Judge: Joel R Wohlfeil, Case: 37-2022-00046172-CU-TT-CTL, Date: 2024-02-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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TENTATIVE RULINGS - February 13, 2024

02/14/2024  01:30:00 PM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Toxic Tort/Environmental Hearing on Petition 37-2022-00046172-CU-TT-CTL ANIMAL PROTECTION AND RESCUE LEAGUE INC VS CITY OF SAN DIEGO [E-FILE] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 01/18/2024

The Motion (ROA # 40, 44) of Petitioner / Plaintiff Animal Protection and Rescue League, Inc. ('Plaintiff') for an order for a writ of traditional mandate to set aside the October 11, 2022 City Council decision approving 'Third Amendment to the Original Sole Source Agreement (H166798) with Moffatt & Nichol for Additional Consultant Services During the Design and Construction for the OB Pier Replacement Project,' is DENIED.

'Any action or proceeding to attack, review, set aside, void or annul a determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with the provisions of this division shall be in accordance with the provisions of Section 1094.5 of the Code of Civil Procedure .... ¶ ...In any such action, the court shall not exercise its independent judgment on the evidence but shall only determine whether the act or decision is supported by substantial evidence in the light of the whole record.' Pub. Resources Code 21168 (emphasis added).

'... [A]buse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.' Code Civ. Proc. 1094.5(c).

Public Resources Code section 21167.6 specifies the manner in which the administrative record may be prepared (either by the agency or the petitioner) and certified prior to a writ of mandate hearing.

Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal. App. 4th 1043, 1051.

Section 21167.6 applies to any CEQA challenge, whether brought as a traditional mandamus proceeding under section 1085, or as an administrative mandamus proceeding under section 1094.5.

Id.

This writ petition alleges a cause of action for administrative mandamus.

As alleged at paragraph 19: 'On October 11, 2022, the City Council voted to approve the Project, passed a resolution finding the Project exempt from CEQA, and authorized the $8M to be paid to Real Party in Interest to carry out the Project.' The prayer for relief seeks 'a peremptory writ of mandate directing ... ¶ ... Respondents to vacate and set aside their approval of the Project.' Calendar No.: Event ID:  TENTATIVE RULINGS

3024154 CASE NUMBER: CASE TITLE:  ANIMAL PROTECTION AND RESCUE LEAGUE INC VS CITY OF  37-2022-00046172-CU-TT-CTL The Minute Order dated September 21, 2023 (ROA # 40) ordered completion of the administrative record by November 24, 2023.

Given the allegations set forth above, this action is premised on actions taken at a hearing, and for which an administrative record exists. Even if, as Plaintiff contends, the City erroneously found the subject project was exempt from CEQA review, there must still be an administrative record of this proceeding. This record must be created, certified and lodged with the Court before any decision can be made. This has not been done.

The writ petition is denied on this basis, and the Court does not reach the substantive merits. The Court notes that the brief filed in support of this writ petition was not timely filed and served. See Minute Order dated September 21, 2023.

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