California Court of Appeals, First District, Fourth Division
Alameda County Superior Court No. RG1478503 Honorable Brad S.
Seligman Trial judge.
Counsel for plaintiff and appellant: Susan Brandt-Hawley.
Counsel for defendant and appellant: Xavier Becerra, Attorney
General, Daniel A. Olivas, Senior Assistant Attorney General,
David G. Alderson, Supervising Deputy Attorney General, Tara
L. Mueller, Deputy Attorney General.
POLLAK, P. J.
Lake Norconian Club Foundation (the foundation) appeals the
denial of its petition for writ of mandate alleging that the
California Department of Corrections and Rehabilitation (the
department) failed to comply with the California
Environmental Quality Act (CEQA), Public Resources Code
section 21000 et seq.,  by allowing the “demolition
by neglect” of the Lake Norconian Club, a former hotel
owned by the department and listed on the National Register
of Historic Places. The foundation contends the
department's “decision not to repair the historic
hotel roof in the face of imminent El Niño rains in
2014” was a “project” requiring preparation
and certification of an environmental impact report (EIR).
The trial court concluded that the failure to seek or
allocate funding to maintain the former hotel was a project,
but that the foundation's petition was barred by the
statute of limitations. We affirm the judgment denying the
petition on the ground that the department's inaction is
not a project subject to CEQA.
and Procedural Background
former hotel currently sits unoccupied on the grounds of a
medium-security prison owned and operated by the department.
When first opened in 1929, the hotel was a luxury resort
catering to Hollywood stars and sports celebrities. The
interior of the Spanish Revival-style building contains
Heinsbergen murals, stenciled ceilings, exquisite tile, and
special wrought-iron light fixtures. In 1941, following the
depression and with the advent of World War II, the hotel was
closed and the building transferred to the United States
Navy. The building was used as a military hospital until
1962, when it was transferred to the State of California.
Since 1963, the department has operated a prison adjacent to
the former hotel. The hotel building first served as a drug
rehabilitation facility and later housed the prison's
administrative offices. In 2002, the department moved its
staff from the building and offered to donate it to the City
of Norco (the city). The city, however, was unable to satisfy
the conditions of transfer and the property has remained
under the state's ownership.
2012, the Legislature enacted Senate Bill No. 1022 which,
among other things, required the department to close the
prison adjacent to the former hotel no later than December
31, 2016. (Stats. 2012, ch. 42, § 15.) In June 2013, the
department published a draft EIR analyzing, among other
things, the impacts on the former hotel of the prison's
closure. The EIR indicated that there was no funding for
repair or rehabilitation of the building “in light of
other [department] maintenance and repair priorities, ”
that it was not feasible for the department to undertake any
repairs, and that “[c]ontinued deterioration is
therefore expected.” In September 2013, the Legislature
passed legislation rescinding closure of the prison. (Stats.
2013, ch. 310, § 21.) The final EIR was certified in
October 2013. The response to comments in the final EIR
indicated that, although the prison would not be closed, the
department nevertheless would not be able to repair or
maintain the former hotel due to inadequate funds and higher,
mission-critical maintenance needs and other priorities.
its formation in 2006, the foundation repeatedly encouraged
the department to perform necessary maintenance on the
building. Emails exchanged between the foundation and the
department between May and October 2014 demonstrate continued
efforts to address the needed repairs. On October 15, the
department emailed the foundation inquiring what its
“next steps” would be to explore repair options
for the hotel roof. On October 28, the foundation replied
through its attorney, formally requesting that the department
undertake repairs and corrective measures to repair the roof
and maintain the vulnerable resources on the historic site
that were deteriorating from the department's neglect.
November 17, 2014, the foundation filed the present petition.
The petition alleges, “The department and its director
have and continue to abuse their discretion and fail to act
in the manner required by law in ongoing demolition by
neglect of the Lake Norconian Club. Years of neglect and lack
of security have left gaping holes in the club roof and
extensive damage from wildlife and water intrusion. The
willful, ongoing failure to maintain and protect the historic
club is a continuous discretionary action with significant
environmental impacts.... The department's de
facto issuance of ongoing demolition permits is a
precommitment to a CEQA project that cannot lawfully be
considered for approval or implementation without first
preparing and certifying an EIR to consider impacts and
alternatives.” The foundation does not allege that any
permits for the repair, maintenance or demolition of the
property were issued. To the contrary, it asserts the failure
to maintain the property is the equivalent of issuing a
October 2015, the foundation moved for injunctive relief,
requesting that the court order the department to take
“all immediate action necessary” to protect the
hotel from 2015 winter rains. The court ordered the
department “to permit [the foundation] and the city...
prompt and reasonable access to the hotel for the purpose of
permitting [the foundation] and the city... to maintain and
preserve the hotel, ” but the foundation and the city
were to bear all costs of maintenance, subject to
reimbursement by the department if the foundation ultimately
prevailed in the action.
April 2018, the court issued an order denying the petition.
The trial court concluded that the department's failure
“to seek or allocate funding to preserve the
hotel” in the face of its knowledge that its failure to
act would inevitably lead to the destruction of the historic
resource was a project within the meaning of CEQA, but that
the petition was untimely because the statute of limitations
began to run with the certification of the 2013 EIR.
Following the entry of judgment and the denial of its motion
for a new trial, the foundation timely filed a notice of
appeal. Thereafter, the department timely filed a notice of
foundation contends the trial court erred in holding its
petition barred by the statute of limitations applicable to
petitions alleging noncompliance with CEQA (§ 21167). In
its cross-appeal, the department asserts the trial court
erred in deeming the failure to act a project subject to
CEQA. The department's contention need not have been
raised by a cross-appeal, since it merely provides an
additional argument in support of the judgment and seeks no
additional relief. (Hicks v. Kaufman & Broad Home
Corp. (2001) 89 Cal.App.4th 908, 924, fn. 56.)