Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Imperial County No. 97911 Joseph W. Zimmerman, Judge.
O'ROURKE, J.
Appellant Sierra Club appeals from an order granting the motion of respondents Imperial County, the Imperial County Planning Commission (collectively County), and United States Gypsum Company (USG) for reconsideration and dismissing Sierra Club's proceeding for a peremptory writ of mandate. In that proceeding, Sierra Club sought a writ directing respondents to prepare an Environmental Impact Report (EIR) in compliance with the California Environmental Quality Act (CEQA) for the expansion and modernization of USG's wallboard manufacturing plant in Plaster City, California (the Project). Sierra Club contends the trial court lacked jurisdiction to grant reconsideration and exceeded its authority by dismissing the proceeding. It maintains dismissal of its proceeding was unwarranted because it diligently prosecuted the matter and timely requested a hearing under Public Resources Code section 21167.4.
All statutory references are to the Public Resources Code unless otherwise indicated.
As we will explain, we conclude the court did not clearly err in reconsidering its decision. However, we hold the court's dismissal on grounds of unreasonable or inexcusable delay in prosecution is without any reasonable justification, and thus was an abuse of discretion. Accordingly, we reverse the order dismissing Sierra Club's petition.
FACTUAL AND PROCEDURAL BACKGROUND
In January 1999, Sierra Club petitioned for a writ of mandate directing County to set aside a negative declaration (§ 21080, subd. (c)) it had issued for the Project and prepare an EIR. After the superior court denied the petition in July 1999, Sierra Club appealed to this court, and, in an unpublished decision, we reversed and directed the court to grant Sierra Club's petition. (Sierra Club v. Imperial County et al. (Oct. 26, 2000, D034281) [nonpub. opn.].) In March 2001, the superior court issued a peremptory writ of administrative mandamus requiring County to prepare an EIR for the Project, set aside any permits issued to USG as a result of the negative declaration, and file a return within 60 days after service of the writ. County filed its return in May 2001. Thereafter, USG petitioned for Chapter 11 bankruptcy.
According to declarations of counsel in the record, in June 2001, USG petitioned for Chapter 11 bankruptcy pending a motion to recall the remittitur it had filed in May 2001. Thereafter, this court recognized a stay of any appellate court action and notified USG to advise this court when the stay was lifted. On January 23, 2008, this court issued an order denying USG's motion to recall the remittitur.
In January 2008, County filed a supplemental return to the peremptory writ of mandate, which stated in part it had completed a final EIR/EIS (FEIR) that was scheduled for certification and, following a February 13, 2008 hearing, it would take "appropriate action" with regard to permits issued in reliance on the previous negative declaration. In March 2008, County filed a second supplemental return stating the planning commission had certified the EIR on February 13, 2008, and the board of supervisors denied an appeal and certified the EIR on March 18, 2008. It further stated that no objection had been filed to its supplemental return and that it had determined no further action was required with respect to any permits because the EIR had been certified.
On April 17, 2008, Sierra Club filed objections to County's second supplemental return. It asserted County abused its discretion by failing to proceed in the manner required by law in various ways, including by failing to: describe or approve feasible mitigation measures, provide an accurate description of the physical environmental conditions, provide a consistent or concise description of the Project, avoid significant impacts, provide written responses to comments made by public agencies 10 days prior to the FEIR's certification, or timely send a copy of the FEIR to persons or agencies who commented on the draft EIR. It additionally asserted County's findings related to biological resources were not supported by substantial evidence and County did not adequately analyze each alternative.
At the same time, Sierra Club filed a notice of motion and motion for a supplemental and amended writ of mandate. In addition to other relief, Sierra Club sought to set aside County's project approval and FEIR certification, as well as any license, approval or authorization to USG to increase pumping from specified water wells beyond certain limits. It sought to have County prepare a new EIR/EIS for the Project and issue an order that USG cease all groundwater pumping in excess of specified levels until County took necessary actions to bring its determination, findings and decision into CEQA compliance. The motion was set for hearing on July 15, 2008.
USG, joined by County, opposed the motion on grounds Sierra Club's motion was not a petition for writ of mandate, and thus Sierra Club did not timely initiate an action or proceeding challenging the decision to certify the FEIR. According to USG, as a result, the superior court was deprived of authority to consider Sierra Club's challenges or set aside any decisions made in reliance on the FEIR. In reply, Sierra Club responded its challenge was timely and appropriate; that the determination of whether County's EIR was prepared in accordance with law fell within the court's continuing jurisdiction to enforce compliance with its peremptory writ of mandate. In August 2008, the superior court issued Sierra Club's requested order to show cause, finding it had sufficient authority to do so under its March 29, 2001 peremptory writ, section 21168.9, and case authority.
Sierra Club argued it had acted diligently to move the case forward expeditiously, and requested the court set the matter for a hearing within 70 days of the lodging of the administrative record. Counsel for Sierra Club submitted a declaration showing County had declined her April 22, 2008 request that it prepare an administrative record; that she thereafter communicated with County's attorney and other representatives during May, June and July in an attempt to inspect and copy County records and finally made an appointment on July 11, 2008, after County agreed to make the records available.
About seven and a half months passed. In May 2009, USG, again joined by County, moved to dismiss Sierra Club's action. Citing Code of Civil Procedure section 583.150, Stephen Slesinger, Inc. v. Walt Disney Company (2007) 155 Cal.App.4th 736 (Slesinger), and other authorities for the proposition that courts possess inherent power to dismiss an action for "unreasonable or inexcusable delay in prosecution, " they argued Sierra Club had delayed prosecution of the matter; that despite Sierra Club's election on June 3, 2008, to prepare the record of proceeding concerning the FEIR, and despite the fact its representatives had assertedly obtained copies of all the documents that comprised the administrative record by October 2008, Sierra Club had not yet produced the administrative record. Respondents further argued delay was shown by Sierra Club's failure to take steps to have the matter set for a hearing on the merits during the eight months since the court had ruled on the jurisdictional issue. Contending Sierra Club had not pursued the litigation in good faith, they argued the superior court had the inherent power to dismiss the action. Respondents alternatively asserted dismissal was mandatory because, assuming Sierra Club's motion was an action or proceeding under section 21167, Sierra Club had not timely sought a hearing on the merits of its remaining claims by July 16, 2008, the 90-day limit specified in section 21167.4, subdivision (a).
Relying on the standards expressed in Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502 (Leavitt), Sierra Club opposed the motion on grounds no extraordinary circumstances, such as disregard of a court order, justified dismissal and USG had not demonstrated any harm warranting a dismissal sanction. It submitted declarations from its attorney, Julie Hamilton, and Sierra Club member Edith Harmon explaining the delay in compiling, copying and preparing the approximately 20, 000-page administrative record. Sierra Club later supplemented its filing with Hamilton's declaration averring that on June 8, 2009, she had transmitted the administrative record to the assistant county counsel for certification.
The superior court denied USG's and County's motion to dismiss the proceeding: "Notwithstanding considerable delay by the Sierra Club, the real party does not establish that petitioner's delays in this matter have been '... deliberate and egregious...' under that criteria as set forth in [Slesinger, supra, 155 Cal.App.4th 736]...." The court further ruled USG had not adequately shown prejudice.
USG and County moved for "reconsideration and/or clarification" of the court's decision under the court's "inherent power" and Code of Civil Procedure section 1008. They argued the "deliberate and egregious" standard cited by the court did not apply to motions to dismiss for failure to prosecute and there was no requirement that they show prejudice. The motion was supported by USG's counsel's accompanying declaration, in which counsel stated: "After the Court's ruling on the Motion to Dismiss, my office conducted extensive legal research and was unable to find any reported decision where a court applied a 'deliberate and egregious' standard to a motion to dismiss for failure to prosecute, or any other legal authority that authorizes courts to apply such a standard in the case of a party's failure to prosecute an action."
Respondents also asked the court to rule on USG's claim that dismissal was warranted under section 21167.4, subdivision (a) and also clarify its statement of decision as to whether County had a duty to prepare or certify a second record of proceedings for the court's review of County's return to the peremptory writ of mandate.
The matter proceeded to oral argument, during which the superior court announced it had "erred in using the deliberate and egregious standard" of Slesinger and had committed "legal error" in denying the motion to dismiss. The court stated that to the extent there were no grounds for reconsideration, it would rely on its "inherent power to correct [its] own mistake short of a judgment" and reverse its prior ruling. Following arguments, the court granted reconsideration, granted the motion to dismiss, and overruled USG's objections to Sierra Club's counsel's declarations. Sierra Club appeals from those orders.
DISCUSSION
I. Standard of Review
The parties dispute the applicable standard of review. Citing Friends of Riverside's Hills v. City of Riverside (2008) 168 Cal.App.4th 743 (Riverside's Hills)and Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110 (Royalty Carpet), Sierra Club contends an appellate court reviews a motion to dismiss a petition for writ of mandate de novo, in which case there is no deference exercised in favor of the trial court's decision. Respondents distinguish these cases as involving only questions of law pertaining to the statute of limitations. They maintain an abuse of discretion standard applies to decisions on a motion for reconsideration and motion to dismiss based on a party's failure to prosecute.
Both Riverside's Hills and Royalty Carpet broadly state that appellate review of an order granting a motion to dismiss a petition for writ of mandate is de novo. (Riverside's Hills, supra, 168 Cal.App.4th at p. 748; Royalty Carpet, supra, 125 Cal.App.4th at p. 1118. For that proposition, Riverside's Hills relies on Royalty Carpet, which in turn relies on City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 869. City of Morgan Hill, however, involved a demurrer testing the legal sufficiency of a complaint. (Id. at p. 869.) Review of the ensuing dismissal in that circumstance is de novo. (Ibid.) These authorities do not persuade us that we should independently review the trial court's orders in this case granting reconsideration and dismissal based on Sierra Club's asserted failure to prosecute. Rather, we look to appellate review standards applicable to the underlying orders.
We acknowledge this court relied on Riverside's Hills, supra, 168 Cal.App.4th 743 to state a de novo review standard for dismissal of a writ petition in Torrey Hills Community Coalition v. City of San Diego (2010) 186 Cal.App.4th 429, 434. But the underlying questions in Torrey Hills were different: whether the petitioner had complied with the 90-day Subdivision Map Act service of summons requirement of Government Code section 66499.37 and the 90-day requirement to file a written request for a hearing under Public Resources Code section 21167.4. (Torrey Hills, at pp. 435, 439.) Both were apparent legal questions in that case subject to an independent standard of review.
An appellate court reviews a trial court's order on a motion for reconsideration for abuse of discretion. (Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 724.) Under that standard, we afford considerable deference to the trial court, and, when two or more inferences can be reasonably drawn from the facts in the record, we are without authority to substitute our decision for that of the trial court. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) A court's discretionary ruling will be disturbed on appeal " 'only if the court exercised [its discretion] in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice.' " (Black Historical Society v. City of San Diego (2006) 134 Cal.App.4th 670, 677, fn. 3 (Black Historical Society).)
Likewise, we review for abuse of discretion the trial court's decision to dismiss Sierra Club's petition on grounds of lack of prosecution. (Van Keulen v. Cathay Pacific Airways, Ltd. (2008) 162 Cal.App.4th 122, 131 [order granting dismissal for dilatory prosecution]; Terzian v. County of Ventura (1994) 24 Cal.App.4th 78, 83 [same].) In applying this standard to a discretionary dismissal we "must presume that the decision of the trial court is correct. ' "All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." ' [Citation.]... The burden is on the party challenging the trial court's decision to show that the court abused its discretion. [Citation.] Thus, even if there is no indication of the trial court's rationale for dismissing an action, the court's decision will be upheld on appeal if reasonable justification for it can be found." (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443; see also Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183 [a "court's decision to impose a particular sanction is 'subject to reversal only for manifest abuse exceeding the bounds of reason' "]; Slesinger, supra, 155 Cal.App.4th 736, 765.)
Here, the court's ruling on reconsideration turned on the proper legal standard to be applied to respondents' claim that dismissal was warranted for Sierra Club's asserted delay in preparing the administrative record. When a trial court bases its decision on an incorrect legal standard, an abuse of discretion will arise. (People v. Knoller (2007) 41 Cal.4th 139, 156 [involving new trial motion]; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436 [discretionary ruling on motion for class certification will be reversed if based on improper criteria or erroneous legal assumptions even if substantial evidence supports the order]; Raggio v. Southern Pac. Co. (1919) 181 Cal. 472, 475.) The question of the proper legal standard to apply under such circumstances is one of law that we decide independently. (See McGhan Medical Corp. v. Superior Court (1992) 11 Cal.App.4th 804, 809.)
II. The Trial Court Possessed Inherent Authority to Grant Reconsideration
Sierra Club contends the trial court lacked jurisdiction under Code of Civil Procedure section 1008 to grant reconsideration based on "new or different facts, circumstances, or law...." (Code Civ. Proc., § 1008, subds. (a), (e).) Respondents counter that the court's application of the "deliberate and egregious" standard of Slesinger, supra, 155 Cal.App.4th 736 to its claim of Sierra Club's delay in prosecution "was itself a new or different fact or circumstance that justified reconsideration." But respondents' motion to dismiss expressly cited Slesinger, and, relying on another dismissal case in the CEQA context (Black Historical Society, supra, 134 Cal.App.4th 670), they argued "Sierra Club's unexplained delay in prosecuting its remaining claims" was "egregious...." (Italics added.)
We need not decide whether respondents' request for reconsideration was based on some new or unexpected application of the Slesinger standard versus mere disagreement with the trial court's application of that standard, or whether respondents met the requirements of Code of Civil Procedure section 1008 by presenting new or different facts or law that they could not have presented before the court's initial ruling. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-215; but see Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 889, 895 [in dicta, declining to import into Code of Civil Procedure section 1008 a "categorical requirement" that the movant show diligence].) This is because the court had inherent authority to correct any mistaken ruling on its own motion, as long as it gave the parties notice that it might do so and a reasonable opportunity to litigate the question. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1097; In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1303, 1307; In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1469.) This inherent authority applies even when a court is prompted to reconsider its prior ruling by a motion filed in violation of Code of Civil Procedure section 1008. (Barthold, at pp. 1303-1304.)
Sierra Club does not challenge the court's inherent authority in this regard. Thus, we proceed to the question of whether the court erred by granting reconsideration and dismissing the case based on its belief it had applied an incorrect legal standard and its express or implicit factual findings, if any, that dismissal was warranted for Sierra Club's delay in prosecuting its case.
Given our holding below that the order of dismissal is without reasonable justification or support in the record, we need not reach Sierra Club's contention that the court exceeded its authority by refusing to limit its reconsideration ruling to its use of the Slesinger standard.
III. The Trial Court Did Not Err in Reconsidering its Decision Based on its Erroneous Application of Slesinger's Deliberate and Egregious Standard
As stated, in considering respondents' request for reconsideration, the trial court concluded the "deliberate and egregious" standard set forth in Slesinger, supra, 155 Cal.App.4th 736did not apply to respondents' motion to dismiss, which was grounded on a claim of Sierra Club's failure to prosecute. On that basis, the court ruled it had committed legal error warranting reconsideration.
In Slesinger, supra, 155 Cal.App.4th 736, the Court of Appeal addressed a question of first impression: whether a trial court possessed inherent power to dismiss an action when faced with a litigant's conduct characterized as "pervasive litigation abuse, " "pervasive misconduct, " or "misconduct that violates established procedures or a court order." (Id. at pp. 758, 759, 765.) The appellate court observed that past California decisions had affirmed dismissals as an inherent power in two situations: where there was "unreasonable, inexcusable delay in prosecution" (id. at p. 758) and in instances of "fraudulent or 'vexatious' " cases. (Slesinger, at pp. 758-759.) It pointed out that the California Supreme Court — in Lyons v. Wickhorst (1986) 42 Cal.3d 911 (Lyons) — had stated the inherent power was "confined" to these two types of cases. (Slesinger, 155 Cal.App.4th at p. 759.) But Slesinger reasoned the high court's dicta was not exhaustive and did not limit trial courts' inherent power to those two situations; that in fact Lyons implicitly acknowledged a court has inherent power to dismiss an action "for misconduct that violates established procedures or a court order." (Slesinger, 155 Cal.App.4th at p. 759.) Slesinger focused on the high court's conclusion that a trial court's inherent power to dismiss as a remedy for litigation misconduct should be limited to " 'extreme circumstances' of deliberate misconduct when no lesser sanction would be effective to cure the harm." (Slesinger, at p. 760.) Ultimately, Slesinger concluded that to justify a California court's dismissal of an action for litigation misconduct, the misconduct must be "deliberate and egregious" and it must render "any remedy short of dismissal inadequate to preserve the fairness of the trial." (Id. at pp. 762, 764.)Nevertheless, the appellate court emphasized that in any case, "dismissal is always a drastic remedy to be employed only in the rarest of circumstances." (Id. at p. 764.)
Such extreme circumstances were not present in Lyons, supra, 42 Cal.3d 911, which involved a party's failure to participate in mandatory judicial arbitration. According to the Lyons court, dismissal was "too drastic a remedy in light of the fact that arbitration was not intended to supplant traditional trial proceedings, but to expedite the resolution of small civil claims." (Id. at p. 919; see Slesinger, supra, 155 Cal.App.4th at pp. 759-760.)
We read Slesinger as formulating the "deliberate and egregious" standard for instances of intentional litigation misconduct or violations of court orders. Here, despite its characterization of Sierra Club's conduct as "egregious" in their motion to dismiss, in moving for reconsideration, respondents disavowed any argument that Sierra Club had committed the type of intentional litigation misconduct governed by Slesinger. Instead, respondents emphasized they sought dismissal for Sierra Club's "unreasonable or inexcusable delay in prosecution, " not on any claim of willful or pervasive litigation misconduct or violations of court orders. Based on respondents' concession that their motion was grounded in Sierra Club's "mere" delay in prosecution, we uphold the trial court's grant of reconsideration. The court did not clearly err by invoking its inherent power to grant reconsideration based on its use of an incorrect legal standard.
The trial court, however, did not explain what legal standards it did apply to respondents' request that it dismiss Sierra Club's mandamus proceeding under CEQA for delay in prosecution. Having concluded the grant of reconsideration was not clearly an abuse of discretion, we proceed to assess the possible legal bases for use of its inherent discretion and correctness of the court's decision to dismiss Sierra Club's petition. (See Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 211, fn. 18;e.g., Standard Microsystems Corp. v. Winbond Electronics Corp., supra, 179 Cal.App.4th at p. 890.)
IV. Legal Standards Applicable to Dismissal Under the Court's Inherent Judicial Authority to Dismiss for Delay in Prosecution
A trial court has "limited, inherent discretionary power to dismiss claims with prejudice." (Lyons, supra, 42 Cal.3d at p. 915; see also Romero v. Snyder (1914) 167 Cal. 216, 219-220; Slesinger, supra, 155 Cal.App.4th at pp. 758-759; Pearlson v. Does 1 to 646 (1999) 76 Cal.App.4th 1005, 1010.) The court's inherent authority to dismiss is recognized in statutes (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799; see Code Civ. Proc., §§ 581, subd. (m); 583.150), but it may not be exercised in a manner contrary to the statutes. (Lyons, at p. 915, Romero, at p. 219; Weeks v. Roberts (1968) 68 Cal.2d 802, 805, overruled on other grounds and superseded by statute as stated in Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 348-349.) These discretionary dismissal statutes (Code Civ. Proc., § 583.110 et seq.) apply to mandamus proceedings. (Oskooi v. Fountain Valley Regional Hospital and Medical Center (1996) 42 Cal.App.4th 233, 238-239; Binyon v. State of California (1993) 17 Cal.App.4th 952, 956.)
A court may exercise its inherent power to dismiss where an "unreasonable, inexcusable delay in prosecution" interferes with the orderly process of litigation and may make a fair trial unlikely. (Slesinger, supra, 155 Cal.App.4th at pp. 758-760; Lyons, supra, 42 Cal.3d at p. 915 [dismissal under court's inherent authority appropriate where "plaintiff has failed to prosecute diligently"]; Wells Fargo Bank v. Goldzband (1997) 53 Cal.App.4th 596, 628 [dismissal proper where "an unreasonable time has elapsed — where the proceeding is not diligently prosecuted"].)
As stated, use of the court's inherent power in these circumstances is not unlimited. It is "tightly circumscribed, " including by the two year statutory period within the discretionary dismissal statutes. (See Lyons, supra, 42 Cal.3d at pp. 915-916; Weeks v. Roberts, supra, 68 Cal.2d at p. 805; General Motors Corporation v. Superior Court of Los Angeles (1966) 65 Cal.2d 88, 98 ["Pursuant to [Code of Civil Procedure] section 583, it is not within the discretionary power of the trial court to dismiss an action until two years after it has been filed; a plaintiff may not be penalized for failing to bring even the least complicated case to trial during this period."]; Spanair S.A. v. McDonnell Douglas Corp. (2009) 172 Cal.App.4th 348, 354; Franklin Capital Corp. v. Wilson, supra, 148 Cal.App.4th at pp. 213-214; Cohen v. Hughes Markets, Inc. (1995) 36 Cal.App.4th 1693, 1698 ["relevant statute and court rule authorize dismissal for lack of prosecution no sooner than the two-year mark"]; Holden v. California Employment Stabilization Commission (1950) 101 Cal.App.2d 427, 437-438.) If this were not the case, the minimum and maximums period set forth in the statutes would be meaningless. (Holden, at p. 438.)
In Lyons, the California Supreme Court explained that the court's discretion to dismiss an action for lack of prosecution had been "recodified" in Code of Civil Procedure section 583.410, which "permits the court to dismiss an action for lack of prosecution provided that one of several enumerated conditions has occurred." (Lyons, supra, 42 Cal.3d at p. 915.) The court explained that "this two-year statutory period was intended to 'limit the court's independent power to dismiss an action for want of prosecution at any time.' Thus, a minimum delay of two years is required before a trial court can exercise its discretionary dismissal powers." (Ibid., italics added.)
Before deciding Lyons, supra, 42 Cal.3d 911, the California Supreme Court in Steen v. City of Los Angeles (1948) 31 Cal.2d 542 stated a trial court has inherent power "independent of statutory provisions" to dismiss an administrative proceeding when the proceeding is not diligently prosecuted. (Id. at pp. 546-547.) The court more recently cited Steen in dicta (Robert F. Kennedy Medical Center v. Belshe (1996) 13 Cal.4th 748, 760, fn. 9), as does the Court of Appeal in Wells Fargo Bank v. Goldzband, supra, 53 Cal.App.4th at p. 628. In supplemental briefing we had requested on this point, USG points to Steen as standing for the proposition that a trial court's inherent authority to dismiss for lack of prosecution is not limited by section 583.420's two-year period. We decline to read Steen and Kennedy as suggesting trial courts have inherent authority to dismiss an action for mere lack of diligence in prosecution (as opposed to egregious misconduct) before the two-year period from the date of filing, given Code of Civil Procedure section 583.410's codification of those parameters. (Lyons, supra, 42 Cal.3d at p. 915.)
Court rules incorporated into the discretionary dismissal statutes likewise circumscribe the court's inherent power. (Cal. Rules of Court, rule 3.1342;see Salas v. Sears, Roebuck & Co., supra, 42 Cal.3d at p. 347, fn. 6; Franklin Capital Corp. v. Wilson, supra, 148 Cal.App.4th at pp. 213-214 [court rules prescribe no less than 45 days' notice of any motion to dismiss for delay in prosecution]; Dick v. Superior Court (1986) 185 Cal.App.3d 1159, 1164-1165 & fn. 7.) The court's power in questionable cases must give way to the policy favoring trial on the merits and seeking to dispose litigation on the merits rather than on procedural grounds. (Salas, at p. 347, fn. 6; Lyons, supra, 42 Cal.3d at p. 916; see Code Civ. Proc., § 583.130 ["the policy favoring trial or other disposition of an action on the merits [is] generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter"]; Weeks v. Roberts, supra, 68 Cal.2d at pp. 806-807; Dubois v. Corroon & Black Corp. (1993) 12 Cal.App.4th 1689, 1696-1697.)
V. No Reasonable Justification Supports Dismissal of Sierra Club's Petition
A. Dismissal Was Not Proper Under the Discretionary Dismissal Statutes and Court Rules Governing Lack of Prosecution, Which Restrict the Superior Court's Inherent Authority to Dismiss
Here, the trial court's discretion to dismiss the action for delay in prosecution was confined both in procedure and criteria to California Rules of Court, rule 3.1342, which prescribes "no less than 45 days' notice of any motion to dismiss for delay in prosecution." (Franklin Capital Corp. v. Wilson, supra, 148 Cal.App.4th at p. 213; but see Sakhai v. Zipora (2009) 180 Cal.App.4th 593, 599 [45-day rule applies to motions by a party seeking dismissal, not a trial court-initiated motion].) Respondents filed and served their motion to dismiss on May 15, 2009, for a hearing set 25 days later on June 12, 2009. We cannot deem respondents' motion as one invoking the court's inherent authority to dismiss for delay in prosecution under Code of Civil Procedure section 583.410, since Sierra Club did not receive sufficient notice under the terms of the statute. (Franklin Capital Corp., at p. 214.)
The court was also required to consider various factors in exercising its discretionary power to dismiss, including the extent to which the parties engaged in settlement negotiations or discussions; the parties' diligence in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party; the nature and complexity of the case; the law applicable to the case; the nature of any extensions of time or other delay attributable to either party; the condition of the court's calendar and the availability of an earlier trial date if the matter was ready for trial; and whether the interests of justice are best served by dismissal or trial of the case. (Cal. Rules of Court, rule 3.1342(e) [superior court "must consider all matters relevant to a proper determination of the motion, including: [enumerated factors], " italics added]; Dubois v. Corroon & Black Corp., supra, 12 Cal.App.4th at p. 1696; Dick v. Superior Court, supra, 185 Cal.App.3d at p. 1165.) Though we acknowledge the court need not have expressly recited these factors in its order (Wilson v. Sunshine Meat & Liquor County. (1983) 34 Cal.3d 554, 558; Dubois, at p. 1696), actual consideration of the factors and plaintiff's conduct is mandatory, and failure to weigh them is an abuse of discretion. (Dubois, at p. 1696.) There is no indication the court weighed these factors in dismissing Sierra Club's petition.
Further, the trial court lacked discretion to dismiss Sierra Club's petition because the minimum two-year period had not elapsed. As USG and County concede in supplemental briefing, the time during which Sierra Club's petition was pending appeal and while USG was in Chapter 11 bankruptcy under an automatic stay is excluded from the calculation while the superior court lacked jurisdiction to act. (Code Civ. Proc., §§ 583.340, subds. (a), (b), 583.420, subd. (b); 916; see Spanair S.A. v. McDonnell Douglas Corp., supra, 172 Cal.App.4th at p. 354.) During the statutory tolling period of subdivision (a) of Code of Civil Procedure section 583.340, " 'plaintiff's diligence, or lack thereof, has no place in the analysis.' " (Ocean Services Corp. v. Ventura Port Dist. (1993) 15 Cal.App.4th 1762, 1774.)
Code of Civil Procedure section 583.340 provides: "In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed: [¶] (a) The jurisdiction of the court to try the action was suspended. [¶] (b) Prosecution or trial of the action was stayed or enjoined. [¶] (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile." These exceptions are incorporated into Code of Civil Procedure section 583.420's two-year period via subdivision (b), which provides: "The times provided in subdivision (a) shall be computed in the manner provided for computation of the comparable times under Articles 2 (commencing with Section 583.210) and 3 (commencing with Section 583.310)." Recently, in Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, the California Supreme Court explained that the subdivision (b) exception of Code of Civil Procedure section 583.340 governs only complete stays that are " 'used to stop the prosecution of the action altogether.' " (Bruns, at p. 730.) The stay pending appeal and the bankruptcy against USG fall within that definition. (See e.g. Lauriton v. Carnation Company (1989) 215 Cal.App.3d 161, 164 [Under the Bankruptcy Act, commencement or continuation of any legal proceeding against the debtor is automatically stayed by the filing of a petition in bankruptcy until adjudication or dismissal of the petition].) It also appears to us that as a matter of law under the undisputed facts before us, it would have been futile for Sierra Club to bring the matter to trial before USG notified Sierra Club that its FEIR had been certified. (§ 583.340, subd. (c).)
Given USG's intervening bankruptcy, it was not until January 2008 that this court ruled on USG's motion to recall the remittitur, and until March 2008 that County filed its supplemental return to the peremptory writ of mandate notifying Sierra Club that its FEIR had been certified. Even ignoring the futility of proceeding with the matter absent a certified FEIR before March 2008 (see footnote 10, ante), the 18-month delay from January 2008 to Sierra Club's filing of the administrative record in June 2009 is insufficient to justify the trial court's dismissal order. The statutory limitations on the court's inherent power, combined with the policy favoring trial on the merits, requires us to conclude the trial court possessed no authority under the discretionary dismissal statutes to dismiss Sierra Club's case for lack of diligent prosecution.
B. There Are No Grounds for Dismissal Under Section 21167.4
Section 21167.4, subdivision (a), requires a party alleging CEQA noncompliance to file a request for a hearing "within 90 days from the date of filing the petition...." The consequence of failing to do so is that, at the opponent's request or court's own motion, the matter must be dismissed. (Torrey Hills Community Coalition v. City of San Diego, supra, 186 Cal.App.4th at p. 439; Fiorentino v. City of Fresno (2007) 150 Cal.App.4th 596, 603; Nacimiento Regional Water Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 965-966.) A party satisfies the statutory requirement by filing a simple written request, after which an application may be made for a briefing schedule and actual hearing date. (See County of Sacramento v. Superior Court (2009) 180 Cal.App.4th 943, 949; Leavitt, supra, 123 Cal.App.4th at p. 1521; Association for Sensible Development at Northstar, Inc. v. Placer County (2004) 122 Cal.App.4th 1289, 1294-1295.)
Here, Sierra Club filed its writ petition on January 14, 1999, and on March 29, 1999, within 90 days from the filing, the parties stipulated to a hearing date. As the superior court found it had continuing jurisdiction over that petition (an order respondents did not appeal), Sierra Club's filing met the requirements of section 21167.4. Further, Sierra Club points out that even if a new petition were required, it met that requirement on April 17, 2008, when it filed its motion for a supplemental and amended writ of mandate seeking to set aside County's project approval and FEIR certification. That motion noticed the matter for hearing within 90 days, on July 15, 2008.
On appeal, respondents do not argue that section 21167.4 serves as grounds to dismiss Sierra Club's petition, though they advanced that theory in their motion to dismiss. In view of the procedural history set forth above, we conclude the statute provides no basis for dismissal.
C. The Record Does Not Support An Implicit Finding that Sierra Club Unreasonably or Inexcusably Delayed, or Failed to Act with Reasonable Diligence, in Pursing its Mandate Proceeding
Assuming the trial court's exercise of its inherent power to dismiss was not prevented by the statutory limitations discussed above, we would conclude the record does not support an implicit finding that Sierra Club unreasonably or inexcusably delayed, or failed to act with reasonable diligence, in obtaining the administrative record or otherwise pursuing its mandate proceeding. (See Leavitt, supra, 123 Cal.App.4th at p. 1526; People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems (1999) 20 Cal.4th 1135 [under abuse of discretion standard, appellate court must accept trial court's implied findings of fact supported by substantial evidence].)
Sierra Club argues it diligently and actively pursued the case and prepared the administrative record, and that under Leavitt, supra, 123 Cal.App.4th 1502 the court's dismissal was an unjustified "terminating sanction." Respondents also rely on a "reasonable diligence" standard, citing Black Historical Society, supra, 134 Cal.App.4th 670 and Lopez v. Larson (1979) 91 Cal.App.3d 383. Their claim of unreasonable and inexcusable delay both below and on appeal primarily targets the seven month period starting in approximately October 2008 — when Sierra Club completed its scan of County's documents — and ending in May 2009, when respondents moved to dismiss the proceeding. Citing Black Historical Society, respondents in their motion to dismiss argued "Sierra Club's failure to take any steps over the last eight months to have its Motion heard on the merits demonstrates that it does not have a good faith intention to pursue its remaining claims...."
The parties do not dispute that by the end of Fall 2008, Sierra Club had scanned copies of all relevant documents from County and the copies were in the possession of attorney Hamilton. In its proposed statement of decision to the trial court, USG stated its motion to dismiss "is based on Sierra Club's overall lack of diligence in prosecuting this case, including its extraordinary failure to take any appropriate steps to have its remaining claims heard on the merits during the nine-month period following this Court's decision on the jurisdictional issue." On appeal, respondents argue that "Sierra Club has yet to offer a valid excuse for its delay in prosecuting its claims after October 2008."
But Sierra Club's opposing declarations — which were not disputed by counter declarations below — do not demonstrate a "failure to take any steps" (italics added) to either prosecute the action or prepare the record before or during this period. Sierra Club attorney Hamilton detailed her various oral and written communications with the assistant county counsel, senior deputy county counsel and various planning department representatives during May, June and July 2008 pertaining to the administrative record. Sierra Club member Harmon likewise explained her efforts to scan the approximately nine boxes of documents during September and October 2008. According to Hamilton, after communicating on May 30, 2008, that it was not obligated to prepare the record, County eventually made documents available in July 2008, and she reviewed them on July 11, 2008 and August 14, 2008. She then contacted Sierra Club member Harmon, who was told by the planning department that the first available date to scan documents was September 3, 2008. Harman discovered upon viewing the boxes of documents that scanning each would take more than one day, and she was informed by County that she would not be permitted to scan on Tuesdays and Fridays. She was told on September 8, 2008, that the next day she could return was September 24, 2008, and from that day through October 10, 2008, she was permitted to scan only two days per week. At some point before October 13, 2008, a planning department representative advised her she would not be permitted to scan again until October 29 and 30, 2008.
Respondents point to a declaration in the record stating that during the seven-month period at issue, neither County, USG nor the superior court received any communication from Sierra Club. This does not contradict the portions of Hamilton's or Harmon's declarations summarized below.
Hamilton averred that in November 2008, after she had received a portable computer drive of the documents scanned from County's planning department files, she assigned a law student intern the task of indexing both those documents and documents she had previously copied, but discovered her office had no ability to view the files in their current format due to their size and software requirements. The next month, she elicited help from a law clerk from another local law school to separate the files into separate documents and finish the record index; during that time, her ability to spend time on the index was limited by her involvement in several other cases. In January 2009, Hamilton turned back to preparing the index, and again realized the files were too large to be usable and there were a large number of file documents that County had not previously made available that needed to be integrated into the record. Ultimately, she realized she had no in-house capability to review the files, convert them to a usable format, separate them and put them into chronological order. Hamilton stated she had to additionally scan and integrate into the record "several years worth" of documents that had been copied out of the project file between 1998 and the summer of 2008. In early March 2009, Hamilton hired an experienced paralegal to complete the record, but he too was unable to do so without extensive attorney involvement. Hamilton stated it was difficult to separate and integrate documents into one format to complete the record, which would consist of approximately 20, 000 pages of documents pertaining to County's EIR preparation after March 2001. She averred she worked "diligently and exhaustively" to prepare an accurate and usable record and neither she nor Sierra Club had any intent to unreasonably delay its preparation. Hamilton sent the administrative record to the assistant county counsel on June 8, 2009.
The authorities relied upon by respondents do not convince us that these circumstances and the seven-month delay justify dismissal. In Lopez v. Larson, supra, 91 Cal.App.3d 383, the defendant moved to dismiss a case in which "[n]othing whatever was done by plaintiff's attorneys in the prosecution of the case for two full years" and the plaintiff did not effect service of the summons and complaint until 28 months after the complaint's filing. (Id. at pp. 390, 396, fn. 8.) Finding no "sufficient or good cause for the lengthy delay, " the superior court entered judgment dismissing the action. (Id. at pp. 391, 396, fn. 8.) Addressing the relevant legal principles, the appellate court stated: "[I]f, in the exercise of its discretion, the trial court determines that insufficient good cause or justification has been shown for protracted delay, it may, and properly should, grant the motion to dismiss." (Id. at p. 398.) It observed the plaintiff's sole justification for the delay was that his attorneys, who were legal staff of the United Farm Workers (UFW), were so busy representing UFW and related clients that they had no time to serve the defendant or otherwise pursue the lawsuit. (Id. at pp. 394, 399.) Ultimately, the Court of Appeal held the trial court could rationally conclude the delay was unreasonable and unjustified. (Id. at p. 401.) It reasoned that while the press of business was a factor the trial court could consider, it was not required to deny the motion on that basis. (Id. at p. 400.) Further, based on the defendant's showing that the legal and paralegal staff at UFW was "quite sizable, " the trial court could rationally conclude there were a number of attorneys and paralegal assistants available to advance the case. (Id. at p. 401.)
Here, there was no comparable years-long delay or total absence of prosecution as in Lopez. Further, Sierra Club did not rely solely upon the "press of business" to justify its inability to submit the administrative record earlier; its declarations explain that Hamilton employed law student interns and clerks and also an experienced paralegal to index and format the large number of documents during this seven-month period. Hamilton additionally explained the delay on the lack of particular software resources and difficulty in viewing the documents. Respondents, for their part, did not present evidence demonstrating that Hamilton or Sierra Club in fact had the staffing and capacity to more quickly view, format and produce a usable administrative record.
In Black Historical Society, supra, 134 Cal.App.4th 670, this court upheld a trial court's dismissal — seven months after its filing — of a plaintiff's writ petition alleging CEQA and other violations relating to a city development permit, for plaintiff's failure to file an opening brief or otherwise pursue the litigation. (Id. at p. 678.) On appeal, the plaintiff contended it had been prevented from filing the brief because the city held its copy of the administrative record "ransom" pending full payment. (Id. at p. 674.) We rejected the contention. We observed that the plaintiff, who had been ordered to bear the cost of preparing the administrative record and knew the city would not release it without prepayment, (1) did not pay the costs of record preparation; (2) never sought a court order to waive or permit delayed payment; (3) had taken a position refusing to obtain the record despite its necessity for prosecuting the action; and (4) never availed itself of alternate means of obtaining the record such as preparing the record itself. (Id. at pp. 677-678.) We held under those circumstances — including where substantial evidence demon stated urgency due to an approaching construction deadline — the trial court could reasonably conclude the plaintiff had "no good faith intention to obtain the record, file an opening brief, or pursue the litigation" and thus did not abuse its discretion in dismissing the matter. (Ibid.) The plaintiff's "failure to prosecute" in Black Historical Society, supra, 134 Cal.App.4th 670 in substance was a willful violation of a court order and pattern of intransigent conduct, like the litigation misconduct discussed in Slesinger, supra, 155 Cal.App.4th 736. Such conduct warranted dismissal as a sanction under the court's inherent authority unbounded by the statutory limitations for mere delays in prosecution.
Here, Sierra Club did not conduct itself in an intransigent manner by refusing to pay for or obtain the administrative record. Indeed, as pointed out above, respondents expressly disavowed any intent to argue that Sierra Club's conduct was the sort of deliberate or egregious misconduct warranting dismissal as a sanction. Black Historical Society, supra, 134 Cal.App.4th 670does not compel us to uphold the trial court's dismissal order in the face of the "mere" delay in prosecution asserted by respondents.
Finally, we are persuaded under Leavitt, supra, 123 Cal.App.4th 1502 that dismissal was not justified for Sierra Club's delays in preparing the administrative record. In Leavitt, the Fifth District Court of Appeal considered whether dismissal of a petition for writ of administrative mandamus alleging CEQA violations and other causes of action was an appropriate sanction for plaintiffs' asserted prejudicial delay in submitting the administrative record. (Id. at p. 1507.) The appellate court held the superior court had discretion to impose a terminating sanction for failure to timely prepare the administrative record where the petitioners either (1) violated a court order that defined the scope of the administrative record or (2) the court has no other means, such as the imposition of lesser sanctions, to bring about compliance with the obligation to prepare the record. (Id. at p. 1526.) Here, there is no dispute Sierra Club elected to prepare the administrative record and took steps toward doing so after County declined. Indeed the administrative record was filed in June 2009. Thus, as in Leavitt, "it does not appear that sanctions were needed to persuade plaintiffs to comply with their obligations regarding the [record]." (Id. at p. 1527.)
Respondents do not argue that denial of their motion would prejudice them, and we need not address it. (Dick v. Superior Court, supra, 185 Cal.App.3d at p. 1167 [silence on issue of prejudice is taken as concession of no prejudice].) In sum, we conclude the superior court abused its discretion by dismissing Sierra Club's petition.
DISPOSITION
The order insofar as it grants reconsideration is affirmed. The order dismissing Sierra Club's petition is reversed and the matter remanded for further proceedings. Sierra Club shall recover its costs on appeal.
WE CONCUR: NARES, Acting P. J., HALLER, J.