Taxpayers for Responsible Land Use v. City of San Diego CA4/1

Filed 3/30/21 Taxpayers for Responsible Land Use v. City of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TAXPAYERS FOR RESPONSIBLE D075587
LAND USE,

Plaintiff and Appellant,
(Super. Ct. No. 37-2017-
00042558-CU-TT-CTL)
v.

CITY OF SAN DIEGO,

Defendant and Respondent,

HILLEL OF SAN DIEGO,

Real Party in Interest and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County,
Timothy B. Taylor, Judge. Affirmed.

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 The Law Office of Julie M. Hamilton and Julie M. Hamilton for
Plaintiff and Appellant.

Office of the City Attorney, Jenny K. Goodman, Deputy City Attorney,
for Defendant and Respondent.

Cooley, Steven M. Strauss, Summer J. Wynn, and Barrett J. Anderson
for Real Party in Interest and Respondent.

Taxpayers for Responsible Land Use (Taxpayers) appeals a judgment
denying its petition for writ of mandate that challenged the approval by the
City of San Diego (City) of a site development permit (SDP) and the final
environmental impact report (EIR) for the construction of a religious center
for Jewish students by Hillel of San Diego (Hillel) to be known as the Hillel
Center for Jewish Life (Project). The center will be located on land adjacent
to the University of California San Diego (UCSD) campus. On appeal,
Taxpayers primarily contends: (1) substantial evidence does not support the
City’s approval of the SDP because it does not require the Project to have the
minimum number of off-street parking spaces mandated by City ordinances;
(2) the EIR for the Project did not comply with the California Environmental
Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) because it did not
discuss a potentially relevant amendment to the City’s neighborhood land-
use plan adopted after the notice of preparation (NOP) of the EIR was
published; and (3) the judge was biased against Taxpayers, depriving it of a
fair trial. Finding none of these contentions persuasive, we affirm the
judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, Hillel purchased from the City a triangular-shaped parcel of
undeveloped land, known as Site 653, consisting of 15,341 square feet. The

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lot is located across the street from the southerly boundary of the UCSD
campus at the intersections of La Jolla Village Drive, La Jolla Scenic Drive
North, and La Jolla Scenic Way. Site 653 is part of a single-family
residential zone in the La Jolla Shores Planned District (LJSPD) within the
La Jolla Community Plan. At the time of the purchase, the San Diego

Municipal Code1 allowed buildings used primarily for religious purposes
within single-family zones. Hillel planned to develop Site 653, along with an
adjacent right-of-way (ROW) to be vacated by the City in conjunction with the
purchase, as a Jewish student center.

In 2006, after the City approved Hillel’s proposed development—along
with the sale of Site 653, the ROW vacation, and a mitigated negative
declaration for that proposed development—Taxpayers filed a petition for
writ of mandate challenging those approvals. The trial court granted the
petition in part, finding there was a fair argument that the proposed
development may have significant impacts on the environment, and denied it
in part, finding the City’s sale of the land was proper. On appeal, we
modified the judgment to require the City to prepare an EIR for the proposed
development and affirmed the judgment in all other respects. (Taxpayers for
Responsible Land Use v. City of San Diego (D052084, Feb. 18, 2009) [nonpub.
opn.].)

On October 8, 2010, following our 2009 opinion, the City published a
notice of preparation (NOP) of an EIR for the Project. On July 28, 2011,
Hillel’s application for the Project was complete. In the final version of the
Project as described in the EIR, Hillel’s development of Site 653 would be

1 All code references are to the San Diego Municipal Code (SDMC) unless
otherwise specified.

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reduced from its original size of about 13,000 square feet to 6,479 square feet
divided among three separate buildings facing a central outdoor courtyard.
The Project’s three buildings are: (1) a 3,682 square-foot two-story central
building; (2) a 984 square-foot one-story library/chapel building; and (3) a
1,813 square-foot professional leadership building. Based on Hillel’s
historical programming and future plans, the religious activities at the
Project will typically consist of small weekday gatherings for study groups,
classes, lectures, meetings, professional staff activities, and periodic events.
In general, about 10 to 50 people are expected to visit the Project at any one
time. Occupancy will normally be limited to 100 people, but there may be up
to eight special events per year with 100 to 150 attendees and another four
special events per year with greater than 150 attendees.

The Project includes a surface parking lot with 27 parking spaces. To
meet the transportation and parking demands of the 12 special events per
year, Hillel adopted a transportation demand and parking management plan
(Transportation Plan) that encourages alternate modes of transportation
(e.g., walking or bicycling) and provides for off-site parking and a shuttle
service.

As the lead agency for the Project under CEQA, the City prepared a
draft EIR, which was circulated for public review and comment during 2012
and 2013. In March 2017, the City completed and circulated the final EIR for
the Project, which included its responses to 78 comment letters. The final
EIR concluded that the Project, as described above, would not result in any
significant unmitigated impacts on the environment.

The City’s Planning Commission approved the Project the following
month. At a public session in October, the City Council heard testimony from

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City staff and members of the public. It then voted unanimously to approve
the Project, grant the SDP, approve the ROW vacation, and certify the final
EIR as compliant with CEQA. A few days later, the City filed a notice of
determination regarding the City Council’s certification of the EIR.

In November 2017, Taxpayers filed a petition for writ of mandate
challenging the City’s approvals of the Project, the SDP, and ROW vacation,
and its certification of the EIR. After previously granting Hillel’s motion for
judgment on the pleadings as to the petition’s constitutional claims, the trial

court entered a judgment of dismissal as to those claims in August 2018.2
Roughly three months later, after considering the parties’ briefs and oral
arguments, the court issued a minute order denying the petition as to its
remaining claims, concluding that Taxpayers “failed to carry its burden” of
establishing that the City abused its discretion in approving the Project. In
particular, the court found that “the City’s findings in approving the SDP . . .
were supported by substantial evidence.” It further determined that the EIR
was “sufficient as an informational document,” the City “proceeded in a
manner required by law,” and that the determinations in the EIR were

supported by substantial evidence.3

Judgment was entered on November 21, 2018.

2 Taxpayers does not appeal that judgment.

3 To avoid repetition, the court’s specific analysis of, and findings
regarding, the petition’s SDP and CEQA claims are discussed in more detail
below.
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 DISCUSSION

A. Approval of the Site Development Plan

Taxpayers contends the trial court erred by denying its second
amended petition for writ of mandate because substantial evidence does not
support the City’s approval of the SDP. In particular, Taxpayers argues the
SDP does not ensure that the Project has the minimum number of off-street
parking spaces required by City ordinances.

1. Supplemental Facts Regarding Parking

The EIR prepared by the City describes the Project’s parking spaces
and the Transportation Plan, concluding that the Project complies with City
parking requirements. Section 4.2.4.1(a) of the EIR describes the Project’s
parking impacts on the environment, stating:
“[A] monthly program guide was provided by [Hillel]
indicating the dates and times of the events to be held at
the [Project] (see EIR Section 3.4.2.1(a)). It is expected,
with limited exception[s], that programs to be held at the
site will have between 10 and 50 attendees; however, a
conservative approach to the parking demand analyses is
based on a total of up to 100 visitors to the facility during
peak hours. It is also expected that Hillel would employ 7
full-time staff members.”
The EIR explained that “[c]urrently, no specific parking minimum or
maximum requirements exist for this type of facility in the City’s Municipal
Code (see Chapter 14, Article 2, Division 5).” Although the student center
“would be used for religious purposes, it is not a church or place of religious
assembly as defined in the Municipal Code (i.e., there are no pews or
permanent seats for services; see Municipal Code Table 142-05G, Parking
Ratios for Specified Non-Residential Uses).” So consistent with City and
industry standards, the City deemed it appropriate “to estimate parking

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demand based on information for existing comparable facilities.” It did so
based on “the types of events/programs to be held at the facility, the amount
of people expected to attend these events, the staff needed to serve the
facility, survey data of existing UCSD Hillel student members, and survey
and statistical data gathered from other similar Hillel facilities in
California.”

In addition to the City’s conclusion that no specific Municipal Code
parking requirements apply to the Project, section 3.3.1.1 of the EIR noted
that Hillel requested a “deviation from [potentially applicable] parking
regulations” in Municipal Code Table 142-05G, to provide a total of 27
parking spaces. Echoing the reasoning it employed to conclude that Table
142-05G did not apply, the EIR explained that the proposed deviation was
appropriate because the Project will not be a traditional place of “religious
assembly” and “does not propose pews, permanent seats for services, or
assembly area.”

Estimating parking needs using the alternative approach, the EIR
evaluated the adequacy of proposed parking “based on data compiled from
surveys of other existing Hillel facilities throughout California.” Section
3.4.2.1(c) describes the results of those surveys. While the average parking
ratio for the surveyed California Hillel facilities was 1.9 parking spaces per
1,000 square feet of gross floor area, the Project proposed a parking ratio of
3.7 parking spaces per 1,000 square feet of gross floor area. Also, a survey of
115 students who attend UCSD Hillel-related activities showed that 80
percent would walk to the Project and, of the 20 percent who would arrive by
car, one-half would carpool. Therefore, if 100 students were to visit the
Project, only 20 students would arrive by car, with 10 students driving there
alone and 10 students carpooling there (i.e., 2 students in each of 5 cars).

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The EIR concluded: “Under these assumptions, the parking demand would
be 15 parking spaces [for visitors]. Assuming all seven staff members are on-
site at one time and each drove individually, an additional seven spaces
would be required for a total of 22 spaces. The [P]roject proposes 27 spaces.
[¶] Therefore, through the approval of the parking deviation request based
on the number of parking spaces proposed, it can be concluded that the
[P]roject is providing adequate parking.” (Italics added.)

Section 4.2.4.1(a) of the EIR discussed parking demand for special
events at the Project, stating:
“On limited occasions (see Section 3.4.2.1(a)) attendance at
[Project] events could exceed the daily maximum of 100
visitors triggering the [P]roject’s [Transportation Plan]
(Appendix B-2; . . . ). It is anticipated that up to eight times
per year, [o]ccasional special event occupancy could be
between 100 and 150 attendees, and up to four times per
year occupancy could be greater than 150. At no time
would occupancy of the facility be allowed to exceed its
maximum under the applicable code.”
The Traffic Impact Analysis (TIA) (Exhibit B) and the Transportation
Plan (Exhibit B-2), both of which were prepared by an engineering firm, were
attached to the EIR. In particular, section 15.1 of the TIA described the
survey of 115 UCSD students (as discussed above) who attend Hillel-related
activities, leading to its conclusion that 15 parking spaces would be needed
for attendees. When the additional seven spaces needed for staff were added
to the 15 spaces for attendees, the TIA concluded that a total of 22 parking
spaces were needed for the Project, which number was “well below the 27
spaces proposed” for the Project. Section 15.2 reported the results of surveys
of comparable Hillel facilities at UCLA, UCSB, and CSU Northridge and
concluded: “Based on the information for these similar California university
Hillel facilities, it can be reasonably estimated that the 27 parking spaces
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proposed for the [Project] will more than adequately serve the project site.”
Section 15.3 calculated that the average parking supply rate for the United
States Hillel centers it surveyed was 1.2 parking spaces per 1,000 square feet
and for the California Hillel centers was 1.9 parking spaces per 1,000 square
feet. Because the Project will provide 3.7 parking spaces per 1,000 square
feet, the TIA concluded that parking ratio “would support the assumption
that the 27 spaces at the [Project] would adequately serve the facility.”

Pursuant to SDMC section 142.0540(c), Hillel elected to submit a 10-
page Transportation Plan (Exhibit B-2 attached to the EIR) to provide for
transportation and parking during special events held at the Project. It states
that the Transportation Plan “shall be adopted as a condition of the [SDP].”
Noting that the Project would host up to eight special events per year with
100 to 150 attendees and up to four special events per year with 150 to 220
attendees, the Plan provides that “[s]tudents will be encouraged to walk,

bike, use the existing UCSD shuttle and buses, and carpool to the facility.”4
Hillel agreed to educate all of its visitors about transportation options by
distributing flyers and posting website information on alternative modes of
transportation, locations of off-site parking, parking permit regulations, and
recommendations for pedestrian arrival and departure. For special events at
the Project, Hillel will include a shuttle route map as well as pick-up and
drop-off times. During larger special events with more than 175 attendees,
Hillel committed to provide: (1) 13 off-site parking spaces; (2) a shuttle
service between the Project and any off-site parking locations that are at

4 While stating there would be up to four special events per year with
150 to 220 attendees, the Transportation Plan nevertheless stated that
special events at the Project would have a maximum occupancy of 220 people
per the applicable building code.

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least one-third of a mile from the Project; and (3) staff at both the Project and

those off-site parking locations.5 At least three weeks before any special
event exceeding 100 attendees, Hillel will notify neighbors of the upcoming
event and its parking accommodations.

The Transportation Plan also incorporates monitoring of parking and
performing of post-occupancy surveys, reviews, and modifications. In
particular, Hillel will survey on-street parking during the first three years of
the Project’s operations. and provide a means for community feedback. For
the first three years, Hillel will provide the City with an annual monitoring
report discussing its implementation of the Transportation Plan. It will also
prepare post-occupancy evaluations confirming actual parking demand at the
Project and whether there is any adverse impact on the neighborhood. The
Plan further provides that if these evaluations show a need for additional off-
site parking for special events, Hillel must secure such additional parking
spaces as City staff requires. Section 4.2.4.2(a) of the EIR concluded: “Based
on the calculated parking need, [the Project] would provide adequate parking
for the facility. Therefore, impacts to parking would be less than significant.”
(Italics added.)

In denying Taxpayer’s second amended petition, the trial court found
that the City’s findings in approving the SDP were supported by substantial
evidence in the administrative record. Regarding the SDP, the court stated
in part:

5 If the off-site parking locations are within one-third mile of the Project,
no shuttle service would be provided to those locations as they are considered
to be within a walkable distance.

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 “[S]ubstantial evidence supports the City’s findings that
the Project will comply with the Land Development Code
Regulations. . . . [¶] [T]he Parking Ratio Table 142-05G
[citations], identified by [Taxpayers] as providing the
parking ratio for ‘churches and places of religious assembly’
is inapplicable. . . . (Parking Table 142-05G provides for a
parking ratio of ‘1 space per 3 seats; or 1 per 60 inches of
[pew] space; or 30 per 1,000 square feet of assembly area if
seating is not fixed’ for ‘churches and places of religious
assembly’). The Project ‘does not propose pews, permanent
seats for services or assembly area.’ [Citations.] As such,
the parking ratio in Parking Table 142-05G is inapplicable.
And the City’s interpretation and application of the SDMC
(parking ratio) is entitled to ‘significant deference.’ ”
The court concluded that substantial evidence supported the City’s
finding that the Project would provide adequate parking for both daily use
and occasional special events. It relied on the fact that the Project
incorporated 27 parking spaces, which amounted to a five-space surplus
above the projected need for daily use with a 100-person occupancy limit. As
for the occasional special event that might exceed 100 attendees (limited to
12 times per year), the court concluded that Hillel properly “exercised its
option under SDMC 142.0540(c) to vary from the minimum parking
requirements by implementing the [Transportation Plan]” and that there was
“substantial evidence that the [Transportation Plan] complies with the
SDMC.” The court specifically rejected Taxpayer’s argument, based on
SDMC 142.0540(c)(5), that Hillel was required to provide for the future
construction or expansion of a parking facility. In the court’s view, this
argument “disregards the administrative record that supports the City’s
finding that the parking will be sufficient.” Moreover, “it was not
unreasonable for the City to conclude that it does not make sense to require
Hillel to construct a ‘parking facility’ for the approximate 12 occasional

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special events (more than 100 people) that will activate the [Transportation
Plan].”

2. Applicable Legal Principles

In an administrative mandate action under Code of Civil Procedure
section 1094.5, the reviewing court—whether trial or appellate—examines
the decision of an agency acting in an adjudicatory capacity to determine
whether it abused its discretion. (Environmental Protection Information
Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459,
478-479; Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1235-
1236.) “ ‘Abuse of discretion is established if the respondent [agency] has not
proceeded in the manner required by law, the order or decision is not
supported by the findings, or the findings are not supported by the evidence.’
([Code Civ. Proc., § 1094.5, subd. (b)]; [citation].)” (Sierra Club, at p. 1236.)
“In determining whether the agency complied with the required procedures
and whether the agency’s findings are supported by substantial evidence, the
trial court and the appellate courts essentially perform identical roles.”
(Environmental Protection Information Center, at p. 479.) Our review is de
novo, and we accord no deference to the trial court’s conclusions. (Ibid.)

“In applying the substantial evidence standard, ‘the reviewing court
must resolve reasonable doubts in favor of the administrative finding and
decision.’ [Citation.]” (Laurel Heights Improvement Assn. v. Regents of
University of California (1988) 47 Cal.3d 376, 393 (Laurel Heights
Improvement Assn.).) Because the agency is the finder of fact, we draw all
reasonable inferences from the evidence to support the agency’s
determinations and resolve all conflicts in the evidence in favor of its

12
decision. (California Native Plant Society v. City of Santa Cruz (2009) 177
Cal.App.4th 957, 985 (California Native Plant Society).)

However, when an issue raises a pure question of law, such as
interpretation of an ordinance or other law, we review that issue
independently. (Doe v. Westmont College (2019) 34 Cal.App.5th 622, 634.)
Nevertheless, we give considerable deference to an agency’s interpretation of
its own ordinance and uphold that interpretation unless there is no
reasonable foundation for it. (MHC Operating Limited Partnership v. City of
San Jose (2003) 106 Cal.App.4th 204, 219-220 (MHC Operating Limited
Partnership).) In particular, an agency’s finding that a specific project is
consistent with its land development plan is “fundamentally adjudicatory.”
(Orange Citizens for Parks & Recreation v. Superior Court (2016) 2 Cal.5th
141, 154-155.) As a result, we must defer to that finding unless no
reasonable person could have reached the same conclusion. (Ibid.) In such
circumstances, the agency has unique competence to interpret its policies
when applying them in an adjudicatory capacity. (Id. at p. 155; cf.
Harrington v. City of Davis (2017) 16 Cal.App.5th 420, 438 [city’s
construction of its building code is entitled to significant deference]; City of
Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1091 [city’s
interpretation of its own code is entitled to deference].)

3. The City Properly Approved the SDP

Taxpayers asserts that the trial court erred in upholding the City’s
approval of the Project’s SDP because there was insufficient evidence in the
administrative record to support a finding that the Project complied with

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applicable parking ordinances.6 In so arguing, it asserts we should
independently review the City’s findings regarding the SDP because the
evidence is “undisputed.” However, we independently review only the City’s
interpretations of its ordinances, and even then we defer to its reasonable
interpretations. (Doe v. Westmont College, supra, 34 Cal.App.5th at p. 634;
MHC Operating Limited Partnership, supra, 106 Cal.App.4th at pp. 219-220;
Harrington v. City of Davis, supra, 16 Cal.App.5th at p. 438.) As to factual
issues, even if the foundational evidence were undisputed, we must still draw
all reasonable inferences from the evidence to support the City’s findings.
(See California Native Plant Society, supra, 177 Cal.App.4th at p. 985.)

a. On-site daily use parking spaces

Taxpayers argues there is insufficient evidence to support the City’s
finding that the number of on-site parking spaces complied with the City’s
applicable parking ordinances. In particular, Taxpayers contends that
section 142.0530(c) and its Table 142-05G applied to require more than the
27 on-site parking spaces for daily use at the Hillel student center.

6 The City and Hillel argue that Taxpayers waived this contention on
appeal because its opening brief did not set forth all the material evidence on
this issue, instead merely citing the evidence that supports its position. (See,
e.g., Citizens for a Megaplex-Free Alameda v. City of Alameda (2007) 149
Cal.App.4th 91, 112-113; Defend the Bay v. City of Irvine (2004) 119
Cal.App.4th 1261, 1266; California Native Plant Society v. City of Rancho
Cordova (2009) 172 Cal.App.4th 603, 626.) Although Taxpayers’ opening
brief appears to deemphasize—if not wholly omit—some of the relevant
evidence that supports the City’s findings regarding the SDP, we decline to
conclude that Taxpayers waived this contention and instead proceed to
address its merits.

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 At the outset we note that although section 142.0530 was amended in
2015, it is the pre-2015 version of the ordinance that applies to the Project

because Hillel’s development application was completed in 2011.7 At that
time, as it does now, section 142.0530(c) and its associated Table 142-05G
provided parking requirements for certain types of specified nonresidential
uses. In 2011, the only potentially applicable parking requirements in the

table were for “Churches and places of religious assembly.”8 If this provision
applied, the specified parking minimum would be 85 percent of a number
calculated as “1 per 3 seats; or 1 per 60 inches of . . . pew [space]; or 30 per
1,000 square feet of assembly area if seating is not fixed.”

As previously noted, in its EIR the City concluded that Table 142-05G
did not apply to the Project because “it is not a church or place of religious
assembly as defined in the Municipal Code (i.e., there are no pews or
permanent seats for services; see Municipal Code Table 142-05G, Parking
Ratios for Specified Non-Residential Uses).” Giving significant deference to
the City’s reasonable interpretation of section 142.0530 and Table 142-05G,

7 The trial court granted Taxpayers’ request for judicial notice of the
current versions of section 142.0530 and Table 142-05G, as well as their
former versions that applied at the time of Hillel’s application for the SDP.
The 2015 amendment to section 142.0530 expressly provided a “grandfather
clause” for permit applications completed before the amendment’s effective
date. Section 49 of the City Council’s Ordinance No. O-20481 enacted on May
5, 2015 specified: “[N]o permits shall be issued for development that is
inconsistent with the provisions of this Ordinance unless complete
applications for such permits are submitted to the City prior to the date on
which the applicable provisions of this Ordinance become effective . . . .”

8 After the 2015 amendment, places of religious assembly were no longer
listed as a special category. Instead, a new and broader category—“All other
assembly and entertainment”—was created.
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we conclude based on our independent review of those provisions that the
specific parking ratios in the table did not apply to the Project. (MHC
Operating Limited Partnership, supra, 106 Cal.App.4th at pp. 219-220;
Orange Citizens for Parks & Recreation v. Superior Court, supra, 2 Cal.5th at
pp. 154-155; Harrington v. City of Davis, supra, 16 Cal.App.5th at p. 438; City
of Monterey v. Carrnshimba, supra, 215 Cal.App.4th at p. 1091.) The EIR
described the religious activities to be conducted at the Project as typically
consisting of small weekday gatherings for study groups, classes, lectures,
meetings, professional staff activities, and periodic events. About 10 to 50
people are expected to visit at any one time. In general, occupancy will be
limited to 100 people, but there may be up to eight special events per year
with 100 to 150 attendees and up to four special events per year with 150 to
220 attendees. There is nothing in the EIR’s description of activities or
events at the Project that indicates the center will conduct any “religious

assemblies” as that term is generally understood.9 Furthermore, the fact

9 In its reply brief, Taxpayers argue for the first time that the Project’s
parking spaces did not comply with section 142.0530(f), which provides:
“Unspecified Uses. For uses not addressed by Tables 142-05E, 142-05F, and
142-05G[,] the required off-street parking spaces are the same as that
required for similar uses. The City Manager shall determine if uses are
similar.” However, because Taxpayers did not raise this argument in the
trial court or in its opening appellant’s brief, we conclude it has been forfeited
and cannot be raised belatedly in the reply brief. (High Sierra Rural Alliance
v. County of Plumas (2018) 29 Cal.App.5th 102, 111, fn.2; SCI California
Funeral Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549,
573, fn. 18; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685;
Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; American Drug Stores,
Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [“Points raised for the first
time in a reply brief will ordinarily not be considered, because such
consideration would deprive the respondent of an opportunity to counter the
argument.”].) In any event, we conclude the City Council could reasonably
conclude that the 27 parking spaces comply with section 142.0530(f) because
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that the City may have previously applied Table 142-05G to the 2006 version
of Hillel’s proposed project did not preclude it from subsequently concluding
that the Table does not apply to the Project. Taxpayers does not cite any case
or other authority in support of its contrary argument.

In any event, even assuming that the 2015 versions of section
142.0530(c) and Table 142-05G applied to the Project, the City Council
approved a “deviation” from those parking requirements and instead required
parking spaces based on the Project’s specific needs. Section 3.3.1.1 of the
EIR stated that Hillel requested a “deviation from parking regulations,
Municipal Code Table 142-05G,” which “would provide a total of 27 parking
spaces” as discussed in sections 4.1.3.1 and 4.2.4.1 of the EIR. Section
3.4.2.1(c) of the EIR explained that the reasons for allowing a deviation were
much the same as those that suggested the inapplicability of Table 142-05G:

“[The table] identifies parking requirements for ‘[c]hurches
and places of religious assembly.’ This category of use
considers the parking needs associated with gatherings of
large numbers of people at the same time. This is
demonstrated by the units of measure being ‘seats,’ ‘pew
space,’ and/or ‘assembly area.’ The day-to-day activities are
not used as traditional assembly areas. The project does
not propose pews, permanent seats for services, or
assembly area. A Parking Deviation Request is proposed
(see Final EIR Section 3.3). The deviation would allow the
[P]roject to provide parking based on the specific needs of
the facility as determined by existing comparable facilities.”

they were calculated based on the Project’s actual parking needs as shown by
the TIA’s analysis of parking provided at comparable Hillel facilities, which
could be construed as “similar uses” within the meaning of section
142.0530(f).

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Based on the TIA’s surveys of comparable Hillel facilities, the EIR concluded:
“The [P]roject proposes 27 spaces. [¶] Therefore, through the approval of the
parking deviation request based on the number of parking spaces proposed, it
can be concluded that the [P]roject is providing adequate parking.”

Thus, even to the extent that former section 142.0530(c) and Table 142-
05G might apply, the City Council exercised its discretion to grant Hillel a
deviation from those parking requirements and instead allowed it to provide
parking spaces for the Project based on its specific needs as calculated in the
TIA. Taxpayers does not assert, much less show, that the City Council did
not have the discretion to grant such a deviation or that it abused its
discretion by doing so. Accordingly, we presume the City Council acted
properly in granting a deviation for the Project and allowing Hillel to
calculate its parking space needs through surveys and a review of comparable
Hillel facilities.

If Taxpayers means to assert that the surveys of Hillel facilities at
similar institutions and other data used to calculate the Project’s daily use
parking needs are unreliable or inadequate, it misconstrues and/or
misapplies the substantial evidence standard of review. (Laurel Heights
Improvement Assn., supra, 47 Cal.3d at p. 393; California Native Plant
Society, supra, 177 Cal.App.4th at p. 985.) In particular, Taxpayers argues
the surveys of Hillel’s student members should have been conducted by a
third party rather than Hillel. But it makes no attempt to show that this
purported procedural deficiency caused substantial inaccuracies in the
outcome of those surveys or resulted in a significantly lower number of
parking spaces calculated for the Project’s parking needs.

18
 Taxpayers also complains that the surveys were conducted in 2010,
which was seven years before the SDP and final EIR for the Project were
approved. It argues that since 2010, the student population at UCSD
increased by 15 percent and the J. Craig Venter Institute opened nearby,
increasing overall demand for parking in the vicinity. The challenged
surveys were conducted near the time of the NOP and shortly before the
development application was deemed complete in 2011. Taxpayers cites no
authority that would require Hillel or the City to conduct new or updated
student surveys simply because there was an extended process under CEQA
from the initial publication of the NOP until the City Council’s approvals of
the SDP and the final EIR. Nor does it show that this purported temporal
deficiency caused material inaccuracies in the results of those surveys or
resulted in erroneous calculations for the Project’s parking needs. In fact, the
TIA concluded the Project’s daily parking needs required 22 parking spaces.
The Project will have 27 parking spaces, providing five additional parking
spaces in excess of its required 22 parking spaces. Taxpayers would have to
demonstrate there is reason to believe that had Hillel or the City conducted
student surveys closer in time to the final EIR, the number of required
parking spaces for the Project’s daily needs would have exceeded 27 parking
spaces. It has not done so.

Finally, Taxpayers challenges the adequacy of the surveys of
comparable Hillel facilities (e.g., at UCLA, UCSB, and CSU Northridge),

citing an opinion of Robert Kahn, its expert engineer.10 But the fact that

10 Taxpayers’ opening brief includes a quote from Kahn’s letter, which
states: “A parking evaluation needs to be based upon actual empirical data
and parking surveys from at least three (3) similar facilities. The parking
utilization studies should not only count vehicles parked at the parking lot of
these facilities, but also along the adjoining roadways and streets for vehicles
19
Taxpayers’ expert may have disagreed with how Hillel’s expert engineering
firm produced the calculations for parking space needs does not mean there is
insufficient evidence to support the City Council’s finding—implicit in its
approval of the SDP and the final EIR—that the Project’s 27 parking spaces
will meet its daily parking requirements. (Laurel Heights Improvement
Assn., supra, 47 Cal.3d at p. 393; California Native Plant Society, supra, 177
Cal.App.4th at p. 985; cf. Better Alternatives for Neighborhoods v. Heyman
(1989) 212 Cal.App.3d 663, 672 [contrary opinion of opponent’s expert “does
not render the opinions of the [agency’s] experts insubstantial”].)

b. Special Event Parking and the Transportation Plan

Taxpayers also asserts that even if the surveys and other studies in the
TIA provide substantial evidence to support a finding that 27 on-site parking
spaces meet the Project’s daily use needs, the Transportation Plan’s
provisions for the Project’s occasional special events do not comply with
applicable sections of the San Diego Municipal Code. In particular,
Taxpayers argues that Table 142-05G requires that the Project provide one
space for every three people at its maximum capacity (i.e., 220 people), or a
total of 73 parking spaces. As we have already discussed, however, the 2011
version of Table 142-05G does not apply because the Project is not a church or
place of religious assembly and does not provide any seats, pews, or assembly
areas. Furthermore, to the extent that table applied to the Project, the City
Council approved a deviation from the parking space ratios, permitting

that are utilizing the Hillel facility. In any case, any of the visitors may be
parking along the adjacent street using the center, these need to be
accounted for in the parking utilization study.”

20
parking requirements to be calculated based on comparable Hillel facilities
(i.e., per the TIA).

Specifically with regard to transportation and parking needs for the
occasional special events to be held at the Project (up to 12 events per year),
the EIR included the Transportation Plan (Exhibit B-2), which was approved
pursuant to section 142.0540(c) as an alternative to any other parking

ordinances that would otherwise apply.11 It requires that Hillel provide 13
additional off-site parking spaces when it holds special events with more than
175 attendees and a shuttle service between the Project and any off-site
parking locations that are at least one-third of a mile from the center. This
represents a reasonable way to address parking needs for the occasional
unusual event.

Focusing on the 13 off-site parking spaces required for special events,
Taxpayers claims the Transportation Plan violates section 142.0535(b)
because it does not provide any off-site parking within 600 feet of the

Project.12 However, the record on appeal includes a map showing there is an

11 Section 142.0540(c) permits a variance from minimum parking
requirements with the approval of a Transportation Demand Management
(TDM) Plan, subject (among other things) to the requirement that “the
number of automobile parking spaces provided [not] be less than 85 percent
of the minimum that would otherwise be required.” (SDMC § 142.0540(c)(3).)
But because Table 142-05G does not apply to the Project, Taxpayers cannot
rely on it to argue that the otherwise minimum number of parking spaces for
special events should be one-third of 220, the building code occupancy limit.

12 Section 142.0535 provides that “[r]equired off-street parking spaces for
[non-residential] uses” may be located off-premises as long as “[s]ome portion
of the off-premises parking shall be within a non-residential zone and within
a 600-foot horizontal distance of the premises on which the use requiring off-
21
adjacent UCSD parking lot that is within 596 feet of the Project.
Furthermore, Taxpayers concedes that off-site parking could be available at
the J. Craig Venter Institute, which is also within 600 feet of the Project.
Therefore, there is substantial evidence to support the City’s finding that
section 142.0535(b)’s requirements were satisfied.

We thus reject Taxpayer’s proffered interpretations of the relevant
parking ordinances, as well as its argument that there is insufficient
evidence to support the City Council’s findings that the Project’s 27 on-site
parking spaces and the Transportation Plan comply with the parking
ordinances and satisfy the Project’s parking needs. Accordingly, we conclude
the City acted properly in approving the SDP for the Project.

B. Compliance with CEQA

Taxpayers asserts that the EIR for the Project did not comply with
CEQA because it failed to analyze an inconsistency between the Project and
current zoning requirements created by an amendment to the City’s land-use
plan for the LJSPD that was adopted five years after the NOP was published
in 2010. The 2015 amendment deleted the former provision that allowed
buildings primarily used for religious purposes in single-family residential
zones.

1. Applicable Legal Principles

The standards for assessing the adequacy of an EIR are well settled.
“The basic purpose of an EIR is to ‘provide public agencies and the public in
general with detailed information about the effect [that] a proposed project is

street parking spaces is located . . . .” (Original emphasis omitted; new
emphasis added.)
22
likely to have on the environment; to list ways in which the significant effects
of such a project might be minimized; and to indicate alternatives to such a
project.’ ” (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 511.) To
make an assessment of any significant adverse effects a project is likely to
have on the physical environment, “an EIR must delineate environmental
conditions prevailing absent the project, defining a [‘]baseline[’] against
which predicted effects can be described and quantified.” (Neighbors for
Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th
439, 447 (Neighbors for Smart Rail).)

The CEQA guidelines provide that “[a]n EIR must include a description
of the physical environmental conditions in the vicinity of the project. This
environmental setting will normally constitute the baseline physical
conditions by which a lead agency determines whether an impact [of a
proposed project] is significant. . . . (1) Generally the lead agency should
describe physical environmental conditions as they exist at the time the notice
of preparation [NOP] is published . . . .” (Cal. Code Regs., tit. 14, § 15125,

subd. (a), italics added.13) Furthermore, an EIR must “discuss any
inconsistencies between the proposed project and applicable general plans,
specific plans and regional plans.” (Guidelines, § 15125, subd. (d).) “Where a
proposed project is compared with an adopted plan, the analysis shall
examine the existing physical conditions at the time the notice of preparation
[NOP] is published . . . .” (Guidelines, § 15125, subd. (e), italics added.)

Under CEQA, an EIR is presumed adequate. (Pub. Resources Code,
§ 21167.3; Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260,

13 Title 14, section 15000 et seq. of the California Code of Regulations is
referred to herein as the Guidelines.

23
275.) “We review an agency’s determinations and decisions for abuse of
discretion. An agency abuses its discretion when it fails to proceed in a
manner required by law or there is not substantial evidence to support its
determination or decision. ([Pub. Resources Code,] §§ 21168, 21168.5;
[citation].) ‘Judicial review of these two types of error differs significantly:
While we determine de novo whether the agency has employed the correct
procedures, “scrupulously enforc[ing] all legislatively mandated CEQA
requirements” [citation], we accord greater deference to the agency’s
substantive factual conclusions.’ [Citation.]” (Preserve Wild Santee, at
p. 275.) “[I]n reviewing an EIR for CEQA compliance, we adjust our ‘scrutiny
to the nature of the alleged defect, depending on whether the claim is
predominantly one of improper procedure or a dispute over the facts.’
[Citation.] For example, where a petitioner claims an agency failed to include
required information in its environmental analysis, our task is to determine
whether the agency failed to proceed in the manner prescribed by CEQA.”
(Ibid.) Therefore, we review de novo the question of whether an agency failed
to include required information in an EIR. (Ibid.)

Under CEQA, there is no presumption that an omission of required
information or other error is prejudicial. (Pub. Resources Code, § 21005,
subd. (b); Neighbors for Smart Rail, supra, 57 Cal.4th at p. 463.) “ ‘CEQA
requires an EIR to reflect a good faith effort at full disclosure; it does not
mandate perfection, nor does it require an analysis to be exhaustive.’ ”
(Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1145.)
Insubstantial or merely technical omissions are not grounds for relief.
(Neighbors for Smart Rail, at p.463.) “A prejudicial abuse of discretion occurs
if the failure to include relevant information precludes informed
decisionmaking and informed public participation, thereby thwarting the

24
statutory goals of the EIR process.” (Kings County Farm Bureau v. City of
Hanford (1990) 221 Cal.App.3d 692, 712; see also Sierra Club v. County of
Fresno, supra, 6 Cal.5th at p. 515.)

2. The failure to discuss an inapplicable land-use plan amendment enacted
five years after the Notice of Preparation did not make the EIR inadequate.

In 2010 when the NOP was published, section 1510.0303(e) expressly
allowed single-family residential zones to include churches and permanent
buildings used primarily for religious purposes. That section was amended in
2015 to delete former subdivision (e). The amendment had the effect of
prohibiting churches and other religious buildings in single-family zones if
applications for such buildings had not been completed by the time of the

2015 amendment.14 Section 49 of the amending ordinance (No. O-020481)
added an express “grandfather clause,” stating: “[N]o permits shall be issued
for development that is inconsistent with the provisions of this Ordinance
unless complete applications for such permits are submitted to the City prior
to the date on which the applicable provisions of this Ordinance become
effective . . . .”

14 In 2010, section 1510.0303 provided: “In the Single-Family (SF) Zone,
designated on that certain map referenced in Section 1510.0102, no building
or improvement or portion thereof shall be erected, constructed, converted,
established, altered, or enlarged, nor shall any premises be used except for
one or more of the following uses:
“(a) One-family dwellings. [¶] . . . [¶]
“(e) Churches, temples or buildings of a permanent nature,
used primarily for religious purposes.”
In May 2015, the City Council amended section 1510.0303 to delete former
subdivision (e), thereby removing churches, temples or other religious
buildings as a permitted use in single-family zones in the LJSPD.
25
 Section 4.1.1.1(c) of the final EIR discussed the Project’s consistency
with applicable land development code regulations. It accurately stated that
“[a]ccording to the LJSPD Ordinance, ‘churches, temples, or buildings of a
permanent nature, used primarily for religious purposes’ are permitted uses
within the residential zones (Municipal Code Section 1510.0303(e) [Single-
Family Zone - Permitted Uses]).” On this basis section 4.1.4.1(a) of the EIR
concluded that the Project “would be a permitted use within [the] residential
zone in accordance with this section of the City Municipal Code.”

Taxpayers argues that although the EIR discussed the Project’s
consistency with the applicable LJSPD zoning ordinance (i.e., the 2010
version of § 1510.0303), the EIR was prejudicially deficient as an
informational document because it omitted any discussion of the Project’s
inconsistency or nonconformance with the post-2015 version of section
1510.0303. Alternatively stated, Taxpayers contends the EIR should have
considered that the Project would not have been consistent with the post-
2015 version of section 1510.0303, the express terms of which provided that it
did not apply. In support of its argument, Taxpayers notes that the EIR
mentioned other post-2010 NOP actions by the City, including a discussion of
greenhouse gases under the City’s climate action plan (CAP) adopted in

2015.15 It thus complains that the EIR failed to consistently use a stable
baseline in evaluating the physical environmental conditions in the vicinity of
the Project.

15 Taxpayers also notes the EIR made changes in its energy use and
conservation section and water quality section to reflect code and permit
changes instituted after 2010.

26
 As previously noted, section 15125 of the Guidelines required the EIR
to include a description of the physical environmental conditions in the
vicinity of the Project—referred to as the baseline physical conditions—as
they existed at the time of publication of the NOP for the Project.
(Guidelines, § 15125(a)(1).) The focus of an EIR is on potential significant
effects that a project may have on the physical environment as measured
from the baseline. Taxpayers does not cite, nor are we aware of, any statute,
regulation, or case authority that requires an EIR to include in a project’s
“baseline physical conditions” a discussion of baseline legal (i.e., statutory or
regulatory) conditions. So regardless whether we are considering the
Municipal Code as it existed before or after the 2015 amendment, section
1510.0303 is not part of the baseline physical conditions of the Project’s
vicinity within the meaning of Guidelines section 15125(a).

In any event, even if the existing legal landscape could be considered
part of a project’s baseline physical conditions, Guidelines section 15125(e)
specifically provides that “[w]here a proposed project is compared with an
adopted plan, the analysis shall examine the existing physical conditions at
the time the notice of preparation [NOP] is published . . . .” (Italics added.)
Therefore, the only discussion of section 1510.0303 that arguably may be
required by the Guidelines is the version of that ordinance when the NOP
was published for the Project. (Guidelines, § 15125 subds. (a), (e).) Because
the NOP for the Project was published in 2010, only the 2010 version of
section 1510.0303 could arguably be considered part of the Project’s baseline
physical conditions. Accordingly, contrary to Taxpayer’s assertion, the post-
2015 version of section 1510.0303 is not part of the Project’s baseline physical
conditions and therefore no discussion of it was required in the final EIR for
the Project.

27
 The fact that the EIR discussed other post-2010 NOP actions by the
City, such as the City’s CAP adopted in 2015 addressing greenhouse gas
issues, does not show the EIR failed to use a stable baseline for evaluating
the Project’s potential impacts on the physical environmental conditions in

the vicinity of the Project.16 Rather, by not expressly electing another time
for determining the Project’s baseline physical conditions, the City implicitly
adopted Guidelines section 15125(a)(1)’s default timing for the Project’s
baseline physical conditions (i.e., in 2010 at the time the NOP was published
for the Project), which provided a stable, nonfluctuating baseline. Any
discussion of greenhouse gases under the City’s 2015 CAP did not alter the
applicable 2010 date for the EIR’s discussion of the baseline physical

conditions in the vicinity of the Project.17

16 In its reply brief, Taxpayers appears to argue that the EIR was
deficient because it did not discuss the post-2015 version of section 1510.0303
as relevant to the “human use of the land” within the meaning of Guidelines
section 15126.2. But because Taxpayers did not raise this argument in the
trial court or in its opening appellant’s brief, we conclude it has been
forfeited. (High Sierra Rural Alliance v. County of Plumas, supra, 29
Cal.App.5th at p. 111, fn.2; SCI California Funeral Services, Inc. v. Five
Bridges Foundation, supra, 203 Cal.App.4th at p. 573, fn. 18; Paulus v. Bob
Lynch Ford, Inc., supra, 139 Cal.App.4th at p. 685; Reichardt v. Hoffman,
supra, 52 Cal.App.4th at p. 764; American Drug Stores, Inc. v. Stroh, supra,
10 Cal.App.4th at p. 1453.)

17 Because the post-2015 version of section 1510.0303 did not apply to the
Project by virtue of the express grandfather clause, the EIR accurately stated
in its greenhouse gas section that the Project is consistent with “existing
general and community plans and zoning regulations and, therefore, able to
proceed to an analysis of project consistency with CAP Strategies.” Thus,
contrary to Taxpayers’ assertion, the Project was not inconsistent with
section 1510.0303 at the time the CAP was adopted.

28
 Reprising a similar theme, Taxpayers argues that the EIR was
deficient because it omitted any discussion of the Project’s inconsistency or
nonconformance with the post-2015 version of section 1510.0303. But the
Guidelines only require an EIR to “discuss any inconsistencies between the
proposed project and applicable general plans, specific plans and regional
plans.” (Guidelines, § 15125, subd. (d), italics added.) This mandated an
evaluation of any inconsistencies between the Project and the applicable

LJSPD zoning ordinance (i.e., § 1510.0303).18 A project’s potential
environmental impacts are generally evaluated based on the physical
conditions in the vicinity of the project at the time of publication of a NOP, so
only the 2010 version of section 1510.0303 was relevant to the EIR’s
discussion of whether the Project was inconsistent with the LJSPD zoning
ordinance. (Guidelines, § 15125(a), (d), (e).) Because the 2010 version of
section 1510.0303 expressly allowed the Project’s building in a single-family
zone (i.e., “buildings of a permanent nature, used primarily for religious

18 Taxpayers’ citation to a checklist in Appendix G to the Guidelines adds
nothing to the argument. That checklist includes item XI(b) regarding land
use and planning, setting forth the question of whether the proposed project
would “[c]ause a significant environmental impact due to a conflict with any
land use plan, policy, or regulation adopted for the purpose of avoiding or
mitigating an environmental effect?” (Guidelines, Appen. G(XI)(b).) Because
the 2015 amendment, by its express terms, did not apply to projects where
the NOP had already been published, there could be no “conflict.” Moreover,
Taxpayers fail to identify any “significant environmental impact” the 2015
amendment was designed to avoid or mitigate.

29
purposes”), the Project was not inconsistent with that applicable zoning

ordinance.19 (Former § 1510.0303(e).)

In the final analysis, the final EIR was not a deficient informational
document because it omitted a hypothetical discussion that the Project would
have been inconsistent with section 1510.0303 if its NOP had been published
after 2015. To the contrary, because of section 1510.0303’s grandfather
clause, the Project was consistent with, and a conforming use under,
applicable zoning rules such that the EIR was not required to discuss the
2015 deletion of former subdivision (e). Accordingly, based on our de novo
review of the record, we conclude that the final EIR for the Project included
all relevant information regarding the Project’s consistency with section
1510.0303 and did not preclude informed decisionmaking by the City Council

or public participation as required by CEQA.20 (Sierra Club v. County of
Fresno, supra, 6 Cal.5th at p. 515; Kings County Farm Bureau v. City of
Hanford, supra, 221 Cal.App.3d at p. 712.)

C. Claims of Judicial Bias

After reviewing the briefs and the record, the court issued a lengthy
tentative ruling proposing to deny Taxpayers’ petition for writ of mandate.

19 Although largely a matter of semantics, by virtue of the express
“grandfather clause” in the amending ordinance the Project is consistent even
with the post-2015 version of section 1510.0303.

20 While we conclude the EIR was fully compliant as an informational
document, we note that the City Council, as the CEQA decisionmaker, was
necessarily aware of the post-2015 amendment to section 1510.0303 because
it was the legislative body that passed the amending ordinance. Public
comments to the draft EIR also included references to the post-2015 version
of section 1510.0303.

30
Oral argument was conducted the following day. Pointing to several
exchanges between the court and counsel during argument as evidence of
bias, Taxpayers contends it was denied a fair hearing before an impartial
judge.

1. Procedural posture and the applicable legal standard

Code of Civil Procedure section 170.1 et seq. creates a comprehensive
statutory scheme to address claims that a superior court judge should
disqualify himself or herself on grounds of actual or apparent bias. Such a
disqualification request must be made “at the earliest practicable opportunity
after discovery of the facts constituting the ground for disqualification.”
(Code Civ. Proc., § 170.3, subd. (c)(1).) Section 170.3 further provides strict
time requirements for resolving a motion for disqualification, and decisions
on such a motion can only be reviewed on a petition for writ of mandate filed
“within 10 days after service of written notice of entry of the court’s order
determining the question of disqualification.” (Code Civ. Proc., § 170.3,
subd. (d); see People v. Panah (2005) 35 Cal.4th 395, 444.) A failure to seek
immediate writ review generally forfeits any argument based on the
statutory disqualification factors. (People v. Freeman (2010) 47 Cal.4th 993,
1000 (Freeman).)

Even where a party does not seek—or elects not to pursue—the
statutory disqualification remedy, there are rare circumstances where
fundamental due process guarantees may require reversal of a judgment on a
showing of “the probability of actual bias” by the court that entered the
judgment. (Freeman, supra, 47 Cal.4th at p. 1006; see also Caperton v. A.T.
Massey Coal Co., Inc. (2009) 556 U.S. 868, 887 (Caperton).) The United
States Supreme Court has characterized these due process grounds for

31
judicial disqualification as a “constitutional floor” that supplements “the
ceiling set ‘by common law, statute, or the professional standards of the
bench and bar.’ ” (Caperton, at p. 889, quoting Bracy v. Gramley (1997) 520
U.S. 899, 904.) And our Supreme Court has emphasized that cases meeting
this constitutional standard will be “extraordinary” ones that involve
“extreme” or “exceptional” facts. (Freeman, at pp. 1004-1006.) It is not our
role “to examine whether the trial judge’s behavior left something to be
desired, or whether some comments would have been better left unsaid.”
(Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 589.)

It is important to recognize at the outset that Taxpayers never filed a
motion to disqualify Judge Taylor pursuant to Code of Civil Procedure section
170.1 et seq. Although both parties’ briefing focuses primarily on whether
the circumstances in this case rise to the level of a due process violation,
Taxpayers does suggest the more lenient statutory standards should apply
when the challenged behavior occurred during a trial or, as in this case,
during a hearing that precipitated the court’s substantive ruling.

We do not doubt that the timing here would have made the filing of a
statutory disqualification motion difficult. Although the court took the
matter under submission after the conclusion of argument, its ruling was
filed later the same day. It would likely have been impossible for Taxpayers’
counsel to prepare a verified statement of disqualification before the ruling
was issued. Even so, Code of Civil Procedure section 170.3, subdivision (b)(4)
specifically permits the filing of a challenge “after the judge has made one or
more rulings in a proceeding, but before the judge has completed judicial
action in a proceeding.” In this case, even though the court’s ruling was
issued on the same day as the hearing, judicial action was not completed
until at least two weeks later when the judgment was entered. Moreover, the

32
filing of a disqualification motion may well have delayed the entry of
judgment while the motion was being considered. Even assuming the motion
was denied, Taxpayers would then have been able to seek prompt writ review
pursuant to the statute. (Code Civ. Proc., § 170.3, subd. (d).)

Because Taxpayers elected to raise the issue of judicial bias on appeal
from the final judgment, we review the record to determine if it shows the
probability of actual bias sufficient to implicate due process concerns, and not
merely the appearance of bias. As we will explain, however, even were we to
apply the more lenient statutory standards found in Code of Civil Procedure
section 170.1, we would nonetheless conclude there has been no showing of
actual or apparent bias sufficient to warrant the disqualification of Judge
Taylor.

2. There is no evidence of judicial bias

Taxpayers cites various passages from the hearing transcript to
demonstrate that Judge Taylor treated the parties differently during
argument. It maintains this differential treatment means the judge “had a
predisposition against [Taxpayers].” Taxpayers complains that Judge Taylor

strongly disputed its counsel’s arguments21 and expressed skepticism about

21 As an example, Taxpayers cites an exchange where its counsel
mentioned the “greenhouse gasses” created by cars searching for limited
parking. Judge Taylor challenged counsel, “That’s the first time that phrase
has come up in this entire case,” suggesting, “that’s impermissible.” It
appears counsel started to respond, but was cut off by the court, “I want you
to make a record, but I don’t want you to start offering things that have not
been briefed . . . . Tell me why you think my tentative is wrong.” Counsel
elected to move on to a different point by saying that “[p]arking impacts are
not just related to milling about looking for a parking space.”

33
the motives of the organization and its members.22 At the same time, the
City and Hillel were, in Taxpayers’ view, treated with kid gloves. It claims
the judge was “helpful” and “agreeable” when defendants were making their
presentations. Supposedly, he “ask[ed] questions in a friendly manner” and
“even thanked [counsel for the City] for responding to his question, a courtesy
that was never extended to [Taxpayers’ counsel].” Likewise, he “gently”

corrected errors rather than issuing harsh admonishments.23

22 At one point, Taxpayers’ counsel was suggesting the City should have
prepared an errata and recirculated the EIR. Judge Taylor inquired, “Is this
your recirculation argument? . . . [T]his is why project opponents get a bad
reputation. It’s just delay followed by delay followed by more delay.” Counsel
attempted to respond but was again cut off by the judge. “[F]urther
recirculation is just code for more delay, and—that’s what your clients want.
They want to out wait their proponents [sic]. That’s how I perceive this.”
Shortly thereafter, the judge returned to the question of delay and what it
suggested about Taxpayers’ motives. “Let’s face it, the only mitigation your
clients would be satisfied with is a continued vacant lot. . . . They want no
project; they want the no project alternative.” When counsel asserted that
was “not true,” the judge challenged her by referring to a particular document
in the record, which he asserted showed that “[y]ou want this to be a vacant
lot.” Counsel responded with evident frustration, “Your Honor, that’s—I’m
sorry to argue with a Judge, it’s not my normal style, but that is not
accurate.”

23 As an example, Taxpayers refers to an instance where the deputy city
attorney inadvertently argued that the City “allowed previous conforming
uses to be used for those projects that were already deemed complete.” Judge
Taylor corrected her, “You meant to say where the application was already
deemed complete? Not the project itself, correct?” Recognizing her error,
counsel said, “Yes, you are absolutely right.” The judge offered, “At least you
know I am listening.”
On the other hand, Taxpayers’ transcript citations appear to be
selective in at least certain respects. The initial presentation by Taxpayers’
counsel ended with her comment that she could not understand “why it took
that long to do an appropriate document[?]” She added, “[I]t’s not that hard.”
34
 We can accept that the transcript reflects the judge treated the parties
and their arguments differently. This is neither surprising, nor reflective of
bias. By the time of the argument, the judge had already read the briefs and
reviewed the record. He had issued a comprehensive 15-page single-spaced
tentative ruling in favor of the defendants. In light of that, it would probably
be surprising if he did not treat counsel differently. One would expect that
Taxpayers’ counsel would be on the receiving end of more pointed and even
skeptical questions, since by that point in the proceedings the burden was on
her to convince the judge that he should change his tentative views.

Of course, a tentative ruling is just that—tentative—and judges must
remember that the courtroom environment should encourage lawyers to
respectfully express and explain contrary viewpoints. Both attorneys and
judges can disagree without being disagreeable. That said, Code of Civil
Procedure section 170.2 specifically declares that “[i]t shall not be grounds for
disqualification that the judge . . . [h]as in any capacity expressed a view on a
legal or factual issue presented in the proceeding . . . .” (Italics added.) Here,
the portions of the transcript relied on by Taxpayers reflect Judge Taylor’s
expression of his views on the issues in the case formed after an obviously
thorough review of the briefs and record. That he had come to favor—
perhaps strongly favor—one side’s position in the dispute does not change the
fact that he was expressing his opinions on the legal and factual issues in the
case. (See, e.g., Moulton Niguel Water Dist. v. Colombo (2003) 111
Cal.App.4th 1210, 1219.) In no way do the comments reflect bias in the sense

Judge Taylor disagreed, but responded graciously. “You know, I have to tell
you, I don’t think I can accept that, because I see an awful lot of these cases
and it seems to be hard. . . . [W]e have smart people doing it, yourself
included, because it is hard.”
35
of an inclination to rule against Taxpayers for reasons unrelated to the merit
of the arguments. Although by the time of the hearing Judge Taylor might
have been disposed to find in favor of the City and Hillel based on his
evaluation of the parties’ respective contentions, he was not predisposed to do
so at the start of his decision-making process.

Taxpayers points to two specific exchanges during the hearing that it
contends reflect bias against the organization and its members. Counsel for
Taxpayers at one point represented that her clients were not unalterably
opposed to development of the site and were willing to accept single-family
residences in that location. “Their problem,” she said, “is with a student
center and the intensity of use in a student center across a 32-foot street from
single-family residences.” She later added, “[T]hey have a huge desire for
this project to be located somewhere else.”

Not expecting a response, Judge Taylor commented, “There is an
acronym for that.” A few pages later in the transcript, Taxpayers’ counsel
made clear she understood which acronym the judge was referring to. “[W]e
can’t be held responsible because the city failed to do the analysis. We’re
being held -- all of a sudden we’re NIMBYs, and we’re delay, delay, delay,
because the city failed to do very obvious things that were brought to their
attention . . . .”

Taxpayers asserts that “NIMBY” is a pejorative term, and Judge
Taylor’s reference to it indicates that he was focused on the organization’s
motives in bringing the action rather than the merit of the legal arguments.
We see no indication that the judge intended a pejorative characterization.
Indeed, he did not actually use the acronym—which means “not in my
backyard”—but merely referred to it. Although the term implies acting

36
consistent with self-interest, several standard sources provide definitions
that include no necessary pejorative connotation. (Merriam-Webster Online
Dictionary (2021) (as
of Mar. 29, 2021) [“opposition to the locating of something considered
undesirable (such as a prison or incinerator) in one’s neighborhood”];
Cambridge Advanced Learner’s Dictionary & Thesaurus, Cambridge
Dictionary Online (2021) (as of Mar. 29, 2021) [“a person who does not want
something unpleasant to be built or done near where they live”].)
Moreover, Taxpayers again misunderstands the meaning of judicial
bias. Judge Taylor may have read Taxpayers’ motives correctly or
incorrectly. But whatever conclusions he drew, they were based on the
evidentiary record, the legal positions of the parties, and the arguments made
in support of them. Potential legal error is not the same thing as judicial
bias.

In conjunction with the same discussion, counsel for Taxpayers
suggested that instead of putting the Hillel student center on the proposed

site, it could be located next to an existing Jewish temple in the area.24 She
later repeated her assertion that this would be a preferable alternative: “Had
they moved this project perhaps over to the Temple that’s nearby, they might
have been able to meet achieve their -- ” On this latter occasion, Judge
Taylor appeared to take umbrage:

24 Counsel argued: “Well, there’s a huge synagogue, temple -- I’m sorry,
what do you call the -- I get confused and I have to apologize. I don’t have the
nomenclature, but there’s a huge Jewish site within a quarter of a mile.
There’s another one within -- just a couple of blocks down from them. This is
in the neighborhood. Is this the only possible place?”

37
 “You know, that’s the second time you have said that. . . . I
asked an open-ended question, and twice now you have
said, move it over there by the Temple. I’m sorry, but we
don’t do that in the United States. We don’t put people
where we want them to be. Okay? That’s -- that is
evocative of Eastern Europe and it’s not appropriate.”

Taxpayers points to this exchange as evidence that Judge Taylor was biased
against the organization because he unreasonably construed an argument
about an alternative location with more parking as an indication that
Taxpayers was anti-Semitic.

The record reflects that Taxpayers was a neighborhood citizens group

that opposed a student center in a residential neighborhood.25 There is
nothing to suggest this opposition had anything to do with that fact that
Hillel was a Jewish student organization. It is certainly true that judges
have an ethical obligation to ensure that “lawyers in proceedings before the
judge . . . refrain from . . . manifesting, by words or conduct, bias, prejudice,
or harassment based upon . . . religion . . . .” (Cal. Code of Judicial Ethics,
Canon 3B(6).) At the same time, accusing a lawyer of bias or prejudice in a
public courtroom is a serious matter that carries with it a strong sense of
opprobrium. Judges must take care not to draw adverse conclusions too
quickly lest it turn out that there was merely a misunderstanding. Giving
counsel the benefit of the doubt and confirming a suspected meaning before

issuing an admonishment will often be the wisest course.26

25 In its second amended petition for writ of mandate, Taxpayers alleged
that it was a California nonprofit social welfare organization “[d]edicated to
preserving the special community of La Jolla.”

26 For instance, Taxpayers’ counsel could have been asked
nonjudgmentally, “That’s the second time you have mentioned property next
38
 But again, misinterpreting counsel’s argument is not evidence of bias,
and certainly does not demonstrate a probability of actual bias. Although the
suggestion of anti-Semitism was unwarranted, counsel’s argument raised a
legitimate question why she was proposing that several Jewish facilities be
located together. Judge Taylor was responding to the argument, not relying
on matters extraneous to the merits of the case. That he might have
responded differently does not change the fact that he was “express[ing] a
view on a legal or factual issue presented in the proceeding” (Code Civ. Proc.,
§ 170.2), which is specifically excluded as a basis for disqualification.

Whether they are evaluated for “the probability of actual bias” or under
the more lenient standards in Code of Civil Procedure section 170.1 et seq.,
the court’s statements in this case provide no basis for disqualification. In
sum and substance, Taxpayers’ complaint is that Judge Taylor showed
insufficient patience and/or should have extended more courtesy toward its
counsel. Judicial patience and courtesy are not unimportant considerations,
but questions of temperament and demeanor are not the same as bias. And
this is particularly true where, as here, the challenged comments by the trial
judge concern only the merits of the case and the arguments of counsel.
Taxpayers was not deprived of a fair hearing.

to the Jewish Temple as an alternative site. Why is that location preferable
to the proposed site or other alternatives?” If the answer did not completely
clarify, a more pointed question that still left counsel a path of retreat might
have been appropriate: “Certainly you’re not suggesting there be a
designated Jewish section in the campus community?”

39
 DISPOSITION

The judgment is affirmed. Defendants and real parties are entitled to
their costs on appeal.

DATO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

40