Judge Maurice A. Leiter, Case Number: 23STCP04501, Date: 2024-04-26 Tentative Ruling

Moving Party: Petitioners Save Weddington, Inc., Studio City Residents Association, and Save Los Angeles River Open Space

Responding Parties: Respondent City of Los Angeles; Real Parties in Interest Harvard-Westlake School and 4141 Whitsett LLC

T/R: PETITIONERS’ REQUEST FOR A PRELIMINARY INJUNCTION OR STAY STOPPING ALL APPROVALS, SITE PREPARATION, AND CONSTRUCTION ACTIVITIES IS DENIED.

THE PARTIES ARE ASKED TO ADDRESS AT ARGUMENT WHETHER IT IS IN THE PUBLIC INTEREST TO STAY REMOVAL OF THE 240 TREES UNTIL TRIAL, AND TO ANSWER CERTAIN QUESTIONS RAISED BELOW.

The Court considers the moving papers, oppositions, and replies filed in both cases.

Petitioners claim in these lawsuits that the City of Los Angeles failed to comply with the California Environmental Quality Act (CEQA) in approving the Harvard-Westlake River Park Project. Before the Court today are Petitioners’ motions to stop site preparation and construction activities until the Court decides the merits of their CEQA claims.

To decide these motions, the Court must weigh the likelihood that Petitioners will succeed on their CEQA claims at trial. The Court also must balance the respective harms to the parties and the public of stopping or not stopping construction. As discussed in more detail below, the Court finds that Petitioners have not proved they are likely to succeed on the merits of their claims. The City considered the environmental concerns Petitioners raised and included mitigation measures in the Project plan the City approved. Petitioners have not shown in this motion that the City likely failed to follow proper procedures when evaluating the environmental impacts of the Project or reached conclusions that are not supported by substantial evidence.

In weighing the respective harms and benefits of imposing an injunction or stay, the Court has paid particular attention to the possible imminent removal of 240 trees. The risk of irreparable harm is greater here. Removing the trees now would effectively deprive Petitioners and the public of a full review at trial of the City’s decision to allow their removal. The parties’ briefs do not provide adequate information on the timing of the planned tree removal or the impact of a relatively brief stay of tree removal until trial. Below, the Court asks questions the parties should be prepared to answer at argument.

On December 13, 2023, Petitioners Studio City Residents Association and Save Los Angeles River Open Space filed a petition for writ of mandate against Respondent City of Los Angeles. On December 14, 2023, Petitioner Save Weddington, Inc. filed a similar action. The Court related the two cases.

The petitions challenge the City of Los Angeles’ approval of the Harvard-Westlake River Park Project. The Project site is a 17.2-acre area in Studio City adjacent to the Los Angeles River and the Zev Yaroslavsky Greenway. The Project would construct a two-story multi-purpose gymnasium, a 52-meter swimming pool, tennis courts, athletic fields, bleachers, locker and meeting room space, and below-grade parking. It also would provide publicly accessible open space and landscaped pathways connecting to the Greenway and add on-site landscaped areas. The Project seeks to remove 240 mature trees and plant 368 new trees. Harvard-Westlake says the trees to be removed are invasive, the replacement trees are native, and overall the Project will reduce water usage and pollutants and increase the carbon sequestration rate.

In September 2021, the Los Angeles City Council designated the Studio City Golf & Tennis Center as a Historic Cultural Monument, making the Project site a historic resource. Save Weddington claims the Project would destroy this historical designation by altering its setting, landscape, and recreational facilities and interfering with its ability to convey its historic significance.

On March 10, 2022, the City published a Draft Environmental Impact Report (DEIR). The final Environmental Impact Report (EIR) was published on May 24, 2023, and was certified by the City Planning Commission on August 24, 2023. Petitioners filed appeals of the Commission's actions in late September 2023; in November the Planning and Land Use Management Committee of the City Council recommended denial of the appeals, approval of the entitlements, and certification of the EIR.

In these motions, Petitioners request (1) a stay of all approvals for the Project or in the alternative (2) a preliminary injunction preventing the removal of 240 mature trees and other site preparation/construction activities in conjunction with the Project. They move under both Code of Civil Procedure section 1094.5 subdivision (g) and the traditional preliminary injunction standard.

CCP § 1094.5(g) states that court may stay the operation of an administrative order or decision when doing so is not against the public interest. The Court exercises its discretion in deciding whether a stay is appropriate: “Subdivision (g) of §1094.5 requires only that before the issuance of a stay order ‘the court [be] satisfied that it is [not] against the public interest.’” (Bd. of Med. Quality Assurance v. Superior Court (1980) 114 Cal.App.3d 272, 276.) The Court must “weigh the public interest in each individual case.” Sterling v. Santa Monica Rent Control Bd. (1985) 168 Cal.App.3d 176, 187; see also Am. Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 295.

On a motion for preliminary injunction the Court considers two factors: “(1) the likelihood that the Petitioner will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” (White v. Davis (2003) 30 Cal.4th 528, 553-54.) The factors are interrelated, with a greater showing on one permitting a lesser showing on the other. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) But the party seeking an injunction must demonstrate at least a reasonable probability of success on the merits. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73-74.) The party seeking the injunction bears the burden of demonstrating both a likelihood of success on the merits and the occurrence of irreparable harm. (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1571.)

In a CEQA action, the Court reviews the agency’s decision for a prejudicial abuse of discretion. (Public Resources Code § 21168.5.) “Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” (Ibid.; see also Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435.) Challenges to whether an agency failed to proceed as required by CEQA are subject to a less deferential standard than challenges to an agency’s factual conclusions. (Vineyard, supra, 40 Cal.4th at 435.) In reviewing claims for failure to proceed as required the Court must “determine de novo whether the agency has employed the correct procedures.” (Ibid.; see Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26.)

Challenges to the agency’s factual conclusions look to whether the conclusions are supported by substantial evidence. Substantial evidence means “enough relevant evidence and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (14 California Code Regulations § 15384(a).) “A court may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable.” (Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal.3d 376, 393.) “The reviewing court must resolve reasonable doubts in favor of the administrative finding and decision.” (Ibid.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) The petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that the EIR is legally inadequate, and that the agency abused its discretion in certifying it. (See South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604, 1612; Cherry Valley Pass Acres and Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 327-28.)

The Court GRANTS Respondent’s request for judicial notice pursuant to Evidence Code §§ 453 (c) and (h).

Petitioners argue they are likely to prevail on the merits at trial because the EIR is deficient. Petitioners first say the EIR failed to adequately analyze the environmental impact of removing 240 mature trees because it did not address the survivability and susceptibility to disease of the replacement trees intended to mitigate these impacts. Petitioners also criticize the EIR for allegedly misleading claims regarding carbon sequestration and the mitigation of urban heat island effects, arguing that the replacement trees cannot adequately compensate for the environmental benefits of the mature trees.

In opposition, Real Parties argue that Petitioners are unlikely to succeed on the merits under the deferential standard applied to the City’s factual findings. They also argue that the City thoroughly analyzed the potential mortality of replanted trees and the Project’s impact on urban heat and carbon sequestration, and has measures in place to mitigate any adverse effects, including plans to replace any trees that do not survive.

Respondent also argues that the EIR thoroughly evaluated the environmental impacts of the Project, particularly the effects of removing and replacing trees on biological resources, tree canopy cover, carbon sequestration, and urban heat island effects. They contend that substantial evidence supports the City’s findings that the impact of these actions would be minimal, especially given the mitigation measures in place, such as increasing the number of native and compliant tree species and replacing invasive, non-compliant species.

In reply, Petitioners argue that the EIR fails to provide adequate information. It neglected to address the potential death or stunted growth of replacement trees due to natural causes, disease, or transplant shock, which would significantly impact the Project’s alleged environmental benefits, particularly canopy cover and habitat recovery. They also say there is insufficient analysis of replacement tree mortality and how such mortalities would delay the benefits of carbon sequestration and mitigation of urban heat island effects.

Petitioners have not shown in this motion that they are likely to succeed on the merits on this issue. Based on the information before the Court, the EIR analyzed the potential for replacement tree health and mortality. The City’s consultant explained that the mortality rate of 6.6-7% claimed by Petitioners has not been seen in the area. The Project will source trees from reputable nurseries with a replacement program in the event trees fail.

The EIR also prepared an urban heat island study and found that the Project’s tree and landscaping program would help reduce urban heat island effects, and that replacement trees over the Project’s lifetime would have a net carbon sequestration benefit. Petitioners argue that the carbon sequestration short-term impacts analysis is deficient because it will take ten years for a sapling in a 46-inch box tree to begin sequestering carbon at all. But the EIR’s Carbon Sequestration and Tree Canopy Study states that “‘during Year 2 of Project operation, the annual CO2 sequestration rate of the Project’s replacement trees would be approximately equivalent to existing sequestration rates.’ (Exh. J, p. 686).” The Court finds that reasonable inferences in favor of the City’s findings support their decision. Petitioners have not shown in this motion they are likely to prevail on issues concerning the survivability of replacement trees and the adequacy of mitigation measures for carbon sequestration and the urban heat island effect.

Petitioners contend the EIR fails to address air quality impacts from Valley Fever spores likely to be released during construction. They also fault the EIR’s mitigation plans for construction-related traffic and noise.

In opposition, Real Parties and Respondents argue there is no evidence indicating the presence of Valley Fever spores at the Project site, and they defend mitigation measures for air quality and construction impacts as sufficient and well-integrated within the Project’s design.

The EIR analyzed potential Valley Fever impacts from Project construction and found them to be insignificant. Since the City found no meaningful Valley Fever impact the EIR did not need to discuss potential health effects. Petitioners cannot show a reasonable likelihood of success on the merits merely by pointing to conflicting evidence in the record of Valley Fever impacts. The EIR also provides that the Project will comply with South Coast Air Quality Management District Rule 403 to minimize potential Valley Fever transmission. From the evidence provided by the parties here, Petitioners have not shown a likelihood of prevailing on their claim that there was no substantial evidence to support the City’s analysis and conclusion of air quality impacts.

Petitioners argue that the proposed traffic and noise mitigation measures are insufficiently detailed and fail to contain adequate planning or commitment. Petitioners say the Project design feature of the Construction Management Plan (CMP) “improperly compress[ed] the EIR’s disclosure and analysis function of potential impacts and efficacy mitigation for those impacts.” Petitioners claim it is an improperly deferred mitigation as there are no performance standards set for this plan. (Id.)

Real Parties and Respondent defend the CMP and the assessment of construction noise impacts, asserting that all necessary mitigation measures have been planned and disclosed adequately. Respondent points out that the Project design features disclose the potential impact of construction traffic and compare the significance of the impact with and without the CMP.

In reply, Petitioners contend that the EIR improperly relies on a future, yet-to-be-developed Construction Management Plan to address traffic impacts, which does not meet the CEQA requirements for effective and immediate mitigation measures. Petitioners also assert that the EIR’s analysis of construction noise impact assumes without substantial evidence that noise barriers will achieve sufficient noise reduction and fails to connect construction noise levels to potential health impacts on nearby residents.

“Under CEQA, an agency's conclusion as to whether a given impact is significant is not enough; ‘there must [also] be a disclosure of the analytic route the ... agency traveled from evidence to action’.” (Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86, 101-102.) The EIR considered and analyzed the contemplated mitigation measures and found them to be adequate. It appears the City disclosed the evidence supporting their conclusions: the EIR found that a 15-dBA construction can be achieved through specific mitigation measures and that construction noise would not cause adverse health effects such as sleep deprivation, since noise generating construction activity would cease at 4pm. Though Petitioners claim the EIR failed to address other health impacts such as cardiovascular and hearing impacts and failed to consider that community members may have jobs that necessitate they sleep during daytime hours, the EIR considered relevant evidence and made reasonable inferences in analyzing the mitigation of construction noise and reaching the conclusion that the mitigation measures would be sufficient and would not cause adverse health effects. Petitioners have not satisfied their burden of showing likelihood of success as to construction noise impacts and mitigation measures.

Petitioners suggest that the Project failed to comply with prior regulatory requirements and that the sufficiency of the EIR is contingent on Harvard-Westlake’s maintenance of replacement trees in excellent condition indefinitely.

In opposition, Real Parties refute allegations of past violations by pointing out that there is no admissible evidence linking such violations to the current Project or suggesting they might recur.

In reply, Petitioners argue against the reliance of unenforceable promises by Harvard-Westlake regarding mitigation measures, highlighting the school’s history of non-compliance with zoning and permit requirements.

This allegation does not change the analysis. It does not show Petitioners are likely to succeed on the merits at trial.

Petitioners contend that removal of 240 mature trees will result in environmental damage which would impact wildlife, exacerbate the urban heat island effect, and hinder carbon sequestration, and that this environmental harm is often irreversible and cannot be compensated monetarily.

In opposition, Real Parties argue that the removal of non-native, invasive trees will benefit the environment by allowing the planting of native species that will enhance the habitat and increase carbon sequestration.

As discussed above, Petitioners have not shown they are likely to succeed at trial on their claim that the City failed to comply with CEQA in deciding to allow the removal of these trees, or failed to support their decision with substantial evidence. But at trial the Court will have the benefit of information it does not have now, including the administrative record and full briefing on the merits. In other words, Petitioners may fare better on this issue at trial than they do in this motion. But if the trees are removed now, Petitioners will be deprived of an effective remedy if they prevail at trial. (Hixon v. Cnty. of Los Angeles (1974) 38 Cal.App.3d 370, 378.)

Petitioners assert that a stay or preliminary injunction would not delay completion of the Project because issuance of building permits is not imminent. They point to several approvals that are still pending, which are prerequisites for the Project to proceed, including approvals for a haul route, a county lease amendment, and environmental surveys. In opposition, Harvard-Westlake submits a declaration of James DeMatte, who states: “As of the date of this declaration, all permits required to commence construction have either been issued by the required City departments or are ‘RTI’ (ready to issue), meaning that conditions have been cleared and the permits are ready for issuance.” (DeMatte Decl. ¶ 8.) In reply, Petitioners state that no fewer than 22 clearances remain “Not Cleared.”

The record before the Court is unclear about when the trees will be removed under the current timeline, whether all approvals and permits are in place that would allow removal of the trees, and what impact a delay in tree removal until trial would have on the overall Project. The parties are asked to address these issues at argument, as well as the general issue of whether it is in the public interest under CCP § 1094.5(g) to stay removal of the 240 trees until resolution of this case at trial.[1]

As discussed above, Petitioners have not shown they are likely to prevail on these matters at trial. This weighs heavily against granting a preliminary injunction. The Court also finds that balancing the respective harms does not weigh in Petitioners’ favor.

c. Financial Harm to Harvard-Westlake and Readiness to Proceed with Construction

Real Parties claim that any delay in the Project would cause substantial harm to Harvard-Westlake, its students, and the community, including financial losses of $700,000 per month and delays in providing educational and recreational benefits to the community. They state that Harvard-Westlake is about to begin construction and an injunction would only delay the inevitable.

Petitioners dispute Harvard-Westlake’s claims of financial harm due to Project delays, arguing that these claims are exaggerated and speculative. They contend it is merely “an estimated 4% annualized increase in construction costs, over the whole of the Project, grossly exaggerated by a failed conversion of future expenses into present values.” They also contend that the alleged financial losses do not consider the opportunity cost of investment returns that could be earned during the delay and that any harm is self-inflicted, as the site’s previous income-generating golf course was closed prematurely.

The Court has weighed the claimed financial harm in deciding against stopping all approval- and construction-related activities.

[1] The Court rejects Real Parties’ assertion that they may unilaterally remove 209 trees. The removal of existing trees is an integral component of the Project and the City’s approval of the Project requires mitigation measures for removing the trees. (Pub. Resources Code §21168.9(a)(2) [court may issue “a mandate that the public agency and any real parties in interest suspend any or all project activity or activities . . . that could result in an adverse change or alteration to the physical environment”].)

*Superior Court of California* *County of Los Angeles*
Studio City Residents Association, et al.,	Petitioners,	Case Nos.:	23STCP04483 23STCP04501
v.		Tentative Ruling
City of Los Angeles,	Respondent.
Save Weddington Inc., v. City of Los Angeles,	Petitioner, Respondent.
Harvard-Westlake School, County of Los Angeles, et al.,	Real Parties in Interest.