Albion River Watershed Protection Ass'n v. Department of Forestry & Fire Protection

Opinion

PETERSON, P. J.

Albion River Watershed Protection Association and Friends of Salmon Creek (Albion) appeal from a judgment dismissing their petition for writ of mandate. The petition had challenged the approval of a timber harvest plan (THP) by respondent California Department of Forestry and Fire Protection (Forestry). The trial court dismissed the petition, ruling

[36]

Albion had failed to request a hearing within 90 days of filing as required by Public Resources Code section 21167.4 (section 21167.4). Albion now contends that section 21167.4 is inapplicable to judicial review of THP’s. We will reject this argument under the authority of our recent decision in

Dakin

v.

Department of Forestry & Fire Protection

(1993) 17 Cal.App.4th 681 [21 Cal.Rptr.2d 490]. However, as in that case, we will reverse the judgment of dismissal because the

Dakin

rule operates prospectively.

We will also reverse an order imposing sanctions against Albion. While sanctions may ultimately be appropriate, we deem it necessary to remand this case so the trial court can consider the issue further.

I. Factual and Procedural Background

*

II. Discussion

A.

Applicability of Section

21167.4*

B.

Sanctions

The trial court imposed sanctions of $2,736.10 against Albion under Code of Civil Procedure section 128.5 which states, “Every trial court may order a party ... to pay any reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” The court based the sanctions award on two grounds. First, the court ruled that Albion’s failure to request a hearing on the writ petition within 90 days of filing, as required by section 21167.4, was “a bad faith tactic that was both frivolous and solely intended to cause unnecessary delay.” Alternately, the court noted Albion had violated a local rule which states that a complaint must be served within 60 days from the date it is filed. The court ruled that by waiting three and one-half months to serve its complaint, Albion had engaged in tactics “which were ‘solely intended to cause [and which did cause] unnecessary delay.’ ” (Brackets in original.)