Filed 11/29/22 Save Our Glendale v. City of Glendale CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
SAVE OUR GLENDALE, B308034
Petitioner and Appellant, (Los Angeles County
Super. Ct. No. BS174805)
v.
CITY OF GLENDALE et al.,
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Richard L. Fruin, Jr., Judge. Affirmed.
Naira Soghbatyan for Petitioner and Appellant.
Michael J. Garcia, City Attorney, Gillian Van Muyden,
Chief Assistant City Attorney, and Yvette Neukian, Deputy City
Attorney, for Respondents.
______________________________
Petitioner and appellant Save Our Glendale (petitioner)
seeks to overturn the trial court’s decision upholding the City of
Glendale’s (City) certification of a final program environmental
impact report (Program EIR) for the South Glendale Community
Plan (the Community Plan). Petitioner also seeks to overturn the
trial court’s decision upholding City approval of a portion of the
Community Plan and related implementation actions. And,
petitioner seeks to overturn the trial court’s rejection of its
subsequent challenges to City approval of a citywide inclusionary
zoning ordinance and amendments to the City’s 2006 Downtown
Specific Plan (the Downtown Plan). Finally, petitioner challenges
1
the trial court’s award of costs to respondents.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Community Plan and Program EIR
The Community Plan is a community planning-level
document designed to guide development in southern Glendale
over the next 25 years. The Community Plan Program EIR was
certified, and portions of the Community Plan and implementing
actions were approved on July 31, 2018. Planning efforts began
in 2011 and included extensive public involvement in surveys and
questionnaires, vision boards, study sessions, community
meetings, workshops and road shows, extensive Web site
information, research, a scoping meeting, a 60-day Program EIR
comment period, and 26 public meetings/hearings over a six-year
1
Respondents below and on appeal include the City, the City
of Glendale Council, and the City of Glendale Community
Planning Department. We refer to the three respondents
collectively as the City.
2
period. The City’s planning efforts were supported in part
through a competitive grant from the Los Angeles County
Metropolitan Transportation Authority that the City used to
prepare a smaller transit-oriented design plan for the Tropico
area of the City and which later folded into the broader
Community Plan.
The Program EIR was prepared as a program-level EIR.
(Cal. Code Regs., tit. 14, §§ 15146, 15152, subd. (b).) The City
published the Program EIR notice of preparation on September 7,
2016, and published notice of availability on January 11, 2018. A
draft Program EIR was circulated 60 days for public comment,
and on July 31, 2018, the City took the following actions:
(1) Certified the Program EIR and adopted a statement of
overriding considerations and mitigation monitoring and
reporting program; (2) Adopted an environmentally superior
alternative for Tropico; (3) Authorized the initiation of the transit
plan for Tropico; (4) Directed maintenance of current zoning
densities in other Community Plan centers and corridors;
(5) Directed staff to hold study sessions to review the mixed-use
designations for those centers and corridors; (6) Directed staff to
implement the Community Plan’s “Road’s End Neighborhood” as
single family residential and maintain residential densities in the
Community Plan’s area; (7) Directed staff to modify the land use
element map and text amendments necessary for Tropico so that
it matched the Community Plan; and (8) Introduced an ordinance
downzoning six C3 District III lots within the Community Plan.
On August 14, 2018, the City adopted the C3 downsizing
ordinance and filed the Program EIR Notice of Determination.
3
Downtown Plan
The Downtown Plan is an existing specific plan within the
larger Community Plan area for which the City had certified a
program EIR in 2006. The Community Plan treated the
Downtown Plan as a stand-alone plan governed by its own
standards.
On March 27, 2018, the City imposed a moratorium on new
residential development in the Downtown Plan in order to study
potential modifications to design standards and incentives.
As the parties agree, amendments to the Downtown Plan
were subsequently approved, and the City adopted a citywide
inclusionary zoning ordinance.
Original Petition for Writ of Mandate
On August 30, 2018, petitioner filed its original verified
petition for writ of mandate and complaint challenging the City’s
July 31, 2018, certification of the Community Plan Program EIR
and project approvals. The notice of intent filed with that
petition did not refer to any commencement of an action
challenging the subsequently approved Downtown Plan
amendments or adoption of the citywide inclusionary zoning
ordinance.
On August 30, 2018, and then again on December 18, 2018,
in accordance with Public Resources Code section 21167.6,
2
subdivision (b)(2), petitioner filed notices of election to prepare
the administrative record.
2
Public Resources Code section 21167.6, subdivision (a),
provides, in relevant part: “At the time that the action or
proceeding is filed, the plaintiff or petitioner shall file a request
that the respondent public agency prepare the record.”
4
Trial Court Transfers Record Preparation to the City
Beginning in the fall of 2018 and continuing to June 2019,
the City exchanged correspondence with petitioner concerning
record preparation. But petitioner could not complete the record.
Thus, after the trial was continued, the City filed a motion
seeking an order directing petitioner to correct and supplement
the administrative record, or in the alternative, for an order
authorizing respondents to complete preparation of the
administration record so it can be certified, and ordering
payment of respondents’ costs of preparation.
At the August 7, 2019, hearing on the City’s motion, the
trial court discussed the state of the administrative record with
counsel. The trial court asked counsel to “talk” and “finalize” the
index for the record. The City’s counsel represented that they
had prepared a “modified index” and that the parties were about
“90 percent plus there,” but it was still incomplete. Counsel
asked the trial court if it wanted “respondents to complete that
AR index.” The trial court responded by asking counsel if she
was “willing to prepare it at no cost to the petitioner.” Counsel
replied: “Well, we would like to recover the cost that we put out
so far, but the additional cost, I think we’re willing to forgo that.”
Ultimately, the trial court transferred preparation of the
record to respondents, reasoning: “[T]he administrative record to
Alternatively, the petitioner may “elect to prepare the record of
proceedings . . . subject to certification of its accuracy by the
public agency within the time limit specified in this subdivision
[60 days from the date of the request].” (Pub. Res. Code,
§ 21167.6, subd. (b)(2).)
All further statutory references are to the Public Resources
Code unless otherwise indicated.
5
date has not been prepared timely, and I’m not casting any
criticism. I’m just saying it hasn’t been done. I need to get it
done to keep the present trial date.” In so ruling, the trial court
pointed out to petitioner that respondents “agreed to assume the
expense of getting this across the goal line, and I think that’s a
pretty good deal for you.”
Later in the hearing, the City’s counsel stated: “We’re still
going to make a motion for those costs. We’re entitled to under
the law.” The trial court and counsel then discussed who would
assume the cost of copying the administrative record. When the
trial court asked if it was “normally the petitioner,” the City
replied, “Correct, the petitioner’s expense.” The trial court then
asked petitioner’s counsel if she wanted to assume that expense.
Before she could reply, the trial court urged the parties to discuss
it; no ruling on costs was made.
In sum, as reflected in the trial court’s final statement of
decision filed July 21, 2020, on August 7, 2019, the trial court
“granted the City’s alternate motion and ordered the City to
finish the preparation of the [record].”
At a subsequent hearing on August 14, 2019, the City
represented that the administrative record would be “ready” by
August 26, 2019.
First Amended Petition for Writ of Mandate
3
Unbeknownst to the City or the trial court, petitioner was
preparing a first amended petition for writ of mandate. In fact,
3
The trial court was understandably frustrated with
petitioner’s counsel’s lack of communication and conduct in
connection with this filing. The trial court’s frustration continued
throughout these proceedings.
6
on August 26, 2019, the date when the City certified the
administrative record, petitioner filed a first amended verified
petition for writ of mandate and complaint (the amended
petition). As noted by the trial court, the amended petition
“massively expanded the allegations” made in the original
petition—it is “84 pages long, has 383 paragraphs and pleads 22
causes of action,” including “CEQA causes of action against
projects that were not challenged in the” original petition.
Notably, the amended petition challenged the Downtown Plan
amendments and citywide inclusionary zoning ordinance, both of
which the City approved after the original petition was filed (New
CEQA Claims).
Petitioner neither asked the City to prepare the record for
the New CEQA Claims nor gave notice that it was electing to
prepare the record for those claims. (§ 21167.6.)
Petitioner’s First Brief on the Amended Petition
On October 18, 2019, petitioner filed its opening brief. In
response, the City filed an ex parte application, asking the trial
court to double the page limit for its opposition or strike the
opening brief. After hearings on October 29 and November 1,
2019, the trial court struck petitioner’s opening brief “for a
variety of reasons” and ordered a rewrite.
The matter was set for trial beginning January 17, 2020.
7
Petitioner’s Second Brief on the Amended Petition; City’s Motion
to Supplement and for Costs
On November 15, 2019, petitioner filed its second opening
brief. Shortly thereafter, it filed requests for judicial notice and a
4
motion to augment the record.
On December 19, 2019, the City filed its opposition to
petitioner’s second opening brief, motion to augment, and
requests for judicial notice. It also filed a motion to supplement
the record and for costs.
On January 6, 2020, petitioner filed its opposition to the
City’s motion to supplement and for costs.
Lodging of the Record
On January 9, 2020, the City lodged the certified record
and its own joint appendix. The following day, petitioner lodged
its joint appendix.
Hearing on Motion to Supplement/Costs
On January 31, 2020, the trial court mostly granted the
City’s motion to supplement/costs, but deferred ruling on costs.
Trial and Judgment
From February 14, 2020, through June 22, 2020, the trial
court held a series of hearings on pretrial motions. Ultimately,
on July 21, 2020, it issued its 60-page statement of decision,
finding for the City on all issues and claims.
As is relevant to issues raised in this appeal, the trial court
denied petitioner’s motion to augment the record (except for one
document) and the requests for judicial notice (except for one
4
As the trial court pointed out, part of the motion to
augment contained 150 categories of documents, exceeding
10,000 pages.
8
exhibit). It then dismissed petitioner’s New CEQA Claims for
failure to comply with section 21167.6’s mandate regarding
preparation of the administrative record.
On the merits, and pursuant to the Public Resources Code
and the Guidelines for the Implementation of CEQA (Cal. Code
Regs., tit. 14, § 15000 et seq. (Guidelines)), the trial court found
petitioner’s claims against the EIR and the City’s approvals of
the Community Plan unmeritorious.
The trial court also awarded the City its costs as prevailing
party.
Memorandum of Costs; Motion to Tax Costs
On August 5, 2020, the City filed a memorandum of costs,
seeking $15,924.99. In response, petitioner filed a motion to tax
costs. It argued, inter alia, that the trial court only
“‘provisionally’ transferred” record preparation to the City, and
did so “relying on [the] City’s consent to bear AR preparation
costs.”
The City opposed petitioner’s motion to tax, noting that
(1) the trial court deferred ruling on the costs for preparing the
administrative record until after trial, and (2) “Although the
Court asked [the] City to consider foregoing record preparation
costs, at no time did [the] City waive its request for costs and
has repeatedly preserved its right to request such costs.”
Ultimately, the trial court awarded the City $14,578.34 in
costs.
Appeal
Petitioner’s timely appeal ensued.
9
DISCUSSION
I. Trial court properly dismissed petitioner’s New CEQA claims
Before we address petitioner’s challenges to the EIR, we
first consider petitioner’s objections to procedural rulings by the
trial court. These rulings frame the scope of the issues on appeal.
As set forth above, petitioner filed its amended petition
with the new claims on the same day that the City filed its record
certification and answer to petitioner’s original petition. As the
trial court aptly noted, these new claims related to the City’s
adoption of the Downtown Plan amendments and the citywide
inclusionary zoning ordinance. The Downtown Plan amendments
and inclusionary zoning ordinance are separate projects adopted
after the Community Plan Program EIR was certified. As such,
they are unrelated to the Community Plan.
Petitioner never elected to prepare a record or requested
that the City prepare a record for the New CEQA Claims when it
filed its amended petition. Instead, it filed “unauthorized
motions to augment the record with extra record evidence
numbering more than 10,000 pages . . . three weeks after it filed
its initial brief.” Because petitioner failed to follow section
21167.6’s mandatory procedures, petitioner had no certified
5
record for its New CEQA Claims.
Western States Petroleum Assn. v. Superior Court (1995)
9 Cal.4th 559 (Western States) does not compel a different result.
5
It follows that the trial court properly denied petitioner’s
motion to augment the record and requests for judicial notice.
For the same reasons, we do not consider “the augmented record
presented to the lower court through Petitioner/Appellant’s
Motion to Augment, which the lower court denied.” We
accordingly deny petitioner’s request for judicial notice on appeal.
10
In Western States, our Supreme Court reaffirmed “that extra-
record evidence is generally not admissible in non-CEQA
traditional mandamus actions challenging quasi-legislative
administrative decisions.” (Western States, supra, at p. 574.) It
went on to extend that principle to CEQA actions. (Ibid. [“there
is no sound reason why CEQA and non-CEQA cases should be
governed by different evidentiary rules”].)
That said, our high court recognized “several limited
exceptions to the general rule excluding extra-record evidence.”
(Western States, supra, 9 Cal.4th at p. 575, fn. 5.) Petitioner has
not demonstrated how any of those exceptions applies here.
Absent an administrative record of evidence to support
petitioner’s allegations, the New CEQA Claims were properly
6
dismissed.
6
During oral argument, petitioner’s counsel asserted that
the City had stipulated to an augmented record. We have
carefully reviewed the portions of the reporter’s transcript and
clerk’s transcript cited by counsel and see no such unconditional
stipulation. In fact, the identified pages of the clerk’s transcript
are to the City’s opposition to the motion to augment. And, while
the City may have stipulated to including some of the documents,
it did object to petitioner’s “organization, labeling, order and
inappropriate separation of the documents from their logical
groupings.” Thus, the City only agreed to part of the “requested
augmentation pending proper reorganization.” There is no
indication that the proper reorganization ever was completed.
Moreover, the City also indicated that it was preserving general
objections to these documents. At the hearing in the trial court
on the motion to augment, the City echoed its objection that a
motion to augment is not “the proper process,” which is partially
why it was opposing the motion. Regardless, as set forth below,
the trial court alternately dismissed the New CEQA Claims on
11
Alternatively, the trial court properly dismissed petitioner’s
New CEQA Claims on the grounds that petitioner pled
inconsistent allegations concerning these claims in its amended
petition. It is well-settled that “[a] plaintiff may plead
inconsistent counts or causes of action in a verified complaint,
but this rule does not entitle a party to describe the same
transaction as including contradictory or antagonistic facts.”
(Alfaro v. Community Housing Improvement System & Planning
Assn., Inc. (2009) 171 Cal.App.4th 1356, 1381.)
Here, the amended petition alleges that the DSP and IZO
were separate independent projects and that they were part of,
but severed from, the Community Plan. As the trial court aptly
noted, these allegations are inherently inconsistent. As such,
they are improper.
In light of these determinations, we need not address
petitioner’s remaining arguments concerning its New CEQA
Claims.
II. Environmental protection under CEQA
“‘The Supreme Court has repeatedly observed that the
Legislature intended CEQA to be interpreted to afford the fullest
possible protection to the environment within the reasonable
scope of the statutory language.’ [Citation.] To further that
purpose, ‘CEQA contains a “substantive mandate” requiring
public agencies to refrain from approving projects with significant
environmental effects if “there are feasible alternatives or
mitigation measures” that can substantially lessen or avoid those
the grounds that they were inconsistent with other allegations
pled in the amended petition. Petitioner did not address this
point during oral argument.
12
effects.’ [Citation.] CEQA nevertheless ‘permits government
agencies to approve projects that have an environmentally
deleterious effect, but [it] also require them to justify those
choices in light of specific social or economic conditions.’
[Citation.]” (California Native Plant Society v. City of Santa Cruz
(2009) 177 Cal.App.4th 957, 978 (Native Plant).)
“The ‘heart of CEQA’ is the EIR. [Citations.] ‘The EIR,
with all its specificity and complexity, is the mechanism
prescribed by CEQA to force informed decision making and to
expose the decision making process to public scrutiny.’ [Citation.]
The requirements governing EIR’s are set forth in the statute
and in the CEQA guidelines.” (Native Plant, supra,
177 Cal.App.4th at pp. 978–979.)
III. Standards of review
“Under CEQA, courts review quasi-legislative agency
decisions for an abuse of discretion. [Citation.] At both the trial
and appellate level, the court examines the administrative record
anew. [Citation.]” (Native Plant, supra, 177 Cal.App.4th at
p. 984.)
“An ‘agency may abuse its discretion under CEQA either by
failing to proceed in the manner CEQA provides or by reaching
factual conclusions unsupported by substantial evidence.’
[Citation.] ‘Judicial review of these two types of error differs
significantly . . . ’ however. [Citation.]” (Native Plant, supra,
177 Cal.App.4th at p. 982.) For that reason, “[i]n evaluating an
EIR for CEQA compliance . . . , a reviewing court must adjust its
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.” (Vineyard Area Citizens for Responsible
Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412,
13
435.) “Whether an ‘agency has employed the correct procedures,’
is reviewed ‘de novo . . . “scrupulously enforc[ing] all legislatively
mandated CEQA requirements” [citation] . . . .’ [Citation.] But
an ‘agency’s substantive factual conclusions’ are ‘accord[ed]
greater deference.’ [Citation.] ‘In reviewing for substantial
evidence, the reviewing court “may not set aside an agency’s
approval of an EIR on the ground that an opposite conclusion
would have been equally or more reasonable,” for, on factual
questions, our task “is not to weigh conflicting evidence and
determine who has the better argument.” [Citation.]’ [Citation.]”
(Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 531.)
IV. Trial court properly found that the Community Plan involved
a program EIR
Petitioner argues that the trial court erred in finding that
the Community Plan involved a “community” plan and a
“program” EIR, obviating the need for EIR-specificity or CEQA
challenges because later physical projects would have their own
environmental review. We are not convinced.
A. Relevant law
“A program EIR is an EIR which may be prepared on a
series of actions that can be characterized as one large project.”
(Guidelines, § 15168, subd. (a).) Section 15168, subdivision (a)(3)
specifically authorizes the use of the program EIR for the
issuance of “plans.”
To qualify as a program, the actions must be related either
geographically, as logical parts in a chain of actions, in
connection with the issuance of plans to govern the conduct of the
continuing program, or “[a]s individual activities carried out
under the same authorizing statutory or regulatory authority and
having generally similar environmental effects which can be
14
mitigated in similar ways.” (Guidelines, § 15168, subd. (a)(3).)
As the trial court correctly noted, “[a]n EIR for a ‘local general
plan should focus on the secondary effects that can be expected to
follow from the adoption, or amendment, but the EIR need not be
as detailed as an EIR on the specific construction projects that
might follow.’” (Guidelines, §§ 15146, subd. (b), 15152, subd. (b).)
In other words, “a ‘program EIR’ evaluates the broad policy
direction of a planning document, such as a general plan, but
does not examine the potential site-specific impacts of the many
individual projects that may be proposed in the future consistent
with the plan. [Citations.] Program EIRs play a key role in a
‘tiered’ CEQA analysis.” (Citizens for a Sustainable Treasure
Island v. City and County of San Francisco (2014) 227
Cal.App.4th 1036, 1047.)
In contrast, a project EIR “is prepared for a construction-
level project, and ‘should focus primarily on the changes in the
environment that would result from the development project
[and] examine all phases of the project including planning,
construction, and operation.’ [Citations.]” (Citizens for a
Sustainable Treasure Island v. City and County of San Francisco,
supra, 247 Cal.App.4th at p. 1047 [citing Guidelines, § 15161].)
B. Analysis
Here, as the trial court found, the Community Plan is
described as the adoption of the second in a series of four
community plans, involving amendments to the General Plan and
zoning ordinance, which together constitute a series of actions
related geographically as logical parts in a chain of actions, and
individual activities having generally similar environmental
effects—the very definition of a program EIR. In fact, the
program EIR provides that the Community Plan is “intended to
15
act as an analytical superstructure for subsequent, more detailed
analyses associated with individual discretionary project
applications consistent with the proposed” Community Plan.
(Fn. omitted.) The fact that future environmental review may
qualify for exemptions and streamlining is not foreclosure of
further CEQA review/mitigation. In fact, the Program EIR
commits the City to subsequent review pursuant to CEQA
guidelines for tiering from a program EIR.
The cases cited by petitioner are inapposite because they do
not address program versus project-level EIRs; rather, they
concern whether an EIR needed to be prepared in the first
instance. (City of Redlands v. County of San Bernardino (2002)
96 Cal.App.4th 398, 410; Bozung v. Local Agency Formation Com.
(1975) 13 Cal.3d 263, 281.)
Petitioner further challenges the trial court’s determination
on the grounds that its reliance upon tiering of future projects
was erroneous. We disagree.
Tiering uses “analysis of general matters contained in a
broader EIR (such as one prepared for a general plan or policy
statement) with later EIRs and negative declarations on
narrower projects; incorporating by reference the general
discussions from the broader EIR; and concentrating the later
EIR or negative declaration solely on the issues specific to the
later project.” (Guidelines, § 15152, subd. (a).) Tiering is
encouraged to “eliminate repetitive discussions of the same issues
and focus the later EIR or negative declaration on the actual
issues ripe for decision at each level of environmental review.”
(Guidelines, § 15152, subd. (b).) Thus, despite petitioner’s
argument to the contrary, tiering under section 15152 does not
require later environmental review, whether by subsequent EIR
16
or negative declaration, to “cure . . . inadequacies” or reduce
impacts, particularly those already analyzed and determined to
be incapable of mitigation.
In light of the foregoing, we reject petitioner’s contention
that the trial court improperly upheld project description,
premature notice of determination, baseline, alternatives, failed
or deferred mitigation, and nonconcurrent adoption and study of
general plan land use, circulation, and environmental justice
elements.
V. EIR baseline was not flawed
Petitioner argues that the judgment must be reversed
because the EIR baseline for the program EIR was flawed.
According to petitioner, the EIR’s projected baseline is not
supported by substantial evidence.
A. Relevant law
An accurate baseline is fundamental for an EIR; without it,
the “analysis of impacts, mitigation measures and project
alternatives becomes impossible.” (County of Amador v.
El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 953.)
CEQA mandates that the baseline be based upon physical
environmental conditions as they exist at the time the notice of
preparation is filed. (Guidelines, § 15125, subd. (a)(1).) While
CEQA allows projected baselines of future conditions where the
existing circumstances are subject to change, it mandates that
“[u]se of projected future conditions as the only baseline must be
supported by reliable projections based on substantial evidence in
the record.” (Guidelines, § 15125, subd. (a)(2).)
B. Analysis
The program EIR population and housing baseline is
supported by ample evidence: data relied upon is sourced and the
17
baseline settings are explained and supported. Specifically, the
program EIR relies upon U.S. Census data, the Southern
California Association of Governments’s 2017 profile of the City
of Glendale, the Housing Element, and the City’s habitable
dwelling unit data to establish a population and housing baseline
and to calculate population based on the average persons per
household.
Furthermore, the summary of the project, local and
regional conditions, and forecasted growth in the program EIR
7
are also supported by substantial evidence.
VI. Community Plan did not violate the planning and zoning
laws
Petitioner argues that the Community Plan violated the
planning and zoning laws. It points us to two claimed errors:
(1) internal GP inconsistency, and (2) nonconcurrent adoption of
the environmental justice element. We address each in turn.
A. Internal inconsistency
Government Code section 65300.5 provides, in relevant
part: “Legislature intends that the general plan and elements
and parts thereof comprise an integrated, internally consistent
and compatible statement of policies for the adopting agency.”
According to petitioner, the Community Plan is inconsistent and
therefore improper pursuant to this statute.
Petitioner’s reliance upon Government Code section
65300.5 is misplaced. As the trial court correctly found, on
July 31, 2018, when the City certified the Program EIR and
7
Because the baseline is not flawed, it follows that we reject
petitioner’s contention that all of the EIR’s alternatives are
unreasonable.
18
approved Alternative 2, Glendale, a charter city, was not subject
to either Government Code section 65300.5 or 65359, which
impose general plan consistency requirements on general law
cities. Thus, as a matter of law, petitioner’s claim is rejected.
Setting that aside, petitioner offers no evidence that the
Community Plan resulted in inconsistencies. And, as the trial
court aptly noted, “[t]he [Community Plan] is not implemented
yet. Amendments to insure consistency with the general plan
will be made before the [Community Plan] is implemented.”
Since the Community Plan amendments have yet to be adopted,
petitioner’s claim of inconsistency is premature.
B. Environmental justice
Government Code section 65302, subdivision (h)(2),
requires a city or county to “adopt or review the environmental
justice element, or the environmental justice goal, policies, and
objectives in other elements, upon the adoption or next revision of
two or more elements concurrently on or after January 1, 2018.”
Petitioner contends that the Community Plan approvals adopted
and/or amended two elements of the City’s general plan, thereby
requiring the City to adopt an environmental justice element.
Petitioner is mistaken.
The Community Plan implementation section explicitly
refers to later implementation actions that will include the
adoption of environmental justice policies to satisfy Government
Code section 65302, subdivision (h)(2). The mere mention of
these two elements for later amendment does not immediately
trigger Government Code section 65302, subdivision (h)(2),
compliance.
19
VII. Impacts and mitigation measures are identified
Petitioner asserts that the City “fail[ed] to mitigate
impacts” and “omit[ted] cumulative impacts” and that these
alleged omissions violate CEQA’s information mandates.
Mitigation measures are actions that are intended to avoid,
minimize, rectify, or eliminate any significate adverse impact of a
project. (Guidelines, §§ 15370, 15126.4, subd. (a)(1).)
Enforcement of such measures is ensured through the adoption of
a required mitigation monitoring and reporting requirement.
(§ 21081.6.)
For the reasons outlined by the trial court, we disagree.
The EIR discusses the environmental impacts of the Community
Plan project and the mitigation measures for those impacts and
whether, after the application of the mitigation measures, the
environmental impacts will remain significant.
VIII. Notice of Determination
As it did in the trial court, petitioner asserts that the
Notice of Determination was prejudicially premature. But, as it
also did in the trial court, petitioner relies upon exhibits not
received into evidence. Because this argument is not based upon
admitted evidence, it fails.
IX. Failure to recirculate the EIR
Petitioner argues that the City violated CEQA by failing to
recirculate the EIR to reflect new significant information.
Respondents do not address this argument in their respondents’
brief.
“‘If significant new information is added to an EIR [or to
the administrative record], the lead agency must issue a new
notice and recirculate the EIR for comments and consultation.’
[Citations.]” (Gray v. County of Madera (2008) 167 Cal.App.4th
20
1099, 1120.) According to petitioner, the new significant
information includes the “DSP Moratorium” and the fact that the
City realized its Community Plan was inconsistent. These claims
fail.
Petitioner’s claim concerning the “DSP Moratorium” is one
of the New CEQA Claims properly dismissed by the trial court.
While the original petition for writ of mandate set forth one
paragraph concerning the DSP Moratorium, no allegations arose
from it. Those allegations did not appear until the first amended
petition.
And, as discussed above, the Community Plan is not
inconsistent.
X. Costs
A. Standard of review
We review the trial court’s cost award for abuse of
discretion. (El Dorado Meat Co. v. Yosemite Meat & Locker
Service, Inc. (2007) 150 Cal.App.4th 612, 617.)
B. Relevant law
“[A] prevailing party is entitled as a matter of right to
recover costs in any action or proceeding.” (Code Civ. Proc.,
§ 1032, subd. (b).) The statutes governing the award of costs
create three categories of costs: (1) those specifically enumerated
as “allowable” (Code Civ. Proc., § 1033.5, subd. (a) (section
1033.5)); (2) those specifically enumerated as “not allowable
. . . except when expressly authorized by law” (§ 1033.5, subd.
(b)); and (3) those “not mentioned” in the statutes, which are
recoverable “in the court’s discretion” (§ 1033.5, subd. (c)(4)).
(Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th
44, 71.) Any costs awarded must be “reasonably necessary to the
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conduct of the litigation” and “reasonable in amount.” (§ 1033.5,
subds. (c)(2) & (3).)
Courts employ a burden-shifting analysis. The prevailing
party bears the initial burden of establishing prima facie
entitlement to the recovery of costs, which it meets if its verified
cost bill “‘appears proper on its face.’” (Benach v. County of
Los Angeles (2007) 149 Cal.App.4th 836, 855; Ladas v. California
State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) The
nonprevailing party then bears the burden of making a “proper[]
object[ion]” to specific costs in a motion to tax. (Jones v.
Dumrichob (1998) 63 Cal.App.4th 1258, 1265.)
C. Analysis
Applying these legal principles, we conclude that the trial
court properly awarded respondents their costs.
1. Filing fees
Section 1033.5, subdivision (a)(14), allows a prevailing
party to recover costs for “[f]ees for the electronic filing or service
of documents through an electronic filing service provider if a
court requires or orders electronic filing or service of documents.”
Furthermore, courier and messenger charges related to trial
preparation and incurred for such matters as filing documents
with the court, complying with document demands, and
transporting exhibits to and from the courtroom may also be
reimbursable costs. (See, e.g., Ladas v. California State Auto.
Assn., supra, 19 Cal.App.4th at p. 776; Benach v. County of
Los Angeles, supra, 149 Cal.App.4th at pp. 857–858.)
Here, the trial court required pick-up and delivery of the
record and related documents, and requested service of courtesy
copies. Thus, the trial court’s award of costs for these services
was well within the trial court’s discretion.
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On appeal, petitioner asks us to reverse the cost award on
the grounds that the cost breakdown of e-filing and e-service fees
“significantly differed” between the City’s memorandum of costs
and its opposition to petitioner’s motion to tax costs. We are not
convinced. While the description of those charges may be
different, the total charges are the same.
2. Costs of hearing transcripts
Petitioner further argues that the trial court erred in
awarding respondents costs for 10 transcripts.
Section 1033.5, subdivision (a)(9), allows for the recovery of
costs for “[t]ranscripts of court proceedings ordered by the court.”
(See also § 1033.5, subd. (c)(4) [certain items may be allowed in
the court’s discretion].)
The trial court acted well within its discretion when it
determined that the City needed all of the hearing transcripts to
fairly conduct this litigation. Petitioner referenced incomplete
transcripts in various motions and declarations. As the trial
court aptly noted, this case was unnecessarily contentious and
complicated, partially because of petitioner’s
mischaracterizations. For example, petitioner repeatedly insisted
that the City agreed to pay record preparation costs and that the
trial court did not transfer record preparation to the City.
Petitioner is wrong. As set forth above, when petitioner could not
timely prepare the record, the trial court ordered the City to do
so. And, while the City was initially “willing to consider” forgoing
some costs, it never agreed to do so; in fact, it expressly reserved
its right to request costs. Despite these clear facts, petitioner
continues to misrepresent what occurred, confirming why hearing
transcripts were critical to ensure fairness, integrity, and
accuracy in these proceedings. (§ 1033.5, subd. (c)(4).)
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In so finding, we reject petitioner’s assertion that it would
be inequitable to award these costs to respondents because
petitioner already paid for “transcript/reporter costs.” Petitioner
chose to transcribe all of the hearings, and the City paid for its
copy of the transcripts it needed to conduct the litigation. The
City was not required to share in petitioner’s transcript costs.
That said, on March 6, 2020, the trial court asked for the
February 28, 2020, and March 6, 2020, transcripts in order to
review the matter under submission. On March 23, 2020,
petitioner asked the City to share the cost of providing the
transcripts required by the court, and the City agreed to the
March 6, 2020, transcript only. Thus, respondents rightly agreed
to be taxed for this one cost.
3. Costs of exhibits
Petitioner argues that costs associated with photocopying
trial exhibits are not recoverable.
Section 1033.5, subdivision (a)(13), allows a party to
recover costs for “[m]odels, the enlargement of exhibits and
photocopies of exhibits, and the electronic presentation of
exhibits, including costs of rental equipment and electronic
formatting, may be allowed if they were reasonably helpful to aid
the trier of fact.” (See, e.g., El Dorado Meat Co. v. Yosemite Meat
and Locker Service, Inc., supra, 150 Cal.App.4th at pp. 618–619.)
Here, as set forth in the City’s memorandum of costs, the
City sought costs for copying the record to provide the trial court
with the evidence it needed for trial. (Benach v. County of
Los Angeles, supra, 149 Cal.App.4th at p. 856 [“[a]lthough the
[prevailing party] did not use the majority of its exhibits at trial,
nothing indicates it could have anticipated that they would not be
used. An experienced trial judge would recognize that it would be
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inequitable to deny as allowable costs exhibits any prudent
counsel would prepare in advance of trial”].) The trial court did
not abuse its discretion in awarding them.
4. Record preparation costs
As the prevailing party in a CEQA proceeding, the City was
entitled to costs. (Code Civ. Proc., § 1032, subd. (b).) Those costs
include “the amounts . . . reasonably and necessarily incurred in
preparing the” record of proceedings. (Wagner Farms, Inc. v.
Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 774; River
Valley Preservation Project v. Metropolitan Transit Development
Bd. (1995) 37 Cal.App.4th 154, 181 [“Whether a particular cost to
prepare an administrative record was necessary and reasonable
is an issue for the sound discretion of the trial court”].)
Urging us to reverse, petitioner argues that the City either
agreed to pay costs or forgo future costs. While the record is not
entirely clear, the trial court did not err in concluding that the
City specifically reserved its right to seek costs. As noted above,
respondents’ counsel specifically stated that they were “still going
to make a motion for those costs. We’re entitled to under the
law.” This statement supports the trial court’s determination
that the City did not unequivocally agree to either waive all costs
or forgo all future costs.
For the first time on appeal, petitioner argues that the City
is estopped from claiming costs it agreed to forgo. Aside from the
fact that we are not convinced by petitioner’s characterization of
counsel’s comments at the August 7, 2019, hearing, this
argument has been forfeited. It is well-settled that arguments
not raised in the trial court may not be raised on appeal.
(Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th
657, 699.)
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DISPOSITION
The judgment is affirmed. Respondents are entitled to
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
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