Opinion
NOT TO BE PUBLISHED
City and County of San Francisco Super. Ct. No. 507187
Jones, P.J.
North Point Holdings, LLC (North Point) appeals contending the trial court erred when it denied its request under Code of Civil Procedure section 473 to set aside a dismissal. We conclude the court did not abuse its discretion and will affirm.
Unless otherwise indicated, all further section references will be to the Code of Civil Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
North Point owns a single-family residence in San Francisco. Seeking to demolish the residence and to construct a new three-family residence, North Point applied to the planning department for a categorical exemption under the California Environmental Quality Act (CEQA). It was granted.
A local resident challenged the planning department’s decision by filing an appeal to the San Francisco Board of Supervisors (Board). The Board reversed the planning department’s decision and ordered it to conduct an environmental review of the project.
North Point believed the Board’s decision was unfounded. It hired an attorney, Paul Utrecht of Zachs Utrecht and Leadbetter, and on April 19, 2007, it filed a petition for writ of administrative mandate alleging the Board had prejudicially abused its discretion.
A petition for administrative mandate challenging an administrative body’s decision under CEQA is subject to strict procedural requirements. (See Pub. Res. Code, § 21167 et seq.) As is relevant here, Public Resources Code section 21167.4 states, “the petitioner shall request a hearing within 90 days from the date of filing the petition or shall be subject to dismissal . . . .”
North Point failed to request a hearing within the 90-day period. On August 7, 2007, San Francisco filed a motion arguing North Point’s petition had to be dismissed. The trial court agreed and dismissed the petition on September 6, 2007.
Ronald Schivo, an associate with Zachs Utrecht and Ledbetter, promptly filed a motion under section 473 to set aside the dismissal. The motion was supported by a declaration from Utrecht who had primary responsibility for the case. Utrecht stated that he assigned the file to an associate, Patricia Caldwell, and asked her to determine the applicable deadlines. She did so, but failed to calendar the 90-day deadline to request a hearing into the firm’s “state-of-the-art” computer system. Instead, she placed a handwritten note in the file. Because the 90-day deadline was not entered into the computer system, Utrecht did not request a hearing in a timely fashion. Along with the motion, Schivo submitted an unsigned “Request for Hearing,” which asked that North Point’s petition be set for a hearing.
San Francisco opposed North Point’s motion arguing strenuously that it had not made an adequate showing to set aside the dismissal.
The trial court rejected San Francisco’s argument, granted North Point’s motion, and set aside the dismissal on November 1, 2007.
Having won an important battle, North Point then proceeded to lose the war. Its attorneys did not immediately file a request for a hearing as was required by Public Resources Code section 21167.4. Instead, the file was passed from one attorney to another, each believing someone else would file the necessary request for hearing. Ronald Schivo, who attended the hearing at which the dismissal was set aside, never filed the request because Utrecht had shifted responsibility for the case to another attorney in the firm. The other attorney, Andrea Rosenthal, never filed the request because she switched from full-time to part-time status. She was coming in less frequently and therefore she put the case “on the ‘back-burner.’” In January 2008, Rosenthal left the firm. Utrecht did not file the request because he was under the “impression” that it was no longer an issue.
On January 31, 2008, 91 days after the court’s order vacating the prior dismissal, San Francisco filed a new motion to dismiss. Again, it argued dismissal was mandatory under Public Resources Code section 21167.4 because North Point had not requested a hearing within 90 days. On February 26, 2008, the court granted the motion and dismissed the petition.
North Point obtained new attorneys and filed a new motion under section 473 to vacate the dismissal. It argued that it’s former counsel’s failure to timely request a hearing was an excusable mistake. The trial court rejected that argument explaining its decision as follows:
“I don’t think that the petitioner has shown excusable neglect. The petitioner had failed to file the required request for hearing within 90 days.
“The Court granted a motion to dismiss. The petitioner came back and was granted, as within the Court’s discretion and over the City’s vociferous objections, leave to -- vacating that prior dismissal and granted leave to go forward with the litigation. Having submitted the proposed notice of hearing that they had undertaken to then file, they didn’t file it.
“The claim the first time around had been that something somehow got lost in the files. The claim now is that something somehow got lost between attorneys with responsibility. I just don’t see that it is excusable. It is not the behavior of a reasonably prudent attorney.
“When the whole issue was getting this filed and getting it filed within 90 days, and the case had already been dismissed, to then not do it the second time around, I just don’t think it can be excused.”
After the court entered an order denying North Point’s motion, it filed this appeal.
II. DISCUSSION
North Point contends the trial court erred when it denied its motion under section 473 to set aside the second dismissal.
As is relevant, section 473, subdivision (b) states: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”
A trial court is granted broad discretion to determine whether relief under section 473 is appropriate and its ruling will not be reversed on appeal absent an abuse of that discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) Broad deference to the trial court ruling is modified somewhat where, as here, the trial court denies a party’s request for relief under section 473. Given this state’s strong preference for deciding cases on their merits, a trial court order denying relief is scrutinized more carefully than an order that grants relief. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.)
In this case, North Point contends the court should have granted relief under section 473 because its attorneys made an excusable mistake when they failed to timely request a hearing as required by Public Resources Code section 21167.4.
A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake or inadvertence was excusable. (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 258.) In determining whether the attorney’s mistake or inadvertence was excusable, the court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error. (Ibid.)
Here, the trial court had already dismissed North Point’s petition once because its attorneys failed to timely request a hearing. The case was reinstated only over San Francisco’s strong objections. Having dodged the proverbial bullet, a “reasonably prudent” person under those circumstances would not simply assume that some lawyer from his firm would file the required request for a hearing. A reasonably prudent person would make sure that a request for a hearing was filed immediately and properly. Even applying a more strict standard of review, we do not hesitate to conclude the court did not abuse its discretion when it denied North Point’s request for relief.
The arguments North Point advances do not convince us the trial court erred. First, North Point cites cases where relief under section 473 was granted. (See County of Los Angeles v. Lewis (1918) 179 Cal. 398; County of Stanislaus v. Johnson (1996) 43 Cal.App.4th 832; Job v. Farrington (1989) 209 Cal.App.3d 338.) However, the issue in each of those cases was a different aspect of section 473: the requirement that the party seeking relief attach a copy of the omitted pleading to his or her moving papers. In each case, the court held that the failure to attach could be excused. (See County of Los Angeles v. Lewis, supra, 179 Cal. at p. 400; County of Stanislaus v. Johnson, supra, 43 Cal.App.4th at pp. 836-838; Job v. Farrington, supra, 209 Cal.App.3d at pp. 340-341.) The court here did not reject North Point’s motion because it failed to attach a copy of its request for a hearing to its moving papers. The court denied North Point’s motion because the actions of its prior attorneys were not excusable. The cases North Point cites are inapposite.
As is relevant, section 473, subdivision (b) states, “Application for [relief from default] shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted . . . .”
Next, North Point argues it should have been granted relief because it brought its motion for relief under section 473 diligently. Diligence is a factor a party must establish to obtain relief under section 473, subdivision (b). (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 258.) North Point emphasizes the speed with which it changed counsel and filed the subject section 473 motion—here within one week of the February 26, 2008 dismissal order. But significantly, North Point’s actions in pursuing its administrative claim cannot be characterized as diligent. The applicable statute requires that a party request a hearing within 90 days of the date when the petition was filed. (Pub. Res. Code, § 21167.4.) North Point not only failed to meet that deadline once, it failed to meet it twice. Indeed, by the time the court denied North’s second request for relief, the petition had been pending for nearly one year. Notwithstanding North Point’s speedily filed section 473 motion, it has failed to establish an excusable mistake or neglect. Its diligence in seeking relief from the dismissal is not determinative.
Finally, North Point argues the court should have granted its request for relief because San Francisco did not suffered any prejudice. Prejudice is a factor that courts can consider when determining whether relief under section 473 is appropriate, “[w]here the mistake is excusable and the party seeking relief has been diligent[.]” (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 258.) San Francisco did not demonstrate much prejudice here. But, as we have discussed, North Point has not established excusable neglect. Moreover, the strict time requirements of Public Resources Code section 21167.4 were enacted for a reason: to ensure that CEQA challenges are addressed in an expedited fashion. (Nacimiento Regional Water Management Advisory Com. v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 965.) Granting North Point’s motion would deprive San Francisco of its right to have the matter resolved promptly, (Citizens for a Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 111) and would reward North Point’s chronic procrastination and irresponsibility. (Cf. Iott v. Franklin (1988) 206 Cal.App.3d 521, 531.) Relief was not required even given San Francisco’s relatively minimal demonstration of prejudice.
We conclude the court did not abuse its discretion when it denied North Point’s request for relief.
III. DISPOSITION
The judgment and order denying North Point’s request for relief under section 473 are affirmed.
We concur: Needham, J., Stevens, J.