Concerned Citizens of Costa Mesa
How later courts described this case
- Concerned Citizens of Costa Mesa
Written by the judges who cited it.
The opinion
MOSK, J.
I dissent.
The majority interpret the relevant statutory provisions properly, but they err in analyzing the complaint.
The law is clear that if a public agency makes substantial changes in a project after filing an environmental impact report (EIR) and fails to file the supplemental EIR those changes require, an action challenging the agency’s noncompliance with the California Environmental Quality Act (CEQA) “must be filed within 180 days of the time the plaintiff knew or should have known that the project under way differs substantially from the one described in the EIR.” Assuming arguendo these plaintiffs did not actually know of the variations—which is difficult to believe—the question is when they should have known that the amphitheatre under construction differed substantially from the project described in the EIR.
In ruling on a general demurrer we must accept as true “all the material factual allegations in the complaint.” We are not, however, compelled to accept as sound the various legal conclusions set forth in the complaint. Nor are we prohibited from rationally reading the factual allegations.
The majority obviously harbor some reservations about the validity of the complaint, for their opinion observes that “‘if there is a reasonable possibility that a defect in the complaint can be cured by amendment or that the pleading liberally construed can state a cause of action, a demurrer should not be sustained without leave to amend,’” citing Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118 [ 113 Cal.Rptr. 102 , 520 P.2d 726 ]. In this case, however, plaintiffs were given leave to amend and elected instead to stand on their complaint. In such situations we construe a complaint strictly, and we presume the plaintiffs have stated “as strong a case as [they] can.” (Gonzales v. State of California (1977) 68 Cal.App.3d 621, 635 [ 137 Cal.Rptr. 681 ]; see also Sarro v. Retail Store Employees Union (1984) 155 Cal.App.3d 206, 211 [ 202 Cal.Rptr. 102 ].) Thus the majority *941 are saddled with the complaint as it is, and not as it conceivably might be strengthened with the benefit of 20/20 hindsight.
Plaintiffs filed their complaint on January 20, 1984. That complaint was untimely under the rule now adopted if it was filed more than 180 days after plaintiffs knew or should have known of the substantial changes in the amphitheater plans. January 20, 1984, is 180 days after July 24, 1983. Therefore, if plaintiffs should have known of the changes by July 23—or any earlier date—their complaint was untimely.
But, maintain plaintiffs, the defendants “concealed and misrepresented” facts material to their knowledge. We are not told how or in what manner the concealment was accomplished in connection with construction that took place in public view and, as alleged in the complaint, within sight of the plaintiffs who “have homes adjacent or proximate to the Orange County Fairgrounds.”
Plaintiffs concede that construction commenced in February 1983, and that the amphitheater was fully completed in time for a public concert on July 27. If the amphitheater was ready for use on July 27, it is impossible to rationally conceive a set of facts under which plaintiffs would not have been aware of the substantial changes more than three days earlier. Indeed, their complaint is deficient in alleging no such unusual facts.
Rome was not built in a day. Nor was this $11 million project built in three days. Plaintiffs concede that the amphitheater was constructed in a comer of the Orange County Fairgrounds, and that this was their home neighborhood. They allege that the amphitheater occupied 10 acres instead of the originally projected 6, and that the stage now faced a direction different from that originally proposed.
A court must be deemed naive if it is asked to believe these neighbors failed to observe construction on 10 acres rather than 6 until after the first public concert. Justice may wear a blindfold, but these plaintiffs do not allege they were similarly handicapped.
My concern with the majority result is three-fold. First, it puts these defendants to the time and expense of a trial and unnecessarily burdens the courts. Second, and more importantly, under Parkinson’s Law the majority opinion will inevitably encourage numerous frivolous challenges to public or private projects after the statutory period has run. Under this new prevailing theory, complainants may await completion of a project that has been under construction for months before challenging its propriety. All *942 they must do is baldly allege, without any supporting facts, that they were blissfully unaware of the construction violation, even if the project was built next door. And finally, what will be the ultimate result of these tardy lawsuits—court orders to tear down completed buildings? In short, I fail to see any economic or environmental value in permitting litigation beyond the statutory period.
I would hold that the complaint was untimely and the demurrer was properly sustained.
Lucas, J., and Panelli, J., concurred.
Respondents’ petitions for a rehearing were denied January 22, 1987.