Judge Joel L. Lofton, Case 22STCP01636 2023-01-13 Tentative Ruling

Judge: Joel L. Lofton, Case: 22STCP01636, Date: 2023-01-13 Tentative Ruling

Case Number: 22STCP01636 Hearing Date: January 13, 2023 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: January 13, 2023 TRIAL DATE: No date set.

CASE: LINCOLN HEIGHTS COMMUNITY COALITION v. CITY OF LOS ANGELES and CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, and DOES 1-10

R CAP AVENUE 34, LLC, Real Party in Interest.

CASE NO.: 22STCP01636

MOTION FOR PRELIMINARY INJUNCTION

MOVING PARTY: Petitioner Lincoln Heights Community Coalition

RESPONDING PARTY: Respondents City of Los Angeles and California Department of Toxic Substances Control; Real Party in Interest R Cap Avenue 34, LLC

SERVICE: Filed December 9, 2022

OPPOSITION: Filed December 27, 2022

REPLY: Filed January 3, 2023

RELIEF REQUESTED

Petitioner moves for a preliminary injunction halting the Project.

BACKGROUND

This case arises out of Petitioner Lincoln Heights Community Coalition’s (“Petitioner”) claim that Respondents City of Los Angeles (“City” or “the City”) and the California Department of Toxic Substances Control (“Department” or “the Department”) failed to comply with the California Environmental Quality Act (“CEQA”) in regard to the Avenue 34 Project (“Project”).

Petitioner alleges that the City approved the Project in 2017 and prepared a Mitigated Negative Declaration (“2017 MND”). Petitioner alleges the 2017 MND did not disclose any history of contamination at the Project site. Petitioner alleges that in 2021, sampling at the Project site found widespread contamination. Petitioner alleges that in November 2021, Real Party-in-Interest R Cap Avenue 34, LLC (“RPI”), published a draft Removal Action Workplan (“RAW”). Petitioner alleges that in December 2019, an addendum (“2019 Addendum”) was prepared for the 2017 MND. On December 22, 2020, the Los Angeles City Planning Commission published a Letter of Determination, adopting the 2019 Addendum and approving the revised Project. Petitioner alleges that DTSC approved the draft RAW on March 18, 2022. Petitioner alleges on April 1, 2022, DTSC prepared an addendum to the 2017 MND (“2022 Addendum”).

Petitioner alleges that on May 4, 2022, the Los Angeles City Council (“City Council”) voted on and passed an emergency motion (“2022 Motion”) directing the Los Angeles Bureau of Sanitation to lead off-site testing. Petitioner filed its original petition for writ of mandate on May 2, 2022, and filed a first amended petition (“Amended Petition”) on June 16, 2022.

TENTATIVE RULING

Petitioner’s motion for a preliminary injunction is DENIED.

REQUEST FOR JUDICIAL NOTICE

Petitioner’s requests judicial notice for exhibits 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, and 24. Petitioner provides that exhibits 13, 14, 15, 16, 17, 18, and 19 are part of Respondent’s administrative record.

Petitioner’s request for judicial notice of exhibits 13, 14, 15, 16, 17, 18, and 19 is granted pursuant to Evidence Code section 452.

Petitioner’s request for judicial notice of exhibits 7, 8, 11, 12, 20, 21, 22, 23, and 24, is denied as extra-record evidence. (See Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 894.)

The City requests judicial notice of its exhibits A, B, C, D, and E. The City provides exhibits B, C, D, and E are documents that were part of its administrative files. However, the City only expressly provides that exhibit B is part of the administrative record. The City’s request for judicial notice for exhibit B is granted. The City’s request for judicial notice of exhibits A, C, D, and E is denied.

DTSC requests judicial notice for Exhibits A, B, C, D, and E, which it provides is part of its administrative record and five other documents. DTSC’s request for judicial notice for Exhibits A, B, C, D, and E, is granted. The remainder of DSTC’s request for judicial notice is denied.

DISCUSSION

I. INJUNCTIVE RELIEF SOUGHT

Petitioner seeks a preliminary injunction halting RPI from taking any action on the Project pending a review of the merits of this petition. Petitioner argues that both Respondents failed to conduct subsequent CEQA review prior to taking discretionary action related to the Project. Petitioner argues that DTSC failed to conduct a CEQA analysis prior to the March 2022 approval of the RAW and the 2022 Addendum. Petitioner also argues that the City failed to conduct a CEQA analysis prior to the 2022 Motion.

Through this motion, Petitioner is seeking to prevent any further work in connection with the Project. However, as previously conceded by Petitioner in its opposition to the City’s motion for judgment on the pleadings, Plaintiff is not challenging the initial MND or approval of the Project because the applicable statutes of limitations have run. (MJOP Oppo. At p. 11:6-7.) The initial MND and petition, by Petitioner’s own framing of its position, is outside of the scope of this petition.

“The general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the action.” (SB Liberty, LLC v. Isla Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 280 “A trial court must weigh two interrelated factors when deciding whether to grant a plaintiff's motion for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial, and (2) the relative interim harm to the parties from the issuance or nonissuance of the injunction, that is, the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the preliminary injunction is issued.” (Ibid.) “ ‘Of course, “[t]he scope of available preliminary relief is necessarily limited by the scope of the relief likely to be obtained at trial on the merits.” ’ ” (O’Connel v. Superior Court (2006) 141 Cal.App.4th 1452, 1463.)

Petitioner does not establish how the current CEQA action, even if determined on its merits, provides a remedy that warrants pausing the entire Project. “CEQA is enforced with powerful remedies to ensure that the review process is completed appropriately and the various findings are made before projects go forward.” (Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 667, 713 (“Friends of the Eel River”).) A CEQA petition could result in a mandate “that the determination, finding or decision be voided by the public agency, in whole or in part.” (Pub. Resources Code section 21168.9 (“section 21168.9”), subd. (a)(1). However, as applied here, section 21168.9, subdivision (a)(1), would result in the 2022 Raw Approval, 2022 Addendum, or 2022 Motion being voided, not the initial approval. Similarly, section 21168.9, subdivision (a)(3), does not provide an avenue for Petitioner to pause the entire Project.

However, section 21168.9 does provide a possible vehicle for the relief Petitioner seeks in this motion. “If the court finds that a specific project activity or activities will prejudice the consideration or implementation of particular mitigation measures or alternatives to the project, a mandate that the public agency and any real parties in interest suspend any or all specific project activity or activities, pursuant to the determination, finding, or decision, that could result in an adverse change or alteration to the physical environment, until the public agency has taken any actions that may be necessary to bring the determination, finding, or decision into compliance with this division.” (Pub. Resources Code section 21168.9, subd. (a)(2).)

“CEQA affords enforcement mechanisms that may have the effect of preventing or impeding progress on a public or private project pending compliance with CEQA requirements. [Citation.] But orders may be limited and include ‘only those mandates which are necessary to achieve compliance’ and ‘only those specific project activities in noncompliance’ with CEQA.” (Friends of the Eel River, supra, 3 Cal.5th at p. 714.)

In assessing the Petitioner’s likelihood of success on the merits, the court is guided by the relief available under section 21168.9, subdivisions (a)(2) and (b). Because Petitioner is seeking a preliminary injunction pausing the entire Project, Petitioner must show a likelihood of success in demonstrating that the challenged activities will prejudice mitigation measures (section 21168.9, subd. (a)(2)) and that such a mandate is necessary to achieve compliance with CEQA (section 21168.9, subd. (b)).

The court emphasizes it is not ruling on the merits of Petitioner’s CEQA action but rather evaluating the merits of Petitioner's present motion under the applicable standards.

II. LIKELIHOOD OF SUCCESS

Petitioner argues that it has demonstrated a likelihood of success on the merits of establishing that the City and DTSC took subsequent action on the Project without proper CEQA review.

A. Whether the Initial Review or Subsequent Review Standard Applies

The California Supreme Court in Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937 (“San Mateo Gardens I”).), set out the framework for judicial review of subsequent changes to a project. In San Mateo Gardens I, a community college district had proposed a plan to demolish certain buildings while renovating others. (Id. at p. 943.) Years later, the district proposed changes to the plan to demolish a building that had been planned for renovation and renovate two buildings that had been planned for demolition. (Ibid.) The district approved the changes after concluding that they did not require further CEQA review. (Ibid.)

The California Supreme Court stated that the inquiry starts with analyzing whether the proposed agency action is subject to initial review or subsequent review, i.e. whether the proposed action was a new project or a change to a previous project. (San Mateo Gardens I, supra, 1 Cal.5th at p 951.) “Once a project has been subject to environmental review and received approval, section 21166 and CEQA Guidelines section 15162 limit the circumstances under which a subsequent or supplemental EIR must be prepared. These limitations are designed to balance CEQA's central purpose of promoting consideration of the environmental consequences of public decisions with interests in finality and efficiency. ” (Id at p. 949.)

Here, Petitioner does not assert that the actions taken by the City and DTSC in 2022 constitute a new project. In fact, Petitioner repeatedly argues that the City’s 2022 Motion and DTSC’s 2022 approval of the RAW and 2022 Addendum failed to adequately address the newly discovered contaminants. Thus, the subsequent review standard is applicable here.

B. Whether the Fair Argument or Substantial Evidence Standard Applies

The next issue is what standard of review applies to judicial review of an agency’s subsequent action or proposed action on a project.

Public Resources Code section 21166 provides that “no subsequent or supplemental environmental impact report shall be required . . . unless one or more of the following events occurs: [¶] (a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report. [¶] (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. [¶] (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.”

Additionally, CEQA Guidelines section 15162, subdivisions (a)(1)-(2), provide that when an EIR or a negative declaration has been adopted, no subsequent EIR is required unless substantial changes are proposed to the project or there are substantial changes to the circumstances of the project that require major revisions to the EIR or negative declaration.

The California Supreme Court held that “when a project is initially approved by negative declaration, a ‘major revision’ to the initial negative declaration will necessarily be required if the proposed modification may produce a significant environmental effect that had not previously been studied.” (San Mateo Gardens I, supra, 1 Cal.5th at pp. 951-952.)

“Proposed changes might have a significant environmental impact when there is some competent evidence to suggest such an impact, even if other evidence suggests otherwise.” (Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2017 11 Cal.App.5th 596, 607 “San Mateo Gardens II.) In San Mateo Gardens II, the Court rejected the argument that the substantial evidence standard applied to subsequent action based on an initial negative declaration. (Id. at p. 607.) The Court also held that where, like here, an agency initially prepared a negative declaration, courts “must assess whether there is ‘substantial evidence that the changes to a project for which a negative declaration was previously approved might have a significant environmental impact not previously considered in connection with the project as originally approved.’ ” (Id. at p. 608.)

Petitioner is seeking to halt the entire Project through its challenge of the City and DTSC’s 2022 actions. In order to do so, Petitioner must establish that there is substantial evidence any of the 2022 Motion, 2022 Addendum, the 2022 approval of the RAW, or a change in the circumstances of the Project might have a significant environmental impact not previously considered and that the agency action will prejudice other mitigation efforts warranting pausing the entire Project pursuant to section 21168.9, subdivision (a)(2).)

III. APPLICATION OF RELEVANT FACTS

A. Extra-Record Evidence

Petitioner also submits a motion for this court to consider extra-record evidence.

“[C]ourts generally may not consider evidence not contained in the administrative record when reviewing the substantiality of the evidence supporting a quasi-legislative administrative decision under Public Resources Code section 21168.5. We also conclude that extra-record evidence is generally not admissible to show that an agency ‘has not proceeded in a manner required by law’ in making a quasi-legislative decision. Such evidence is generally not admissible to challenge quasi-legislative decisions on non-CEQA grounds, and we see no reason to apply a different rule in CEQA cases.” (Western State Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 565n (“Western”.)

Code of Civil Procedure section 1094.5, subdivision (e), provides that a court may potentially consider extra-record evidence where it “finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent”. However, “[e]xtra-record evidence is admissible under this exception only in those rare instances in which (1) the evidence in question existed before the agency made its decision, and (2) it was not possible in the exercise of reasonable diligence to present this evidence to the agency before the decision was made so that it could be considered and included in the administrative record.” (Western, supra, 9 Cal.4th at p. 578.)

First, Petitioner seeks to admit the EPA meeting minutes from a meeting on December 20, 2021. However, other than arguing that DTSC had the evidence prior to the approval of the RAW, Petitioner does not establish that “it was not possible in the exercise of reasonable diligence to present this evidence to the agency before the decision”, which is a necessary requirement. (Western, supra, 9 Cal.4th at p. 578.)

Additionally, Petitioner argues that a variety of post-approval evidence is relevant and should be admitted because it was unable to comment on Respondent’s action to add the documents to the record. Petitioner’s position is self-contradicting because each of the documents that Petitioner seeks to admit is dated after any of the approvals at issue in the present petition. Further, Petitioner asserts in its motion for a preliminary injunction that it was able to comment on the draft RAW. (Motion at p. 7:17-:8:1.)

Petitioner has failed to establish that consideration of extra-record evidence is warranted here. Petitioner’s request for this court to consider extra-record evidence is denied.

B. Petitioner’s Likelihood of Success as to DTSC

A preliminary issue presented is whether any action taken by DTSC constitutes a “discretionary approval for the project”.

CEQA Guidelines section 15162, subdivision (c), provides: Once a project has been approved, the lead agency's role in project approval is completed, unless further discretionary approval on that project is required. Information appearing after an approval does not require reopening of that approval. If after the project is approved, any of the conditions described in subdivision (a) occurs, a subsequent EIR or negative declaration shall only be prepared by the public agency which grants the next discretionary approval for the project, if any. In this situation no other responsible agency shall grant an approval for the project until the subsequent EIR has been certified or subsequent negative declaration adopted.” In its motion, Petitioner assumes, without pointing to supporting evidence, that DTSC’s approval of the RAW was a discretionary approval for the project.

Further, Petitioner’s argument is essentially that once DTSC learned of the prior contamination, it should not have approved the RAW or the 2022 Addendum and instead conducted a CEQA analysis. Petitioner relies heavily on the declaration of James Wells (“Dr. Wells”), Ph.D., to support its position that further CEQA review was required. Dr. Well’s declaration, however, is mainly a criticism of the RAW. He does not present a cognizable picture of how the newly-discovered contaminants impact the approved MND or the project. He assumes without pointing to the administrative record that because the contaminants are newly-discovered, they constitute a change of circumstances requiring a further CEQA review.

“For CEQA purposes, the types of evidence that constitute substantial evidence include “fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.” (San Mateo Gardens II, supra, 11 Cal.App.5th at p. 609.)

For the present motion, Petitioner has not submitted “substantial evidence” that the new circumstances “might have a significant environmental impact not previously considered in connection with the project.” (San Mateo Gardens II, supra, 11 Cal.App.5th at p. 608.) Further, because Petitioner is seeking a preliminary injunction halting the entire Project, the court finds that Petitioner has also not established that such a remedy is appropriate pursuant to section 21168.9.

C. Petitioner’s Likelihood of Success as to the City

Petitioner also argues it has demonstrated a likelihood of success as to the City. However, once again, Petitioner does not point to any evidence in the record supporting this proposition other than the 2022 Motion itself. Petitioner also points to the court’s prior ruling on the City’s motion for judgment on the pleadings. However, the standard for that motion was different and the court merely found that based on the allegations of the petition, the City had not shown there was no triable issue of material fact.

The court’s previous finding is very different from a finding that the City’s 2022 Motion is in fact a discretionary approval mandating further CEQA review. Also, the language within the 2022 motion may reference the project and contamination but that, in and of itself, for the purposes of this motion, does not establish the 2022 Motion was an act of discretionary approval. Because Petitioner fails to point to any other evidence in support of its position, the court does not need to go any further to find that Petitioner has failed to establish a likelihood of success on the merits.

D. Balancing of Harm

Lastly, Petitioner has not established it will suffer harm by the denial of the present motion. Likewise, Petitioner has not established that it will suffer greater harm than Respondents or RPI.

Petitioner has failed to demonstrate a likelihood of success on the merits and that the balance of harm weighs in its favor. The court emphasizes that its findings are limited to the evidence and argument supported in the present motion, and the court is not ruling on the substantive issues of Petitioner’s underlying CEQA.

CONCLUSION

Petitioner’s motion for a preliminary injunction is DENIED.

Moving Party to give notice.

Dated: January 13, 2023 ___________________________________

Joel L. Lofton

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit. Parties intending to appear are strongly encouraged to appear remotely. alhdeptx@lacourt.org