Judge Mitchell L. Beckloff, Case Number: 22STCP03909, Date: 2023-11-15 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP03909, Date: 2023-11-15 Tentative Ruling

Real Party in Interest, Tranzito-Vector, LLC (Real Party), demurs to the first and second causes of action in the second amended petition (SAP) for writ of mandate filed by Petitioner, Coalition for a Scenic Los Angeles. Real Party asserts Petitioner’s claims are barred by the applicable statute of limitations.

The court previously sustained a demurrer to the first amended petition (FAP) on July 28, 2023. The court found Petitioner had not sufficiently set forth its legal theory concerning the mayor and final approval of the project. (The court’s July 28, 2023 order is incorporated herein by reference.)

Real Party’s request for judicial notice (RJN) of Exhibits A through E is granted.

As relevant to Respondents’ demurrer, the SAP “challenges the adoption by Respondent City of Los Angeles . . . of a Mitigated Negative Declaration (‘MND’) and related discretionary approvals (together, the ‘Project Approvals’) for the Sidewalk and Transit Amenities Program (‘STAP’ or ‘Project’).” (SAP ¶ 1.) Petitioner alleges the City failed to follow the procedures required by the California Environmental Quality Act (CEQA), Public Resources Code section 21000 et seq., when the City approved the Project and the mitigated negative declaration (MND).[1] (SAP ¶ 1.)

“STAP would be implemented by the Bureau of Street Services (StreetsLA) and would install transit shelters and associated amenities for the City's transit riders, active transportation users, and pedestrians. Approximately 3,583 transit shelters/shade structures and sidewalk amenities would be provided under STAP. Construction of the transit shelters under STAP would occur over a 3-year time span, from 2022-2025 under the most aggressive installation schedule but may occur over a longer period of time upwards of 6 years (2022 to 2028). The City has contracted with its commercial partner, Tranzito-Vector, LLC (hereinafter ‘Vector’), to provide operations and maintenance of the transit shelters for 10 years with 2 potential 5-year extensions. In addition, the City has approved changes to Los Angeles Municipal Code (LAMC) Sections 67.01 and 67.02, which would modify the type of advertising structures allowed in the public right-of-way, a change not needed to effectuate the STAP program. The LAMC changes were introduced in the MND to authorize the consideration of undefined and foreseeable projects in the future. These potentially foreseeable projects are estimated to involve the installation of future advertising displays at approximately 500 sidewalk locations between 2021 and 2023, or as many as 167 sites per year (concurrent with the STAP rollout period), among others.” (SAP ¶ 2.)

“The City of Los Angeles’ approval of the Project and MND for the Project must be vacated because the MND fails to comply with CEQA in a number of important ways, including that the City failed to adopt all feasible mitigation and alternatives for significant impacts. . . . Moreover, the MND is deficient in numerous ways and fails to adequately address and mitigate the significant environmental impacts of the Project.” (SAP ¶ 3.)

“The Los Angeles City Council conducted a hearing to consider the Project (Council Fiel 20-1536-S23) on September 20, 2022 at which it voted on the contract with [Real Party] and the MND.” (SAP ¶ 21.)

“The City Council’s actions were ‘subject to approval of the Mayor’ pursuant to City Charter Section 341. The agenda of the Los Angeles City Council for the hearing date of September 20, 2022 states that Council File 20-1536-S2 (Item 4) was ‘subject to the approval of the Mayor.’[2] The ‘Official Action of the Los Angeles City Council’ for Council File 20-1536-S2 dated September 20, 2022 states that the Project was subject to ‘Charter/Los Angeles Administrative Code Section: 341.’ ” (SAP ¶ 22.)

“The City filed a Notice of Determination [NOD] on September 20, 2022 regarding the City Council’s adoption of the Mitigated Negative Declaration earlier that day. However, at that time, the approval of the Project was not yet final, . . . .” (SAP ¶ 25.)

“The Council File Management System for Council File 20-1536-S2, an official record keeping system of the City Clerk, states: ‘09/27/2022 Council action final.” (SAP ¶ 25.)

“Additionally, the approval of the Project was not final on September 20, 2022 because under Council Rule 51, City Council actions, unless adopted ‘forthwith’ (which the Project was not), do not become final until the next succeeding City Council meeting. The City Council’s next meeting was the following day.” (SAP ¶ 26.)

In its first cause of action, Petitioner alleges the City’s approval of the MND for STAP violated CEQA in various ways. (SAP ¶¶ 51-71.) In its second cause of action, Petitioner alleges the City’s “utilization of the MND for the environmental clearance document for the Ordinance necessarily violates CEQA.” (SAP ¶ 74.)

As noted in earlier proceedings, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civil Proc., § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

“‘A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred.’ [Citations.] It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)

Real Party contends the first and second causes of action are barred by CEQA’s 30-day statute of limitations set forth in Public Resources Code section 21167, subdivision (b):

“An action or proceeding alleging that a public agency has improperly determined whether a project may have a significant effect on the environment shall be commenced within 30 days from the date of the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152.” (Pub. Res. Code, § 21167, subd. (b).)

Real Party argues the 30-day limitations period applies because the City approved a MND for the Project and filed a NOD. (See Memo 3 and Pub. Res. Code, § 21152, subd. (a). See also FAP ¶ [“voted to approve”].) “If a valid NOD has been filed (§§ 21108, subd. (a), 21152, subd. (a)), any challenge to that decision under CEQA must be brought within 30 days, regardless of the nature of the alleged violation.” (Coalition for an Equitable Westlake/Macarthur Park v. City of Los Angeles (2020) 47 Cal.App.5th 368, 378-379 [Westlake].)

Real Party contends the first cause of action is barred by the 30-day statute of limitations because Petitioner filed the action on October 31, 2022, more than 30 days after City adopted the MND and filed the first NOD on September 20, 2022. (Memo 4:4-6.)

The NOD, filed September 20, 2020, advises the City Council approved the Project and MND on September 20, 2022. (See RJN Exh. A.) The NOD “is the limitations trigger under CEQA.” (Organizacion Comunidad De Alviso v. City of San Jose (2021) 60 Cal.App.5th 783, 793.)

A local agency “shall file a notice of determination within five working days after the approval or determination becomes final, with the county clerk . . . .” (Pub. Resources Code, § 21152, subd. (a) [emphasis added].)[3]

“[A]n NOD or NOE [notice of exemption] does not trigger the statute of limitations if it is filed before a decisionmaking body has approved the project.” (Westlake, supra, 47 Cal.App.5th at 379-380.) Thus, an NOD only triggers the statute of limitations where it is facially valid and properly filed. (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 489.) An NOD “does not trigger the statute of limitations if it is filed before a decisionmaking body has approved the project.” (Westlake, supra, 47 Cal.App.5th at 379.)

Thus, to withstand demurrer based on the statute of limitations, Petitioner must allege the City did not finally approve the Project on September 20, 2022, as set forth in the NOD.

Real Party argues Petitioner admitted in the FAP that the City Council “voted to approve” the contract with Real Party, and Petitioner may not retreat from that allegation in its SAP by alleging the City Council “voted on the contract with [Real Party] and the MND.” (SAP ¶ 21. See Memo 1:25-2:5, 10:6-8.) As argued by Petitioner, its allegation in the FAP did not suggest the approval constituted final approval of the project. (Opposition 3 fn. 1.) The allegations in the FAP at paragraph 22 expressly noted any approval of the contract on September 20, 2022 was not a final approval of the project on that day. (See FAP ¶ 22.) Therefore, the court cannot find Petitioner’s new allegations constitute a sham. In fact, despite alleging the City Council “voted to approve” the contract with Real Party in the FAP, Petitioner has consistently alleged the City’s approval of the project on September 20, 2022 was not a final approval for purposes of Public Resources Code section 21152, subdivision (a) and filing an NOD.

Real Party also contends Petitioner’s claims related to section 341 of the Charter and Rule 51 of the Rules of the Los Angeles City Council (Rule 51) are of no consequence because the City Council is “the decision-making body for purposes of CEQA—not the Mayor—and it approved the project and MND on September 20, 2022.” (Memo 2:8-9, 10:21-23.) Real Party argues Petitioner “urges this Court to consider the Mayor, and not the City Council, to be the ‘decision-making body’ for purposes of CEQA.” (Memo 11:4-5.)

As the court understands Petitioner’s argument, Petitioner posits “the City Council deferred the finality of its actions (all of them) until they were approved by the Mayor.” (Opposition 9:9-10.) That is, while the City Council approved the Project by reviewing and approving the MND prior to approving the Project and made certain findings of fact related to CEQA, the finality of the City Council’s approval did not occur until a condition subsequent—the approval by the mayor—occurred. For purposes of this demurrer, nothing suggests the City Council could not expressly condition the finality of its decision on an approval by the mayor.

Given the condition created by the City Council to finality of its approval of the Project, the court need not resolve today whether Charter section 341 and Rule 51 also support Petitioner’s position the first and second causes of action are not time barred.

Without regard to Charter section 341 and/or Rule 51, when the City Council considered the contract and the MND, the City Council voted to adopt certain measures expressly “SUBJECT TO THE APPROVAL OF THE MAYOR.” (Pet. RJN, Ex. 2, p. 5 [all capitals in original].) Thus, the City Council expressly conditioned its approval of the Project upon the affirmative act on the mayor’s approval. That is, the City Council did not rely on Charter section 250, subdivision (c) which requires no affirmative action by the mayor to make an ordinance passed by the City Council effective. By expressly conditioning its approval on the mayor’s approval, the City Council’s September 20, 2022 act was not a final approval of the project—the City Council did not intend for it to be final until the mayor joined in its approval. While the City Council may not have been required to obtain the mayor’s approval for approval of the project because it is the decision-making body for the City, it elected to condition its approval on the mayor’s approval.

Further, that the City Council’s decision of September 20, 2022 was not final that date is further bolstered by the City Clerk’s official records noting the City Council’s approval of the project did not become final until September 27, 2022. (SAP ¶ 25.)

Finally, given the City Council’s expressly conditional approval, the court does not view the mayor’s approval akin to discretionary approvals following a Project’s approval. (Reply 5:20-26.)

Based on the allegations in the SAP, the court cannot find Petitioner’s action is time barred. The demurrer is overruled. Real Party shall file an answer.

[1] For consistency, the court uses the defined terms and abbreviations created by Petitioner herein.

[2] The agenda makes no reference to the City of Los Angeles Charter (Charter) section 341. (Pet. RJN, Ex. 2 p. 5.)

[3] Final approval for purposes of filing an NOD is distinct from the requirement an agency undertake environmental review prior to approving a project. (See Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 134.) (Reply 5:13-19.)