STATE of California, Petitioner,

v.

SUPERIOR COURT of the State of California for the County of Los Angeles,

Respondent.

COUNTY OF LOS ANGELES, Real Party in Interest.

222 Cal.App.3d 1416

No. B051842.

Court of Appeal, Second District, Division 5, California.

Aug. 20, 1990.

Review Denied Sept. 20, 1990.

State petitioned for writ of mandate after the Superior Court, Los Angeles County, No. BC000884, Herbert M. Klein, J. pro tem., sustained county's demurrer to State's complaint in eminent domain. The Court of Appeal, Boren, J., held that county was not entitled to abatement of State's eminent domain proceeding, brought as part of prison construction project, pending resolution of county's action challenging validity of environmental impact report filed by State in connection with project, absent preliminary showing by county that its pending action had merit.

Relief granted.

John K. Van de Kamp, Atty. Gen., Marvin Goldsmith, Sr. Asst. Atty. Gen., Robert H. Francis, Supervising Deputy Atty. Gen., and Marsha S. Miller, Deputy Atty. Gen., for petitioner.

No appearance for respondent.

DeWitt W. Clinton, County Counsel, Jonathan B. Crane, Principal Deputy County Counsel, and Helen S. Parker, Sr. Deputy County Counsel, for real party in interest.

OPINION AND ORDER FOR PEREMPTORY WRIT OF MANDATE

BOREN, Associate Justice.

This proceeding concerns a dispute between the State of California ("the State") and the County of Los Angeles ("the County") over the State's plans to construct the Mira Loma State Prison near Lancaster. The State filed a petition for writ of mandate after the respondent court sustained the County's demurrer (Code Civ.Proc., § 430.10, subd. (c)) to the State's complaint in eminent domain. The effect of the order was to abate the eminent domain proceeding pending resolution of the County's pending action under the California Environmental Quality Act ("CEQA") (Public Resources Code, §§ 21000 et seq.), in which it challenged the validity of the environmental impact report (EIR) filed by the State in connection with the project. The petition is granted.
 

FN1 Section 430.10, subdivision (c), permits a party against whom a complaint or cross-complaint has been filed to object to the pleading, by demurrer or answer, on the ground that "There is another action pending between the same parties on the same cause of action."
 

FN2 The County received due notice from petitioners that the issuance of a peremptory writ in the first instance was being sought, and it filed opposition to the petition on July 31, 1990. Accordingly, the issuance of a peremptory writ in the first instance is appropriate. (Palma v. U.S. Industrial Fasteners, Inc., 36 Cal.3d 171, 180-181, 203 Cal.Rptr. 626, 681 P.2d 893.)

In its demurrer, the County cited authority to the effect that a County victory in the CEQA action would bar the State's eminent domain proceeding until such time as the State filed an EIR which complied with CEQA. (City of San Jose v. Great Oaks Water Co. (1987) 192 Cal.App.3d 1005, 237 Cal.Rptr. 845.)

The case of City of San Jose might have been dispositive here were it not for the specific pronouncement of the Legislature as to the limited circumstances under which the planning and construction of the prison could be abated. In 1987, the Legislature enacted Senate Bill 18 (Stats.1987, Chap. 165) as an urgency measure, for the express purpose of expediting new prison construction. (SB 18, § 2, subd. (l).) In so doing, the Legislature declared: "Presently, the state prisons are operating at over 175percent of capacity and the prison population is still increasing. It is essential to the public safety that construction of new prisons proceeds as epeditiously as possible to relieve prison overcrowding and to maintain public safety and security." (SB 18, § 9)

So great was the Legislature's concern that the prison construction might be halted by the filing of a CEQA action that it provided: "The filing of an action pursuant to Division 13 (commencing with Section 21000) of the Public Resources Code involving the project shall not stop the planning and construction of the facility, provided that no temporary restraining order, preliminary injunction, permanent injunction, or any other court order mandating cessation of the activity exists." (SB 18, § 2, subd. (k))

A fundamental rule of statutory construction is that the court should ascertain and implement the intent of the Legislature, so as to effectuate the purpose of the law. (Walker v. Superior Court (1988) 47 Cal.3d 112, 121, 253 Cal.Rptr. 1, 763 P.2d 852.) Given the Legislature's emphatic pronouncement that the planning and construction of the prison proceed "as expeditiously as possible," we believe it is safe to assume that Legislature included section 2(k) in SB 18 to insure that the project could not be halted without some judicial evaluation of the merits of the CEQA action challenging the EIR. Under CEQA, an EIR is presumed adequate (Pub.Res.Code, § 21167.3), and the plaintiff in a CEQA action has the burden of proving otherwise. SB 18 imposes upon the plaintiff the obligation to make a preliminary showing, as it must to obtain a temporary restraining order or an injunction, that the EIR is defective, and that the CEQA action has merit.
 

FN3 We therefore conclude that the language "any other court order mandating cessation of the activity" does not encompass the respondent court's order here. The County's demurrer merely raised the existence of the CEQA action as a bar to the eminent domain proceeding, and did not address the merits of the CEQA action.
In the present case, the County did not avail itself of the only means provided by the Legislature for abating the project. By sustaining the County's demurrer abating the State's eminent domain action on solely procedural grounds, without requiring the County to make the preliminary showing compelled by SB 18, the respondent court violated the spirit, if not the letter, of that statute.

Let a peremptory writ of mandate issue directing the respondent court to vacate its order of July 6, 1990, which sustained the demurrer of defendant County of Los Angeles, and to enter a new and different order overruling the demurrer, in that matter entitled The State of California v. County of Los Angeles, et al., Los Angeles Superior Court Case No. BC000884.

LUCAS, P.J., and TURNER, J., concur.