1 Cal. App. 5th 715
Cal. Ct. App.2016Background
- Kinder Morgan sought and received an Authority to Construct from the Bay Area Air Quality Management District (BAAQMD) in July 2013 to modify a Richmond transloading facility to handle crude oil instead of ethanol; BAAQMD did not file an optional notice of exemption (NOE).
- Kinder Morgan began transloading crude oil in mid-September 2013; BAAQMD later modified permit conditions (Oct. and Dec. 2013) and issued a Permit to Operate in Feb. 2014.
- Communities for a Better Environment (CBE) sued (Mar. 27, 2014) alleging the approval was not ministerial and CEQA required an EIR; suit was filed more than 180 days after the July 2013 Authority to Construct.
- Defendants moved to dismiss as time-barred under Public Resources Code § 21167(d), which provides alternative accrual dates (NOE filing, agency decision, or project commencement).
- CBE argued the discovery rule should delay accrual until Jan. 31, 2014 (when it first learned via email that crude was being transloaded) because there was no public notice and the operation was not observable.
- The trial court dismissed without leave to amend; the Court of Appeal affirmed, holding the discovery rule cannot extend accrual beyond the constructive-notice dates set in § 21167(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the discovery rule can postpone accrual under § 21167(d) | CBE: Limitations didn’t begin until CBE actually discovered crude transloading (Jan. 31, 2014) because BAAQMD gave no public notice and the operation was hidden | Respondents: § 21167(d) sets specific accrual dates (NOE filing, agency decision, or commencement); discovery rule cannot override those statutory dates | Held: Discovery rule cannot delay accrual beyond the constructive-notice dates in § 21167(d); dismissal affirmed |
| Whether CBE could amend to plead delayed discovery to save the suit | CBE: Amendment could allege lack of actual or constructive notice until Jan. 2014 | Respondents: Statutory constructive-notice dates already elapsed; amendment cannot cure defect | Held: No reasonable possibility amendment would succeed; leave to amend properly denied |
Key Cases Cited
- Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn., 42 Cal.3d 929 (Cal. 1986) (limited accrual exception where project actually undertaken differs substantially and public lacked notice of changes)
- Stockton Citizens for Sensible Planning v. City of Stockton, 48 Cal.4th 481 (Cal. 2010) (statutory text of § 21167(d) confirms shortest period applies from NOE filing and other dates provide constructive notice)
- Committee for Green Foothills v. Santa Clara County Bd. of Supervisors, 48 Cal.4th 32 (Cal. 2010) (project approval or initiation deemed constructive notice when no NOE filed)
- Ventura Foothill Neighbors v. County of Ventura, 232 Cal.App.4th 429 (Cal. Ct. App. 2014) (no triggering when notice of determination omits the changed feature; accrual may run from plaintiff’s knowledge when statutory trigger never effectively occurred)
- Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797 (Cal. 2005) (explains discovery rule: accrual postponed until plaintiff discovers or should discover cause of action)
- E-Fab, Inc. v. Accountants, Inc. Services, 153 Cal.App.4th 1308 (Cal. Ct. App. 2007) (discusses discovery rule application and accrual principles)
- Nguyen v. Western Digital Corp., 229 Cal.App.4th 1522 (Cal. Ct. App. 2014) (plaintiff charged with actual knowledge and knowledge reasonably discoverable in discovery-rule analysis)