Filed 4/30/14 Helping Hand Tools v. San Diego Air Pollution Cont. Dist. etc. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
HELPING HAND TOOLS, D063313
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2012-00094152- CU-TT-CTL) SAN DIEGO AIR POLLUTION CONTROL DISTRICT HEARING BOARD,
Defendant and Respondent;
TODD T. CARDIFF,
Objector and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, William S.
Dato, Judge. Affirmed.
Law Office of Todd T. Cardiff and Todd T. Cardiff for Plaintiff and Appellant and
for Objector and Appellant.
Thomas E. Montgomery, County Counsel, and C. Ellen Pilsecker, Chief Deputy
County Counsel, for Defendant and Respondent San Diego Air Pollution Control District
Hearing Board. Helping Hand Tools (HHT) and its trial counsel, Todd Cardiff (together,
Appellants), appeal a judgment ordering them to pay $6,000 in sanctions under the
California Environmental Quality Act (CEQA), which authorizes the imposition of
sanctions against a party and its counsel for asserting a frivolous CEQA claim. (Pub.
Resources Code, § 21169.11.) As a result of settlements that occurred while this appeal
was pending, Appellants have substantially recast their issues presented. They now ask
us to determine only whether (1) the trial court correctly identified the decisionmaking
body to which HHT should have appealed a district's determination that a project was
exempt from CEQA, and (2) "[w]hether sanctions were properly awarded against
Appellants . . . when they based their action on published case law." We conclude the
trial court did not abuse its discretion in determining these issues, and will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Statutory Context
This appeal arises in the context of regulatory approvals issued by a local air
pollution control district. We therefore begin by providing a brief overview of the
complex statutory framework governing those entities.
The Legislature has enacted "an intensive, coordinated state, regional, and local
effort to protect and enhance the ambient air quality of the state." (Health & Saf. Code,
§ 39001; further undesignated statutory references are to the Health & Safety Code.).
"Local and regional authorities have the primary responsibility for control of air pollution
from all sources other than vehicular sources." (§§ 39002, 39025, 39037, 40000.)
2 The San Diego County Air Pollution Control District (District) is the local
authority for San Diego County. The San Diego County Board of Supervisors (Board of
Supervisors) is ex officio the District's elected governing board. (§§ 40100, 40100.5,
subd. (e).) In that capacity, the Board of Supervisors sits as the Air Pollution Control
Board (APCB). The APCB (i) establishes the permit system (§ 42300); (ii) adopts
District rules and regulations and the District's annual permit fees (§§ 40725, 42311);
(iii) appoints the Air Pollution Control Officer (§ 40750), who appoints District personnel
subject to the direction of the APCB (§ 40751) and is authorized to issue Authorizations
to Construct (ATCs), which are prerequisites to constructing or modifying stationary
sources of air contaminants (§ 40752); and (iv) has the authority to issue orders of
abatement against those in violation of permit conditions (§ 42450).
The APCB also appoints the members of the San Diego County Air Pollution
Control District Hearing Board (Hearing Board), which is an independent body that hears
appeals of the District's permit decisions. (§§ 40800 et seq.) The Hearing Board has five
members, none of whom may be District officers or employees. (§§ 40800, 40801,
40803.)
The Project's History
This lawsuit arose from efforts that began in 2007 to upgrade the turbine in a
power plant in Escondido, California that was originally approved in 2001. Real parties
in interest Escondido Energy Center, LLC and Wellhead Electric Co., Inc. (together,
Wellhead), through a predecessor in interest, applied to the District for an ATC to allow
the turbine upgrade. The District issued an ATC authorizing the upgrade in July 2008,
3 but because the turbine replacement did not immediately occur as anticipated, the District
extended the ATC several times through 2011 and approved the transfer of the ATC from
the predecessor in interest to Wellhead.
In 2011, Wellhead applied to the District to change certain conditions in the ATC,
including to allow Wellhead to retain the existing "selective catalytic reduction" (SCR)
system. On December 20, 2011, the District approved the requested modification, but
neglected to address the request regarding the SCR system. Wellhead requested that the
District correct the oversight regarding the SCR system, as well as make other technical
adjustments to the ATC. The District did so on January 19, 2012. The District also
found the revisions to be exempt from CEQA. Accordingly, the following month, the
District filed with the county clerk notices of exemption (NOEs) for the December 20,
2011 and January 19, 2012 ATC modification approvals.
HHT's Challenges to the Project
In the meantime, HHT's executive director, Rob Simpson, asked the District to
place him on its public interest list and to provide a copy of any existing or proposed
permits for the Escondido power plant. On January 19, 2012, the District provided
Simpson a copy of the December 20, 2011 and January 19, 2012 ATCs.
On February 16, 2012, HHT's attorney, Cardiff, wrote to the District to complain
of a lack of public notice regarding the ATC revisions and to "demand[] the right to
appeal the ATC . . . to the Hearing Board." Cardiff's letter continued, "In addition, an
appeal to elected officials must be available to challenge" the District's NOEs. Later in
the letter, Cardiff asserted "environmental determinations under CEQA must be available
4 for appeal to elected officials. (Pub. Res. Code § 21151(c).) Thus, the permit and Notice
of Exemption . . . must be able to be appealed. Therefore, [the District] should permit my
Client to appeal the ATC to the Air District Hearing Board (aka County Board of
Supervisors)."
The District's counsel responded by e-mail the following day, disagreeing with
Cardiff's challenges to the project, but explaining HHT's appellate rights as follows:
"If[,] however, your client desires to appeal these actions, the procedures for doing so are
set forth in District Rule 25 . . . . Additionally, please note that the elected decision-
making body for the Air Pollution Control District is the San Diego County Board of
Supervisors, sitting as the Air Pollution Control Board."
On February 21, 2012, HHT filed a "petition for hearing board action" challenging
the January ATC and February NOEs. On March 12, HHT amended its petition to the
Hearing Board to clarify that HHT also challenged the December 20, 2011 ATC.
On March 15, 2012, the District filed an answer and memorandum of points and
authorities in opposition to HHT's petition to the Hearing Board. In it, the District argued
the merits of HHT's petition, but also argued the Hearing Board lacked jurisdiction to
hear appeals of CEQA determinations.
The following day, HHT filed a complaint and petition for writ of mandamus in
superior court seeking to set aside the ATC and NOEs. The complaint named the
District, its director, the Hearing Board (which the complaint alleged was "made up of the
members of the [County Board of Supervisors]"), and Wellhead. (Italics added.) In its
cause of action for declaratory relief, HHT alleged a controversy existed because HHT
5 contended "CEQA determinations such as exemptions must be available to be appealed
to an elected body for a final decision pursuant to Public Resources Code section
21151(c)," whereas the District contended the "Hearing Board does not have jurisdiction
to hear the appeal of the Notices of Exemption."
The Hearing Board heard HHT's appeal on March 22, 2012—the last possible day
it could have timely heard the matter. (§ 42302.1 [hearing boards must hear appeal and
render decision within 30 days of request for hearing].) The Hearing Board heard
argument and testimony regarding whether it had jurisdiction to hear the CEQA appeal.
Ultimately, however, the Hearing Board never took action because quorum was lost after
two members left to attend other engagements and the chairman disqualified himself after
he concluded he could not resolve the matter in an unbiased manner because of HHT's
pending lawsuit against the Hearing Board.
Trial Court Proceedings
On April 25, 2012, Wellhead answered HHT's superior court complaint by, among
other things, admitting HHT's allegation that "the Notices of Exemption were appealable
to the San Diego County Board of Supervisors, the elected decisionmaking body of the
APCD, pursuant to Public Resources Code section 21151(c)."
Two days later, HHT filed an amended complaint and writ petition. Among other
things, the amended pleading alleged HHT had exhausted its administrative remedies by
pursuing the appeal to the Hearing Board, and clarified that the Hearing Board "is made
up of the members appointed by" the Board of Supervisors. (Italics added.)
6 In their answers to the amended complaint, the District, its director, and Wellhead
asserted HHT had failed to exhaust its administrative remedies with respect to the NOEs
because they "could have been appealed by HHT to the San Diego County Board of
Supervisors, the elected Governing Board of the [District], pursuant to Public Resources
Code section 21151(c), but that HHT failed to do so."
The parties briefed the merits of HHT's claims to the trial court. The Hearing
Board also moved for an award of sanctions against HHT under Public Resources Code
section 21169.11, which authorizes the trial court to impose sanctions against a party and
its counsel for asserting a frivolous CEQA claim. The focus of the Hearing Board's
motion was that HHT's claims against it were frivolous because the Hearing Board took
no action regarding the ATC or the NOEs due to the loss of quorum.
The District, its director, and Wellhead also filed a motion jointly seeking
sanctions against HHT for bringing a frivolous CEQA claim. Their motion argued
HHT's CEQA claim was frivolous because HHT failed to exhaust its administrative
remedies by appealing the NOEs to the District's elected governing body, the Board of
Supervisors.
HHT opposed both sanctions motions primarily on the ground that it was not
required to appeal the NOEs to the Board of Supervisors because that board was not a
decisionmaking body under CEQA because it did not have jurisdiction to approve, deny,
or modify the permit.
7 The trial court heard the merits of the case and the two sanction motions on
October 4, 2012. In a subsequent minute order, the court ruled against HHT on the
merits of its claims regarding the ATC, and concluded HHT failed to exhaust its
administrative remedies for its CEQA claims by failing to appeal the NOEs to the Board
of Supervisors. Based on its conclusion that the Hearing Board "had nothing to do with
the CEQA notice of exemption," the court granted the Hearing Board's motion for
sanctions and ordered HHT and Cardiff to pay the Hearing Board $6,000. The court
denied the other parties' motion for sanctions. The court entered judgment on
November 28, 2012.
HHT appealed the judgment on the merits, and HHT and Cardiff appealed as to
the award of sanctions. On appeal, the parties resolved their dispute on the merits,
leaving unresolved only HHT and Cardiff's appeal on the sanctions award.
DISCUSSION
As a result of the parties' settlement, Appellants now ask us to review the propriety
of the sanctions award by determining (1) "[w]hether the Hearing Board is the proper
body to consider CEQA on administrative appeal," and (2) "[w]hether sanctions were
properly awarded against Appellants . . . when they based their action on published case
law."
A. Guiding Legal Principles Regarding Sanction Awards
Public Resources Code section 21169.11 provides that "[i]f the court determines
that a [CEQA] claim is frivolous, the court may impose an appropriate sanction, in an
amount up to ten thousand dollars ($10,000), upon the attorneys, law firms, or parties
8 responsible for the violation." (Pub. Resources Code, § 21169.11, subd. (b).) The statute
defines " 'frivolous' " as "totally and completely without merit." (Id., subd. (c).)
Although we have not found any cases further construing the phrases " 'frivolous' " or
"totally and completely without merit" in the specific context of section 21169.11, courts
interpreting the same phrases in other statutory contexts have applied an objective
standard, asking if any reasonable attorney would agree that the position is totally devoid
of merit. (E.g., Levy v. Blum (2001) 92 Cal.App.4th 625, 634-635 [Code Civ. Proc.,
§ 128.5]); Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 683 [anti-
SLAPP provision of Code Civ. Proc., § 425.16, subd. (c)(1)]; People v. Smith (2013) 216
Cal.App.4th 947, 951 [Sexually Violent Predator Act, Welf & Inst. Code, § 6608, subd.
(a)].) Generally speaking, a contention is not frivolous if it is "arguable," even though it
"lacks persuasive force." (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 168
(Guillemin).)
We ordinarily review an award of sanctions under the deferential abuse of
discretion standard. (Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 921.)
"Assuming some evidence exists in support of the factual findings, the trial court's
exercise of discretion will not be disturbed unless it exceeds the bounds of reason."
(West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 698.) "But where a
question of statutory construction is presented in the course of the review of a
discretionary decision, such issues are legal matters subject to de novo review." (Optimal
Markets, Inc. v. Salant, at p. 921.)
9 B. The Hearing Board Is Not the Proper Body to Consider CEQA on Administrative Appeal
Appellants contend the trial court abused its discretion in awarding sanctions
because it misinterpreted Public Resources Code section 21151, subdivision (c), which
provides that "[i]f a nonelected decisionmaking body of a local lead agency . . .
determines that a project is not subject to [CEQA], that . . . determination may be
appealed to the agency's elected decisionmaking body, if any." The guidelines
implementing CEQA define a "[d]ecision-making body" as "any person or group of
people within a public agency permitted by law to approve or disapprove the project at
issue." (Cal. Code Regs., tit. 14, § 15356.)
Appellants argue the Board of Supervisors—admittedly an elected governing body
of the District—nevertheless is not a decisionmaking body because it does not have the
authority to approve or disapprove a project. In doing so, Appellants rely heavily on No
Wetlands Landfill Expansion v. County of Marin (2012) 204 Cal.App.4th 573 (No
Wetlands). The trial court found No Wetlands distinguishable. We do too.
In No Wetlands, the Marin County Environmental Health Services (Marin EHS)
issued a permit for expansion of a landfill after certifying as complete an environmental
impact report (EIR) prepared under CEQA. (No Wetlands, supra, 204 Cal.App.4th at
p. 577.) An association of local residents claimed a right to appeal Marin EHS's
certification of the EIR to the Marin County Board of Supervisors under Public
Resources Code section 21151, subdivision (c). (Id. at p. 579.) The county refused to
hear the appeal on the basis that Marin EHS was acting as the designated representative
10 of the California Department of Resources Recycling and Recovery (CalRecycle) and not
on behalf of the county. (Id. at p. 579.) The residents sued and obtained a writ of
mandate ordering the defendants to vacate the EIR certification and to allow an
administrative appeal to the board of supervisors. (Id. at p. 580.) The defendants
appealed to the First District Court of Appeal, Division Four, which reversed.
Our colleagues explained that under the statutory scheme at issue before them—
the Integrated Waste Management Act (Waste Act) (Pub. Resources Code, §§ 40000 et
seq.)—the "Board of Supervisors has no power to approve or disapprove the project at
issue and thus is not an elected decisionmaking body empowered to hear plaintiffs'
appeal." (No Wetlands, supra, 204 Cal.App.4th at p. 584.) But there are material
differences between the Marin County Board of Supervisors' role under the Waste Act
and the San Diego County Board of Supervisors' role under the laws governing air
pollution control districts. Although a "county's board of supervisors may designate a
local enforcement agency under the Waste Act to inspect, issue permits, and enforce
regulations at solid waste landfills," (id. at p. 581; Pub. Resources Code §§ 43200, 43203,
subd. (a)), the "local enforcement agency is not, however, authorized to issue a[] . . .
permit under its own power." (No Wetlands, supra, 204 Cal.App.4th at p. 581; Pub.
Resources Code §§ 44007, 44009, subd. (a)(1).) Instead, the local enforcement agency
must submit the proposed permit to CalRecycle for the state agency's consideration, and
the local agency may issue a permit only with CalRecycle's concurrence. By contrast, the
District, through its Air Pollution Control Officer—an APCB (aka Board of Supervisors)
11 appointee—independently issues ATCs and permits to operate without review or
approval by a supervising state agency. (Health & Saf. Code, §§ 40750, 40752.)
The appellate process for permit decisions under the Waste Act also differs
dramatically. Although the Waste Act and air pollution control district laws both
authorize local governing bodies to appoint members of a hearing board to hear appeals
of permit decisions, local hearing board decisions under the Waste Act are subject to
further appeal to CalRecycle. (Pub. Resources Code, § 45040, subd. (a).) There is no
similar appellate oversight for air pollution control district hearing boards.
Given the material distinctions between the powers vested in local agencies under
the Waste Act and air pollution control district laws, we are not surprised the No
Wetlands court concluded a county board of supervisors is not a decisionmaking body
under the Waste Act. International Longshoremen's and Warehousemen's Union, Local
35 v. Board of Supervisors (1981) 116 Cal.App.3d 265 (International Longshoremen's)
provides a good example of why that conclusion does not extend to air pollution control
districts.
In International Longshoremen's, the San Bernardino County Board of
Supervisors, acting as the governing board of the county's air pollution control district,
authorized the reconstruction and expansion of an alkaline mining plant for which an EIR
had been prepared and certified. (International Longshoremen's, supra, 116 Cal.App.3d
at p. 268.) The board required the plant to comply with a district rule regarding certain
emissions, but further provided that if the plant could not meet those requirements using
best available techniques, the district would amend its rule to allow whatever emissions
12 level the plant could achieve using the best available technology. (Id. at pp. 268-269.)
The board of supervisors (acting in that capacity) later certified a supplemental EIR that
addressed certain modifications to the plant expansion. (Id. at p. 269.) Later, the board,
as the governing body of the air pollution control district, held a hearing at which they
approved a rule change that was drafted in such a way as to allow increased emissions
only from the alkaline plant. (Ibid.) In adopting the rule change, the board determined
the action was categorically exempt from CEQA. (Ibid.) The union representing a
majority of the plant workers and an environmental protection group sued to challenge
the categorical exemption. (Id. at p. 270.) The trial court found the lawsuit untimely
under CEQA, but the Court of Appeal, Fourth District, Division Two reversed.
After finding the lawsuit timely, the court examined the merits of the CEQA
claim. (International Longshoremen's, supra, 116 Cal.App.3d at pp. 270-276.) The
court concluded the board of supervisors, acting as the governing board of the district,
failed to properly consider the required factors under CEQA. (Id. at pp. 275-276.)
Accordingly, the court reversed with directions to issue a writ of mandate commanding
the board to set aside its rule change and to conduct further proceedings in conformity
with the requirements of CEQA. (Id. at p. 277.)
Appellants attempt to distinguish International Longshoremen's on the basis that
the board of supervisors engaged in rulemaking as opposed to administrative project
approval. We are not persuaded. Rather, the case persuasively demonstrates how
sweeping an elected air pollution control board's authority is, effectively allowing spot-
legislative approvals of projects. Moreover, although the International Longshoremen's
13 court reversed the specific rule amendment, it did not do so on the basis that the board
was without the power to change it, but rather, on the basis that the board needed to apply
CEQA more thoroughly.
Based on our reading of CEQA, No Wetlands, and International Longshoremen's,
we conclude the Board of Supervisors, sitting as the APCB, is the District's elected
decisionmaking body within the meaning of Public Resources Code section 21151,
subdivision (c). Accordingly, the trial court did not abuse its discretion in concluding
HHT was required to appeal the NOEs to the Board of Supervisors instead of the Hearing
Board.
Appellants also contend they were excused from appealing to the Board of
Supervisors because the District lacked a specific rule or procedure specifying how such
an appeal is to be taken. On this record, we are not convinced. First, Appellants assert—
without any supporting authority—that "Public Resources Code section 21151 does not
provide an independent basis for appealing a CEQA determination to the Board of
Supervisors." As we just explained, however, we conclude it does. Moreover, as a result
of Appellants' admitted failure to attempt an appeal to the Board of Supervisors, the
record is silent as to whether the Board of Supervisors' rules and procedures specifically
address appeals of CEQA determinations made by the District. This point was not lost on
the trial court:
"Mr. Cardiff: There's nothing in the record that shows that the Board of Supervisors has ever considered a [sic] appeal of a CEQA decision for an ATC."
14 "The Court: Mr. Cardiff, that's why I asked you the question whether you tried to do that. Because if you did, if you had made inquiry to the Board of Supervisors, to the clerk, to somebody, and you were told [']no, you can't do this,['] then I think that becomes more of a concern. But you didn't do that."
The record's silence in this regard is fatal to Appellants' challenge. (E.g., Estrada v.
Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 ["It is the burden of appellant to provide
an accurate record on appeal to demonstrate error. Failure to do so precludes an adequate
review and results in affirmance of the trial court's determination."].)
Moreover, the inverse of Appellants' assertion was true—there was something in
the record that showed the Hearing Board had never considered a CEQA appeal: one
member of the Hearing Board stated at the hearing that in his 20 years on the board he
could not remember ever hearing a CEQA matter.
C. Appellants' Purported Reliance on No Wetlands Does Not Render the Sanctions Award Improper
Appellants assert throughout their briefing that their reliance on No Wetlands
rendered their CEQA claim against the Hearing Board arguable and, thus, immune from
sanctions. (See, e.g., Guillemin, supra, 104 Cal.App.4th at p. 168 [a contention is not
frivolous if it is "arguable," even though it "lacks persuasive force"].) We are not
persuaded. To begin with, Appellants could not possibly have relied on No Wetlands at
the time they filed their petition with the Hearing Board—No Wetlands had not been
decided by then. Nor could appellants have relied on No Wetlands when they filed the
initial complaint in superior court—No Wetlands still had not been decided (a point
Appellants curiously concede in their opening brief).
15 All the while, Appellants conducted themselves as if they were entitled to appeal
the NOEs to the District's elected decisionmaking body. They did so in their initial
demand letter, which expressly identified the Board of Supervisors as the elected
decisionmaking body for the District. In response, the District's counsel immediately
notified Appellants the elected decisionmaking body for the District is the Board of
Supervisors sitting as the APCB. The District reiterated the Hearing Board's lack of
jurisdiction in its response to HHT's Hearing Board petition. HHT's executive director
testified before the Hearing Board that HHT's response to being notified that the Hearing
Board lacked jurisdiction over CEQA appeals was to file a lawsuit, not an appeal to the
Board of Supervisors. HHT's original complaint similarly invoked its right to appeal
"CEQA determinations such as exemptions . . . to an elected body for a final decision
pursuant to Public Resources Code section 21151(c) . . . ." The trial court identified
Appellants' persistent pursuit of their appeal to the wrong board as part of the basis for
sanctions. Under the circumstances, we cannot conclude the trial court abused its
discretion in doing so.
Additionally, although we decline to invoke formally the doctrine of judicial
estoppel (as respondents have requested), Appellants' inconsistent positions further
establish the trial court did not abuse its discretion in concluding Appellants did not act
reasonably under the circumstances.
Finally, because we have concluded the trial court did not abuse its discretion in
awarding sanctions on the basis that it did, we have not considered the alternative bases
proffered on appeal by the Hearing Board.
16 DISPOSITION
The judgment is affirmed. The Hearing Board is entitled to costs on appeal.
McINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.