Opinion

Sonoma Luxury Resort v. Cal. Regional Water Quality Control Bd.

Court
California Court of Appeal
Filed
Oct 25, 2023
Status
Published
Cited by
0 cases
Authority
More cited than 14.1%

The opinion

Filed 10/25/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

SONOMA LUXURY RESORT

LLC,

Plaintiff and Appellant, A165227

v. (Sonoma County Super. Ct.

CALIFORNIA REGIONAL No. SCV-268564)

WATER QUALITY CONTROL

BOARD, NORTH COAST

REGION,

Defendant and Respondent.

SONOMA LUXURY RESORT

LLC,

Plaintiff and Appellant, A165256

v. (Sonoma County Super. Ct.

STATE WATER RESOURCES No. SCV-268563)

CONTROL BOARD,

Defendant and Respondent.

The principal question we address in these consolidated appeals

is whether a plaintiff challenging an agency’s adjudicative decision may

avoid the otherwise-applicable statute of limitations if the plaintiff

contends that the agency acted without subject matter jurisdiction. We

conclude that where, as here, the Legislature has clearly expressed its

intent to prohibit all judicial review of the decision except in accordance

with the terms of the statute, the answer is no, at least in the absence

of any showing that the Legislature’s prohibition on additional judicial

review is unlawful.

The Regional Water Quality Control Board, North Coast Region

(Regional Board) issued a civil liability complaint against Sonoma

Luxury Resort, LLC (SLR) and, after a hearing, imposed more than six

million dollars in penalties for SLR’s pollution of protected waterways

during its construction of a residential resort in Healdsburg. SLR

asked the State Water Resources Control Board (State Board) to

exercise its discretion to review the Regional Board’s decision, but the

State Board declined.

SLR then filed separate petitions for administrative mandamus

against the Regional and State Boards, but missed the filing deadline

by three weeks. On that ground, the trial court in each case sustained

the respective Board’s demurrer without leave to amend; the State

Board’s demurrer was also sustained on the ground that the State

Board’s declination to review the Regional Board’s decision is not

subject to judicial review. SLR appealed from the two resulting

judgments, and on our own motion, we consolidated the appeals for

argument and disposition.

Although it neglects altogether the additional ground on which

the trial court sustained the State Board’s demurrer, SLR tries to avoid

the statute of limitations in both cases by arguing that, where an

agency acts in the absence of subject matter jurisdiction, its action may

be challenged at any time, and here the Regional Board “divested itself”

of subject matter jurisdiction by conducting the administrative hearing

by videoconference over SLR’s objection. Although the remote hearing

was authorized by Executive Order N-63-20 (Executive Order), issued

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by the Governor during the COVID-19 emergency, SLR challenges the

lawfulness of the Executive Order under various facial and as-applied

theories. In summary, SLR argues that: (1) the Executive Order

violated the separation of powers (an argument rejected in Newsom v.

Superior Court (2021) 63 Cal.App.5th 1099 and LaCour v. Marshalls of

California, LLC (2023) 94 Cal.App.5th 1172, 1185–1189 with respect to

similar executive orders); (2) the Regional Board unlawfully extended it

to a “non-emergency hearing” (overlooking that the emergency was the

COVID-19 pandemic, not the individual proceedings to which the

Executive Order applied); (3) the hearing was a “quasi-criminal”

proceeding because it was “akin to a criminal enforcement action” and

the Regional Board imposed an “excessive and punitive fine,” and

therefore the application of the Executive Order denied SLR the Due

Process and Sixth Amendment rights to which it was entitled as a

criminal defendant; (4) for the same reasons, the Regional Board

“committed a prejudicial abuse of discretion” by applying the Executive

Order rather than the Judicial Council’s Emergency Rule 3; and (5) the

Executive Order did not apply by its own terms because “there is no

evidence” that the Regional Board satisfied the requirements of the

Americans with Disabilities Act and the Unruh Civil Rights Act.

We would find these arguments meritless if it were necessary to

reach them. But we need not resolve the appeals on that basis because

SLR’s underlying premise is flawed. Water Code section 133301 not

only imposes a 30-day deadline for challenging a regional board’s

decision (§ 13330, subd. (b)), but expressly prohibits any judicial review

1 All further undesignated statutory references are to the Water

Code.

3

of the decision except in accordance with the provisions of that section

(id., subds. (d), (f)). Accordingly, we conclude that SLR’s petitions were

untimely regardless of the basis for them.

BACKGROUND

In 2016, SLR began construction of a project consisting of a

luxury resort, residential homes, open space, and related infrastructure

in the hills in the northern portion of Healdsburg in Sonoma County.

SLR was permitted to proceed with the project as long as it conformed

to certain permit, policy, and plan requirements designed to protect

“beneficial uses” of the Russian River watershed, in which the project is

located. (§ 100.) Beneficial uses of the impacted water include

municipal, domestic, agricultural, and industrial water supplies,

groundwater recharge, hydropower generation, fishing and recreational

activities, and habitat for wildlife, including rare, threatened, or

endangered species.

Beginning in October 2018, Regional Board staff visited the

project site and documented numerous violations of permit, policy, and

plan requirements. The violations included SLR’s failure to implement

pollution control measures and the actual discharge of pollutants into

protected waters on multiple days between October 2018 and

May 2019. The Regional Board issued a complaint proposing a penalty

of $6,425,680 for 38 violations.

The Regional Board notified SLR that it would hold a two-day

videoconference hearing on the complaint. SLR objected to the remote

format of the hearing, contending that it violated the Administrative

Procedures Act, and that the Executive Order was an unconstitutional

exercise of the Governor’s powers under the California Emergency

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Services Act, Government Code section 8550 et seq., insofar as it

allowed for remote administrative proceedings over a party’s objection.

The Regional Board overruled the objection and, following the hearing,

issued its order assessing the full penalty amount against SLR.2

On January 11, 2021, SLR requested that the State Board review

the order, but the State Board took no action on the request. SLR filed

its petitions for writ of administrative mandamus against each Board

on June 3, 2021. As noted, the trial courts sustained the Boards’

demurrers without leave to amend on the ground that the petitions

were untimely, and in the State Board’s case, on the additional ground

that the State Board’s declination to review a regional board’s decision

is not subject to judicial review.

STANDARD OF REVIEW

We review an order sustaining a demurrer de novo, applying our

independent judgment to assess whether the complaint states a cause

of action. (Minton v. Dignity Health (2019) 39 Cal.App.5th 1155, 1161.)

We assume the truth of all properly pleaded facts, as well as all facts

that may be implied or reasonably inferred from those expressly

alleged, but we do not assume the truth of contentions, deductions, or

conclusions of fact or law. (Ibid.) “In order to prevail on appeal from

an order sustaining a demurrer, the appellant must affirmatively

demonstrate error. Specifically, the appellant must show that the facts

pleaded are sufficient to . . . overcome all legal grounds on which the

trial court sustained the demurrer.” (Scott v. JPMorgan Chase Bank,

2 We have granted the Boards’ requests for judicial notice of the

transcript of the Regional Board hearing and the Regional Board’s

rulings on SLR’s prehearing objections.

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N.A. (2013) 214 Cal.App.4th 743, 752 (Scott).) We review for abuse of

discretion the trial court’s denial of leave to amend. (Minton, at

pp. 1161–1162.)

DISCUSSION

1. SLR Fails to Address the Trial Court’s Ruling that the

State Board’s Declination to Review the Regional Board’s

Order Is Not Subject to Judicial Review

In the next section, we analyze the timeliness of SLR’s petitions.

But first, SLR has disregarded its burden on appeal by failing to

address the trial court’s additional basis for sustaining the State

Board’s demurrer. As the State Board pointed out, in Johnson v. State

Water Resources Control Bd. (2004) 123 Cal.App.4th 1107, 1112–1114,

the court found that the trial court properly sustained the State Board’s

demurrer on the ground that its declination to review a regional board’s

imposition of a penalty is not subject to judicial review. Similarly, in

City of Rancho Cucamonga v. Regional Water Quality Control Bd.

(2006) 135 Cal.App.4th 1377, 1383, the court held that the State

Board’s declination to review the regional board’s decision did not make

it a proper party and upheld the order sustaining its demurrer for that

reason.

SLR’s opening brief did not address this ground for the trial

court’s ruling, and in response to the State Board’s briefing of the issue,

its reply brief misstated the argument as follows: “Next, the State

Board claims incorrectly that neither it nor the Court of Appeal can

review the Regional Board’s decision imposing administrative penalties

on SLR because SLR has waived or abandoned these arguments.” The

State Board did not argue that it could not review the Regional Board’s

decision, and SLR’s reply brief did not respond to the State Board’s

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actual argument or address the authorities the State Board cited in

support of its position. Because SLR has not even attempted to satisfy

its burden on appeal to “overcome all legal grounds on which the trial

court sustained the demurrer” (Scott, supra, 214 Cal.App.4th at p. 752),

the judgment in favor of the State Board must be affirmed on that

basis. Moreover, we caution SLR that the foregoing considerations

could warrant a conclusion that its appeal of that judgment was

frivolous. (See Personal Court Reporters, Inc. v. Rand (2012)

205 Cal.App.4th 182, 191 [appeal is frivolous when it “ ‘indisputably

has no merit’ ”].)3

2. SLR’s Petitions Were Untimely

Under section 13330, subdivision (b), SLR was required to file

any challenge to the Regional Board’s order in the trial court no later

than 30 days from the date its request for State Board review was

dismissed by operation of law. (§ 13330, subd. (b); Cal. Code Regs.,

tit. 23, § 2050.5, subd. (e).) SLR requested review by the State Board

on January 11, 2021. The State Board then had 90 days to act on

SLR’s request, and because it did not act, the request was deemed

dismissed on the 91st day, or April 12, 2021. (Cal. Code Regs., tit. 23,

§ 2050.5, subd. (e).) Any petition was therefore due on May 12, 2021.

3

Putting aside the impropriety of suit against the State Board,

SLR’s decision to file separate lawsuits against the Regional and State

Boards needlessly caused two different trial judges to spend time

evaluating identical arguments regarding the same dispute. SLR then

separately appealed both judgments to this court notwithstanding its

inability to contest the trial court’s holding that suit against the State

Board was improper. We see no reasonable justification for these

litigation decisions, which wasted judicial resources both here and in

the trial court.

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By filing its petitions for administrative mandamus on June 3, 2021,

SLR missed this deadline by just over three weeks.

SLR does not challenge these calculations, but argues that the

statute of limitations is irrelevant because the Regional Board

“divested itself” of subject matter jurisdiction by unlawfully conducting

the hearing remotely over SLR’s objection, and a collateral attack on

the Regional Board’s fundamental jurisdiction may be brought “at any

time.” SLR’s position thus rests on three contentions: (1) the law

applicable to the hearing prohibited the Regional Board from

conducting it remotely if SLR objected; (2) the Regional Board’s

violation of that law caused the Board to lose subject matter

jurisdiction; and (3) the statute of limitations does not apply to SLR’s

challenge to the Regional Board’s order because the Regional Board

acted without subject matter jurisdiction. We find it unnecessary to

address the first and second contentions because, after considering the

supplemental briefs we invited the parties to submit, we conclude that

SLR’s challenge fails at the third step regardless.

The 30-day limitations period in subdivision (b) of section 13330

is not the only constraint on judicial review in the statute. In addition,

subdivision (d) states: “If no aggrieved party petitions for writ of

mandate within the time provided by this section, a decision or order of

the state board or a regional board shall not be subject to review by any

court.” (Italics added.) Subdivision (f) reinforces the Legislature’s

intent that the procedures in section 13330—including the 30-day

timeline—be strictly adhered to: “Except as provided in this section, no

legal or equitable process shall issue in any proceeding in any court

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against the state board [or] a regional board . . . to review, prevent, or

enjoin any adjudicative proceeding under this division.” (Italics added.)

SLR invokes Buckley v. California Coastal Com. (1998)

68 Cal.App.4th 178, in which the court rejected the California Coastal

Commission’s argument that the property owners’ declaratory relief

action was barred because they had failed to file a writ petition within

60 days as required by Public Resources Code section 30801. The

Commission had exercised its discretion to exempt the entire property

from its jurisdiction and then subsequently attempted to impose permit

requirements on the development of a portion of the property. (Id. at

pp. 186, 188–190.) The court concluded that the Commission did not

have the statutory authority to impose conditions on a portion of the

property it had already exempted from its reach. (Id. at pp. 187–191.)

The court held that, under these circumstances, the property owners

were not required to exhaust their administrative remedies to

challenge the permit requirements imposed by the Commission, and

the 60-day limitations period therefore did not apply. (Id. at p. 191.)

Buckley is distinguishable. The limitations provision at issue in

that case—Public Resources Code section 30801, which has not

changed in substance since the case was decided—lacks any express

language prohibiting courts from reviewing agency action other than by

timely petition for writ of mandate, and indeed, review by writ

pursuant to section 30801 is not an exclusive remedy. (See, e.g., Pub.

Resources Code §§ 30800, 30803, 30805.) By contrast, where the

Legislature has clearly expressed its intent to prohibit judicial review

except as specified in the statute, as it did here in subdivisions (d)

and (f) of section 13330, courts have found that the relevant statute of

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limitations applies to all challenges to the agency’s action, including

challenges asserting that the agency acted in the absence of subject

matter jurisdiction.

For example, in Travis v. County of Santa Cruz (2004) 33 Cal.4th

757 (Travis), our Supreme Court noted that Government Code

section 65009, subdivision (e), “provides that after expiration of the

limitations period, ‘all persons are barred from any further action or

proceeding,’ ” and on that basis it concluded that a plaintiff “may not

avoid the short 90-day limit of section 65009 by claiming that the

permit or condition is ‘void’ and thus subject to challenge at any time.”

(Id. at pp. 767–768 [citing Ching v. San Francisco Board of Permit

Appeals (1998) 60 Cal.App.4th 888, 891–894]; accord, Hawkins v.

County of Marin (1976) 54 Cal.App.3d 586, 592–593 (Hawkins).) Here,

as in Travis, Ching, and Hawkins, section 13330’s timing provisions

“ ‘contain[] no exceptions,’ and use[] ‘unqualified language’ manifesting

a plain intent on the part of the Legislature ‘to limit the time to seek

review’ of [the] agency decision.” (Ching, at pp. 894–895.) The

language of section 13330, subdivisions (d) and (f) makes clear that the

Legislature intended to prohibit any other judicial review of a regional

board’s decision.

SLR argues that the prohibitions on judicial review in section

13330, subdivisions (d) and (f) “assume the applicability of

subdivision (b) to a given matter,” and that “where there is a want of

subject matter jurisdiction, a statute of limitation like subsection (b)

has no application since there is no decision or order by the Regional

Board.” The plaintiff in Travis made a similar argument, contending

that because the claimed preemption of the local ordinance rendered it

10

null and void, “ ‘there is no applicable limitations period because there

is essentially no ordinance.’ ” (Travis, supra, 33 Cal.4th at p. 775.) The

Supreme Court rejected that argument as unsupported by authority or

logic, and held that the statute of limitations applied “despite the

further contention that preemption rendered the ordinance void.” (Id.

at pp. 775–776.) We likewise reject SLR’s argument here. There was a

decision by the Regional Board, SLR was aggrieved by it, and nothing

prevented it from seeking review of the Board’s decision as provided in

section 13330. To allow it to seek judicial review outside of the

limitations period in section 13330, subdivision (b) would violate the

plain language of subdivisions (d) and (f).

SLR also cites several cases holding that a void court judgment

may be challenged at any time, generally by a suit in equity to vacate

the judgment. (See, e.g., In re Eikerenkotter’s Estate (1899) 126 Cal. 54,

55; Tatum v. Southern Pacific Co. (1967) 250 Cal.App.2d 40, 43; City of

Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 730–732; Michel v.

Williams (1936) 13 Cal.App.2d 198, 199–200; Garrison v. Blanchard

(1932) 127 Cal. App. 616, 620.) However, as with Buckley, those cases

are distinguishable because they do not involve an unambiguous

statutory limitations provision barring judicial review of agency action

on any basis, whether in law or equity, once the limitations period has

expired. As the Hawkins court concluded, the doctrine that a collateral

attack on a void judgment can be brought at any time should not be

extended to an agency decision when it would “vitiate the unambiguous

limitations provision” the Legislature enacted. (Hawkins, supra,

54 Cal.App.3d at p. 593.) Where there is no clear legislative statement,

a court might weigh the policy supporting finality against the policy

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limiting administrative agencies to acts within their jurisdiction. (See,

e.g., City and County of San Francisco v. Padilla (1972) 23 Cal.App.3d

388, 400.) But we read Travis, Ching, and Hawkins to mean that, if

the Legislature has spoken clearly on the subject, we may not disregard

what it has said, at least in the absence of a reason to conclude that the

limitation it has imposed is unlawful. SLR has identified no such

reason here.

Accordingly, SLR’s petitions in the trial court came too late and

are barred.

3. Leave to Amend Was Properly Denied

Because no amendment could make SLR’s petitions timely, nor

render the State Board’s declination to review the Regional Board’s

decision susceptible to judicial review, the trial courts did not abuse

their discretion in denying SLR leave to amend its petitions. (Blank v.

Kirwan (1985) 39 Cal.3d 311, 318.)

DISPOSITION

The judgments are affirmed. The Regional Board and the State

Board are entitled to recover their respective costs on appeal.

GOLDMAN, J.

WE CONCUR:

BROWN, P. J.

STREETER, J.

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Trial Court: The Superior Court of Sonoma County

Trial Judge: Honorable Jennifer V. Dollard

Counsel for Plaintiff and EDLIN GALLAGHER HUIE + BLUM,

Appellant: Michael E. Gallagher, Jr., Fred M.

Blum, Christopher J. Dow

Counsel for Defendants and Rob Bonta

Respondents: Attorney General of California

Robert W. Byrne

Senior Assistant Attorney General

Myung J. Park

Supervising Deputy Attorney General

Matthew G. Bullock

Deputy Attorney General

Lindsay N. Walter

Deputy Attorney General

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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