Judge Stephen Morgan, Case 22STCP03796 2023-03-21 Tentative Ruling

This litigation reflects the long-running dispute between Petitioner/Plaintiff City of Los Angeles, acting by and through its Department of Water and Power (the “City”), and Respondents/Defendants Great Basin Unified Control District, Board of Directors of the Great Basin Unified Air Pollution Control District, and Air Pollution Control Officer of the Great Basin Unified Air Pollution Control District (collectively the “District”). The District has jurisdiction over air quality affected by the City’s water diversion. The City has been drawing water from the Owens River for over 100 years. The Owens Lake Bed is now dried, creating large volumes of dust, in particular, the pollutant PM₁₀, a particulate matter 10 microns or less in diameter.

In 2012, the City initiated legal action against the District by filing a verified petition for writ of mandate, and while the matter was under submission pending ruling on the merits, the parties reached a settlement and agreed to entry of a Stipulated Judgment. Pursuant to this agreement, judgment was entered for Respondent District against the City on all causes of action pending in the action. The Stipulated Judgment reads, in pertinent part:

2. Phase 9/10 Project to Implement 2011 and 2012 Supplemental Control Requirement Determinations

A. By December 31, 2017, the City shall construct a dust control project to complete the Phase 9 and Phase 10 dust controls by selecting and installing BACM on 3.62 square miles of areas identified in the 2011 SCRD and 2012 SCRD (collectively referred to as the "Phase 9/1 0" project). The Phase 9/10 project shall bring the total area of the City's dust controls

on the Owens Lake bed to 48.6 square miles. The construction deadline set forth in this paragraph is subject to the Force Majeure and Stipulated Penalties provisions set forth in Paragraphs 14 and 15 below.

A. . . . [T]he District's Air Pollution Control Officer may order the City on or after January 1, 2016 "to implement additional BACM contingency measure controls on up to 4.8 square miles (which need not be contiguous) of the direct Owens Lake bed ("BACM Contingency

Measures"). If the City implements the entire 4.8 square miles of BACM Contingency Measure controls, there will be a total of 53.4 square miles of dust controls on the Owens Lake bed. . .

B. Except for the 4.8 square mile BACM Contingency Measure area and any area re-ordered for control under Paragraph 2.B of this Judgment, the District shall not issue any further orders for mitigation measures to the City under Section 42316 or any other law. . .requiring the City to control windblown dust emissions. . .from any areas on the dried Owens Lake Bed.

Cultural and biological resource protection and mitigation shall be incorporated to the extent feasible as required by law into the design of dust control areas.

The 2014 Stipulated Judgment, Paragraph 15., provides for daily penalties to be calculated for each missed deadline. These stipulated penalties apply only to the failure to meet dust control measure completion deadlines identified in the 2014 Stipulated Judgment and do not "apply to any other notice of violation or enforcement of laws by the District." (Ibid.)

In 2016 the District adopted a State Implementation Plan ("2016 SIP"). The purpose of the 2016 SIP is to:

provide a plan to (1) attain the National Ambient Air Quality Standard (NAAQS) for particulate matter less than 10 microns in diameter (PMI 0) as required by the Clean Air Act (CAA) and its 1990 Amendments and (2) implement the provisions of the 2014 Stipulated Judgment between the Great Basin Unified Air Pollution Control District (GBUAPCD or "District") and the City of Los Angeles ("City") ("2014 Stipulated Judgment") which provides for the continued operation of existing dust control measures and for the implementation of additional control measures in order to attain and maintain

compliance with state and federal air quality standards (City of Los Angeles, et al. v California Air Resources Board, Sacramento County Superior Court, Case No. 34-2013-80001451-CU-WM-GDS)

On July 21, 2021, the District adopted the 2021 Board Order entitled "Order to Implement Dust Control Mitigation in the Sibi Patsiata-wae-tii Cultural Resource Area at Owens Lake" (the "2021 Order"). (Exh. D to First Amended Petition.) The 2021 Order provides that the City is ordered to implement dust control mitigation in the subject area "consistent with the Draft Amended Tribal Recommendations for the Patsiata Cultural Resource Task Force. (Ibid.) The Vegetation Enhancement project is described as:

Portion of Dust Control Area [redacted] where a water line laid on top of the ground would be placed to bring water to the existing vegetation. Critical design elements: (1) ground disturbance will be avoided; (2) a 1000-foot-long water line would be laid on top of ground surface; (3) the water line would have three hose bibs or spigots where hoses can be attached to allow a Tribal crew to water the vegetation; (4) water would be supplied by a trailer parked on the existing berm road. The Tribal crew will monitor any soil movement caused by the watering and inform the Lone Pine Paiute Shoshone Tribal Historic Preservation Officer if any artifacts or features are uncovered.

(Ibid.)

On August 20, 2021, LADWP General Manager Martin Adams submitted a letter to the District’s Air Pollution Control Officer, Phillip Kiddoo. (First Amended Petition ¶ 53.)

On December 7, 2021, the District’s Air Pollution Control Officer, Phillip Kiddoo, wrote an email to Nelson Mejia of LADWP stating that LADWP is required to implement dust control mitigation in the Sibi Patsiata-wae-tü Cultural Resource Area at Owens Lake consistent with the Draft Amended Tribal Recommendations (Recommendation) for the Task Force by the never- before-seen and arbitrary deadline of December 21, 2021. (First Amended Petition, ¶ 54.)

On December 16, 2021, the District issued a Notice to Comply to the City for its failure to comply with the 2021 Order (the “Notice”). (Exh. E to the First Amended Petition.) The letter attached to the Notice states that the District had “no record of any [City] communication or efforts to move the required dust mitigation forward.” (Ibid.) The accompanied Notice states:

CORRECTION DUE DATE: ASAP. Failure to complete the corrective action may result in further enforcement action by the District. If corrective action is not possible by the due date, an extension or variance may be requested by contacting the District. To appeal the issuance of this Notice to Comply, send a written appeal to the APCO within 10 days of receipt of this notice. Specify in detail why you believe these allegations are incorrect and attach a copy of the Notice to Comply and all supporting documentation.

On January 7, 2022, the District issued a Notice of Violation to the City for its failure to comply with the 2021 Order. (Exh. F to the First Amended Petition.) Pursuant to the cover letter accompanying this notice:

The District has considered and rejects [the City's] purported arguments for its failure to comply. As the District has repeatedly and unequivocally stated, [the City's] duty to comply with the law, including the District Orders and the Stipulated Judgment is not voluntary. The District has ordered [the City] to implement control measures consistent with the Draft Tribal Recommendation and has not made its Order contingent upon final recommendations of a tribal council. The District does not and cannot delegate [the City's] duty to comply with laws to protect public health and the environment, and the District's

responsibility to enforce those laws, to any third-party. Authority to require implementation of dust control requirements resides solely with the District.

In addition, [the City's] actions regarding this matter violate the letter and spirit of the 2014 Stipulated Judgment to; 1) prevent disputes between our agencies and 2) prevent dust control implementation delays. The District hereby provides [the City] with notice that it is in violation of the Stipulated Judgment and subject to all remedies available to address that violation.

The Notice of Violation directed the City to comply by March 8, 2022. (Exh. F to the First Amended Petition.)

On March 3, 2022, the City sent a letter to the District about its failure to comply with the terms of the 2014 Stipulated Judgment and 2016 SIP, identifying the deficiencies with the July 2021 Board Order and reiterating the City’s support for a “ ‘Tribally-led project which applied non-BACM to an ECR area, despite the lack of evidence that the areas were emissive.’ ” (First Amended Petition ¶ 64.)

On March 9, 2022, the District issued the Order to Pay to the City, for its “violations and failure to comply with District Governing Board Order 210701-06 and District Notice of Violation 1008.” (Exh. G to the First Amended Petition.) The notice stated that the City had failed to comply with its legal requirements to provide "dust control mitigation of vegetation enhancement in 5 acers of the Phase 7b and Phase 9/10b Sibi Patsiata-wae-tii Cultural Resource Area (0.49 square miles) at Owens Lake" and was ordered to pay stipulated penalties pursuant to the formula provided by Paragraph 15.A. of the 2014 Stipulated Judgment. (Ibid.) The District calculated these penalties as beginning to accme on December 21, 2021 through March 8, 2022 at a rate of $5,545,77 per day. The District calculated the current amount due as being $427,024.29. "Under paragraph 15.B. of the Stipulated Judgment, the City must pay this amount to the District within 90 days of the issuance of this notice (i.e., by June 7, 2022).

On March 16, 2022, the City sent a letter to the District Governing Board in support of the proper development and implementation of a vegetation enhancement project in the Sibi Patsiata-wae-tü area. The City sent the letter in support of the Fort Independence Tribe’s

March 1, 2022 proposal on how best to move forward with the District’s proposed vegetation enhancement project and in response to the District’s Order to Pay. The City’s letter explained that it is “imperative that the District adhere to all applicable requirements and conditions imposed by law for undertaking any dust mitigation measures in ECR areas.” The letter further explained in detail how the District had not done so. Finally and nonetheless, the City confirmed that it “stands ready to work with the District and the Tribes in developing a pilot project at Sibi Patsiata-wae-tü that does not violate the 2016 SIP” but still empowers local tribes to tailor the appropriate vegetation in a manner that preserves and protects the Tribes’ cultural resources. (First Amended Petition ¶ 73.)

The City subsequently filed a Motion to Enforce the 2014 Stipulated Judgment, heard on September 02, 2022, by Judge Chang in the Superior Court of Sacramento and who finalized her ruling on September 27, 2022. (Exh. H to the First Amended Petition.) Judge Chang’s ruling stated that the Motion to Enforce the Stipulated Judgement was denied as “the parties never had a mutual agreement as to the treatment of the deferred area.” (Ibid.)

On October 05, 2022, the District sent the City a letter in which it changed the authority for the 2021 Order and Notice of Violation from the 2014 Stipulated Judgment to section Health and Safety Code § 42316. (Exh. I to the First Amended Petition.) Specifically, the District stated that it “withdraws its Order to Pay stipulated penalties under the Stipulated Judgement, and instead assesses civil penalties against the City under the Health & Safety Code.” (Ibid.)

On October 18, 2022, the City provided mailed written notice of this action to the district pursuant to Public Resources Code §21167.5. (Exh. J to the First Amended Petition [also sent by email].)

There are three cases stemming from disputes between the parties: (1) City of Los Angeles v. California Air Resources Board, et al., Case No. 34-2013-80001451-CU-WM-GDS which led to the 2014 Stipulated Judgment); (2) People of the State of California, et. al v. City of Los Angeles Department of Water and Power, et. al., Sacramento County Superior Court Case No. 34- 2022-00328617-CU-TT-GDS; and (3) this instant action, City of Los Angeles v. Great Basin Unified Air Pollution Control District, et al., Los Angeles County Superior Court Case No. 22STCP03796. This has been presented by the parties to the Court and is not in dispute. To the extent necessary, the Court takes judicial notice of the records of the aforementioned cases under Cal. Evid. Code § 452(d).

On November 10, 2022, a Notice of Related Case was filed by the District, attempting to relate the three cases. “If the related cases are pending in more than one superior court on notice to all parties, the judge to whom the earliest filed case is assigned may confer informally with the parties and with the judges to whom each related case is assigned, to determine the feasibility and desirability of joint discovery orders and other informal or formal means of coordinating proceedings in the cases.” (Cal. Rules of Court, Rule 3.300(h)(2)(A).) Judge Change declined to relate the cases on November 09, 2022.

On December 21, 2022, the City filed its First Amended Petition (“FAP”) along with an Opposition to Demurrer indicating that the Demurrer was now moot. The FAP alleges s causes of action for: (1) Writ of Mandate Pursuant to Code of Civil Procedure section § 1085 (Collateral Estoppel); (2) Order Facially Invalid; (3) Writ of Mandate Pursuant to Code of Civil Procedure section § 1085 (Invalid Order due to Lack of Notice); (4) Writ of Mandate Pursuant to Code of Civil Procedure section § 1085 (Invalid Order Due to Lack of Hearing); (5) Writ of Mandate Pursuant to Code of Civil Procedure section § 1085 (Ultra Vires); (6) Writ of Mandate Pursuant to Code of Civil Procedure section § 1085, or alternatively, Writ of Administrative Mandamus pursuant to Code of Civil Procedure § 1094.5 (Failure to Comply with the 2016 SIP and District Rule 433); (7) Writ of Mandate Pursuant to Code of Civil Procedure section § 1085, or alternatively, Writ of Administrative Mandamus pursuant to Code of Civil Procedure § 1094.5 (Failure to Obtain Concurrence from all of the Owens Lake Tribes); (8) Writ of Mandate Pursuant to Code of Civil Procedure section § 1085, or alternatively, Writ of Administrative Mandamus pursuant to Code of Civil Procedure § 1094.5 (Failure of the District to Comply with CEQA); (9) Equitable Estoppel; (10) Declaratory Relief; and (11) Injunctive Relief.

On January 18, 2023, a case management conference was held. The District, represented by Peter Hsiao (“Hsiao”), indicated that it did not believe that this Court had jurisdiction over the matter and informed the Court that it has brought its own Motion to Enforce the 2014 Stipulated Judgment in hopes of getting this case to the County of Sacramento Superior Court.

On January 27, 2023, Judge Chang heard the District’s Motion to Enforce the 2014 Stipulated Judgment. Judge Chang has took the matter under submission.

On February 21, 2023, a hearing was held on the matter. The Court inquired as to the status of the District’s Motion to Enforce the 2014 Stipulated Judgment. The parties presented that a final ruling had not been issued. As such, the Court continued the hearing to March 21, 2023. The Court allowed supplemental briefs to be filed. The Court imposed a five-page limit. All supplemental briefs were due by March 13, 2023.

Standard for Demurrer – A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v.¿Mirda¿(2007) 147 Cal. App. 4th 740, 747.) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal. App. 4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.¿ (CCP § 430.30(a).)¿A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ (SKF Farms v. Superior Court¿(1984) 153 Cal. App. 3d 902, 905.)¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.¿¿(Id.)¿¿The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.¿ (Hahn,¿supra,¿147 Cal.App.4th at 747.)¿¿¿¿¿¿ ¿¿¿¿¿

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿ Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿ Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.¿¿(Vance v. Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿ A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿¿¿¿¿¿¿ ¿¿¿¿¿¿¿

Pursuant to¿Code Civ. Proc.¿§430.10(e), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.¿ It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿¿¿¿¿¿¿

Evidentiary Objections – The City objects to the eight exhibits attached to the Demurrer in the Decl. of Hsiao. These objections are SUSTAINED as no request for judicial notice was filed.

To the extent that the documents overlap with the FAP, its attached exhibits, and any documents from the three cases stemming from the incident(s) alleged, the Court will consider such documents as they are either already part of the record or the Court has taken judicial notice of them pursuant to Cal. Evid. Code § 452(h).

It appears that the District takes issue with the exhibits that the City has attached in the Declaration of the City’s counsel, Amrit S. Kulkarni (“Kulkarni”), submitted concurrently with the City’s Opposition; however, the District has not filed formal evidentiary objections. (See Reply 3:27-28, 4:1-5.) A demurrer is based solely on the pleadings and facts of which the court takes judicial notice. No extrinsic evidence is allowed. There exists language in cases stating that the court can only look at the “four corners of the pleading.” (See Blank v. Kirwan (1985) 39 Cal. 3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) The pleadings include exhibits that are attached to the complaint and matters that may be judicially noticed. (Ibid.) Accordingly, the Court issues rulings on the City’s exhibits to ensure that they are in line with the legal standard set for a demurrer:

· Exh. 1 [a true and correct copy of the certified transcript of the September 2, 2022 hearing before Judge Chang]: OVERRULED

· Exh. 3 [a true and correct copy of the certified transcript of the January 27, 2023 hearing before Judge Chang]: OVERRULED

Transcripts are subject to judicial notice as a court record (Cal. Evid. Code, § 452(d)) and judicial notice is appropriate here, to show certain words were stated in open court. The Court finds this especially so in this case where it was argued by Hsiao that this Court does not have jurisdiction of this action and the purpose of the January 27, 2023 hearing was to move this action back to the County of Sacramento Superior Court. The tentative ruling does not fall under Cal. Evid. Code § 452(d) as (1) Judge Chang specifically stated in her Minute Order for the January 27, 2023 hearing that the matter was taken under submission and (2) there is no evidence that the tentative ruling has been filed with any court and made a part of the court record.

Judicial Notice – Both parties request judicial notice of the following:

· February 27, 2023 Ruling on Submitted Matter Re: Motion to Enforce the 2014 Stipulated Judgment entered in City of Los Angeles, et al., v. California Air Resource Board, et. al., Sacramento County (Superior Court Case No. 34-2013-80001451-CU-WM-GD);

· March 06, 2023 Minute Order from People of the State of California, et. al v. City of Los Angeles Department of Water and Power, et. al. (Sacramento County Superior Court Case No. 34-2022-00328617-CU-TTGDS); and

· “Reporter’s Transcript of Proceedings” dated February 21, 2023, of the hearing on this matter in Department A-14 of the Los Angeles County Superior Court.

Application – The District demurs to all causes of action for two reasons: (1) failure to state facts sufficient to constitute a cause of action and (2) no jurisdiction of the Court for each cause of action.

The City presents two arguments in its Opposition that are applicable to the District’s arguments in Sections A and B in its Demurrer. They are: (1) the 2014 Stipulated Judgement is inapplicable to the City’s claims due to Judge Chang’s ruling, so the District is estopped from using this argument; and (2) the City did not need to exhaust administrative remedies before the California Air Resources Board (“CARB”) prior to filing as there was no administrative process to which the City could submit its claims and, alternatively, the City has adequately pled that it is excused from appealing to CARB because the remedy is inaccurate. The Court takes the City’s arguments into account while it analyzes the District’s arguments, infra.

The District’s Reply reiterates its arguments that (1) the City cannot dispute that the 2021 District Order was filed under California Health and Safety Code § 42316 (“Section 42316”), (2) the City is bound by its promise in the 2014 Stipulated Judgment to not challenge the 2021 District Order, and (3) the action should be transferred to Sacramento as a neutral county should the Demurrer be overruled. The Court takes the District’s Reply arguments into account while it analyzes the District’s arguments, infra.

First, the District presents that the Court lacks jurisdiction because the City did not first appeal the 2021 District Order to the State Board (i.e., administrative remedies not exhausted). The District cites: “A writ of mandate under [Civ. Proc. Code] Section 1094.5 may be issued to review an administrative agency decision only if that decision is final. This requirement is regarded as an aspect of the exhaustion requirement.” (Bollengier v. Doctors Medical Center (1990) 222 Cal.App.3d 1115, 1125; see also Los Globos Corp. v. City of Los Angeles (2017) 17 Cal.App.5th 627, 632.) Further, the District presents California Water Impact Network v. Newhall County Water District (2008) 161 Cal.App.4th 1464 (“California Water Impact Network”), arguing that its holding shows:

(1) “A decision attains the requisite administrative finality when the agency has exhausted its jurisdiction and possesses ‘no further power to reconsider or rehear the claim . . . Until a public agency makes a final decision, the matter is not ripe for judicial review.” (California Water Impact Network, supra, 161 Cal.App.4th at 1485.)

(2) The Court in California Water Impact Network refused to consider a challenge to an interim determination, a water supply assessment, to be part of the final CEQA determination.

(3) Reasoning for such a rejection presented in the following statement: “Furthermore, there is no indication that the Legislature intended to create an additional layer of judicial review or to provide an additional avenue for judicial intervention in the middle of the EIR process at the behest of any party other than the lead agency.... Under the WSA law framework, the “final” decision for the purposes of writ review occurs only after the lead agency acts-completes its obligations under the WSA and CEQA.” (Ibid. at 1488.)

The District next cites to 42316(b) which explicitly states that the final decision for the purposes of writ review occurs only after the State Board completes its obligations to decide the appeal. The District then goes on to argue that “[a]s shown in the Sacramento Court’s 2014 decision, the City must first appeal the District Order to the State Board, and only after the appeal is determined, may the City file this action for judicial review.” (Demurrer 18:20-23 [no citation provided for the Sacramento Court’s 2014 decision].)

The District disputes the City’s allegations that the authority of the 2021 Board Order was converted from the 2014 Stipulated Judgment to Section 4316 because of the wording in the agreement. The District believes “[t]he Court may find as a matter of law in this demurrer that the statutory authority for all District Orders to the City for air pollution controls at the Owens Lake bed is Section 42316.” (Id. at 19:1-3.)

As to the District’s first argument regarding exhaustion of remedies, the FAP clearly states:

Because the District’s Board did not decide to impose any “measures or fees” on the City through the October 5, 2022 letter, there was no decision for the City to appeal to the California Air Resources Board (“CARB”) pursuant to Health and Safety Code section 42316 and the City was not required to pursue such an appeal.

Because the District’s Board conducted no administrative process, held no hearing, took no public comment, received no evidence, made no decision to issue the October 5, 2022 letter, and made no findings concerning the October 5, 2022 letter, the City had no further administrative remedies to exhaust before CARB. Alternatively, any such attempt at exhausting administrative remedies before CARB would have been futile.

In any event, CARB’s appellate jurisdiction is limited to a determination of whether any measures or fees imposed by the District are adequate under the Health and Safety Code and related air quality laws and regulations. CARB does not have jurisdiction, nor procedures in place, to determine whether the District complied with CEQA in issuing the October 5, 2022 letter.

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿ Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿ Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.¿¿(Vance v. Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿

The City’s allegations regarding the issues surrounding the lack of an appeal, mentioned ante, are accepted as true for the purposes of this Demurrer. The District’s attempt to argue the facts of the FAP are more suited to a motion for summary judgment.

Regarding the District’s argument over the switch in authority, the Stipulated Judgment (1) may be judicially noticed under Cal. Evid. Code § 452(d) and (2) is attached to the FAP as Exhibit A. Paragraph 11.E in the 2014 Stipulated Judgment reads:

The Parties have developed the terms of this Stipulated Judgment with the intention that its provisions will be incorporated into the 2015 SIP Order and are consistent with applicable provisions of federal, state and local law, including Section 42316, including all applicable provisions of federal law regarding attainment of the NAAQS and exceptional events.

The 2021 Board Order and relevant communications between the parties are attached to the FAP as well.

This recommendation is considered a draft until the Tribal Councils of the Lone Pine Paiute Shoshone Tribe, the Fort Independence Tribe, the Shoshone Tribe, the Big Pine Paiute Tribe of the Owens Valley, and the Bishop Paiute Tribe have concurred.

It is alleged that the District approved this order under the Air Pollution Control Office (APCO)’s misconception that all Owen Valley Tribes had concurred when, in reality, only two out of the five Owens Valley Tribes had concurred. (FAP at ¶ 49.)

Based on that, the validity of the 2021 Board Order and any subsequent communication (e.g., notices, orders to pay, etc.) are called into question.

Further, the notices and order to pay attached to the FAP clearly state that the 2021 Board Order and the 2014 Stipulated Judgment are the “Code Sections, Rules, or Regulations” violated. (See FAP, Exh. E, Exh. F, Exh. G.) As mentioned, ante, the 2021 Board Order is questioned and Judge Chang from the Sacramento County Superior Court has clearly ruled:

(3) The parties have vastly divergent interpretations of what the 2014 Stipulated Judgment directs should occur to the Sibi Patsiata wae-tii ECR area that was deferred and is now to be ordered for dust control measures and, because of this, there was no mutual agreement as to how a Phase 9/10 area deferred pursuant to Paragraph 2.B was to be treated once deferral is no longer necessary and the area is ready to be ordered for dust control measure;

(4) The 2014 Stipulated Judgment includes a severability clause and the Sacramento County Superior Court used the clause as a basis to find that the 2014 Stipulated Judgment is unenforceable as to the Sibi Patsiata-wae-ti.i area because of its status as an area that was deferred pursuant to Paragraph 2.B.

Ultimately, the 2014 Stipulated Judgment does not govern the area in question (i.e., the area of project proposed by the 2021 Board Order.)

Following the Sacramento County Superior Court’s September 27, 2022 Order, the District then issued a letter seeking civil remedies under the Health and Safety Code. For clarity, the Court notes that the District assumes that their 2021 Board Order is valid when Judge Chang did not comment on its validity. (See FAP, Exh. H, Exh I.)

The issue before the Court is not whether the statutory authority for all District Orders to the City for air pollution controls at the Owens Lake bed is Section 42316, but whether the 2021 Board Order is a valid order.

Supplemental briefing further supports this Court’s jurisdiction as Judge Talley of the Sacramento County Superior Court ruled that the former Sacramento Case was improperly filed in Sacramento County and transferred that case to Los Angeles County. (RJN, Exh. 2/B at pp. 4-5.)

The District argues that the 2014 Stipulated Judgment prevents the City from appealing its order:

The City obtained its goal, stated in the Stipulated Judgment, to set a limit of 53.4 square miles of the lake bed where it could be ordered to implement control measures. (Complaint ¶ 19, Complaint Ex. A ¶ 3.B.) That is, the goal posts could not move to require the City to control a larger and potentially unlimited area.

In return, the City agreed, and the Sacramento Court ordered, that “the City shall not appeal or contest the APCO’s order for dust controls included in the combined 53.4 square miles now or in the future in any administrative or judicial forum, under any law, statute or legal theory whatsoever including Section 42316.” (Id. at ¶ 2.A.) The City further agreed at Paragraph 13.A, and the Sacramento Court ordered that:

“The Parties stipulate and agree that all terms in the Stipulated Judgment are valid and reasonable under Section 42316 and under any and all other laws. The City waives any challenge to the terms of this Stipulated Judgment and shall not now or in the future challenge or oppose the terms of this Stipulated Judgment in any administrative or judicial forum, under any law, statute or legal theory whatsoever including but limited to Section 42316.”

The Sacramento County Superior Court has held that the issue surrounding this disagreement between the parties does not stem from the 2014 Stipulated Judgement. (FAP, Exh. H.) The issue regarding the lack of appeal has also been addressed, ante. Therefore, this argument is moot.

The District attempts to assert the provisions of Paragraphs 3.A and 3.B of the 2014 Stipulated Judgment on this Demurrer. As the Court mentioned, ante, the legal standard is such that the defects of the FAP must be apparent on the face of the pleading or by proper judicial notice. The FAP provides that the area in question is an area of heightened tribal cultural sensitivity and, as such, the 2014 Stipulated Judgment requires certain prerequisites; further procedures were set out in later state implementation plans, adopted by the District; and these prerequisites and procedures were not met. (See FAP ¶¶ 20, 31, 32-63.) Such an assertion by the District challenges the allegations of the FAP and is not appropriate for this Demurrer.

Supplemental briefing shows that Judge Chang reiterated that the 2014 Stipulated Judgment could not apply to the Sibi Patsiata-wae-tü area and declined to further address specific provisions of the 2014 Stipulated Judgment as to this area. (RJN, Exh. 1/A pp. 2-3.)

Based on the analysis of the District’s arguments in the Demurrer, subdiv. (A)-(B), the Demurrer is OVERRULED. The Court turns next to the District’s argument for transferring venue.

The District requests that this case be transferred to Sacramento County Superior Court should the Court overrule the Demurrer. The District provides the following argument:

· Under California law, where an action is brought by a city against a public agency, either party has a mandatory right to transfer the action to a “neutral” county, where none of the parties are located. (See Cal. Code Civ. Proc. § 394; Dorame v. Superior Court (1978) 81 Cal.App.3d 70, 72.)

· “The District is a multi-county air district comprised of all of Inyo, Mono, and Alpine counties. (Complaint Ex. A, Recital A.) It therefore constitutes a ‘local agency’ within Inyo County under Code of Civil Procedure Section 394. (Westinghouse Electric Corp. v. Superior Court (1976) 17 Cal. 3d. 259, 264-68 (multi-county San Francisco Bay Area Rapid Transit District constitutes a “local agency” within each of its constituent counties).)” (Demurrer 21:8-12.) [1]

· Los Angeles County is not a neutral venue under Cal. Code Civ. Proc. § 394(a) as it is the City’s home county.

· The District believes that the proper venue for this lawsuit is Sacramento County because (1) the State Board’s principal office is located there, (2) the 2014 Stipulated Judgment was issued by the Sacramento Court because that is the proper venue to challenge a District Order, and (3) there are two cases involve the identical

parties and the identical subject matter that are filed in Sacramento County. The District highlights that People of the State of California, et. al v. City of Los Angeles Department of Water and Power, et. al., Sacramento County Superior Court Case No. 34- 2022-00328617-CU-TT-GDS has been deemed complex and cannot be transferred.

An action or proceeding against a county, or city and county, a city, or local agency, may be tried in the county, or city and county, or the county in which the city or local agency is situated, unless the action or proceeding is brought by a county, or city and county, a city, or local agency, in which case it may be tried in any county, or city and county, not a party thereto and in which the city or local agency is not situated.

Whenever an action or proceeding is brought against a county, city and county, city, or local agency, in any county, or city and county, other than the defendant, if the defendant is a county, or city and county, or, if the defendant is a city, or local agency, other than that in which the defendant is situated, the action or proceeding must be, on motion of that defendant, transferred for trial to a county, or city and county, other than that in which the plaintiff, or any of the plaintiffs, resides, or is doing business, or is situated, and other than the plaintiff county, or city and county, or county in which that plaintiff city or local agency is situated, and other than the defendant county, or city and county, or county in which the defendant city or local agency is situated; provided, however, that any action or proceeding against the city, county, city and county, or local agency for injury occurring within the city, county, or city and county, or within the county in which the local agency is situated, to person or property or person and property caused by the negligence or alleged negligence of the city, county, city and county, local agency, or its agents or employees, shall be tried in that county, or city and county, or if a city is a defendant, in the city or in the county in which the city is situated, or if a local agency is a defendant, in the county in which the local agency is situated.

In simpler terms, when a defendant is a local agency, such as here, the action must be transferred upon motion of that defendant unless the action is regarding injury to (1) person or property or (2) to person and property caused by the negligence of that local agency. “The purpose of section 394 ‘ “is to guard against local prejudices which sometimes exist in favor of litigants within a county as against those from without and to secure to both parties to a suit a trial upon neutral grounds.” ’ (Finance & Construction Co. v. Sacramento (1928) 204 Cal. 491, 493 [269 P. 167].) As the statute is remedial in its purpose, it should receive a liberal construction which will promote rather than frustrate the policy behind the law. (Ibid.; City of L. A. v. Pac. Tel. & Tel. Co. (1958) 164 Cal.App.2d 253, 256 [330 P.2d 888].)” (Westinghouse Electric Corp. v. Superior Court of Alameda County (1976) 17 Cal.3d 259, 266.)

The City argues that the Court should reject Sacramento County as a neutral venue as section 394(a) does not give any party the unilateral right to select an allegedly neutral county. Regarding specific arguments brought up by the District in the Demurrer, Subdiv. C, the District presents all arguments fail because:

· CARB is not a party to this action so the location of CARB’s principal office has no bearing on venue for this action;

· Judge Chang declined to relate the cases, so the cases are not formally related and the mere existence of cases in Sacramento County do not dictate that Sacramento County is the proper county;

· The District misstates Cal. Rules of Court as Cal. Rules of Court Rule 3.500(d)(1) only that that Rule for transferring cases does not apply to complex cases, not that complex cases cannot be transferred and complex cases may be coordinated (Rule 3.521) and transferred (Rule 3.543). Further, whether People of the State of California, et. al v. City of Los Angeles Department of Water and Power, et. al., Sacramento County Superior Court Case No. 34- 2022-00328617-CU-TT-GDS can be transferred has no bearing on determining the proper venue of the case.

Finally, the City cites to County of San Bernardino v. Superior Ct. (1994) 30 Cal.App.4th 378, 380 (“County of San Bernardino”) which it presents as:

There the County brought a suit against a city (located within the County of San Bernardino) in the County of Riverside. (Id. at 381.) The city then moved to transfer venue to Los Angeles County based on Code of Civil Procedure section 394. (Id.) The trial court found that it did not have the authority to transfer the case to the moving city’s preferred county, Los Angeles, but instead could transfer the case to San Bernardino, where venue was originally proper and the Court of Appeal upheld that decision. (Id. at 381-382, 389.)

The Court addresses the timing of the motion, though neither party presents it as an issue. The Court elects to do so as a demurrer “constitutes trial upon an issue of law” and, by ruling on the Demurrer, there becomes a question of waiver. (Adams v. Superior Court of Riverside County (1964) 226 Cal.App.2d 365, 367 [“Adams”]; Cooney v. Cooney (1944) 25 Cal.2d 202, 208; City of Pasadena v. Superior Court (1931) 212 Cal. 309, 31.) The District has brought this motion to transfer venue in the alternative. That is, should the Demurrer be overruled, then the District seeks that venue be transferred. Adams addresses this issue directly:

Although section 394 of the Code of Civil Procedure does not prescribe the time within which a party to an action therein designated may move that it be transferred for trial to a neutral county, such a motion must be made within a reasonable time. (Newman v. County of Sonoma, 56 Cal.2d 625, 627-628 [15 Cal.Rptr. 914, 364 P.2d 850].) A hearing upon a demurrer constitutes a trial upon an issue of law (Cooney v. Cooney, 25 Cal.2d 202, 208 [153 P.2d 334]; City of Pasadena v. Superior Court, 212 Cal. 309, 313 [298 P. 664]), and a request for the transfer provided for by that section properly may be made prior to such a hearing. On the other hand, the request in question need not be made at the time a defendant demurs or answers (Mono Power Co. v. City of Los Angeles, 33 Cal.App. 675, 681 [166 P. 387]); may be made after a demurrer has been sustained but before trial of an issue of fact (Daneri v. City of San Diego, 55 Cal.App. 562 [203 P. 829]); but, as noted, must be made within a reasonable time under the circumstances of the particular case. (Newman v. County of Sonoma, supra, 56 Cal.2d 625, 627-628.)

Based on case precedent, the Court must determine whether, under the circumstances of this particular action, the motion to transfer, brought in the alternative, was made within a reasonable time. The Court believes it is as: (1) this case is relatively new at 125 days old; (2) the only substantial filings are the Petition, Demurrer to the Petition, the FAP, and the Demurrer to the FAP; (3) the Demurrer to the Petition, filed on December 09, 2022, also included a transfer of venue in the alternative, but was not heard pursuant to oral stipulation of the parties at the January 18, 2023 case management conference due to the filing of the FAP. Hsiao has also consistently presented to the Court that venue was an issue and that the District was attempting to change venue through motions in the Sacramento County Superior Court. The Court next turns to the merits of the motion.

The District has moved to transfer the action to a neutral county. The law requires that such a motion in these circumstances be granted to protect against local bias. Accordingly, the Court must determine the proper venue.

Case law regarding the selection of a neutral venue gives the Court discretion. (See Adams v. Superior Court of Riverside County (1964) 226 Cal.App.2d 365, 369 [“The selection of a neutral county is a matter lying within the discretion of the court ordering the transfer.”]; County of Nevada v. Phillips (1952) 111 Cal.App.2d 428, 430 [“We construe the foregoing section as providing that an action such as this, brought by a county against defendants who, for aught that appears, are residents of the same county, is properly triable in that county, and that it is only when the defendants or one of them is a resident of another county that the court is obligated to change the place of trial, at least as to such defendant, and that the obligation then is to transfer it, not to a county which may be selected by a nonresident defendant, but to a county, selected by the court, in which none of the defendants is a resident.”].)

The City’s cited case is one in which the selected venue, Riverside County, was wholly improper. County of San Bernardino stated:

This policy encourages transfer to a neutral ground, but it is obvious that such transfers--although often necessary, or at least desirable, to secure an impartial trier of fact--can also involve extra expense and inconvenience to the parties. Thus, the cases construing section 394 as a removal statute permit the action to be brought in a county which is convenient to at least one of the parties (the defendant) and in which, in most cases, evidence and documentation are to be found.

County of San Bernardino, though slightly different from the case at hand, not only gives the trial court discretion to choose a venue promotes a change of venue that is likely to be convenient to at least one party. (See Id. at 389 [“Finally, our construction prevents a plaintiff from unilaterally choosing venue by selecting the neutral county most satisfactory to it; as the court observed in Fitzpatrick v. County of Sonoma, supra, 97 Cal. App. 588, section 394 does not entitle the plaintiff to select any county it likes. By requiring venue to be laid in one of the counties specified under the other venue statutes, we permit the trial court to exercise its discretion not only in choosing a neutral county in light of all factors, including the convenience of both sides, but also with respect to the option of requesting the appointment of a neutral judge.”].)

As the District presents in its Reply, the City does not suggest or oppose any neutral county for the transfer or dispute that Sacramento County is a neutral county.

The Court informed the parties that it would be interested in hearing options for alternative neutral venues at the February 21, 2023 hearing. (RJN, Exh. 3/C pp. 21-22.)

Supplemental briefing provides that the parties are meeting and conferring in order to determine the selection of a neutral venue at this time.

The District’s alternative request to transfer venue is GRANTED. The Court will transfer the case upon the submission of a stipulated neutral venue.

Respondent/Defendant Great Basin Unified Air Pollution Control District, Board of Directors of the Great Basin Unified Air Pollution Control District, Air Pollution Control Officer of the Great Basin Unified Air Pollution Control District’s Demurrer is OVERRULED.

[1] The Court notes that by this logic, the District is not only a local agency within Inyo County, but also Mono, and Alpine Counties based on its presentation that it is “a multi-county air district comprised of all of Inyo, Mono, and Alpine counties.” (Demurrer 21: 8-12.)