Judge: Maurice A. Leiter, Case: 24STCP04089, Date: 2025-05-28 Tentative Ruling

Case Number: 24STCP04089    Hearing Date: May 28, 2025    Dept: 54

Hearing Date: May 28, 2025

Department 54, Judge Maurice A. Leiter

Demurrer to Petition for Writ of Mandate and Complaint for Injunctive Relief

Moving Party: Respondents City of Long Beach, Port of Long Beach aka Long Beach Harbor Department, Long Beach Board of Harbor Commissioners, and Real Party Ribost Terminal, LLC

Responding Party: Petitioner Communities for a Better Environment

T/R:    Respondents and real party’s DEMURRER is OVERRULED.

            respondents and real party to notice. 

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

            The Court considers the moving papers, opposition, and reply.

BACKGROUND

In August 2019, Real Party applied for a Harbor Development Permit to construct two 25,000-barrel petroleum storage tanks at its Ribost Terminal in the Port of Long Beach to replace underutilized existing tanks. (Petition, ¶ 33.)

A Negative Declaration was initially approved in October 2021, but the City later prepared an EIR in response to opposition from Petitioner and others. (Petition, ¶¶ 35-36). The EIR reaffirmed that the Project would not cause significant environmental impacts under CEQA. On September 23, 2024, the Project was approved and on September 24, 2024, a Notice of Determination (NOD) was posted. (Mot. RJN, Ex. B.)

On October 4, 2024, Petitioner and other organizations filed an administrative appeal. (Mot. RJN, Ex. C.) The City issued the Notice of Appeal which stated that if the City denied the appeal, an amended Notice of Determination would be filed. (Mot. RJN, Ex. C.) On November 19, 2024, the City held a public hearing during which it considered and denied the appeal. On November 20, 2024, an Amended NOD was filed.

On December 16, 2024, Petitioner filed a Petition for Writ of Mandate and Complaint for Injunctive Relief.

REQUEST FOR JUDICIAL NOTICE

            The Court grants Respondents and Real Party’s Request for Judicial Notice as to Exhibits A through E.

The Court grants Petitioner’s Request for Judicial Notice as to Exhibits 1 through 9.

The Court grants Respondents and Real Parties’ Request for Judicial Notice as to Exhibits F through H, submitted in reply.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

The City and Real Party filed a demurrer to the Petition on the grounds that the First Cause of Action under CEQA is time-barred under Public Resources Code § 21167(c) and CEQA Guidelines § 15112(c)(1).

Under CEQA, any lawsuit alleging noncompliance must be filed within 30 days of the filing of a facially valid Notice of Determination. (Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles (2020) 47 Cal.App.5th 368, 378; Pub. Resources Code, § 21167(c); CEQA Guidelines, § 15112(c)(1).) “The exact date of approval of any project is a matter determined by each public agency according to its rules, regulations, and ordinances.” (CEQA Guidelines, § 15352, subd. (a).)

Section 21.21.507.F of the Long Beach Municipal Code provides that: “The filing of an appeal will stay the effect of: (1) the environmental determination; (2) any project approval made pursuant to the environmental determination; and (3) any notice of determination; until the City Council renders a decision on the appeal.” (LBMC, § 21.21.507.F, emphasis added; RJN, Ex. A.)

Respondents and Real Party argue that the Amended NOD filed on November 20, 2024 did not create a new limitations period, but resumed the original 30-day period with 20 days remaining. They argue that under the LBMC, when the City intends an approval to become final only after appeal resolution, it says so explicitly. (see LBMC §§ 18.65.020.A, 15.44.180, 16.43.110, 5.80.040; RJN, Ex. A.) The City made no such declaration here. Rather, the plain language of LBMC § 21.21.507.F governs, and it only provides for a stay, not a reset, of the NOD’s effect.

In opposition, Petitioner argues that under CEQA the statute of limitations to challenge an EIR begins only after a final project approval and the subsequent filing of a valid NOD, pursuant to Public Resources Code section 21152(c)(1) and CEQA Guidelines section 15112(c)(1). A project is not considered “approved” until the agency commits to a definite course of action. (CEQA Guidelines § 15352(a); Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 139.) In this case, Petitioner contends that the final approval did not occur until the City Council denied the administrative appeal on November 19, 2024, not when the Harbor Commission approved the project on September 23, 2024. Petitioner asserts that the final approval occurs after the City Council decides to certify the EIR. This is the legal effect of an appeal, making it unnecessary for section 21.21.507 to specify that the decision is “final unless appealed.” Petitioner asserts that the “stay” provision in LBMC section 21.21.507(F) merely preserves the status quo by preventing premature reliance on the Harbor Commission’s determination while the appeal is pending; it does not operate to toll or trigger the CEQA statute of limitations.

Petitioner argues that the legislative history of Long Beach Municipal Code (LBMC) section 21.21.507 confirms that only the City Council’s final decision on appeal constitutes final project approval that triggers CEQA’s statute of limitations. In 2002, the Legislature amended CEQA to require environmental determinations made by non-elected bodies be subject to appeal to elected decisionmakers. (Pub. Resources Code § 21151(c); CEQA Guidelines § 15090(b), § 15185(b).) In response, the City adopted LBMC § 21.21.507 in 2006 to formalize procedures for such appeals. The ordinance was modeled on a 2004 case in which the City acknowledged that the CEQA limitations period does not begin until the City Council resolves the appeal. In that case, after the Natural Resources Defense Council (NRDC) filed an appeal, the City withdrew a prematurely filed NOD and agreed the statute of limitations had not yet commenced.

Petitioner also asserts that under CEQA and California law a lawsuit cannot be filed until administrative remedies are exhausted. Because CEQA requires decisions by non-elected bodies to be appealable to elected officials (Pub. Resources Code § 21151(c); CEQA Guidelines §§ 15090(b), 15185(b)), and LBMC § 21.21.507 provides such an appeal process, Petitioner could file the petition until the City Council resolved the appeal on November 19, 2024. The Harbor Commission’s EIR certification on September 23 was not final. Filing suit before that point would have violated the exhaustion doctrine. They contend this principle was affirmed in Center for Biological Diversity v. County of San Benito (2024) 104 Cal.App.5th 22, where the court held that the statute of limitations under CEQA does not begin until the elected body acts on an appeal. There, an NOD filed after a non-elected body’s decision was deemed ineffective because the matter was still pending before the Board of Supervisors.

In reply, Respondents and Real Party argue that CEQA Guidelines section 15352(b) states that, for private projects, approval occurs upon the earliest agency commitment to a discretionary action. They contend that commitment occurred on September 23, 2024, when the Harbor Department approved the Project and certified the EIR.

The Court finds that Center for Biological Diversity v. County of San Benito (2024) 104 Cal.App.5th 22 supports Petitioner’s interpretation of the statute of limitations. There, the court held that an NOD filed by a non-elected body did not trigger the CEQA statute of limitations because the project approval was not yet final due to a pending administrative appeal. The relevant county code in that case stated that an approval is only final if no appeal is filed; if an appeal is filed, the project is “deemed not approved” until the Board of Supervisors acts. (Center for Biological Diversity, supra, 104 Cal.App.5th at 38.) Like the instant case, there were two NODs. The court concluded that because the earlier, October 14, 2022 NOD was filed before final approval, it did not trigger CEQA’s 30-day statute of limitations. (Center for Biological Diversity, supra, 104 Cal.App.5th at 38.) The limitations period began on November 10, 2022, when the Board denied the appeals and filed a new NOD. (Id.)

Respondents and Real Party argue that Center for Biological Diversity v. County of San Benito (2024) 104 Cal.App.5th 22, is distinguishable because the local code provisions at issue in that case explicitly stated that approvals were not final until the appeal period expired, or the Board of Supervisors decided. By contrast, LBMC § 21.21.507.F does not include such language; it provides that an appeal merely “stays the effect” of the approval and NOD until the City Council renders a decision. Further, Respondents contend that the exhaustion doctrine concerns in Center for Biological Diversity are not implicated here because the LBMC appeal process merely stays, rather than nullifies, the effect of approval, allowing Petitioners to exhaust administrative remedies without altering the statute of limitations.

The reasoning in Center for Biological Diversity is persuasive and applicable here. CEQA requires a final project approval before the limitations period may commence. The Court finds that under the LBMC rules here the amended NOD constituted the final approval. Although the provision does not use the phrase “deemed not approved,” the practical effect is functionally equivalent: the Harbor Commission’s approval has no legal effect, and cannot be acted on, until the City Council issues a decision. To interpret the stay as suspending only the operative consequences of approval, but not the limitations period tied to the NOD, would undermine CEQA’s purpose and create procedural confusion.

Guerrero v. City of Los Angeles (2024) 98 Cal.App.5th 1087 and Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles (2020) 47 Cal.App.5th 368, relied on by Respondents and Real Party, do not involve administrative appeals or the exhaustion of remedies. In Guerrero, the Planning Commission approved a mitigated negative declaration and filed an NOD, and no appeal was filed. Petitioners sued more than a year later after subsequent project approvals; the court held that the limitations period began with the first NOD. In Westlake, petitioners did not appeal the March 2017 MND and NOD but instead challenged later conditional use permits. The court held that the claim was time-barred because the limitations period started with the original MND. By contrast, this case involves a valid and timely administrative appeal filed pursuant to a local ordinance that expressly requires review by an elected body. Additionally, those cases involved subsequent discretionary approvals, while the City Council’s decision here was the final and only definitive project approval.

The Court finds that the September 24, 2024 NOD was not operative and did not trigger the limitations period. The 30-day statute began to run only after the City Council denied the appeal and filed the Amended NOD on November 20, 2024. Petitioner’s lawsuit filed on December 16, 2024 was timely.

Respondents and Real Party’s demurrer is OVERRULED.