1

Filed 4/6/17 Certified for Publication 6/14/17 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

GRIST CREEK AGGREGATES, LLC,

Petitioner,

v.

THE SUPERIOR COURT OF 

MENDOCINO COUNTY,

Respondent;

MENDOCINO COUNTY AIR 

QUALITY MANAGEMENT DISTRICT 

et al.,

Real Parties in Interest.

 A149861

 (Mendocino County

 Super. Ct. No. SCUK-CVPT 16-

 67449)

After the Mendocino County Air Quality Management District (District) approved 

an application by Grist Creek Aggregates, LLC (Grist Creek) for a permit to construct a 

“Crumb Rubber Heating and Blending Unit” for the production of rubberized asphalt,

Friends of Outlet Creek (Friends), a neighborhood environmental group, appealed to the 

District‟s Hearing Board (Hearing Board or Board). The four members of the Board who 

considered the appeal split evenly on their vote, and as a consequence, the Board stated 

no further action would be taken, leaving the permit in place. Friends filed a petition for 

writ of administrative mandate in the trial court, claiming that Grist Creek should have 

conducted an environmental review and that the District and Hearing Board violated the 

California Environmental Quality Act (CEQA, Pub. Resources Code, § 21000 et seq.) 

and District regulations by failing to order Grist Creek to conduct one. The Hearing 
2

Board demurred on the ground that because the split vote was tantamount to no action,

there was nothing for the trial court to review. Grist Creek also demurred, but on 

different grounds. It claimed that Friends could not sue directly under CEQA; could not, 

in any event, show an abuse of discretion by the Board; and had failed to exhaust its 

administrative remedies. The trial court sustained the Board‟s demurrer with leave to 

amend and overruled Grist Creek‟s demurrer on the ground the Hearing Board‟s tie vote 

was not a decision and there was therefore nothing to review. Grist Creek filed the 

instant original writ proceeding, challenging the trial court‟s ruling and seeking issuance 

of a writ of mandate requiring the trial court to vacate its demurrer rulings. 

We conclude the Hearing Board‟s tie vote resulted in the denial of Friends‟

administrative appeal and that the denial is subject to judicial review. We therefore grant 

the petition, direct that a writ of mandate issue, and command the trial court to conduct 

further proceedings consistent with this opinion.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

Grist Creek owns property in Mendocino County on which it has aggregate and 

asphalt processing operations. The lawsuit underlying this writ proceeding is one of 

several legal actions challenging, on environmental and other grounds, Grist Creek‟s 

construction and operation of the asphalt facility. It concerns only one of the permits 

issued in connection with the facility, specifically an Authority to Construct (ATC) a 

“Crumb Rubber Heating and Blending Unit for the Production of Rubberized Asphalt” 
3

(ATC Permit No. 1416-5-01-15-59), issued by the District on November 17, 2015.1 We 

will refer to this approval as the “November ATC.” 

Friends is an unincorporated environmental association formed to oppose the 

plant. It alleges that in approving the November ATC, the District and its air pollution 

control officer failed to comply with CEQA and with the District‟s own regulations 

implementing the act. 

The Hearing Board hears appeals from District actions. It is usually composed of 

five members. (Health & Saf. Code, § 40800.)2 

Friends appealed the November ATC to the Hearing Board. Four Board members

participated in the appeal after Friends objected to the fifth member‟s participation 

because he previously had worked for Grist Creek. Apparently there was no alternate to 

fill the missing position on the Board. 

On April 5, 2016, following two hearings, the Hearing Board issued notice of a tie 

vote. The notice states the Hearing Board “was unable to make a decision due to a 2-2 tie 

vote. The Hearing Board will not hold any further hearings on the appeal.” 

Friends filed a petition for writ of mandate in the trial court against the District, 

the air pollution control officer, the Hearing Board, and Grist Creek seeking to set aside 

the November ATC. The group alleged it was entitled to review under several alternative 

statutes: Code of Civil Procedure sections 526, 527, 1085, 1088.5, and 1094.5; Public 

 

1 We have also considered challenges to a different ATC issued by the District in 

June 2015. In Friends of Outlet Creek v. Superior Court of Mendocino County

(A148038, petn. den. May 3, 2016), we denied a writ petition Friends filed after the trial 

court sustained a demurrer in the action challenging that ATC. In Friends of Outlet 

Creek v. Mendocino County Air Quality Management District et al. (Mar. 23, 2017, 

A148508), we reversed the trial court‟s order in that case sustaining demurrers by the 

District, the Hearing Board and Grist Creek and remanded for further proceedings. 

Friends has also appealed from the dismissal of its separate action against the County of 

Mendocino, Friends of Outlet Creek v. County of Mendocino et al. (A147499). That 

appeal is pending in Division Four of this Court. 

2 All statutory references are to the Health and Safety Code unless otherwise 

specified.
4

Resources Code sections 21168, 21168.5, and 21168.9; and Health and Safety Code 

section 40864.

Friends alleged that the Hearing Board, “in [an] abuse of its discretion and without 

the support of substantial evidence, . . . failed to make findings that the [air pollution 

control officer] and the [District] did not comply with the law in issuing the November 

[ATC] and failed to take appropriate action to rectify that illegal action.” Friends also 

asked that the November ATC be “found void” and requested an order that Grist Creek 

cease construction of the plant and dismantle all project equipment until it was brought 

into legal compliance. The group advanced two causes of action, one for failure to 

comply with CEQA and one for failure to comply with the District‟s own regulations. 

Approximately three months after Friends filed its petition, the Mendocino County 

Board of Supervisors appointed an additional member to the Hearing Board. 

Grist Creek demurred to Friends‟ petition, claiming that (1) CEQA did not provide 

a cause of action and that, even if it did, Friends failed to allege sufficient facts to support 

such a claim, (2) Friends had failed to state facts showing that the Hearing Board abused 

its discretion, and (3) Friends had failed to exhaust its administrative remedies by not 

complying with procedures available under Mendocino County‟s zoning ordinance. The 

District joined in the demurrer. 

The Hearing Board also demurred to the petition, but on different grounds. The 

Board maintained that its tie decision meant it failed to take action on Friends‟ appeal and 

this meant there was no final action for the trial court to review. 

In a tentative ruling, the trial court stated it was considering remand or “any other 

proposed method to ensure that [Friends‟] appeal is considered by a board with the ability 

to take action.” Apparently, the parties conferred but were unable to agree to a procedure 

that called for a remand for further action by the Hearing Board. 

The trial court thereafter overruled Grist Creek‟s demurrer and sustained the 

Hearing Board‟s demurrer. The underpinning of both rulings was the court‟s conclusion 

that the Board took “no action” on the November ATC and thus “it must be concluded 

that an action challenging a purported decision on the ATC by the Hearing Board fails to 
5

allege facts sufficient to state a cause of action under [Code of Civil Procedure section] 

1094.5 and [Health and Safety Code section] 40864. [Friends] may have a factual and 

legal basis to challenge respondents‟ approval of the ATC but it is not through a 

CCP 1094.5 challenge to the Hearing Board‟s proceedings . . . .” As to the Board‟s 

demurrer, the trial court granted Friends leave to amend within 45 days, but added, “The 

appointment of the fifth Hearing Board member and the availability of an alternate 

member for each primary Board member will almost certainly guarantee the ability of the 

Hearing Board to take effective action on the appeal if the matter is returned to the Board 

for consideration and decision.” 

According to the declaration of one of Friends‟ attorneys, the Hearing Board is 

aware of the trial court‟s order but does not intend to take further action on Friends‟ 

appeal of the November ATC and has interpreted the order to require no further action. 

Grist Creek sought writ relief from the trial court‟s order overruling its demurrer

and concluding that the District‟s split vote meant the Hearing Board took no action, and 

we issued an order to show cause.

3

 

3

For its part, the District maintains the writ petition is now moot because the 

November ATC expired in October 2016 and has not been renewed, and Grist Creek‟s 

subcontractor removed the permitted unit in April 2016. The District asks that we take 

judicial notice of a letter dated October 20, 2016, from the District to Grist Creek stating 

that a new permit will be required for any new equipment on the site and that there is no 

longer a valid permit at the location. Grist Creek disputes that this original writ 

proceeding is moot and contends that under the District‟s rules and regulations, of which 

it asks us to take judicial notice, the November ATC “renewed as a matter of law when 

Grist Creek submitted its annual permit renewal fee to the District.” Grist Creek 

represents that it intends to seek leave to file an amended complaint in a separate action 

to challenge the failure to automatically renew the November ATC. Even assuming 

(without deciding) that the underlying controversy is technically moot, we agree with 

Grist Creek that it presents an issue likely to reoccur and we therefore exercise our 

inherent discretion to resolve it. (Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 

1014, fn. 3.) The requests for judicial notice filed by Grist Creek and the District are 

therefore denied.
6

II.

DISCUSSION

The question we resolve in this writ proceeding is narrow: What was the legal 

effect of the Hearing Board‟s tie vote on Friends‟ challenge to the District‟s approval of 

the November ATC? While Friends, on one hand, and Grist Creek and the District, on 

the other hand, disagree about the underlying merits of this dispute and whether the 

November ATC should be invalidated, all three agree that the effect of the Board‟s tie 

vote was to deny Friends‟ appeal and that the trial court‟s conclusion that the tie vote 

resulted in no action to be judicially reviewed was erroneous. Stated differently, these 

parties agree that the effect of the tie vote was to affirm the issuance of the November 

ATC. The Hearing Board, for its part, maintains the trial court correctly ruled that its tie 

vote resulted in no action being taken on Friends‟ appeal of the District‟s ATC approval, 

and there is thus nothing to review. We conclude Grist Creek, Friends, and the District 

have the better argument.

We first note that, putting aside its merits, the trial court‟s order sustaining the 

Hearing Board‟s demurrer is internally inconsistent. The court granted Friends leave to 

amend its complaint. In its preliminary response to this writ petition, the Hearing Board 

argued that because Friends was given the opportunity to amend, there is no need for this 

court to review the court‟s order at this stage. Yet given the court‟s conclusion that the 

Hearing Board‟s tie vote means Friends is unable to state a cause of action, it is unclear 

how the petition possibly could be amended to state a valid cause. The trial court also 

noted that the appointment of a fifth member to the Hearing Board “will almost certainly 

guarantee the ability of the Hearing Board to take effective action on the appeal if the 

matter is returned to the Board” (italics added), but the court did not actually order that 

the matter be remanded to the Hearing Board for further action.4 It is thus unclear how 

Friends, or any of the parties, could comply with the court‟s demurrer order. 

 

4 Although the parties disagree on what action the court should take in this writ 

proceeding, they all object to the matter being remanded to the Hearing Board for further 

consideration. 
7

There is one principle that indisputably applies to tie votes by administrative 

agencies: “T[hey] mean different things in different contexts.” (Vedanta Society of So. 

California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 521 (Vedanta).) To 

provide context in these proceedings, we summarize the statutory scheme governing the 

issuance of permits such as the November ATC. 

The District is composed of the members of the Mendocino County Board of 

Supervisors (§§ 40100, 40100.5, subd. (e)) and has the authority to issue permits to build 

and operate equipment that may cause the issuance of air contaminants (§ 42300.1). Any 

“aggrieved person” who participates in the process to obtain a permit from the District 

may request that the Hearing Board hold a public hearing to determine whether the 

permit was properly issued. (§ 42302.1.) 

In general, a hearing board may not modify or revoke a permit unless the board 

holds a public hearing. (§§ 40808, 42302.1.) Three members of the five-member board 

comprise a quorum. (§§ 40800, 40820.) By statute, “[N]o action shall be taken by the 

hearing board except in the presence of a quorum and upon the affirmative vote of a

majority of the members of the hearing board.” (§ 40820.) After a hearing, the hearing 

board “may” (not must) take any of the following actions: (a) grant a permit that was 

denied by the air pollution control officer, (b) continue the suspension of a permit that 

was suspended by the air pollution control officer, (c) remove the suspension of an 

existing permit pending further information, (d) find that no violation exists and reinstate 

an existing permit, or (e) revoke an existing permit, if certain findings are made. 

(§ 42309.) The hearing board “shall render a decision on whether the permit was 

properly issued” (§ 42302.1), and the decision “shall include the reasons for the decision” 

(§ 40862).

Taken together, these statutes mean that the Hearing Board here had a quorum to 

consider Friends‟ appeal of the November ATC, but failed to take action on the appeal 

because the appeal did not receive the votes of a majority of the members. (§ 40820.) 

The Hearing Board likewise did not take any of the actions permitted under 

section 42309 following a hearing, and it did not render a decision (§ 42302.1). It does 
8

not follow, however, that there is nothing for the trial court to review. The gravamen of 

Friends‟ petition in the trial court is a challenge to the District‟s underlying approval of 

the November ATC and the Hearing Board‟s failure to revoke that permit. That 

controversy is ripe for judicial review.

The cases upon which the trial court relied in sustaining the Hearing Board‟s 

demurrer are not to the contrary. For example, in Lopez v. Imperial County Sheriff’s 

Office (2008) 165 Cal.App.4th 1 (Lopez), a county sheriff‟s office terminated two 

employees, who appealed their terminations to a five-member county employment 

appeals board. (Id. at p. 3.) Two members voted to sustain the terminations, two voted to 

reverse them, and one abstained after concluding that the “ „evidence . . . [w]as far from 

sufficient to support a decision.‟ ” (Ibid.) The fired employees argued that the tie vote 

effectively reversed their terminations, but the trial court disagreed and instead ordered 

the board to conduct another vote, and the appellate court affirmed the ruling. (Id. at 

pp. 3-4.) Lopez faulted the abstaining board member, who “erroneously deferred to [the 

sheriff‟s office‟s] findings, even as he stated that the deference „[was] at war with the 

excellent record of the [fired employees], and the somewhat minor level of the admitted 

transgressions.‟ ” (Id. at p. 5.) The court held that because the board was compelled to 

independently review the sheriff‟s office‟s decision, it was appropriate to remand to the 

board so that it could take this mandated action. The Lopez court held “that the tie votes 

resulted in a failure to act,” which “returned [the fired employees] to the status quo ante, 

and the [sheriff‟s office‟s] terminations remain[ed] in effect until the Board conduct[ed]

another vote,” meaning that the court would not go so far as to reverse the employees‟ 

terminations as the employees requested. (Ibid.) 

Here, the trial court relied on Lopez for the broad proposition that “a tie vote of an 

administrative agency results in no action,” but that reliance is based on an 

oversimplification. Again, in Lopez, the fired employees argued that the board‟s tie vote 

resulted in their reinstatement, but the appellate court rejected that argument, concluding 

instead that the tie vote restored them to having been terminated after the fifth board 

member wrongfully abstained from the vote. (Id. at pp. 3-5.) That is the context in 
9

which the court concluded that the board had taken no action. (Id. at p. 4.) In other 

words, Lopez did not hold that a tie vote resulted in the terminated employees‟ failure to 

state a cause of action, only that they were entitled to a different remedy from the one 

they sought. 

By contrast, Friends does not claim that the tie vote resulted in the reversal of the 

November ATC. To the contrary, it acknowledges that the Hearing Board failed to 

overrule the District, and Friends‟ petition alleges that the Hearing Board‟s failure to do 

so was an abuse of discretion. Unlike in Lopez, there is no allegation here that any 

member of the Hearing Board who participated in Friends‟ appeal failed to act as 

required by law, and there is likewise no allegation that the fifth Board member 

wrongfully abstained from participating. So whereas it was appropriate in Lopez to 

remand to the hearing board to take action it was required to take, there is no analogous 

reason to remand here. 

Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152 (Clark) also does not 

support the trial court‟s conclusion that Friends failed to state a cause of action. In Clark, 

a city planning commission approved plaintiff property owners‟ application for permits 

related to a building project, but the city council denied the permits by a three-to-two 

vote. (Id. at p. 1159.) Clark concluded that the property owners were deprived of a fair 

hearing because, among other things, one of the voting council members had a conflict of 

interest. (Id. at pp. 1159, 1172-1173.) Whereas the trial court ordered the city to 

reinstate the planning commission‟s approval of the property owners‟ permits, Clark held 

that the appropriate remedy was to remand to the city council to provide a second, fair 

hearing on the matter. (Id. at pp. 1168-1169.) The court based its decision on the 

language of Code of Civil Procedure section 1094.5, subdivision (f), which permits a 

court to set aside an order but not to reinstate a previous decision. (Clark, at p. 1174.) It 

also relied on the applicable municipal code, which required three affirmative votes of 

city council members in order to obtain the relevant use permit. (Id. at pp. 1175-1176.) 

Because the property owners had not received three votes by council members free from 

conflict, the court ordered the matter returned to the city council to rehear the appeal and 
10

to provide the property owners with a fair hearing on their permits. (Id. at pp. 1176-

1177.) As in Lopez, the court did not hold that a tie vote resulted in a failure to state a 

cause of action, but instead focused on the appropriate remedy.

Lopez and Clark both quoted a statement from Graves v. Commission on 

Professional Competence (1976) 63 Cal.App.3d 970, 976-977 (Graves), that “as a 

general rule an even division among members of an administrative agency results in no 

action.” (Lopez, supra, 165 Cal.App.4th at p. 4; Clark, supra, 48 Cal.App.4th at 

p. 1176.) The trial court here interpreted this passage broadly to mean that “no action” on 

an appeal means that a tie vote results in no action that may be reviewed by writ of 

mandate. But like the other cases cited by the trial court, Graves does not support this 

broad of a conclusion. The case involved a challenge to the decision of a school district‟s 

hearing commission to dismiss a district employee. (Graves, supra, at pp. 971-972.) 

Two commission officers voted to dismiss the employee, and a third dissented. (Id. at 

pp. 972-973.) Graves concluded that the decision was invalid because one of the two 

commissioners who voted in favor of dismissal was not authorized to participate in the 

decision, and the trial court thus should have set aside the commission‟s decision. (Id. at 

pp. 976-977.) It was in this context—deciding whether having only two qualified 

members participate in a commission decision invalidated the decision—that the court 

noted that tie votes of an administrative agency generally result in “no action.” (Id. at 

pp. 976-977.) In Graves, as in Lopez and Clark, this meant that the agency‟s decision 

should be set aside—not that it was immune from review because of a tie vote, as the trial 

court concluded in this case. 

Finally, Anderson v. Pittenger (1961) 197 Cal.App.2d 188, the last case upon 

which the trial court relied, also does not support its conclusion. In Anderson, a city 

council held a hearing regarding a planning commission‟s approval of a variance, and a 

motion to approve the variance resulted in a two-two tie after a fifth councilmember did 

not vote on the motion. (Id. at pp. 189-191.) Meeting minutes following the vote stated 

that the motion “ „failed to carry‟ ” and that the motion “ „could be revoted upon now or 

at a later time . . . .‟ ” (Id. at pp. 191-192, italics added.) At a council meeting months 
11

later, the council voted three-to-two to deny the permit. (Id. at p. 192.) On appeal, the 

property owner argued that the original tie vote affirmed the commission‟s approval and 

that the city council lost jurisdiction to reconsider that decision, but Anderson rejected 

both arguments. (Id. at pp. 194-195.) The court concluded that the original tie vote 

resulted in “no action” (id. at p. 195) and that the city council retained jurisdiction to vote 

on the permit later, as it had said it would do. (Id. at pp. 194-195.) Here, by contrast, the 

Hearing Board has not indicated it intends to revisit Friends‟ appeal. 

In sum, although the cases upon which the trial court relied in sustaining the 

Hearing Board‟s demurrer referred generally to a tie vote resulting in “no action,” none 

of them stand for the proposition that the results of those tie votes were not subject to 

judicial review. To the contrary, the courts analyzed what judicial remedy was 

appropriate given the effect of the tie votes. 

We agree with Grist Creek, the District, and Friends that the effect of the Hearing 

Board‟s tie vote here was to deny Friends‟ appeal, leaving the November ATC intact and,

thus, the Hearing Board‟s failure to act was itself an action subject to judicial review. 

In situations where an appeal to a hearing board does receive an affirmative vote 

of the majority of the members (§ 40820), a party may seek judicial review by filing a 

petition for a writ of administrative mandate under Code of Civil Procedure 

section 1094.5. (§ 40864.) Such a writ of mandate is “for the purpose of inquiring into 

the validity of any final administrative order or decision made as the result of a 

proceeding in which by law a hearing is required to be given, evidence is required to be 

taken, and discretion in the determination of facts is vested in the inferior tribunal, 

corporation, board or officer . . . .” (Code Civ. Proc., § 1094.5, subd. (a), italics added.) 

The parties apparently do not dispute that proceedings before the Hearing Board are the 
12

type encompassed by administrative mandate.5 (E.g., § 42308 [hearing by board].) 

Instead, they dispute whether the Hearing Board‟s tie vote meant that there was no “order 

or decision” (Code Civ. Proc., § 1094.5, subd. (a)) to review. The Hearing Board 

apparently contends that because it did not issue a written decision, there is no decision 

for the trial court to review. This is too narrow a view of proceedings in administrative 

mandate.

The board‟s tie vote meant that the November ATC was allowed to stand, which 

was effectively a decision not to revoke it (cf. § 42309, subd. (e)). The trial court may 

review this decision for a prejudicial abuse of discretion under Code of Civil Procedure 

section 1094.5, subdivision (b)—that is, whether the Hearing Board proceeded in the 

manner required by law or whether the decision not to set aside the November ATC was 

supported by the evidence. (See also § 1094.5, subd. (c) [analyzing whether findings are 

supported by substantial evidence].) True, the Hearing Board did not make any written 

factual findings, so it is difficult to know how the trial court‟s review of Board 

proceedings will unfold. But the gravamen of Friends‟ petition is a challenge to the 

November ATC, and we have no trouble concluding that the tie vote does not hinder a 

review of that approval. 

We find further support for our holding in the requirements for filing a petition for 

writ of administrative mandamus under Code of Civil Procedure section 1094.5. 

Subdivision (a) provides that the trial court may review “the validity of any final 

administrative order or decision made as the result of a proceeding in which by law a 

hearing is required to be given, evidence is required to be taken, and discretion in the 

determination of facts is vested in the inferior tribunal, . . . board, or officer.” Before 

seeking relief under this provision, a party must exhaust available administrative 

 

5 We likewise held in appeal No. A148508 that whether styled as a challenge 

directly under CEQA or a writ proceeding under section 40864, Friends‟ challenge to the 

issuance of an ATC appealed to the Hearing Board is subject to judicial review under 

administrative mandamus (Civ. Proc. Code § 1094.5). (Friends of Outlet Creek v. 

Mendocino County Air Quality Management District et al., supra, A148508 [nonpub. 

opn.].) 
13

remedies. (Eight Unnamed Physicians v. Medical Executive Com. (2007) 

150 Cal.App.4th 503, 510-511.) “[T]he rule is that where an administrative remedy is 

provided by statute, relief must be sought from the administrative body and this remedy 

exhausted before the courts will act.” (Abelleira v. District Court of Appeal (1941) 

17 Cal.2d 280, 292.) “The primary purpose of the doctrine „is to afford administrative 

tribunals the opportunity to decide in a final way matters within their area of expertise 

prior to judicial review.‟ [Citation.] „The essence of the exhaustion doctrine is the public 

agency‟s opportunity to receive and respond to articulated factual issues and legal 

theories before its actions are subjected to judicial review.‟ [Citations.] The doctrine 

prevents courts from interfering with the subject matter of another tribunal.” (Citizens for 

Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 874.)

Here, Friends exhausted its administrative remedies by doing everything it could 

do to challenge the District‟s approval of the November ATC, and the relevant 

administrative tribunal (the Hearing Board) was given an opportunity to decide a matter 

within its area of expertise before Friends sought judicial review. Thus, reviewing the 

District‟s permit approval by the trial court will not constitute judicial interference with 

the authority or subject-matter expertise of the Hearing Board.

6

 (Citizens for Open 

Government v. City of Lodi, supra, 144 Cal.App.4th at p. 874.)

We reject the Hearing Board‟s contention, raised for the first time in this writ 

proceeding, that Friends‟ petition should be amended to exclude the Board as a party. 

Whereas the Board argued below that its demurrer should be sustained without leave to 

amend, and argued in its preliminary response in this court that this petition be denied 

 

6

Some of the foregoing analysis is taken from an opinion that was ordered

depublished upon grant of review of an issue unrelated to the effect of a tie vote. (See 

Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 

197, 210 [noting without analysis that State Board of Education‟s tie vote amounted to 

affirmation of county board‟s decision].) We find the Court of Appeal‟s analysis 

persuasive. (Venoco, Inc. v. Gulf Underwriters Ins. Co. (2009) 175 Cal.App.4th 750, 

763, fn. 1 [“We read [an unpublished decision]. Its reasoning is impeccable. Too bad we 

cannot cite it.”]; People v. McDaniels (1994) 21 Cal.App.4th 1560, 1566, fn. 2 [analysis 

in unpublished opinion may properly be considered].)
14

and the case be allowed “to proceed to a final decision,” it now argues in its return to 

Grist Creek‟s petition that Friends‟ petition could be amended to exclude the Hearing 

Board. According to the Hearing Board, Friends could amend its petition to seek review 

of the District‟s approval, it could allege that the group had exhausted its administrative 

remedies, and “[t]he Hearing Board would not need to be named in that amended petition 

and the only required administrative record would be the record made by the [District‟s 

air pollution control officer] in making his decision.” We disagree. First, this position 

was apparently not advanced below, or even in the Hearing Board‟s preliminary response 

in this court. Second, and more significantly, it would be premature to conclude that the 

proceedings before the Hearing Board are inevitably irrelevant to Friends‟ underlying 

petition.

In sum, we conclude that the trial court erred in ruling that Friends failed to allege 

a cause of action on the basis that the Hearing Board‟s tie vote resulted in “no action.”

We again stress, however, that our ruling is a narrow one. We agree with Vedanta, 

supra, 84 Cal.App.4th at page 521, that tie votes mean different things in different 

contexts. In the statutory and procedural context presented here, the tie vote meant that 

the Hearing Board effectively allowed the November ATC to stand, and the outcome of 

not setting aside the November ATC may be reviewed by way of a writ petition in the 

trial court.

III.

DISPOSITION

The District‟s request for judicial notice, filed on January 19, 2017, is denied.

Grist Creek‟s request for judicial notice, filed on February 3, 2017, is denied.

Grist Creek‟s petition for a writ of mandate is granted. Let a writ of mandate issue 

commanding the trial court to vacate its order sustaining the Hearing Board‟s demurrer 

and to enter a new and different order overruling the demurrer. The trial court is further 

directed to reconsider the merits of Grist Creek‟s demurrer in light of this opinion as well 

as this court‟s opinion in Friends of Outlet Creek v. Mendocino County Air Quality 

Management District et al. (A148508).
15

To prevent further delays in the superior court proceedings, this decision shall be 

final as to this court five court days after its filing. (Cal. Rules of Court, 

rule 8.490(b)(2)(A).) The previously issued stay shall dissolve upon finality of this 

opinion.

Each party to bear its own costs.
16

_________________________

Humes, P.J.

We concur:

_________________________

Dondero, J.

_________________________

Banke, J.
17

Filed 6/14/17

Court of Appeal, First Appellate District, Division One - No. A149861

S241595

IN THE SUPREME COURT OF CALIFORNIA

En Banc

________________________________________________________________________

GRIST CREEK AGGREGATES LLC, Petitioner,

v.

SUPERIOR COURT OF MENDOCINO COUNTY, Respondent;

MENDOCINO COUNTY AIR QUALITY MANAGEMENT DISTRICT et al., Real 

Parties in Interest.

________________________________________________________________________

As recommended by the Court of Appeal pursuant to California Rules of Court, 

rules 8.1120, subds. (b)(1) and (c), the Reporter of Decisions is directed to publish the 

opinion in the above-entitled matter in the Official Reports.

______________________________

 Chief Justice