Judge: Timothy B. Taylor, Case: 37-2023-00008265-CU-TT-CTL, Date: 2023-08-11 Tentative Ruling
SUPERIOR COURT OF CALIFORNIA,
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HALL OF JUSTICE
TENTATIVE RULINGS - August 10, 2023
08/11/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO
JUDICIAL OFFICER:Timothy Taylor
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Civil - Unlimited Toxic Tort/Environmental Demurrer / Motion to Strike 37-2023-00008265-CU-TT-CTL THE PROTECT OUR COMMUNITIES FOUNDATION VS COUNTY OF SAN DIEGO [E-FILE] CAUSAL DOCUMENT/DATE FILED: Demurrer, 06/07/2023
Tentative Ruling on County's Demurrer to the Petition Protect Our Communities Foundation v. County of SD (UC Regents), Case No. 2023-08265 August 11, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.
This CEQA case is one of many filed in San Diego in recent years having to do with local public agency development decisions and a modern day environmental imperative: reduction of greenhouse gas (GHG) emissions.* In this case, petitioner challenges the County's 'decision to implement the County's Regional Decarbonization Framework (RDF) based on a document entitled San Diego Regional Decarbonization Framework Technical Report (Technical Report).' Petitioner claims the Technical Report was produced by RPI the Regents (through the UCSD School of Global Policy and Strategy), and is fatally flawed.
The petition filed in February 2023 alleges violation of CEQA (count 1) and violations of 'Competitive Bidding Mandates' (count 2). Petitioner seeks mandamus relief and attorneys' fees on both counts.
The case first came to the court's attention in April of 2023, upon receipt of the parties' first stipulation regarding the administrative record. ROA 14. The court noticed a CMC, and then re-set it to work around a calendar conflict of counsel for one of the parties. ROA 13, 19-21. At the CMC, the court set a merits hearing for March 1, 2024 after conferring with the parties. ROA 26-27.** Presently, the County demurs to the petition. ROA 30-34. The County contends count 1 under CEQA fails because there is, as a matter of law, no 'project;' and count 2 fails because, as a matter of law, the County is permitted to enter contracts without competitive bidding. Petitioner filed opposition. ROA 39-40, 42-43. The County replied. ROA 44-45. The court has reviewed the papers, and no further submissions are permitted in connection with this demurrer.
2. Applicable Standards.
A. A general demurrer may only be sustained if the complaint fails to state a cause of action under any possible legal theory. Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810. Properly pleaded Calendar No.: Event ID: TENTATIVE RULINGS
2983089 27 CASE NUMBER: CASE TITLE: THE PROTECT OUR COMMUNITIES FOUNDATION VS COUNTY OF SAN 37-2023-00008265-CU-TT-CTL facts must be accepted as true, but not contentions or conclusions of law or fact. Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173. The court's function is limited to testing the legal sufficiency of the complaint, which must be construed with a view to substantial justice between the parties. Fremont Indemnity Co. v. Fremont General Crop. (2007) 148 Cal.App.4th 97, 113; Code Civ.
Proc. § 452.
B. When a public agency is asked to grant regulatory approval of a private activity or proposes to fund or undertake an activity on its own, the agency must first decide whether the proposed activity is subject to CEQA. CEQA Guidelines § 15060(c). This requires the agency to conduct a preliminary review to determine whether the proposed activity constitutes a 'project' for purposes of CEQA. Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1185 ('UMMP'). The CEB treatise Practice Under the California Environmental Quality Act (Kosta and Zischke, 2d Ed. 2019) addresses whether an activity is a 'project' under CEQA in section 4.5. Summarizing the case law, the Public Resources Code, and the CEQA guidelines, the authors note 'two essential elements' to a 'project:' 1. An activity that may cause a direct (or reasonably foreseeable indirect) physical environmental change.
2. An activity directly undertaken by a public agency, an activity supported in whole or in part by it, or an activity the issuance by a public agency of some form of entitlement, permit, or other authorization.
If the proposed activity is found not to be a project, the agency may proceed without further regard to CEQA. UMMP, 7 Cal.5th at 1185-86. If, however, the lead agency concludes it is faced with a project, it must then decide whether the project is exempt from the CEQA review process under either a statutory exemption or a categorical exemption set forth in the CEQA Guidelines. California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 382.
3. Judicial Notice.
The County and petitioner seek (ROA 32) judicial notice of numerous items generally described as 'official' government acts under Evidence Code section 452(c). ROA 32, 42. Courts of appeal review a trial court's ruling regarding a request for judicial notice pursuant to the abuse of discretion standard of review. In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1271. Evidence Code section 453 provides that a trial court must take judicial notice of any matter specified in Evidence Code section 452, upon a party's proper request.
Judicial notice is taken as a requested. However, 'the taking of judicial notice of the official acts of a governmental entity does not in and of itself require acceptance of the truth of factual matters which might be deduced therefrom, since in many instances what is being noticed, and thereby established, is no more than the existence of such acts and not, without supporting evidence, what might factually be associated with or flow therefrom.' Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134.
'[A] court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show.' Fremont Indemnity, supra, 148 Cal.App.4th at 115.
4. Discussion and Rulings.
The demurrer to the petition is overruled.
A. The demurrer to count 1 is overruled.
Sufficient facts have been pled showing that count 1 – which challenges the County's 'decision to implement' the Technical Report – is ripe for judicial review. (See Pet. at ¶¶ 1, 67.) The County's argument to the contrary suggesting that the Technical Report has not yet been implemented is based on facts outside the four corners of the petition and the judicially noticed materials.
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2983089 27 CASE NUMBER: CASE TITLE: THE PROTECT OUR COMMUNITIES FOUNDATION VS COUNTY OF SAN 37-2023-00008265-CU-TT-CTL For similar reasons, the court is unable to conclude on this limited record that the decision to implement the Technical Report is not a 'project' under CEQA as a matter of law. The County's cases are distinguishable as Kaufman & Board-South Bay, Inc. v. Morgan Hill Unified School District was not decided on demurrer and Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150 involved a challenge to the approval of a term sheet that explicitly stated it was not binding.
Finally, it is not clear from the face of the petition that the action is time-barred. '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.' Moseley v. Abrams (1985) 170 Cal.App.3d 355, 359-60.
B. The demurrer to count 2 is overruled. Petitioner alleges that the County has a 'clear, present, and ministerial duty...to ensure all contracts are competitively bid[.]' (Pet. at ¶ 91.) The court must accept this allegation as true. Whether the County was actually required to solicit bids for the UCSD contract is a factual issue that cannot be resolved on demurrer. See Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879 ('A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.').
C. The County must file and serve an answer to the petition by August 21, 2023.
_______________________ *See, e.g., Cleveland Nat'l Forest Assn. v. SANDAG, 231 Cal. App. 4th 1056 (2014), 3 Cal. 5th 497 (2017), and 17 Cal. App. 4th 413 (2017); Sierra Club v. County of SD, 231 Cal. App. 4th 1152 (2014); Golden Door Properties v. County of San Diego, 27 Cal. App. 5th 892 (2018); Sierra Club v. County of San Diego, 50 Cal. App. 5th 467 (2020); McCann v. City of San Diego, 70 Cal. App. 5th 51 (2021).
**Counsel are requested to address at the hearing whether the date set for the merits hearing is consistent with the recent change in the law regarding CEQA cases in the trial courts.
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