Public Resources Code Section 21169.11 Imposes Discretionary Sanction Power on Lower Court, Judged By An Objective Standard as to Frivolousness.
Public Resources Code section 21169.11 provides that a lower court may impose an appropriate sanction, up to $10,000, upon parties, attorneys, or law firms responsible for bringing/prosecuting a frivolous CEQA claim. In Helping Hand Tools v. San Diego Air Pollution Control Dist. Hrg. Bd., Case No. D063313 (4th Dist., Div. 1 Apr. 30, 2014) (unpublished), plaintiff and its counsel were ordered to pay section 21169.11 sanctions of $6,000 for failing to appeal air pollution notice of exemptions to the Board of Supervisors rather than the Hearing Board.
Plaintiff/its counsel’s appeal did not overturn the sanctions order.
Although “frivolous” is defined as “totally and completely without merit” under the statute, no case had yet construed these terms, but the appellate court found that an objective standard should apply, namely, if any reasonable attorney would agree that the position is totally devoid of merit.
With this standard in mind, the appellate court found that the Board of Supervisors, a body not appealed to, was the decision-making entity which should have been appealed to—with the appeal to the Hearing Board being improper and failure to exhaust remedies. Appellants argued that their conduct could not be frivolous because they relied on a published decision, but this one did not cut the grade given the published decision had not even been decided even as late as when the superior court complaint was filed (or, put another way, there could be no justifiable reliance). Sanctions order affirmed.