Judge: Curtis A. Kin, Case: 24STCP00290, Date: 2024-09-26 Tentative Ruling

Case Number: 24STCP00290    Hearing Date: September 26, 2024    Dept: 86

DEMURRER TO

VERIFIED SECOND AMENDED PETITION

Date:               9/26/24 (1:30 PM)

Case:                           Coalition for a Scenic Los Angeles et al. v. City of Los Angeles (24STCP00290)

TENTATIVE RULING:

Demurrer to Verified Second Amended Petition for Writ of Mandate Filed by Respondent City of Los Angeles (“City”) and Real Party in Interest All Vision, LLC (“All Vision”) (collectively, “respondents”) is SUSTAINED.

Respondents’ UNOPPOSED request for judicial notice is GRANTED in its entirety. (Evid. Code § 452(b), (c), (h).)

Respondents demur to the Second Amended Petition on the ground that petitioners Coalition for a Scenic Los Angeles and Citizens for a Better Los Angeles did not name Los Angeles County Metropolitan Transportation Authority (“Metro”), which respondents contend is a necessary and indispensable party.

With respect to whether Metro is a necessary party, “The petitioner or plaintiff shall name, as a real party in interest, the person or persons identified by the public agency in its notice filed pursuant to subdivision (a) or (b) of Section 21108 or Section 21152…as reflected in the agency’s record of proceedings for the project that is the subject of an action or proceeding brought pursuant to Section 21167, 21168, or 21168.5….” (Pub. Res. Code § 21167.6.5(a); see also CCP § 389(a).) Section 21152 of the Public Resources Code requires local agencies that approve projects subject to the California Environmental Quality Act (“CEQA”) to file a Notice of Determination (“NOD”). (See also 14 C.C.R. [“Guidelines”] § 15094(a).)

CEQA regulations require the NOD to include, “[i]f different from the applicant…the identity of the person receiving a lease, permit, license, certificate, or other entitlement for use from one or more public agencies.” (Guidelines § 15094(b)(10).) Section 15094 of the Guidelines does not mandate any particular format by which such person is identified.

According to the NOD, the project applicant was the Los Angeles City Council. (RJN Ex. F.) The NOD describes the project as “the adoption of three ordinances to allow [Metro] to implement its Transportation Communication Network Program (TCN Program) in the City of Los Angeles (City).” (RJN Ex. F; see also RJN Exs. Exs. B-D [three adopted ordinances].) Under the TCN Program, 41 sign structures, including 71 digital displays, will be constructed and operated on properties owned by Metro throughout the City. (RJN Ex. F.) Two of the ordinances provide the procedures to establish a TCN district at properties owned by Metro throughout the City. The other ordinance regulates the location, size, orientation, operation, maintenance, and permitting of the TCN signs. The NOD further explains that Metro previously certified an EIR for the TCN Program. (RJN Ex. F.)

Based on the foregoing, there can be no doubt that the ordinances at issue here constitute entitlements that Metro—an entity different from the project applicant—received to allow Metro to construct and operate digital signs throughout the City. The fact that All Vision was named as a real party does not diminish in any way the fact that the ordinances provide an entitlement to Metro, thereby rendering it a real party as well. The Court accordingly finds that Metro is a necessary party required to be named as a real party in interest.

With respect to whether Metro is an indispensable party without which the action may not proceed, the parties do not dispute that the last day to file an action or proceeding alleging that Metro did not comply with CEQA was January 29, 2024, i.e., 30 days after the filing and posting of the NOD. (Pub. Res. Code § 21167; RJN Ex. F [NOD filed and posted on 12/29/23]; SAP ¶¶ 52-86 [sole cause of action alleges that CEQA Guidelines were not followed in approving the project].) Accordingly, Metro can no longer be named in this action as a real party in interest.

When a necessary party under CCP § 389(a) cannot be made a party, “the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.”  When considering these factors, “no factor is determinative or necessarily more important than another.”  (Simonelli v. City of Carmel-by-the-Sea (2015) 240 Cal.App.4th 480, 485, quoting County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 35.)  However, “potential prejudice to that unjoined person is of critical importance.”  (Id., quoting Tracy Press, Inc. v. Superior Court (2008) 164 Cal.App.4th 1290, 1298.)  Here, in evaluating these factors, including the critically important factor of prejudice to Metro, the Court finds that Metro is an indispensable party.

With respect to the first factor, the objectives of the TCN Program include the collection of real-time data to aid in traffic signal timing; notification of the public of roadway improvements, hazards, and emergency situations; promotion of transportation alternatives to maximize efficiency of congested road networks; maximization of advertising revenue to fund other transportation programs; and the reduction of existing billboards in the City. (RJN Ex. E at 2.) The ordinances provide the vehicle by which Metro can implement the TCN Program, obtain permits for the digital signs, and achieve its objectives. As the entity to construct and operate the digital signs on its property, Metro acts as the developer and landowner, which generally are indispensable parties under case law. (San Diego Navy Broadway Complex Coalition v. California Coastal Com. (2019) 40 Cal.App.5th 563, 580, citing Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 501 [“In general, a developer is an indispensable party to a lawsuit challenging a decision regarding whether its project can proceed”]; Save Our Bay, Inc. v. San Diego Unified Port Dist. (1996) 42 Cal.App.4th 686, 696-98 [finding port district that approved acquisition of land for development of marina on private land could not represent interest of landowner because district could not be expected to represent landowner’s interest in protecting monetary value of land].)

Further, petitioners do not dispute that Metro’s jurisdiction is over Los Angeles County (“County”), which is far broader than the jurisdiction of respondent City of Los Angeles. (See, e.g., SAP ¶ 18 [Metro seeks to construct digital billboard sites Countywide].) Through the TCN Program, Metro seeks to share real-time data across government agencies to improve traffic on a regional level. (RJN Ex. E at 2.) Accordingly, the City cannot be expected to represent the complete interests of a countywide agency. Similarly, the interest of All Vision, with whom Metro contracted for development of the billboards under the TCN Program, is primarily financial. (RJN Ex. G [providing for sharing of revenues between Metro and All Vision].) All Vision has no duty or incentive to protect or further the transportation needs of the County. All Vision therefore cannot be expected to represent Metro’s complete interest in this action either.

For the foregoing reasons, Metro would be prejudiced in this action were the matter to proceed in its absence.

With respect to the second factor, because the ordinances at issue govern Metro’s implementation of the TCN Program and are necessary for it to go forward, there is no way in which the judgment in this action could be tailored or shaped to lessen or avoid the prejudice to Metro if petitioners were to prevail in Metro’s absence. Certainly, petitioners do not suggest how any judgment could be so refined to lessen or avoid prejudice to Metro.

With respect to the third factor, it does appear that an adequate judgment could be rendered in Metro’s absence.  That is, a judgment in the City and All Vision’s favor would be adequate to fully adjudicate and reject petitioner’s challenge to the ordinances, thereby leaving the ordinances standing and intact.  Likewise, a judgment in petitioners’ favor would be sufficient to rescind the ordinances if the Court were to find that they were enacted in violation of CEQA.  Thus, the adequacy and efficacy of any judgment rendered in Metro’s absence would not be affected by such absence.

With respect to the fourth factor, this factor requires “a balancing of equities to determine whether the action should proceed in the absence of necessary parties.” (County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 40.) Petitioners previously sought a writ of mandate directing the City to rescind its approval of the TCN Program. (RJN Ex. I; SAP ¶ 30.) The Court denied petitioners’ prior petition. (4/2/24 Ruling in Case No. 23STCP00670.) Petitioners have appealed the denial of their prior writ petition. (2nd District Court of Appeal, Case No. B338877.) Accordingly, even with dismissal of the instant action, if they were to prevail on their appeal of the other action, petitioners still have an opportunity to prevent the TCN Program on the ground that it offends CEQA. Moreover, because petitioners previously had the opportunity to and did sue Metro for purportedly failing to comply with CEQA (RJN Ex. I), it is hard to excuse petitioners’ overlooking—for whatever reason—the requirement to include Metro as a real party to this action when bringing a CEQA challenge to the ordinances.  The equities thus do not favor petitioners.

For the foregoing reasons, even if a judgment in Metro’s absence could be adequate, all of the other factors, including the critical factor of prejudice to Metro, weigh in favor of dismissing the action for failure to name Metro as an indispensable party.

The demurrer is SUSTAINED. Because the time to name Los Angeles County Metropolitan Transportation Authority has undisputedly elapsed, no leave to amend is granted.

Within 10 days hereof, respondent City of Los Angeles is ordered to file a proposed judgment of dismissal.