Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07CV00495
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Plaintiff County of Glenn (County) sought a writ of mandate in the superior court compelling defendant Orland Sand & Gravel Corporation (Orland) to comply with the County’s orders and pay fines assessed by the County, based on allegations Orland had violated certain statutes and regulations in its operations. After the superior court denied the County’s petition in its entirety, the County filed an amended petition, seeking an injunction instead of a writ of mandate.
The superior court disallowed the amendment and dismissed the amended petition on its own motion. The County appeals from the order dismissing its amended petition for injunctive relief.
We shall affirm the order of dismissal.
Background
Orland owns and operates a sand and gravel surface mine and aggregate materials processing facility in the County. The County is the local lead agency authorized to regulate the operation of Orland’s surface mining operations under the Surface Mining and Reclamation Act of 1975. (Pub. Resources Code, § 2710 et seq.)
The County initiated this action on August 2, 2007, by filing a petition for writ of mandate. It alleged that its planning commission found Orland’s surface mining operations to be in violation of various sections of the Public Resources Code, the County Code, and the California Code of Regulations because Orland had failed to file a valid reclamation plan and post adequate financial assurances to ensure execution of the plan upon completion of mining activities. As a result of these violations, the County fined Orland $250,000 and ordered it to cease and desist all sand and gravel extraction operation until an amended reclamation plan had been approved and adequate financial assurances had been established. The petition further alleged that Orland had continued operations despite the County’s orders; accordingly, it sought judgment in its favor and an order that Orland “comply with the County’s order to halt all operations until the fines are paid to the County and until a valid reclamation plan has been developed and approved by the County according to law.”
Orland, a corporation, purported to “‘specially appear[]’” in response to the petition by and through its principal and sole stockholder, Dale Roy Bogart. Bogart purported to file the following four responsive pleadings: (1) Respondent’s Answer to Petitioner’s Writ of Mandate and Judicial Notice and Counter Claim; (2) Third party Intervener’s Lawful Claim and Exercise of Constitutionally Protected Rights; (3) Third Party Intervener’s Lawful Direction to Convert Administrative/Statutory Proceeding to Judicial Proceeding and Non-Discretionary Judicial Notice; and (4) a Lawful Direction in the Nature of a Notice of Motion and Motion in Limine for Interlocutory Order Striking Putative Petitioner’s Writ of Mandate.
The superior court conducted a hearing on the petition for writ of mandate, at which the County and Bogart appeared. Thereafter, the court issued its written ruling.
As a threshold matter, the court found that Orland, a corporation, cannot represent itself and must appear through counsel.
The court also denied the County’s petition for writ of mandate. It found that, although the allegations of the County’s petition could only be construed as seeking a writ of traditional mandate (Code Civ. Proc., § 1085), the relief sought was not available because the County could not allege that Orland, a private corporation, had “a clear and present ministerial duty” to act, arising from its status as the holder of an “office, trust, or station,” as required for a traditional writ of mandate.
In closing, the court declined to exercise its discretion to strike the answer and deem true the factual allegations of the petition that Orland should be fined for its statutory violations in light of Orland’s competing allegations that the County “found no violation” and that the Department of Conservation “withdrew its appeal of that finding.” Rather, the court stated, “[a]ll such [factual] determinations are outside the purview of traditional mandamus. All such determinations require the taking of evidence[,] perhaps at a hearing to issue an injunction.”
The court served its ruling denying the petition for writ of mandate on October 19, 2007.
The County did not then seek review of the court’s order.
Instead, it responded by filing “An Amended Petition for Injunctive Relief.” The amended petition made all the same allegations as the original petition: that Orland’s surface mining operations were found to be in violation of various sections of the Public Resources Code, the County Code, and the California Code of Regulations, that Orland had failed to file a valid reclamation plan and post adequate financial assurances to ensure execution of the plan upon completion of mining activities, and that Orland was continuing to operate its sand and gravel extraction operation in violation of the valid orders of the County. It also sought the same relief as in its prior petition for writ of mandate: an order enjoining Orland’s operations until it complied with the County’s orders to pay fines and until a valid reclamation plan had been approved.
On November 16, 2007, on its own motion, the court dismissed the amended petition, finding that the County “cannot at this point [in] time seek to amend after the court’s ruling (denying the writ) to seek another (related) cause of action. Accordingly, the amended petition for injunctive relief... is order[ed] dismissed. The court notes that [the County] has filed a new petition for injunctive relief as a separate action (7CV00520) which apparently has not been served.” The order was served the same day.
Discussion
The County appealed simultaneously from the court’s order denying its original petition for writ of mandate and from its subsequent order dismissing the amended petition for injunctive relief. Its brief on appeal, however, challenges only the court’s dismissal of the amended petition. We asked the parties to provide supplemental briefing on whether the trial court’s order denying the petition for writ of mandate constituted an appealable judgment, and what rules govern the County’s attempted amendment of the petition after the court denied it.
Having reviewed that briefing, we conclude the court acted properly. The court’s denial of the County’s petition for writ of mandate was the equivalent of an appealable judgment, which the county did not appeal and, thereafter, it was not entitled to amend its petition for writ of mandate to add new claims.
A petition for writ of mandate is a special proceeding. (Code Civ. Proc., § 1084 et seq.) By definition, a “judgment in a special proceeding is the final determination of the rights of the parties therein.” (Code Civ. Proc., § 1064.) A trial court order denying a writ of mandate is appealable, whether or not it is called a judgment. “‘It is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.’ (Accord, California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 9 [summary adjudication on seventh cause of action effectively disposing of entire case is an appealable judgment]; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699 [order of dismissal ‘in legal effect a final judgment from which an appeal lies’]....)” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698-699 (Griset).)
Only where the trial court contemplates further orders or action on the mandate petition, or when the petition has been joined with other causes of action that remain unresolved, is the order denying the petition not appealable. (See Griset, supra, 25 Cal.4th at pp. 697-698; Covina-Azusa Fire Fighters Union v. City of Azusa (1978) 81 Cal.App.3d 48, 56.)
Here, the trial court denied the County’s petition for writ of mandate without leave to amend and without hearing any facts or considering any declarations on the matter. Its denial of the County’s petition for writ of mandate disposed of all issues in the action between the parties because it completely resolved the County’s assertion--essential to its petition--that traditional mandate was available to compel Orland to act. In so doing, the trial court disposed of the petition in its entirety and patently did not contemplate taking further action upon it. Under such circumstances, the court’s denial of the County’s petition for writ of mandate constituted an appealable judgment.
The case law cited to us by the parties supports our conclusion. In United Teachers-L.A. v. L.A. Unified School Dist. (1994) 24 Cal.App.4th 1510 (United Teachers), a teachers’ union sought a writ of mandate ordering the defendant school district and others to incorporate certain regulations into the parties’ collective bargaining agreement. (Id. at p. 1512.) The superior court denied the petition for writ of mandate because the regulations did not strictly comport with the applicable statutes, but the denial was without prejudice to allow the teachers’ union “to refile to instead request a writ of mandamus to compel [the district] to modify the regulations to comply with the mandatory statutory provisions.” (Id. at p. 1514 & fn. 3.)
The Court of Appeal in United Teachers held that the order denying the writ of mandate was nevertheless an appealable judgment: “Because the petition based its request for relief on the clear and mandatory language of the controlling statutes, no further action or order on the petition was necessary. For this reason the order denying the petition without prejudice was... an appealable judgment.” (United Teachers, supra, 24 Cal.App.4th at p. 1514, fn. 3; see also Nerhan v. Stinson Beach County Water Dist. (1994) 27 Cal.App.4th 536, 539 (Nerhan) [“the appealability of the denial of a petition for writ of mandate is based on whether the trial court contemplated taking any further action. Where no further action is contemplated, the order denying the petition for writ of mandate is a final judgment in a special proceeding”].)
The superior court here similarly contemplated taking no further action on the County’s petition after denying it. The court found the County’s petition “based its request for relief on the clear and mandatory language of the controlling statutes” (United Teachers, supra, 24 Cal.App.4th at p. 1514, fn. 3)--i.e., the Code of Civil Procedure sections authorizing writs of traditional (Code Civ. Proc., § 1085) or administrative (Code Civ. Proc., § 1094.5) mandate. It found the relief sought by the County’s petition could not be granted under either statute. The petition sought no other relief, nor did it seek relief under any other theory. There was nothing more to decide. The order denying the County’s petition was a final, appealable judgment. (Cf. United Teachers, supra, 24 Cal.App.4th at p. 1514, fn. 3; Nerhan, supra, 27 Cal.App.4th at p. 539.)
Contrary to the County’s argument on appeal, the superior court did not “state that a ruling on the merits could not be rendered without the presentation of evidence.” It found instead that all factual determinations “are outside the purview of traditional mandamus.” As the only relief sought by the County’s petition was a writ of mandate, the court properly found factual determinations to be outside the purview of the special proceeding.
Having determined that the superior court’s order denying the County’s petition for writ of mandate was tantamount to a judgment, we consider whether the County could thereafter amend the action to add a cause of action for injunctive relief before seeking appellate review of the denial of its writ petition.
Generally, once (as here) an appealable judgment has been entered, the plaintiff cannot amend his pleading unless the judgment has been vacated or a motion for a new trial has been granted. (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 707, citing Young v. Berry Equipment Rentals, Inc. (1976) 55 Cal.App.3d 35, 38; 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1207, p. 640.)
Thus, while the trial court has great discretion to permit amendment “in furtherance of justice” before trial (Code Civ. Proc., § 473), and may allow amendment even during or after trial (e.g., 5 Witkin, Cal. Procedure, supra, Pleading, §§ 1204-1206, pp. 637-640), once a judgment has been entered, the plaintiff must first seek relief from that judgment before it may amend its pleading.
Apparently failing to recognize the effect of the order denying its petition, the County made no effort to have it set aside before attempting to amend its petition. Accordingly, the superior court was correct in concluding the County’s attempt to amend the petition was improper.
The County is not aided by this appeal. Although its notice of appeal purports to challenge the court’s order denying the original writ petition, the County has effectively abandoned its appeal from that order by failing to include any argument in its brief that the court erred in denying the petition. (Hambrose Reserve, Ltd. v. Faitz (1992) 9 Cal.App.4th 129, 133 [issues not raised in an appellant’s opening brief are deemed waived or abandoned], disapproved on other grounds in Trope v. Katz (1995) 11 Cal.4th 274, 292.) The County’s appeal challenged the court’s decision to dismiss the amended petition for injunctive relief, as well as the exercise of its discretion to dismiss the petition on its own motion.
The County’s sole rejoinder to this argument is to assert that “[t]he trial court essentially granted a motion for a new trial here by stating that the issues presented by the County’s writ petition ‘require the taking of evidence perhaps at a hearing to issue an injunction.’” This assertion borders on the frivolous. Nothing in the superior court’s order denying the County’s petition can fairly be characterized as granting relief that had not been sought by the County.
Disposition
The judgment (order dismissing the amended petition for injunctive relief) is affirmed. Orland Sand & Gravel Corporation is awarded its costs on appeal.
We concur: NICHOLSON, Acting P. J., HULL, J.