*1 Dist., E013090. Fourth Div. [No. Two. Mar. 1994.] al., BOARD OF SUPERVISORS OF RIVERSIDE COUNTY et Petitioners, v. COUNTY,
THE SUPERIOR COURT OF RIVERSIDE Respondent; RANCHOS, TEMECULA Real Party Interest.
Counsel Katzenstein, Counsel, Lorenz, Alhadeff, William C. County & Cannon Rose and Steven W. for Winton Petitioners.
No for appearance Respondent.
Best, &Best Michelle Krieger, Ouellette and Jury Meredith for Real Party Interest.
Opinion TIMLIN, Acting P. J. underlying action to which this writ petition The relates ais mandamus and declaratory relief injunctive proceeding brought by against Temecula Ranchos (County), of Riverside County which Temecula Ranchos challenges of a residential County’s approval
housing on the basis that determined that project County improperly will have project not effect on the and issued a significant environment negative declaration to that effect as to the The project. question presented filed in this court is whether Temecula petition Ranchos complied with the statutory for service of its for administrative requirements petition mandamus under Public Resources Code section 21167 contained (petition) in Public (a).1 Resources Code section We conclude the latter section of the Public Resources Code does establish action, procedure obtaining jurisdiction over County underlying but that the failure to serve personally on within the County specified period was not fatal to Temecula Ranchos’s action.
I History Underlying Procedural Action procedural history action is not underlying subject dispute. 28, 1993, County filed the negative declaration on January notice posted on On January 29. February Temecula Ranchos written gave action, notice to its intent to commence the and then filed its 3,1993, on February 1993. On March Temecula Ranchos served County with conformed of the summons2 and the “Notice copies petition, Commencement,” and a of Record “Request Preparation of Proceed- ings.” This service was made mail and there is no contention that *5 (italics pertinent part, 1In provides section 21167.6 as supplied): follows “Notwithstanding law, any 21167, provision other brought pursuant in all actions except to Section those involving the Public Utilities Commission: filed, “(a) At the time the action is request respondent shall file a public agency prepare proceedings relating the record of subject to the of the action. The request, together petition, shall be served upon public agency not later than 10 days business the action is after filed. “(b)(1) The public agency shall prepare certify and proceedings record of not later days than 60 request specified after the in subdivision upon public is served agency. . . . “(2). .............. .................. “(c) The (b) time limit established may be only upon stipulation extended parties of all properly who have been served in the proceeding upon action or or order of the court. . . . “(d)................................ “(e) The superior clerk of the prepare court shall and certify the clerk’s transcript on appeal not later than 60 after the notice designating papers or records to be included transcript the clerk’s superior is filed with the court .... “(f) period Extensions of the any brief appeal only by on be allowed stipulation parties good order of the court for cause shown. Extensions shall be limited .... “(g)...............................” (Italics added.) below, we 2As discuss the statutes do not appear to require that a summons be served in 8, 10, proceedings. (See mandamus fns. post.) of Civil any with of the substituted service of the Code complied provisions Procedure.3 an 23. This
Temecula Ranchos then filed amended on March March there is petition was served on on no personally County contention that this service did not comply personal require- with service ments of the Code of Civil Procedure. On moved April quash “summons,” service of motion which was directed to the purported 3,1993. (Code on March It also moved to dismiss the action.4 Proc., 418.10.) Civ. It that as to California argued Quality Environmental Act actions commenced under Public Code Resources subdi- (b), 21167.6(a) vision Public Resources Code section 10-business-day sets a time limit for service of the which time limit is petition, jurisdic- tional. Temecula As Ranchos had not service on accomplished proper County within this period, County claimed that was entitled to dismissal. Presumably County intended that the court also should second quash service made on March 29 as the motion not untimely, although entirely was clear on the requested relief.
In response, 21167.6(a) Temecula Ranchos argued that section a statute notice, governing not jurisdiction, that under the service the Code Civil Procedure its personal service of amended petition on March 29 was both and effective timely for jurisdictional purposes.
The trial court found 21167.6(a) that the service requirement of section was jurisdictional, not thus agreeing Temecula Accordingly, Ranchos. it denied County’s motion and this petition followed.
II
Discussion A. Principles General Applicable in Interpreting Statutes *6 specific
The issue before us is whether Public Code Resources 21167.6(a) the provides exclusive procedure by which a opinion, 3In this we extensively, refer and to the exclusively, Code of Procedure and Civil the Public Resources frequently Code. We specify will the code in a statutory intended reference, but, the interests stylistic simplicity, may specification we omit such where the context makes the intended generally reference clear. We also the delete awkward text, refer, repetition of subdivision references example, and to “section 21167.6(a).” 4Improper challenged or invalid service quash, mandatory motion but if a time period made, has expired no valid (See service can be proper. motion dismiss is also 1118, DeMag, Mannesmann Ltd. Superior (1985) v. Court Cal.App.3d 172 1124-1125 [218 Cal.Rptr. 632].)
836 under over section 21167 or acquires jurisdiction public agency, whether it serves a notice not only supersede general function does of the Code of Civil service and the respect Procedure with time limits within which it must be accomplished.
It is axiomatic that statutory “language unambiguous is ... . clear and 873, there (In (1985) is no need for construction.” re Lance 886 W. 37 Cal.3d 631, view, 744].) 694 P.2d In under Cal.Rptr. our the statute consider- [210 ation is not as to service of the and the thereof unequivocal method on the public agency so as to have caused the trial court to have jurisdiction Thus, over the we agency. to “ascertain the intent of the attempt Legislature (Estate so as to effectuate (1990) of the law.” MacDonald 51 purpose 262, 153, 911].) Cal.3d 268 In 794 P.2d so we strive to Cal.Rptr. doing, [272 (In reach a (1979) reasonable result and to avoid absurdities. re Eric J. 25 522, case, 317, 549].) Cal.3d 537 Cal.Rptr. 601 P.2d this neither of [159 unreasonable, proposed is absurd or and the interpretations parties intent of the Legislature cuts both ways.
We begin our with observations analysis concerning overall and structure purpose (CEQA California Environmental Act Quality Act), Public Resources Code section 21000 et seq. Temecula Ranchos CEQA out that points was enacted with obviously designed and the intent to environment, protect and that it has often been as interpreted provide wide a protection possible. as The Court has Supreme confirmed repeatedly “ ‘to be such manner as interpreted to afford fullest possible to the environment within protection the reasonable scope ” (Laurel statutory language.’ Heights Improvement Regents Assn. v. 376, 426, University (1988) 47 Cal.3d 390 764 Cal.Rptr. [253 of California 278], P.2d quoting Supervisors (1972) Friends Mammoth v. Board Cal.3d 1049].) 502 P.2d Cal.Rptr. [104
However, while these are precepts to the substantive validly applied merits of CEQA, in challenges brought under which it is asserted that certain environment, will or projects have a significant effect on the that does not mean that the same standard of liberality should be necessarily applied interpreting procedural requirements Act. Act contains a number of provisions evidencing clear “legislative determination that the interest public is not served unless under are filed challenges (Oceanside promptly” Marina Towers Assn. v. Community Oceanside Devel opment Com. 910]), and the *7 same must policy be said for certainly similar which that require action, filed, CEQA once be diligently heard as prosecuted and soon as reasonably possible.
837
Thus,
Code
statutes of limita-
Public Resources
section
establishes
CEQA
run
challenges;
tions
various
these statutes
from 30 to 180
governing
statute
of far shorter duration than
civil
of limita-
days—periods
typical
Proc.,
337,
(Cf.
tions
civil actions.
Code Civ.
subd.
controlling common
§§
338,
contract,
(b)—three
for
1—four
on written
subd.
or
years
years
trespass
injury to real
340—one
Public Re-
year
personal injuries.)
property,
sources Code section
subd.
that a settlement conference
requires
served,
scheduled
and held
petition
be
within
after the
within 45
days of service. Public Resources
requires
peti-
Code
21167.4
CEQA
in a
tioner
on the
within 90
proceeding
hearing
request
dismissal,
days of its
be
filing,
subject
gives
while section 21167.1
general
CEQA
trial
civil actions. Pa-
preference
actions over all other
CEQA
there
tently,
concern
with their obvious
legislative
challenges,
for financial
and
not be
potential
prejudice
disruption,
permitted
must
drag on to the
serious
of tiie
interest.
potential
Recog-
real
injury
party
abuse,
this
nizing
Valley v. Board
potential
Goleta
Citizens of
Supervisors
(1990)
1161],
Inevitably, the policy of encouraging protection environmental through statutory mechanisms for challenging allegedly improper actions sometimes CEQA conflicts short times and the limits of policies served such limits. clear,
Where the law is these strict are requirements of as applied written; in Lee v. Lost Hills Water Dist. 633-634 510], for the court example, held a even petition untimely though the petitioner landowners asserted that had never received notice they Towers, action they wished to challenge.5 Oceanside supra, Marina petitioners argued that short period (b) of section did not bar their apparently tardy because the notice of negative declaration had been posted by the respondent rather than the city, redevel- opment agency which was the “lead actually (see in the agency” project Pub. Code, 21067); Resources the court found city that as the and the agency same, were essentially the the statute had run time begun to at the of posting, and the action was barred.
Nevertheless, that, circumstances, it appears under certain the courts have construed procedural so unique as to requirements permit time, observed, 5At that as the court the statutes did not notice to require specific affected landowners. *8 838
maintenance of a challenge for noncompliance despite some failure the arguable to fulfill the Act’s petitioner procedural requirements suit, the maintenance of such a or the of a colorable construc- proffering Mesa, In Concerned Inc. tion unfavorable to the Costa petitioner. Citizens of 929, Agricultural v. 32nd Dist. Assn. (1986) 42 Cal.3d 939 Cal.Rptr. [231 748, 1029], 727 P.2d the court was faced with in a situation which the responsible public had an agency duly environmental re- prepared impact but then port, had approved substantial to the without changes project any notice to landowners. The surrounding landowners had not filed suit within the allowed 180-day which to period attack a after its commence- project However, ment. the court the permitted action to based on the proceed assertion that had not been changes reasonably apparent during It statutory period. interpreted clear chal- apparently language6 limiting lenges to a filing of 180 period days following commencement of a project, an running the time in provide actual limitations period days from which the changes substantial project apparent. became reasonably In so language from Friends Mammoth quoted holding, court repeated above, stressing importance of statutes to interpreting give “fullest possible” protection. Mesa, Inc.,
In Concerned Costa Citizens of of Public interpretation 21167, Resources Code section subdivision the court was applied by necessary an obvious prevent as well as injustice, to discourage public agencies from similarly to hide attempting changes approved projects then claiming from invulnerability suit based on the short limitations period. Here, no factor of works impropriety against favor of Temec- ula Ranchos. in other cases the reported courts have adopted interpretations favorable to when petitioners reasonable were alternatives proposed, and even where the petitioners have been at fault. First, Murray Lake City Area Assn. v. Citizens Council (1982) 436, 123], 440-441
Cal.App.3d the court held Cal.Rptr. [181 that the 30-day period established Public Resources (b) Code section subdivision did not start actually to run until notice of the of a adoption negative Mesa, declaration was Concerned as in Costa posted—although, Citizens of Inc., the statutory language was clear in apparently providing for an earlier date, is, triggering alone. Mitchell Orange upon filing of the notice v. County 563], the court rejected respondent County’s argument that Public Resources Code which requires a petitioner “request hearing within 90 filing the petition” meant that the be conducted or set had to hearing within that period; court held that the obligated statute only 6The court conceded that “. . . if the (a), of section are applied literally, (42 the action is barred.” 937.) Cal.3d at p.
839 was actually that the petition 90 not to see days, to make the within request Supervisors in McCormick v. Board within that period. Finally, calendared of 617], that the court held 359-362 198 Cal.App.3d under necessary request a who failed to make dismissal, rely nevertheless could mandatory and who therefore suffered a in relief from the dismissal. seeking section 473 on Code of Civil Procedure if we conclude In to reconcile the two attempting public policies, terms must unambiguous its fairly, statute is clear on its face operates (Lee, 78 CEQA supra, challenge. even if the result is to bar a prevail Towers, 735.) 630; 187 supra, Cal.App.3d Oceanside Marina Cal.App.3d However, encour if or unfairly might even a clear statute facially operates (Concerned the challenger. it should be construed favor of age deception, Mesa, 929.) may 42 If reasonable minds supra, Costa Cal.3d Citizens of other differ its meaning application light on of a provision resolved such conflicts and should be statutory provisions, any questions (McCormick, a manner which under permits challenge proceed. 352; Mitchell, 1185.) supra, supra, 198 165 Cal.App.3d Interpretation 21167.6(a) B. the Petition Regarding Section Service of that,
Neither for disagree principle party appears and consistent with constitutional purposes obtaining personal jurisdiction due must service of a for an administrative writ of mandate process, inbe the same manner civil action. required any fact, are statutes far from clear. Code of Civil Procedure section 1107, which if service of writ states that an specifically governs petitions, writ, is made for the “. application appli- issuance of an alternative . . cation shall be thereof accompanied by proof upon of service of a copy respondent and the real interest named in such party application. 1010) Section of Title of Part provisions Chapter (commencing with 2 shall to the service of the Section 1010 et apply application.” seq. governs motions, service of service mail as an expressly permits simple Proc., Thus, (Code 1012.) alternative to service. Civ. such service would if be sufficient an alternative writ were sought. presumably Code of Civil Procedure section on to goes provide alternative no writ is and the will “. . . sought, hearing, be set action be filed and served in the an action ordinary same manner as under Part 2 307).” with Section the issue is (commencing muddying Further Code of Civil Procedure section which provides expressly more liberal service notice do “to service of not apply summons or other or of into process, any paper bring party contempt.” This statute’s reference to confirms the contempt proceedings Legislature’s that, rule, intent as a are to establish specific procedures necessary in a jurisdiction sought. mandate where an alternative writ proceeding is not words, In other jurisdic statutes first to authorize appear acquisition *10 however, tion “notice-service” an by alternative writ is the statutes sought; to which reference made is caution that such service is not sufficient not confer The in jurisdiction! use of who does “may” authorizing party seek an alternative writ to use more formal service procedures applicable Proc., to commencing civil action et any (e.g. seq.) Code Civ. § 412.10 authorization; however, indicates a discretionary why would elect to follow the more difficult if notice-service was procedures permissi ble for obtaining jurisdiction? (which minds) confusion in exist our cleared only may up by be 1096,
an examination of Code of Civil Procedure which provides section writ, writ, that a including an alternative be in manner must served the same Thus, as a summons a civil although action. notice-service of the appli- cation is sufficient under Code of Civil Procedure section 1107 to obtain writ, alternative service of an alternative writ before a personal necessary is view, trial or can In hearing be had. our use apparently optional Code of Civil Procedure service of process by authorized section procedures 1107 for mandate proceedings where no alternative writ fact sought, another, At one mandatory. stage or either the personal service of alternative writ or the must be made.7 Younger Jordan
Although (1954) v. opinion Cal.2d 757 [269 P.2d does not discuss section we 616] think the reminders therein are concurring 7The opinion argues that it is inconsistent to follow the service Code of Civil Procedure at the same time that we interpret Public Resources Code section superseding 21167.6 as the time in which governing the statutes in that code must be made, as we explain below. inconsistency. There is no Section 21167.6's clause “Notwith standing any provision other of law” only can establish that precedence statute’s over other matter; arguably statutes covering subject the same' reasonably it cannot be construed as cancelling all other laws. While section forth rules for the time in which service sets 21167.6 made, Thus, must be it does not purport the manner. govern we adhere to the standard rules contained in the Code of Civil Procedure which cover the manner of service. We although also note that concurring opinion uses “Notwithstanding any other sufficient, provision of law” language support the conclusion that mailed service is concurrence’s that no approach logically leads to particular the result form of service is required in “Notwithstanding any cases. If provision personal other of law” means that required, why service is not is even mailed authorizing notice needed—are not the statutes mailed notice similarly supplanted? Why cannot a be by publica- served dropping flyers tion—or from an airplane? “service,” art, context, point Our is that in this nothing is a term of and means until it is by defined statute. The introductory simply clause of Public Resources Code section 21167.6 cannot be used to blot out statutory process, the entire as framework for service of insofar does, course, statute for time of service. provide does not alternate rules—as it case, because the declined to rule on a petition instructive. court form either service “or some by notice given personal real had not been party law,” Code of Civil referring to service which is authorized of substituted not necessarily It is that due does process section 410 et true seq. Procedure service, even within a state. be obtained jurisdiction personal require 314-315 (See Hanover Bank 339 U.S. Mulleme v. Central 873-874, traditionally 652].) California has L.Ed. 70 S.Ct. due after the exercise of service unless it is not possible required mind, we do foregoing accept parties’ With discussion diligence. here for agreement necessary that such service was implicit purposes. 21167.6(a), is that Public Resources Code
County’s position statute, Temecula Ranchos’s failure being jurisdictional personally causes *11 fatal. serve the it within the time limits of the statute to be petition on Re- the in the of Public language relies on opening paragraph 21167.6(a) govern sources Code section the effect that its shall provisions to in footnote “notwithstanding other of law.” As set forth any provision ante, section 21167.6 contains several it is not provisions. Although distinct at all obvious that the cancel general designed any specific was out proviso statute, we must over agree prevail of section 21167.6 provisions directly contradictory other statutes. For Code of example, 1094.6, (c) Civil Procedure section gives public agency subdivision in which days to the administrative record relevant to most admin- prepare (b) istrative mandamus Re- subdivision of Public proceedings. Obviously, 21167.6, sources Code section which days, con- requires preparation CEQA trols in matters. however, 21167.6, (a),
Public Resources Code section subdivision con- tains arguably two severable one to the of a provisions, relating record, request the administrative and the public agency prepare other to the service on the request petition agency. Consequently, the subdivision aas whole does not have a direct over which it counterpart file prevails. to requires petitioner (presumably court) a that the local the administrative record. “The request agency prepare request, together with a of the served copy petition, upon public shall be not later than 10 after the filed.”8 agency business action is Subdivision record, (b) sets out the time limits for but also preparing provides alternatives to the local preparation by agency—for example, 8Public Resources Code use the terms “ac sections 21167-21168.5 in different contexts “proceeding” “petition” “complaint,” though apparent tion” or or it seems that a even challenge basic approval under section 21167 to of a is one for administrative project mandamus under Code of Civil Procedure section 1094.5. case, course, petitioner elect to prepare record itself. such a It “Request to under subdivision would not be is far Prepare” necessary. (a), from obvious that subdivision which includes service of the itself petition almost as an to the to was afterthought Prepare,” service of “Request intended to in a the exclusive basis for service of the provide petition jurisdictional sense. The could as be copy just reasonably considered as essential to ensure that the local knows what public agency record is to be prepared.
The counter to this which we find is that argument, weight, of considerable the need for notice of an attack under by agency public impending Public Resources Code section 21167 is satisfied already by (intended) which com- requires the to serve mail notice of the petitioner mencement of the action even filed. This notice must identify before notice, project being After of that the local would challenged. receipt agency then know what record should be when it received the prepared “Request view, Under this is not Prepare.” copy necessary provide notice, and the that it be served with the requirement “Request Prepare” may logically be viewed as service.9 referring
This conclusion is in a buttressed the fact that a plaintiff CEQA action limited to those issues which were raised by objections administrative or at proceedings similar before the hearings public agency. Code, 21777; (Pub. Resources Browning-Ferris City Industries v. Council *12 575].) if Even public declaration, agency tentatively determines to issue a notice must be negative given and interested must be an to comment. parties provided opportunity Code, (Pub. 21092.) Resources §
Thus, a does need in public agency not to see a of the order to copy raised; know CEQA what issues be may although petitioner plaintiff may action, CEQA eliminate in issues its agency cannot be public surprised the addition of new The objections. service Public Resources required by Code section 21167.6 would be redundant if viewed as “mere notice.” argues least) therefore at that the (by implication, “other provision law,” service, of which does not Civil apply respect to is Code of 583.210, Procedure (a), subdivision which an limit three sets outer for service of a in years summons and a civil action. complaint of Temecula in in in position Ranchos is reflected the discussion part A, II ante. It part CEQA relies both interest in upon public compliance and the in public interest resolution that the service speedy by arguing 9It be proceedings, (See should noted that in mandate the traditional summons is not used. Proc., writ,” Code simply providing Civ. for service of “the and the § [alternative] discussion.) above litigation under are intended to “facilitate” merely discussion requirements notice, the failure to and to while also contending provide prompt in a with such does not result forfeiture of comply requirements jurisdiction. juris- it would argues require
Temecula Ranchos be unreasonable dictional service within 10 business of a filing petition. Act, in in detailed light set forth and expedited procedures part above, we do have estab- agree Legislature logically not could not lished an It to be short time which to service. exceptionally perfect noted that service on a the difficulties some- public agency rarely presents individual; times encountered an finding personally serving Proc., 416.50, designated (see representatives for service Code Civ. subdi- Thus, (a)) vision be assumed to be to find. service within 10 easy business days should in most cases be neither burdensome nor impracticable.
We observe that Temecula Ranchos’s position requires acceptance one significant 21167.6(a) anomaly. Public Resources Code section requires service, aof If copy this is not what is petition. jurisdictional point duplicative requiring notice-service within a short time span? 583.210, Even if we were agree that Code of Civil Procedure section governs, allows a three which petitioner years service, to achieve it is obvious that this time lengthy illusory period because the time in CEQA limits contained itself jurisdictional compel service, if not within 10 business then at least within more than a days, no few weeks.10 Under Temecula arguments, Ranchos’s action, give must notice of commencement of the then within 10 business days of serve a “notice” and then copy petition, within no more than a few more weeks formally serve another copy case, petition to acquire jurisdiction. But this is the either the section 21167.6 service is redundant as notice-service notice following required further, under Public Resources Code section or a *13 above, service, 10As mentioned a settlement conference must be days held within 45 petitioner a request hearing must a days within be petition. 90 It would illogical require to that a petitioner request hearing date until it is clear that settlement failed, efforts have requires and the statute also parties jointly prepare post- to statement; thus, settlement-conference procedure smoothly, jurisdictional is to work Furthermore, service could not possibly be made filing. public more than six weeks after agency must prepare the record days being within 60 served with the request do so. It many would in cases preferable be that the petitioner’s request hearing for a not be made until evaluated, the record had been reviewed arguments and the details of its so that a reasonable given. time estimate could be If the record prepared days be within the in which a 90 hearing requested, Legislature must be reasonably could not have intended that service of the petition be made more filing. than 30 calendar after its we decline either limit, by judicial to establish fiat such a expressly approve any fixed outer or to made service within 30-day period. this service must follow the heels of the section 21167.6 service. swiftly upon construction; We decline such a we think it more reasonable not to assume that the intended Legislature blizzards of promulgate unnecessary paper- work.11 we contention that the Finally, reject any Legislature’s use term unqualified “served” rather than served” in 21167.6 “personally section positively reflects an intent that such service is not for designed jurisdic- does, course, tional purposes. Although per- service” confer “personal sonal jurisdiction, it is not the which be only by jurisdiction may means such met, obtained. Where the also conditions are such statutory jurisdiction service, service, conferred by substituted mailed or even service by publica- Proc., Thus, (See tion. Code 415.10-415.50.) Civ. could Legislature §§ service, not have used the term jurisdictional served” to indicate “personally because the term would have Conversely, been limited. improperly absence of the word “personally” jurisdictional is not an indication that service is not intended. In Whitman Supervisors (1979) v. Board fn. at 866], the held court notice prefiling required
section 21167.5 jurisdictional was not and that failure did not comply compel dismissal. The court relied also on the fact that the case had substantially so that no complied requirement, prejudice However, Whitman, existed. while consistent with cited those cases above which liberal adopt CEQA constructions of favor of provisions peti- tioner, is not persuasive respect to a for service of statutory requirement petition itself.
We conclude that 21167.6(a), Public Resources Code section read in light CEQA of the numerous other procedural which require prompt matters, prosecution encourage speedy resolution of does include requirement service of the petition proceed- ings. (or Temecula Ranchos did not accomplish service any accept- able alternative service) method of on March 1993. service mail did not conform to the requirements of Code of Civil Procedure sections 415.20 or The statutory jurisdic- 415.30. requirement service, therefore, tional was not satisfied. not, however,
This conclusion does lead to the further automatically result that was entitled to have the services of the purported and the quashed action dismissed. Although service is “jurisdictional” might argued 11It be 21167.6(a) that unless the prescribed by confers *14 jurisdiction, public agency is compelled comply not to with the request prepare to record. we think that the statutory regard, although mandate would suffice in this arguably a court could not jurisdic enforce the or duty by contempt personal otherwise until acquired. tion was
845 over jurisdiction to obtain and sense that it is intended confer defendant, the action enabling Temecula Ranchos to prosecute thereby in the that the court “jurisdictional” is not sense against County, it if not timely completed to service is proceed deprived power accordance with the statute. above, serve its amended Temecula Ranchos did personally
As recounted 29, this was too County argues on on March 1993.12 petition County late, We was closed. obtaining jurisdiction and that the “window” for disagree. actions, three civil service of must be made within general summons Proc., 583.210, (Code results (a).) Civ. subd. Failure to do so
years. § 583.250.) (Id., The same time a dismissal of the action. mandatory § enacted cover the failure to limit/mandatory dismissal has been to coupling (Id., a civil action trial retrial within the bring periods. or specified 583.310-583.320, 583.360.) §§ Public Resources Similarly, provides Code section 21167.4 does not within petitioner hearing filing 90 request petition, the to dismissal.” The statute has been construed petition “subject (San City as mandatory.13 Franciscans Reasonable Growth v. (1987) 527].) A San Francisco 503 Cal.App.3d Cal.Rptr. 189 [234 failure petitioner’s justifies the settlement also participate procedure 21167.8, Code, (Pub. dismissal unless cause is Resources good shown. (g).) subd. contrast,
By no for a comparable mandatory statutory provision provides or discretionary dismissal court for the failure of perfect 21167.6(a). service of the within the petition by section period prescribed We find this absence significant. course,
Code of Civil Procedure section mandates dismissal only for failure to with the article of which it is a As Public comply part. 12We have not provided copy been with a of this and therefore we cannot amended determine original whether it differed any significant respect, from the or whether represented only clarify amplify allegations original. an effort We do recognize that amendment a pleading respect originally party to an named does not (Nelson summons. any (1983) restart v. A.H. Robins Co. mandatory time for service of 149 179]; Perati v. Cal.App.3d Atkinson Cal.Rptr. Cal.App.2d [197 835].) We agree therefore cannot with the concurring opinion’s position date; service of the filing amended “related back” to “relation we believe that the applies only back” doctrine complying to the timeliness of a purpose tenably argued statute of limitations. It cannot be action who regular that a civil party to a complaint years pleading failed to serve the for two and eleven an amended months could file thereby three-year period obtain new in which to service. complete Supervisors, McCormick v. Board 13But see supra, 352. *15 article, 21167.6(a) is not a statu- part Resources Code section of that strict that tory construction dismissal requires assumption mandatory mandamus, instant action and and injunctive for administrative declaratory relief is an If intends that the failure to remedy. Legislature not available comply unusually process a and short for service of specific provision dismissal, in it a action shall result an automatic particular presumably knows how to so. say
For Code of Civil that example, publica- Procedure section 863 requires tion of summons in a made within 60 quasi-validation days action must be dismissal, after good is filed. Failure to do unless complaint requires so However, cause is discretionary shown. this with its provision, exception, appears recognize may that the short for service cause period prescribed (See and City Superior Ontario v. Court Cal.3d hardship inequity. 693], 466 P.2d which the court remarked that the strict time limits of validation statutes a burden” imposed “heavy even on a felt that a “vigilant taxpayer.”) Presumably, Legislature of 60 in which period days might unreasonably to achieve service operate cases, in some it could that a of 10 unfairly consistently period have believed business days jurisdictional salutary service of a while a petition, actions, encouragement to the of such should not be expedition rigidified into drastic effect we by of dismissal.14 Nor do believe remedy justifiable to assume that the a mere omission of such a was provision (b) It Re- legislative oversight. is to be noted that subdivision of Public terms, sources Code section 21167.6 that requires, similarly “mandatory” the public agency shall the administrative record within 60 prepare days However, notification. statute silent as to the consequences failure We agency’s to do so. assume that would disagree that a position local which failed to would be agency comply subject default, and, view, automatic remedy our would be too severe. this case, County for an argues analogous sanction of dismissal of the mandatory 14We also note that Code of Civil Procedure section provides service public agency only by be made on a not personal service on Proc., also, designated (see representative 416.50), Code Civ. but as a valid alternative instance, method summons by leaving in the first copy complaint in the office served, person mailing to be copy then to that address. not such service is complete days 21167.6(a) deemed until 10 mailing. after the If Public Resources Code section dismissal, strictly were implicit construed to include the remedy service this method extremely would be complete timely “acknowledg difficult in a Service manner. ment and receipt” permitted by method Code of Civil Procedure section 415.30 could never be employed, because responding party may acknowledgement delay for 20 from thus, mailing; date of plaintiff facing 21167.6(a) the section limit would run the risk that might the time for service expire and that the responding party respond, would in fact not thus making the legally ineffective. We have construed Public Resources Code these section 21167.6 in a manner which allows allowable service alternatives to be useful in actions. *16 action, and we the by Legislature which is not remedy expressly provided decline to create it.15
We Resources Code section hold that the time of Public requirements 21167.6(a), service of the on jurisdictional while do to they apply if such include dismissal public mandatory do not agency, implicitly CEQA are not service is not made within such limits. While the purposes (Citizens Valley Super- v. Board Goleta served by dilatory prosecution visors, supra 52 553), neither are served a draconian sanction they by Cal.3d harm which causes no real for a violation of a service of process requirement to to a section 21167 action. respondent dismissal of the mandatory statute’s omission of remedy not, however, without recourse entirely
action does mean that a defendant is above, a a tardy bringing for service of the As discussed petition. if it meet the action cannot service of the is to unduly delay cases, time suffice to ensure other limits of the Act. most these limits will that and and that are not prosecution diligent speedy, respondents is However, in the prejudiced by delays we do not condone delay. ordered Public Resources Code section and the courts a scrutinize the excuses for such a raises properly delay respondent proper challenge. control,
The courts of this state have a inherent to power broad administer matters before them. this supervise, Although power concurring argues 15The opinion accept logical consequence that we must as the dismissal of our holding “jurisdictional that Public Resources Code section 21167.6 for provides above, service.” As we pointed “jurisdictional” out be used two senses. The term can jurisdiction fact that acquired party specified deprive is not over a a does not within time court jurisdiction proceed (1981) Superior with the case. In Hocharian v. Court 721, 714, 790, 829], Cal.3d footnote 3 Cal.Rptr. explicitly 621 P.2d the court held [170 the failure to complete summons timely in a matter is not in the sense that the deprives failure power the court of the (although power may act its be limited to determining established). exception nothing whether an to the dismissal rule has been There is conceptually viewing unusual about a mandatory, jurisdictional. statute as but not When Legislature dismissal is mandated for the a procedural step, failure to take relief, Proc., ordinarily (see provides “good an avenue for cause” Code whether based on Civ. Proc., 863) 583.230-583.240, (See, specific or exceptions. e.g., and detailed Code Civ. §§ creating exceptions tolling mandatory to the time in which to effect service of process.) hardly considering We can be more a strict in how to deal with failure take required step Legislature grounds when the has a sanction provide omitted to either relief from such sanction. It is true that subject the failure to take some cannot be the of relief under mandatory steps Code of Civil Procedure section we authorize In Wilcoxv. 473—the model for the relief here. 1170, (1988) 138], Ford example, the court Cal.Rptr. 1175-1179 [254 years. held such relief bring unavailable to excuse a action to trial within five failure to upon Legislature provided this rule is based has recognition where the limit, specific exceptions exceptions through to a time other engraft inappropriate application statutory of section 473. It need sanction not be absence of both applied in the and mode of relief. partially codified Code of Civil Procedure section it is not limited Constitution, the statute and from derives the state as based the historic upon of the courts. powers (Bauguess v. Paine 22 Cal.3d 635-636 942].) 586 P.2d Courts are thus authorized to fashion so, new remedial procedures when it is advisable to do order to deal with new (Cottle issues or protect rights v. parties. Superior Court *17 882].) 3 Cal.App.4th 1377 Cal.Rptr.2d us,
In the case before it is apparent that the intended to Legislature constrain a to petitioner service of the accomplish prompt petition. We have noted briefly above the within 10 practical fact that service however, business if days may not be always possible; we believe untimeliness, respondent the challenges service on the basis of the court cases, should require to some cause for explain delay. good exist; others, the failure in may genuinely have resulted from delay may an (See excusable oversight. McCormick Supervisors, supra, v. Board 359-362, at pp. holding the remedial Code of Civil provisions of Procedure section 473 to a applicable mandatory dismissal from a resulting CEQA plaintiffs failure to within request hearing filing.) court should then weigh any proffered excuse against any showing by respondent to it prejudice which attributable to the untimeliness of the service.16 discretion,
In the sound exercise of its may court then impose sanction, such a remedial as any, be to cure the effects of may necessary delay, action, including ultimate remedy of dismissal of the keeping always mind the dual in the principles facilitating litigation interest, public while protecting rights of respondents from abusive tactics. If the court should (or determine that a defendant real suffered party) service, irreparable harm from a delay would remedy be to quash traverse, 16In County (and its asserts that it project developer) has suffered substantial prejudice due to Temecula delay. Ranchos’s It prejudiced by contends it was the lack of personal on it precluded because this promptly noticing it from mandatory settlement conference under Public Resources Code County section 21167.8. makes no effort to detail how the delay brief in accomplishing any service had effect, prejudicial disputed County where it is not properly had been notified of Temecula Ranchos’s intent to sue and regular had been in petitioner’s contact with counsel since March concerning preparation possible the record and settlement conferences. below, made no showing better of prejudice and we inadequate find its statements to raise the issue. reject We County’s argument that we should delay occupied by consider these proceedings filed; from the date its quash motion to although County was was entitled to make such a motion and to seek review ruling, fairly complain of the trial court’s cannot it delay motions, about the so caused. approach Such an encourage parties would to make such seek immediate review rulings, of adverse prosecution in the of such procrastinate then to review proceedings in an attempt to create prejudicial delays. finds that cause or good the action. If the court service and then dismiss it shall order to neglect outweighs any prejudice respondent, excusable act be an idle to service. It would tardy to litigation proceed despite What is the point its technical impropriety. the service quash despite Therefore, if service? a late service a second late merely quashing require continue, whatever terms or the lawsuit should on the court determines that service, quashal it as a for the late remedy conditions impose Here, refusing result the trial court reached the correct improper. action, was reasoning its dismissing although service and quash erroneous. case, an excus-
We conclude that this Temecula Ranchos acted out of law, here able mistake of as the closeness of the demonstrates question being failed demonstrate from not County utterly any prejudice *18 of days served with a within business copy petition personally It us grant petition, of would be a fruitless act for to petition. a order the trial court to and then to conduct grant quash to motion a hearing making consistent with the discussion for the foregoing purpose untimely determination whether for the a remedial sanction was proper service of the petition. The
The alternative writ having hereby discharged. served its purpose, for writ of denied. petition mandate/prohibition is J., Dabney concurred.
HOLLENHORST, I I concur the result but with completely disagree J. the reasoning of the The has misconstrued Public majority opinion. majority 21167.6, (a) Resources Code section subdivision to reach a result which jurisdictionally limits the time within which a mandate petition alleging California (CEQA) Environmental Act violation be served to 10 Quality view, days. my such a narrow is not Public holding compelled by 21167.6, (a) Resources Code section other any subdivision provision law.
I read the majority following to rest on conclusions: opinion 21167.6, (a) includes a 1. Public Resources Code section subdivision for service requirement proceedings. 21167.6, “service,”
2. The term as used in Code section Public Resources (or (a), service an alternative method means personal acceptable service). 3. The failure within 10 personally original serve complaint the validity affects of a filed and served amended timely complaint. 4. the failure to is not re- Notwithstanding jurisdiction, obtain dismissal out law. quired petitioner acts of an excusable mistake of I with each disagree of these conclusions. 21167.6,
1. Public Resources Code Section Subdivision Does Not Requirement Contain a Jurisdictional Service. for The action writ and a underlying consisted of of mandate The complaint declaratory injunctive brought relief. writ was review the administrative detíision to Code of Civil Procedure pursuant sections 1085 and 1094.5.
Service of the writ was therefore Code of Civil governed by Procedure section “When 1107: an is filed for the issuance of application writ, any shall be prerogative application accompanied by proof thereof and the real interest copy upon respondent party named in such application. (commencing provisions Chapter 1010) Section of Title 14 of Part shall service of apply However, when application. sought a writ of mandate is pursuant *19 in provisions of Section the action be filed and served the same 307).” manner as an action under 2 ordinary (commencing Part Section Court, Accordingly, 56(b) California Rules of rule that the provides shall be accompanied by of service on both the and the real proof respondent in 1(b) interest and local rule of party the Fourth District Appellate requires in personal service all cause shown. original proceedings except good another, The majority therefore concludes that one or opinion stage “[a]t service of either the alternative writ or the must be made.” ante, 840.) (Maj. opn., p.
The holds that majority although these sections to the manner of apply service, CEQA are overridden in they actions as to the time of service by 21167.6, (a). Public Resources Code section subdivision That subdivision law, in other of all or provides: “Notwithstanding any actions provision [j[] (a) proceedings brought pursuant to Section 21167 . . . At the time the filed, action is the petitioner shall file a that the request respondent public the record of agency prepare to the of the action proceedings relating subject The proceeding. together shall be served request, petition, upon not public agency later than 10 after the action is filed.” business Public Resources Code section shortened time limits for 21167 provides out, CEQA actions. As the majority these reflect opinion requirements points diligently. filed and CEQA prosecuted a concern that actions be promptly Code section that Public Resources concedes majority we must therefore and that ambiguous is at least of to effectuate the Legislature purpose construe the intent of the attempt the law. out repeated The undertakes this task first majority pointing “ in such CEQA ‘to be interpreted
admonitions of our Court that Supreme within manner as to afford the fullest environment possible protection ” (Laurel Heights Improve the reasonable the statutory language.’ scope 376, Regents (1988) ment 47 Cal.3d University Assn. v. of California 278], v. Mammoth 764 P.2d Friends Cal.Rptr. quoting [253 Board 502 P.2d Supervisors 8 Cal.3d 1049].) Having grounds stated the fails to on proposition, majority apply Nevertheless, CEQA that the defect neither was not substantive. procedural, nor our Court Supreme procedural differentiates between substantive defects. The in result of a narrow is the same either case—the interpretation environment is left unprotected.
Public Resources Code sections 21000 21003 state the through purposes detail, and we need The not them here. repeat point overall is not served if an purpose protection ambig- environment uous statute is construed such a as to foreclose review of way judicial environmental decisions. relies majority on fact that short provides unusually Thus,
limitations in which periods actions must be Public Re- brought. sources Code section for a 30- to which to provides 180-day period an action. Such bring actions are also given statutory preference Code, (Pub. hearing or trial 21167.1) Resources be dismissed they may *20 Code, if they are not filed (Pub. within the time required Resources 21167.2). In view of the a potentially significant may costs which be incurred when project is the delayed, that actions be filed within a short requirement period of time and prosecuted is not unreasonable. Thus Public Resources diligently Code section 21167.4 the within requires petitioner request hearing of the days filing and Public Resources Code section 21167.6 petition, the requires petitioner of the record within 10 of request preparation days petition. service, The section only dealing with Public Resources Code specifically 21167.5, only that of commencement requires proof written notice This of the action be section, to the and filed with the initial given agency pleading. case, to establish which was with this has been said complied (Whitman v. jurisdictional requirement a notice not a merely requirement, Supervisors Board fn. 866].) Code section 21167.6. On its The same should be true of Public Resources face, request with of the record within 60 Even the preparation days. it deals the elect to may prepare for is not for the preparation mandatory, itself, alternative method of agree preparation record or the to an parties may the (b). If can under subdivision is not how service request mandatory, mandatory? with the be request, together petition, but mandatory, be not majority only finds service requirement for jurisdictional. prepa- It elevates an alleged requirement request record, within 10 ration of the be served together petition, thus By action. jurisdictional prosecution for the requirement in which a short-fiise to the short time adding very requirement already very majority ignores action be undercuts brought, CEQA, which review to ensure that judicial is to allow purpose majority of its action. The agency has considered the environmental effects even could as just does so while conceding copy “[t]he agency be considered as essential to ensure the local reasonably public what knows record is to be prepared.”
I would select the reasonable which is accordance interpretation 21167.6, and find that Public Resources Code section statutory purpose (a) but rather a notice jurisdictional requirement subdivision is not a service provision. 21167.6, (a)
2. Code Section Does Not Public Resources Subdivision Requirement Contain a Personal Service.
After that Public Resources Code section concluding contains a majority leaps to. requirement, conclusion that the service service. It does so personal required the time and the manner of service. It distinguishing applies between with the Public Code of Civil Procedure service sections personal together time limits service of Resources Code to create a requirement days.1 within 10 Since the finds that the majority introductory “notwithstanding any phrase *21 other law” the Code of Civil Procedure provision preempts that, majority “notwithstanding any provision 1The other although concedes phrase the beginning law” at the of Public 21167.6 would have the effect Resources Code section actions, it the Civil disregard should Code of provisions logically Procedure interpreting allegedly special jurisdictional requirement 21167.6, so, (a). Public Resources Code section subdivision If it did it would find that “served” the within the of the subsec- petition meaning tion by mailing days, of the to the within 10 as copy agency the subsection. required by service, in the
Nothing subdivision and the term “ser requires personal constructive, vice” is generally used as an inclusive term to mean personal, mail, (Black’s (5th or other substituted ed. publication service. Law Dict. 1979) 1227-1228.) In pp. terms of the legislative intent discussed purported that, by the it majority, argued can be if the Legislature very did select a allowed, trade-off, short-fuse service it requirement, as a a less formal i.e., method of service on a public agency, service mail.
The majority thus applies Code of Civil when it Procedure suits reach, result the seeks to majority the Code of Civil Proce- disregards dure when it finds convenient to do It so. does so by artificially separating
the time for service from the method of service.
If 21167.6, Public Resources Code (a) section subdivision is to stand alone as a special jurisdictional statute requiring service of actions action, within 10 days of of the I filing would hold that deposit in the mail within 10 business days of the of the action is sufficient “service” to comply section. reiterate, however,
I my basic conclusion that Public Resources Code merely requires requisite request public agency a record prepare proceedings relating to subject the action to be accompanied by a copy petition. this way, agency is notice given of the record which is to be prepared.
3. The Majority Fails to Consider the the Amended Petition. Effect of discussion,
Without majority rejects county’s contention that 29, 1993, service of the amended petition on March was untimely because statutes, prevailing directly contradictory over in other the subdivision in issue ante, here “does not have a 841.) direct counterpart (Maj. prevails.” opn., p. over which it Nevertheless, the majority finds that phrase Code eliminates of Civil Procedure time service, restrictions but not the manner of specifying sections service. *22 The therefore majority had closed.2 jurisdiction “window” for obtaining the date. made at a later that a valid service could be concludes apparently date, The timely. the servicé was If made at a later valid service could be 29, 23, 1993, and served on March was filed on March amended petition even the therefore satisfied than 10 later. This service days less Code section view under Public Resources restrictive of service majority’s even that subdivision.(a). request did not county Significantly, Instead, it that argued rejected. the service made on March 29th be closed, rejects. the majority was a position “window” for service would be not be made at the later date The reason valid service could only under timely would not be because the of the amended filing petition section 21167. in Public Resources Code limitations set forth 30-day period related the amended petition was because timely such petition “While it of limitations purposes.3 back to the date for statute original filing the time of filing the original, is true that an amended complaint supersedes the action date of commencement of is still the original complaint limitations, where a different wholly except for statute purposes (1986) 187 (Walton v. Guinn cause in the amended complaint.” is pleaded 451].) specified the 30-day period Since the was filed within original petition was commenced. timely Code section the action Public Resources action, I the same cause of the amended contained Assuming petition that related back find of the amended filing petition would that subsequent was therefore The amended petition the time of filing original petition. filed. timely had to be person-
Even if that the majority’s theory petition we apply was personally the amended filing, petition served within 10 ally of the amended petition. 10-day period following served within service. the motion to challenged quash This Thus, service was not jurisdic- even if Code section 21167.6 contains Public Resources met timely personal was requirement tional service requirement, service of the amended petition. that, statutory although alleged in the context of the conclusion only 2The discussion is satisfied, statutory was no basis for service was not there requirement for action. dismissal of the record, between appears that the differences correspondence 3From in the administrative original petition requested original petition and the amended were that the petition entirety. correspondence No. be set aside in its Riverside Resolution 92-565 cycle all fourth adopted this attack was too broad because the resolution suggested that then focused on one general The amended comprehensive plan amendments 1992. for the (CGPA 254), negative declaration the land-use and the approvals of those amendments is that the petitions two appears only between the
project here. It therefore differences project this alone. approvals amended narrows the focus the attack to the *23 Nevertheless, issue, the I disagreement with on this despite my majority not belief that Public Resources Code section 21167.6 does reemphasize my result, I that the jurisdictional contain service As a believe requirement. service amended sufficient obtain was to jurisdiction over the in a manner under normal agency timely rules. Statutory 4. Is Majority’s There No Basis Conclusion That a for an
Jurisdictional Be Acts Requirement Can Overlooked Petitioner out If Excusable Mistake Law. The for majority, having alleged statutory found that the requirement satisfied, jurisdictional logic service was its own not refuses to follow the petition. dismiss
Perhaps strongest from this my disagreement majority arises The refusal. majority, immediately after that it declines to create a stating dismissal, dismissal because the has remedy Legislature not for provided proceeds to create its own finds that remedy.4 majority Specifically, are authorized thus to fashion new remedial when it is “[c]ourts procedures so, in advisable to do order deal rights with new issues or protect ante, 848.) the parties.” (Maj. opn., p. brief, the majority’s new move procedure respondent to requires on
dismiss failure of service state its grounds, reasons for so, to do and the failing weigh court to the excuse against prejudice resulting from untimely service and exercise its there discretion to conclude whether was an excusable mistake or not. this new Applying retroactively procedure case, to this without an hearing, actual concludes that trial majority court was right for the wrong reason and out that Temecula Ranchos acted an excusable mistake law.
To state is to refute This proposition proce- it. invented completely dure, facts, applied retroactively on the basis of and assumed speculative I totally inappropriate. would find trial acted that the court correctly denying county’s motion because Public Resources Code section 21167.6 is purely procedural notice I Although agree statute. that there has case, been a mistake of law this it has not been the mistake Temecula Ranchos the trial court. majority 4The justifiable states that it is not provide to assume that the failure a dismissal
remedy was a mere legislative oversight. agree. I I it more likely Legislature think did provide not jurisdic dismissal because it not requirement did think it had created a tional service (a). when it enacted Public Resources Code section absence of a provision supports dismissal thus position notice the subdivision is statute, not a statute. I concur in the I would judgment only. also award costs of this proceeding to Temecula Ranchos.