Judge: Daniel S. Murphy, Case: 19STCP01027, Date: 2025-01-31 Tentative Ruling

Case Number: 19STCP01027    Hearing Date: January 31, 2025    Dept: 32

BACKGROUND

            Petitioner Sunset Landmark Investment, LLC (Petitioner or Sunset) filed a petition for writ of mandate challenging the City of Los Angeles’s actions and approvals related to the Selma Wilcox Hotel project, including the City’s approval of a mitigated negative declaration (MND). On January 11, 2021, the Court issued a ruling finding that Sunset presented substantial evidence supporting a fair argument that the project may have significant effects on air quality, so that the City’s decision to adopt an MND was an abuse of discretion. The court also found the City had not chosen a baseline consistent with the California Environmental Quality Act (CEQA).

            However, finding that the City may remedy these deficiencies, the Court remanded to the City for further proceedings and for the City to make specific findings to clarify the Project’s baseline and resolve the issue of the impact on air quality. On February 8, 2021, the Court issued an interlocutory writ and order of remand accordingly. The February 8, 2021 order stated that “[t]he City shall submit a return to this Court setting forth the clarifications to its analysis and findings regarding the MND’s baseline and air quality analysis consistent with the Court’s January 11, 2021, Ruling,” or “[a]lternatively, the City may elect to prepare an Environmental Impact Report (‘EIR’) which addresses this Court’s concerns as set forth in the January 11, 2021, Ruling.”

            Sunset appealed the Court’s February 8, 2021 order. On August 11, 2021, the Court of Appeal dismissed the appeal as having been taken from a nonappealable order.

            On December 26, 2024, Sunset filed the instant motion for entry of judgment granting a peremptory writ of mandate. Respondents (City of Los Angeles and City of Los Angeles City Council) and Real Parties (6421 Selma Wilcox Hotel, LLC) filed their opposition on January 13, 2025. Sunset filed its reply on January 22, 2025.

LEGAL STANDARD

            “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008(b).)

            Section 1008 applies here because Sunset’s petition for writ of mandate was an application for an order. (See Code Civ. Proc., § 17(b)(15) [“‘Writ’ means an order or precept in writing, issued in the name of the people, or of a court or judicial officer”]; Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 61 [“A writ is an order in writing issued by a competent official in a judicial proceeding”].) The application was refused in part or granted conditionally because Sunset did not obtain the full relief sought. Thus, Sunset properly filed the instant motion under Section 1008(b).

DISCUSSION

            “CEQA requires preparation of an EIR ‘whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact.’ [Citations.] Thus, if substantial evidence in the record supports a ‘fair argument’ significant impacts or effects may occur, an EIR is required and a negative declaration cannot be certified.” (Wollmer v. City of Berkeley (2009) 179 Cal.App.4th 933, 939.) “The fair argument standard is a ‘low threshold’ test for requiring the preparation of an EIR. [Citations.] It is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency’s determination.” (Ibid.) “If such evidence exists, the reviewing court must set aside the agency’s decision to adopt a negative declaration or a mitigated negative declaration as an abuse of discretion in failing to proceed in a manner as required by law.” (Id. at pp. 939-40.)         

            “If a court determines a public agency has not complied with CEQA, it must order or issue a peremptory writ of mandate requiring the agency to do one or more of the following: (1) void the project approval ‘in whole or in part’; (2) suspend any or all project activities that could prejudice consideration or implementation of mitigation measures or project alternatives necessary to bring the determination into compliance with CEQA; or (3) take specific action as necessary to bring the agency's consideration of the project into compliance with CEQA.” (Save Our Capitol! v. Department of General Services (2023) 87 Cal.App.5th 655, 709.)

            In its January 11, 2021 ruling, the Court found that “Sunset has established a fair argument that the Project may have significant impact on air quality and that the Project’s baseline does not comply with CEQA.” This finding warrants a holding that the City abused its discretion in adopting the MND and justifies a peremptory writ of mandate. (See Wollmer, supra, 179 Cal.App.4th at pp. 939-40; Save Our Capitol!, supra, 87 Cal.App.5th at p. 709.)

            While the Court gave the City an opportunity to conduct further proceedings and submit a return, the City has not complied with that order. It has been nearly four years since the Court’s ruling, and the City has not returned to the Court with its updated findings. Real Parties’ counsel avers that they have been working on the matter “[s]ince May of 2022” (King Decl. ¶ 10), and the City’s counsel contends that it has been working on a revised MND “[s]ince January 2023” (Leisy Decl. ¶ 4). But the Court’s order was issued in February 2021. Neither the COVID pandemic nor the turnover of some staff within the City justifies a four-year delay. (See King Decl. ¶ 9; Leisy Decl. ¶¶ 5-6.) Even now, the City is not close to completing its court-ordered return, because the revised MND will not be released and opened for public review until “spring or early summer 2025.” (Leisy Decl. ¶ 8.) Then, only if the revised MND is approved by the City will Respondents file a return. (Mtn. 15:3-8.) As a result, Respondents request even more time to comply with the Court’s four-year-old order. (Mtn. 14:25-26.)          

The City is not entitled to an indefinite period of time to demonstrate the Project’s compliance with CEQA. The Court found four years ago that there was sufficient evidence for a fair argument that the Project would have a substantial impact on the environment. This alone warrants setting aside the City’s MND and issuing a peremptory writ of mandate. (Wollmer, supra, 179 Cal.App.4th at pp. 939-40; Save Our Capitol!, supra, 87 Cal.App.5th at p. 709.) The City’s noncompliance after four years constitutes a new circumstance justifying the relief sought under Code of Civil Procedure section 1008(b).  

CONCLUSION

            Petitioner The Sunset Landmark Investment, LLC’s motion for entry of judgment granting peremptory writ of mandate is GRANTED.