California Court of Appeals, Second District, Eighth Division
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BS 126853 James R. Dunn and Ann I. Jones, Judges.
Neighborhood Legal Services, David Pallack, Alexander Prieto; Western Center on Law and Poverty, Richard Rothschild and R. Mona Tawatao for Plaintiff and Appellant.
Frank G. Wells Environmental Law Clinic and Sean B. Hecht for a Better Environment, Natural Resources Defense Council, and Equal Justice Society as Amici Curiae on behalf of Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, and Timothy McWilliams, Deputy City Attorney, for Defendants and Respondents.
Armbruster Goldsmith & Delvac and R.J. Comer for Real Party in Interest and Respondent.
This lawsuit concerns a community organization’s Comunidad en Accion (Comunidad) challenge under the antidiscrimination statute in Government Code section 11135 (section 11135) to the City of Los Angeles’s (City) siting of waste facilities in Sun Valley. We affirm the summary adjudication of the section 11135 claim because Comunidad failed to raise a triable issue of material fact supporting the inference the City’s siting decision subjected residents of Sun Valley to discrimination under “any program or activity that is... funded directly by the state, or receives any financial assistance from the state.” (§ 11135.)
Comunidad also challenged the waste facilities under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). We reverse the dismissal of Comunidad’s CEQA claims. The trial court abused its discretion in dismissing the claims based on Comunidad’s one-week delay in requesting a hearing. Even though CEQA requires the expedited prosecution of claims arising under it, a trial court may grant a motion for discretionary relief based on excusable neglect. The trial court should have granted Comunidad’s motion for such relief.
FACTS AND PROCEDURE
The genesis of this lawsuit is the City’s approval of waste facilities in Sun Valley, where Comunidad alleges its predominately Latino residents are subjected to a disproportionate amount of pollution. On May 11, 2010, the Los Angeles City Council (City Council) certified an Environmental Impact Report (EIR) and approved Waste Management Recycling and Disposal Services of California Inc.’s (Waste Management) request to build a new 104, 000-square-foot solid waste transfer station, an expanded materials recycling facility, and an expanded green waste processing center (collectively the challenged facilities) at the Bradley Landfill site in Sun Valley. The challenged facilities all fall within the definition of solid waste facilities. (Pub. Res. Code, § 40194.)
The City’s Planning Department acted as the lead agency responsible for preparing documents to ensure compliance under the CEQA. The City’s Planning Department also processed the applications and approvals. The City did not consider siting the challenged facilities in another location.
1. The Complaint
After the City approved Waste Management’s request to build the challenged facilities, Comunidad sued the City and the City Council, naming Waste Management as real party in interest. The complaint stylized both as a petition for writ of mandate and a complaint for declaratory and injunctive relief was filed on June 10, 2010. The lawsuit sought to prevent the construction of the challenged facilities in Sun Valley where members of Comunidad live.
Comunidad described the defendants as follows: “Los Angeles City Council (City Council) is the governing body of the City of Los Angeles and the lead agency that approved the construction and operation of the [challenged facilities].” According to Comunidad, the approval of the challenged facilities “has the intended and unintended effect of subjecting the residents of Sun Valley to substantially more air and groundwater pollution, and more truck traffic, odor, noise, trash and vermin than most or all other parts of the City.”
2. The Section 11135 Claim
To show unlawful discrimination under section 11135, Comunidad was required to show that the discriminatory “program or activity... is funded directly by the state, or receives any financial assistance from the state.” (§ 11135.)
In its complaint, Comunidad alleged: “The City Council’s approval of the [challenged facilities] violates Government Code § 11135 in that the adverse effects of the [challenged facilities] will disproportionately impact a community that is predominately Latino. The City Council’s approval of the [challenged facilities] subjects plaintiffs and other Sun Valley minority residents to discrimination by locating the [challenged facilities] in an area with predominately Latino residents.” Comunidad alleged that “the City of Los Angeles receives funding from the State of California to operate and administer its waste disposal and management programs....” Comunidad sought an injunction prohibiting the construction and operation of the waste facilities because, according to Comunidad, building them in Sun Valley constituted unlawful discrimination. They sought a “judicial determination and declaration of plaintiffs’, defendants’ and real part[y’s] respective rights and duties concerning the construction and operation of the [challenged facilities].”
The City’s Planning Department is responsible for siting recycling and solid waste facilities. Comunidad did not show that any conduct related to the challenged facilities by the City’s Planning Department was funded by the state. Comunidad presented evidence that the City’s local enforcement agency (LEA), which currently is housed in the City’s Department of Building and Safety received state funding.
The LEA is responsible for enforcing state, federal, and local law with respect to the collection, handling, storage and disposal of waste. The LEA also oversees permitting solid waste facilities. The LEA is staffed by fulltime City employees. To show that the City received state funding, Comunidad relied on the LEA’s receipt of landfill grants from 2001-2011. For the last decade, the California Department of Resources Recycling and Recovery (CalRecycle) a state agency or its predecessor gave the LEA over $50, 000 a year to operate the LEA’s waste management program. Among other things, these funds have been used to purchase items used for inspections such as clothing, machinery, and tools, and it is undisputed such inspections would occur at the challenged facilities if they are constructed. To conduct such inspections, inspectors would use equipment and gear purchased from state funds.
The LEA used CalRecycle and other funds to pay for the services of Eugene Tseng and Associates. Among other things, Tseng and Associates reviewed the proposed design of the challenged facilities to make sure the facilities would meet state requirements and reviewed the EIR approved by the City. Tseng and Associates provided input on the permit the LEA issued in July 2010, a permit which was not challenged in the complaint.
The City’s Solid Waste Management Policy Plan identifies 25 agencies that have a role in the success of the City’s integrated waste management plan. The plan describes the Planning Department as follows: “The City Planning Department prepares and maintains a general plan for the development of the City including elements such as land use and service systems. Privately-owned property is regulated through zoning regulation, specific plan ordinances, and State laws. Responsible for approval of sites to be used for recycling and solid waste facilities. This agency is responsible for the development of the City’s General Plan.” The Environmental Affairs Department was described as follows: “Designated as the local enforcement agency (LEA) for solid waste facilities located within the City, both public and private.” As noted, the Department of Building and Safety now houses the LEA, not the Environmental Affairs Department.
3. Summary Adjudication of the Section 11135 Claim
The trial court granted summary judgment on the section 11135 claim because it concluded that the City’s zoning and land use decisions were not a state funded program or activity. The trial court found persuasive respondents’ argument that because the “LEA was not involved in the granting of the challenged Project Approvals... any state funds paid to the LEA do not implicate Section 11135.” In short, the trial court concluded Comunidad failed to carry its burden of showing discrimination in a state funded “program or activity, ” as that phrase is used in section 11135.
The trial court further concluded it did not need to consider Comunidad’s motion for summary adjudication, which sought summary adjudication of the section 11135 claim on the ground that “defendants City of Los Angeles and City Council have received substantial state funding annually to operate the City’s waste management program and thus have a duty to comply with Government Code § 11135.” Comunidad does not challenge the denial of its motion for summary adjudication in this appeal.
4. The Dismissal of the CEQA Claims
The CEQA claims followed a different track. On November 12, 2010, the court issued an order granting the City and Waste Management’s motion to dismiss the CEQA claims. The court dismissed the CEQA causes of action because Comunidad’s counsel failed to request a hearing within 90 days as required by Public Resources Code section 21167.4. Comunidad sought relief under Code of Civil Procedure section 473, but the trial court denied relief, finding no excusable neglect.
1. Comunidad’s Section 11135 Cause of Action
Comunidad contends that the “approval to expand [the Bradley Landfill] and site the three challenged facilities on the closed Bradley Landfill is an integral part of the City’s waste management program.” Further, according to Comunidad, the LEA is a part of the City’s waste management program and because it received state funding the trial court erred in summarily adjudicating the section 11135 cause of action.
We conclude that the state grants made to the LEA do not raise a triable issue of material fact indicating that the alleged violations of section 11135 were part of a City program receiving state funding. To explain our conclusion, we first quote section 11135 and its implementing regulations, then review the key allegations in the complaint and critical facts, all of which are undisputed. Finally, we discuss the nature of a LEA and conclude its identity is separate from the City, even though in Los Angeles it is housed within a City department and staffed with City employees.
Section 11135, subdivision (a) provides: “No person in the State of California shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.”
California Code of Regulations, title 22, section 98010 provides the definition of “program or activity” as used in section 11135: “‘Program or activity’ means any project, action or procedure undertaken directly by recipients of State support or indirectly by recipients through others by contracts, arrangements or agreements, with respect to the public generally or with respect to any private or public entity. Such programs or activities include, but are not limited to, the provision of employment or goods; the procurement of goods or services; the provision of education, training, health, welfare, rehabilitation, housing, or other services; the provision of cash or loan assistance; or the provision of facilities for furnishing services, financial aid or other benefits. The services, financial aid or other benefits provided under such programs or activities shall be deemed to include: [¶] (1) any services, financial aid or other benefits provided with the aid of State support, or with the aid of other funds or resources required to be expended or made available for the program to meet matching ...