In a published opinion filed November 4, 2021, the Second Appellate District (Div. 8) affirmed the Los Angeles County Superior Court’s order denying International Longshore and Warehouse Union Locals 13, 63, and 94’s (“Union”) motion for permissive intervention in complex CEQA litigation involving the China Shipping Container Terminal (“Terminal”) in the Port of Los Angeles.  South Coast Air Quality Management District v. City of Los Angeles, et al (China Shipping (North America) Holding Co., Ltd., et al, Real Parties in Interest) (2021) ___ Cal.App.5th ___.

Factual and Procedural Background of the Complex Litigation

As background, the Port of Los Angeles (owned and run by the “City entities”) is the Western Hemisphere’s busiest seaport, and is critical to U.S./Asia trade.  The Terminal is long-term leased by Chinese government-owned entities (“China Shipping”) from the City entities and handles about 17% of the Port’s total cargo.  The Terminal’s operations are authorized by a permit issued to China Shipping by the City entities.  The City entities were supposed to incorporate mitigation measures from a 2008 EIR (arising from an earlier CEQA action settlement) into China Shipping’s lease, but didn’t; many measures were only potentially implemented or ignored altogether, leading to the City entities’ consideration and adoption of revised measures pursuant to a 2020 EIR.  Again, the new measures were not enforced or incorporated in the lease, and China Shipping refused to implement or pay for them.  Predictably, this led to CEQA litigation.

First, South Coast Air Quality Management District (“Air District”) sued the City entities for failing to enforce the 2008 mitigation measures and on the 2020 EIR, naming the China Shipping entities as real parties, and seeking to set aside the Terminal project approvals and disallow its operation.  The Attorney General (“AG”) was then granted mandatory intervention by the trial court pursuant to its statutory intervention rights, and the California Air Resources Board (“CARB”)  was granted partial mandatory intervention, with its participation confined to 2020 EIR mitigation measures that could affect an emissions reduction plan that CARB had statutory responsibility to implement.

The Trial Court’s Order Denying Permissive Intervention
And The Court Of Appeal’s Opinion Affirming It

The trial court denied the Union’s motion for permissive intervention, which was predicated on its claim that 3,075 members would lose their jobs if the court granted a Terminal shut-down CEQA remedy.  (The Union’s motion was supported by the City entities and opposed by the Air District.)

The Court of Appeal affirmed the trial court’s order under an “abuse of discretion” standard of review.  Under the permissive intervention statute (Code Civ. Proc., § 387(d)(2)), the trial court has “broad discretion” to “balance the interests of those affect by a judgment [and seeking to intervene] against the interests of the original parties in pursuing their case unburdened by others.”  Here, “the trial court reasonably concluded the Air District’s interest in litigating the case without Union involvement outweighed the Union’s reasons for intervening.”  The case was already complex (with many lawyers, eight petitioners, four respondents, and four real parties ); the Union’s interests in defending the action were duplicative of those of the City entities (which likewise sought to maintain Terminal operations and jobs, and did not lack motivation to do so); and the trial court reasonably “conclude[d] that Union participation would be largely cumulative and would unduly complicate an already complicated case.”

Per the Court of Appeal, allowing all unions, consumers, and affected interests to intervene based on the type of interest held by the Union would allow multitudes to intervene and “enter the fray” and “[t]he trial court had no mandatory obligation to open the gate to every potentially affected interest that might mobilize itself to appear.  Experienced trial judges must balance the practical realities of trial court management against the claims of all wishing to be heard directly.  The trial court’s decision was sound.”

Takeaways

This case illustrates the significant difference between mandatory and permissive litigation.  Just because a potentially affected party says “me, too” is not enough to guarantee it a seat at a crowded litigation table in a complex CEQA case where the trial court determines its interests are duplicative of those of a party or parties already in the action, and its participation would unduly complicate the case.

 

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 fifty years.  For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, 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, construction, management, title insurance, environmental law, and redevelopment and land use.  For more information, visit www.msrlegal.com