Filed 8/15/23 Cal. Regional Water Quality 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B311434

(Super. Ct. No. 56-2017-

00505151-CU-JR-VTA)

(Ventura County)

Balcom Ranch, a general partnership, appeals the 

judgment and order requiring it to pay $167,400 in attorneys fees 

to the California Regional Water Quality Control Board of Los 

Angeles (the Water Board) after appellant was found in contempt 

for failing to comply with a subpoena issued by the Water Board. 

Appellant contends the Water Board is not entitled to recover its 

fees because it did not prevail in their dispute regarding a 

protective order, because the Water Board, through inaction, 

abandoned and voluntarily dismissed the administrative 
2

proceeding, because there is no statutory basis for a fee award 

and because awarding fees would be inequitable. Each of these 

contentions is without merit. We affirm.

Facts and Procedural History

The Water Board assessed an administrative civil liability 

(ACL) penalty of $193,850 against appellant in 2011 because 

appellant failed to timely comply with requirements for testing 

wastewater discharge from its irrigated commercial agriculture 

operations. Appellant filed a petition for writ of mandate, 

contending the penalty was excessive and violated its due process 

rights because the Water Board did not give enough 

consideration to its ability to pay the penalty and remain in 

business. In June 2015, the trial court vacated the penalty and 

remanded the matter to the Water Board to hold an 

administrative hearing at which it would reconsider appellant’s 

ability to pay a civil penalty. 

In April 2016, the Water Board’s prosecution team issued a 

revised ACL recommending a penalty of $51,045. It later issued 

a subpoena duces tecum to appellant and three of its partners 

requiring the production of financial records, the partnership 

agreement and related organizational documents, and documents 

related to property owned by the partnership. Appellant objected 

to the subpoena on several procedural grounds and declined to 

produce responsive documents without a protective order. 

Negotiations over the terms of that order were not 

successful. In October 2016, the Water Board’s hearing panel 

overruled most of appellant’s objections to the subpoena but 

granted its motion to quash the production of tax returns. The 

hearing panel rejected the proposed protective order and directed 

appellant to produce responsive documents by November 2016. 
3

Appellant failed to produce any documents in response to 

the Water Board’s order. About five months later, the Water 

Board’s hearing panel found appellant in contempt based on its 

refusal to comply with the subpoena. 

The Water Board filed the instant action to confirm and 

enforce its contempt citation in April 2017. Appellant responded, 

arguing in the trial court that it would produce some of the 

responsive documents subject to a protective order. In July 2018, 

16 months after the Water Board issued its contempt citation, the 

trial court entered a tentative order overruling appellant’s

objections to the subpoena and confirming the contempt citation. 

The trial court encouraged the parties to continue negotiations 

over a protective order.

In February 2019, seven months after its tentative ruling, 

the trial court entered an order confirming the contempt citation. 

This order found that the Water Board’s subpoena was 

“authorized, lawful and valid,” that its order denying a protective 

order was “lawful and valid” and that appellant had no 

“substantial justification” for its refusal to comply with the 

subpoena. It further found that appellant’s refusal to comply 

with the subpoena “constitutes contempt.” Because appellant 

was “guilty of contempt,” the trial court ordered its general 

partner Mark Brown imprisoned until appellant produced 

responsive documents. It further ordered appellant to pay a 

$1,000 fine and to pay the Water Board’s “reasonable attorney’s

fees and costs incurred in connection with this contempt 

proceeding.” 

About two months later, the trial court entered a protective 

order submitted by the Water Board. In March and July 2019, 

appellant produced some responsive documents and filed written 
4

responses to the subpoena. In its responses, appellant stated it 

did not possess many of the requested documents, including a 

written partnership agreement or any documents relating to the 

partners’ rights and responsibilities. Appellant and its general 

partners also refused to submit affidavits, required by the 

subpoena, attesting that they had produced all responsive 

documents in their possession. At a status conference in June 

2019, the trial court concluded appellant had substantially 

complied with the subpoena. It also ordered appellant and its 

partners to provide the requested affidavits. 

The Water Board filed a motion to set the amount of its 

attorney fee award in August 2020. In December, the trial court 

awarded the Water Board fees of $167,400. Notice of entry of 

judgment was served in May 2021 confirming that appellant was 

guilty of contempt and was required to pay $167,400 in attorney 

fees to the Water Board and a $1,000 fine. 

Standard of Review

We review the award of attorney’s fees for abuse of 

discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 

1095; Collins v. City of Los Angeles (2012) 205 Cal.App.4th 140, 

152–153.) As our Supreme Court has explained, the trial court is 

in the best position to judge the value of legal services rendered 

in the courtroom and its judgment regarding those services will 

not be disturbed unless we, as the reviewing court, are convinced 

that it was clearly wrong. (PLCM Group, Inc., supra, at p. 1095, 

quoting Serrano v. Priest (1977) 20 Cal.3d 25, 49.) “An abuse of 

discretion occurs if, in light of the applicable law and considering 

all of the relevant circumstances, the court's decision exceeds the 

bounds of reason and results in a miscarriage of justice. . . . We 

presume that the court properly applied the law and acted within 
5

its discretion unless the appellant affirmatively shows otherwise. 

[Citations.]” (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 

151, 158.)

Discussion

Water Board as Prevailing Party. Appellant contends it 

declined to produce documents in response to the subpoena 

because the Water Board refused, without any valid basis, to 

agree to a protective order. The trial court eventually entered 

one covering documents appellant designated as confidential. 

Appellant contends the Water Board is not entitled to recover its 

attorney fees because it did not prevent entry of the protective 

order. 

Appellant waived review of this issue when it failed to seek 

timely review of the February 2019 contempt order. The 

questions of whether the Water Board had a valid basis to deny a 

protective order or whether its contempt citation should be 

enforced were conclusively decided by the trial court in its 

February 2019 order. The trial court ordered appellant to pay 

the Water Board’s attorney’s fees because it found appellant’s 

refusal, “without substantial justification” to comply with the 

Water Board’s “authorized, lawful and valid” subpoena 

constituted contempt. 

This order is “final and conclusive.” (Code Civ. Proc., 

§ 1222.) It is not appealable, but could have been reviewed by a 

timely petition for writ of mandate or certiorari. (People v. 

Gonzales (1996) 12 Cal.4th 804, 816; Imuta v. Nakano (1991) 233 

Cal.App.3d 1570, 1584, fn. 18.) Appellant did not file a timely 

writ petition and no extraordinary circumstances exist to excuse 

the delay. (Black Diamond Asphalt, Inc. v. Superior Court (2003) 

114 Cal.App.4th 109, 114; Volkswagen of America, Inc. v. 
6

Superior Court (2001) 94 Cal.App.4th 694, 701.) Consequently, 

appellant forfeited review of question whether the Water Board is 

entitled to recover its attorney’s fees and costs. (Grant v. List & 

Lathrop (1992) 2 Cal.App.4th 993, 997.)

Statutory Basis for Fee Order. Appellant contends there is 

no statutory basis for the order directing it to pay the Water 

Board’s attorney fees. It is mistaken. First, we note appellant 

forfeited appellate review of this issue because it did not 

challenge the statutory basis for the fee award in the trial court. 

(Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 

548.) Had the issue been preserved for review, however, we 

would reject it. The fee award is authorized by Government Code 

section 11455.20 and Code of Civil Procedure section 1218. 

When the Water Board’s hearing panel found appellant in 

contempt, it followed the enforcement procedure provided in 

Government Code section 11455.20. It forwarded the contempt 

citation and its certification of the facts justifying the citation to 

the trial court. The trial court issued an order to show cause why 

appellant “should not be punished for contempt.” (Id., subd. (a).) 

When the order to show cause and the Water Board’s certification 

of facts were served on appellant, the trial court had jurisdiction 

over the matter. (Ibid.) At that point, “The same proceedings 

shall be had, the same penalties may be imposed, and the person 

charged may purge the contempt in the same way, as in the case 

of a person who has committed a contempt in the trial of a civil 

action before a superior court.” (Id., subd. (b).) In other words, 

once the trial court served its order to show cause, it conducted 

the contempt proceeding as it would any other direct contempt. 

(Parris v. Zolin (1996) 12 Cal.4th 839, 850.)
7

Code of Civil Procedure section 1218, subdivision (a) 

provides that the punishment for contempt is a fine of up to 

$1,000, imprisonment for up to five days, or both. “In addition, a 

person who is subject to a court order as a party to the action . . . 

may be ordered to pay to the party initiating the contempt 

proceeding the reasonable attorney's fees and costs incurred by 

this party in connection with the contempt proceeding.” (Ibid.) 

Government Code section 11455.20, subdivision (b) empowers the 

superior court to impose the same penalties for contempt “as in 

the case of a person who has committed a contempt in the trial of 

a civil action before a superior court.” Here, the trial court 

followed that directive when it relied on Code of Civil Procedure 

section 1218 to order the payment of attorney’s fees and costs. 

Abandonment of Administrative Proceeding. Appellant 

contends the Water Board is not entitled to recover its fees 

because it pursued the contempt citation long after it abandoned

the revised ACL and the effort to assess a penalty against 

appellant for its initial refusal to comply with the waste water 

discharge requirements. This contention is based on the Water 

Board’s listing appellant on its agenda for two closed session 

meetings held in April and July, 2019. The record, however, 

contains no evidence as to what occurred during these closed 

session meetings, as they are confidential. We do not know what, 

if anything, occurred in the closed sessions. As a consequence, we 

cannot conclude the Water Board decided during one or both of 

those sessions to abandon the revised ACL.

The Water Board’s failure to hold a prompt hearing on the 

revised ACL is also not evidence that it abandoned the matter

because the delay was occasioned by appellant. At appellant’s 

insistence, the trial court’s June 2015 order required the Water 
8

Board on remand to consider appellant’s financial condition and 

ability to pay before assessing a penalty against it. Appellant 

then refused to provide the Water Board with any evidence 

regarding its financial condition. Even after the trial court 

determined the subpoena was proper and enforceable, appellant 

refused to produce responsive documents or the required 

affidavits. Appellant also sought and obtained from the trial 

court numerous continuances and opportunities for further 

briefing, delaying an administrative hearing even longer. 

Appellant, not the Water Board, prevented a prompt hearing on 

the revised ACL.

Code of Civil Procedure section 583.320. Appellant 

contends the revised ACL is time barred because the Water 

Board did not hold a hearing on it within three years after the 

trial court’s remand. Code of Civil Procedure section 583.320 

provides that, if a new trial is granted “in the action” and no 

appeal is taken, “the action shall again be brought to trial . . . 

within three years after the order granting the new trial is 

entered.” (Id., subd. (a)(2).) But the proceeding on the revised 

ACL is an administrative proceeding, not an “action,” within the 

meaning of section 583.320. (Code Civ. Proc., § 22 [action defined 

as “an ordinary proceeding in a court of justice”].) Similarly, the 

trial court’s order remanded the matter for the Water Board’s 

further consideration of the penalty to be assessed. It did not 

order a new trial. The three-year mandatory dismissal rule does 

not apply.

Timeliness of Motion to Set Attorney’s Fees. Appellant 

contends the motion to set attorney’s fees was not timely because 

it was not filed within 180 days of the February 2019 contempt 

order. (Cal. Rules of Court, rule 3.1702 (b)(1).) Rule 3.1702, 
9

subdivision (b)(1) provides, “A notice of motion to claim attorney’s 

fees for services up to and including the rendition of judgment in 

the trial court . . . must be served and filed within the time for 

filing a notice of appeal under [Cal. Rules of Court,] rules 8.104 

and 8.108 . . . .” Rule 8.104 sets the time limit for filing an appeal 

based on entry of judgment. These rules do not apply to the 

Water Board’s motion to set its attorney’s fees because judgment 

had not yet been entered in that proceeding. (Carpenter v. Jack 

in the Box Corp. (2007) 151 Cal.App.4th 454, 466-468.)

Laches. Appellant contends the doctrine of laches bars the 

fee award because the Water Board prolonged the dispute by 

continuing to raise unfounded objections to entry of a protective 

order. “Laches is an equitable principle that bars certain claims 

or proceedings based on a combination of unreasonable delay in 

pursuing the claims and prejudice based on that delay.” (Malaga 

County Water Dist. v. State Water Resources Control Board (2020) 

58 Cal.App.5th 447, 462-463 (Malaga County Water).) In 

appropriate circumstances, “‘the defense of laches may operate as 

a bar to a claim by a public administrative agency . . . if the 

requirements of unreasonable delay and resulting prejudice are 

met.’” (Fountain Valley Regional Hospital & Medical Center v. 

Bonta (1999) 75 Cal.App.4th 316, 323.) “Notably, ‘delay alone 

does not constitute laches because “[t]he policy of this state with 

respect to lapse of time is [separately] embodied in statutes [of 

limitation].”’” (Malaga County Water., supra, at p. 463, quoting 

Brown v. State Personnel Board (1985) 166 Cal.App.3d 1151, 

1159.)

Appellant is not entitled to claim laches because, as we 

have already discussed, it is primarily responsible for any delay. 

The Water Board may have delayed drafting a suitable protective 
10

order. Appellant, however, is the party that insisted the Water 

Board consider its present financial condition and ability to pay 

before assessing a penalty on the revised ACL. Then, appellant 

refused, for more than three years, to produce the very records 

that would document its present ability to pay. And all of this 

was occasioned by appellant’s refusal to comply with 

requirements brought to its attention in January 2007. 

Appellant justified its dilatory conduct based on questionable 

procedural and constitutional objections to the subpoena. (See, 

e.g., 420 Caregivers, LLC v. City of Los Angeles (2012) 219 

Cal.App.4th 1316, 1346-1348 [privacy rights not absolute and “it 

is not entirely clear to what extent legal entities other than people

. . . may assert their own privacy rights”]; Association for Los 

Angeles Deputy Sheriffs v. Los Angeles Times Communications 

LLC (2015) 239 Cal.App.4th 808, 821 [right of privacy “‘is a 

purely personal one’”].) Even after the trial court overruled those 

objections, appellant failed to seek timely writ review and 

delayed more than six months before achieving “substantial 

compliance” with the subpoena. This delay, while unreasonable, 

is not attributable to the Water Board.

Additionally, although appellant has complained the Water 

Board’s motion to set the fee award was untimely, it never 

asserted that it was prejudiced by the delay. There is no claim 

that memories have faded, that witnesses have disappeared, that 

documents have been destroyed, or that the 10-month delay 

between the February 2019 contempt order and the August 27, 

2020 motion to set the fee award somehow impaired appellant’s 

ability to defend itself. Delay alone does not constitute laches. 

(Malaga County Water, supra, 58 Cal.App.5th at p. 463.) 
11

Appellant may not avoid its liability for the Water Board’s 

attorney’s fees and costs by asserting laches.

Conclusion

The judgment is affirmed. Costs on appeal to respondent.

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.