IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 16, 2010
CITY OF RIVERSIDE ET AL., PETITIONERS,
THE SUPERIOR COURT OF RIVERSIDE COUNTY, RESPONDENT; CHARLES H. GARNER ET AL., REAL PARTIES IN INTEREST.
ORIGINAL PROCEEDINGS; petition for writ of mandate. Gloria Trask, Judge. Petition granted. (Super.Ct.No. RIC535981)
The opinion of the court was delivered by: McKINSTER Acting P.J.
City of Riverside v. Super. Ct.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In this matter, we have reviewed the petition and the opposition filed by real parties in interest. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
Public Resources Code section 21167.4, subdivision (a), unequivocally requires a party seeking relief under that division to "request a hearing within 90 days from the date of filing the petition . . . ." It is undisputed that real parties in interest did not do so. The consequence of such a failure is that, at the request of the opponent, the matter must be dismissed. (Fiorentino v. City of Fresno (2007) 150 Cal.App.4th 596, 603.) Although we agree that in this case there was no realistic chance that a trial date would immediately be set, a party may satisfy the statutory requirement by filing a simple request, following which, when appropriate, an application may be made for a briefing schedule and actual hearing date. (See Association for Sensible Development at Northstar, Inc. v. Placer County (2004) 122 Cal.App.4th 1289.) We conclude that the fact it was unlikely that a hearing would be immediately set does not excuse real parties in interest's failure to comply with Public Resources Code section 21167.4, subdivision (a), by filing a request.
Although the trial court did not expressly rule on real parties in interest's application for relief under Code of Civil Procedure section 473, reversal on the above grounds would be unnecessary if relief was appropriate under the latter section. However, we also conclude that such relief would constitute an abuse of the trial court's discretion. As we have said, the statutory requirement is unambiguous and the cases we have cited above clearly inform any reasonable attorney of the procedures to be followed in order to avoid dismissal. We do not consider the error to be a reasonable or excusable mistake of law. (See Pagarigan v. Aetna U.S. Healthcare of California, Inc. (2007) 158 Cal.App.4th 38.) The same analysis applies to real parties in interest's assertion that counsel believed that due to discussions between the parties, the request need not be filed. No reasonable attorney would believe that absent a written stipulation an express statutory requirement could be ignored.
Accordingly, we grant the petition.
Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to vacate its order denying petitioners' motion to dismiss count 1 of the petition relating to alleged deficiencies in the environmental impact report, and to enter a new order granting said motion.
Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
The previously ordered stay is lifted. In the interests of justice, the parties shall bear their own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: RICHLI J. KING J.
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