Judge James C. Chalfant, Case Number: 23STCV23194, Date: 2024-05-21 Tentative Ruling

Constant v. The City of Los Angeles, et al.,

23STCV23194

Tentative decision on motion to dismiss: granted

Defendants/Respondents City of Los Angeles, City Council of the City of Los Angeles, Los Angeles Department of Public Works; and Bureau of Engineering (collectively, “City”) moves to dismiss with prejudice the verified Petition and Complaint (“Petition”) filed by Plaintiff/Petitioner Nicholas Robert Constant (“Constant”).

The court has read and considered the moving papers and reply (no opposition was filed) and renders the following tentative decision.

On September 25, 2023, Plaintiff/Petitioner Constant filed the Petition against City, alleging causes of action for (1) violation of California Environmental Quality Act (“CEQA”) and (2) declaratory relief. The Petition alleges in pertinent part as follows.

Constant is a resident of Los Angeles County (“County”) and owns a property that abuts Silver Lake Boulevard, directly across from the Silver Lake Reservoir Complex (“Reservoir”). Pet., ¶1. The Reservoir is a 127-acre property developed in a valley surrounded by a residential neighborhood mainly consisting of single-family homes. Pet., ¶20. The Reservoir was adopted as Los Angeles Monument Number 422 on March 3, 1989. Pet., ¶20. The Reservoir has been subject to various modifications over the years but none of these modifications required decades of construction time. Pet., ¶22.

On or about March 2018, local politicians pushed to create a decades-long “Master Plan” for the Reservoir (“Project”). Pet., ¶23. The politicians partnered with the City’s Department of Water and Power and architectural firm Hargreaves Jones. Pet., ¶23. On January 6, 2022, the City released a Notice of Preparation of a draft environmental impact report (“DEIR”) for a comment period ending February 7, 2022. Pet., ¶24. The DEIR indicated that the Project would increase particulate and ozone precursor emissions compared to existing conditions, increase traffic, and “result in less than-significant impacts with respect to CO hotspots.” Pet., ¶25. This analysis was deeply flawed because it understated the Project’s potential environmental impacts and failed to adopt feasible mitigation to reduce those impacts. Pet., ¶26. The Reservoir is used both permanently and seasonally by federally protected species, notably migratory birds. Pet., ¶35.

Beginning October 6, 2022, Constant and other individuals and groups commented on the DEIR, resulting in a 2000 plus page final EIR (“FEIR”). Pet., ¶36. The FEIR was released to the public in July 2023, contained few substantive revisions and failed to meaningfully respond to many of the DEIR comments submitted to the City. Pet., ¶37.

On August 4, 2023, the City’s Energy and Environment Commission passed the FEIR on a 4-0 vote with Los Angeles Council District 4 Councilmember Nithya Raman abstaining due to ownership of private property close to the Project. Pet., ¶39. On August 23, 2023, the City Council met to consider the Project. Pet., ¶40. Despite large attendance for public comment, a special vote was quickly taken to avoid public scrutiny and silence whistleblowers. Pet., ¶40. The Project and FEIR were approved with a unanimous vote, again with Councilmember Raman abstaining. Pet., ¶41.

On August 23, 2023, the City filed a Notice of Determination for the Project. Pet., ¶41.

Constant alleges that the City violated CEQA by certifying a FEIR that (a) fails to adequately analyze and mitigate the following impacts: wetlands, emissions, transportation, parking, future development, (b) provides an inadequate and inaccurate baseline for analyzing the Project’s impacts, (c) provides an inadequate, inaccurate, and unstable description of the Project (d) fails to adequately consider the cumulative and growth inducing impacts of the Project in a fully developed neighborhood primarily consisting of single-family homes, (e) rejects feasible mitigation measures, and relies on ineffective, unenforceable, and/or improperly deferred mitigation measures, (f) rejects feasible Project alternatives that would have reduced significant impacts while still meeting Project objectives, (g) adopts overly narrow, yet maximally invasive recreational Project objectives over a “No Project” zero emission alternative, (h) adopts findings not supported by substantial evidence, (i) violates CEQA Guidelines section 15088 by failing to adequately respond to public comments and (j) fails to use the County’s 2045 Climate Action Plan (“CAP”) goals as a guide to collectively achieve required levels of greenhouse gas reductions to zero. Pet., ¶¶ 48-61.

Constant seeks declarations that the omission of the County’s CAP from the FEIR does not comply with the standards set forth in the CEQA Guidelines, including Guidelines section 15183.5(b), and that the City must coordinate and use the County’s CAP guidelines to analyze the future Projects’ greenhouse gas impacts over the decades long Project timeline. Pet., ¶¶ 62-63.

“Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.” CCP §1060.

The Project would redesign 116 acres of the 127-acre Reservoir with nature-focused community park amenities including park zones blending vegetated areas and areas to support local and migrating fauna with public spaces. Weintraub Decl., ¶3. The Project would enhance the ecological, visual, and recreational quality of the area to be consistent with the goals and objectives of the Community Plan and provide the opportunity for the public to access natural park space. Weintraub Decl., ¶3. On August 23, 2023, the Project’s FEIR was certified, and the Project was approved by the City Council, along with an adoption of the Findings and Statement of Overriding Considerations and mitigation Monitoring Program. Weintraub Decl., ¶4.

Currently, funding is needed to complete detailed designs, construct and operate the Project. Weintraub Decl., ¶5. This present lawsuit is a factor in the City’s pursuit of funding for the Project. Weintraub Decl., ¶6. Therefore, delays in the resolution of this action would almost certainly delay the funding and implementation of the Project. Weintraub Decl., ¶6.

On October 24, 2023, the court continued the trial setting conference to February 20, 2024, at the City’s request and with the agreement of Constant to allow the City additional time to prepare the administrative record. Shyu Decl., ¶10. Since that date, the City has attempted to meet and confer with Constant to reduce the scope of the administrative record, but the parties were unable to reach an agreement. Shyu Decl., ¶11. The City has proceeded to prepare the administrative record without reducing the scope and has so far compiled over 5000 documents from multiple City departments and personnel and nearly 40,000 emails, which all have to be reviewed for responsiveness and privilege and then properly indexed. Shyu Decl., ¶12.

On January 22, 2024, the City asked Constant to stipulate to extend the LASC 3.232 record preparation deadlines and continue the trial setting conference to May 21, 2024, or as soon thereafter as the court’s schedule permits. Shyu Decl., ¶13. Constant agreed to the extension. Shyu Decl., ¶13. On January 29, 2024, the City sent to Constant a stipulation and proposed order memorializing the agreement, but Constant has not yet signed the stipulation. Shyu Decl., ¶14.

The City has no record of a service copy by email, mail, or otherwise of Constant’s mandatory request for hearing under Public Resources Code (“Pub. Res. Code”) section 21167.4(a). Shyu Decl., ¶15. The City notified Constant that it had not received his mandatory request for hearing and did not see such a document on the court’s online register of actions. Shyu Decl., ¶16. Petitioner responded that he would look into the issue, and stated on January 29, 2024, that “[m]y calendar says this was entered end of October”. Shyu Decl., ¶17, Ex. H.

In correspondence with Constant regarding his failure to file and serve an opposition to the present motion, Constant stated that he would oppose the motion at oral argument on the hearing date. Shyu Reply Decl., ¶2, Ex. A.

The City filed its motion to dismiss on February 14, 2024. At the February 20, 2024 trial setting conference, the court continued the hearing on the City’s motion to dismiss to the instant date and ordered Petitioner Constant’s opposition to be filed and served by April 30. No opposition is on file.

The Project is the Silver Lake Reservoir Complex Master Plan, which involves redesigning 116 acres of the 127-acre Silver Lake Reservoir Complex with nature-focused community park amenities. Shyu Decl., Ex. A; Weintraub Decl., ¶3. The City Council certified the EIR and approved the Project on August 23, 2023. See Shyu Dec., Ex. D; Weintraub Decl., ¶4.

Also on January 22, 2024, the City notified Petitioner that it had not received his request for hearing under CEQA and did not see the document on the court’s register of actions. Shyu Decl., ¶¶ 15-16. Petitioner responded that he would look into the issue, and stated on January 29, 2024, that “[m]y calendar says this was entered end of October”. Shyu Decl., ¶17, Ex. H. Petitioner has not provided any evidence of such a filing and there is no record that he filed and served a request for hearing under section 21167.4. Id.

CEQA actions must be prosecuted diligently, and Pub. Res. Code section 21167.4(a) provides:

“In any action or proceeding alleging noncompliance with [CEQA], the petitioner shall request a hearing within 90 days from the date of filing the petition or shall be subject to dismissal on the court’s own motion or on the motion of any party interested in the action or proceeding.”

Pub. Res. Code Section 21167.4(a) is mandatory when a petitioner fails to request a hearing on the writ within 90 days; the court must dismiss the CEQA claim. San Franciscans for Reasonable Growth v. City and County of San Francisco, (1987) 189 Cal.App.3d 498, 504; Fiorentino v. City of Fresno, (“Fiorentino”) (2007) 150 Cal.App.4th 596, 603. The violation cannot be cured by a late filed request for hearing. Fiorentino, supra, 150 Cal.App.4th at 600, 604. This mandatory dismissal for failure to request a hearing within 90 days is consistent with the public policy of ensuring that challenges alleging an agency’s noncompliance with CEQA will be heard quickly. See County of Orange v. Super. Ct. of Orange County, (2003) 113 Cal.App.4th l, 12.

Petitioner brought this CEQA action on September 25, 2023 and failed to file a request for hearing within 90 days. Dismissal of the first cause of action for violation of CEQA therefore is mandatory under section 21167.4(a). As the City argues, neither the parties’ negotiations over the record nor Petitioner Constant’s pro per status affect this outcome. See Rappleyea v. Campbell, (11994) 8 Cal.4^th 975, 984-85 (“[e]xcept when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation”). Mot. at 12-13.

Additionally, and although Petitioner argued otherwise at an October 24, 2023 trial setting conference, the Petition’s second claim for declaratory relief is subsumed within the CEQA claim. In the first cause of action, the Petition seeks a writ of mandate directing the City to vacate and set aside its certification of the FEIR and Project approvals. Shyu Decl., Ex. E, ¶¶ 48-56, 65-66. In the second cause of action, the Petition seeks declarations that (a) the Project FEIR’s omission of the County’s CAP “does not fully comply with the standards set forth in CEQA Guidelines, including Guidelines section 15183.5(b)”, and (b) the “City must coordinate and use the County’s CAP guidelines to analyze the future Project’s greenhouse gas impacts over the decades long Project timeline.” Ex E., ¶63. Both aspects of the requested declaratory relief must be determined as part of the CEQA evaluation of the FEIR and therefore are not available for a declaratory judgment. "The law is well established that an action for declaratory relief is not appropriate to review an administrative decision." State of California v. Superior Court (Veta) (1974) 12 Cal.3d 237, 249.

The case is ordered dismissed with prejudice pursuant to Pub. Res. Code section 21167.4(a).