First District, Division Four Faces Novel Issue, Overturning Fee Award Against Petitioners.
Now we look at an interesting decision for CEQA practitioners.
Under the California Environmental Quality Act (CEQA, Public Resources Code section 21000 et seq.), a petitioner must request a hearing within 90 days of filing the petition or be subject to dismissal, with petitioner mandated to file and serve a notice of the request for hearing on all parties. (Pub. Resources Code, sec. 21167.4(a)-(b).)
In Friberg v. Bates, Case No. A118041 (1st Dist., Div. 4 Oct. 21, 2008) (unpublished), a trial court imposed attorney’s fees against losing CEQA petitioners based on a failure to give notice of the hearing as required under Public Resources Code section 21167.4(a). After petitioners filed their action, the trial court noticed a hearing and petitioners served that notice on their opponents. The trial court dropped this date from the calendar later, and petitioners filed an amended petition after opponents demurred to the original petition. Opponents moved to dismiss for failure to file a request for hearing under section 21167.4(a), which was granted on the CEQA claim. Petitioners moved for relief under Code of Civil Procedure section 473(b) based on the belief that their notice of the trial court’s action in setting a hearing date was sufficiently compliant. The lower court granted the motion, but awarded opponents fees for moving to dismiss and in opposing the 473 motion.
Petitioners appealed the fee award, and obtained a reversal.
Justice Rivera, writing for a 3-0 panel of the First District, Division Four, directly confronted petitioners’ “substantial compliance” argument on appeal. After noting that “[t]he parties have drawn our attention to no case directly on point, and our own research has disclosed none,” the Court of Appeal agreed with petitioners that the purpose of section 21167.4 was satisfied “by serving the court’s notice of hearing, and the trial curt should not have dismissed the CEQA claim.” Because the claim should not have been dismissed, it logically followed that a fee award arising out of the dismissal similarly was infirm. In reaching its conclusion, the appellate panel invoked one of the civil maxims: “To read section 21167.4 as requiring a petitioner to file a request for a hearing that had already been set would be to require a meaningless act.” (See also Civ. Code, sec. 3532 [“The law neither does nor requires idle acts.”].)