Monday, May 7, 2018
Page 3
Court of Appeal
Substantial Performance Excuses Failure to File Required Written Request
Opinion Says Oral Application for Hearing in CEQA Challenge Accompanied by Writings Supplied to Adversaries Giving Notice of Request Suffices
By a MetNews Staff Writer
The Fourth District Court of Appeal has reversed the dismissal of an environmental group’s challenge to a city’s approval of a proposed housing development, holding that although the group failed to file a written “request for a hearing,” as required under the Public Resources Code, substantial compliance sufficed.
The unpublished opinion out of Div. One, filed Thursday, reinstates an action by Endangered Habitats League, Inc. (“EHL”) against the City of San Marcos in San Diego County seeking a writ of mandate and declaratory and injunctive relief. The complaint alleges noncompliance with the California Environmental Quality Act (“CEQA”) in connection with a proposed housing development by Farouk Kubba and Vista San Marcos Limited, the real parties in interest.
Dismissal was based on a provision of that act. Public Resources Code §21167.4(a) says that where there is an assertion of noncompliance with the CEQA, “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.”
The requirement has been judicially construed to contemplate a written request for a hearing.
Request to Clerk
Within the 90-day period, EHL did make an oral request to the judge’s calendar clerk to set a date for hearing, was given a date, and provided notice of the hearing to the other side, and filed a declaration referencing the request. The real parties moved for dismissal based on a failure to file a written request and San Diego Superior Court Judge Ronald F. Frazier granted the motion.
Writing for Div. One, Justice Cynthia Aaron declared:
“Although EHL did not file a document entitled ‘request for a hearing,’ the multiple written documents provided to respondents (a number of which were filed with the court)—all within the requisite 90-day period—can be construed as the functional equivalent of a written request for a hearing. Thus, the purpose of filing a written request for a hearing within 90 days of the filing of the petition—i.e., to provide notice to the other parties of the request—was clearly met.”
Not Express Requirement
The jurist noted that the section does not expressly say that the request must be in writing, although the existence of that requirement is ascertainable through an analysis of the statututory scheme. The section therefore “cannot reasonably be construed as constituting a clear and unambiguous statutory mandate that would require strict compliance,” she said, and is “amenable to application of the substantial compliance doctrine.”
She added that “no court has held that section 21167.4 is jurisdictional in nature,” and that there are decisions declaring that “equitable relief from dismissal is available if a litigant has failed to strictly comply” with it.
Aaron counseled in a footnote:
“Although the particular facts of this case support application of the substantial compliance doctrine, we caution counsel that failure to timely file and serve a written ‘request for a hearing’ will ordinarily result in dismissal of the action.”
The case is Endangered Habitats League, Inc. v. City of San Marcos, D072404.
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