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Posts from October, 2013


Court Holds CEQA-Related Calendaring Error by Attorney was “Excusable Neglect” Under Code of Civil Procedure § 473

Tuesday, October 1st, 2013

In Comunidad en Accion v. Los Angeles City Council, 2013 Cal. App. LEXIS 756, the California Court of Appeal for the Second Appellate District affirmed the trial court’s dismissal of plaintiff’s unlawful discrimination claim, while reversing the dismissal of plaintiff’s CEQA claim.

The court of appeal reversed the trial court’s dismissal of plaintiff’s CEQA claim based on plaintiff’s procedural error. Plaintiff filed its petition for writ of mandate on June 10, 2010. The parties thereafter stipulated to an extension of time for preparation and certification of the administrative record, and the court’s order set October 18, 2010 as the deadline. On September 14, 2010, real party in interest moved to dismiss the suit because plaintiff had failed to request a hearing within 90 days of filing its CEQA claim, as required under subdivision (a) of section 21167.4 of the Public Resources Code. Plaintiff’s counsel requested a hearing the next day and sought relief under section 473 of the Code of Civil Procedure, which grants courts the discretion to “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” The trial court denied plaintiff’s request for relief, finding counsel’s failure to calendar the date was not excusable neglect.

The court of appeal reversed, finding the trial court had abused its discretion in failing to grant plaintiff’s request under § 473. The court began its analysis by describing the two competing public policies at play: a preference for trials on the merits and the expeditious resolution of CEQA cases. The court then reviewed case law to show how the phrase “excusable neglect” had been interpreted by the courts. The court’s conclusion was that simple calendaring errors, without more, have been found to be excusable neglect. The cases where courts found the neglect inexcusable generally involved additional defects, such as counsel’s general disorganization, series of calendaring errors, or errors of judgment. The court was also careful to distinguish a failure to comply with a statute of limitations, where relief under § 473 may not be available.

This decision contrasts the decision in Nacimiento Regional Water Management Advisory Com. v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, in which the plaintiff failed to request a hearing within the time required by § 21167.4(a). In Nacimiento the plaintiff’s attorney conceded the error was based on an inexcusable mistake. This decision demonstrates that where failure to comply with § 21167.4(a) is based on excusable neglect, relief may be required pursuant to § 473 if the mistake constitutes a one-time calendaring error, and the plaintiff otherwise diligently prosecutes the case.

Plaintiff also maintained the City violated section 11135 of the Government Code, which provides that “[n]o person…shall, on the basis of race, national origin, ethnic group identification…be unlawfully subjected to discrimination under…any program or activity” administered by or that receives funding from the State.

Plaintiff argued that the City’s decision to site new and expanded solid waste facilities in a predominantly Latino neighborhood constituted a discriminatory practice. Plaintiff further maintained that the City’s local enforcement agency (“LEA”) received State funds to support its solid waste management oversight role. But the court explained that the LEA is a separate legal entity from the City and was not involved in the siting decision for this facility. The court concluded the phrase “program or activity” could not be read so broadly as to encompass any City action in relation to solid waste management—particularly where the recipient of State funds has a distinct legal identity apart from the City. Since the City had not received State funds in relation to the facility siting activity, the City’s alleged discriminatory practice fell outside the scope of the statute, and the trial court property dismissed the claim.

KEY POINTS:
Plaintiff’s counsel in CEQA litigation should request a hearing within 90 days as required by § 21167.4(a). However, failure to do so may be defensible where the error is based on a calendaring mistake.