Coastal Ranches Conservancy vs California Department of State Parks and Recreation

Case Number

22CV02818

Case Type

Hearing Date / Time

Wed, 08/07/2024 - 10:00

Nature of Proceedings

Motion: Dismiss; Motion: Judgment on the Pleadings; Motion: Consolidation

Tentative Ruling

CIVIL LAW AND MOTION CALENDAR

    August 7, 2024

10:00 am

Coastal Ranches Conservancy v. California Department of State Parks and Recreation # 22CV02818

Coastal Ranches Conservancy v. California Department of State Parks and Recreation #24CV02742

HEARINGS IN CASE NO. 22CV02818

                       

(1) State Parks’ motion for mandatory dismissal of the CEQA causes of action

                       

(2) State Parks’ motion for judgment on the pleadings

                       

(3) State Parks’ motion for protective order

                       

(4) Coastal Ranch Conservancy’s motion to consolidate Case No. 22CV02818 with Case No. 24CV02742

                       

HEARING IN CASE NO. 24CV02742:

(1) State Parks’ motion to strike petition.      

ATTORNEYS

Daniel Cooper / Kristina Hambley of Sycamore Law, Inc. and Michelle

Black of Carstens, Black & Minteer, LLP for Petitioner/Plaintiff Coastal Ranches Conservancy

                                   

Rob Bonta / Jessica E. Tucker-Mohl / Carlos A. Mejia / Sophie A. Wenzlau of the Attorney General’s Office for Respondent/Defendant Department of Parks and Recreation     

Emails:

                       

RULINGS

The motion for judgment on the pleadings will be continued to September 4, 2024, at 10:00 a.m., in this department.

The Court notes that the motion by State Parks for a protective order remains active for a hearing on August 7, although it appears to have been mooted by this Court’s prior orders, and no further documents have been filed by the parties with respect to it. To the extent the parties believe it is still viable, it will also be continued to September 4, 2024, at 10:00 a.m., in this department.

For the reasons more fully articulated below:

1. The Court will grant the motion for mandatory dismissal of the CEQA causes of action from Case No. 22CV02818 but will do so without prejudice.

2. The Court will deny the motion to strike the petition filed in Case No. 24CV02742.

3. The Court will grant the motion to consolidate Case No. 22CV02818 and Case No. 24CV02742 for all purposes.

BACKGROUND

On July 22, 2022, Petitioner Coastal Ranches Conservancy (CRC) filed a Petition for Writ of Mandate and Declaratory and Injunctive Relief (PET) against Respondent California Department of State Parks and Recreation (State Parks), alleging claims based upon the alleged waste and unreasonable use of water, violation of public trust duties, and the violation of the California Environmental Quality Act (CEQA) by failing to comply with a negative declaration. On September 13, 2022, CRC filed its First Amended Petition for Writ of Mandate and Declaratory and Injunctive Relief (FAP), which added a fourth cause of action against State Parks for violation of the California Coastal Act in failing to comply with the Coastal Development Permit for the Gaviota Beach State Park Rehabilitation Project, and separated the previously alleged cause of action for violation of CEQA into two separate claims: (a) arising from State Parks’ alleged failure to comply with the negative declaration for the Gaviota Beach State Park Rehabilitation Project (third cause of action), and (b) arising from State Parks’ alleged failure to comply with the negative declaration for a Water Supply Project.

Both the PET and FAP complained of State Parks’ its failure to comply with the requirements of 1992 and 1998 Mitigated Negative Declarations for the two projects:

1992 Mitigated Negative Declaration (MND) With respect to the Gaviota Beach State Park Rehabilitation Project, State Parks proposed new campsites, a new day-use parking area, and to construct restrooms and concessions buildings. The area of the state park is designated as an Environmentally Sensitive Habitat area and contains diverse wildlife and vegetation, a coastal salt marsh, lagoon and stream corridor. The MND issued by State Parks for the project in 1992 stated that the project would not have a significant effect on the environment because mitigation measures had been added to the project. Those mitigation measures included (a) a coastal salt marsh restoration project, with respect to the existing salt marsh, which was in a degraded condition, and which would involve the eradication of exotic species, excavation to lower elevations and recontouring, revegetation using salvaged native plans and nursery stock, and monitoring the results and replanting if necessary; and (b) a riparian woodland restoration project, in order to provide a significant buffer along the Gaviota Creek, which would involve various grading activities, removal of exotic plant species, the planting of various native riparian woodland species, and monitoring for three years to assess reestablishment of the riparian woodland and to remove any exotics that may have recolonized.

CRC contends that State Parks completed implementation of the Gaviota Beach State Park Rehabilitation Project, but neither commenced nor completed either the coastal salt marsh restoration project or the riparian woodland restoration project.

1998 MND With respect to the Water Supply Project, State Parks owns an operates the land surrounding a natural spring (Las Cruces Spring) on the north slope of Gaviota Peak, which provides relatively consistent flow feeds to Las Canovas Creek, the largest tributary of Gaviota Creek, when it is unobstructed. Prior to 1988, State Parks began diverting water from the spring for storage and use at the campground, through use of a spring box which delivers water at a rate of approximately 26,000 GPD to the Gaviota-Las Cruces Water Treatment Plant. After treatment, the diverted water travels to a 94,000-gallon storage tank, and a booster station then supplies potable water to approximately 91 people via six service connections, including residences inhabited by State Parks employees, the campground, beach, and day use areas, and two Caltrans roadside rest stops along Highway 101. As a result of the diversion of water, the decreased flows result in increased water temperatures, which contributes additional stress to the endangered Southern California Steelhead, resulting in their mortality, and preventing recovery of the species.

In 1998, State Parks proposed to install new water lines to serve Gaviota State Park and the Gaviota rest stops and replace the existing water treatment facilities. It would connect existing water systems at the Hot Springs, an existing Caltrans water well serving the Gaviota rest stops, and the campground/day use areas of the state park. In connection with the project, it issued a MND which analyzed water demand both on an average daily basis and during peak summer usage, and water supply both on an average annual basis and during critical base flow (July through September). Among other provisions, the MND stated that “to ensure that coincidence of peak use periods does not adversely impact biological resources in the Hot Springs and Las Canovas Creeks, during the period of July 1 through September 20, the Caltrans well will be utilized at full capacity any time the spring sources drops below 30 gpm.” As a result, the potential impacts to surface water resources and related potential impacts to plans and wildlife could be avoided through the project operation standards, with no significant adverse impacts to those resources. The MND also required State Parks to remove all old and obsolete water pipe in the Gaviota Creek Channel, and to seek permits or waivers of permits from the California Department of Fish and Wildlife, US Fish and Wildlife Service, and the Army Corps of Engineers prior to approval of a Coastal Development Permit.

CRC alleges that State Parks has not suspended use of the creek water sources during the summer months when flows drop below 30 gpm and has not utilized the Caltrans Well since at least the year 2000, even during periods of peak use when the spring source drops below 30 gpm. It alleges further that State Parks failed to remove the water pipes in the Gaviota Creek channel, and failed to apply for the permits or waivers, as required by the MND.

State Parks answered the petition on November 17, 2022.

On May 18, 2023, CRC moved for leave to file a Second Amended Petition for Writ of Mandate and Declaratory and Injunctive Relief (SAP), which was granted by order entered on June 21, 2023.

The SAP continued to allege the same claims against State Parks, but added a cause of action against the California Department of Transportation (Caltrans) “pursuant to Interagency Agreement #05-SB-101-46.1/48 for failing to maintain State Parks’ access to the Caltrans well,” for which it sought an order requiring Caltrans to comply with the agreement by maintaining its Gaviota Pass well and otherwise make water available during times of low yield from the Sate Parks facility. It alleged that State Parks’ compliance with its CEQA obligations relied upon Caltrans’ maintenance and provision of water from its well, but that Caltrans had failed to maintain or make the well available to State Parks during times of low flow as required by the contract, and Caltrans had therefore failed to comply with the contract. Consequently, State Parks was prevented from complying with its CEQA obligations, to the detriment of sensitive species, and in violation of Caltrans’ public trust duties. The SAP sought issuance of a writ of mandate compelling Caltrans to comply with the Well Contract.

State Parks answered the SAP on July 20, 2023.

Caltrans demurred to the SAP on September 18, 2023. After the hearing held on November 29, 2023, the Court sustained the demurrer, with leave to amend, on the ground that the Well Contract which formed the basis for CRC’s claims against Caltrans had not been sufficiently alleged. The Court further found that the SAP had failed to sufficiently allege either beneficial interest standing or public interest standing by CRC to pursue the claim against Caltrans.

On December 11, 2023, CRC filed its Third Amended Petition for Writ of Mandate and Declaratory and Injunctive Relief (TAP), which added allegations related to the deficiencies found by the Court in sustaining the demurrer to the SAP and added a cause of action against Caltrans for violation of its public trust duties.

Caltrans demurred to the TAP on January 23, 2024. After hearing on March 6, 2024, the Court again sustained the Caltrans demurrer, finding that mandate was legally unavailable to compel Caltrans’ compliance with the Interagency Agreement with State Parks, for a variety of reasons, including that the law did not impose any duty on public agencies to carry out the terms of their contracts such that compliance could be compelled by mandate; that the terms of the contract at issue were such that Caltrans’ compliance could not be compelled in mandate as a ministerial act; these conclusions were not altered by concepts of public interest standing; and imposing mandate upon Caltrans to comply with the contract would impermissibly place the court in the position of attempting to administer the public trust.

In response to the Court’s ruling on the Caltrans demurrer, CRC on March 15, 2024, filed its Fourth Amended Petition for Writ of Mandate and Declaratory and Injunctive Relief (4AP), which eliminated Caltrans as a party to the action. The 4AP reordered the causes of action alleged against State Parks, alleging causes of action for: (1) violation of CEQA for failing to comply with the 1992 Negative Declaration for the Gaviota Beach State Park Rehabilitation Project; (2) violation of the California Coastal Act for failing to comply with the Coastal Development Permit for the Gaviota Beach State Park Rehabilitation Project; (3) violation of CEQA for failing to comply with the 1998 Negative Declaration for the Water Supply Project; (4) violation of public trust duties; and (5) waste and unreasonable use of water.

At a March 27, 2024, Case Management Conference, the Court struck the 4AP on its own motion, and designated the FAP as the operative petition against State Parks. [Note: A side-by-side review of the CEQA allegations of the FAP and the 4AP showed only minor variances between the FAP and 4AP, with a few clarifying factual allegations added, and a reorganization of the allegations; substantively they appear to be identical in their factual basis, claims of error, and relief sought.]

On May 6, 2024, CRC filed a motion to compel depositions of State Parks PMK and demand for production of documents, setting the hearing for June 12, 2024.

On May 8, 2024, State Parks filed a motion for protective order to preclude depositions of any of its personnel and any further production of documents, setting the hearing for July 10, 2024.

On May 8, 2024, State Parks filed a motion for mandatory dismissal of the CEQA causes of action based upon CRC’s failure to timely request a hearing on them, in violation of Public Resources Code section 21167.4(a). Hearing on the motion was set for August 7, 2024.

On May 15, 2024, State Parks filed a motion for judgment on the pleadings with respect to the entire 4AP, setting the hearing for August 7, 2024.

In apparent response to the motion to dismiss the CEQA causes of action, CRC on May 17, 2024, filed a Request for Partial Dismissal, which dismissed the causes of action related to CEQA, without prejudice.

Also on May 27, 2024, CRC filed a separate Petition for Writ of Mandate and Declaratory and Injunctive Relief, in Case No. 24CV02742, which also bears the caption of Coastal Ranches Conservancy v. California Department of Parks and Recreation. Case No. 24CV02742 restates many of the allegations of Case No. 22CV02818 and alleges the two CEQA causes of action which had been dismissed from Case No. 22CV02818: (1) violation of CEQA for failing to comply with the 1992 Negative Declaration for the Gaviota Beach State Park Rehabilitation Project, and (2) violation of CEQA for failing to comply with the 1998 Negative Declaration for the Water Supply Project. With only nominal changes and/or clarifications in the allegations, the Petition in Case No. 24CV02742 is almost identical to the general and CEQA-related allegations set forth in Case No. 22CV02818 and seeks the identical relief on the identical bases.

On My 20, 2024, CRC filed a Notice of Related Case in Case No. 22CV02818, noting Case No. 24CV02742 as the related case; and a Notice of Related Case in Case No. 24CV02742, noting Case No. 22CV02818 as the related case.

On May 21, 2024, CRC filed a Request for CEQA hearing in Case No. 24CV02742.

On May 21, 2024, CRC also filed a motion to consolidate Case Nos. 22CV02818 and 24CV02742, in Case No. 22CV02818, setting the hearing of June 26, 2024. A copy of the consolidation motion was filed in Case No. 24CV02742 on May 22, 2024.

On June 12, 2024, the court granted the motion to compel PMK depositions, ordering the parties to meet and confer and decide on the date, location, and time for the depositions. That order appears to have effectively mooted State Parks’ motion for protective order directed toward the PMK depositions, which had not yet been heard (and was set for hearing on July 10, 2024).

A Joint Status Report was filed and noted that the parties had agreed at a June 12, 2024 Case Management Conference to continue all pending motions in both Case No. 22CV02818 and Case No. 24CV02742 to August 7, 2024. [Note: That list included the State Parks motion for protective order, which appears to have been mooted by the Court’s June 12, 2024, grant of the motion to compel the PMK depositions.]

On July 11, 2024, State Parks filed a motion to strike the Petition in Case No. 24CV02742 petition, also setting the hearing on that matter for August 7, 2024.

As a result, there are currently set for hearing on August 7, 2024, four separate motions among the two cases, including the following:

• State Parks’ motion for mandatory dismissal of the two CEQA causes of action (22CV02818).
• State Parks’ motion for judgment on the pleadings (22CV02818).
• CRC’s motion to consolidate Case Nos. 22CV02818 and 24CV02742 (22CV02818)
• State Parks’ motion to strike the entire CEQA petition (24CV02742).

The legal basis for State Parks’ motion to strike the CEQA petition filed in Case No. 24CV02742 is identical to that which forms the basis for its motion for mandatory dismissal of the CEQA claims from the Case No. 22CV02818 petition, i.e., CRC’s failure to comply with the Public Resources Code section 21167.4 mandatory time limit within which a request for hearing must be sought for a CEQA claim, directed toward the CEQA claims which were stated in Case No. 22CV02818, dismissed, and realleged in Case No. 24CV02742. Resolution of this issue will necessarily impact the motion to consolidate the two actions. For that reason, the Court will address this motion first, and will continue the State Parks motion for judgment on the pleadings to September 4, 2024, at 10:00 a.m. in this Department. To the extent that either party believes that the Court’s June 12, 2024, order granting CRC’s motion to compel PMK depositions did not moot State Parks’ motion for protective order, they should advise the Court of that fact, and the issue/motion will also be continued to September 4, 2024, for resolution.

State Parks’ Motion to Dismiss CEQA claims from Case No. 22CV02818: The motion to dismiss, filed on May 14, 2024, in Case No. 22CV02828, asserts that because CRC failed to file a Request for Hearing on the merits of it CEQA causes of action within 90 days of filing its petition on July 22, 2022 (i.e., by October 20, 2022), Public Resources Code section 21167.4(a) requires that the CEQA claims be dismissed. It asserts that the deadline is firm, cannot be extended, is not cured by a late filing, and is not excused because of negotiations over litigation deadlines that would address the claims on the merits. Dismissal is mandatory.

Opposition CRC did not oppose the motion to dismiss, and apparently contends that its voluntarily dismissal of the CEQA claims in this case was effective to remove them from the case.

Reply State Parks filed a reply, noting CRC’s failure to oppose, surmising that no opposition was filed because CRC believed it had mooted the motion by voluntarily dismissing the CEQA causes of action without prejudice. The need for consideration of the motion is made obvious by CRC’s subsequent actions in filing a new petition containing the same CEQA claims, and moving to consolidate them with this action, to evade CEQA’s mandatory requirements and the mandatory dismissal of the claims.

CRC has conceded that its failure to timely request a hearing requires that its CEQA claims be dismissed. The parties disagree whether CRC could properly dismiss them voluntarily, and whether those cause of action must be dismissed with prejudice.

State Parks asserts that the voluntary dismissal was ineffective because State Parks had a superior right to secure mandatory dismissal. When mandatory dismissal is inevitable due to procedural dereliction, the right to voluntary dismissal does not apply. When State Parks filed its motion to dismiss, it was entitled to dismissal of the CEQA causes of action. Therefore, CRC lost its right to dismiss.

State Parks argues further that the CEQA causes of action must be dismissed with prejudice, because mandatory dismissal is intended to be final and without an opportunity for cure, and to permit otherwise would nullify the statute and the legislative intent that CEQA challenges be promptly resolved and diligently prosecuted. The courts have refused to create exceptions to the 90-day deadline, given that the Legislature has not expressed any. (Fiorentino v. City of Fresno (2007) 150 Cal.App.4th 596, 604; County of Sacramento v. Superior Court (2009) 180 Cal.App.4th 943, 952.)

State Parks concludes that the court should therefore dismiss the CEQA causes of action with prejudice.

State Parks’ Motion to Strike CEQA petition in Case No. 24CV02742: The motion to strike the CEQA petition in Case No. 24CV02742, is also based upon the terms of Public Resources Code section 21167.4(a). It asserts that after State Parks moved for the mandatory dismissal of the CEQA claims in Case No. 22CV02818, that CRC voluntarily dismissed the CEQA claims from that action, and separately filed them in Case No. 2402742, to evade the mandatory dismissal provisions of Section 21167.4(a). As a result, it contends that: (a) CRC’s voluntary dismissal of the CEQA claims from Case No. 22CV02818 was ineffective, because it was trumped by State Parks’ right to a mandatory dismissal; (b) that CRC’s attempt to circumvent mandatory dismissal contravenes the Legislature’s intent for strict enforcement of CEQA’s procedural deadlines; and (c) because the petition was filed solely to circumvent CEQA’s mandatory dismissal requirement, it is an abuse of process that should be stricken by the court, without leave to amend, as a sham pleading.

The motion contends that CRC acknowledged filing the current petition to “cure” its failure to meet CEQA procedural deadlines with respect to the now-realleged CEQA claims, but that the failure to meet the 90-day deadline cannot be cured. The attempt to circumvent mandatory dismissal contravenes the legislature’s intent for strict enforcement of CEQA’s procedural deadlines. Despite missing the deadline by more than a year, CRC insists its second petition cured its failure to meet the procedural deadline, and avoids mandatory dismissal of its CEQA claims, but that would directly contradict extensive precedent and the Legislative intent in creating the strict 90-day deadline. Since the petition was filed to evade fatal consequences of mistakes in the original petition, it is a sham pleading which should be stricken to prevent an abuse of process. CRC has acknowledged that the new petition contains the same CEQA claims as those alleged in the original petition, and that the sole reason for filing the petition was to “cure” its prior failure to timely request a hearing on the claims.

While Code of Civil Procedure section 473(b) relief from a dismissal for failure to meet the 90-day deadline is available, State Parks asserts that CRC did not seek Section 473(b) relief and would not have been eligible for it under the terms of Section 473(b). Courts have limited the availability of Section 473(b) relief for failures to meet the 90-day deadline, to circumstances when the petition failed to satisfy all of the statutory requirements for filing the request or missed the deadline by a few days and presented extraneous circumstances explaining the delay; neither is available here. The 90-day requirement has been well-established for decades. Here, no request was ever filed, in the many months since the filing of the original petition, and Section 473 relief would not have been available. State Parks contends that CRC cannot evade the requirements of Section 21167.4(a) by simply dismissing and refiling its CEQA claims.

Opposition CRC has opposed the motion to strike. It first acknowledged that the CEQA claims based upon the failure to comply with the mitigation measures for the two projects had to be dismissed but contends that while its current petition alleges the same noncompliance, they allege that noncompliance for the ongoing violations starting the day the current petition was filed. CRC acknowledges that the originally alleged CEQA claims had to be dismissed under Section 21167.4, because of its failure to file a request for hearing, and that those claims were barred by the statute of limitations, citing Citizens of Costa Mesa, Inc. v. 32nd Dis. Agricultural Assn. (1986) 42 Cal.3d 929, 937-938.)

CRC argues, however, that mandatory dismissals are not always dismissals without prejudice. The voluntary right to dismiss is limited when a trial court has already publicly indicated that an impending motion would result in a substantive dismissal of the action, and when the plaintiff was in a position to deduce there was nothing to be done to prevent the substantive dismissal of the action. (Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 200.) Cases under the second exception are often based on dispositive procedural inaction by the plaintiff—usually failure to prosecute. It contends that neither exception applies here, since the trial court had not opined or ruled on State Parks’ motion to dismiss, nor had CRC failed to diligently prosecute. CRC further contends that pleadings subject to either voluntary or mandatory dismissal are not assumed to be with prejudice, citing Estrada v. Royalty Carpet Mills, Inc. (2024) 15 Cal.5th 582, 601. State Parks argues, without citation, that any mandatory dismissal under 21167.4 must be with prejudice. CRC counters that because the new petition sets forth claims related to State Parks’ ongoing violations, it is not subject to dismissal with prejudice. Moreover, because the ongoing nature of State Parks’ violations exposes State Parks to enforcement by other individuals or organizations, it suffers no prejudice by CRC’s actions.

CRC contends that an ongoing failure to mitigate claim is not barred by the statute of limitations, because each day is a distinct, new episode of noncompliance that restarts the clock. The purpose of the statutory requirements that an agency provides that the measures to mitigate or avoid significant effects are fully enforceable through permit conditions, agreements, or other measures, and to adopt a monitoring program, is to ensure that feasible mitigation measures will be implemented as a condition of development, and not merely adopted and disregarded. If mitigation measures become impractical or unworkable, the governing body must state a legitimate reason for deleting an earlier adopted measure and must support that statement with substantial evidence. (Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1168.) CRC asserts that given that the fundamental purpose of mitigation measures is to ensure a project’s adverse environmental effects are mitigated in perpetuity, there is no limit on when the claims may be brought, and every day a mitigation measure remains unimplemented is a new violation of CEQA, citing City of Fontana v. Atkinson (1963) 212 Cal.App.2d 499, 509 [a non-CEQA case which holds that the statute of limitations does not run on a continuing violation of a statute]. State Parks is not using the Caltrans Well to serve the state park or rest stops; it is using only the spring, and full restoration of the saltmarsh and riparian woodland has never occurred. As a result, these claims have been timely filed and are not a sham pleading.

Finally, CRC argues that public policy weighs in favor of enforcing mitigation requirements. It contends that these projects were built decades ago, and the purposes behind short statutes of limitations (i.e., recognizing the realities of project development and financing, a developer’s interest in finality, etc.) are inapplicable. The projects were completed decades ago, and this case does not hold up construction or financing; approval of a project is different from failing to implement approved mitigation. If a CEQA suit cannot be filed to enforce ongoing violations of the mitigation measures adopted to address environmental harms, the mitigations are meaningless. Mitigating conditions are not expressions of hope, and once incorporated cannot be defeated by ignoring them or by attempting to render them meaningless by moving ahead with the project in spite of them. (Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1167.) State Parks’ position renders CEQA mitigation voluntary, but mitigation measures that are not guaranteed to occur at any time or in any particular manner are inadequate. (Preserve Wild Santee v. City of Santee (2012) 210 Cal.app.4th 260, 281.) In Sierra Club, supra, the court rejected the county’s argument that petitioner’s claims concerned the project approval, finding petitioner sought to enforce a key mitigation measure, and found that the statute of limitations did not bar the suit because the public interest in mitigation enforcement superseded. The court in Lincoln Place II held that the statute’s plain language demonstrated that it has no application to a case seeking to enforce mitigation conditions. (Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 453, at fn. 23.)

The cases cited by State Parks address approval of a project in the first instance, not the enforcement of mitigation measures once the project has been approved and built. State Parks’ fears about the refiling of petitions to cure procedural defects are already addressed by CEQA’s short statutes of limitation. Here, the policy is not ensuring predictable development, since the development has already occurred, but to ensure the approved projects mitigate the recognized adverse impacts. Allowing State Parks to ignore required mitigation measures which it has never properly modified or deleted undercuts the statutory scheme.

Reply In reply, State Parks asserts that the CEQA claims CRC voluntarily dismissed cannot be refiled because they are time-barred. (Opp., @ p. 5.) CRC then argues that the CEQA causes of action alleged in Case 24CV02742 are not time-barred, because they challenge ongoing violations of the mitigation measures adopted in 1992 and 1998, and each day the violations continue constitutes a new episode of non-compliance that restarts the clock. However, no legal authority supports the argument that a CEQA petitioner can, after initially discovering a potential violation and triggering the applicable statute of limitations, restart the clock on the statute of limitations by rediscovering the same alleged violation. The limitations period began to run when CRC first discovered the CEQA violations, which must have occurred prior to the filing of the original action in 2022. Since petitioner discovered the CEQA claims alleged in its new petition on the same day it discovered the time-barred ones, the new claims are now time-barred.

State Parks reiterates that the new petition is a sham pleading because it falsely suggests that CRC discovered the alleged CEQA violations on the day the new petition was filed, which contradicts its prior petition raising identical claims, demonstrating that CRC discovered the alleged violation years ago. The CEQA claims in both petitions are fundamentally identical, alleging State Parks’ failure to comply with mitigation measures adopted for 1992 and 1998 projects, and that the failure has existed since their adoption. CRC’s attempt to recast its previously filed CEQA causes of action as new is therefore meritless. When a petitioner pleads inconsistently in separate actions, the petition is nothing more than a sham, and the court will disregard the falsely pleaded facts. The timing of the filing of this petition immediately after the dismissal of the CEQA claims from the other petition indicates that the refiling was an attempt to bypass procedural rules rather than to address genuine, new issues. The petition should be struck as a sham.

State Parks argues further that while CRC contends it had a right to voluntarily dismiss the CEQA claims from Case No. 22CV02818, State Parks’ own right to mandatory dismissal of those claims trumped and rendered ineffective CRC’s attempt to voluntarily dismiss those claims. While CRC cites Franklin Capital Corporation v. Wilson (2007) 148 Cal.App.4th 187, 200, to argue that voluntary dismissal is effective unless certain conditions are met, that court stated that voluntary dismissal is ineffective if made in the light of some procedural dereliction by the dismissing plaintiff that made dismissal otherwise inevitable, which is precisely what occurred here. State Parks was entitled to the mandatory dismissal of the CEQA claims because of CRC’s procedural dereliction in failing to timely request a hearing. As a result, its dismissal was ineffective.

State Parks argues further that mandatory dismissal of CEQA claims for procedural dereliction under Section 21167.4 is final unless relief is granted pursuant to Code of Civil Procedure section 473(b). The final dismissal under 21167.4 operates as an end to the litigation on procedural grounds, akin to a dismissal with prejudice, thereby preventing the refiling of the claims. Relief from the dismissal can be obtained only through Section 473(b). If the mandatory dismissal under Section 21167.4 were not final, parties would have no reason to pursue relief under Section 473, since they could refile their case. Further, CRC’s interpretation of 21167.4 would render that statute’s procedural requirement meaningless for any CEQA claim involving an ongoing violation, contrary to the terms of the statute, and in frustration of the goal of expedited litigation.

Finally, State Parks asserts that, contrary to CRC’s argument, its position does not render CEQA mitigation voluntary, and that a CEQA suit cannot be filed to enforce violations of mitigation measures, this is not its position. Rather, suits to allege ongoing violations are proper, but are subject to CEQA’s procedural requirements, including Section 21167.4.

Motion to Consolidate Case No. 24CV02742 with Case No. 22CV02818: The motion articulates how CRC dismissed its CEQA claims alleged in Case No. 22CV02818, without prejudice, in response to State Parks’ motion for dismissal of those claims and refiled them in Case No. 24CV02742 in order to correct CRC’s procedural error. Having done so, CRC now seeks to consolidate Case No. 24CV02742 with Case No. 22CV02818, in order to reinsert the previously dismissed CEQA claims back into Case No. 22CV02818.

Opposition State Parks has opposed the motion, contending that because the petition in Case No. 24CV02742 was a sham pleading, filed solely to evade the mandatory dismissal of CRC’s CEQA claims based upon its failure to comply with Public Resources Code section 21167.4(a), that its motion to strike Case No. 24CV02742 should therefore be granted, and that as a result there will be nothing to consolidate with Case No. 22CV02818.

Reply In reply, CRC asserts that the new petition is not a sham pleading, because it contains a new claim based on new facts. The sham pleading doctrine promotes truthful pleading. CRC acknowledges that its original claims cannot be refiled, but that the claims in the new petition are not subject to the 30-day statute of limitations because it is brought to enforce mitigation measures, not to challenge environmental review. Mitigation measures are intended to ensure a project’s adverse environmental effects are mitigated in perpetuity, and there is therefore no limit on when the claims may be brought given that they are ongoing violations. Any organization could have brought the claims had CRC not filed the second related action, and the petition is both timely and not a sham. It is entitled to bring the second petition, because it dismissed the first one without prejudice.

CRC asserts further that the legislative intent behind CEQA supports continued ongoing enforcement of adopted mitigation measures. CRC is not challenging a project approval, and if a CEQA suit cannot be filed to enforce continued and ongoing violations of mitigation measures, they become meaningless.

Finally, CRC asserts that complete consolidation is appropriate because both cases involve identical parties, revolve around the same factual background, and address the same central issue, i.e., State Parks’ failure to implement CEQA mitigation measures, resulting in damage to endangered steelhead and other public trust resources on the Gaviota Coast. A determination on liability on the CEQA claims will impact the assessment of liability for the other claims in Case No. 22CV02818. Since the Court will be interpreting the same CEQA documents and addressing similar legal and factual issues in both cases, hearing them separately would result in unnecessary duplication of judicial effort. The identical relief is sought in both cases, and consolidation will guarantee consistent treatment.

ANALYSIS

The motion for judgment on the pleadings will be continued to September 4, 2024, at 10:00 a.m., in this department.

The Court notes that the motion by State Parks for a protective order remains active for a hearing on August 7, although it appears to have been mooted by this Court’s prior orders, and no further documents have been filed by the parties with respect to it. To the extent the parties believe it is still viable, they should advise the Court of this fact, and it will also be continued to September 4, 2024, at 10:00 a.m., in this department.

For the reasons more fully articulated below:

1. The Court will grant the motion for mandatory dismissal of the CEQA causes of action from Case No. 22CV02818 but will do so without prejudice.

2. The Court will deny the motion to strike the petition filed in Case No. 24CV02742.

3. The Court will grant the motion to consolidate Case No. 22CV02818 and Case No. 24CV02742 for all purposes.

Motion to Strike Case No. 24CV02742 Petition / Motion to Dismiss CEQA Claims from Case No. 22CV02818

1. Motions to strike.

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) A motion to strike lies either to strike out any irrelevant, false, or improper matter inserted in a pleading, or to strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) As is true with demurrers, the grounds for a motion to strike must appear on the face of the challenged pleading, or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).) Additionally, in ruling on a motion to strike, the allegations in the complaint are considered in context and presumed to be true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

2. CEQA Request for Hearing on the Merits Requirement (Pub. Res. Code, § 21167.4).

The policy concerns favoring trial on the merits are not necessarily the same in CEQA actions as in the usual civil action. (San Franciscans for Reasonable Growth v. City and County of San Francisco (1987) 189 Cal.App.3d 498, 503.) The public has an interest in ensuring that CEQA challenges are promptly filed and diligently prosecuted, particularly given their obvious potential for financial prejudice and disruption. (Nacimiento Regional Water Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 965 (Nacimiento).) As a result, CEQA has a number of procedural provisions which serve that interest by ensuring the expedited resolution of CEQA challenges. They include such provisions as short statutes of limitations (Pub. Res. Code, § 21167), preference over all other civil actions at trial and on appeal (Pub. Res. Code, § 21167.1), and the protections of Public Resources Code section 21167.4. (Nacimiento, supra.)

Section 21167.4 provides:

(a) In any action or proceeding alleging noncompliance with this division, the petitioner shall request a hearing within 90 days from the date of filing the petition or shall be subject to dismissal on the court’s own motion or on the motion of any party interested in the action or proceeding.

(b) The petitioner shall serve a notice of the request for a hearing on all parties at the time that the petitioner files the request for a hearing.

(c) Upon the filing of a request by the petitioner for a hearing and upon application by any party, the court shall establish a briefing schedule and a hearing date. In the absence of good cause, briefing shall be completed within 90 days from the date that the request for a hearing is filed, and the hearing, to the extent feasible, shall be held within 30 days thereafter. Good cause may include, but shall not be limited to, the conduct of discovery, determination of the completeness of the record of proceedings, the complexity of the issues, and the length of the record of proceedings and the timeliness of its production. The parties may stipulate to a briefing schedule or hearing date that differs from the schedule set forth in this subdivision if the stipulation is approved by the court. [Emphasis added.]

The “division” of the Public Resources Code referred to in Section 21167.4(a) is entitled “Environmental Quality,” and contains the California Environmental Quality Act. (Pub. Res. Code, § 20150.) Consequently, the Section 21167.4(a) Request for Hearing requirement applies to any action filed pursuant to the California Environmental Quality Act.

The hearing request requirement set forth in Section 21167.4(a) is a mandatory provision of CEQA. (Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1131.) The requirements of Section 21167.4, read together, require that the request for hearing made to the court must be a written request that is filed with the court and served upon the parties to the action. (County of Sacramento v. Superior Court (2009) 180 Cal.App.4th 943, 949-950.) The hearing that must be requested is a hearing on the merits of the petition, and a hearing on provisional remedies or other collateral matters does not satisfy the statutory requirement that a hearing be requested. (Nacimiento, supra, 122 Cal.App.4th at p. 966.) The hearing itself need not take place within the 90-day period; the statute requires only that the Request for Hearing be filed and served during that period. (Mitchell v. County of Orange (1985) 165 Cal.App.3d 1185, 1192.) Further, merely setting forth the request in a pleading is insufficient. (McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 357-358.)

The remedy for violation of the 90-day rule is mandatory dismissal, upon the motion of any party or the court. (San Franciscans for Reasonable Growth, supra, 189 Cal.App.3d at p. 504; Fiorentino v. City of Fresno (2007) 150 Cal.App.4th 596, 605.) Section 21167.4 is designed to place CEQA challengers in the position of either tendering their claim to the court for resolution or losing it altogether. (McCormick, supra, 198 Cal.App.3d at p. 358.)

A CEQA petitioner who fails to timely comply with Section 21167.4 may seek relief from the default or dismissal pursuant to Code of Civil Procedure section 473(b), so long as the petitioner can meet the requirements of that section. (Nacimiento, supra, 122 Cal.App.4th at p. 966.) However, the Section 473(b) provisions regarding mandatory relief from a default or dismissal caused by an attorney’s mistake or neglect without demonstration that the attorney error was excusable, are inapplicable to Section 473 motions made with respect to Section 21167.4. (Nacimiento, supra, 122 Cal.App.4th at p. 966-969.) This is because nearly every Section 21167.4 dismissal for failing to request a hearing on alleged CEQA violations is caused by the mistake, inadvertence, or neglect of the plaintiff’s attorney, and thus few dismissals would be final if mandatory relief under section 473 were to be applied to such dismissals. Doing so would effectively nullify Section 21167.4, and the legislative intent that CEQA challenges be promptly resolved and diligently prosecuted would be defeated. (Id. at p. 968.) Consequently, only Section 473(b) relief arising from the attorney’s excusable neglect or error will relieve a CEQA petitioner from the mandatory dismissal provisions of Section 21167.4. (See also, Comunidad en Accion v. Los Angeles City Council, supra¸ 219 Cal.App.4th at p. 1132.)

3. Application Section 21167.4(a) to the CEQA claims in Case No. 22CV02818.

CRC’s CEQA claims were originally alleged against State Parks through the petition filed on July 22, 2022, in Case No. 22CV02818. CRC therefore had until October 20, 2022, to file a Request for Hearing pursuant to Public Resources Code section 21167.4(a). CRC failed to do so. On May 13, 2024, State Parks filed a motion for mandatory dismissal of CRC’s CEQA claims, based upon its failure to comply with Section 21167.4(a), contending also that while a motion for relief pursuant to Code of Civil Procedure section 473(b) might at one time have been available to CRC, had CRC made a good faith effort to request a hearing on the merits, that any such relief was long-since barred by the vast and inexcusable passage of time since the expiration of the 90-day period.

After the filing of the motion for mandatory dismissal by State Parks, and in apparent response to it, CRC on May 17, 2024, dismissed the CEQA claims from Case No. 22CV02818, without prejudice.

The parties dispute whether CRC had the ability to voluntarily dismiss the CEQA claims from Case No. 22CV02818, in the face of the motion for mandatory dismissal. However, both parties acknowledge that CRC’s failure to timely request a hearing on the merits of its CEQA claims required that the CEQA causes of action be dismissed from Case No. 22CV02818.

4. Availability of right to voluntarily dismiss the CEQA claims from Case No. 22CV02818.

The Court notes that while CRC did not oppose the Section 21167.4 motion to dismiss in Case No. 22CV02818, it made arguments regarding its ability to voluntarily dismiss its CEQA claims from that case, in its opposition to the State Parks motion to strike the petition in Case No. 24CV02742.

Both parties cite to Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, with respect to the availability of a right to voluntarily dismiss a claim or case, in the face of an impending dispositive procedure. In that case, the court reviewed an exhaustive list of cases, and adopted a “mere formality” test to harmonize the results of its review. Under the test, a voluntary dismissal is ineffective if there has been either: (1) public and formal judicial expressions of the merits of a case in the context of a substantively dispositive proceeding, or (2) some procedural dereliction by the dismissing plaintiff that made dismissal otherwise inevitable. (Id. at pp. 200, 202.)

Under the first prong of the test, a plaintiff’s voluntarily dismissal would be valid if it was filed while a motion for summary judgment (a proceeding which is potentially dispositive on the substance of the dispute), but the court had not yet issued a tentative or final ruling. The plaintiff’s right to dismiss would be cut off, however, if the court had issued a tentative or final ruling on the substantively dispositive motion. (See Cole v. Hammond (2019) 37 Cal.App.5th 912, 922.)

Under the second prong of the test, the cases reviewed by the Franklin court considered instances of “legal inevitability of dismissal based on dispositive procedural inaction by the plaintiff (like not filing opposition to a summary judgment motion or not bringing the case to trial in five years).” (Cole v. Hammond, supra, quoting Franklin Capital Corp. v. Wilson, supra, 148 Cal.App.4th at p. 201.) The Franklin case involved an OSC re dismissal and/or sanctions, following plaintiff’s counsel’s failure to appear at a mandatory settlement conference. Plaintiff filed a voluntary dismissal without prejudice prior to the hearing. At the hearing, the court entered a dismissal with prejudice, and denied plaintiff’s subsequent motion to vacate. On appeal, the Franklin court found that the pending hearing did not cut off the plaintiff’s right to voluntarily dismiss the case, since there had been no indication of the trial court’s ruling and it was not inevitable that the court would dismiss the case because of the order to show cause. (Franklin, supra, 148 Cal.App.4th at p. 209.)

In this case, State Parks’ motion for mandatory dismissal was not potentially dispositive of the legal merit of CRC’s CEQA causes of action, and there had been no expression of the court’s evaluation of the merits of the case, so Prong 1 of the Franklin test is inapplicable.

However, because the failure to timely request a hearing on the merits of CEQA claims entitles the respondent to mandatory dismissal of those claims, there had been a procedural dereliction by the dismissing plaintiff that made dismissal inevitable, meeting the elements of the Prong 2 of the Franklin test. Consequently, CRC’s right to voluntarily dismiss its CEQA causes of action was cut off by its failure to timely request the hearing on the merits, and State Parks’ filing of the motion for mandatory dismissal.

As a result, the voluntary dismissal was ineffective. Consequently, the Court will formally dismiss the CEQA claims from the petition in Case No. 22CV02818.

5. Legal effect of the involuntary dismissal of the CEQA claims from Case No. 22CV02818.

This Court’s finding that CRC’s right to file a voluntary dismissal of its CEQA claims in Case No. 22CV02818 had been cut off, and its order involuntarily dismissing those claims, does not end the inquiry with respect to the potential viability of the CEQA allegations alleged in Case No. 24CV02742. There are additional issues which have direct bearing on the resolution of the motion to strike, which must be discussed, and which appear to be interrelated.

While this summary of the positions is rather simplistic, it begins with State Parks’ contention that the dismissal must be with prejudice, based upon the fact that the Section 21167.4 mandatory dismissal provision is intended to be final and without opportunity for cure. State Parks further contends that the petition in Case No. 24CV02742 must therefore be stricken as a sham pleading, because it was filed solely to evade the mandatory dismissal provisions of Section 21167.

CRC counters that dismissal of pleadings subject to either voluntary or mandatory dismissals are not assumed to be without prejudice. It further argues that because State Parks’ failure to even commence the mitigation measures it imposed upon itself is ongoing, with a new CEQA violation occurring each day the mitigation measures remain unimplemented, the CEQA claims in Case No. 24CV02742 are necessarily different from those set forth in Case No. 22CV02818 and are not barred by the statute of limitations, citing authority that implies that the terms of Section 21167 do not apply to actions based upon failure to comply with mitigation measures. It argues further that public policy weighs in favor of enforcing mitigation requirements, that their protections are rendered meaningless if CEQA suits cannot be filed to enforce continued and ongoing violations of the mitigation requirements, and that actions to enforce mitigation measures are not bound by the limitations provisions related to project approval. The policies intended to ensure finality for project developers are not implicated, since the project has long since been completed. 

State Parks responds by acknowledging that CEQA suits to address ongoing violations are proper but argues that they are subject to CEQA’s procedural requirements in the same manner as any other lawsuit. It disputes CRC’s contentions regarding the statute of limitations with respect to ongoing violations, contending that no support exists for the position, and that the statute begins to run when the petitioner “first” discovered the violations alleged in its petition, which in this case was necessarily sometime before Case No. 22CV02818 was filed in 2022.

The interplay of the issues regarding (a) whether the dismissal of the CEQA claims from Case No. 22CV02818 should be with or without prejudice, (b) whether the petition in Case No. 24CV02742 is a sham petition subject to being stricken as having been filed in conformity with the laws of this state, and (c) whether CRC has established a credible claim that State Parks’ failures to commence or implement the mitigation measures in any way is an ongoing violation, and therefore not barred by the statute of limitations, requires that all three be considered and discussed, in determining whether State Parks has met its burden of establishing that the Case No. 24CV02742 petition is a sham petition as a matter of law.

            A. Dismissal with or without prejudice

The parties dispute whether the involuntary dismissal of the court can or must be with prejudice, or whether it can or must be without prejudice. State Parks contends that the dismissal must be with prejudice because mandatory dismissal under Section 21167.4 is intended to be final and without an opportunity for cure. CRC counters that dismissals of pleadings subject to either voluntary or mandatory dismissal are not assumed to be with prejudice, citing Estrada v. Royalty Carpet Mills, Inc. (2024) 15 Cal.5th 582, 601.

The Estrada court cited its previous decision in Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915, wherein it had explained that the inherent power of a trial court to dismiss claims had in the past been confined to two types of situations: (1) the plaintiff had failed to prosecute diligently, or (2) the complaint has been shown to be “fictitious or sham,” such that the plaintiff has no valid cause of action. It noted that it had emphasized in Lyons that although the discretionary power to dismiss with prejudice has been upheld in this state, its use has been tightly circumscribed. (Estrada v. Royalty Carpet Mills, Inc., supra.)

Characterizing a dismissal as “mandatory” in no way resolves the issue. The Court notes that some mandatory dismissals are considered to have been made with prejudice. (See, e.g., Franklin Capital Corp. v. Wilson, supra, 148 Cal.App.4th at p. 207 [terminating sanctions for discovery disobedience are with prejudice and res judicata]; and Code Civ. Proc., § 581, subd. (f)(2), and Cano v. Glover (2006) 143 Cal.App.4th 326, 330 [omission of defendant in amended complaint, after defendant’s demurrer was sustained with leave to amend, entitles defendant to a dismissal with prejudice].)

However, there are also mandatory dismissal which the dismissal is “without prejudice.” (See, e.g., Code Civ. Proc., §§ 581, subds. (b)(4) and (g); 583.250, subd. (a)(2) [dismissal for failure to serve within 3 years]; 583.360 [dismissal for failure to bring to trial within 5 years].) Certainly, in many cases, the statute of limitations would prevent the refiling of such cases, but if a new lawsuit would not be barred by the statute of limitations, the refiling of the claim would entitle the plaintiff to a new five year period for bringing the action to trial. (See Nassif v. Municipal Court (Depner) (1989) 214 Cal.App.3d 1294, 1299.)

Section 21167.4 itself does not specify whether a mandatory dismissal entered under its terms would be with or without prejudice. Given that most CEQA limitations periods are shorter than the 90-day period for requesting a hearing on the merits, a dismissal pursuant to Section 21167.4 would, in most cases, necessarily preclude the refiling of CEQA claims. If a credible claim can be made that a specific CEQA claim remains viable and not barred by the statute of limitations, following a “mandatory” dismissal under Section 21167.4, it is doubtful that the refiling of such a claim could be considered a “sham” pleading subject to being stricken as such, and in fact a Section 21167.4 dismissal “with prejudice” could conceivably be an abuse of a trial court’s discretion under those circumstances.

While the Court has ordered the CEQA claims dismissed from Case No. 22CV02818, it is not inclined to order that the dismissal was “with prejudice.” Rather, whether the refiling of such claims is permissible should be determined based upon whether a credible claim can be made that the CEQA claims being asserted are not barred by the applicable statute of limitations.  

            B. Sham pleading.

As set forth by the court in Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946:

‘Generally, after an amended pleading has been filed, courts will disregard the original pleading. [Citation.] [¶] However, an exception to this rule is found ... where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is merely a sham.’ [Citation.] Moreover, any inconsistencies with prior pleadings must be explained; if the pleader fails to do so, the court may disregard the inconsistent allegations. [Citation.] Accordingly, a court is ‘not bound to accept as true allegations contrary to factual allegations in former pleading in the same case.’ [Citation.]”

Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412.) The exception applies not only to an amended pleading filed in the same action, but also to the first pleading filed in a separate action. (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 344.)

As explained by the court in Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 835, a plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. Likewise, the plaintiff may not plead facts that contradict the facts or positions that the plaintiff pleaded in earlier actions or suppress facts that prove the pleaded facts false. (Cantu, supra, at p. 877.) The principle is that of truthful pleading. When the plaintiff pleads inconsistently in separate actions, the plaintiff’s complaint is nothing more than a sham that seeks to avoid the effect of a demurrer. Under such circumstances, the court will disregard the falsely pleaded facts and affirm the demurrer. (Id. at pp. 877-878.)

Even so, the sham pleading doctrine is not intended to prevent honest complainants from correcting erroneous allegations, or to prevent correction of ambiguous facts. Instead it is intended to enable courts to prevent an abuse of process. (Larson, supra, 230 Cal.App.4th at p. 344.) Plaintiffs may avoid the effect of the sham pleading doctrine by alleging an explanation for the conflicts between the pleadings. (Id.)

State Parks’ motion to strike is short, simple, and basic, contending that the Court should strike the petition in Case No. 24CV02742, on the basis that it is a sham pleading because it was filed in an attempt to circumvent the mandatory dismissal requirement of Section 21167.4.

In its opposition to the motion, CRC raises issues which go far beyond Section 21167.4 as a basis for concluding that its Case No. 24CV02742 petition is or is not a “sham” petition. It raises issues regarding the statute of limitations applicable to its petitions seeking to require State Parks to comply with the CEQA mitigation measures it imposed upon itself in approving its projects, through use of Mitigated Negative Declarations. It contends that given that State Parks has not made any effort to implement the mitigation measures, and that State Parks’ violation of its mitigation obligations are therefore ongoing with each passing day, that the new petition states claims which are therefore not barred by the statute of limitations, and can and should be permitted to proceed, lest an agency’s mitigation measures be meaningless. Although its failure to comply with Section 21167.4 required that the CEQA claims be dismissed from Case No. 22CV02818, CRC contends that to permit that failure to forever bar any enforcement against State Parks for its continuing failure to even commence, much less implement, the mitigation measures, would be contrary to CEQA. Given that the projects have long been completed, the policies behind the ordinarily short CEQA limitations periods are no longer relevant.

In its reply papers, State Parks asserts for the first time that the new petition is a sham pleading because its contention that the alleged CEQA violations are ongoing directly contradicts its prior petition. It contends that this Court must disregard the Case No. 24CV02742 “inconsistent” allegations and “falsely pleaded facts,” and on that basis deem it to be a sham pleading. It acknowledges that (post project construction) petitions can be brought to enforce mitigation measures but urges that the current petition is barred by CRC’s original “discovery” of the basis of the petition, no later than 2022, in discovering that State Parks had never implemented the mandatory mitigation measures.

The arguments made by State Parks in its reply, particularly with respect to the statute of limitations issue, certainly respond to the opposition arguments, but also go well beyond the scope of the basic motion which it filed and upon which this Court must rule in determining whether the Case No. 24CV02742 petition should be stricken as a sham pleading.

Further, State Parks’ contention that the two petitions are contradictory is inaccurate. Indeed, in both the Case No. 22CV02818 petition and the Case No. 24CV02742 petition, CRC clearly articulated that the violations were ongoing and, for that reason, that each of the CEQA claims—in each petition—were therefore timely filed. The petitions do not, on their face, allege inconsistent facts. (See FAP in Case No. 22CV02818 at ¶¶ 139 and 148; and Case No. 24CV02742 petition at ¶¶ 155, 157, and 168-170.)

Additionally, if CRC has established a credible argument that there is no statute of limitations bar to its Case No. 24CV02742 petition, the Court would be loathe to find that it is a sham petition (i.e., inconsistent with the allegations of the original petition and filed just to evade the Section 21167.4 dismissal, and/or that it has suppressed facts which prove false its pleaded facts). The law surrounding sham pleading permits a plaintiff/petitioner to avoid the effect of the sham pleading doctrine by providing an explanation for any conflicts between the pleadings. In contending that the Case No. 24CV02742 petition is not barred by the statute of limitations and remains viable as a means of compelling State Parks to implement the mitigation measures it imposed upon itself when approving its projects in the 1990s, CRC has provided such an explanation.

Consequently, the Court will proceed to make a preliminary evaluation of the statute of limitations issue.

            C. CEQA statute of limitations (Pub. Res. Code, § 21167)

To ensure finality and predictability of public land use planning decisions, statutes of limitations governing such challenges are typically short. (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 499.) The limitations periods in CEQA adhere to this pattern, and CEQA provides unusually short statues of limitations on filing court challenges to the approval of projects under the act. (Ibid.; 14 Cal. Code Reg., § 15112(a) [CEQA Guidelines, § 15112, subd. (a)].) Courts have noted that the public interest is not served unless CEQA challenges are promptly filed and diligently prosecuted, and there is a legislative concern that CEQA challenges, with their obvious potential for financial prejudice and disruption, not be permitted to drag on to the potential serious injury of the real party in interest. (Stockton Citizens, supra, 48 Cal.4th at p. 500.) The Legislature has structured the legal process for a CEQA challenge to be speedy, so as to prevent it from degenerating into a guerilla war of attrition by which project opponents wear out project proponents. (Ibid.) CEQA establishes and emphasizes public notification of an agency’s action or decision as the event triggering the shortest appliable limitations periods for lawsuits alleging noncompliance with the statute. (Id, at p. 501.) “The reasons for this approach are clear. Public notification serves the public’s right, under CEQA, to be informed of, and to have a voice in, the process of evaluating the environmental issues surrounding a contemplated action or decision.” (Id. at p. 502.)

The CEQA limitations periods are set forth in Public Resources Code section 21167, which provides:

An action or proceeding to attack, review, set aside, void, or annul the following acts or decisions of a public agency on the grounds of noncompliance with this division shall be commenced as follows:

(a) An action or proceeding alleging that a public agency is carrying out or has approved a project that may have a significant effect on the environment without having determined whether the project may have a significant effect on the environment shall be commenced within 180 days from the date of the public agency's decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days from the date of commencement of the project.

(b) An action or proceeding alleging that a public agency has improperly determined whether a project may have a significant effect on the environment shall be commenced within 30 days from the date of the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152.

(c) An action or proceeding alleging that an environmental impact report does not comply with this division shall be commenced within 30 days from the date of the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152 by the lead agency.

(d) An action or proceeding alleging that a public agency has improperly determined that a project is not subject to this division pursuant to subdivision (b) of Section 21080 shall be commenced within 35 days from the date of the filing by the public agency, or person specified in subdivision (b) or (c) of Section 21065, of the notice authorized by subdivision (b) of Section 21108 or subdivision (b) of Section 21152. If the notice has not been filed, the action or proceeding shall be commenced within 180 days from the date of the public agency's decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days from the date of commencement of the project.

(e) An action or proceeding alleging that another act or omission of a public agency does not comply with this division shall be commenced within 30 days from the date of the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152.

(f) If a person has made a written request to the public agency for a copy of the notice specified in Section 21108 or 21152 before the date on which the agency approves or determines to carry out the project, then not later than five days from the date of the agency's action, the public agency shall deposit a written copy of the notice addressed to that person in the United States mail, first class postage prepaid. The date upon which this notice is mailed shall not affect the time periods specified in subdivisions (b), (c), (d), and (e).

In situations where a project which was constructed differs substantially from the one described in the EIR, the California Supreme Court has interpreted 21167(a) as meaning that an action challenging noncompliance with CEQA may be filed within 180 days of the time the plaintiff knows or should have known that the project under way differs substantially from the one described in the EIR. (Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural Association (1986) 42 Cal.3d 929, 933.)

In that case, an EIR had been issued, and a project approved, which included the construction of an amphitheater at the Orange County Fairgrounds. After the EIR was filed, and without any notification to the public or the filing of a subsequent EIR, the amphitheater underwent substantial changes, including a substantial increase of the size of its site, the addition of several thousand new seats, and the reconfiguration of the site so that the stage now faced single family residences north of the fairgrounds. Further, noise mitigation measures contemplated by the EIR was not taken, and the noise level exceeded that allowed by county law. Defendants demurred on the ground that the action for CEQA non-compliance was barred by the limitations period of Section 21167(a), because it was not filed within 180 days after construction of the theater commenced, and the trial court sustained the demurrer without leave to amend and dismissed the complaint.

The California Supreme Court reversed the Court of insofar as it had affirmed the trial court’s order dismissing the CEQA cause of action. The Supreme Court found that the changes made to the project could be characterized as substantial enough to have required a subsequent EIR to assess their environmental effects, but that the failure of the district to file a subsequent EIR deprived plaintiffs and the public of the opportunity to participate in the evaluation of the environmental effects of the project as finally approved. It noted that the primary duty to comply with CEQA must be placed on the public agency, but that it does not follow that an agency’s failure to comply with CEQA may be challenged at any time without limitation. As a result, it found that, under circumstances where an agency makes substantial changes in a project after the filing of the EIR and fails to fila a later EIR in violation of CEQA, an action challenging the agency’s noncompliance with CEQA may be filed within 180 days of the time the plaintiff knew or reasonably should have known that the project under way differed substantially from the one described in the EIR. Plaintiffs had suggested that they lacked actual or constructive notice of the changes before the first concert was held at the theater, and had alleged that they neither knew nor could with reasonable diligence have discovered that a cause of action had accrued to them until 180 days before the date they filed their complaint. The court held that this interpretation would be consistent with the Legislature’s intent that CEQA be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.

The parties agree that the CEQA causes of action as originally filed in Case No. 22CV02818 are now barred and cannot be realleged, in part because of the Section 21167.4 dismissal, but also in part under an analysis that follows the Concerned Citizens case. However, CRC also suggests in its opposition to the motion to strike, and cites case law which also appears to suggest, that unlike in cases where the CEQA challenge is to a project approval, or to the substance of a CEQA document (such as the adequacy of a mitigation measure), that challenges to the complete failure to implement a project’s required mitigation measures are not subject to the statute of limitations set forth in Section 21167.

Indeed, while the court in Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152 (Sierra Club), found a CEQA petition seeking to enforce mitigation measures timely when it was filed within filed within 30 days of the action which contravened the approved mitigation measures, it also noted that the Court of Appeal in Lincoln Place Tenants Association v. City of Los Angeles (Lincoln Place II) (2007) 155 Cal.App.4th 425, 453, fn. 23, had found that the plain language of Section 21167 had no application to a case seeking to enforce mitigating conditions. (Sierra Club, supra, 231 Cal.App.4th at p. 1166-1167.) The Sierra Club court emphasized that the challenge at issue in that case was not to the EIR or the adequacy of the mitigation measures it had imposed, but instead was a challenge to a decision which had been made in contravention of those mitigation measures, and sought to enforce the mitigation measures.

Substantively, if a developer or agency determines that the mitigation measures originally adopted are no longer practical or workable, and wishes to abandon or modify them, CEQA requires that the agency state a legitimate reason for doing so and support that statement with substantial evidence. (Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1168.) Further, such change or abandonment may require a supplemental EIR or other CEQA document. A previously adopted mitigation measure cannot be deleted without a showing that it is infeasible. (Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 359.) Mitigation measures cannot simply be ignored. (Lincoln Place Tenants’ Association v. City of Los Angeles (Lincoln Place I) (2005 130 Cal.App.4th 1491, 1508.)

Here, State Parks does not appear to have made any statement that the mitigation measures were impracticable or unworkable or should be abandoned, such that there would be date of decision upon which could be used to trigger any of the Section 21167 statutes of limitation. Rather, based upon the allegations of the two petitions, State Parks simply constructed its projects to completion while allegedly ignoring the mitigation measures it had imposed upon itself as conditions for approving the projects.

The FAP in Case No. 22CV02818 alleged that State Parks had neither started nor completed the riparian woodland and coastal salt marsh restoration projects (¶ 139), and alleged further that the petition was timely filed given the ongoing nature of State Parks’ failure to implement the project operation standards with respect to the Water Supply Project, the petition was timely filed. (FAP @ ¶ 148.)

The petition in Case No. 24CV02742 similarly alleges, with respect to the State Park Rehabilitation Project, that State Parks neither started nor completed the riparian woodland and coastal salt marsh restoration projects set out in the 1992 Negative Declaration and in the special conditions for the Coastal Permit (¶ 155), and that given the ongoing nature of the failure to implement the project’s mitigation measures, the petition is timely filed. (PET @ ¶ 157.) With respect to the Water Supply Project, the petition alleges that State Parks’ continued failure to connect and utilize the Caltrans well during the summer months when flows drop below 30gpm represents an ongoing violation of the 1998 MND and CEQA (¶ 168), that the 1998 MND imposes an ongoing, annual requirement to use the Caltrans Well to supplement supply from the Las Cruces spring and to mitigate impact on instream resources (¶ 169), and that given the ongoing nature of the failure to implement the project’s mitigation measures, the petition is timely filed. (¶ 170).

The Case No. 24CV02742 petition is therefore susceptible to the interpretation that it is alleging CEQA violations in the form of the ongoing failures to implement the mitigation measures imposed on the two projects in question, for which the statute of limitations has not yet run.

It is Reply, State Parks responds to the assertion that the CEQA claims alleged in the Case No. 24CV02742 petition are timely because they assert ongoing failures by State Parks to implement the mitigation measures it had imposed on itself in approving the State Park Rehabilitation Project and the Water Supply Project. It contends that the 180-day statute of limitations has expired on the claims, because the basis for these claims is the same as that already recognized by CRC when it filed the earlier petitions. It argues (apparently incorrectly) that CRC had provided no support for its position that the claims were not barred because they were ongoing, and claims that no such authority exists, concluding that a party cannot “rediscover” the same violation to restart the statute of limitations clock.

6. Final analysis of motion to strike

It appears to this Court that the final determination of the propriety of CRC’s filing of its petition in Case No. 24CV02742, may well hinge on a determination of whether that petition is or is not barred by the statute of limitations. It would not be appropriate for the Court to have dismissed the CEQA claims from Case No. 22V02818 with prejudice, if in fact a viable CEQA claim, not barred by the statute of limitations, could still be presented to the Court. Further, if such a claim exists, its presentation would not be a “sham pleading,” subject to being stricken by the Court under the sham pleading doctrine as having not been filed in conformity with the laws of this state. This is particularly true given that both of CRC’s petitions contain allegations which make clear its contention that the conduct by State Parks in constructing its projects to completion while allegedly completely ignoring the mitigation measures it had imposed upon itself in approving the projects, are ongoing violations which can be remedied through timely a CEQA challenge, and the petitions are neither inconsistent nor contain false allegations. 

However, that issue has not been placed in front of this Court in a manner which would permit its full evaluation and resolution in this action. The Court has been presented only with State Parks’ motion to strike the petition as a sham pleading, solely because it was filed to remedy the failure to comply with Section 21167.4 in Case No. 22CV02818. The Court’s evaluation of the issues (see above) has caused it to conclude that the viability of Case No. 24CV02742 cannot be fully resolved within the context of State Parks’ motion to dismiss. This is particularly true, given that CRC has presented some authority that, at a very minimum, has created a credible claim that the petition in Case No. 24CV02742 may well not be barred.

Because this Court cannot at this time determine that the petition in Case No. 24CV02742 is a sham pleading as a matter of law, the basis for State Parks’ motion to strike, i.e., that the petition was not filed in conformity with the laws of this state, necessarily fails. Consequently, the motion to dismiss will be denied.

The Court fully recognizes, however, that upon a full analysis of the statute of limitations issue, when both parties have had an opportunity to fully brief and analyze the issue, with an eye toward the proper allocation of the burden on this issue, this Court could potentially determine that the CEQA claims are, in fact, barred by the statute of limitations. As a result, the Court’s determination that the motion to strike must be denied is made without prejudice to any proper challenge to the petition in Case No. 24CV02742 on statute of limitations grounds, including in the final resolution of the petition.

Motion to Consolidate Case No. 24CV02742 with Case No. 22CV02818

Consolidation is a procedure for uniting separate lawsuits for trial or other purposes, where they involve common questions of law or fact and are pending in the same court. (Code Civ. Proc., § 1048, subd. (a).) The purpose of consolidation is to enhance trial court efficiency and to avoid the substantial danger of inconsistent adjudications. (See Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-979.)

CRC seeks to consolidate Case No. 24CV02742 with Case No. 22CV02818. The cases are both based upon the same underlying facts, involve the same parties, and seek the same relief, simply on different theories. While the cases are both pending in the same department and will be resolved by the same judge, all but eliminating the danger of inconsistent adjudications, the issues presented by the petitions are so overwhelmingly overlapping that the interest of judicial and party efficiency are significantly furthered by resolving the issues at one time and in one proceeding.

For these reasons, the Court will grant the motion for consolidation, and will order Case Nos. 22CV02818 and 24CV02742 consolidated for all purposes, with Case No. 22CV02818 designated as the lead case. From this point forward, all documents related to these cases shall be filed in Case No. 22CV02818.