Judge: James C. Chalfant, Case: BS149044, Date: 2022-10-13 Tentative Ruling

Case Number: BS149044    Hearing Date: October 13, 2022    Dept: 85

            Petitioner Ramirez Canyon Preservation Fund (“Preservation Fund”) moves for leave to file a supplemental petition.  The court has read and considered the moving papers, opposition,^[1] and reply, and renders the following tentative decision.

            A. Statement of the Case

            1. Petition

            Petitioner Preservation Fund commenced this proceeding against Respondent California Coastal Commission (“Commission”) on June 4, 2014. The Petition alleges in pertinent part as follows.

            In early 2014, Los Angeles County (“County”) submitted a proposed Local Coastal Program (“LCP”) for the Santa Monica Mountains segment of the County's coastal zone to the Commission for certification. The LCP is comprised of a Land Use Plan (“LUP”), which provides the general overarching planning policies and programs for the plan area, and a Local Implementation Program (“LIP”), which contains the more detailed zoning or implementing ordinances designed to carry out the policies of the LUP. The County requested an amendment to replace its existing certified LUP - the Malibu-Santa Monica Mountains LUP certified by the Commission in 1986 -- with an updated LUP.

            The County's LUP places habitat areas into three categories: HI habitat, H2 habitat, and H3 habitat.  HI and H2 habitats are collectively described as Sensitive Environmental Resource Areas ("SERA"). HI and H2 habitats constitute environmentally sensitive habitat areas ("ESHA"). 1-13 habitats are developed or legally disturbed areas that may retain some residual habitat values, but are not considered to be ESHA.

            One of the primary objectives of the Coastal Act is the preservation, protection, and enhancement of coastal resources, including land and marine habitats. The rare and most ecologically important habitats are protected from development. No use of an ESHA may occur that is not dependent on resources that exist in the ESHA.

            In the Conservation and Open Space Element of the LUP, Policies CO-42 and CO-93 permit campgrounds within even the most sensitive and geographically constrained habitats. Policy CO-42 provides that resource-dependent uses arc only allowed in H1 and I-12 habitats where sited and designed to avoid significant disruption of habitat values, consistent with the policies of the LUP.  Low-impact campgrounds, public accessways, and trails are considered resource­ dependent uses. Policy CO-93 similarly provides that accessways, trails, and low-impact campgrounds are allowed uses in HI and H2 habitat areas.

            On February 5, 2014, Preservation Fund provided the County with a comment letter expressing concerns about the siting of campgrounds within ESHA, and included information demonstrating that campgrounds within ESI-IA would require trenching for water lines and removal of vegetation to create fuel clearance areas, among other objections.

            The County approved the LCP on February 11, 2014 and forwarded it to the Commission for certification.  On March 3, 2014, Preservation Fund provided its objections to the Commission.

            On April 10, 2014, the Commission denied approval of the LUP as submitted by the County, but granted approval of the LUP subject to 60 modifications set forth in the Commission's staff report.  Neither the County nor the Commission modified the policies to which Preservation Fund objected.

            Petitioner Preservation Fund alleges that the Commission's approval of the LUP violates Coastal Act section 30240 by permitting campgrounds within ESHA.  Campgrounds are not a resource-dependent use and the support facilities necessary for a campground are likely to disturb the plant and animal life within the ESHA.

            2. Course of Proceedings

            On November 6, 2015, the Commission filed an Answer.

            On September 26, 2017, the court granted in part the Petition. 

            On February 21, 2018, the Commission filed a return to the writ of mandate which stated that it had filed a notice of appeal.  The Commission later abandoned the appeal.

            On March 15, 2019, the Commission filed a second return to the writ of mandate.

            B. Applicable Law

            A supplemental petition is not directly authorized in the CCP.  A supplemental complaint – defined as a complaint alleging material facts occurring after an earlier complaint was filed – is specifically authorized.  CCP §464(a).  The CCP provisions concerning complaints constitute the rules of practice for mandamus.  CCP §1109.  Hence, the requirements of CCP section 464 with respect to a supplemental complaint apply to a supplemental petition for mandamus.

            CCP section 464(a) expressly requires a motion to file a supplemental complaint, and there is case authority for a motion for leave to file a supplemental petition for mandamus.  See Giannini Controls Corp. v. Superior Court, (1966) 240 Cal.App.2d 142, 151 (supplemental petition sought by noticed motion should have been permitted). 

            C. Statement of Facts^[2]

            1. Preservation Fund’s Evidence

            On September 26, 2017, the court issued a judgment that granted in part the Petition.  Supp. Pet., ¶2, Ex. A.  The court determined that the entire LCP need not be set aside; the Commission need only strike provisions that permit low-impact campgrounds based on a feasibility/mitigation standard of development.  Supp. Pet., ¶¶ 2, 42, Ex. A.  The order was essentially for the Commission to take the actions necessary to bring the LCP into accordance with the California Coastal Act.  Supp. Pet., ¶¶ 2, 42, Ex. A. 

            On December 7, 2018, Preservation Fund objected to the proposed modifications to the LCP.  Supp. Pet., ¶44.  It alleged that the modifications violated the writ in that (1) they still referenced the concepts of “feasibility,” “mitigation,” and “minimizing impacts,” (2) they included principles the trial court found unlawful, and (3) the phrase “avoid significant disruptions” implied that some disruption was permissible when it was not.  Supp. Pet., ¶44. 

            On December 14, 2018, the Commission approved recommended modifications to portions of the plans before it sent them to the County for acceptance.  Supp. Pet., ¶45.  On March 15, 2019, the Commission filed a return claiming that the recommended modifications conform the LCP with the court’s ruling.  Supp. Pet., ¶46. 

            In September 2019, the County adopted an ordinance with revisions that were more protective of Coastal resources than the Commission’s recommended modifications.  Supp. Pet., ¶48, Ex. C.  Preservation Fund urged the County to adopt the proposed ordinance instead of the Commission’s modifications.  Supp. Pet. ¶50.  On April 19, 2022, the County approved the Commission-suggested modifications and thereby adopted an LUP that violated the court’s order.  Supp. Pet. ¶51.  The Preservation Fund anticipates that the Commission will certify the County’s revised April 2022 ordinance.  Supp. Pet. ¶53.

            Preservation Fund therefore seeks (1) a writ of mandate that compels the County to rescind its approval of the April 2022 ordinance; (2) declaratory relief that the County’s September 2019 ordinance is compliant with the Coastal Act and this court’s writ of mandate; and (3) costs of the suits.

2. Commission’s Evidence

            On February 21, 2018, the Commission filed its return to the writ of mandate, which stated that the Commission had filed notice of its appeal.  RJN Ex. 1.

            On March 15, 2019, the Commission made a second return to the writ of mandate.  RJN Ex. 2.  This return explained that the Commission had conducted a hearing regarding the portions of the LUP Amendment and LIP that were at issue.  RJN Ex. 2.  At that hearing, the Commission approved modifications that would cause the LUP and LIP to conform with the writ of mandate.  RJN Ex. 2.  The Commission expected the County Board of Supervisors to consider the modifications on April 23, 2019 and report its approval at the May 2019 meeting.  RJN Ex. 2. 

            However, in December 2019, the County Board of Supervisors adopted a resolution accepting the Commission’s proposed modifications, but also making additional changes.  Carey Decl., ¶3.  This constituted a new LCP amendment, so the Commission reviewed and approved the proposal subject to further suggested modifications in July 2021.  Carey Decl., ¶3.

The County must accept the Commission’s suggested modifications to the LCP amendments by written resolution and by enacting a local ordinance.  To date, it has not done so.  Carey Decl., ¶3.  When that happens, the Executive Director will review the County’s final signed resolution and ordinance to determine whether the County’s action is legally adequate to satisfy the Commission’s certification.  If so, Commission staff with give the Commission written notice.  Carey Decl., ¶4.  The LCP certification only becomes effective on the date that the Commission receives a District Director Report at a Coastal Commission meeting.  Carey Decl., ¶4. 

            At a meeting on April 19, 2022, the Board of Supervisors (1) indicated the intent to approve the modifications at issue; (2) instructed Acting County Counsel to prepare a resolution adopting the modifications; (3) instructed the Acting County Counsel to prepare an ordinance with the necessary findings adopting the revisions; (4) instructed the Director of Regional Planning to transmit the adopted amendment to the Commission once finalized; and (5) made a finding that the project is exempt from the California Environmental Quality Act (“CEQA”).  RJN Ex. 4.

            C. Analysis

            Preservation Fund seeks leave to file the Supplemental Petition which contends that the County’s April 2022 ordinance violates the court’s ruling.  The Commission responds that (1) the Supplemental Petition is premature; (2) res judicata bars some claims in the Supplemental Petition; and (3) the Supplemental Petition improperly expands the scope of the Petition.

            1. Ripeness

The Commission argues that the Supplemental Petition is not ripe for judicial review.  Opp. at 10-12.  A court may adjudicate only a case or controversy and may not give an advisory opinion.  Selby Realy Co. v. City of San Buenaventura, (1973) 10 Cal.3d 110; Pacific Legal Foundation v. California Coastal Commission, (1982) 33 Cal.3d 158, 170. 

The Commission notes that neither the County nor the Commission have made a final decision.  While the Board of Supervisors indicated at an April 19, 2022 meeting its intent to approve the recommended modifications, the County must accept the Commission’s suggested modifications to the LCP amendments by written resolution and by enacting a local ordinance.  To date, it has not done so.  Carey Decl., ¶3.  Nor has the Commission’s Executive Director to determine if the County’s action is legally adequate to satisfy the Commission’s certification.  Carey Decl., ¶4.  The LCP certification only becomes effective on the date that the Commission receives a District Director Report at a Coastal Commission meeting, which has not occurred.  Carey Decl., ¶4. 

            Preservation Fund acknowledges these facts and states that it does not necessarily seek to adjudicate the matter prior to further action by the County and Commission.  Instead, it seeks to provide early notification of its objections to the proposed modifications.  Reply at 6. 

While this response appears deficient, the court will not adjudicate the ripeness of the Supplemental Petition’s claims at a stage when it seeks only leave to file the pleading.

            2. Improper Expansion of the Judgment and Writ

            The Commission asserts that the Supplemental Petition’s issues improperly expand the scope of the court’s final judgment.  Preservation Fund fails to provide legal authority that it may file a Supplemental Petition on any issue addressed by the general subject matter of the Petition.  To the contrary, once a judgment has been entered, the trial court loses its unrestricted power to change the judgment.  Graven v. Crout, (1985) 163 Cal.App.3d 779, 782.  Preservation Fund’s new claims exceed the scope of the writ and must be excluded.  Ballona Wetlands Land Trust v. City of Los Angeles, (2011) 201 Cal.App.4^th 455, 481 (failure to challenge scope of writ arising from facts in existence before judgment are precludes a challenge in post-judgment proceedings concerning compliance with the writ).  Opp. at 14.

            Preservation Fund asserts that the Supplemental Petition does not expand the scope of the judgment and writ because the Petition concerned the LUP permission for human activities like campgrounds in the ESHAs even though this violates the Coastal Act.  Reply at 9-10.

            Again, this is not an issue the court will address in deciding whether to grant leave to amend.

3. The Proper Vehicle for a Challenge

            The Commission argues that the Supplemental Petition is not authorized at this procedural junction.  A supplemental petition is permitted in mandamus only after the mandated party has filed a return advising the court and parties of its compliance.  Pollak v. State Personnel Board, (“Pollak”) (2001) 88 Cal.App.4^th 1394-95 (supplemental petition challenged board’s order for reduced penalty imposed after remand); City of Carmel-by-The-Sea v. Board of Supervisors, (“Carmel”) (1982) 137 Cal.App.3d 964, 971 (petition may challenge a return in several ways, including a supplemental petition); Kensington University v. Council for Private Postsecondary, etc. Education, (“Kensington”) (1997) 62 Cal.App.4^th 27, 39 (supplemental petition considered only after administrative body’s final decision).  Opp. at 12.

            Preservation Fund argues that Pollak is distinguishable because the petitioner sought to relitigate the trial court’s previous ruling (88 Cal.App.4^th at 1407), Carmel does not mandate that a petitioner wait until a return is filed and instead gives a petitioner flexibility (137 Cal.App.3d at 971).  Accord, Planning and Conservation League v. Castaic Lake Water Agency, (2009) 180 Cal.App.4^th 210, 228.  Reply at 8-9.

This is a related issue to ripeness but one that the court may address now.  While Preservation Fund is correct that Carmel does not expressly mandate that a petitioner wait until a return is filed, it comes close: “Where, as here, the writ remands the matter...and the return states that the court’s mandate has been carried out, the petitioner may challenge the validity of that claim” by a new petition, a supplemental petition, or a motion to compel compliance.  137 Cal.App.3d at 971.  The court interprets the existence of a return is a condition precedent to the three means of challenging the agency’s action.^[3] 

            Indeed, a supplemental petition at this stage would not challenge any agency action.  Preservation Fund acknowledges that its proposed Supplemental Petition only seeks to provide early notification of its objections to the proposed modifications.  Reply at 6.  There is no return or other administrative action for the court to set aside should the Supplemental Petition be granted.  Preservation Fund must wait to challenge the Commission’s return, which will frame the scope of any challenge.  To conclude otherwise would raise serious issues about the judgment’s finality and scope of the writ.  See Graven v. Crout, supra, 163 Cal.App.3d at 782; Ballona Wetlands Land Trust v. City of Los Angeles, supra, 201 Cal.App.4^th at 481. 

4. Res Judicata

            The Commission argues that the Supplemental Petition seeks to relitigate claims disposed of in the underlying proceeding.  Opp. at 13-14. 

Res judicata prevents re-litigation of the same cause of action in a second suit between the same parties or parties in privity with them.  Mycogen Corp. v. Monstanto Co., (2002) 28 Cal.4th 888, 896.  Res judicata also applies when the plaintiff brings new factual and legal issues to court but consistently seeks to vindicate the same primary right.  Colebrook v. CIT Bank (2021) 64 Cal.App.5th 259, 264.

            Preservation Fund asserts that only the party who prevailed in the prior judgment can assert res judicata.  The portion of the judgment awarded in favor of Preservation Fund related to the ESHA impacts of campgrounds.  Nor does collateral estoppel apply because different legal issues have been raised.  Reply at 9-11.

            As with ripeness of the claims, the application of res judicata/collateral estoppel to the Supplemental Petition’s claims is not an issue the court will address in this motion.

D. Conclusion

            The motion for leave to file the supplemental petition is denied.  Preservation Fund must wait for a return and make its choice of the means for challenge.