Despite well-reasoned requests for depublication made by the City of Los Angeles, the California Building Industry Association (CBIA), the California State Association of Counties (CSAC) and the League of California Cities (League), the Second District’s questionable and controversial decision in, et al. v. City of Los Angeles, et al. (2019) 39 Cal.App.5th 1 remains “on the books” as published precedent.  The California Supreme Court on November 26, 2019 entered its order denying the depublication requests and declining to review the matter on its own motion.  Justice Corrigan and Justice Kruger voted to depublish the opinion, about which I previously blogged here.

I understand that, particularly in some academic circles, the practice of depublication itself is controversial, and that some members of the Supreme Court may share to some extent a philosophy that they should be very hesitant to depublish opinions.  Be that as it may, as a very practical matter it would be impossible for the Supreme Court, with its crushing workload, to properly carry out its duties and manage the State’s published judicial precedents – so as to secure uniformity of decision and provide useful guidance to courts, lawyers and litigants – if it did not exercise its power of depublication.  And, indeed, it has exercised that power numerous times in recent years – and, as relevant here, has done so in the particularly fertile and active area of CEQA decisions.  (See, e.g., the following posts on this blog: “Supreme Court Denies Review And Depublishes CEQA Subsequent Review/ “Spot-Zoning” Case Involving Partially Built Los Angeles Target Superstore Project” (posted March 5, 2019); “Supreme Court Depublishes Partially Published Decision Applying Settled “Final Judgment” Rules in CEQA Writ Action” (posted March 15, 2019); “Another One Bites the Dust: Supreme Court Denies Review And Depublishes Sixth District’s SMARA/CEQA Opinion Upholding Permanente Quarry Reclamation Plan Amendment And Related EIR” (posted February 1, 2017); “Wither Subsequent Review? Supreme Court Again Weighs In On CEQA Subsequent Review Standards Following Negative Declarations – Grants, Retransfers, and Depublishes First District’s Coastal Hills Rural Preservation Decision” (posted November 30, 2016); “Supreme Court Depublishes Quirky Fourth District CEQA/General Plan Decision” (posted August 26, 2016); “Supreme Court Depublishes Lengthy CEQA Categorical Exemption Case” (posted October 1, 2015); but see also “Depublication of Controversial CEQA Common Interest Case Denied By Supreme Court, Leaving Troublesome Split of Authority” (posted October 17, 2013).)

Thus, it cannot be denied that there are times when depublication is called for, and, in my opinion, the decision clearly calls for it.  Setting completely aside the opinion’s questionable CEQA project description analysis – a topic area the Supremes might legitimately want to percolate a bit in the appellate courts – depublication was more-than-amply warranted by the decision’s clearly erroneous analysis of whether CEQA requires a reviewing court to address all CEQA deficiencies alleged in an action even after it finds prejudicial error sufficient to require invalidation of the agency’s action on one of the grounds alleged.

Relying solely on a criminal case citing a personal injury case – both of which dealt with minimum constitutional requirements for memorandum opinions of appellate courts to “state reasons for the disposition” (see People v. Garcia (2002) 97 Cal.App.4th 847, 853, which quoted Lewis v. Superior Court (1999) 19 Cal. 4th 1232, 1264) – and a CEQA statute (Pub. Resources Code, § 21168.9) that does not address the relevant issue, the opinion (written by a Los Angeles County Superior Court judge sitting by assignment) states:

“The parties raise other issues regarding the EIR’s sufficiency on appeal, including, inter alia, whether the City is required by law to use Caltrans’ methodology for the study of traffic effects, whether the City was required to consider cumulative effects, including those on the 101 Freeway, in evaluating the project under CEQA, and whether the seismic issues were sufficiently disclosed.  Given that the project description is fatally defective and supports the trial court’s decision to issue the writ, we need not reach these issues…. [citations].  An appellate court is not required to address every one of the parties’ respective arguments or express every ground for rejecting every contention advanced by every party.”  (39 Cal.App.5th at 20, fn. and citation omitted.)

The Court’s attached footnote then makes the irrelevant observation that CEQA’s remedies provision, “Public Resources Code section 21168.9[,] does not mandate that we rule on every issue presented on appeal” and instead “provides that the trial court’s order, upon remand, shall include only those mandates that are necessary to achieve CEQA compliance.”  (Id. at 20, fn. 10.)

This whole “analysis” is dead wrong, of course, and mostly off-topic.  The minimum constitutional requirements for a valid appellate opinion have no bearing on whether courts are required by law to address all alleged noncompliance issues in CEQA cases.  Public Resources Code § 21168.9, which governs the mandatory contents of writs of mandate after a court has found an actual violation or violations of CEQA, has nothing to say about whether the court must address all claimed violations, either.  Worse, the Second District’s blithe, almost dismissive analysis flies in the face of a directly-on-point CEQA statute that the opinion somehow fails to even cite – Public Resources Code § 21005(c) – which provides:  “It is the further intent of the Legislature that any court, which finds, or, in the process of reviewing a previous court finding, finds, that a public agency has taken an action without compliance with this division, shall specifically address each of the alleged grounds for non-compliance.”  (See, also, e.g., North Coast Rivers Alliance v. Kawamura (2015) Cal.App.4th 647, 654 [“Our finding of CEQA violations as to some issues does not relieve us from reviewing appellants’ other contentions.”].)

While it has been held that Section 21005(c) “does not require [an] appellate court to address additional alleged defects that may be addressed in a completely different and more comprehensive manner upon CEQA review following remand” (id. at 682), that judicially created exception to Section 21005(c)’s rule was neither cited nor even obliquely referred to in the Second District’s reasoning here. Nor is it apparent that the CEQA issues on traffic analysis methodology, cumulative impacts and seismic impacts that it left undecided would be at all affected by a post-remand EIR providing a more specific project description.  Rather, given that the project EIR already analyzed a maximum building envelope/environmental impact scenario, it is quite likely those discrete issues would be entirely unaffected or at least would not be “addressed in a completely different and more comprehensive manner” in any revised EIR.  In any event, as already noted, the court’s reasoning for not reaching those issues did not take such considerations into account at all, and essentially boiled down to “we don’t have to and you can’t make us.”

The Second District’s reasoning in this regard is thus not only exceptionally poor, and its statement of the governing law demonstratively wrong, but it will set harmful CEQA precedent if cited – as it undoubtedly will be – by litigious project opponents, and followed – as it hopefully will not be – by overworked or lazy judges in future cases.  As experienced practitioners know, CEQA actions commonly raise a large number of issues and alleged grounds for non-compliance in “shotgun” fashion.  Section 21005’s purposes in requiring that all CEQA issues be addressed appear to include providing lead agencies with useful guidance on remand where some CEQA violations are found (thus requiring a new process and new or revised CEQA documents), and preventing inefficient and wasteful “piecemeal” litigation where the very same claimed but unadjudicated violations are raised in subsequent “rounds” of litigation.  (See, e.g., Remy, et al., Guide to CEQA (11th Ed. 2006), pp. 895-896.)  While endless rounds of piecemeal CEQA litigation might be an obstructive CEQA plaintiff’s dream, it is most assuredly a nightmare for public agencies and project proponents trying in good faith to achieve compliance with an already complex law.

By the very nature of the depublication process, the Supreme Court majority’s reasons for not depublishing the decision here will, of course, never be known.  But I sincerely doubt a majority of the Supreme Court actually believes this decision, on the points discussed above, correctly states the law, or contributes anything of publication-worthy value to the legal literature, or promotes sound public policy (and if it does, we CEQA practitioners and our clients are in really big trouble).  It seems to me that depublication of would have been an ideal, no-risk solution for the Court to address the opinion’s glaring flaws, since depublication leaves the decision in place between the parties (and the Supreme Court may or may not have agreed with the case’s result of invalidating the EIR’s “blurry” project description), but erases the harmful precedent for the rest of us.  Depublication even provides abundant judicial “cover” (if that is desired) because it “is not an expression of the court’s opinion of the correctness of the result of the decision or of any law stated in the opinion.”  (Cal. Rules of Ct., Rule 8.1125(d).)

If the majority’s objection to depublication here was based on some lofty principle of “transparency,” then in my view it fails to sufficiently appreciate its critical role as the gatekeeper of published California precedent – which, lest we forget, exists as such primarily for the benefit of providing helpful guidance to busy judges, lawyers and litigants trying to make sense of the law.  Leaving clearly bad law “on the books” can only do harm – which in this case would be the judicial sanctioning of wasteful piecemeal CEQA litigation.  It’s a shame that only Justices Corrigan and Kruger appeared to recognize or care about that.


Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit