Filed 4/30/14 Helping Hand Tools v. San Diego Air Pollution Cont. Dist. etc. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA HELPING HAND TOOLS, Plaintiff and Appellant,

v. SAN DIEGO AIR PO LLUTION CONTROL DISTRICT HEARING BOARD, Defendant and Respondent; TODD T. CARDIFF, Objector and Appellant. D063313

(Super. Ct. No. 37-2012-00094152- CU-TT-CTL)

APPEAL from a judgment of the Superi or Court of San Diego County, William S. Dato, Judge. Affirmed.

Law Office of Todd T. Cardiff and Todd T. Cardiff for Plain tiff and Appellant and for Objector and Appellant. Thomas E. Montgomery, Co unty Counsel, and C. Elle n Pilsecker, Chief Deputy County Counsel, for Defendant and Respondent San Diego Air Pollution Control District Hearing Board.2 Helping Hand Tools (HHT) and its tria l counsel, Todd Cardiff (together, Appellants), appeal a judgment ordering th em to pay $6,000 in sanctions under the California Environmental Quality Act (CE QA), which authorizes the imposition of sanctions against a party and its counsel fo r asserting a frivolous CEQA claim. (Pub. Resources Code, § 21169. 11.) As a result of settlements th at occurred while this appeal was pending, Appellants have substantially reca st their issues presented. They now ask us to determine only whether (1) the trial court correctly identified the decisionmaking body to which HHT should have appealed a di strict's determination that a project was exempt from CEQA, and (2) "[w]hether sa nctions were properly awarded against Appellants . . . when they based their acti on on published case law." We conclude the trial court did not abuse its discretion in determining these issues, and will affirm.
FACTUAL AND PROCEDUR AL BACKGROUND Statutory Context This appeal arises in the context of regulatory approvals issued by a local air pollution control district. We therefore begin by providing a brief overview of the complex statutory framework governing those entities. The Legislature has enacted "an intensive, coordinated state, regional, and local effort to protect and enhance the ambient air quality of the state." (Health & Saf. Code, § 39001; further undesignated st atutory references are to th e Health & Safety Code.). "Local and regional authorities have the prim ary responsibility for c ontrol of air pollution from all sources other than vehicular s ources." (§§ 39002, 39025, 39037, 40000.)3 The San Diego County Air Pollution Cont rol District (District) is the local authority for San Diego County. The San Die go County Board of S upervisors (Board of Supervisors) is ex officio the District's el ected governing board. (§§ 40100, 40100.5, subd. (e).) In that cap acity, the Board of Supervisors s its as the Air Pollution Control Board (APCB). The APCB (i) establishes th e permit system (§ 42300); (ii) adopts District rules and regulations and the District's annual pe rmit fees (§§ 407 25, 42311); (iii) appoints the Air Pollution Control Officer (§ 40750), who appoint s District personnel subject to the direction of th e APCB (§ 40751) and is authoriz ed to issue Authorizations to Construct (ATCs), which are prerequisite s to constructing or modifying stationary sources of air contaminants (§ 40752); and (iv) has the au thority to issue orders of abatement against those in viola tion of permit conditions (§ 42450). The APCB also appoints the members of the San Di ego County Air Pollution Control District Hearing Board (Hearing Board ), which is an independent body that hears appeals of the District's permit decisions. ( §§ 40800 et seq.) The Hearing Board has five members, none of whom may be District officers or employees. (§§ 40800, 40801, 40803.) The Project's History This lawsuit arose from efforts that bega n in 2007 to upgrad e the turbine in a power plant in Escondido, California that was originally approved in 2001. Real parties in interest Escondido Energy Center, LLC and Wellhead Elec tric Co., Inc. (together, Wellhead), through a predecessor in interest, applied to the Di strict for an ATC to allow the turbine upgrade. The Dist rict issued an ATC authorizi ng the upgrade in July 2008,4 but because the tu rbine replacement did not immediately occur as anticipated, the District extended the ATC several times through 2011 a nd approved the transfer of the ATC from the predecessor in inte rest to Wellhead. In 2011, Wellhead applied to the District to change ce rtain conditions in the ATC, including to allow Wellhead to retain the existing "selectiv e catalytic reduction" (SCR) system. On December 20, 2011, the District approved the requested modification, but neglected to address the request regarding th e SCR system. Wellhead requested that the District correct the oversight regarding the SCR system, as well as make other technical adjustments to the ATC. The District did so on January 19, 2012. The District also found the revisions to be ex empt from CEQA. Accordingly, the following month, the District filed with the county clerk notices of exemption (NOEs) for the December 20, 2011 and January 19, 2012 ATC modification approvals. HHT's Challenges to the Project In the meantime, HHT's executive directo r, Rob Simpson, asked the District to place him on its public interest list and to provide a copy of any existing or proposed permits for the Escondido powe r plant. On January 19, 2012, the District provided Simpson a copy of the December 20, 2011 and January 19, 2012 ATCs. On February 16, 20 12, HHT's attorney, Cardiff, wrote to the District to complain of a lack of public notice regarding the AT C revisions and to "demand[] the right to appeal the ATC . . . to the Hearing Board." Cardiff's letter continued, "In addition, an appeal to elected officials must be available to challenge" th e District's NOEs. Later in the letter, Cardiff asserted "environmental de terminations under CEQA must be available5 for appeal to elected officials. (Pub. Res. Code § 21151(c).) Thus, the permit and Notice of Exemption . . . must be able to be appeal ed. Therefore, [the District] should permit my Client to appeal the ATC to the Air Dist rict Hearing Board (aka County Board of Supervisors)." The District's counsel re sponded by e-mail the followi ng day, disagreeing with Cardiff's challenges to the project, but expl aining HHT's appellate rights as follows: "If[,] however, your client desires to appeal these actions, the procedures for doing so are set forth in District Rule 25 . . . . Additio nally, please note that the elected decisionmaking body for the Air Pollution Control Dist rict is the San Die go County Board of Supervisors, sitting as the Air Pollution Control Board." On February 21, 2012, HH T filed a "petition for hearin g board action" challenging the January ATC and February NOEs. On March 12, HHT amended its petition to the Hearing Board to clarify that HHT also challenged the December 20, 2011 ATC. On March 15, 2012, the District filed an answer and memorandum of points and authorities in opposition to HHT' s petition to the Hearing Board. In it, the District argued the merits of HHT's petition, but also argue d the Hearing Board lacked jurisdiction to hear appeals of CEQA determinations. The following day, HHT filed a compla int and petition for writ of mandamus in superior court seeking to set aside the ATC and NOEs. The complaint named the District, its director, the Hearing Boar d (which the complaint alleged was " made up of the members of the [County Board of Supervisors] "), and Wellhead. (Italics added.) In its cause of action for declaratory relief, HHT alleged a controversy existed because HHT6 contended "CEQA determinations such as exem ptions must be available to be appealed to an elected body for a final decision purs uant to Public Resources Code section 21151(c)," whereas the Distri ct contended the "Hearing Boar d does not have jurisdiction to hear the appeal of th e Notices of Exemption." The Hearing Board heard HH T's appeal on March 22, 2 012—the last possible day it could have timely heard the matter. (§ 423 02.1 [hearing boards must hear appeal and render decision within 30 days of request for hearing].) The Hearing Board heard argument and testimony regarding whether it ha d jurisdiction to hear the CEQA appeal. Ultimately, however, the Hearin g Board never took action becau se quorum was lost after two members left to attend other engagements and the chairman disqualified himself after he concluded he could not resolve the matte r in an unbiased manner because of HHT's pending lawsuit agains t the Hearing Board. Trial Court Proceedings On April 25, 2012, Wellhea d answered HHT's superior court complaint by, among other things, admitting HHT's allegation that "t he Notices of Exemp tion were appealable to the San Diego County Board of Supervis ors, the elected deci sionmaking body of the APCD, pursuant to Public Resources Code section 21151(c)." Two days later, HHT filed an amended complaint and writ petition. Among other things, the amended pleading alleged HHT ha d exhausted its administrative remedies by pursuing the appeal to the Hearing Board, an d clarified that the Hearing Board "is made up of the members appointed by " the Board of Supervisors. (Italics added.)7 In their answers to the am ended complaint, the District , its director, and Wellhead asserted HHT had failed to exhaust its admini strative remedies with respect to the NOEs because they "could have been appealed by HHT to the San Diego County Board of Supervisors, the elected Governing Board of the [District], pursuant to Public Resources Code section 21151(c), but that HHT failed to do so." The parties briefed the merits of HHT's claims to the trial court. The Hearing Board also moved for an award of sanctions against HHT under Public Resources Code section 21169.11, which authori zes the trial court to impose sanctions against a party and its counsel for asserting a frivolous CEQA cl aim. The focus of the Hearing Board's motion was that HHT's claims against it were frivolous because the Hearing Board took no action regarding the ATC or the NOEs due to the loss of quorum. The District, its director, and Wellhea d also filed a motion jointly seeking sanctions against HHT for bringing a frivol ous CEQA claim. Their motion argued HHT's CEQA claim was frivolous because HH T failed to exhaust its administrative remedies by appealing the NOEs to the Distri ct's elected governing body, the Board of Supervisors. HHT opposed both sanctions motions pr imarily on the ground that it was not required to appeal the NOEs to the Board of Supervisors because that board was not a decisionmaking body under CEQA because it di d not have jurisdicti on to approve, deny, or modify the permit.8 The trial court heard the merits of the case and the two sanction motions on October 4, 2012. In a subsequent minut e order, the court ruled against HHT on the merits of its claims regarding the ATC, and concluded HHT fa iled to exhaust its administrative remedies for its CEQA claims by failing to appeal the NOEs to the Board of Supervisors. Based on its conclusion that the Hearing Board "had nothing to do with the CEQA notice of exemption," the court granted the Hearing Board's motion for sanctions and ordered HHT and Cardiff to pay the Hearing Board $6,000. The court denied the other parties' motion for sa nctions. The court entered judgment on November 28, 2012. HHT appealed the judgment on the merits , and HHT and Cardiff appealed as to the award of sanctions. On appeal, the pa rties resolved their dispute on the merits, leaving unresolved only HHT and Cardiff's appeal on the sanctions award.
DISCUSSION As a result of the parties' settlement, Ap pellants now ask us to review the propriety of the sanctions award by dete rmining (1) "[w]hether the He aring Board is the proper body to consider CEQA on administrative appeal," and (2) "[w]hether sanctions were properly awarded against Appellants . . . when they based their acti on on published case law." A. Guiding Legal Principles Regarding Sanction Awards Public Resources Code section 21169.11 provides that "[i]f the court determines that a [CEQA] claim is frivolous, the court may impose an appropriate sanction, in an amount up to ten thousand dollars ($10,000), upon th e attorneys, law firms, or parties9 responsible for the violation." (Pub. Resour ces Code, § 21169.11, subd. (b).) The statute defines " 'frivolous' " as "totally and completely without merit." ( Id ., subd. (c).) Although we have not found an y cases further construing th e phrases " 'frivolous' " or "totally and completely without merit" in the specific contex t of section 21169.11, courts interpreting the same phrases in other stat utory contexts have applied an objective standard, asking if any reasona ble attorney would agree that the position is totally devoid of merit. (E.g., Levy v. Blum (2001) 92 Cal.App.4th 625, 634-635 [Code Civ. Proc., § 128.5]); Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 683 [antiSLAPP provision of Code Civ. Proc., § 425.16, subd. (c)(1)]; People v. Smith (2013) 216 Cal.App.4th 947, 951 [Sexually Violent Predat or Act, Welf & Inst. Code, § 6608, subd. (a)].) Generally speaking, a contention is not frivolous if it is "arguable," even though it "lacks persuasive force." ( Guillemin v. Stein (2002) 104 Cal.App.4th 156, 168 ( Guillemin ).) We ordinarily review an award of sa nctions under the deferential abuse of discretion standard. ( Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 921.) "Assuming some eviden ce exists in support of the factual findings, the trial court's exercise of discretion will not be disturbe d unless it exceeds the bounds of reason." ( West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 698.) "But where a question of statutory construction is presented in the course of the review of a discretionary decision, such issues are lega l matters subject to de novo review." ( Optimal Markets, Inc. v. Salant , at p. 921.)10 B. The Hearing Board Is Not th e Proper Body to Consider CEQA on Administrative Appeal Appellants contend the trial court abused its discretion in awarding sanctions because it misinterpreted Public Resources Code section 21151, subdivision (c), which provides that "[i]f a nonelected decisionmak ing body of a local lead agency . . . determines that a project is not subject to [CEQA], that . . . determination may be appealed to the agency's elected decisionmaking body, if any." The guidelines implementing CEQA define a "[ d]ecision-making body" as "any person or group of people within a public agency permitted by la w to approve or disapprove the project at issue." (Cal. Code Regs., tit. 14, § 15356.) Appellants argue the Board of Supervisors—admittedly an elected governing body of the District—nevertheless is not a decisionmaking body because it does not have the authority to approve or disa pprove a project. In doing so , Appellants rely heavily on No Wetlands Landfill Expansion v. County of Marin (2012) 204 Ca l.App.4th 573 ( No Wetlands ). The trial court found No Wetlands distinguishable. We do too.
In No Wetlands , the Marin County Environmental Health Services (Marin EHS) issued a permit for expansion of a landfill af ter certifying as complete an environmental impact report (EIR) prepared under CEQA. ( No Wetlands , supra , 204 Cal.App.4th at p. 577.) An association of local reside nts claimed a right to appeal Marin EHS's certification of the EIR to the Marin Coun ty Board of Supervisors under Public Resources Code section 21151, subdivision (c). ( Id . at p. 579.) The county refused to hear the appeal on the basis that Marin EH S was acting as the designated representative11 of the California Department of Resources R ecycling and Recovery (CalRecycle) and not on behalf of the county. ( Id . at p. 579.) The residents sued and obtained a writ of mandate ordering the defendants to vacate the EIR certification and to allow an administrative appeal to the board of supervisors. ( Id . at p. 580.) The defendants appealed to the First District Court of Appeal, Division Four, which reversed. Our colleagues explained that under the statutory scheme at issue before them— the Integrated Waste Management Act (Waste Act) (Pub. Resources Code, §§ 40000 et seq.)—the "Board of Supervis ors has no power to approve or disapprove the project at issue and thus is not an elected decisionm aking body empowered to hear plaintiffs' appeal." ( No Wetlands , supra , 204 Cal.App.4th at p. 584 .) But there are material differences between the Marin County Board of Supervisors' role under the Waste Act and the San Diego County Board of Supervis ors' role under the laws governing air pollution control districts. Although a "co unty's board of supervisors may designate a local enforcement agen cy under the Waste Act to insp ect, issue permits, and enforce regulations at solid waste landfills," ( id . at p. 581; Pub. Resources Code §§ 43200, 43203, subd. (a)), the "local enforcem ent agency is not, however, au thorized to issue a[] . . . permit under its own power." ( No Wetlands , supra , 204 Cal.App.4th at p. 581; Pub. Resources Code §§ 44007, 44009, subd. (a)(1).) Instead, the local enforcement agency must submit the proposed permit to CalRecycle for the state agency's consideration, and the local agency may issue a pe rmit only with CalRecycle's conc urrence. By contrast, the District, through its Air Pollution Control Of ficer—an APCB (aka Board of Supervisors)12 appointee—independently issues ATCs and permits to operate without review or approval by a supervising state agency. (Health & Saf. Code, §§ 40750, 40752.) The appellate process for permit decisi ons under the Waste Act also differs dramatically. Although the Waste Act a nd air pollution control district laws both authorize local governing bodies to appoint members of a he aring board to hear appeals of permit decisions, local hearing board deci sions under the Waste Act are subject to further appeal to CalRecycle. (Pub. Reso urces Code, § 45040, subd. (a).) There is no similar appellate oversight for air pollu tion control district hearing boards. Given the material distinc tions between the powers vest ed in local agencies under the Waste Act and air pollution control di strict laws, we are not surprised the No Wetlands court concluded a county board of s upervisors is not a decisionmaking body under the Waste Act. International Longshoremen's a nd Warehousemen's Union, Local 35 v. Board of Supervisors (1981) 116 Cal.App.3d 265 ( International Longshoremen's ) provides a good example of why that conclu sion does not extend to air pollution control districts.
In International Longshoremen's , the San Bernardino County Board of Supervisors, acting as the gove rning board of the county's air pollution control district, authorized the reconstruction and expansion of an alkaline mining plant for which an EIR had been prepared and certified. ( International Longshoremen's , supra , 116 Cal.App.3d at p. 268.) The board required the plant to co mply with a district rule regarding certain emissions, but further provided that if the plant could not meet those requirements using best available techniques, the district would amend its rule to allow whatever emissions13 level the plant could achieve using the best available technology. ( Id . at pp. 268-269.) The board of supervisors (acting in that cap acity) later certified a supplemental EIR that addressed certain modifications to the plant expansion. ( Id . at p. 269.) Later, the board, as the governing body of the air pollution cont rol district, held a hearing at which they approved a rule change that was drafted in such a way as to allow increased emissions only from the alkaline plant. ( Ibid .) In adopting the rule ch ange, the board determined the action was categorically exempt from CEQA. ( Ibid .) The union representing a majority of the plant workers and an envir onmental protection group sued to challenge the categorical exemption. ( Id . at p. 270.) The trial c ourt found the lawsuit untimely under CEQA, but the Court of Appeal, F ourth District, Division Two reversed. After finding the lawsuit timely, the co urt examined the merits of the CEQA claim. ( International Longshoremen's , supra , 116 Cal.App.3d at pp. 270-276.) The court concluded the board of su pervisors, acting as the gove rning board of the district, failed to properly consider the required factors under CEQA. ( Id . at pp. 275-276.) Accordingly, the court reversed with direc tions to issue a writ of mandate commanding the board to set aside its rule change and to conduct further proceedings in conformity with the requirements of CEQA. ( Id . at p. 277.) Appellants attempt to distinguish International Longshoremen's on the basis that the board of supervisors engaged in rulema king as opposed to administrative project approval. We are not persua ded. Rather, the case pers uasively demonstrates how sweeping an elected air polluti on control board's authority is , effectively allowing spotlegislative approvals of projec ts. Moreover, although the International Longshoremen's14 court reversed the specific rule amendment, it did not do so on the basis that the board was without the power to change it, but rathe r, on the basis that the board needed to apply CEQA more thoroughly. Based on our reading of CEQA, No Wetlands , and International Longshoremen's , we conclude the Board of Supervisors, sitt ing as the APCB, is th e District's elected decisionmaking body within the meaning of Public Resources Code section 21151, subdivision (c). Accordingly, the trial court did not abus e its discretion in concluding HHT was required to appeal the NOEs to the Board of Supervisors instead of the Hearing Board. Appellants also contend they were ex cused from appealing to the Board of Supervisors because the District lacked a specific rule or procedure specifying how such an appeal is to be taken. On this record, we are not convinced. First, Appellants assert— without any supporting authority—that "Public Resources Code section 21151 does not provide an independent basis for appealin g a CEQA determination to the Board of Supervisors." As we just explained, howeve r, we conclude it does. Moreover, as a result of Appellants' admitted failure to attempt an appeal to the Board of Supervisors, the record is silent as to whether the Board of Supervisors' rules and pr ocedures specifically address appeals of CEQA determinations made by the District. This point was not lost on the trial court: "Mr. Cardiff: There's nothing in the record that shows that the Board of Supervisors has ever considered a [ sic ] appeal of a CEQA decision for an ATC."15 "The Court: Mr. Cardiff, that 's why I asked you the question whether you tried to do that. Be cause if you did, if you had made inquiry to the Board of Supervisors, to the clerk, to somebody, and you were told [']no, you can't do th is,['] then I think that becomes more of a concern. But you didn't do that." The record's silence in th is regard is fatal to A ppellants' challenge. (E.g., Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 ["It is the bur den of appellant to provide an accurate record on appeal to demonstrate error. Failure to do so precludes an adequate review and results in affirmance of the trial court's determination."].) Moreover, the inverse of Appellants' a ssertion was true—there was something in the record that showed the Hearing Board had never consid ered a CEQA appeal: one member of the Hearing Board st ated at the hearing that in his 20 years on the board he could not remember ever hearing a CEQA matter. C. Appellants' Purported Reliance on No Wetlands Does Not Render the Sanctions Award Improper Appellants assert throughout thei r briefing that their reliance on No Wetlands rendered their CEQA claim against the Heari ng Board arguable and, thus, immune from sanctions. (See, e.g., Guillemin , supra , 104 Cal.App.4th at p. 168 [a contention is not frivolous if it is "arguable," even though it "lacks persuasive force"].) We are not persuaded. To begin with, Appellan ts could not possibl y have relied on No Wetlands at the time they filed their pe tition with the Hearing Board— No Wetlands had not been decided by then. Nor coul d appellants have relied on No Wetlands when they filed the initial complaint in superior court— No Wetlands still had not been decided (a point Appellants curiously concede in their opening brief).16 All the while, Appellants co nducted themselves as if th ey were entitled to appeal the NOEs to the District's elected decisionm aking body. They di d so in their initial demand letter, which expressly identified th e Board of Supervisors as the elected decisionmaking body for the District. In re sponse, the District's counsel immediately notified Appellants the elected decisionmakin g body for the District is the Board of Supervisors sitting as the APCB. The District reiterated th e Hearing Board's lack of jurisdiction in its response to HHT's Heari ng Board petition. HHT's executive director testified before the Hearing Board that HHT' s response to being notified that the Hearing Board lacked jurisdiction over CEQA appeals was to file a lawsuit, not an appeal to the Board of Supervisors. HHT's original comp laint similarly invoked its right to appeal "CEQA determinations such as exemptions . . . to an elected body for a final decision pursuant to Public Resources Code section 21 151(c) . . . ." The trial court identified Appellants' persistent pursuit of their appeal to the wrong board as part of the basis for sanctions. Under the circumstances, we ca nnot conclude the trial court abused its discretion in doing so. Additionally, although we decline to in voke formally the doctrine of judicial estoppel (as respondents have requested), A ppellants' inconsiste nt positions further establish the trial court did not abuse its di scretion in concluding Appellants did not act reasonably under the circumstances. Finally, because we have concluded the tr ial court did not abuse its discretion in awarding sanctions on the basis that it did, we have not considered the alternative bases proffered on appeal by the Hearing Board.17 DISPOSITION The judgment is affirmed. The Heari ng Board is entitled to costs on appeal.

McINTYRE, J. WE CONCUR:
HUFFMAN, Acting P. J.

O'ROURKE, J.