Comunidad en Accion v. Los Angeles City Council

Filed 9/20/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
COMUNIDAD EN ACCION,
B240554
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. BS 126853)
LOS ANGELES CITY COUNCIL et al.,
Defendants and Respondents,
WASTE MANAGEMENT RECYCLING
AND DISPOSAL SERVICES OF
CALIFORNIA,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, James R.
Dunn and Ann I. Jones, Judges. Affirmed in part; reversed in part.
Neighborhood Legal Services, David Pallack, Alexander Prieto; Western Center
on Law and Poverty, Richard Rothschild and R. Mona Tawatao for Plaintiff and
Appellant.
Frank G. Wells Environmental Law Clinic and Sean B. Hecht for a Better
Environment, Natural Resources Defense Council, and Equal Justice Society as Amici
Curiae on behalf of Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, and Timothy McWilliams, Deputy City
Attorney, for Defendants and Respondents.
Armbruster Goldsmith & Delvac and R.J. Comer for Real Party in Interest and
Respondent.
******
This lawsuit concerns a community organization‟s -- Comunidad en Accion
(Comunidad) -- challenge under the antidiscrimination statute in Government Code
section 11135 (section 11135) to the City of Los Angeles‟s (City) siting of waste
facilities in Sun Valley. We affirm the summary adjudication of the section 11135 claim
because Comunidad failed to raise a triable issue of material fact supporting the inference
the City‟s siting decision subjected residents of Sun Valley to discrimination under “any
program or activity that is . . . funded directly by the state, or receives any financial
assistance from the state.” (§ 11135.)
Comunidad also challenged the waste facilities under the California
Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). We reverse
the dismissal of Comunidad‟s CEQA claims. The trial court abused its discretion in
dismissing the claims based on Comunidad‟s one-week delay in requesting a hearing.
Even though CEQA requires the expedited prosecution of claims arising under it, a trial
court may grant a motion for discretionary relief based on excusable neglect. The trial
court should have granted Comunidad‟s motion for such relief.
FACTS AND PROCEDURE
The genesis of this lawsuit is the City‟s approval of waste facilities in Sun Valley,
where Comunidad alleges its predominately Latino residents are subjected to a
disproportionate amount of pollution. On May 11, 2010, the Los Angeles City Council
(City Council) certified an Environmental Impact Report (EIR) and approved Waste
Management Recycling and Disposal Services of California Inc.‟s (Waste Management)
request to build a new 104,000-square-foot solid waste transfer station, an expanded
materials recycling facility, and an expanded green waste processing center (collectively
2
the challenged facilities) at the Bradley Landfill site in Sun Valley. The challenged
facilities all fall within the definition of solid waste facilities. (Pub. Res. Code, § 40194.)
The City‟s Planning Department acted as the lead agency responsible for
preparing documents to ensure compliance under the CEQA. The City‟s Planning
Department also processed the applications and approvals. The City did not consider
siting the challenged facilities in another location.
1. The Complaint
After the City approved Waste Management‟s request to build the challenged
facilities, Comunidad sued the City and the City Council, naming Waste Management as
real party in interest. The complaint stylized both as a petition for writ of mandate and a
complaint for declaratory and injunctive relief was filed on June 10, 2010. The lawsuit
sought to prevent the construction of the challenged facilities in Sun Valley where
members of Comunidad live.
Comunidad described the defendants as follows: “Los Angeles City Council (City
Council) is the governing body of the City of Los Angeles and the lead agency that
approved the construction and operation of the [challenged facilities].” According to
Comunidad, the approval of the challenged facilities “has the intended and unintended
effect of subjecting the residents of Sun Valley to substantially more air and groundwater
pollution, and more truck traffic, odor, noise, trash and vermin than most or all other
parts of the City.”
2. The Section 11135 Claim
To show unlawful discrimination under section 11135, Comunidad was required
to show that the discriminatory “program or activity . . . is funded directly by the state, or
receives any financial assistance from the state.” (§ 11135.)
In its complaint, Comunidad alleged: “The City Council‟s approval of the
[challenged facilities] violates Government Code § 11135 in that the adverse effects of
the [challenged facilities] will disproportionately impact a community that is
predominately Latino. The City Council‟s approval of the [challenged facilities] subjects
plaintiffs and other Sun Valley minority residents to discrimination by locating the
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[challenged facilities] in an area with predominately Latino residents.” Comunidad
alleged that “the City of Los Angeles receives funding from the State of California to
operate and administer its waste disposal and management programs . . . .” Comunidad
sought an injunction prohibiting the construction and operation of the waste facilities
because, according to Comunidad, building them in Sun Valley constituted unlawful
discrimination. They sought a “judicial determination and declaration of plaintiffs‟,
defendants‟ and real part[y‟s] respective rights and duties concerning the construction
and operation of the [challenged facilities].”
The City‟s Planning Department is responsible for siting recycling and solid waste
facilities. Comunidad did not show that any conduct related to the challenged facilities
by the City‟s Planning Department was funded by the state. Comunidad presented
evidence that the City‟s local enforcement agency (LEA), which currently is housed in
the City‟s Department of Building and Safety received state funding.
The LEA is responsible for enforcing state, federal, and local law with respect to
the collection, handling, storage and disposal of waste. The LEA also oversees
permitting solid waste facilities. The LEA is staffed by fulltime City employees. To
show that the City received state funding, Comunidad relied on the LEA‟s receipt of
landfill grants from 2001-2011. For the last decade, the California Department of
Resources Recycling and Recovery (CalRecycle) -- a state agency -- or its predecessor
gave the LEA over $50,000 a year to operate the LEA‟s waste management program.
Among other things, these funds have been used to purchase items used for inspections
such as clothing, machinery, and tools, and it is undisputed such inspections would occur
at the challenged facilities if they are constructed. To conduct such inspections,
inspectors would use equipment and gear purchased from state funds.
The LEA used CalRecycle and other funds to pay for the services of Eugene
Tseng and Associates. Among other things, Tseng and Associates reviewed the proposed
design of the challenged facilities to make sure the facilities would meet state
requirements and reviewed the EIR approved by the City. Tseng and Associates
4
provided input on the permit the LEA issued in July 2010, a permit which was not
challenged in the complaint.
The City‟s Solid Waste Management Policy Plan identifies 25 agencies that have a
role in the success of the City‟s integrated waste management plan. The plan describes
the Planning Department as follows: “The City Planning Department prepares and
maintains a general plan for the development of the City including elements such as land
use and service systems. Privately-owned property is regulated through zoning
regulation, specific plan ordinances, and State laws. Responsible for approval of sites to
be used for recycling and solid waste facilities. This agency is responsible for the
development of the City‟s General Plan.” The Environmental Affairs Department was
described as follows: “Designated as the local enforcement agency (LEA) for solid waste
facilities located within the City, both public and private.” As noted, the Department of
Building and Safety now houses the LEA, not the Environmental Affairs Department.
3. Summary Adjudication of the Section 11135 Claim
The trial court granted summary judgment on the section 11135 claim because it
concluded that the City‟s zoning and land use decisions were not a state funded program
or activity.1 The trial court found persuasive respondents‟ argument that because the
“LEA was not involved in the granting of the challenged Project Approvals . . . any state
funds paid to the LEA do not implicate Section 11135.” In short, the trial court
concluded Comunidad failed to carry its burden of showing discrimination in a state
funded “program or activity,” as that phrase is used in section 11135.
The trial court further concluded it did not need to consider Comunidad‟s motion
for summary adjudication, which sought summary adjudication of the section 11135
claim on the ground that “defendants City of Los Angeles and City Council have received
substantial state funding annually to operate the City‟s waste management program and
1 The trial court granted summary judgment because the CEQA claims had been
reversed. We affirm the summary adjudication (as opposed to the summary judgment)
because we reverse the dismissal of the CEQA claims.
5
thus have a duty to comply with Government Code § 11135.” Comunidad does not
challenge the denial of its motion for summary adjudication in this appeal.
4. The Dismissal of the CEQA Claims
The CEQA claims followed a different track. On November 12, 2010, the court
issued an order granting the City and Waste Management‟s motion to dismiss the CEQA
claims. The court dismissed the CEQA causes of action because Comunidad‟s counsel
failed to request a hearing within 90 days as required by Public Resources Code section
21167.4. Comunidad sought relief under Code of Civil Procedure section 473, but the
trial court denied relief, finding no excusable neglect.
DISCUSSION
1. Comunidad’s Section 11135 Cause of Action
Comunidad contends that the “approval to expand [the Bradley Landfill] and site
the three challenged facilities on the closed Bradley Landfill is an integral part of the
City‟s waste management program.” Further, according to Comunidad, the LEA is a part
of the City‟s waste management program and because it received state funding the trial
court erred in summarily adjudicating the section 11135 cause of action.
We conclude that the state grants made to the LEA do not raise a triable issue of
material fact indicating that the alleged violations of section 11135 were part of a City
program receiving state funding. To explain our conclusion, we first quote section 11135
and its implementing regulations, then review the key allegations in the complaint and
critical facts, all of which are undisputed. Finally, we discuss the nature of a LEA and
conclude its identity is separate from the City, even though in Los Angeles it is housed
within a City department and staffed with City employees.
A.
Section 11135, subdivision (a) provides: “No person in the State of California
shall, on the basis of race, national origin, ethnic group identification, religion, age, sex,
sexual orientation, color, genetic information, or disability, be unlawfully denied full and
equal access to the benefits of, or be unlawfully subjected to discrimination under, any
program or activity that is conducted, operated, or administered by the state or by any
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state agency, is funded directly by the state, or receives any financial assistance from the
state.”
California Code of Regulations, title 22, section 98010 provides the definition of
“program or activity” as used in section 11135: “„Program or activity‟ means any
project, action or procedure undertaken directly by recipients of State support or
indirectly by recipients through others by contracts, arrangements or agreements, with
respect to the public generally or with respect to any private or public entity. Such
programs or activities include, but are not limited to, the provision of employment or
goods; the procurement of goods or services; the provision of education, training, health,
welfare, rehabilitation, housing, or other services; the provision of cash or loan
assistance; or the provision of facilities for furnishing services, financial aid or other
benefits. The services, financial aid or other benefits provided under such programs or
activities shall be deemed to include: [¶] (1) any services, financial aid or other benefits
provided with the aid of State support, or with the aid of other funds or resources required
to be expended or made available for the program to meet matching requirements or other
conditions which must be met in order for the recipients to receive the State support; or
[¶] (2) any service, financial aid or other benefit provided in or through a facility which
is or was provided with the aid of State support or other funds or resources.”
B.
Review of the allegations underlying Comunidad‟s section 11135 complaint is
essential because the complaint delineates the scope of issues before a court on summary
judgment. (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175
Cal.App.4th 1208, 1225.) “„[A] party cannot successfully resist summary judgment on a
theory not pleaded.‟” (Ibid., quoting Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566,
1576.)
The complaint alleged the following violation of section 11135: “The City
Council‟s approval of the [challenged facilities] violates Government Code § 11135 in
that the adverse effects of the [challenged facilities] will disproportionately impact a
community that is predominately Latino. The City Council‟s approval of the [challenged
7
facilities] thus subjects plaintiffs and other Sun Valley minority residents to
discrimination by locating the [challenged facilities] and expansion of the greenwaste
processing in an area with predominantly Latino residents.” On appeal, Comunidad
argues “[t]he complaint more than adequately apprises defendants that the City‟s decision
to place three polluting waste facilities in the predominantly Latino community of Sun
Valley discriminates against racial or ethnic minorities.”
As the complaint and Comunidad‟s argument make clear, the City‟s siting
decision was the basis for Comunidad‟s discrimination claim. The complaint and
argument also make clear that the section 11135 cause of action was not based on any
conduct by the LEA. This conclusion is further confirmed by Comunidad‟s motion for
summary adjudication, which states: “This action challenges Los Angeles City‟s . . .
approval of three waste facilities in the predominately Latino community of Sun
Valley . . . . By locating these polluting facilities in Sun Valley, rather than in a
community with fewer minorities, the City is violating Government Code § 11135 . . . ,
which prohibits the City, as a recipient of state funds, from implementing a program or
activity in a way that disparately impacts anyone based on race, national origin or
ethnicity.” The trial court therefore properly focused on the City‟s siting decision in
evaluating Comunidad‟s section 11135 cause of action. California Code of Regulations,
title 22, section 98101, subdivision (j) further supports this analysis by making clear that
the selection of sites may support a section 11135 cause of action.2
C.
The remaining issue is whether the City‟s Planning Department is part of a
comprehensive waste management program such that receipt of state funds by the LEA
2 California Code of Regulations, title 22, section 98101, subdivision (j) provides:
“It is a discriminatory practice for a recipient, in carrying out any program or activity
directly, or through contractual, licensing or other arrangements, on the basis of ethnic
group identification, religion, age, sex, color, or a physical or mental disability . . .
[¶] . . . [¶] (j) to make or permit selections of sites or locations of facilities: [¶] (1) that
have the purpose or effect of excluding persons from, denying them the benefits of, or
otherwise subjecting them to discrimination under any program or activity . . . .”
8
demonstrates receipt of funds by the City. To resolve that question, background into the
nature of a LEA and the laws governing the City‟s waste management is necessary.
To effectuate its purpose of reducing, reusing, and recycling solid waste, the
California Integrated Waste Management Act of 1989 (Act) required local governments
to develop integrated waste management programs. (Pub. Resources Code, §§ 40050,
40052). “The Legislature intended to establish a „comprehensive program for solid waste
management.‟” (Waste Resource Technologies v. Department of Public Health (1994) 23
Cal.App.4th 299, 305.) Initially, the California Integrated Waste Management Board
oversaw the implementation of the Act, but the board has since been replaced by
CalRecycle. (Pub. Resources Code, § 40400.) CalRecycle‟s responsibilities include
approving the integrated waste management plans that all cities and counties must
prepare (Pub. Resources Code, §§ 41750, 41800), regulating closed and active landfills
(Pub. Resources Code, §§ 43500-43606), and administering a fund taking in $20 million
annually (Pub. Resources Code, §§ 47901-48008). CalRecycle is empowered to enforce
the Act using a number of corrective actions including cease and desist orders, cleanup
orders, and civil penalties. (Pub. Resources Code, §§ 43300, 45000, 45014.)
The Act permits local governments to establish local enforcement agencies. (Pub.
Resources Code, § 43200.) Local enforcement agencies have two primary
responsibilities -- to enforce CalRecycle‟s rules regarding solid waste handling and to
issue permits when such permits comply with CalRecycle‟s standards. (Pub. Resources
Code, § 43209.) “The local enforcement agency has broad duties and powers (§ 43209)
including the investigation of permit violations (Cal. Code Regs., tit. 14, § 18303),
temporary suspension of permits ([Pub. Resources Code,] § 44305, subd. (a)), issuance of
cease-and-desist orders (§ 45005), assessment of civil penalties (§ 45011), issuance of
notices and orders requiring permit violations be remedied (§ 45000, subd. (a); Cal. Code
Regs., tit. 14, § 18304), and in the absence of correction, initiation of judicial
proceedings. (Cal. Code Regs., tit. 14, § 18304.)” (San Elijo Ranch, Inc. v. County of
San Diego (1998) 65 Cal.App.4th 608, 613.)
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In order for the solid waste facility to operate, the local enforcement agency must
issue a permit. (Pub. Resources Code, §§ 43209, 44001.) A member of the public may
request the local enforcement agency to hold a hearing to consider claims that the agency
failed “to act as required by law or regulation.” (Pub. Resources Code, § 44307.) “The
hearing is heard by a hearing panel or officer appointed by the local „“governing
body”‟ . . . . ([Pub. Resources Code,] § 40150; see § 44308.) The decision from this
hearing may be appealed to CalRecycle (§ 45030, subd. (a)) and an individual dissatisfied
with CalRecycle‟s decision „may file with the superior court a petition for a writ of
mandate for review thereof.‟ (§ 45040, subd. (a).)” (No Wetlands Landfill Expansion v.
County of Marin (2012) 204 Cal.App.4th 573, 582 (No Wetlands).) A LEA cannot
approve a permit without input from CalRecycle. (Id. at p. 581.)
CalRecycle supervises LEA‟s and evaluates their processes. (Pub. Resources
Code, §§ 43214, subd. (d); 43220.) CalRecycle may withdraw approval for a LEA.
(Pub. Resources Code, §§ 43215, 43216) If that occurs, either the local government shall
designate a new enforcement agency or CalRecycle shall become the enforcement agency
in the same jurisdiction as the former LEA. (Pub. Resources Code, § 43216.)
One court has described the relationship between a LEA and the board of
supervisors of a city as follows: the LEA has an “independent legal existence.” (No
Wetlands, supra, 204 Cal.App.4th at p. 586.) The No Wetlands court held that because
the Marin County LEA had an independent legal existence its decision to approve an EIR
could not be appealed to the Marin County Board of Supervisors even though the
enforcement agency operated within the county bureaucracy. (Ibid.)
Applying these principles, the LEA is separate from the City and subject to control
by CalRecycle, not the City. The LEA‟s permit decisions must be reviewed by
CalRecycle, not by the City. The LEA provided no input in the siting of the waste
facilities. Although the LEA provided input on the construction of the green waste
processing center, its recommendation was ignored. Additionally, the LEA must issue a
separate permit from the one challenged in the complaint in order for the challenged
facilities to be built. (Pub. Resources Code, § 44002.) The CalRecycle grant funds
10
received by the LEA were designated to be used only for carrying out “solid waste
facilities permit and inspection program.”3 (Cal. Code Regs., tit. 14, § 18090.0) In short,
the city‟s designation of 25 agencies and departments as part of an integrated waste
management policy plan does not show that the agencies are part of a combined
“program or activity” as used in section 11135.
Describing the City‟s entire waste management program as a “program or
activity” would require finding that state funds provided to any of the following
departments, all of which are included in the City‟s integrated waste management plan,
would constitute funding of the waste management program: the Airport Department, the
Board of Public Works, the Hazardous and Toxic Materials Office, the Integrated Solid
Waste Management Office, the Legislative Analyst, the City Planning Department, the
Community Development Department, the Community Redevelopment Agency, the
Convention and Exhibition Center Authority, the Cultural Affairs Department, the
Department of Water and Power, the Department of Public Works Bureau of
Engineering, the Department of Public Works Bureau of Sanitation Recycling and Waste
Reduction Division, the Department of Public Works Bureau of Sanitation Refuse and
Collection Division, the Department of Public Works Bureau of Sanitation Refuse
Disposal Division and Solid Waste Management Division, the Department of Public
Works Bureau of Sanitation Wastewater Collection and Treatment, the Department of
Public Works Bureau of Street Maintenance, the Environmental Affairs Department, the
General Services Department, the Harbor Department, the Housing Authority, the
Housing Preservation and Production Department, the library, the police department, and
3 “The purpose of the LEA Grant Program is to provide grants to LEAs to carry out
the solid waste facilities permit and inspection program.” (Cal. Code Regs., tit. 14,
§ 18090.0.) “LEA grant funds shall be used exclusively for the purpose of carrying out
the approved solid waste facilities permit and inspection program.” (Cal. Code Regs., tit.
14, § 18090.3.) Interest on the grant funds “shall be used only for eligible grant related
expenses or returned to the Board [CalRecycle].” (Cal. Code Regs., tit. 14, § 18093.1,
subd. (b).)
11
the Recreation and Parks Department. Such a broad interpretation of “program or
activity” is inconsistent with section 11135 or its implementing regulations.
Although the claim that the LEA‟s programs and the City‟s programs on waste
management are inextricably intertwined is persuasive in that the City needs the LEA to
carry out its waste management plan, their interrelatedness does not show that they are
the same for purposes of applying the antidiscrimination statute. (Cf Department of
Transp. v. Paralyzed Veterans (1986) 477 U.S. 597, 610.) In Paralyzed Veterans, the
United States Supreme Court applied a federal antidiscrimination statute requiring federal
funding as an element and rejected the argument that money to airports required airlines
to comply with the antidiscrimination statute because airports and airlines were
“inextricably intertwined.”4 (Ibid.) Comunidad‟s showing that the programs were
related is insufficient to raise a triable issue of material fact.
Amici Curiae for Comunidad convincingly argue that “[n]o state-funded program
should be able to evade the protections afforded by section 11135 simply by claiming an
artificial distinction that assigns discriminatory aspects of a program to one bureaucratic
unit in the regulatory structure.” For example, an entity may not channel funds “into
programs or activities where discrimination does not exist and designat[e] their own
freed-up funds for use in programs or activities where discrimination may exist.” (Foss
v. City of Chicago (7th Cir. 1987) 817 F.2d 34, 36.) Such conduct would circumvent
section 11135 and frustrate its purpose to prohibit discrimination in state-funded
activities. (See Gov. Code, § 11139 [§ 11135 should not be interpreted in a manner that
frustrates its purpose].) But here, as explained, the LEA and City necessarily are separate
units. (No Wetlands, supra, 204 Cal.App.4th at p. 586.) The City‟s land use approval
process is separate from the LEA‟s permitting process as is compliance with CEQA. In
4 Congress subsequently passed a law indicating that “prohibitions of discrimination
against handicapped individuals shall apply to air carriers.” (Glistrap v. United Air Lines
(9th Cir. 2013) 709 F.3d 995, 1000.)
12
this case, no argument could be made that the City funneled money to the LEA to avoid
the antidiscrimination law.
The parties‟ vigorous dispute regarding the implications of People v. Levinson
(1984) 155 Cal.App.3d Supp. 13, 17, is misplaced because Levinson is helpful only
insofar as it instructs that “the apparent legislative purpose and intent in enacting
Government Code section 11135 et seq. was to prohibit discriminatory treatment of any
person on the basis of categories described in section 11135 only by those charged with
effectuating programs or activities which receive directly or indirectly state support.” (Id.
at p. 18.) Levinson‟s holding that a deaf plaintiff could not assert an antidiscrimination
claim based on the municipal court‟s failure to provide an interpreter for traffic schools
indicates that the traffic school must be considered separately from the court but does not
answer the relevant question here: whether funding to a City‟s LEA for its waste
management programs constitutes direct or indirect state support to the City. Our
conclusion that funding to the LEA did not constitute funding to the City is limited to the
unique nature of a LEA, as an agency required to issue its own permits and one that
reports to CalRecycle, not the City.
2. CEQA Claims
The trial court abused its discretion in denying Comunidad‟s motion for relief
from dismissal. To explain this conclusion, we first summarize additional facts and
procedure and then analyze the parties‟ legal contentions.
A.
On June 10, 2010, Comunidad filed its complaint and petition for writ of mandate.
On August 25, 2010, the parties stipulated to an extension of time for preparation and
certification of the administrative record. The court issued an order requiring that the
administrative record be certified no later than October 18, 2010.
On September 14, 2010, Waste Management moved to dismiss the CEQA claims
on the ground that Comunidad failed to request a hearing within 90 days of filing the
petition. Waste Management argued that Public Resources Code section 21167.4,
subdivision (a) required Comunidad to file the request for a hearing on or before
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September 8, 2010. That statute provides: In any writ of mandate proceeding alleging
noncompliance with CEQA, “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.” (Pub. Resources
Code, § 21167.4.)
The next day Comunidad filed a request for a hearing. Comunidad also sought
relief under Code of Civil Procedure section 473, which permits relief from dismissal
under limited circumstances. A declaration from Comunidad‟s lead attorney was
attached to the motion for relief. Counsel averred that he inadvertently omitted the 90-
day hearing request from his personal calendaring system. The mistake was compounded
by a family illness that required counsel to leave the state from August 26, 2010 to
September 8, 2010. In opposition to relief from dismissal, respondents argued that
dismissal was mandatory and counsel‟s neglect was not excusable.
On October 26, 2010, the City certified the record of the administrative
proceedings.
The trial court denied Comunidad‟s request for discretionary relief under Code of
Civil Procedure 473, subdivision (b), which provides in pertinent part: “The court may,
upon any terms as may be just, relieve a party or his or her legal representative from a
judgment, dismissal, order, or other proceeding taken against him or her through his or
her mistake, inadvertence, surprise, or excusable neglect.”
The trial court concluded that failing to calendar a deadline on a litigation calendar
was not excusable neglect. The trial court distinguished Nilsson v. City of Los Angeles
(1967) 249 Cal.App.2d 976, 980 (Nilsson) in which a calendaring error was found to
warrant discretionary relief because the trial court concluded that electronic litigation
calendar reminders are now ubiquitous and the failure to use one fell below the standard
of care. On appeal, the parties dispute whether the trial court abused its discretion in
denying Comunidad‟s Code of Civil Procedure section 473 motion.
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B.
Requesting a hearing under Public Resources Code section 21167.4 is a mandatory
provision of CEQA. (Fiorentino v. City of Fresno (2007) 150 Cal.App.4th 596, 602-
603.) Comunidad filed the hearing request seven days late and only after respondents
had moved to dismiss the CEQA claims.
The decision of whether to grant relief for the failure to file a timely hearing
request implicates two competing public policies -- the strong preference for a trial on the
merits and the policy favoring expeditious review of CEQA challenges. The preference
for trial on the merits is well established. (Zamora v. Clayborn Contracting Group, Inc.
(2002) 28 Cal.4th 249, 255 [“„It is well settled that appellate courts have always been and
are favorably disposed toward such action upon the part of the trial courts as will permit,
rather than prevent, the adjudication of legal controversies upon the merits‟”]; see also
Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364 [“[e]ven under fast track
statute . . . preference for trying cases on the merits prevails”].) The requirement for
expeditious review of CEQA claims also is well established. CEQA “contains a number
of procedural provisions evidencing legislative intent that the public interest is not served
unless CEQA challenges are promptly filed and diligently prosecuted.” (Nacimiento
Regional Water Management Advisory Com. v. Monterey County Water Resources
Agency (2004) 122 Cal.App.4th 961, 965.) The Legislature intended that a CEQA
challenge be heard within 210 days of commencement of the lawsuit. (Id. at p. 968.)
Notwithstanding the expedited nature of CEQA cases, CEQA does not
categorically bar relief under Code of Civil Procedure section 473. (Miller v. City of
Hermosa Beach (1993) 13 Cal.App.4th 1118, 1136; McCormick v. Board of Supervisors
(1988) 198 Cal.App.3d 352, 359.) Courts have afforded plaintiffs relief for the failure to
properly request a hearing under Public Resources Code section 21167.4, but only when
such failure constituted excusable error. (Miller v. City of Hermosa Beach, supra, at
pp. 1136-1137 [granting relief where attorney requested hearing on preliminary matters
but not on petition operating under a mistake of law]; McCormick v. Board of
15
Supervisors, supra, at p. 363 [granting relief when request for hearing was made but no
specific hearing date was requested].)
The test for discretionary relief under Code of Civil Procedure section 473
requires the party seeking relief to show excusable error. “„A party who seeks relief
under section 473 on the basis of mistake or inadvertence of counsel must demonstrate
that such mistake, inadvertence, or general neglect was excusable because the negligence
of the attorney is imputed to his client and may not be offered by the latter as a basis for
relief.‟ [Citation.] In determining whether the attorney‟s mistake or inadvertence was
excusable, „the court inquires whether “a reasonably prudent person under the same or
similar circumstances” might have made the same error.[‟] [Citation.] In other words,
the discretionary relief provision of section 473 only permits relief from attorney error
„fairly imputable to the client, i.e., mistakes anyone could have made.‟ [Citation]
„Conduct falling below the professional standard of care, such as failure to timely object
or to properly advance an argument, is not therefore excusable. To hold otherwise would
be to eliminate the express statutory requirement of excusability and effectively
eviscerate the concept of attorney malpractice.‟ [Citation.] [¶] The party seeking relief
under section 473 must also be diligent. [Citation.] Thus, an application for relief must
be made „within a reasonable time, in no case exceeding six months, after the judgment,
dismissal, order, or proceeding was taken.‟ [Citation.] [¶] Where the mistake is
excusable and the party seeking relief has been diligent, courts have often granted relief
pursuant to the discretionary relief provision of section 473 if no prejudice to the
opposing party will ensue. [Citations.]” (Zamora v. Clayborn Contracting Group, Inc,
supra, 28 Cal.4th at p. 258.)
It cannot be disputed that Comunidad counsel was diligent in prosecuting this case
and the motion for relief was filed a week after the hearing request, well within a
reasonable time. Nor can it reasonably be argued respondents would have suffered
prejudice from Comunidad‟s one-week delay in requesting a hearing as respondents
successfully sought extensions to prepare the administrative record, which was not ready
16
at the time Comunidad requested a hearing. The vigorously disputed issue is whether
Comunidad‟s counsel‟s calendaring error constituted excusable neglect.
Almost a century ago, our Supreme Court found it obvious that entering the wrong
date in attorney‟s calendar was sufficient to warrant relief under Code of Civil Procedure
section 473. (Haviland v. Southern Cal. Edison Co. (1916) 172 Cal. 601, 605
(Haviland).) The court reasoned as follows: “It will hardly be claimed that the
inadvertent entry of a wrong date in the book or journal in which defendant‟s attorneys
kept a record of the proceedings to be taken by them could not fairly have been held by
the trial court to furnish sufficient ground for relief under the remedial provisions of
section 473.” (Ibid.) Relying on Haviland and other cases, Nilsson concluded that the
trial court abused its discretion in denying the plaintiff an opportunity to present a claim
after plaintiff‟s counsel missed the deadline to file a claim for damages against a city as a
result of a calendaring error. (Nilsson, supra, 249 Cal.App.2d at p. 983.) The court
found it immaterial that the attorney did not show an established office calendaring
procedure. (Id. at pp. 982-983.) Similarly in Flores v. Board of Supervisors (1970) 13
Cal.App.3d 480, 483, the court stated the rule that “[w]hile not every mistake of an
attorney constitutes excusable neglect [citation], calendar errors by an attorney or a
member of his staff are, under appropriate circumstances, excusable.”
Our high court cited Nilsson favorably for the proposition that “[Code of Civil
Procedure] [s]ection 473 is often applied liberally where the party in default moves
promptly to seek relief, and the party opposing the motion will not suffer prejudice if
relief is granted.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 (Elston),
superseded by statute on another basis as described in Tackett v. City of Huntington
Beach (1994) 22 Cal.App.4th 60, 64-65.) The Elston court further explained that “[i]n
such situations „very slight evidence will be required to justify a court in setting aside the
default.‟” (Ibid.) In Elston, the court reversed an order denying relief under Code of
Civil Procedure section 473 for the failure to timely deny requests for admission because
when “an attorney states that he was unaware of his duty to appear to answer because his
employees misplaced papers or misinformed him as to the relevant date, relief is
17
routinely granted.” (Elston, at p. 234.) “Unless inexcusable neglect is clear, the policy
favoring trial on the merits prevails. [Citation.] Doubts are resolved in favor of the
application for relief from default . . . .” (Id. at p. 235.)
In contrast to Haviland and Elston, in Huh v. Wang the court found inexcusable
the error in failing to oppose a motion for summary judgment which the attorney “blamed
on attorney calendaring error.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1412
(Huh).) Counsel filed no written opposition to the summary judgment motion and did not
appear at the hearing on the motion. (Ibid.) According to the declaration of the attorney
seeking relief, the error occurred “„because [counsel] was overwhelmed and
disorganized,‟ [and] he misfiled the summary judgment motion among „completed items‟
and „did not calendar the hearing date or the due date of the opposition.‟” (Id. at
p. 1424.) The Huh court reasoned that the attorney‟s declaration failed to show either a
clerical mistake made by a clerk or legal assistant and no extraordinary circumstances
such as one or more attorneys leaving a law firm. (Id. at p. 1425.)
Huh relied on two cases for the proposition that a calendaring error was not
excusable neglect, though neither directly supported that proposition. Huh cited Todd v.
Thrifty Corp. (1995) 34 Cal.App.4th 986, 992, in which the court found the dismissal was
caused by the client not by the attorney‟s calendaring error, and therefore relief was
unwarranted. “Because plaintiff‟s counsel‟s mistakes, if any, did not cause the dismissal
of the lawsuit, the trial court abused its discretion in vacating the dismissal.” (Ibid.,
italics added.) Huh also cited the dissent in Yeap v. Leake (1997) 60 Cal.App.4th 591,
603, which summarized the majority opinion as concluding a calendaring error is
insufficient to warrant discretionary relief. But the majority opinion in Yeap explained
that it was not simply a calendaring error. Instead, “counsel‟s failure to submit the
request for trial de novo in a timely fashion was not excusable because, having already
subjected his client to one calendaring error resulting in the missed arbitration, he should
have moved quickly to undo the damage by requesting a trial de novo as soon as he
became aware of the defense award rather than simply ordering his staff to calendar it.”
(Yeap, at p. 598.) Thus, neither Todd nor Yeap stand for the categorical proposition that a
18
calendaring error cannot constitute excusable neglect. And in Huh, the attorney made
numerous errors that resulted in the absence of any opposition to a summary judgment
motion either in writing or at the hearing.
Applying these cases here shows the trial court abused its discretion in denying
Comunidad relief from default. The one-week delay in requesting a hearing was an
isolated mistake in an otherwise vigorous and thorough presentation of Comunidad‟s
claims. In contrast to Huh, the lead attorney made a single calendaring error, not a series
of errors resulting from disorganization. This isolated mistake is indistinguishable from
ones that courts have regularly granted relief (Nilsson, supra, 249 Cal.App.2d at p. 983)
and any doubt is to be resolved in favor of granting relief (Elston, supra, 38 Cal.3d at
pp. 233-235).
Transporting a date from a timeline to a calendar is a clerical type mistake, not one
involving professional skill. (See Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682
[distinguishing the mistakenly calendared date for a response to summary judgment from
a response that was insufficient on the merits].) It is a mistake “„anyone could have
made‟” (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 258),
including a person with no special training or skill (Garcia, supra, at p. 684). That the
error was made by an attorney not a clerk is inconsequential as even one made by a clerk
is imputable to the attorney. (Hu v. Fang (2002) 104 Cal.App.4th 61, 64-65.) Although
electronic calendaring systems may be more prevalent than when the high court decided
Haviland and Elston, the technology advancement does not change the nature of the error
-- the failure to enter the date on the calendar, an error that could occur regardless of the
sophistication of the calendaring system.5
5 Respondents argue that all counsel representing Communidad were required to file
declarations. Respondents cite no support for that proposition and it is not persuasive in
this case because the lead attorney who filed a declaration was the attorney responsible
for filing the request for a hearing and explained why such request was untimely.
Respondents rely on Alliance for Protection of Auburn Community Environment v.
County of Placer (2013) 215 Cal.App.4th 25 to argue the court properly dismissed the
19
DISPOSITION
The order dismissing the CEQA claims is reversed. The summary adjudication of
the section 11135 cause of action is affirmed. Each party to bear its own costs on appeal.
FLIER, J.
I CONCUR:
BIGELOW, P. J.
CEQA claims. In that case, the plaintiffs missed the statute of limitations for filing a
claim under CEQA. (Alliance, at p. 29.) Alliance held that Code of Civil Procedure
section 473 does not apply to dismissals for failure to comply with a statute of
limitations. (Id. at pp. 31-32.) This case does not involve the failure to comply with a
statute of limitations and respondents‟ reliance on Alliance is therefore misplaced.
20
Comunidad En Accion v. LA City Council et al – B240554
RUBIN, J. - Concurring and Dissenting
I respectfully dissent from that part of the majority opinion affirming the granting
of summary adjudication of appellant‟s claim that the City‟s authorization of expansion
of the Bradley Landfill site violates the antidiscrimination provisions of Government
Code section 11135.1 At a time when federal, state and local governments are calling for
increased vigilance to stop imposing disproportional environmental burdens on lower
income communities, the majority discards a potential tool for the enhancement of
environmental justice. In so doing, the majority rejects the legislative mandate to
interpret section 11135 broadly. (§ 11139.) Instead, the court‟s opinion holds that
conduct by the City of Los Angeles which is alleged to discriminate against a
predominately Latino community is not subject to California‟s antidiscrimination statute.
I would reverse the order granting summary judgment as it relates to the section 11135
claim. I do agree with the majority that the trial court erred in granting summary
adjudication of the California Environmental Quality Act (CEQA) claims, and I join in
Part 2 of the Discussion in the majority opinion.
For these reasons, I would reverse outright the summary judgment.
Introduction
Our Legislature has enacted a number of antidiscrimination statutes during the 165
years of California‟s existence. (See, e.g., Gov. Code, § 12900 [employment and housing
discrimination]; Civ. Code, § 51 et seq. [Unruh, Ralph and Bane Civil Rights Acts]; Ins.
Code, § 1861.03 [insurance discrimination]; Civ. Code, § 1747.50 [issuance of credit
cards]; Ed. Code, § 234 (Safe Place to Learn Act) [safe school environment prohibiting
discrimination]; Fam. Code, §§ 7950, 8708 [foster program, adoption]; Gov. Code,
1 Except as otherwise stated, all statutory references are to the Government Code.
§ 11131 [no government meetings at facilities that discriminate]; Lab. Code, § 1735
[public works contractors may not discriminate].)2
Section 11135 is one of these antidiscrimination statutes. Its focus is direct as it
deals with public and private sector “programs and activities” that receive state financial
assistance. It bars discrimination in those programs and activities. The language of
section 11135 is plain and its scope apparent:
“No person in the State of California shall, on the basis of race, national origin,
ethnic group identification, religion, age, sex, sexual orientation, color, or disability, be
unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to
discrimination under, any program or activity that is conducted, operated, or administered
by the state or by any state agency, is funded directly by the state, or receives any
financial assistance from the state. Notwithstanding Section 11000, this section applies
to the California State University.”
The statute by its terms prohibits (1) discrimination based on any of ten factors;
(2) in programs or activities that (a) are conducted, operated or administered by the state;
(b) funded directly by the state; or (c) receive any financial assistance from the state.
The California Code of Regulations implementing section 11135 state the same:
“No person in the State of California shall, on the basis of ethnic group
identification, religion, age, sex, color, or a physical or mental disability, be unlawfully
denied the benefits of, or be unlawfully subjected to discrimination under any program or
activity funded directly by the State or receiving any financial assistance from the State.”
(Cal. Code Regs., tit. 22, § 98100.) No recipient of state funds may discriminate in
“carrying out any program or activity directly or through contractual, licensing or other
arrangements.” (Id. at § 98101.) “Recipient” includes local agencies with a minimum
number of employees and which receive a threshold level of state funds. (Id. at § 98010.)
2 The breadth of antidiscrimination statutes is matched only by their longevity. The
original version of what is now known as the Unruh Civil Rights Act was enacted in 1901
and then reenacted in 1905 as Civil Code section 51. (Kerr‟s California Civil Code
(1905) Bender Moss Company, § 51.)
2
The statute‟s importance is underscored by Regulations that eliminate the need to exhaust
administrative remedies as a condition to judicial enforcement (id. at § 98003) and that
expressly preempt conflicting local laws (id. at § 98005).
Section 11135 does not expressly mention discrimination in environmental matters
or any other classification of programs or activities where discrimination is prohibited.
As the statute is to be interpreted broadly (§ 11139), I see no reason, and the parties have
suggested none, why the statute does not apply to the waste management activities here,
provided the other requirements of the statute have been satisfied. Nevertheless, I pause
briefly to discuss the role of antidiscrimination laws in the environmental field.
It is probably correct that antidiscrimination statutes have historically been applied
more in areas such as housing, employment, public access, and voting than to
environmental programs. Nevertheless there is an emerging awareness that government
and private sector activities may have a disparately negative environmental impact on
low income or minority communities. Efforts to eradicate the adverse environmental
effects of projects in less affluent neighborhoods are often described as “Environmental
Justice.”
The California Senate and Assembly this month passed AB 1239 which embodies
the goals of environmental justice. Section 1 declares:
“The Legislature finds and declares all of the following: [¶] (a) California‟s
public health and environmental protection programs, policies, and activities should be
conducted in a manner that promotes equity and affords fair treatment, accessibility, and
protection for all residents, regardless of race, age, culture, income, or geographic
location. [¶] (b) To that end, the California Environmental Protection Agency has
worked for a decade to develop and implement an environmental justice initiative that
ensures fair and equitable environmental policies for all residents. [¶] (c) Through that
initiative, the California Environmental Protection Agency has worked to identify those
communities that are most impacted by pollution and environmental contamination. [¶]
(d) California needs to provide the greatest level of attention and protection to those
3
communities that are at the greatest risk from those impacts.” (Legis. Counsel‟s Dig.,
Assem. Bill No. 1239 (2010-2011 Reg. Sess.).)3
The City of Los Angeles, respondent here, is at the forefront of environmental
justice. The Los Angeles City Attorney‟s Office “leads the Environmental Protection
Strike Force, a group of federal, state and local agencies that work together, share
resources, and exchange information to more effectively and consistently enforce
environmental protection laws. The Strike Force prioritizes the prosecution of businesses
and individuals whose activities and operations diminish or disproportionately affect the
quality of life for Los Angeles‟s residents, particularly those in close proximity to schools
and those in lower income neighborhoods.” (Los Angeles City Attorney Web site
http://www.atty.lacity.org/CRIMINAL/ EnvironmentalUnit/index.htm [as of Sept. 18,
2013] italics added.)
The South Coast Air Quality Management District also has an environmental
justice program: “The purpose of AQMD‟s Environmental Justice Program is to ensure
that everyone has the right to equal protection from air pollution . . . . [¶] Environmental
Justice, or „EJ‟ has been defined by AQMD as: „. . . equitable environmental
policymaking and enforcement to protect the health of all residents, regardless of age,
culture, ethnicity, gender, race, socioeconomic status, or geographic location, from the
health effects of air pollution.‟ ” (South Coast Air Quality Management District Web site
[as of Sept. 18, 2013] italics added.)
A similar mission statement can be found in the homepage for the California
Environmental Protection Agency: “The California Environmental Protection Agency
(CalEPA) and our boards, departments, and office (BDOs) shall accord the highest
respect and value to every individual and community, by developing and conducting our
public health and environmental protection programs, policies, and activities in a manner
that promotes equity and affords fair treatment, accessibility, and protection for all
3 The legislation is currently awaiting signature by the Governor. (California
Legislative Information Web site .)
4
Californians, regardless of race, age, culture, income, or geographic location.”
(Cal/EPA Web site [as of Sept. 18, 2013] italics
added.)
Finally, the notion of environmental justice has also been adopted by the federal
EPA. (EPA Web site [as of Sept. 18,
2013].)
To synthesize my prefatory observations: (1) California has been a national leader
in the enactment of antidiscrimination laws; (2) one of those laws is section 11135, which
prohibits discrimination in programs and activities that receive state funding;
(3) antidiscrimination laws are increasingly being used by government to achieve a
measure of environmental justice, especially where quality of life is diminished “in lower
income neighborhoods.” (Los Angeles City Attorney Web site
[as of Sept. 18,
2013.)
With this historical and legislative context in mind, I now turn to the application of
section 11135 to Los Angeles‟s waste management program.
Overview of City/State Participation under the Waste Management Act
The majority has already summarized the relationship between the city and the
state under the California Integrated Waste Management Act. I will therefore be brief.
When the Legislature enacted this legislation in 1989, it intended to establish a
“comprehensive program for solid waste management.” (Waste Resource Technologies
v. Department of Public Health (1994) 23 Cal.App.4th 299, 305.) Under the Act, waste
management is a shared responsibility between the City and the state, and the City does
not suggest that the authorization of the Bradley Landfill was anything other than the City
playing its part in its legal duty to deal with solid waste. (Pub. Resources Code,
5
§ 40001.)4 Public Resources Code section 40002 states: “As an essential part of the
state‟s comprehensive program for solid waste management . . . the Legislature declares
that it is in the public interest for the state, as sovereign, to authorize and require local
agencies, as subdivisions of the state, to make adequate provision for solid waste
handling . . . .” (Pub. Rersouces Code, § 40052 [local governments responsible for
developing and implementing integrated waste management programs].)
Initially, the California Integrated Waste Management Board oversaw
implementation of the Act, but the board has since been replaced by CalRecycle. (Pub.
Resources Code, § 40400.) CalRecycle‟s responsibilities include approving the
integrated waste management plans that all cities and counties must prepare, and
regulating closed and active landfills. (Pub. Resources Code, §§ 41750, 41800, 43500-
43606.) Under the Act, the City is obligated to designate a “Local Enforcement Agency”
(LEA). (Pub. Rersouces Code, § 43202.)5 If the City fails to designate an L.E.A.,
CalRecycle becomes the enforcement agency, with the City essentially ceding power to
the State. (Ibid.)
The L.E.A. inspects and enforces state, federal, and local laws regarding the
collection, handling, storage, and disposal of waste. In particular, the L.E.A. enforces
CalRecycle‟s rules regarding solid waste handling, and issues permits when those permits
4 Public Resources Code section 40001, subdivision (a) states, “The Legislature
declares that the responsibility for solid waste management is a shared responsibility
between the state and local governments. The state shall exercise its legal authority in a
manner that ensures an effective and coordinated approach to the safe management of all
solid waste generated within the state and shall oversee the design and implementation of
local integrated waste management plans.”
5 Public Resources Code section 43202 states, “An enforcement agency may be
designated by the local governing body and certified by the board to act to carry out this
chapter within each jurisdiction. If an enforcement agency is not designated and
certified, the board, in addition to its other powers and duties, shall be the enforcement
agency within the jurisdiction, . . .”
6
comply with CalRecycle‟s standards. (Pub. Resources Code, § 43209.)6 The L.E.A. also
approves solid waste permits, as to which CalRecycle must either concur or object;
assuming CalRecycle‟s concurrence, the L.E.A. issues the permit. (Pub. Resources Code,
§§ 43209, 44001.) To ensure solid waste facilities comply with laws and permits
governing their operation, the L.E.A. is also responsible for monthly inspections of the
facilities. (Pub. Resources Code, § 43209, subd. (a)-(b).)7
The City’s Role in the Expansion of Waste Facilities Here
And Its Claimed Effect on Appellants
The present dispute was prompted by the decision of the City, through its City
Council, to certify an Environmental Impact Report and approve the request of real party
in interest Waste Management Recycling and Disposal Services of California Inc.‟s
(Waste Management) to build new and expanded waste management facilities at the
Bradley Landfill in Sun Valley. The City‟s Planning Department acted as the lead
agency in the authorization process.
Appellant‟s complaint alleged the City of Los Angeles violated section 11135 by
allowing real Waste Management to expand the Bradley landfill in a predominately
Latino community already heavily burdened with more than its share of environmentally
harmful businesses and facilities. The complaint stated: “The City Council‟s approval of
6 “The local enforcement agency has broad duties and powers ([Pub. Resources
Code,] § 43209) including the investigation of permit violations (Cal. Code Regs., tit. 14,
§ 18303), temporary suspension of permits ([Pub. Resources Code,] § 44305, subd. (a)),
issuance of cease-and-desist orders ([Pub. Resources Code,] § 45005), assessment of civil
penalties ([Pub. Resources Code,] § 45011), issuance of notices and orders requiring
permit violations be remedied ([Pub. Resources Code,] § 45000, subd. (a); Cal. Code
Regs., tit. 14, § 18304), and in the absence of correction, initiation of judicial
proceedings. (Cal. Code Regs., tit. 14, § 18304.)” (San Elijo Ranch, Inc. v. County of
San Diego (1998) 65 Cal.App.4th 608, 613.)
7 Section 43218 states, “Each enforcement agency shall inspect each solid waste
facility within its jurisdiction at least one time each month and shall file, within 30 days
of the inspection, a written report in a format prescribed by the board.”
7
the [challenged facilities] violates Government Code [section] 11135 in that the adverse
effects of the [challenged facilities] will disproportionately impact a community that is
predominately Latino. The City Council‟s approval of the [challenged facilities] thus
subjects plaintiffs and other Sun Valley minority residents to discrimination by locating
the [challenged facilities] and expansion of the greenwaste processing in an area with
predominantly Latino residents.” The approval of the challenged facilities “has the
intended and unintended effect of subjecting the residents of Sun Valley to substantially
more air and groundwater pollution, and more traffic, odor, noise, trash and vermin than
most or all other parts of the City.”
The City Cannot Distance Itself from its Own Department
The majority and I agree that the resolution of this appeal turns on the meaning of
“program or activity” under section 11135. More precisely: Who is doing what in the
waste management program? If the City‟s conduct in approving permits and certifying
the EIR for the Bradley Landfill was part of the City‟s role under the Integrated Waste
Management Act, and if the City receives state funding as part of that program then the
statute applies.
The trial court granted summary adjudication on the stated ground that the state
did not fund the conduct of which appellant complained: the City‟s approval under its
zoning requirements of permits for Waste Management to expand the challenged
facilities, and the City‟s approval of locating those facilities in Sun Valley. Thus, the
correctness of summary adjudication turns on the scope of the “program or activity” that
appellant challenges under section 11135, and the trial court correctly understood as
much. At the hearing on summary adjudication, the court observed, “The plaintiffs
essentially define the project [sic: program] or activity as the city‟s entire overall
umbrella waste management program . . . and the city and Waste Management define it
differently as the land use approval process. [¶] So the definition of program or activity
is a central issue here.” Because the court found the challenged “program” was limited to
land-use decisions involving zoning and permitting, it concluded appellant‟s section
8
11135 claim failed. The court rejected appellant‟s contention that the participation of the
City‟s L.E.A., a recipient of state funding, in the City‟s waste management activities put
the City‟s approval of the landfill‟s expansion under section 11135‟s purview. The court
reasoned that because the L.E.A. did not itself approve the permitting and expansion of
the landfill, the L.E.A. did not make the City liable under section 11135. The court
explained, “So if the L.E.A. is not part of the program or activity which approved this
project, then the project didn‟t get any state funds.” The court‟s order granting summary
adjudication found the L.E.A. was “not significantly involved in the land use decision
challenged by [appellant] . . . and therefore . . . its involvement in this case did not trigger
the application of Section 11135.”
There is no quarrel about the receipt of state funds. The L.E.A. receives state
money. For the last decade, CalRecycle (or its predecessor) gave the L.E.A. over
$50,000 a year to assist the City‟s waste management program. Among other things,
those funds have been used to purchase items used for inspections such as clothing,
machinery, and tools, and it is undisputed such inspections would occur at the challenged
facilities if they are constructed. Because the L.E.A. receives state money, and assuming
the L.E.A. has some separate existence, section 11135 applies to the L.E.A. itself. This
does not appear to be in dispute; nor is it the issue this appeal needs to decide.
The majority has essentially adopted the trial court‟s reasoning. It holds that the
City Council‟s action here was not part of a program or activity that receives state
funding because neither the City nor City Council received state monies as part of the
approval process. In my view, this conclusion suffers from two flaws. First, it assumes
that the L.E.A. is an entity separate from the City of Los Angeles. The majority thus
wrongly concludes that the L.E.A.‟s involvement in the waste management activities
targeted by Comunidad‟s lawsuit was immaterial. The second area in which I disagree
has to do with the interpretation of “program and activity.” The majority essentially tries
to extract the permit issued by the City and its Planning Department from the City‟s
waste management program and to put that permit in a realm wholly unconnected to the
solid waste facilities permit issued by the L.E.A.
9
Taking these points in order, the record does not support the conclusion that the
L.E.A. is a separate entity from the City and therefore the receipt of funds by the L.E.A.
is not the receipt of funds by the City. The majority‟s only legal authority for this
proposition is a reference in a CEQA case, No Wetlands Landfill Expansion v. County of
Marin (2012) 204 Cal.App.4th 573 (No Wetlands). In that decision, a landfill operator in
Marin County applied for revisions to a solid waste facilities permit. (Id. at p. 578.) The
California Environmental Quality Act required the operator to prepare an environmental
impact report on the proposed revisions and to submit the EIR to the CEQA “lead
agency” in the landfill‟s jurisdiction. In Marin County, the CEQA lead agency was the
Marin County Environmental Health Services; by coincidence, Marin County
Environmental Health Services was also the L.E.A. empowered to enforce the Integrated
Waste Management Act in Marin County although the Act was not before the court. (Id.
at pp. 578-579.) The Marin County EHS thereafter certified the EIR of the proposed
revisions to the solid waste facilities permit.
The plaintiffs in No Wetlands challenged the certification of the E.I.R. and took
their challenge to the Marin County Board of Supervisors. (No Wetlands, supra,
204 Cal.App.4th at p. 579.) The issue on appeal in No Wetlands was whether the board
of supervisors had the authority to hear the appeal from the certification of the EIR by the
Marin County Environmental Health Services. No Wetlands held “no.” (Id. at pp. 577,
580.) The appellate court explained “Approval of the landfill permit, and certification of
the EIR for that approval, is a power vested in a local enforcement agency not the county
itself. The local enforcement agency is a distinct legal entity from the county. The
county board of supervisors has no authority to approve or disapprove the project at issue
and thus is not a „decisionmaking body‟ [as defined under CEQA] empowered to hear
plaintiffs‟ administrative appeal. [Citations.] Plaintiffs‟ challenge to the adequacy of the
EIR lies in the superior court, to which we remand this case.” (Id. at p. 577.)
Seizing on the appellate court‟s phrase “the local enforcement agency [i.e. Marin
EHS] is a distinct legal entity from the county,” the majority concludes that the City‟s
L.E.A. is a separate legal entity distinct from the City, and therefore the L.E.A.‟s receipt
10
of state funds cannot be imputed to the City or the City‟s waste management program.
The City misrelies on the quoted phrase. Language in a court decision must be
understood within the context of that decision‟s facts. (Ginns v. Savage (1964) 61 Cal.2d
520, 524 fn. 2; Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1606.) In No Wetlands,
the context was a challenge under CEQA to an EIR‟s certification, and the question was
which public body (the Board of Supervisors or the Superior Court) had the right to rule
on that challenge. No Wetlands looked to CEQA to answer that question, and the
language in No Wetlands describing a local enforcement agency as a “distinct legal
entity” must be understood in that context. (No Wetlands, supra, 204 Cal.App.4th at
p. 577 [citing CEQA § 21151, subd. (c) and CEQA regulations as authority for its
holding].) No Wetlands’s holding is limited to its declaration that under CEQA the Marin
County Board of Supervisors does not have reviewing authority over an EIR certified by
the county‟s Environmental Health Services department. It is essentially an appellate
review case. (No Wetlands at pp. 584-587.) It does not purport to analyze for purposes
of antidiscrimination statutes the relationship between an L.E.A. and the city that created
it. Indeed, the opinion does not mention section 11135.
In contrast to the absence of any legal authority that the L.E.A. here is separate
from the City for purposes of section 11135‟s “program or activity,” the factual record in
this case shows that the L.E.A. and the city are essentially one, or perhaps more
accurately, the former is part of the latter. Under the Integrated Waste Management Act,
the City must designate a Local Enforcement Agency. (Pub. Resources Code, § 43202.)
When the Act took effect in 1989, the City selected its Environmental Affairs Department
as the L.E.A. City records reveal that the City designated that department a “Major City
Agency” in the City‟s “Solid Waste Management Policy Plan” prepared as part of the
City‟s compliance with the Act. Records point out that a total of 25 separate Major City
Agencies, including the City Planning Department, had “a role in the success of the City
meeting the goals” of its “Solid Waste Management Plan.” In 2010, the City transferred
the role of L.E.A. from its Environmental Affairs Department to its Department of
Building and Safety. Stated slightly different, two different city departments have acted
11
as the L.E.A under the Act. City departments are a subpart of the municipal government
and their actions are the actions of the local government. (People v. Parmar (2001)
86 Cal.App.4th 781, 799.)
Neither in 1989 nor thereafter did the City decide to participate in the creation of a
new entity to act as the L.E.A., one that was comprised of representatives from the City
and other local municipal entities. It did not create or participate in a Joint Powers
Authority (§ 6500 et seq.) or similar entity.8 It first designated the City‟s Environmental
Affairs Department, then its Building and Safety Department as the L.E.A. The original
package of materials the City filed with the California Integrated Waste Management
Board in 1999 stated that the Environmental Affairs Department was designated the
L.E.A and the name of the governing body of the L.E.A was “Los Angeles City Council,
John Ferraro – President.”
Either one city department or another has at all times been the L.E.A, and it is that
city department acting as a local enforcement agency under the Integrated Waste
Management Act that has received state funds under the Act. City records state plainly
that the permanent L.E.A staff consists entirely of “full-time city employees from the
City of Los Angeles Department of Building and Safety Code Enforcement Bureau who
are currently in place and will remain in a direct role as part of the LEA program.” (City
of Los Angeles Enforcement Program Plan, Dept. of Building and Safety (Aug. 2010)
p. 91.) The budget is established by the City Council with the approval of the mayor.
Recovery of the cost to the City of funding the L.E.A. were to be accomplished by
amendment to the Municipal Code. (Id. at p. 116.) The City‟s plan stated, “The
projected budget for the LEA program for fiscal year 2010-2011 is projected at
8 The Los Angeles County Metropolitan Transportation Authority is an example of
a governmental entity that is comprised of representatives from a number of different
municipalities. Its Board of Directors includes the Mayor of Los Angeles, two members
of the Los Angeles City Council, five members of the County Board of Supervisors, and
the mayor or city councilmember from four smaller cities in Los Angeles County. (Los
Angeles County Metropolitan Transportation Authority Web site [as of Sept. 18, 2013].)
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$1,762,618. This includes all direct and indirect costs and provides for a supplemental
billing to all permitted facilities to offset increased program costs due to the increased
responsibility of the City‟s LEA.” (Id. at p. 118.)
In my view one cannot realistically separate the L.E.A. from the City. What the
L.E.A. is doing is discharging the City‟s statutory obligations under the Act. (Pub.
Resources Code, §§ 40001, 40052, 43202.) Stated differently the City‟s Building and
Safety Department is acting as the local agency designated to enforce the Act.
The second flaw in the majority‟s reasoning, in my opinion, is its attempt to isolate
the decision of the Planning Department and the City Council in approving zoning
approvals and certifying the EIR from the waste management “program or activity” under
section 11135. Respondents refer to the City Council decision as “actions” which are
outside the waste management program, as if they exist on some separate footing
divorced from the context in which they were made. The City‟s own Solid Waste
Management Policy Plan belies the compartmentalization the majority has adopted. As
far back as 1993 when the City‟s Environmental Affairs Department was the L.E.A., the
City‟s report on the implementation of the California Integrated Waste Management Act
stated that some 25 major city agencies were involved in the City plan. “Each of these
agencies have [sic] a role in the success of the City meeting the goals of this plan.” One
of the City agencies identified in the report was the City Planning Department, the
department that approved the zoning approvals in this case and referred its
recommendation to the City Council. The description of the Planning Department under
the City’s waste management plan was as follows: “The City Planning Department
prepares and maintains a general plan for the development of the City including elements
such as land use and service systems. Privately-owned property is regulated through
zoning regulations, specific plan ordinances, and State laws. Responsible for approval of
sites to be used for recycling and solid waste facilities. This agency is responsible for the
development of the City‟s General Plan. The CiSWMPP will also serve as the primary
reference document for the Solid Waste Component of the Infrastructure Element of the
General Plan.” (Italics added.)
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What the City recognized then, but from which it now tries to distance itself, is a
very simple fact of City life. Many parts of the City government work together in a
program as comprehensive as the City‟s waste management plan. To be sure, the
Department of Building and Safety, acting as the L.E.A under the Act, has responsibility
for issuing various permits for the actual facilities built. (Pub. Resources Code, § 43209.)
But other city departments also have their role. As expressly stated in the City‟s own
waste management plan, the Planning Department has to give its approval under zoning
and other laws to allow the facility to be built or expanded. Without this approval, there
would be no Bradley Landfill expansion. To separate legally the Planning Department
zoning approval process and the City Council‟s attendant approval, and cast them aside
from the permits issued by, and other statutory obligations, of the Department of Building
and Safety acting as the L.E.A. is to ignore the reality of what happened and what will
continue to happen under the Act. The City‟s permit approval and siting of the
challenged facilities were not ends in themselves approved solely for their own sake,
devoid of a larger context. Permits issue and facilities arise for a purpose. In my
opinion, because the zoning and siting decisions were components of the City‟s broader,
legally-mandated waste management program for which it receives state funds, section
11135 applies.
Conclusion
California has been a leader in the enactment of antidiscrimination laws for over
100 years. Section 11135 is a fairly straightforward statute, banning discrimination in
programs and activities that receive state funds. The City receives State funds to help
administer its responsibilities under the Act. State money is combined with $1,762,618
of the City‟s own funds so that the City‟s Department of Building and Safety can as the
L.E.A. fulfill the City‟s statutory duties. The expansion of the Bradley Landfill can only
be accomplished by the zoning approvals issued by the City Planning Department and
approved by the City Council. Only then can the L.E.A discharge its responsibilities
under the Act. To treat the actions of the City Council and the Planning Department here
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as somehow legally detached from the other parts of the City‟s waste management
program ignores both reality and the City‟s own description of its waste management
program.
In my view the trial court erred in granting summary adjudication of appellant‟s
section 11135 claim and for that reason and as stated in Part 2 of its Discussion of the
majority opinion, I would reverse the order granting summary judgment.
RUBIN, J.
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