CEMEX v. State Water Resources Control Board CA2/2

Filed 12/4/25 CEMEX v. State Water Resources Control Board CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has

not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

CEMEX, INC., B339579, B340779

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. 23STCP03578)

v.

STATE WATER RESOURCES

CONTROL BOARD,

Defendant and Respondent.

APPEALS from a judgment of the Superior Court of Los

Angeles County, Stephen I. Goorvitch, Judge. Affirmed.

Jeffer Mangels Butler & Mitchell, Kerry Shapiro and

Matthew D. Hinks for Plaintiff and Appellant.

Rob Bonta, Attorney General, Evan Eickmeyer, Acting

Assistant Attorney General, Eric M. Katz and Benjamin

Lempert, Deputy Attorneys General, for Defendant and

Respondent.

____________________

CEMEX, Inc., formerly known as Southdown, Inc., appeals

the trial court’s judgment dismissing its petition for a writ of

mandate against the State Water Resources Control Board

(Board). We affirm.

FACTUAL BACKGROUND1

I. The Soledad Canyon Project

CEMEX produces construction and building materials. In

1990, CEMEX entered into two contracts with the United States

to develop a sand and gravel mine in the unincorporated Soledad

Canyon area of Los Angeles County (the Project). Since then, the

Project has been reviewed by various government entities and

has been the subject of litigation in California and federal courts.

In August 2015, the federal government rescinded CEMEX’s

mining material contracts. CEMEX filed suit in May 2019, and in

2022, the United States District Court for the District of

Columbia vacated that rescission.

II. CEMEX Applies for a Permit to Appropriate Water

In connection with the Project, CEMEX filed an application

(No. A029967) in June 1991, for a permit to appropriate water

from the Santa Clara River for mining and industrial uses. The

Board deemed the application complete and issued a public notice

in May 1993. That triggered the public protest period required by

the Water Code, and 10 protests were filed with the Board. (See

Wat. Code, §§ 1302–1303.) The City of Santa Clarita (City) did

not file a protest.

1 In reciting this summary, we assume the truth of the facts

alleged in CEMEX’s petition. (See Committee for Green Foothills

v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32,

42.)

2

CEMEX’s permit application remained pending while

litigation regarding the broader Project proceeded. During that

time, six of the 10 protests were resolved; four remain pending.

In August 2004, the City requested the Board re-notice

CEMEX’s application. The Board decided not to do so. In June

2016, the City requested the Board cancel CEMEX’s application

or reopen the protest period in light of the federal government’s

rescission of CEMEX’s mining contracts. The Board refused to do

so.

In November 2019, the Board informed CEMEX it would

pause staff processing of the application until the litigation

regarding the Project contracts were resolved.

III. The Board’s Decision to Re-notice the Application

After the federal district court vacated the rescission of

CEMEX’s contracts in connection with the broader Project, the

Board informed CEMEX on June 1, 2023, it was resuming staff

processing of the permit application. It also told CEMEX the

Board’s executive director had “determined the application will

be re-noticed.” The letter explained the application had originally

been noticed nearly 30 years ago, and during that time, “the

circumstances of affected downstream water users or other

interested persons have changed. For example, many of the

entities that have filed protests against the application no longer

exist due to changes in property ownership and other factors. In

addition, multiple entities which did not file protests in response

to the 1993 notice have contacted the Division to request that the

application be re-noticed so that they have an opportunity to file

a protest and participate in the proceedings related to the

application. For these reasons, I have determined that the record

does not reflect up-to-date circumstances and re-noticing of the

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application is necessary. (Cal. Code Regs., tit. 23, § 684,

subd. (b).)”

Later that month, CEMEX petitioned the Board to

reconsider the June 1, 2023, decision to re-notice its permit

application. (See Wat. Code, § 1122; Cal. Code Regs., tit. 23,

§ 768.) It argued re-noticing was unwarranted because “(1) there

have been no changes in CEMEX’s Application or project, and

(2) there are no changes, related to this Application, in the

circumstances of any affected downstream water users or other

interested persons.”

On August 30, 2023, the Board dismissed CEMEX’s

petition for reconsideration. It determined the June 1, 2023,

letter “[did] not constitute a final water right decision or order”

and thus was “not subject to reconsideration.” The Board noted

“CEMEX’s application is still being processed, and the Board has

not reached a final decision or adopted an order on application

A029967.” Thus, the Board concluded the petition for

reconsideration was premature.

PROCEDURAL HISTORY

CEMEX filed a petition for a writ of mandate in the trial

court on September 29, 2023. Its first cause of action sought a

writ to overturn the Board’s June 1, 2023, decision to re-notice its

application. Its second cause of action sought a writ to overturn

the Board’s August 30, 2023, dismissal of its petition for

reconsideration. Both causes of action were styled as arising

under Code of Civil Procedure section 1094.52 “and/or”

section 1085. CEMEX also alleged it had exhausted

2 Undesignated statutory references are to the Code of Civil

Procedure.

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administrative remedies by filing a petition for reconsideration

with the Board, and that “[n]o further administrative remedies

exist.”

The Board demurred to the petition on several grounds,

including that review was not available under section 1085, the

re-noticing decision was not a final decision ripe for review, and

the Board had no obligation to entertain the petition for

reconsideration.

The trial court sustained the demurrer without leave to

amend. It first concluded the Water Code required CEMEX to

seek a writ under section 1094.5, not section 1085. Next, the trial

court determined CEMEX could not obtain a writ under

section 1094.5 because that was available “only for ‘final

administrative order[s] or decision[s],’ ” and the re-noticing

decision was not sufficiently final. The trial court reviewed the

requirement of exhaustion of administrative remedies, and

concluded CEMEX had not shown it was entitled to any exception

to that doctrine. Finally, the trial court concluded “there is no

meaningful distinction between this interim procedural decision

and others made by [the] Board,” and CEMEX had to wait “until

there has been a ‘final action’ by the Board on the application.” It

therefore determined the Board properly denied CEMEX’s

petition for reconsideration, and it sustained the demurrer

without leave to amend.

An order dismissing the action with prejudice was entered

on May 9, 2024. CEMEX filed a notice of appeal from that order

on July 3, 2024 (No. B339579). Judgment was entered on July 5,

2024. CEMEX filed a notice of appeal from the judgment on

August 22, 2024 (No. B340779). The appeals are timely. (See

Cal. Rules of Court, rule 8.104(a)(1)(A), (d).)

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On December 2, 2024, we granted the parties’ joint motion

to consolidate those appeals. On October 22, 2025, we invited the

parties to present their views regarding the application of the

doctrine of exhaustion of administrative remedies. (See Gov.

Code, § 68081.) Both parties did so.

DISCUSSION

We review de novo the trial court’s order dismissing a

petition for writ of mandate without leave to amend. (Committee

for Sound Water & Land Development v. City of Seaside (2022)

79 Cal.App.5th 389, 399.) “ ‘[W]e may affirm on any ground

supported by the record.’ ” (Beverage v. Apple, Inc. (2024)

101 Cal.App.5th 736, 747.)

“ ‘A traditional writ of mandate under . . . section 1085 is a

method for compelling a public entity to perform a legal and

usually ministerial duty.’ [Citation.] By contrast, ‘the purpose of

an administrative mandamus proceeding, under . . . section

1094.5, is to review the final adjudicative action of an

administrative body.’ ” (Westsiders Opposed to Overdevelopment

v. City of Los Angeles (2018) 27 Cal.App.5th 1079, 1085.)

The trial court correctly dismissed CEMEX’s section 1094.5

petition on the ground the Board’s proceeding on CEMEX’s

permit application is ongoing and no final order or decision has

been rendered. Likewise, dismissal of the section 1085 petition

was appropriate because the Board’s proceeding on the permit

application is ongoing, and CEMEX has not exhausted

administrative remedies.

I. The Petition Arising Under Section 1094.5 Was

Properly Dismissed

CEMEX does not dispute that section 1094.5 requires a

final decision by the Board. Rather, it argues the decisions it

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challenges—the letter informing it the application would be re-

noticed and the Board’s refusal to reconsider that decision—are

final. We disagree.

A. It Is Undisputed the Board’s Proceeding on

CEMEX’s Permit Application Is Ongoing

The Board’s decision to re-notice CEMEX’s application for a

permit to appropriate water did not arise sua sponte; instead, it

arose in the context of the Board’s processing of CEMEX’s permit

application. (See Cal. Code Regs., tit. 23, § 684, subd. (b).) Our

Legislature tasked the Board with “consider[ing] and act[ing]

upon all applications for permits to appropriate water” (Wat.

Code, § 1250) and enacted a detailed statutory scheme governing

those applications (see, e.g., Wat. Code, §§ 1200–1415). To fulfill

its statutorily prescribed duties, the Board has duly adopted

extensive regulations further delineating its consideration and

processing of applications. (See, e.g., Cal. Code Regs., tit. 23,

§§ 678–679, 681, 683–684, 751, 768, 770.)

The Water Code and the accompanying regulations

“contain[] a complete administrative procedure” governing

CEMEX’s permit application, a procedure currently ongoing.

(Abelleira v. District Court of Appeal, Third Dist. (1941) 17 Cal.2d

280, 291 (Abelleira) [discussing doctrine of exhaustion of

administrative remedies].) It is undisputed the Board continues

to process CEMEX’s permit application No. A029967.

B. The Board Has Not Rendered a Final Decision

or Order

Because CEMEX’s permit application remains pending

before the Board, no final decision has been reached in the

proceeding. “ ‘Until a public agency makes a final decision, the

matter is not ripe for judicial review.’ ” (AIDS Healthcare

7

Foundation v. State Dept. of Health Care Services (2015)

241 Cal.App.4th 1327, 1338 (AIDS Healthcare).) “ ‘ “A decision

attains the requisite administrative finality when the agency has

exhausted its jurisdiction and possesses ‘no further power to

reconsider or rehear the claim.’ ” ’ ” (Id. at pp. 1337–1338;

California Water Impact Network v. Newhall County Water Dist.

(2008) 161 Cal.App.4th 1464, 1485 (California Water) [same].)

The Board is still considering CEMEX’s permit application,

and CEMEX does not contend the Board has exhausted its

jurisdiction over that application. Rather, CEMEX argues the re-

noticing decision and the order refusing to reconsider it are

sufficiently final for purposes of section 1094.5. We disagree.

First, CEMEX argues we must accept as true the petition’s

allegation “ ‘[t]he Board’s Decision to Re-Notice is a final

decision.’ ” Not so. Upon review of a demurrer, “courts must

assume the truth of the . . . properly pleaded or implied factual

allegations.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th

1074, 1081.) But “ ‘we do not assume the truth of “contentions,

deductions, or conclusions of law.” ’ ” (Beverage v. Apple, Inc.,

supra, 101 Cal.App.5th at p. 746.) CEMEX’s argument the re-

noticing decision is final is a contention we are not required to

adopt.3

Second, CEMEX argues the re-noticing decision is the final

action by the Board with regard to re-noticing specifically, and

thus, it need not await a final decision on its broader application.

CEMEX cites no authority for that position, and we are not

persuaded. That the June 1, 2023, letter (or the Aug. 30, 2023,

3 For the same reason, we do not adopt CEMEX’s allegation

the Board’s refusal to reconsider the re-noticing decision was

final.

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letter refusing to reconsider) may be the final decision of the

Board with regard to the re-noticing issue does not mean that

decision is imbued with the requisite finality for purposes of

judicial intervention by means of mandamus. (See California

Water, supra, 161 Cal.App.4th at p. 1487 [approval of water

supply assessment was not final decision because lead agency

still had to evaluate it and make findings].) As we explained

above, the Board plainly retains jurisdiction over CEMEX’s

permit application. (See AIDS Healthcare, supra,

241 Cal.App.4th at pp. 1337–1338.) The Board’s decision to re-

notice the permit application is simply one interlocutory step in

the Board’s statutory and regulatory process to evaluate

CEMEX’s application for a permit to appropriate water from the

Santa Clara River. Mandamus review is not available for an

interlocutory step in that process. (See California Water, at

p. 1489 [“The [water supply assessment] is but an interlocutory

and preliminary step . . . , and . . . interim decisions are not

subject to mandamus review.”].)

In essence, CEMEX is asking us “to interfere in the middle”

of an administrative proceeding before it becomes final.

(Abelleira, supra, 17 Cal.2d at p. 305.) That “challenges judicial

practices of long standing.” (Id. at p. 306.) The trial court

properly refused to intervene prematurely, before a final decision

had been rendered. It correctly dismissed CEMEX’s petition

arising under section 1094.5.

C. CEMEX’s Policy Arguments Are Not Persuasive

In its opening brief, CEMEX argues “[p]recluding any

judicial challenges to Board actions before a final action on an

application” would be unwise as a matter of policy. But

regardless of CEMEX’s policy preferences, it is undisputed the

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Legislature made section 1094.5 applicable to “final

administrative order[s] or decision[s].” (§ 1094.5, subd. (a).) We

will not second guess the Legislature’s wisdom in that regard.

(See Los Angeles County Metropolitan Transportation Authority

v. Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1113–

1114 [we do “not . . . ‘ “sit in judgment of the Legislature’s wisdom

in balancing . . . competing public policies” ’ ”]; see also Plantier v.

Ramona Municipal Water Dist. (2019) 7 Cal.5th 372, 383

(Plantier) [“creating an agency with particular expertise . . .

would be frustrated if a litigant could bypass the agency in the

hope of seeking a different decision in court”].)4

II. The Petition Arising Under Section 1085 Was

Properly Dismissed

The trial court also dismissed CEMEX’s petition arising

under Code of Civil Procedure section 1085 on the ground the

Legislature intended Code of Civil Procedure section 1094.5 to

“govern judicial review of all cases relating to state water.”

(Phelps v. State Water Resources Control Board (2007)

157 Cal.App.4th 89, 105; see also Wat. Code, § 1126, subd. (c).)

CEMEX and the Board dispute whether a section 1085 writ

petition is cognizable in a Water Code proceeding, and whether

this petition fails on its merits. We need not resolve those

disputes because even assuming Board action can be challenged

4 In its opening brief, CEMEX raised (without citation)

various policy arguments that seem related to exceptions to the

doctrine of exhaustion of administrative remedies. As we explain

in Discussion, part II.B., post, we are not persuaded any of those

exceptions apply.

10

via a section 1085 petition, CEMEX’s fails for essentially the

same reason as does its section 1094.5 petition.5

A. The Doctrine of Exhaustion of Administrative

Remedies Applies to Section 1085 Writ Petitions

CEMEX argues it may bring a section 1085 petition,

notwithstanding the lack of a final order, because section 1085 is

not limited to final orders. (Compare § 1085 with § 1094.5,

subd. (a).) That argument fails to account for the doctrine of

exhaustion of administrative remedies.

“ ‘[E]xhaustion of . . . administrative remedies’ . . . refers to

the requirement that administrative remedies be pursued as a

jurisdictional prerequisite to seeking judicial relief from an

administrative action.” (California Correctional Peace Officers

Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1148, second

ellipsis added.) It “is a closely related concept to finality.”

(California Water, supra, 161 Cal.App.4th at p. 1489.) Moreover,

the doctrine applies to petitions for writs of mandate arising

under both sections 1085 and 1094.5. (See FlightSafety Internat.,

Inc. v. Los Angeles County Assessment Appeals Board (2023)

96 Cal.App.5th 712, 718; see also Lopez v. Civil Service Com.

(1991) 232 Cal.App.3d 307, 314–315 [“The exhaustion doctrine

applies generally whenever judicial relief is sought where a

remedy is available at the administrative level.”].) When CEMEX

responded to our request for its views on the application of the

doctrine here, it acknowledged “the exhaustion doctrine is always

potentially applicable when challenging agency action.”

5 CEMEX’s briefing focuses on its first cause of action, but

the ongoing administrative proceedings and lack of a final order

are fatal to its second cause of action for the same reasons.

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Exhaustion requires “the administrative agency [to]

initially decide the ‘entire controversy’ ” before it. (Jonathan Neil

& Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 933 (Jonathan

Neil); see Plantier, supra, 7 Cal.5th at p. 383 [courts should

generally not “intervene before an agency has fully resolved the

matter”].) It thus requires a party to “proceed through the full

administrative process ‘to a final decision on the merits,’ ” and

those “[a]dministrative proceedings should be completed before

the issuance of a judicial writ.” (California Water, supra,

161 Cal.App.4th at p. 1489.) “ ‘The . . . doctrine is principally

grounded on concerns favoring administrative autonomy (i.e.,

courts should not interfere with an agency determination until

the agency has reached a final decision) and judicial efficiency

(i.e., overworked courts should decline to intervene in an

administrative dispute unless absolutely necessary).’ ” (Coachella

Valley Mosquito & Vector Control Dist. v. California Public

Employment Relations Board (2005) 35 Cal.4th 1072, 1080

(Coachella Valley).)

As we have already explained in Discussion, parts I.A.–B.,

ante, it is undisputed the Board retains jurisdiction over

CEMEX’s permit application, which remains pending before it.

Plainly, the Board has not yet resolved or decided that “ ‘entire

controversy.’ ” (Jonathan Neil, supra, 33 Cal.4th at p. 933.)

“ ‘[T]he administrative process has [not yet] run its course.’ ”

(California Water, supra, 161 Cal.App.4th at p. 1489.) Thus,

CEMEX has not exhausted its administrative remedies before the

Board. We decline CEMEX’s invitation “to interfere in the

middle” of that ongoing administrative proceeding. (Abelleira,

supra, 17 Cal.2d at p. 305.)

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B. No Exception Applies

In its response to our Government Code section 68081

letter, CEMEX argued three exceptions to the exhaustion

doctrine should apply here: “the administrative remedy is

‘inadequate’ or ‘unavailable,’ or . . . it would be ‘futile’ to pursue

it.”6 We disagree any exception applies.

First, CEMEX argues it has no available remedy because

“the Board will never reconsider an interim, procedural decision.”

But that only underscores that CEMEX’s real disagreement is

with the doctrine of administrative exhaustion itself. That is,

CEMEX argues in favor of having a court hear its challenge

immediately, without waiting for the Board’s administrative

proceeding to run its course. Were we to hold administrative

remedies unavailable merely because a party must submit to the

administrative procedures prescribed by statute and regulation,

the unavailability exception would swallow the exhaustion

doctrine entirely. (See Abelleira, supra, 17 Cal.2d at p. 293 [“the

rule will disappear unless this court is prepared to enforce it”];

California Water, supra, 161 Cal.App.4th at p. 1489 [“Each step

in the administrative proceeding cannot be reviewed separately,

any more than each ruling in the trial of a civil action may be

separately reviewed by a separate appeal.”].) CEMEX cites no

6 In its opening and reply briefs, CEMEX speculated that

requiring a final administrative order could allow the Board to

refuse to consider a timely filed protest. But one of the recognized

exceptions to exhaustion of administrative remedies is a

“ ‘situation[] where the agency indulges in unreasonable delay.’ ”

(Public Employment Relations Bd. v. Superior Court (1993)

13 Cal.App.4th 1816, 1827.) CEMEX does not argue (and this

record does not suggest) the Board has engaged in unreasonable

delay.

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authority holding administrative remedies are unavailable

merely because a party prefers not to pursue them.

(Cf. Automotive Management Group, Inc. v. New Motor Vehicle

Bd. (1993) 20 Cal.App.4th 1002, 1015, cited by CEMEX and

analyzing “the futility exception.”)

Second, CEMEX argues awaiting a decision on its water

application is an inadequate remedy “because the harms CEMEX

seeks to avoid would already have been incurred.” In its opening

brief, CEMEX argued the re-noticing “will have massive

consequences on the proceedings . . . that cannot be corrected by

review after the Board’s action on the application,” such as

CEMEX incurring additional costs and delays to respond to new

protests. But that does not demonstrate administrative remedies

are inadequate. On the contrary, administrative remedies are

adequate so long as the agency has authority to hear a party’s

complaint, even if “the administrative procedures arguably limit

the remedy the agency may award.” (Campbell v. Regents of

University of California (2005) 35 Cal.4th 311, 323; cf. Unnamed

Physician v. Board of Trustees of Saint Agnes Medical Center

(2001) 93 Cal.App.4th 607, 621 (Unnamed Physician)

[administrative remedies are inadequate “ ‘where the challenge is

to the constitutionality of the administrative agency itself or the

agency’s procedure’ ” (italics omitted)].)

CEMEX does not argue the Board will be unable to hear its

complaints regarding re-noticing at a later point; rather, it

argues the harms it will suffer cannot be fully remedied at that

time. But a remedy is not “inadequate simply because it is not

the result desired,” (AIDS Healthcare, supra, 241 Cal.App.4th at

p. 1351), or “ ‘because additional time and effort would be

consumed by its being pursued through the ordinary course of the

14

law’ ” (Unnamed Physician, supra, 93 Cal.App.4th at p. 620).

CEMEX has not shown the Board lacks authority to hear its

complaints about the re-noticing decision, even if the Board may

ultimately be unable to grant CEMEX all the relief it desires.

Third, CEMEX argues administrative remedies are futile

for the same reason it believes they are inadequate. But futility

and inadequacy are distinct. “ ‘The futility exception requires

that the party invoking the exception “can positively state that

the [agency] has declared what its ruling will be on a particular

case.” ’ ” (Coachella Valley, supra, 35 Cal.4th at pp. 1080-1081.)

To the extent CEMEX means to argue exhaustion is futile

because the Board has conclusively decided to re-notice its

application, we disagree. “For the futility exception to apply, it is

not sufficient that a party can show what the agency’s ruling

would be on a particular issue . . . . Rather, the party must show

what the agency’s ruling would be ‘ “on a particular case.” ’

[Citation.] This follows from the exhaustion doctrine itself, which

‘precludes review of an intermediate or interlocutory action of an

administrative agency.’ ” (Coachella Valley, supra, 35 Cal.4th at

p. 1081.) That is, CEMEX cannot simply show the Board has

conclusively decided to re-notice its application; rather, it must

show the outcome of the Board’s proceedings on its permit

application is a foregone conclusion. (Ibid. [“Had the

administrative proceeding run its course, [petitioner] might have

prevailed on some [other] procedural ground . . . , or it might have

prevailed on the merits”].) CEMEX has not attempted to make

that showing.

In its letter brief, CEMEX asks for leave to amend “to plead

additional facts supporting the exceptions.” Because CEMEX has

not shown “what facts [it] could plead to cure the existing defects

15

in” its petition, we deny that request. (Total Call Internat. Inc. v.

Peerless Ins. Co. (2010) 181 Cal.App.4th 161, 166.)

DISPOSITION

The judgment is affirmed. The Board is entitled to costs.

(See Cal. Rules of Court, rule 8.278(a)(1)–(2).)

RICHARDSON, J.

WE CONCUR:

LUI, P. J.

CHAVEZ, J.

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