Judge: Stephen I. Goorvitch, Case: 24STCP03966, Date: 2025-04-23 Tentative Ruling

Case Number: 24STCP03966    Hearing Date: April 23, 2025    Dept: 82

Whittier Conservancy                                             Case No. 24STCP03966

v.                                                                     Hearing: April 23, 2025

                                                                        Location: Stanley Mosk Courthouse 82

City of Whittier                                                         Judge: Stephen I. Goorvitch

[Tentative] Order Sustaining Demurrer in Part and Overruling Demurrer in Part

INTRODUCTION  

            The Whittier Conservancy (“Petitioner”) filed this petition and complaint concerning an infrastructure project within the City of Whittier (“Respondent” or the “City”).  Petitioner asserts four causes of action: (1) A violation of the California Environmental Quality Act (“CEQA”),

(2) Violations of planning and zoning law, (3) Violation of certain sections of the Whittier Municipal Code, and (4) Declaratory relief.  The City demurs to each cause of action.  The court overrules the demurrer to the first cause of action.  The court sustains the demurrer to the remaining causes of action with leave to amend. 

PETITIONER’S ALLEGATIONS  

A.        The Uptown Whittier Specific Plan – November 2008

The City adopted the Uptown Whittier Specific Plan (“UWSP”) in November 2008.  (Petition (“Pet.”) ¶ 17.)  The UWSP “covers approximately 185 acres and 35 city blocks” and “was adopted to update the development standards, design guidelines and other requirements and specifications contained for the Uptown Whittier Specific Plan area.”  (Id. ¶ 18.)  In 2008, the City certified an environmental impact report (the “EIR”) that analyzed the impacts associated with the UWSP.  (Id. ¶ 33.)  Petitioner did not challenge the EIR.  (See generally Pet.) 

B.        The Uptown Whittier Streetscape Beautification Plan – 2019

            In 2019, the City adopted the Uptown Whittier Streetscape Beautification Plan (“the 2019 Plan” or “Streetscape Beautification Plan”) to “implement” the requirements of the UWSP “for a tree succession plan and streetscape improvements on Greenleaf Avenue.”  (Id. ¶ 3.)  In 2019, the City adopted a mitigated negative declaration (“MND”) for the 2019 Plan.  (Id. ¶¶ 4, 45, 66.)  The City found in the MND that “the Streetscape Beautification project would not result in any new negative impacts or require new mitigation measures.”  (Id. ¶ 45.)  Petitioner did not challenge the MND.  (See generally Pet.) 

C.        The Addendum to the Streetscape Beautification Plan – December 2023

In December 2023, “the City presented an amendment to the Streetscape Beautification Plan, dubbed the Greenleaf Promenade Amendment, that removes all trees lining Greenleaf Avenue at the same time, as well as the historic street lights along this corridor” (the “Addendum,” or the “2023 Greenleaf Promenade Amendment”).  (Id. ¶ 4.)  The Amendment also “expanded the scope of the project from one block to three blocks.”  (Ibid.)  The City “approved this plan change based upon an addendum to the negative declaration adopted for the Streetscape Beautification Plan, claiming there were no additional impacts to address” (the “Addendum”).  (Ibid.; see also City’s RJN Exh. F.)  The Addendum was approved on December 12, 2023, and a “Notice of Determination” was recorded on December 14, 2023.  (See City’s RJN Exh. A.)  Petitioner did not challenge the Addendum.  (See generally Pet.)

D.        The 2024 Revised Greenleaf Promenade Amendment Project – June 18, 2024  

            Petitioner alleges that there were changes to the 2023 Greenleaf Promenade Amendment based upon concerns from the community:

Once it was discovered that the 2023 Greenleaf Promenade Amendment project provided for the clear cutting of all the existing mature Ficus and other trees and removal of Greenleaf Avenue’s iconic tree canopy instead of a succession and phased replacement plan, community members were outraged. Recognizing the substantial community opposition to their hasty decision, the City Council began holding a series of study sessions in 2024 to address the public’s concerns and refine the plan in an attempt to mitigate impacts.

(Id. ¶ 67.)  The City held study sessions on February 20, 2024, and April 30, 2024, at which many topics were discussed related to the proposed removal of trees on Greenleaf Avenue as part of the Uptown Whittier Beautification project.  (Id. ¶¶ 67-74.)  In response, “the City Council directed Staff to agendize another future meeting to discuss additional information pertaining to the Greenleaf Promenade project, including options for 72-inch box trees, a phased approach to the project, and shade options.”  (Id. ¶ 75.) 

“At the June 18, 2024 City Council meeting, several significant changes to the Greenleaf Promenade Amendment, and thus to the Streetscape Beautification Plan, were proposed.”  (Id. ¶ 77.)  Specifically, the “City staff proposed the use of shade cloth structures along the historic Greenleaf corridor for the first time at the June 18, 2024 meeting as a means of mitigating the heat impacts that would result from the removal of all trees at once, and the loss of the tree canopy that would eliminate shade and result in aesthetic impacts.”  (Id. ¶ 78.)  “During these proceedings, the City also indicated for the first time that it would not be sending the issue of the replacement of historic streetlights to the City’s Historic Resources Commission for consideration or require a condition of approval.”  (Id. ¶ 79.) 

These changes were approved on June 18, 2024.  “[T]he City Council voted 3-1 to revise the Greenleaf Promenade Amendment project, approving additional amendments including: 72-inch box replacement trees, shade structures within the three-block stretch of Greenleaf Avenue, and the inclusion of a block-by-block phasing option in the bid specifications for the project.”  (Id. ¶ 80.)  Petitioner refers to this approval as the “2024 Revised Greenleaf Promenade Amendment Project.”  (Ibid.)  Petitioner alleges that the City “has not posted a Notice of Determination [under CEQA] for the June 18, 2024 approval of the Revised Greenleaf Promenade Amendment Project.”  (Id. ¶ 81.) 

E.         Petition for Writ of Mandate

In the first cause of action, Petitioner challenges the 2024 Revised Greenleaf Promenade Amendment Project on multiple grounds under CEQA, including that the City failed to prepare any environmental review and the City’s approval of the project “lacks the necessary clarity regarding the description of the project that was actually approved.”  (Id. ¶¶ 106-108; see also Id. ¶¶ 109-143 [discussing adverse environmental impacts from the project related to historic resources, aesthetics, land use, greenhouse gas, and urban heat island].)  In addition, Petitioner alleges that “the City has disclosed that the replacement of the water main on Greenleaf Avenue and the realignment and upgrading of storm drains on this street and its cross streets are a driving force behind the tree removals along Greenleaf Avenue, and would need to be completed as part of any streetscape updates.”  (Id. ¶ 9; see also Id. ¶¶ 82-96.)  Petitioner alleges that the City violated CEQA when it “improperly segmented approval of those components from the remainder of the 2024 Revised Greenleaf Promenade Amendment Project and has yet to conduct environmental review of those actions.”  (Id. ¶¶ 9, 108.)

In the second and third causes of action, Petitioner alleges violations of the City’s planning and zoning law and municipal code.  The fourth cause of action seeks declaratory relief.  Where relevant, the allegations of the second, third, and fourth causes of action are set forth below. 

LEGAL STANDARD

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.) The allegations in the petition must be liberally construed in favor of Petitioner on demurrer.  (See Mobil Oil Corp. v Exxon Corp. (1986) 177 Cal.App.3d 942, 947.)  “A demurrer must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.”  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

EVIDENTIARY ISSUES

            The City requests judicial notice of Exhibits A through F.  Petitioner requests judicial notice of Exhibits A through I.  Neither party objects to the other’s request for judicial notice.  Both requests are granted under Evidence Code section 452(c). 

DISCUSSION

A.        The Court Will Hear the Demurrer

As an initial matter, Petitioner argues that the demurrer is untimely because it was filed four days after the stipulated deadline.  The court has discretion to consider an untimely demurrer, and Petitioner had ample time to oppose the demurrer on the merits.

B.        First Cause of Action – Violation of CEQA

The City contends that the first cause of action is barred by the statute of limitations in Public Resources Code section 21167(e) because it was filed more than 30 days after the City recorded the notice of determination for approval of the Addendum on December 14, 2023.  (Dem. 4; see City’s RJN Exh. 4.)  However, Petitioner is challenging the 2024 Revised Greenleaf Promenade Amendment Project, which was approved on June 18, 2024.  This is clear from the petition:

[T]he City failed to prepare any environmental review of the 2024 Revised Greenleaf Promenade Amendment Project prior to project approval on June 18, 2024. . . .  Moreover, the City’s approval of the 2024 Revised Greenleaf Promenade Amendment Project lacks the necessary clarity regarding the description of the project that was actually approved, in violation of CEQA.  Further, the water main replacement and storm drain realignment components, and analysis of the impacts of these components, has been improperly segmented from the Revised Project.  The City has violated CEQA by failing to prepare any environmental review for the 2024 Revised Greenleaf Promenade Amendment Project.  Additionally, had the City done so, the information provided regarding the 2024 Revised Greenleaf Promenade Amendment Project is inadequate for purposes of CEQA. 

(Pet. ¶¶ 106-110.)  Petitioner argues that the City did not issue a Notice of Determination or a Notice of Exemption for that project.  (See Oppo. 9.)  The City’s request for judicial notice contains neither notice.  (See generally City’s RJN.) 

            The City argues that its approval of the 2024 Revised Greenleaf Promenade Amendment Project is not subject to CEQA because it was not a discretionary decision and merely implemented the previously-approved project.  “CEQA review is triggered only when a public agency makes a discretionary decision to approve or carry out a project.”  (Martis Camp Community Association v. County of Placer (2020) 53 Cal.App.5th 569, 604.)  “Activities undertaken to implement a previously approved project do not trigger further environmental review.”  (Ibid.)  Under CEQA, a “discretionary project” is defined as:

[A] project which requires the exercise of judgment or deliberation when the public agency or body decides to approve or disapprove a particular activity, as distinguished from situations where the public agency or body merely has to determine whether there

has been conformity with applicable statutes, ordinances, regulations, or other fixed standards. 

(14 Cal. Code of Regs. § 15357.)  This is a high burden on demurrer: “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. 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, citations and internal quotation marks omitted.)  The City cannot satisfy this burden based upon allegations in the petition suggesting that discretionary decisions were made on June 18, 2024:

·       “At the June 18, 2024 City Council meeting, several significant changes to the Greenleaf Promenade Amendment, and thus to the Streetscape Beautification Plan, were proposed.”  (Pet. ¶ 77 [emphasis added].) 

·       “City staff proposed the use of shade cloth structures along the historic Greenleaf corridor for the first time at the June 18, 2024 meeting as a means of mitigating the heat impacts that would result from the removal of all trees at once, and the loss of the tree canopy that would eliminate shade and result in aesthetic impacts.”  (Id. ¶ 78.) 

·       “During these proceedings, the City also indicated for the first time that it would not be sending the issue of the replacement of historic streetlights to the City’s Historic Resources Commission for consideration or require a condition of approval.”  (Id. ¶ 79.) 

·       “On June 18, 2024, the City Council voted 3-1 to revise the Greenleaf Promenade Amendment project, approving additional amendments including: 72-inch box replacement trees, shade structures within the three-block stretch of Greenleaf Avenue, and the inclusion of a block-by-block phasing option in the bid specifications for the project.”  (Id. ¶ 80 [emphasis added].) 

Moreover, the transcript of the City Council meeting of June 18, 2024, supports Petitioner’s allegations.  At the meeting, staff presented a PowerPoint with recommended revisions to the 2023 Greenleaf Promenade Amendment. (Pet. RJN, Exh. D at 33, 44, 52-62.) In deliberations, Councilmember Pacheco identified that the Council was being asked to make a decision whether to “modify the plan from December 12.” (Pet. Exh. E at 178.)  Councilmember Warner stated her support for staff’s recommendation “to modify the project.” (Id. at 181-182) The Council voted three to one to approve the modifications.  (Id. at 182-183.) 

The court has considered the City’s remaining CEQA arguments and finds them unpersuasive for purposes of this demurrer.  The City demurred to the first cause of action based solely on the alleged “untimeliness” of the petition.  (Notice of Dem. 2:27 and Dem. 3-11.)  Moreover, contrary to the City’s assertions, the court cannot determine from the face of the petition, and without reviewing the administrative record, whether the City approved a “change” in the project on June 18, 2024.  (See Dem. 7-11.)  Nor can the court assess the merits of Petitioner’s CEQA claims, including under CEQA’s subsequent review provisions, without reviewing the administrative record.  (See Ibid.)  Therefore, the demurrer is overruled with respect to the first cause of action. 

C.        Second Cause of Action – Violations of Planning and Zoning Law

Petitioner alleges that the 2024 Revised Greenleaf Promenade Amendment Project fails to comply with the UWSP in two ways.  First, Petitioner contends that it does not comply with a “mandatory” provision in the UWSP stating that the City will “[c]ommence intensive planting of trees around the periphery of Uptown prior to commencing the tree succession plan on Philadelphia and Greenleaf.”  (Pet. ¶ 150.)  Petitioner relies on section 3.1.2 of the UWSP.  (Ibid.)  However, as the City argues, section 3.1.2 of the UWSP does not mandate that the phases of the project occur as specified.  (Dem. 11.)  Rather, the introductory paragraph of section 3.1.2 states:

A general sequencing of the various items is indicated by the order in which they appear within each phase. Many implementation measures may occur simultaneously and appear in sequence for organizational purposes alone. Adjustments to this strategy are inevitable and subject to the needs and priorities of the community over time. These components should be reevaluated and updated annually.

(City’s RJN Exh. D [emphasis added].)  This language shows intent for the various phases to be discretionary, not mandatory, and for the City to have authority to make “adjustments” to the order in which the measures are implemented.  Furthermore, Petitioner relies on phase 1 from section 3.1.2, which is to be implemented over a period of “1 month – 1 year.”  Petitioner does not allege that the City has commenced the tree succession plan on Philadelphia and Greenleaf.  Thus, even if section 3.1.2 could be interpreted as imposing mandatory requirements, the claim is not yet ripe. 

Second, Petitioner contends that it is “inconsistent” with a provision in the UWSP requiring the City to “[i]mplement the street plan, including the tree succession plan on Greenleaf and Philadelphia, and intense tree-planting on all other streets.”  (Id. ¶ 151.)  Petitioner simply alleges that the 2024 Revised Greenleaf Promenade Amendment Project is “inconsistent” with the UWSP.  (Pet. ¶ 151.)  This is a legal conclusion that the court does not accept as true for purposes of demurrer.  (Van de Kamps Coalition v. Board of Trustees of Los Angeles Community College Dist. (2012) 206 Cal. App. 4th 1036, 1045.)  To state a cause of action, Petitioner must allege, with particularity, how the 2024 Revised Greenleaf Promenade Amendment Project conflicts with non-discretionary requirements of the UWSP.  (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439 [“claims against public entities be specifically pleaded”].)  Although Petitioner cites section 3.1.1.E in the petition, it is unclear on which part Petitioner is relying and why this section creates a mandatory duty that has been violated.    

The demurrer to the second cause of action is sustained.  The court need not reach the City’s remaining arguments for this cause of action.  

D.        Third Cause of Action – Violations of Whittier Municipal Code

The third cause of action makes two claims.  First, Petitioner alleges that “[t]he 2024 Revised Greenleaf Promenade Amendment Project would remove, replace, and/or relocate historic street lamps on Greenleaf Avenue” and “[t]he inclusion of shade cloth structures in the 2024 Revised Greenleaf Promenade Amendment Project could also result in physical alterations to historic buildings and street lamps lining Greenleaf Avenue.”  (Pet. ¶ 156.)  Despite this, “the City announced that it does not intend to provide Historic Resources Commission review or require a certificate of appropriateness for the 2024 Revised Greenleaf Promenade Amendment Project components that would impact historic resources.”  (Ibid.)  Petitioner alleges that these actions would violate Whittier Municipal Code section 18.84.150.A, which requires a certificate of appropriateness for any “[a]lteration, addition, restoration, rehabilitation, remodeling, demolition or relocation of a historic resource.”  (Id. ¶ 154.)

Second, Petitioner alleges that Whittier Municipal Code requires “issuance of a permit for the removal of any street trees in the City” and that such permit must comply with the requirements of the City’s Parkway Tree Manual, including the preparation of tree reports analyzing “whether the tree removal is necessary or can be mitigated.”  (Id. ¶ 157.)  Petitioner alleges:

The 2024 Revised Greenleaf Promenade Amendment Project does not provide for the preparation of the required tree reports and other tree removal prerequisites. The City stated that tree reports will eventually be prepared, but it has approved the Project without them. As such, implementation of the 2024 Revised Greenleaf Promenade Amendment Project would violate the City’s Tree Ordinance. 

(Id. ¶ 158.) 

The City contends that, for various reasons, Petitioner has not stated sufficient facts to support these claims.  (Dem. 12-13.)  The court agrees, in part, with the City’s contentions.

Petitioner has not sufficiently alleged that the 2024 Revised Greenleaf Promenade Amendment Project conflicts with chapter 18.84, Historic Resources, of the Whittier Municipal Code.  Section 18.84.040 defines “historic resource” as “any improvement, historic landmark or district, or other object of cultural, architectural or historical significance to the citizens of the city, the region, the state or the nation, which is designated or eligible for designation and determined to be appropriate for historic preservation by the commission, or by the council upon appeal, pursuant to the provisions of this chapter.”  (Pet. RJN Exh. H [emphasis added].)  “A certificate of appropriateness process is established to ensure that any alteration to a historic resource is in keeping with the historic character of the resource.”  (Id. § 18.84.150.)  The Addendum explains:

While the project site is adjacent to the Hadley Greenleaf Historic District and there are four identified historic resources within the project site (Former Wardman Theatre, Hoover Hotel, Former First National Bank and Bank of America, and National Trust and Savings Bank), all proposed activities and streetscape improvements (e.g., lighting fixtures, pedestrian seating, and monuments) would occur within the right-of-way; no structures or building facades, historic or otherwise, would be improved under the proposed project.

(City’s RJN Exh. F at 38.)  Petitioner implies that certain “street lamps” on Greenleaf Avenue are “historic resources” subject to section 18.84.040 and for which a certificate of appropriateness must issue.  (Pet. ¶¶ 155-156.)  Petitioner also alleges that the shade cloth structures “could” result in physical alterations to certain unspecified “historic buildings.”  (Ibid.)  Given the language in the Addendum quoted above, and the definition of “historic resource” in section 18.84.040, Petitioner does not allege sufficient facts to support such claims.  To allege a violation of chapter 18.84, Petitioner must allege facts showing that the street lamps and unspecified buildings are historic resources within the meaning of section 18.84.040 or could be designated as such.

Petitioner also has not alleged sufficient facts to support its claim that the 2024 Revised Greenleaf Promenade Amendment Project conflicts with the City’s Parkway Tree Manual.  The Addendum states that “a tree removal permit application must be submitted to and approved by the City prior to the removal of any street trees; the reason for removal must meet one of the justifications listed in the City’s Parkway Tree Manual.”  (City’s RJN Exh. F at 35.)  Petitioner has not alleged any reason to believe that the City will not comply with these requirements for the 2024 Revised Greenleaf Promenade Amendment Project.  (Pet. ¶ 157.)  Petitioner has not cited any authority that the City needed to prepare a tree report at the time it approved the 2024 Revised Greenleaf Promenade Amendment Project.  (Pet. ¶ 158.) 

The demurrer to the third cause of action is sustained. The court need not reach the City’s remaining arguments for this cause of action.  

E.         Fourth Cause of Action – Declaratory Relief

In the fourth cause of action, Petitioner alleges that a judicial declaration “is necessary and appropriate at this time in order that the parties ascertain their rights and obligations with respect to the City’s obligations under CEQA, the City’s Municipal Code, and Planning and Zoning Law.”  (Pet. ¶ 162.) 

Petitioner has an adequate remedy in its first cause of action for its claims that City failed to comply with the CEQA.  (See General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470-471; Hood v. Sup.Ct. (1995) 33 Cal.App.4th 319, 324.)  Furthermore, “[i]t is settled that an action for declaratory relief is not appropriate to review an administrative decision.”  (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 154-155.) 

The remainder of the fourth cause of action is derivative of the second and third causes of action, which are not adequately pleaded for the reasons stated above.  “Where a trial court has concluded the plaintiff did not state sufficient facts to support a statutory claim and therefore sustained a demurrer as to that claim, a demurrer is also properly sustained as to a claim for declaratory relief which is ‘wholly derivative’ of the statutory claim.”  (Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 800.) 

The demurrer to the fourth cause of action is sustained. 

F.         Leave to Amend

A demurrer may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  Courts generally allow at least one time to amend a complaint after sustaining a demurrer.  (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303.)  In assessing whether leave to amend should be granted, the burden is on the complainant to show the court that a pleading can be amended successfully.  (Goodman v.  Kennedy (1976) 18 Cal.3d 335, 348-349.) 

This is the court’s first ruling on a demurrer to the petition, and Petitioner has shown sufficient probability of successful amendment.  Accordingly, the demurrer to the second, third, and fourth causes of action is sustained with leave to amend. 

CONCLUSION AND ORDER 

            Based upon the foregoing, the court orders as follows:

            1.         The demurrer to the first cause of action is overruled.

            2.         The demurrer to the second, third, and fourth causes of action is sustained with leave to amend.

            3.         Petitioner shall file a first amended complaint on or before May 9, 2025.    

            4.         The court advances and continues the case management conference to May 14, 2025, at 9:30 a.m.

            5.         Counsel for the City shall provide notice and file proof of service with the court. 

IT IS SO ORDERED

Dated: April 23, 2025                                                 ______________________

                                                                                    Stephen I. Goorvitch

                                                                                    Superior Court Judge