SOS2 is a nonprofit organization that formed in 2020 to oppose the construction of a high school at a location SOS2 deems too dangerous. At the December 9, 2020 meeting of its Board of Supervisors, the County considered SOS2’s appeal of the decision of the County’s Planning Commission to approve a major use permit for construction of the school and to adopt a mitigated negative declaration. The County rejected the appeal, approved issuance of the permit, and adopted the mitigated negative declaration. A notice of determination was filed with the County Clerk on December 15, 2020.
SOS2 filed a “verified petition for writ of mandate and complaint for violation of Brown Act, declaratory and injunctive relief” (the petition) in the trial court on January 14, 2021. (Capitalization and bolding omitted.) The caption named the County and its Board of Supervisors as defendants and respondents,[1] but did not name any real party in interest. In the first paragraph of the petition, SOS2 alleged the County had unlawfully approved a permit for Literacy First to construct a high school. In the section of the petition labeled “PARTIES,” SOS2 identified Literacy First as the real party in interest and the proponent of the construction project. SOS2 went on to allege that in approving the project, the County violated the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) by conducting inadequate environmental review of the project, the Ralph M. Brown Act (Brown Act; Gov. Code, § 54950 et seq.) by holding secret meetings about the project, and the Planning and Zoning Law (Gov. Code, § 65000 et seq.) by approving a project inconsistent with the law. SOS2 prayed for a writ directing the County to set aside its approval of Literacy First’s high school construction project.[2]
SOS2 served the County with a summons, the petition, and related documents on February 2, 2021. A proof of service in the record states that on February 23, 2021, SOS2 served copies of the summons, petition, and related documents on an attorney for Literacy First by both U.S. mail and electronic mail. Yet another proof of service in the record states that on February 24, 2021, a registered process server served Debbie S. Beyer, Literacy First’s registered agent for service of process, by substituted service. According to the proof of service, the process server left copies of the summons, petition, and related documents with a woman (who was identified as a vice principal and described by race, age, height, weight, hair color, and eye color) at the service address for Beyer on file with the California Secretary of State, and on the same day the process server mailed additional copies to Beyer at that address.
The County demurred to the petition on March 10, 2021, on the ground SOS2 had failed timely to join an indispensable party, namely, Literacy First. (Code Civ. Proc., §§ 430.10, subd. (d) [authorizing demurrer for defect or misjoinder of parties], 389, subd. (b) [authorizing dismissal when an indispensable party has not been joined].) The County argued that because Literacy First was the proponent of the high school construction project whose approval SOS2 was challenging, Literacy First had to be named as a real party in interest in the petition (Pub. Resources Code, § 21167.6.5, subd. (a))[3] and served with the summons and petition within 90 days of the date of the County’s decision to approve the project and to issue the major use permit (Gov. Code, § 65009, subd. (c)(1
[1] SOS2 also named the County’s Planning Commission as a defendant and respondent but later dismissed it.
[2] SOS2 also included a cause of action for declaratory relief and a related request for injunctive relief by which it sought a judicial determination that the County had violated CEQA in approving the high school construction project and an injunction directing the County to conduct the environmental review required by CEQA. This portion of the petition thus merely duplicated the allegations and request for relief of the CEQA cause of action. The parties did not address the cause of action for declaratory and injunctive relief in connection with the demurrer in the trial court, and they have not addressed it in their appellate briefing either. We therefore do not further consider that cause of action.
[3] “The petitioner or plaintiff shall name, as a real party in interest, the person or persons identified by the public agency in its notice [of determination] . . . and shall serve the petition or complaint on that real party in interest, by personal service, mail, facsimile, or any other method permitted by law, not later than 20 business days following service of the petition or complaint on the public agency.” (Pub. Resources Code, § 21167.6.5, subd. (a).)
