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Sixth District Finds “Substance and Effect” of “Preemptory Writ of Mandate” Decision A Final Judgment for Purposes of CEQA Appeal

Monday, December 17th, 2018

In Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista, (2018) 29 Cal.App.5th 424, the Sixth District Court of Appeal held that the “substance and effect” of a decision labeled by the trial court as a preemptory writ of mandate nonetheless constituted a final judgment.

The City of San Juan Bautista (City) approved a gas station, convenience store, and fast food restaurant (Project) and related permits with a mitigated negative declaration (MND). Alliance of Concerned Citizens Organized for Responsible Development (ACCORD) filed suit.

ACCORD alleged that the City violated CEQA by not preparing an EIR for the Project.  ACCORD also alleged that the Project conflicted with the City’s General Plan and that, in approving the Project, the City violated state planning and zoning laws, its own zoning code, and its municipal code.

In March 2016, the trial court issued a “Preemptory Writ of Mandate of Interlocutory Remand for Reconsideration of Potential Noise Impacts,” which directed the City to take specific action and then file a return to the preemptory writ no later than October 10, 2016. ACCORD did not appeal that decision. The City filed a return to the writ within the timeframe provided, and then a supplemental return advising the Court of the City’s compliance with the Writ.  In December 2016, the trial court issued a subsequent decision finding that the City had complied with the terms of the preemptory writ. ACCORD timely appealed this decision alleging that the City was required to prepare an EIR because there was substantial evidence of a fair argument that the Project would have noise and traffic impacts and the Project violated the City’s municipal code governing formula retail businesses.

In determining whether the issues raised on appeal were cognizable, the Appellate Court first considered whether the March 2016 decision was a final judgment, notwithstanding its title labeling it as an “Interlocutory Remand.” The Court reasoned it “is not the form of the decree but the substance and effect of the adjudication which is determinative” of whether it is a final judgment. “[W]here no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final.” Because “[t]he March 2016 decision disposed of all CEQA and non-CEQA issues raised by the petition and conclude[d] that respondents had not complied with CEQA with respect to the potential noise impacts of the project  . . . [t]he decision was not tentative or partial.”

The Court found that the March 2016 decree described specific instructions for the City to follow and the means for the City to comply with the Writ. It was inconsequential that additional proceedings were required as “a trial court has continuing jurisdiction to ensure compliance with a preemptory writ of mandate” and the scope of these proceedings was limited to whether the City complied with the decree. The trial court’s subjective intent was also inconsequential to the effect of the Court’s decision. It did not matter that the trial court titled the March 2016 decree an interlocutory remand and declared “nothing herein shall be construed as a final judgment,” the effect of the decree disposed of all issues raised by the petition thus, it was a final judgment.

The final judgment rule provides that an appeal may only be taken from the final judgment in an entire action; piecemeal disposition and multiple appeals in a single action are oppressive and costly. Here, the Court established that, in finding a final judgment, a court does not focus on the decision title or intent of the deciding court in issuing the decision but the “substance and effect” of the decision. Where the decision concludes matters between the parties, it is a final judgment for the purposes of an appeal.

ACCORD alleged that the March 2016 decision was an interlocutory remand and therefore unappealable, as discussed in Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499. In Voices, the California Supreme Court held that Code of Civil Procedure section 1094.5 does not impose an absolute bar on interlocutory remands in administrative mandamus actions. In a concurring opinion, Justice Werdegar, joined by Chief Justice Cantil-Sakauye, recognized the limited scope of the court’s decision and indicated that an interlocutory remand is not proper in a CEQA action. The California Supreme Court has not since decided the propriety of an interlocutory remand in a CEQA action. Here, the Court did not answer whether the Voices holding applied to CEQA actions pursuant to Public Resources Code section 21168.9 as “in substance and effect the March 2016 decision was a final judgment.” As such, the December 2016 decision was a post-judgment order.

ACCORD could not challenge the adequacy of the EIR as the group failed to timely appeal the March 2016 decision within the 60-day statutory deadline. ACCORD alleged that principles of fairness and due process support the grant of an extension. The Court held that it is immaterial that the trial court mislabeled the March 2016 decision and possibly mislead the parties, the Court is without statutory authorization to extend the time for appeal “even to relieve against mistake, inadvertence, accident, or misfortune.” Further, the timeline may not be extended by stipulation by the parties, estoppel, or waiver. Indeed, where no objection is made, a court “must dismiss the appeal of its own motion.”

Considering the above, the Court found the scope of its review limited to the December 2016 post-judgment order. The City’s response to the preemptory writ was adequate where it satisfied the conditions of the preemptory writ and timely filed a return on the preemptory writ.

The Court affirmed the trial court’s December 2016 holding.

Key Point:

Where a court’s decision disposes all issues raised by the petition, it is a final judgment from which an appeal must be filed within 60 days.

An appeal from a post-judgment decision limits the appellate court’s scope of review to only those issues addressed in the post-judgment decision, not the original judgment.