TORREY HILLS COMMUNITY COALITION v.
Filed 7/2/10
CERTIFIED
FOR PUBLICATION
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
TORREY HILLS COMMUNITY
COALITION,
Plaintiff and Appellant,
v.
CITY OF SAN
DIEGO, et al.,
Defendant and Respondent;
WESTBROOK TORREY HILLS, L.P.,
et al.,
Real Parties in Interest and
Respondents.
D055579
(Super. Ct. No. 37-2008-00095741- CU-WM-CTL)
APPEAL from
a judgment of the Superior Court
of San Diego
County, Linda B. Quinn, Judge.
Affirmed.
Julie M.
Hamilton for Plaintiff and Appellant.
Jan I.
Goldsmith, City Attorney, and Carmen A. Brock, Deputy City Attorney, specially
appearing for Defendant and Respondent.
Latham
& Watkins, LLP, Daniel P. Brunton, Ryan R. Waterman; Haynie Law Group and
Allen D. Haynie specially appearing for Real Parties in Interest and
Respondents.
Torrey
Hills Community Coalition (Torrey Hills) appeals a judgment dismissing its
petition for writ of mandate
challenging the City of San Diego's (the City) approval of a development
project by real parties in interest Westbrook Torrey Hills, L.P., AME Torrey
View, LLC, and Pacific Centre Carmel Valley, LLC (collectively Westbrook). The trial court found Torrey Hills (1)
violated Government Code section 66499.37, which applies to claims made under
the Subdivision Map Act (SMA) (Gov. Code, § 66410 et seq.), by not serving
a summons within 90 days of the City's approval of the project; and (2)
violated Public Resources Code section 21167.4, subdivision (a), by not filing
a written request for a hearing within 90 days of the filing of the writ
petition on claims brought under the California
Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et
seq.). As to the first issue, Torrey
Hills contends the 90-day period was tolled under Code of Civil Procedure
section 583.240, subdivision (d) for impossibility. As to the second issue, Torrey Hills contends
the court misinterpreted Public Resources Code section 21167.4, subdivision (a)
to require a written request, and it raises an impossibility argument. We affirm the judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
Westbrook's
project consists of 484 condominium units and 4,000 square feet of retail
space. On September 16, 2008, the City
took several actions to approve the project, including certifying the final
environmental impact report, rezoning the property from light industrial and 29
dwelling units per acre to 54.5 dwelling units per acre and open space,
amending the applicable community plan, granting a vesting tentative map
allowing the subdivision of four existing lots into seven lots, and issuing a
planned development permit.
On November 10, 2008, Torrey Hills
filed a petition for writ of mandate challenging the City's approval of the
project. The first and third through
sixth counts of the petition alleged the approval violated CEQA; the second
count alleged the approval violated the City's procedures for implementing
CEQA; the seventh count alleged the City's findings on the development permit
lacked evidentiary support, and the eighth count alleged the City's findings on
the tentative map lacked evidentiary support.
It is undisputed that all claims in the petition fall within the scope
of the SMA.
On January 16, 2009, the City and
Westbrook specially appeared to move to dismiss the petition for failure to serve
a summons within 90 days of the City's approval of the project on September 16, 2008, as required by
Government Code section 66499.37, a provision of the SMA.
On February 5, 2009, Torrey Hills's
counsel telephoned the trial court clerk and requested a hearing date on the
writ petition and an ex parte hearing on her request for a continuance on the motion to dismiss. The clerk gave counsel an ex parte hearing
date of February 10, but she did not give counsel a date for the hearing on the
writ petition. After the ex parte
hearing, Torrey Hills's counsel telephoned the clerk about a hearing date for
the writ petition, and she advised counsel the judge would prefer to wait until
after deciding the motion to dismiss to set a hearing on the petition. Torrey Hills did not file a written request
for a hearing on or before February 9,
2009.
On March 4, 2009, the City and Westbrook
amended their motion to dismiss to allege Torrey Hills's CEQA claims should be
dismissed for the additional reason that it failed to file a written request
for a hearing within 90 days of the date of filing the petition pursuant to
Public Resources Code section 21167.4, subdivision (a).
After a
March 27, 2009 hearing on the motion to dismiss, the court took the matter
under submission. On April 17, Torrey
Hills filed a document entitled "Notice of Request for Hearing" (some
capitalization omitted), which notified the City and Westbrook that on February
5, 2009, Torrey Hills's counsel had orally requested a hearing date from the
court clerk on the writ petition, and the clerk advised counsel that the judge
would rather wait until disposition of the motion to dismiss.
In an April
28, 2009 minute order, the court granted the amended motion to dismiss on both
grounds raised -- the lack of service of summons within 90 days of the City's
approval of the project (Gov. Code, § 66499.37), and the failure to make a
written request for a hearing within 90 days of filing a CEQA petition (Pub.
Resources Code, § 21167.4, subd. (a)).
A judgment of dismissal was entered on May 18, 2009.
DISCUSSION
I
Standard of Review
We
independently review an order granting a motion to dismiss a petition for writ
of mandate. (Friends of Riverside
II
A
"A summons in an action or proceeding is issued by
the clerk of the court, to be served on the defendant in a manner authorized by
law. It is the usual means by which the
court gives jurisdictional notice to
the defendant, directs the defendant's appearance, and thus acquires
jurisdiction of the defendant's person.
[Citations.] A summons may be had
at the simple request of the plaintiff and may be served either by a court
officer or a private individual."
(3 Witkin, Cal.
Procedure (5th ed. 2008) Actions, § 960, fn. 1184.)
The SMA
contains a summons requirement for any action to challenge an agency decision
pertaining to a subdivision: "Any
action or proceeding to attack, review, set aside, void, or annul the decision
of an advisory agency, appeal board, or legislative body concerning a
subdivision, or of any of the proceedings, acts, or determinations taken, done,
or made prior to the decision, or to determine the reasonableness, legality, or
validity of any condition attached thereto . . . shall not be maintained by any person unless the action or proceeding
is commenced and service of summons effected within 90 days after the date of the
decision. Thereafter all persons are
barred from any action or proceeding . . . ." (Gov. Code, § 66499.37, italics added.)
"Case
law has made it clear that this 90-day service of summons requirement is
mandatory and acts as a statute of limitations, barring actions under the SMA
in which the service of summons is not accomplished within 90 days after the
challenged decision of the legislative or advisory body." (Friends,
The "90-day requirement applies to all types of actions seeking
review of a legislative or advisory body's subdivision-related decisions under
the SMA, regardless of the legal basis."
(Id. at p. 750.)
In
24, 2008, the court held as a matter of first impression that CEQA
challenges raised in a writ petition that pertain to an agency's decision
concerning a subdivision under the SMA are subject to the 90-day service of
summons requirement. (
at p. 756 ["Friends was required to comply with the 90-day summons
requirement for the CEQA cause of action, because it both overlapped with the
SMA causes of action and could have been (and was) brought under the
SMA."].)[1]
B
Torrey
Hills does not contest the court's findings that all claims in its writ
petition fell within the scope of the SMA and could have been brought under the
SMA.
It also concedes it did not meet the 90-day service of
summons requirement. The 90-day period
expired on December 15, 2008. It contends, however, that the 90-day period
was tolled under Code of Civil Procedure section 583.240, subdivision (d) for
impossibility.
Code of
Civil Procedure section 583.240, and subdivision (d), provides that "[i]n
computing the time within which service must be made pursuant to this article, there shall be excluded the time during
which" service "was impossible, impracticable, or futile due to
causes beyond the plaintiff's control."
(Italics added.) Torrey Hills
cites no authority for the proposition that this statute applies to the 90-day
requirement under Government Code section 66499.37. In Maginn
v. City of Glendale (1999) 72 Cal.App.4th 1102, 1108, the court assumed for
purposes of discussion that it could consider Code of Civil Procedure section
583.240, subdivision (d) in the context of the 90-day rule, but on the facts
the court rejected the impossibility argument.
Even if
Code of Civil Procedure section 583.240, subdivision (d), is applicable here,
Torrey Hills has made an insufficient showing of impossibility. The "exceptions codified in [Code of
Civil Procedure] section 583.240, subdivision (d) must be construed strictly
against the plaintiff." (
320, 326.) " 'The excuse of
impossibility, impracticability, or futility should be strictly construed in
light of the need to give a defendant adequate notice of the action so that the
defendant can take necessary steps to preserve evidence.' " (Bishop
v. Silva (1991) 234 Cal.App.3d 1317, 1322.)
When plaintiff's problems are within its control, no relief is
available. (Ibid.) The
" 'plaintiff must exercise diligence' " in serving the
summons. (Ibid.)
743, was published on November 24,
2008. Torrey Hills claims it
would have been impossible to obtain a summons by the deadline of December 15, 2008, because, even
after the publication of Friends,
"the San Diego Superior Court continued to refuse to issue a summons for
any [writ petition] containing a CEQA cause of action." Torrey Hills relies on a March 3, 2009 declaration by Kathy Bailey, who
between 2006 and February 16, 2009,
was the operations manager for the San Diego County Superior Court's civil
business office. The declaration states
that during her stint it was the court's "policy . . . not to
issue a summons for a . . . Petition for Writ of Administrative
Mandamus containing a [CEQA] Cause of Action."
Torrey
Hills also cites the March 16, 2009
declaration of Everett DeLano III, which states: "As a practicing attorney specializing
in environmental and land use law, I am familiar with the San Diego Superior
Court's Rules of Court and the practices of the Civil Business Office in filing
Petitions for Writ of Mandate. It has
been my experience the Civil Business Office will refuse to issue a Summons for
a Petition for Writ of Mandate or Administrative Mandamus. I have been filing such petitions for several
years and was never issued a summons, even when requested." The declaration also states: "Recently, my office requested the San
Diego Superior Court Civil Business Office to issue a summons for a Petition
for Writ of Mandate. This request was
refused; the clerk informed my office they would not issue a summons on a writ
petition."
Further,
Torrey Hills relies on the declaration of Attorney Craig Sherman, which states
he filed a petition for writ of mandate on December 19, 2008, and the court refused to issue a
summons. On February 9, 2009, he learned "of a new published
decision" that required service of summons in CEQA actions. He believed he had to serve a summons in his
writ proceeding, or risk having the case dismissed, and thus he sent his law
clerk to the court with a copy of the decision to demand the issuance of a
summons. The court clerk initially
refused, but ultimately issued a summons.
Additionally,
Torrey Hills's counsel, Julie Hamilton, submitted a declaration that stated she
had practiced environmental and land use law since 1999, and "it has
always been my experience the Court will refuse to issue a summons for
Petitions for Writ of Mandate, attempting to procure a summons for a Petition
of Writ of Mandate in San Diego [County] Superior Court is a futile
effort."
We conclude
Torrey Hills's evidence does not establish impossibility. The petitioner has the burden of showing
diligence as a prerequisite to obtaining relief under Code of Civil Procedure
section 583.240, subdivision (d). (
(1994) 23 Cal.App.4th 84, 102.)
There is no suggestion that after the publication of
whatsoever to obtain a summons before the December 15 deadline, and thus there
is no showing of diligence to support an impossibility theory. The court's ruling states, "There is no
evidence of specific request made by Petitioner to the court for the issuance
of summons based on the holding of [Friends,
counsel.
This case
is similar to Renoir v. Redstar Corp. (2004)
123 Cal.App.4th 1145, in which the plaintiffs asserted they were excused from
serving a summons because "a superior court clerk had informed them that a
summons for an action to enforce a foreign money judgment is not
required." (Id. at p. 1154.) In
rejecting the assertion, the court noted the plaintiffs did not claim
"they ever attempted to obtain such a summons," and "[h]ad
[they] been unable to obtain such a summons, their remedy would have been to
apply to the court to require the clerk to perform this
responsibility." (
The issuance of a summons is a routine ministerial duty of the court
clerk. (Maginn v. City of Glendale,
supra, 72 Cal.App.4th at p. 1107;
Code Civ. Proc., § 412.10 ["After payment of all applicable fees, the
plaintiff may have the clerk issue one or more summons for any
defendant."].) "The clerk, as
a ministerial officer of the court, is subject to the control of the
judge," and the "normal remedy of a party aggrieved by an act or
omission of the clerk is to apply to the court for an order directed to the
clerk." (2 Witkin,
Cal. Procedure, supra, Courts,
§ 362, p. 463.)
We are
unpersuaded by Torrey Hills's argument that Friends
should be applied only to writ petitions filed after its date of
publication. " ' "As
a rule, judicial decisions apply 'retroactively.' [Citation.]
Indeed, a legal system based on precedent has a built-in presumption of
retroactivity." '
[Citation.] ' "The
general rule that judicial decisions are given retroactive effect is basic in
our legal tradition."
[Citation.] Courts sometimes make
an exception to this general rule when the decision changed a settled rule on
which the parties had relied.'
[Citation.] But where 'we are
merely deciding a legal question, not changing a previously settled rule,' no
reason exists to apply the exception."
(County
language, even as a matter of first impression, it is "bound by the
general rule that judicial decisions are given retroactive effect." (Id. at
p. 954.)
interpreting Government Code section 66499.37's 90-day service of summons
requirement as applying to CEQA cause of action pertaining to a
subdivision. The court, however,
explained that "there is ample case law holding that the 90-day
requirement applies to all types of actions seeking review of a legislative or
advisory body's subdivision-related decisions under the SMA, regardless of the
legal basis." (Friends, supra,
231 Cal.App.3d 665, 671-672; Hensler v.
City of Glendale (1994) 8 Cal.4th 1, 26-27.) The court's holding in Friends did not materially change the law. Rather, its holding " 'simply
becomes part of the body of case law of this state, and under ordinary
principles of stare decisis applies in all cases not yet final.' " (County
of Sacramento, supra,
in applying Friends to this case, as
Torrey Hills had adequate time after its publication to seek a summons.
The court
properly dismissed Torrey Hills's entire petition for writ relief because it
did not serve the summons on Westbrook within the 90-day period set forth in
Government Code section 66499.37.[2]
III
Request for Hearing
Although
the above discussion is dispositive, we address Torrey Hills's contention the
court erred by dismissing the CEQA claims in the writ petition on the
additional ground that it did not request a hearing in writing as required by
Public Resources Code section 21167.4 (hereafter section 21167.4). Section 21167.4, subdivision (a), a provision
of CEQA, provides: "In any action
or proceeding alleging noncompliance with this division, the petitioner shall
request a hearing within 90 days from the date of filing the petition or shall
be subject to dismissal on the court's own motion or on the motion of any party
interested in the action or proceeding."
(§ 21167.4, subd. (a).)
In Torrey
Hills's view, it was not required to make a written request for a hearing
because subdivision (a) of section 21167.4 does not refer to a written
request. Rather, the oral request of its
counsel on February 5, 2009,
a few days before the February 9 deadline, was sufficient. We are unpersuaded, however, because other
subdivisions of section 21167.4 establish the requirement of a written request.
In
interpreting a statute, we strive to ascertain the Legislature's intent. "We give the words of the statute
' "their usual and ordinary meaning." ' [Citations.]
' "Words must be construed in context, and statutes must be
harmonized, both internally and with each other, to the extent
possible.' '' " (People
v. Loeun (1997) 17 Cal.4th 1, 9.)
" ' "It is an elementary rule of construction that
effect must be given, if possible, to every word, clause and sentence of a
statute." A statute should be
construed so that effect is given to all its provisions, so that no part will
be inoperative or superfluous, void or insignificant, and so that one section
will not destroy another unless the provision is the result of obvious mistake
or error.' " (
Cal.App.4th 1260, 1269.) " 'If
there is no ambiguity in the language of the statute, "then the
Legislature is presumed to have meant what it said, and the plain meaning of
the language governs."
[Citation.] "Where the
statute is clear, courts will not 'interpret away clear language in favor of an
ambiguity that does not exist.'
[Citation.]" ' "
(People v. Loeun,
Subdivision
(b) of section 21167.4 provides that the "petitioner shall serve a notice
of the request for a hearing on all parties at the time that the petitioner
in part: "Upon the
for a hearing and upon application by any party, the court shall establish a
briefing schedule and a hearing date. In
the absence of good cause, briefing shall be completed within 90 days from the
date that the request for a hearing is
filed, and the hearing, to the
extent feasible, shall be held within 30 days thereafter." (Italics added.) Obviously, a written request is required even
though subdivision (a) of section 21167.4 does not expressly refer to a
writing. Under Torrey Hills's theory, we
would have to ignore the language of subdivisions (b) and (c) of the
statute. As the court held in
21167.4 are read together, "it is plain that the 'request [for] hearing'
required by subdivision (a) must be in a writing filed with the court, or else
subdivisions (b) and (c) of the statute will not operate." (County
of Sacramento, at p. 953.)
Further, an
oral request for hearing does not serve the purposes of section 21167.4. After the petitioner serves and files a
written request, any party may request a briefing schedule and hearing
date. (§ 21167.4, subd. (c).) An oral request of which the opposing party
has no notice defeats that purpose.
Torrey Hills was required to file a written request for a hearing. We disagree with its assertion there is a
"lack of clarity in the statute."
Torrey
Hills submits that since County of
Sacramento, supra,
until December 29, 2009, when its counsel orally requested a hearing on the
writ petition "there was no clear requirement the hearing must be
requested in writing." Torrey Hills
asserts it would be unfair to apply
In
at page 953, the court concluded its holding should be applied
retroactively. The court explained its
holding did not change a settled rule or case on which the petitioner could
have reasonably relied in not filing and serving a written request for a
hearing within 90 days of filing its writ petition. The court noted, "All we have done today
is determine definitively, for the first time, that the 'request for hearing'
required by subdivision (a) of section 21167.4 must be a writing filed with the
court. . . . [T]he fact that no previous appellate decision
made this clear does not justify giving our decision prospective application
only; instead, we are bound by the general rule that judicial decisions are
given retroactive effect." (
We agree
with the County
decision here on April 28, 2009,
about eight months before County of
reliance on that opinion. Further, we
need not rely on County
Torrey Hills based on the plain terms of the statute.
Further,
Torrey Hills's reliance on McCormick v.
Board of Supervisors (1988) 198 Cal.App.3d 352 (McCormick), is misplaced. In
McCormick, supra, at page 358, the
court explained that under section 21167.4, a petitioner need only "take
reasonable affirmative steps sufficient to place the matter on the court's
docket for a hearing, either by filing and serving a notice of hearing or
utilizing some other method authorized by the local rules of the court in which
the matter is pending."[4] When McCormick
was decided in 1988, however, section 21167.4 consisted only of what is now
subdivision (a) of the statute, and thus the statute contained no reference to
a filing. McCormick predates the 1993 and 1994 addition of subdivisions (b)
and (c) to section 21167.4, which plainly show a written request must be served
and filed. (Stats. 1993, ch. 1130,
§ 20, p. 6331; Stats. 1994, ch. 1294, § 21, pp. 8325-8326.) County
of Sacramento, supra,
out that McCormick has not been good
law "for the last 15 years," but Torrey Hill persists in relying on
it. (See also Association for Sensible Development at Northstar,
Cal.App.4th 1289, 1294 [pointing out that McCormick
is no longer good law].)
We also
reject Torrey Hills's argument that filing a written request for a hearing
would have been futile, within the meaning of Code of Civil Procedure section
583.240, subdivision (d) because when its counsel phoned the court clerk on
February 5, 2009, for a hearing date, on February 10 the clerk advised counsel
that the court preferred not to set a hearing until after the motion to dismiss
was heard. Torrey Hills asserts the
90-day period within which to request a hearing expired on February 12, and
after its counsel learned of the court's position on February 10 there was no
reason to take any further action. The
90-day period, however, expired on February 9, before counsel learned of the court's position. Thus, Torrey Hills has not shown
diligence. Further, Public Resources
Code section 21667.4, subdivision (a) did not require Torrey Hills to obtain a
hearing date. Rather, the statute merely
required Torrey Hills to file and serve a request
for a hearing date, and it would not have been futile to make the
request. (See Association for Sensible Development at Northstar,
only requires petitioner to file request for
hearing; it does not require petitioner to obtain hearing date].) Under subdivision (c) of section 21167.4, a
briefing schedule and hearing date could be established later "upon
application by any party." In
page 954, the court rejected a similar futility argument.
DISPOSITION
The
judgment is affirmed. Respondents are
entitled to costs on appeal.
McCONNELL, P. J.
WE CONCUR:
McINTYRE, J.
IRION,
J.
Publication Courtesy of California
attorney referral.
Analysis and review provided by Vista Property line attorney.
San Diego Case
Information provided by www.fearnotlaw.com
[1] Friends
was originally filed on October
24, 2008, as an unpublished opinion. The opinion was published on November 24, 2008.
[2] The writ petition's eighth count was
brought under the SMA and did not contain any overlapping CEQA claims. Accordingly, Friends did not affect the eighth cause of action. At the hearing, real parties in interest
argued that before Friends,
Diego County that
a summons was required for an SMA claim.
Torrey Hills did not dispute that.
