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
2
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
4
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.
5
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
8
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
13