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Butte Equipment Rentals, Inc v. California Air Resources Board et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)


March 23, 2011

BUTTE EQUIPMENT RENTALS, INC., PLAINTIFF AND APPELLANT,
v.
CALIFORNIA AIR RESOURCES BOARD ET AL., DEFENDANTS AND RESPONDENTS.

(Super. Ct. Nos. PC20030168 & PC20010457)

The opinion of the court was delivered by: Blease , Acting P. J.

Butte Equipment Rentals v. Cal. Air Resources Bd.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is a case that purports to raise issues whether the plaintiff suffered an unconstitutional regulatory taking of its property pursuant to Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 124 [57 L.Ed.2d 631, 648] and its progeny. It does not.

Plaintiff Butte Equipment Rentals, Inc. (Butte Equipment), the owner of the Bear Creek Quarry in El Dorado County, appeals from a summary judgment granted the defendant California Air Resources Board (ARB) in consolidated actions challenging whether the ARB's regulation of the quarrying and sale of rock containing asbestos constitutes a regulatory taking of Butte Equipment's property interest in the rock.

The case concerns two regulations enacted by the ARB, the purpose of which is to prevent the release of asbestos fibers into the air. The regulations were adopted pursuant to the Tanner Act, which provides for the identification and regulation of toxic air contaminants by airborne toxic control measures. (Health & Saf. Code, §§ 39650-39669.) The first regulation prohibits the sale of rock containing 0.25 percent (the minimum detectable level) or more asbestos for use for surfacing applications, such as unpaved roads, over which pedestrians or vehicles traverse causing the emission of dust containing asbestos fibers into the air. (Cal. Code Regs., tit. 17, § 93106.)*fn1 The second regulation requires the suppression of dust from the quarrying of the rock. (Id., tit. 17, § 93105.)

In an earlier opinion we upheld section 93106 against the claim that it violated its authorizing legislation, the Tanner Act. (Coalition for Reasonable Regulation of Naturally Occurring Substances v. California Air Resources Board (2004) 122 Cal.App.4th 1249 (Coalition).) We also upheld the ARB's finding that "there is no threshold level of exposure of asbestos below which no significant adverse health effects are anticipated and this means there is no safe level of exposure of human beings to airborne asbestos fibers. (Regs., § 93000.)" (Id. at p. 1260.)

The plaintiff argued below that it suffered a complete taking of its right to sell rock for surfacing applications, notwithstanding it was permitted to sell rock for other, unregulated uses, and that, at some undisclosed time in the future, it will suffer a complete taking of its right to mine, in the form of a shutdown order for failure to comply with the dust control regulation.

The trial court granted the ARB's motion for summary judgment on two grounds. First, the regulations are a valid exercise of the police power and their effect on plaintiff's property does not constitute a taking. Second, Butte Equipment failed to support its opposition to the ARB's Statement of Undisputed Facts with evidence, justifying the exercise of the court's discretion to grant the motion. (§ 437c, subd. (b)(3).)

On appeal Butte Equipment does not address either ground of decision, which we shall affirm.

The Coalition opinion cut the ground from under Butte Equipment's claim that section 93106 violated the Tanner Act. Abandoning that argument on appeal it collaterally attacks both regulations on the ground they lack a scientific basis showing that asbestos fibers are toxic to human beings. It relies on documents from the Federal Register that were not tendered in the administrative hearing preceding adoption of the regulations and are not properly before us. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 19.)

That left Butte Equipment with the claim that the dust control regulation worked a taking of its property because it was impossible to comply with it and profitably mine the rock. However, Butte Equipment has a dust control plan approved by the agency that enforces the regulation and has been operating the mine, thereby forfeiting the claim. Its allied claim that the approved plan did not comply with section 93105, thereby subjecting it to a future enforcement action shutting down the mine, is wholly speculative. In the four years from May 24, 2004, when the approval was granted, to the decision of the trial court, June 27, 2008, no such action occurred.

Sensing the terminal weakness of its substantive arguments, Butte Equipment focused its opening brief on procedural claims, that the trial court violated the summary judgment statute by permitting the ARB to file a second summary judgment motion after loss of the first (§ 437c, subd. (f)(2)), by permitting the ARB to file an untimely addendum to its papers in support of its summary judgment (§ 437c, subd. (a)), and by failing to specify the evidence supporting the order granting the motion (§ 437c, subd. (g)). The arguments border on the frivolous.

First, Butte Equipment stipulated to a second summary judgment motion in exchange for amending its complaints to substitute the correct plaintiff,*fn2 thereby waiving the claim. Second, the impact of the addendum on the grant of summary judgment was de minimus. As here, a motion for summary judgment may be granted the moving party on the basis of the papers it has timely submitted if they show that the party is entitled to a judgment as a matter of law. (§ 437c, subd. (c).) The papers timely submitted, including the ARB's Statement of Undisputed Facts and supporting evidence, to which Butte Equipment did not respond, show that the ARB was entitled to a summary judgment as a matter of law. Third, although section 437c, subdivision (g) requires the specification of evidence supporting the granting of a summary judgment, the failure in this case is not a ground for overturning the judgment.

We shall affirm the judgment.

FACTS AND PROCEDURE

Butte Equipment is a corporation owned by Boyd Sears. It mines and sells rock from the Bear Creek Quarry in El Dorado County. The quarry is located in an ultramafic rock zone containing serpentine rock which contains asbestos and therefore is subject to the asbestos regulations issued by the ARB.

This case began as an administrative challenge to the dust control regulation, section 93105. When that failed, on April 1, 2003, Boyd Sears, as the alleged owner of the Bear Creek Quarry, filed a petition for administrative mandate (Code Civ. Proc., § 1085) seeking to rescind section 93105 on the grounds the ARB had insufficient scientific evidence to adopt the regulation and failed to follow the procedures of the Tanner Act. It relied on documents excerpted from the Federal Register that were alluded to but were not tendered as evidence in the administrative proceeding and are not properly before us. (See Hensler v. City of Glendale, supra, 8 Cal.4th at p. 19.) They were tendered as part of the record before the superior court.

The petition for extraordinary relief was accompanied by a complaint for declaratory and injunctive relief. The claim for writ relief was denied on August 5, 2004, and a statement of decision was filed on November 24, 2004. The court found that "section 93105 . . . is supported by substantial evidence, and was reasonably necessary to implement the purposes of the statute. Having so found, there is no basis for invalidating the regulation."

A second petition was filed by Boyd Sears challenging the adoption of section 93106 by the ARB. The record does not contain a copy of the initial pleading but does contain a copy of the second amended petition for writ of mandate. The record also contains Butte Equipment's motion, filed June 3, 2005, to consolidate the two actions. The motion was not opposed by the ARB and it was granted on July 21, 2005.

The ARB filed a first motion for summary judgment in the consolidated actions, together with a Statement of Undisputed Facts, on January 27, 2006. Boyd Sears, then listed as plaintiff, responded with a separate Statement in Opposition to defendant's motion for summary judgment. It consists mainly of legal argument contained in a deposition filed by Boyd Sears. The motion for summary judgment was denied on March 28, 2007, for failure of the ARB to support its claims with facts. The court said: "It is apparent that the regulations have had some economic impact amounting to less than a total taking under Lucas [v. South Carolina Coastal Council (1992) 505 U.S. 1003 [120 L.Ed.2d 798].]. There is no evidence from which the Court can apply the fact-driven analysis of Penn Central [Transp. Co. v. New York City, supra, 438 U.S. 104 [57 L.Ed.2d 631]] and make any determination of the economic impact of the regulations on [Butte Equipment's] property. Because defendants have the burden of going forward with the evidence on this issue, they have failed to meet their burden of proof. The motion is denied." The court also found that both regulations, sections 93105 and 93106, were valid in light of this court's decision in Coalition, supra.

The parties stipulated to the filing by the ARB of a second summary judgment motion on December 20, 2007, in exchange for an amendment to the complaints substituting Butte Equipment, a corporation, as the owner of Bear Creek Quarry and as the plaintiff in lieu of Boyd Sears.*fn3

The ARB then filed a second summary judgment motion on January 8, 2008, and a corrected motion on January 16, 2008, addressed to the remaining regulatory-taking causes of action. In support the ARB tendered an amended Statement of Undisputed Facts which corrected the deficiency of the first motion. It set forth facts concerning the regulatory takings causes of action, specifically "Facts Related to the Penn Central Analysis" and to the "Interference with Investment-backed Expectations." Butte Equipment entered a denial to various of the assertions of fact but did not support its denials with evidence, as required by section 437c, subdivision (b)(3).

As noted, Butte Equipment argued below that it suffered a complete taking of its right to sell rock for surfacing applications, notwithstanding that it was permitted to sell rock for other, unregulated uses, and that, at some undisclosed time in the future, it will suffer a complete taking of its right to mine, in the form of a shutdown order for failure to comply with the dust control regulation.*fn4

The trial court issued a tentative ruling, as follows, which was confirmed in the order granting the motion for summary judgment.

"The asbestos regulations themselves are not before the Court on this motion as those issues have been resolved by the Third District Court of Appeal[] in Coalition for Reasonable Regulation of Natural Occurring Substances v. California Air Resources Board (2004) 122 Cal.App.4th 1249 and Judge Wagoner's Statement of Decision in this case dated November 24, 2004. As defendant correctly states, 'only the regulatory taking claim in each of these consolidated cases remains to be decided.'[*fn5 ]

"The regulations in question are a valid exercise of the police power. The effect of the regulations on plaintiff's property does not constitute a taking, does not implicate eminent domain or inverse condemnation principles, and plaintiff is not entitled to compensation as a matter of law."

" . . . . . . . . . . . . . . . . . .

"In this case the public health dangers of asbestos exposure have been well known for many years. The regulations are a reasonable exercise of the police power and as such, plaintiff is not entitled to compensation. Defendant's motion for summary judgment is granted."

"As a separate and independent ground for granting the motion, the Court finds that plaintiff has failed to file a separate statement and failed to file any substantive opposition. Plaintiff failed to file substantive opposition on the original date it was due. The Court on its own motion granted a continuance to allow plaintiff to do so; plaintiff elected to stand on a procedural objection the Court had previously overruled. Defendant's motion for summary judgment is granted on this basis as well."

As Butte Equipment concedes in its pleadings, in addition to the sale of rock for the purpose of surfacing unpaved roads, it sells rock for many other uses that are not subject to section 93106.*fn6 The ARB's Statement of Undisputed Facts, supported by evidence to which Butte Equipment did not respond, shows that Butte Equipment continued to sell rock in substantial amounts after the enactment of the regulations and that the ARB regulations did not significantly impact its rock selling business. The tonnage of rock sold by Butte Equipment "was at least as strong following the 2001 effective date of the surfacing regulation as it had been previously . . . ."

Judgment was entered on October 6, 2008. The notice of appeal from the judgment was filed on November 7, 2008.

DISCUSSION

I The Argument

The trial court granted the ARB's summary judgment motion on the grounds that the regulations are a valid exercise of the police power, that their effect on plaintiff's property does not constitute a taking and that Butte Equipment failed to support its opposition to the ARB's Statement of Undisputed Facts with evidence, justifying the exercise of the court's discretion to grant the motion (§ 437c, subd. (b)(3)). On appeal Butte Equipment has elected not to address any of these grounds of decision. That alone justifies an affirmance of the grant of summary judgment. Further, Butte Equipment's arguments border on the frivolous or have been waived.

Butte Equipment, having initiated the proceedings which produced a voluminous record,*fn7 fails to advance a single argument or adduce a single fact in its opening brief in support of its challenge to the substantive basis of the trial court's grant of summary judgment, that the regulations did not constitute a regulatory taking, and makes but sparse use of the record in reply to the ARB's brief.

The Attorney General has responded on the issue of regulatory taking as if Butte Equipment had not abandoned the regulatory taking arguments, inviting a reply by Butte Equipment.*fn8 Butte Equipment then launched a collateral attack on the scientific basis for the ARB regulations predicated upon facts outside the administrative record.*fn9 As Butte Equipment concedes, "[g]enerally, this is a fact driven inquiry," yet it tendered no evidentiary response to the ARB's evidence in support of its Statement of Undisputed Facts, except for the obvious and undisputed claim that section 93106 wholly barred its sale of rock for surfacing purposes. It explained that it "was not able to adequately discuss [the matter], given the shortened time frame imposed by the court . . . ." Its retreat to claims of procedural error in the serving and consideration of the ARB's summary judgment motion also border on the frivolous.

That, no doubt, was a consequence of Butte Equipment's failure to respond to the ARB's evidentiary showing that the challenged regulations did not significantly impact Butte Equipment's mining or overall sale of rock. This failure was the basis of the trial court's alternative ground for granting the ARB's motion for summary judgment, pursuant to section 437c, subdivision (b)(3), a point we next examine.

II The Trial Court Properly Exercised

Its Discretion to Grant the Summary Judgment*fn10

The trial court found, "[a]s a separate and independent ground for granting the [ARB] motion, . . . that plaintiff has failed to file a separate statement and failed to file any substantive opposition." In particular, Butte Equipment failed to support its denial of the ARB's substantive evidence in support of its motion with contrary evidence.

"The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute." (Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 605; § 437c, subd. (a).) This is carried out in subdivisions (b)(1) and (b)(3) of section 437c. (Teselle v. McLoughin (2009) 173 Cal.App.4th 156.) Subdivision (b)(1) requires that the moving party state the material facts it claims are undisputed and support the claims with evidence. The ARB has done so in its papers supporting the motion for summary judgment.

In that circumstance subdivision (b)(3) requires the responding party to state which of the material facts are in dispute and support its claims with evidence. The failure of a responding party to do so "may constitute a sufficient ground, in the court's discretion, for granting the motion." (§ 437c, subd. (b)(3).) In exercising its discretion the court may "accept as undisputed facts [the] portions of the moving party's evidence that are not contradicted by the opposing party's evidence." (City of San Diego v. Superior Court (2006) 137 Cal.App.4th 21, 25; Fraizer v. Velkura (2001) 91 Cal.App.4th 942, 945.) We do so.

In the papers supporting its motion for summary judgment the ARB set forth evidence supporting its claim that there was no regulatory taking. In particular, the ARB set forth evidence that the enforcement of sections 93105 and 93106 did not significantly impact Butte Equipment's quarry and rock selling business.

Butte Equipment offered no evidence in support of its objections to the ARB's Statement of Undisputed Facts. The sole undisputed fact tendered below by Butte Equipment was that section 93106 barred its sale of rock containing asbestos for surfacing unpaved roads. As we show below, any argument based on this fact misunderstands the test of a regulatory taking. Accordingly, the trial court did not abuse its discretion in granting the summary judgment motion on the ground of Butte Equipment's evidentiary failures.

Butte Equipment acknowledged its evidentiary failures, explaining that although "[g]enerally, this is a fact driven inquiry . . . [it] was not able to adequately discuss [the matter], given the shortened time frame imposed by the court . . . ."*fn11 As we show below, this procedural defense too is spurious.

III There Was No Regulatory Taking

Butte Equipment argued below, first, that pursuant to section 93106 it suffered a complete taking of its right to sell rock for surfacing applications, notwithstanding it was permitted to sell rock for other, unregulated uses, and, second, that, at some undisclosed time in the future, it will suffer a complete taking of its right to mine, in the form of a shutdown order for failure to comply with the dust control regulation, section 93105. Neither claim has merit.

"The governing constitutional authority recognizes that the impact of a law or regulation as applied to a specific piece of property determines whether there has been a compensable taking. Compensation need not be paid unless the ordinance or regulation fails to serve an important governmental purpose or 'goes too far' as applied to the specific piece of property that is the object of the litigation. [Citation.]" (Hensler, supra, 8 Cal.4th at p. 12.)

There is no doubt that the protection of the public health from airborne asbestos fibers serves an important governmental purpose. Moreover, the administrative record shows that ARB tests of air samples near the Bear Creek Quarry revealed asbestos fibers. Butte Equipment's reply, based on facts outside the administrative record, is unavailing. The place to challenge the facts supporting a regulatory taking is in an administrative hearing and in the judicial review thereof and, although Butte Equipment alluded to documents taken from the Federal Register in the administrative hearing, they were not tendered in the administrative record.*fn12

"[T]he impact of a law or regulation as applied to a specific piece of property determines whether there has been a compensable taking." (Hensler, supra, 8 Cal.4th at p. 12.) The test is not whether the sale of rock for one purpose (surfacing unpaved roads) has been barred but whether that restriction substantially impaired Butte Equipment's overall rock selling business. (See Andrus v. Allard (1979) 444 U.S. 51 [62 L.Ed.2d 210] [no taking where federal wildlife law prohibits trade in feathers of endangered species but allows other remunerative uses].) "[W]here an owner possesses a full 'bundle' of property rights, the destruction of one 'strand' of the bundle is not a taking . . . ." (Id. at pp. 65-66 [at pp. 222-223].) Because section 93106 left unregulated a large number of uses for the sale of Butte Equipment's rock, its overall rock selling business remained largely unimpaired as a consequence of section 93106.

The ARB's Statements of Undisputed Facts show that Butte Equipment's business has not been significantly affected by the ARB regulations, that the annual tonnage of rock sold by Butte Equipment "was at least as strong following the 2001 effective date of the surfacing regulation as it had been previously . . . ." Butte Equipment failed to respond with contrary evidence.

Moreover, Butte Equipment failed to tender evidence of the overall economic impact of section 93106 on its rock selling business to an administrative proceeding. It is the settled law that a claimant for a regulatory taking must exhaust its administrative remedies before the appropriate agency before seeking recompense in a judicial proceeding. "[U]nder both federal and California law, before a plaintiff may establish a regulatory taking, it must first demonstrate that it has received a final decision from the land use authority regarding application of the challenged land use regulation to its property." (County of Alameda v. Superior Court (2005) 133 Cal.App.4th 558, 567.)

Butte Equipment's claim that its permit to mine the Bear Creek Quarry violates section 93105 seeks an advisory opinion. It has a permit to mine its quarry issued by the agency that enforces the ARB regulations. The ARB's Amended Statement of Undisputed Facts, filed June 26, 2006, avers: "Plaintiff currently has a County approved dust mitigation plan in place that complies with 17 CCR section 93105." Butte Equipment admits it has a permit but disagrees only that the permit complies with section 93105.*fn13

In other words, Butte Equipment seeks an advisory opinion from this court about the validity of a permit which it has and continues to use to mine its quarry. "'"To support a determination of facial unconstitutionality, voiding [a law] as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute . . . . Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions."'" (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, quoting from Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 267, quoting Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180-181.)

Lastly, Butte Equipment would have us judge its claims by analogy to tort law requiring that the plaintiff who claims injury from asbestos must demonstrate a threshold exposure to asbestos from the defendant's product (Rutherford v. Owens-Illinois (1997) 16 Cal.4th 953), or by analogy to the environmental law that requires a causal connection between a project and an asserted environmental harm from the project (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376.) Neither of the cases remotely deals with the state's constitutional and statutory authority to adopt the asbestos regulations or with Butte Equipment's obligation to tender relevant evidence in the administrative proceeding.

IV Butte Equipment's Procedural

Objections Are Spurious

Butte Equipment, sensing the terminal weakness of its substantive arguments, focused its opening brief on procedural claims, that the trial court violated the summary judgment statute by permitting the ARB to file a second summary judgment motion after loss of the first (§ 437c, subd. (f)(2)), by permitting the ARB to file an addendum to the record in support of its summary judgment motion outside of the 75 days allotted by the summary judgment statute (§ 437c, subd. (a)), and by failing to support its judgment with evidence. These arguments also border on the frivolous.

A. The Papers Supporting Defendant's Motion for Summary Judgment Were Timely Served

Section 437c, subdivision (a), provides that "[n]notice of the motion [for summary judgment] and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing." "The purpose of the 75-day service requirement is to allow the parties time to prepare their opposition and replies and to prepare for the hearing." (Lackner v. North (2006) 135 Cal.App.4th 1188, 1208.) Relying on this provision, Butte Equipment argues that the ARB's failure to timely file an addendum to the supporting papers it timely filed requires the denial of the motion for summary judgment. We disagree.

The parties stipulated that the 75-day notice period could be shortened to 73 days if all of the supporting papers were timely served.*fn14 The ARB timely filed all of its supporting papers except for a minor addendum (a deposition excerpt and a case citation). Section 437c, subdivision (c), provides that the "motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Italics added.) The trial court can rely on the papers timely "submitted," notwithstanding that additional papers were filed late. This includes all of the papers submitted by the ARB, except the addendum, including the statements of undisputed facts to which Butte Equipment did not respond. The papers timely "submitted" by the ARB show that Butte Equipment has not suffered a regulatory taking. Moreover, the trial court granted Butte Equipment an additional 14 days within which to respond to all of the submitted papers. This is well within the discretion granted the trial court to control the summary judgment procedures. Butte Equipment argues that the additional 14-day response time cut into its preparation time for a hearing on the merits and for that reason was invalid. Not so.

Section 437c, subdivision (a), provides that the "motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise." The manifest purpose of the provision is to give an opposing party adequate time to prepare for trial after a summary judgment motion is denied. The provision has no application where the motion for summary judgment, as here, is granted.

B. Butte Equipment Has Waived Its Right to Challenge Regulation 93105

Butte Equipment challenges the dust control regulation, section 93105, on the ground it is impossible to comply with. Although Butte Equipment concedes that it tendered a plan for the suppression of dust that was accepted by the local agency charged with the enforcement of the regulation as complying with the regulation, pursuant to which it continues to mine rock from its quarry, it claims that the action exceeded the entity's authority under the Tanner Act.

Section 93105 is the subject of a First Amended Petition for Writ of Administrative Mandate, filed December 20, 2007. Its petition claims that the "relevant provisions of § 93105 generally provide that [Butte Equipment] must conduct operations so as to achieve 'zero emissions' of dust, which might potentially contain microscopic amounts of asbestos fibers." It further claims that on or about February 5, 2003, Butte Equipment received a letter from the El Dorado County Air Quality Management District (AQMD), the local agency charged with enforcement of section 93105,*fn15 demanding that it submit a revised dust control plan by March 4, 2003, incorporating the provisions of section 93105.

The petition then asserts that AQMD has threatened to begin enforcement proceedings against Butte Equipment if it does not submit a plan in conformance with section 93105. "[Butte Equipment] has submitted a new asbestos dust control plan to the AQMD, which has been approved by the AQMD as being in compliance with § 93105; however, the plan approved by the AQMD does not comply with § 93105, and the approval of [the] plan may be revoked at any time." Notwithstanding, Butte Equipment avers that "AQMD . . . [has] not recently threatened to begin compliance proceedings . . . it can do so at any time, because the plan approved . . . does not comply with" section 93105. Lastly the petition avers that "it is impossible, using the best available technology, to completely suppress all nuisance dust emissions in quarrying and crushing operations . . . ."

The facts underlying these averments are as follows. The initial petition, filed April 1, 2003, averred, as does the amended petition, that the dust regulation required the suppression of all "visible dust" and that "it is impossible, using the best available technology, to completely suppress all nuisance dust emissions in quarrying and crushing operations . . . ."

Notwithstanding, on May 25, 2004, the County of El Dorado, Environmental Management Department, sent a letter to Bear Creek Quarry, stating: "On May 24, 2004, the El Dorado County Air Quality Management District (District) received a Dust Mitigation Plan for Bear Creek Quarry. . . . The District has reviewed the submitted Plan and found it to comply with District Requirements. The referenced plan is approved."*fn16 Then in plaintiff Boyd Sears's separate statement in opposition to defendant's motion for summary judgment, dated September 1, 2006, in answer to defendant's assertion that Butte Equipment had a County approved dust mitigation plan in place, it answered: "Disputed. While it is true that Plaintiff currently has an approved dust plan, the plan does not comply with 17 CCR section 93105."*fn17

C. Butte Equipment Waived Objection To a Second Summary Judgment

Butte Equipment stipulated to the filing of the ARB's second motion for summary judgment, thereby waiving the claim that the second motion violated section 437c, subdivision (f)(2)).

D. The Summary Judgment Motion was Properly Granted

Lastly, Butte Equipment argues that the granting of the summary judgment motion was defective for failure of the trial court to make reference to evidence supporting the order. This claim too is vacuous.

Section 437c, subdivision (g) requires that in granting a motion for summary judgment the trial court must "refer to the evidence proffered in support of, . . . the motion which indicates that no triable issue exists." The trial court did not do so, but the error is manifestly harmless. Butte Equipment failed to file any evidence in support of its opposition to the motion for summary judgment. The trial court made that a separate ground for the granting of the summary judgment. (§ 437c, subd. (b)(3).) Moreover, the ARB's evidence, tendered in support of the motion for summary judgment, was more than sufficient to support the judgment.

DISPOSITION

The judgment is affirmed. Butte Equipment shall pay the costs on appeal. (Cal. Rules of Court, rule 8.278(2).)

We concur: NICHOLSON , J. HULL , J.


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