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Late Filing Doesn't Cure Missed Deadline In Water Meter Lawsuit

A California Environmental Quality Act lawsuit over the City of Fresno's move to metered water rates has been dismissed because attorneys missed a deadline.

Attorneys for the San Joaquin Valley Taxpayers Association did not file a request for a hearing on the lawsuit until 91 days after they filed the suit. Under the California Environmental Quality Act (CEQA), a plaintiff has 90 days to request a hearing. The court ruled that dismissal of the case was mandatory and that the attorneys' error was not "excusable neglect."

In 2005, Fresno approved an updated contract with the Bureau of Reclamation for continued delivery of 60,000 acre-feet of water from the Central Valley Project. A condition of the contract requires the city to begin charging for water based on usage, rather than continuing the city's practice of charging a flat rate based on the connection.

The taxpayers association, which complained the plan would raise water bills, filed a lawsuit contending that the city's environmental review of the contract extension was inadequate. The group filed its lawsuit on August 19, 2005. But not until November 18, 2005, did the group file with the Superior Court a request for a hearing. Three days later, the city requested dismissal of the lawsuit because the taxpayers association missed the 90-day deadline for requesting a hearing contained in Public Resources Code § 21167.4, subdivision (a).

The taxpayers association responded that it had filed the request late because the deadline had been inadvertently "miscalendared" and no one realized it until late on the afternoon of November 17. At that point, no one could get the hearing request to the courthouse in time, the association said.

Fresno County Superior Court Judge Rosendo Peña ruled the association had failed to show excusable neglect and dismissed the case. The taxpayers association appealed, but the Fifth District Court of Appeal upheld the decision.

On appeal, the taxpayers association argued that the city's request to dismiss the case was moot because the association had filed its request for a hearing. The basis for the city's dismissal request "no longer existed when the dismissal motion was filed and served," the group argued.

The Fifth District called this argument "wrong on the facts." The court ruled: "[A] violation of the 90-day deadline existed at the time the motion to dismiss was filed and the violation still exists today. The late-filed request for hearing did not cure the violation."

The taxpayers association argued that the missed deadline can be cured if a request for hearing is filed before the motion to dismiss, as occurred in this case. But the court rejected that argument, too.

The statute "means what it plainly says — the request for a hearing must be filed within 90 days from the date the petition was filed," the court ruled.

In an unpublished portion of the opinion, the court determined that the missed deadline was not excusable error because, upon realizing the impending deadline with time to act, the association could have filed the request for hearing by fax or delivered the request to a court drop box before 5 p.m. on deadline day. 

The Case:
Fiorentino v. City of Fresno, No. F050578, 07 C.D.O.S. 4994, 2007 DJDAR 6340. Filed April 5, 2007. Modified and ordered partially published May 4, 2007.
The Lawyers:
For Fiorentino (San Joaquin Valley Taxpayers Association): Raymond Carlson, Griswold, LaSalle, Cobb, Dowd & Gin, (559) 584-6656.
For the city: Lisabeth Rothman, Hatch & Parent, (310) 440-9996.

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