagen of America, Inc. v. Superior Court (2001) 94 Cal.App.4th 695, 701 ; s ee also People v. Superior Cour t ( Brent ) (1992) 2 Cal.App.4th 675, 682. )
Balcom Ranch contends it delayed seeking review until jud gment was entered because it was not aware that a contempt
order could be reviewed only by writ. But this mistake of law is
neither reasonable nor an extraordinary circumstance justifying the delay

. T he answer to the appealability question was readily
available through review of the relevant statutes and case law

. In addition, both the Water Board and the trial court informed appellant that the contempt order was reviewable by writ

. Before the trial court entered its c ontempt order, the Water Board stated in a reply brief that “ a judgment of contempt is not7

appealable.” T he trial court also noted , at three separate hearings, that Balcom Ranch could seek writ review of the contempt order

. Balcom Ranch asserts that it saw no need to petition for
writ review in February 2019 because it believed the contempt order would be dissolved after it produced responsive documents

. This explanation is un persuasive

. The trial court never suggested it would dissolve the contempt citation upon compliance

. Even if the threat of jail time evaporated after compliance

, the contempt citation, the fine and the order to pay attorney’s fees and costs would remain. Moreover, dissolution of
the contempt order after c ompliance would have left un resolved the question whether Balcom Ranch had a right to privacy that justified its initial refusal to comply with the subpoena

. The
existence of this issue gave Balcom Ranch a reason to seek review at the earliest possible op portunity , not a justification for extreme delay

. Conclusion Balcom Ranch has not identified any extraordinary
circumstance that justif ies its delay in seeking review of the contempt citation or support s the exercise of our discretion to

treat its inoperative notice of appeal as a petition for writ of
mandate. The appeal is dismissed. Costs to the Water Board.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J. BALTODANO, J.Ronda J. McKaig, Judge

Superior Court County of Ventura

______________________________

Niddrie, Addams, Fuller, Singh and Rupa G. Singh; Leech, Tishman, Fuscaldo & Lampl and Fadi K. Rasheed, for Defendant and Appellant. Rob Bonta, Attorney General, Robert W. Byrne , Assistant Attorney General, Eric M. Katz, Supervising Deputy Attorney General, Carol A.Z. Boyd, Deputy Attorney General, for Plaintiff and Respondent.