Cal. Regional Water Quality Control etc. v. Balcom Ranch CA2/6

Filed 8/15/23 Cal. Regional Water Quality Control etc. v. Balcom Ranch CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
CALIFORNIA REGIONAL 2d Civil No. B313543
WATER QUALITY CONTROL (Super. Ct. No. 56-2017-
BOARD OF LOS ANGELES, 00505151-CU-JR-VTA)
(Ventura County)
Plaintiff and Respondent,
v.
BALCOM RANCH,
Defendant and Appellant.
Balcom Ranch, a general partnership, purports to appeal
an order of the Superior Court finding it in contempt after it
failed to comply with a subpoena duces tecum issued by the
California Regional Water Quality Control Board of Los Angeles
(the Water Board). Conceding the contempt order is not
appealable, Balcom Ranch urges us to treat the notice of appeal
as a petition for writ of mandamus. Balcom Ranch waited more
than two years after the Superior Court’s contempt order to seek
writ or appellate review and has not shown any extraordinary
circumstances justifying the delay. In light of this unreasonable
delay, we decline to exercise our discretion to treat the notice of
appeal as a petition for writ of mandate and, accordingly, dismiss
the appeal.
Facts and Procedural History
Balcom Ranch is a general partnership that owns a
commercial citrus grove and row crop farm in Santa Paula. The
Water Board requires commercial irrigated farming operations
like Balcom Ranch to monitor and test the waste water they
discharge. Farming operations are required to submit a Notice of
Intent that details their plan to conduct the tests individually or
as part of a “Discharger Group.” In late 2007, the Water Board
issued a notice of violation to Balcom Ranch because it had failed
to comply with requirements for testing its waste water
discharge. Balcom Ranch did not respond to the notice or
indicate its intent to comply with the requirements.
The Water Board issued an administrative civil liability
complaint (ACL) against Balcom Ranch in early 2010. In July
2011, after an administrative hearing, the Water Board’s hearing
panel determined that Balcom Ranch had violated California
Water Code, § 13260 by failing to comply with the waste
discharge requirements. It assessed a penalty of $193,850
against Balcom Ranch.
Balcom Ranch filed a petition in the Superior Court for a
peremptory writ, arguing the proposed penalty was so excessive
that it violated due process. In particular, Balcom Ranch
objected that, in calculating the penalty, the Water Board had
failed to consider its ability to pay the penalty and remain in
business. The Superior Court granted the writ, vacating the
penalty and remanding the matter to the Water Board to hold an
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administrative hearing at which it would reconsider Balcom
Ranch’s ability to pay a civil penalty.
The Water Board’s prosecution team issued a revised ACL
recommending a penalty of $51,045. It also issued a subpoena
duces tecum to Balcom Ranch and three of its partners, requiring
the production of financial records, the partnership agreement
and related organizational documents, and documents related to
property owned by the partnership. The prosecution team stated
these documents were required to confirm that Balcom Ranch
had the ability to pay the penalty. Balcom Ranch objected to the
subpoena on several procedural grounds and asserted a right to
privacy in the financial records and partnership documents called
for. It declined to produce responsive documents without a
protective order.
The parties engaged in negotiations over the terms of a
protective order but were unable to agree. In October 2016, the
Water Board’s hearing panel overruled most of Balcom Ranch’s
objections but granted its motion to quash production of its tax
returns. The hearing panel rejected the proposed protective
order and directed Balcom Ranch to produce responsive
documents by November 2016.
Balcom Ranch failed to produce any documents in response
to the Water Board’s order. On March 1, 2017, the hearing panel
issued a contempt citation to Balcom Ranch. It then moved to
enforce the citation in the Superior Court. In a July 2018
tentative ruling, the Superior Court overruled Balcom Ranch’s
objections to the subpoena and found it in contempt.
In February 2019, nearly two years after the Water Board
issued its contempt citation, the Superior Court confirmed the
citation by entering an Order re Contempt. The order includes
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findings that the Water Board’s subpoena was “authorized,
lawful and valid,” that its decision to deny a protective order was
“lawful and valid” and that Balcom Ranch had failed “[w]ithout
substantial justification” to comply with the subpoena. The
Superior Court concluded that Balcom Ranch’s refusal to comply
with the subpoena “constitutes contempt.” Because Balcom
Ranch was “guilty of contempt,” the Superior Court ordered that
Balcom Ranch, through its partner Mark Brown, be imprisoned
until it responded to the subpoena. It further ordered Balcom
Ranch to pay both a $1,000 fine and the Water Board’s
“reasonable attorney’s fees and costs incurred in connection with
this contempt proceeding.”
Balcom Ranch responded to the subpoena and denied
possessing many of the documents called for in it. Among other
things, Balcom Ranch asserted that it did not possess a written
partnership agreement or other documents describing the rights
and responsibilities of its partners, nor did it possess any
documents relating to an appraisal of its real property. It stated
it would produce other documents, including state and federal tax
returns and related schedules for a limited number of years,
“pursuant to an executed protective order.”
In April 2019, the Superior Court entered a protective
order governing Balcom Ranch’s production of confidential
materials in the contempt action and the revised ACL proceeding.
It noted the Water Board’s jurisdictional objections and specified
that the protective order did not invalidate or modify the Board’s
contempt citation. Balcom Ranch and its partners filed amended
responses to the subpoena in which they agreed to produce tax
returns and related documents for the years 2011 through 2017
and denied the existence of other documents described in the
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subpoena. Balcom Ranch refused to produce documents relating
to its current ability to pay a penalty. The partners also refused
to provide affidavits verifying their responses, as required by the
subpoenas, contending the affidavits were unnecessary. At a
status conference in June 2019, the Superior Court concluded
that, once the affidavits were supplied, Balcom Ranch would have
“substantially complied” with the subpoenas.
In August 2020, the Water Board filed a motion to set the
amount of its attorney’s fees award as provided in the February
2019 Contempt Order. The Superior Court granted that motion,
awarding the Water Board attorney’s fees of $167,400. Judgment
was entered against Balcom Ranch on April 22, 2021. The
judgment states, “For the reasons stated in the attached
Contempt Order, Balcom Ranch is guilty of contempt.” It further
orders Balcom Ranch to “pay $167,400 to [the Water Board],
which amount represents the attorney’s fees reasonably incurred
by the Board in connection with this proceeding.” Balcom Ranch
filed its notice of appeal on July 12, 2021.
Discussion
A judgment or order of contempt is not appealable. (People
v. Gonzalez (1996) 12 Cal.4th 804, 816; Imuta v. Nakano (1991)
233 Cal.App.3d 1570, 1584, fn. 18.) It may, however, “be
reviewed by certiorari or, where appropriate, by habeas corpus[.]”
(In re Buckley (1973) 10 Cal.3d 237, 259; see also, People v.
Gonzalez, supra, at p. 816 [“review of the contempt judgment is
by extraordinary writ”].)
Balcom Ranch acknowledges, as it must, that the contempt
order is not appealable. It requests that we exercise our
discretion to treat the notice of appeal as a writ petition.
Although we have discretion to do so, that discretion is exercised
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sparingly and only in unusual circumstances. (Black Diamond
Asphalt, Inc. v. Superior Court (2003) 114 Cal.App.4th 109, 114;
see also Podiatric Medical Board of California v. Superior Court
(2021) 62 Cal.App.5th 657, 666 [court of appeal exercises
“unusual power” to treat unauthorized appeal as a writ petition].)
We decline to exercise it here because no unusual or
extraordinary circumstances exist.
First, the length of the delay was unreasonable. Balcom
Ranch filed its notice of appeal on July 12, 2021, more than two
years after the Superior Court entered the contempt order on
February 6, 2019. As a general rule, a writ petition should be
filed within the 60-day period applicable to appeals. (Citizens for
Open Government v. City of Lodi (2012) 205 Cal.App.4th 296,
310.) “‘An appellate court may consider a petition for an
extraordinary writ at any time [citation], but has discretion to
deny a petition filed after the 60-day period applicable to appeals,
and should do so absent “extraordinary circumstances” justifying
the delay.’” (Volkswagen of America, Inc. v. Superior Court (2001)
94 Cal.App.4th 695, 701; see also People v. Superior Court (Brent)
(1992) 2 Cal.App.4th 675, 682.)
Balcom Ranch contends it delayed seeking review until
judgment was entered because it was not aware that a contempt
order could be reviewed only by writ. But this mistake of law is
neither reasonable nor an extraordinary circumstance justifying
the delay. The answer to the appealability question was readily
available through review of the relevant statutes and case law.
In addition, both the Water Board and the trial court informed
appellant that the contempt order was reviewable by writ.
Before the trial court entered its contempt order, the Water
Board stated in a reply brief that “a judgment of contempt is not
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appealable.” The trial court also noted, at three separate
hearings, that Balcom Ranch could seek writ review of the
contempt order.
Balcom Ranch asserts that it saw no need to petition for
writ review in February 2019 because it believed the contempt
order would be dissolved after it produced responsive documents.
This explanation is unpersuasive. The trial court never
suggested it would dissolve the contempt citation upon
compliance. Even if the threat of jail time evaporated after
compliance, the contempt citation, the fine and the order to pay
attorney’s fees and costs would remain. Moreover, dissolution of
the contempt order after compliance would have left unresolved
the question whether Balcom Ranch had a right to privacy that
justified its initial refusal to comply with the subpoena. The
existence of this issue gave Balcom Ranch a reason to seek review
at the earliest possible opportunity, not a justification for
extreme delay.
Conclusion
Balcom Ranch has not identified any extraordinary
circumstance that justifies its delay in seeking review of the
contempt citation or supports the exercise of our discretion to
treat its inoperative notice of appeal as a petition for writ of
mandate. The appeal is dismissed. Costs to the Water Board.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J. BALTODANO, J.
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Ronda J. McKaig, Judge
Superior Court County of Ventura
______________________________
Niddrie, Addams, Fuller, Singh and Rupa G. Singh; Leech,
Tishman, Fuscaldo & Lampl and Fadi K. Rasheed, for Defendant
and Appellant.
Rob Bonta, Attorney General, Robert W. Byrne, Assistant
Attorney General, Eric M. Katz, Supervising Deputy Attorney
General, Carol A.Z. Boyd, Deputy Attorney General, for Plaintiff
and Respondent.