APPEAL from a judgment of the Superior Court of San Diego County, Linda B. Quinn, Judge. Affirmed. (Super. Ct. No. 37-2008-00095741- CU-WM-CTL).
The opinion of the court was delivered by: Mcconnell, P. J.
CERTIFIED FOR PUBLICATION
Torrey Hills Community Coalition (Torrey Hills) appeals a judgment dismissing its petition for writ of mandate challenging the City of San Diego's (the City) approval of a development project by real parties in interest Westbrook Torrey Hills, L.P., AME Torrey View, LLC, and Pacific Centre Carmel Valley, LLC (collectively Westbrook). The trial court found Torrey Hills (1) violated Government Code section 66499.37, which applies to claims made under the Subdivision Map Act (SMA) (Gov. Code, § 66410 et seq.), by not serving a summons within 90 days of the City's approval of the project; and (2) violated Public Resources Code section 21167.4, subdivision (a), by not filing a written request for a hearing within 90 days of the filing of the writ petition on claims brought under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). As to the first issue, Torrey Hills contends the 90-day period was tolled under Code of Civil Procedure section 583.240, subdivision (d) for impossibility. As to the second issue, Torrey Hills contends the court misinterpreted Public Resources Code section 21167.4, subdivision (a) to require a written request, and it raises an impossibility argument. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Westbrook's project consists of 484 condominium units and 4,000 square feet of retail space. On September 16, 2008, the City took several actions to approve the project, including certifying the final environmental impact report, rezoning the property from light industrial and 29 dwelling units per acre to 54.5 dwelling units per acre and open space, amending the applicable community plan, granting a vesting tentative map allowing the subdivision of four existing lots into seven lots, and issuing a planned development permit.
On November 10, 2008, Torrey Hills filed a petition for writ of mandate challenging the City's approval of the project. The first and third through sixth counts of the petition alleged the approval violated CEQA; the second count alleged the approval violated the City's procedures for implementing CEQA; the seventh count alleged the City's findings on the development permit lacked evidentiary support, and the eighth count alleged the City's findings on the tentative map lacked evidentiary support. It is undisputed that all claims in the petition fall within the scope of the SMA.
On January 16, 2009, the City and Westbrook specially appeared to move to dismiss the petition for failure to serve a summons within 90 days of the City's approval of the project on September 16, 2008, as required by Government Code section 66499.37, a provision of the SMA.
On February 5, 2009, Torrey Hills's counsel telephoned the trial court clerk and requested a hearing date on the writ petition and an ex parte hearing on her request for a continuance on the motion to dismiss. The clerk gave counsel an ex parte hearing date of February 10, but she did not give counsel a date for the hearing on the writ petition. After the ex parte hearing, Torrey Hills's counsel telephoned the clerk about a hearing date for the writ petition, and she advised counsel the judge would prefer to wait until after deciding the motion to dismiss to set a hearing on the petition. Torrey Hills did not file a written request for a hearing on or before February 9, 2009.
On March 4, 2009, the City and Westbrook amended their motion to dismiss to allege Torrey Hills's CEQA claims should be dismissed for the additional reason that it failed to file a written request for a hearing within 90 days of the date of filing the petition pursuant to Public Resources Code section 21167.4, subdivision (a).
After a March 27, 2009 hearing on the motion to dismiss, the court took the matter under submission. On April 17, Torrey Hills filed a document entitled "Notice of Request for Hearing" (some capitalization omitted), which notified the City and Westbrook that on February 5, 2009, Torrey Hills's counsel had orally requested a hearing date from the court clerk on the writ petition, and the clerk advised counsel that the judge would rather wait until disposition of the motion to dismiss.
In an April 28, 2009 minute order, the court granted the amended motion to dismiss on both grounds raised -- the lack of service of summons within 90 days of the City's approval of the project (Gov. Code, § 66499.37), and the failure to make a written request for a hearing within 90 days of filing a CEQA petition (Pub. Resources Code, § 21167.4, subd. (a)). A judgment of dismissal was entered on May 18, 2009.
We independently review an order granting a motion to dismiss a petition for writ of mandate. (Friends of Riverside's Hills v. City of Riverside ...