108 Cal.Rptr.2d 259, 1 Cal. Daily Op. Serv. 5197, 2001 Daily
Journal D.A.R. 6375
OF ELK CREEK OLD GROWTH, Plaintiff and Appellant,
OF FORESTRY AND FIRE PROTECTION, Defendant and Respondent;
STATES INDUSTRIES, INC., et al., Real Parties in Interest and Respondents.
Appeal, First District, Division 3, California.
An interested group filed a mandamus petition in Sacramento County to challenge
the approval of a timber harvest plan for failure to comply with the California
Environmental Quality Act. Opposing parties successfully moved to change venue
to Mendocino County. The Mendocino County Superior Court sent notice that it
had received the case file from Sacramento County. The opposing parties
subsequently filed a motion to dismiss the petition for failure to comply with
Pub. Resources Code, 21167.4, which requires a petitioner to request a hearing
within 90 days of filing the petition. The trial court dismissed the petition.
(Mendocino County, No. CV81119, Vincent T. Lechowick, Judge.)
The Court of Appeal affirmed the dismissal. The court held that the group was
required to request a hearing within 90 days of filing the petition pursuant to
Pub. Resources Code, 21167.4, subd. (a), notwithstanding the change of venue.
After a change of venue, a petitioner is excused from timely requesting a
hearing if the trial court fails to give the statutorily required notice that
the case has been transferred. However, since the group did receive notice of
the transfer, the 90-day period was not tolled during the change of venue
process. (Opinion by Parrilli, J., with McGuiness, P. J., and Corrigan, J.,
Kimberly Burr for Plaintiff and Appellant.
Bill Lockyer, Attorney General, Richard Frank, Chief
Assistant Attorney General, Mary E. Hackenbracht, Assistant Attorney General,
John Davidson and Michael W. Neville, Deputy Attorneys General, for Defendant
and Respondent. *1433
Carter, Behnke, Oglesby & Bacik, Frank Shaw Bacik and
Brian C. Carter for Real Parties in Interest and Respondents.
In mandamus proceedings alleging failure to comply with the
California Environmental Quality Act (CEQA), the petitioner is required to
request a hearing within 90 days of filing the petition. (Pub. Resources Code,
21167.4, subd. (a).) [FN1] In Dunn-Edwards Corp. v. Bay Area Air Quality
Management Dist. (1992) 9 Cal.App.4th 644 [11 Cal.Rptr.2d 850] (Dunn- Edwards),
[FN2] this court held that after a change of venue, the petitioner is
excused from timely requesting a hearing if the trial court fails to give the
statutorily required notice that the case has been transferred. (Dunn- Edwards,
supra, 9 Cal.App.4th at p. 652.) Here, a petitioner who did receive notice the
case had been transferred contends the 90-day period was tolled under
Dunn-Edwards during the change of venue process. We reject that claim. A
petitioner with notice that transfer of the case is complete must comply with
the time limit imposed by section 21167.4.
unspecified statutory references are to the Public Resources Code.
Dunn-Edwards was disapproved on another ground in Western States Petroleum
Assn. v. Superior Court (1995) 9 Cal.4th 559, 570, and footnote 2 [38
Cal.Rptr.2d 139, 888 P.2d 1268].
Petitioner below, Guardians of Elk Creek Old Growth, filed a mandamus petition
in Sacramento County on May 3, 1999, to challenge the approval of a timber
harvest plan. Real parties in interest Redwood Empire Sawmills and Pacific
States Industries, Inc., moved to change venue to Mendocino County. The motion
was granted. On May 27, 1999, the Mendocino County Superior Court sent notice
that it had received the case file from Sacramento County. On August 3, 1999,
the real parties in interest filed a motion to dismiss the petition for failure
to comply with section 21167.4. On August 11, the petitioner filed a request
for a hearing, 100 days after the petition was filed in Sacramento County. The
trial court dismissed the petition. The petitioner appeals from the dismissal.
The real parties in interest and the Department of Forestry and Fire Protection
urge us to dismiss the appeal as moot, because timber harvesting under the
challenged plan has been completed. We exercise our discretion to entertain the
appeal because it is in the public interest to eliminate any confusion over how
Dunn-Edwards affects the 90-day period imposed by section 21167.4. (See *1434 County of Fresno v. Shelton (1998) 66
Cal.App.4th 996, 1006 [78 Cal.Rptr.2d 272]; 9 Witkin, Cal. Procedure (4th ed.
1997) Appeal, 652, p. 682.)
In Dunn-Edwards, the case was transferred from Los Angeles to San Francisco.
However, the Los Angeles Superior Court did not mail notice that the papers and
pleadings had been transmitted, and the San Francisco Superior Court did not
mail notice that the case had been filed and assigned a number, both of which
notices are required by Code of Civil Procedure section 399. (Dunn- Edwards,
supra, 9 Cal.App.4th at p. 652.) The San Francisco court denied a motion to
dismiss under section 21167.4. (9 Cal.App.4th at p. 651.) We upheld that
ruling, stating: "Although section 21167.4 was intended to avoid delays in
litigation [citation], the rule must be relaxed where there is uncertainty
concerning the forum in which the case is to be tried. We agree with plaintiffs
that where the plaintiff initiates the filing of an original petition, the
plaintiff knows with certainty the date of filing and can perform his duty
under section 21167.4 to notice a hearing. However, with a transferred case,
because the court initiates the filing, only after a plaintiff receives notice
of the event of filing is it required to fulfill its duty to request a hearing.
Notice, as is required under Code of Civil Procedure section 399, is the condition
precedent to the duty." (Dunn- Edwards, supra, 9 Cal.App.4th at p. 652.)
Petitioner contends Dunn-Edwards established a rule that the
90-day period prescribed by section 21167.4 is tolled from the time a case is
transmitted until the time it is filed in the receiving court after a change of
venue. Our holding was not so broad. We ruled only that until the court
provides the required notice of the new filing and case number, the petitioner
is not obligated to request a hearing. It would be inappropriate to extend the
90-day period whenever there is a change of venue, regardless of whether the
parties are on notice that the transfer is complete.
We disapprove any suggestion that might be drawn from Dunn-Edwards that the
"refiling" of a case after a change of venue necessarily affects the
timeline provided in section 21167.4. "The court to which an action or
proceeding is transferred ... shall have and exercise ... the like jurisdiction
as if it had been originally commenced therein, all prior proceedings being
saved." (Code Civ. Proc., 399, italics added.) The date the petition was
originally filed is the beginning of the 90-day period for requesting a *1435 hearing. The petitioner is excused
from complying with that restriction only if the receiving court fails to
notify the parties that the case is on file. [FN3]
notification is provided so near the end of the period as to make it
unreasonable to expect strict compliance, the petitioner may seek relief under
Code of Civil Procedure section 473. (See Miller v. City of Hermosa Beach
(1993) 13 Cal.App.4th 1118, 1135-1138 [17 Cal.Rptr.2d 408]; Dunn-Edwards,
supra, 9 Cal.App.4th at pp. 652-653.) This is not such a case.
Petitioner claims it requested
relief below under Code of Civil Procedure section 473, on the ground that its
reliance on Dunn-Edwards amounted to an excusable mistake of law. However,
petitioner provides no record citation supporting this claim, and our own
examination of the record yields no support for it. Petitioner did make a passing
reference to Code of Civil Procedure section 473 in its opposition to the
motion to dismiss. However, it merely "reserve[d] the right" to claim
excusable neglect "in the event that the court decides the motion to
dismiss in favor of Real Party." Petitioner did not rely on or even cite
Dunn-Edwards in its opposition. The parties did argue about Dunn-Edwards at the
hearing, but petitioner did not request relief from a mistake of law.
The terms of section 21167.4 are mandatory: "the petitioner shall request
a hearing within 90 days from the date of filing the petition or shall be
subject to dismissal ...." We will not create a rule introducing an
automatic and unnecessary extension of the time limit set by the Legislature.
In most cases (like this one, where petitioner had over two months to request a
hearing after the change of venue was completed and noticed) a change of venue
does not make it unduly difficult for the petitioner to comply with section
The dismissal is affirmed. The parties shall bear their own
costs on appeal.
McGuiness, P. J., and Corrigan, J., concurred. *1436
GUARDIANS OF ELK CREEK OLD GROWTH, Plaintiff and Appellant,
v. DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Defendant and Respondent;
PACIFIC STATES INDUSTRIES, INC., et al., Real Parties in Interest and
END OF DOCUMENT