Judge: Mitchell L. Beckloff, Case: 22STCP00090, Date: 2022-08-19 Tentative Ruling
Case Number: 22STCP00090 Hearing Date: August 19, 2022 Dept: 86
AIDS Healthcare Foundation v. City of Los Angeles
Case No. 22STCP00090
Hearing Date: August 19, 2022 at 1:30 p.m.
HEARING NOTES
The court provides the following notes to focus the parties’ arguments:
Section 1085 Claim: First Cause of Action
This is a facial challenge to the City’s adoption of Appendix G for thresholds of significance.
On the issue of defective approval pursuant to City Charter section 506, while it appears there is no dispute the City did not publish the Director of Planning’s memorandum of May 2, 2019 (SAR 101) and the mayor did not approve the directive, the court tends to agree with the City that Appendix G is not a rule “of general application to be followed by the public . . . .” as required by Charter section 506.
CEQA directs state agencies to consider environmental damage by project. (Pub. Res. Code § 21000, subd. (g).) CEQA requires “government agencies at all levels to develop standards and procedures necessary to protect environmental quality.” (Id. at § 2001, subd. (f).) CEQA directs public agencies “should not approve” certain projects based on the “significant effects of proposed projects.” (Id. at § 21002.)
While the court recognizes members of the public are affected by the City’s evaluation process, the rule is directed at the City and its evaluation of a proposed project.
On the issue of substantial evidence to support the adoption of Appendix G, the memorandum notes Appendix G serves as “the Department’s CEQA thresholds of significance . . . .” (SAR 101.) CEQA Guidelines section 15064.7, subdivision (b) requires substantial evidence to support the thresholds. The City has not cited any such substantial evidence. It appears Golden Door Properties, LLC v. County of San Diego (2018) 27 Cal.App.5th 892, 904-905 is applicable here. Like Petitioner here, the petition in Golden Door facially challenged a city’s adopt of a guidance document for its threshold of significance. Like the City here, the city in Golden Door argued the guidance document allowed assessment of “on a case-by-case basis.” (Id. at 904.) In contrast, Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099 concerned a project specific challenge to the threshold used by the agency. The court noted it was not required to consider whether the Appendix G questions could be used as thresholds of significance because of the challenge made. (Id. at 1110 n. 5.) In addition, Mission Bay Alliance v. Office of Community Investment and Infrastructure (2016) 6 Cal.App.5th 160, 192-193, the use of Appendix G as a threshold for noise impacts was a project specific challenge where substantial evidence supported the agency’s use of the threshold. (Id. at 194. [“This explanation is entirely reasonable and amply supports the city’s selection of the incremental standard of significance.”]
On the issue of vagueness, the court finds Petitioner’s position unclear. How the City’s adoption of Appendix G is “confusing enough to be vague, and therefore the adoption should be set aside for vagueness” eludes the court. The court requests further explanation.
On the issue of the statute of limitations, the court agrees with Petitioner’s position in reply. Public Resources Code section 21167 addresses project decisions. Guidelines section 15112, subdivision (c)(5) is similar. In addition, Government Code section 65009, subdivision (c)(1) does not appear applicable here. Thus, the statute of limitations defense does not appear helpful to the City.
On the issue of res judicata, the court agrees an as applied challenge vis-à-vis the Project is barred. What precludes Petitioner from asserting a facial challenge under Code of Civil Procedure section 1085?
On the issue of the 2006 Thresholds Guide, it is not entirely clear from Exhibit 1, p. 2 of the Wallraff declaration what agenda item three means. The court agrees it appears the memorandum establishes applicable thresholds, but the 2006 thresholds “guide” is still relevant. Petitioner accurately states the law concerning City Council actions and the director’s decision. Nonetheless, the 2006 thresholds guide appears to be mere guidance. (SAR 460.)
Section 1094.5 Claim: Second Cause of Action
The court repeats what it stated on June 24, 2022 in its tentative decision.
Two proceedings are on the same cause of action if they are based on the same "primary right." (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904.) A plaintiff's primary right is the right to be free from a particular injury, regardless of the legal theory on which liability for the injury is based. (Ibid.) The scope of the primary right therefore depends on how the injury is defined.
A cause of action comprises the plaintiff's primary right, the defendant's corresponding primary duty, and the defendant's wrongful act in breach of that duty. (Ibid.) An injury is defined in part by reference to the set of facts, or the transaction, from which the injury arose. For example, the California Supreme Court has explained a breach of contract gives rise to a single cause of action, for which all remedies must be sought in a single action, even if a particular item of damage has not yet been sustained.
Principles of res judicata apply in CEQA litigation. (Citizens for Open Government, supra, 205 Cal.App.4th at 324.) “Res judicata bars the litigation not only of issues that were actually litigated but also issues that could have been litigated.” (Ibid.)
“A claim in the present proceeding is based on the same primary right if based on the same conditions and facts in existence when the original action was filed.” (Id. at 325.)
In Case No. 22STCP00090, Petitioner raises claims it could have raised in Case No. 19STCP05445—claims based on the facts as they existed when it filed its petition challenging the 2019 EIR. Petitioner’s failure to raise those then existing claims in earlier litigation is an attempt to split the claims. That Petitioner could have raised the issues in the earlier litigation—or raised the issues and the court implicitly rejected them—precludes Petitioner from raising the issues here in this later litigation.
The court finds Petitioner’s claim related to the City’s adoption of Appendix G as the City’s CEQA thresholds for purposes of this project is barred by res judicata. (Pet., ¶ 44. See April 5, 2021 Order at 4-5.) The court also finds Petitioner’s claim Assembly Bill (AB) 32 is irrelevant to the REIR’s threshold analysis barred by res judicata as Petitioner raised the issue in Case No. 19STCP05445, and the court implicitly rejected the claim. (Opening Brief 19STCP05445 12:13.) Finally, the court finds Petitioner’s claims related to Executive Order B-55-18 barred by res judicata because it was already raised in Case No. 19STCP05445, and the court implicitly rejected the claim. (Opening Brief 19STCP05445 12:16.)
As the issues from Case No. 19STCP05445 are now final, res judicata precludes Petitioner from relitigating the issues here.
As to Petitioner’s claims based on the Green New Deal, the court address the substance of the claim in Case No. 19STCP05445 when it considered the City’s return on the writ.
Thus, given the court’s finding certain issues are barred from further litigation by res judicata and the court having addressed the Green New Deal issue in Case No. 19STCP05445, no further project specific issues remain to be adjudicated.