On April 7, 2023, the Third District Court of Appeal filed a lengthy published opinion – the latest installment in one of the longer ongoing CEQA battles in recent memory – affirming a judgment finding an EIR for the Federal relicensing of Oroville Dam and related hydropower facilities legally adequate. County of Butte and County of Plumas, et al v. Dept. of Water Resources (2023) 90 Cal.App.5th 147.Continue Reading That Dam Case (Again): Third District Upholds Oroville Hydropower Facilities Relicensing EIR Against Numerous CEQA Challenges
While CEQA is a complicated area of law, often criticized as a “plaintiff’s sandbox,” CEQA litigation is not a “free-for-all” immune from malicious prosecution actions when it is unsuccessfully pursued with malice and without probable cause. Such is the teaching of the First District Court of Appeal’s December 28, 2022 published opinion in Charles Jenkins et al v. Susan Brandt-Hawley et al (1st Dist., Div. 2, 2022) 86 Cal.App.5th 1357, which affirmed the trial court’s order denying an anti-SLAPP motion and allowing a malicious prosecution action to proceed against a prominent CEQA attorney and her law firm.Continue Reading When CEQA Litigation Turns Tortious: First District Affirms Order Denying Anti-SLAPP Motion, Allows Malicious Prosecution Action To Proceed Against Counsel Who Brought Unsuccessful CEQA Challenge To Single-Home Project
In an opinion filed April 23, and later certified for publication on May 13, 2021, the Fourth District Court of Appeal affirmed in part an order denying an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion, and held that a malicious prosecution action could proceed against losing CEQA plaintiffs who had unsuccessfully challenged a Mitigated Negative Declaration (MND), but not against their attorneys. Jan Dunning, et al. v. Kevin K. Johnson, APLC, et al. (4th Dist. 2021) 64 Cal. App. 5th 156. While the merits of the malicious prosecution action have yet to be determined, the Court of Appeal’s ruling that the action could even proceed is itself significant given the daunting hurdle posed by the anti-SLAPP statute, and should give pause to project opponents who think that meritless CEQA litigation lacking probable cause and brought with malice can be pursued without potential consequence.
Continue Reading Is More Litigation the Remedy for Meritless CEQA Litigation? Fourth District Concludes Malicious Prosecution Action Against Losing CEQA Plaintiffs Survives Anti-SLAPP Motion
In a 74-page opinion filed February 24, and later ordered published on March 17, 2020, the Second District Court of Appeal (Division 7) affirmed judgments (granting the writ petition and awarding fees) in coordinated appeals stemming from a CEQA action successfully challenging the City of Agoura Hills’ (City) project approvals and mitigated negative declaration (MND) for a mixed use development project on an undeveloped 8.2 acre parcel. Save the Agoura Cornell Knoll v. City of Agoura Hills (Doron Gelfand, et al., Real Parties in Interest) (2020) 46 Cal.App.5th 665. The Court rejected the City’s and Real Parties’ procedural arguments that Petitioners and Respondents Save the Agoura Cornell Knoll (STACK) and California Native Plant Society (CNPS) had failed to exhaust administrative remedies, and that their claims were barred by lack of standing and the statute of limitations; on the merits of the CEQA claim, it held that substantial evidence in the record supported a fair argument that even as mitigated the project may have significant impacts on cultural resources (i.e., a Chumash Native American archaeological site), three sensitive plant species, native oak trees, and aesthetic resources, and that an EIR was therefore required; and it further held the trial court properly granted writ relief based on the City’s violation of its own Oak Tree Ordinance by approving a project that would concededly remove 35 to 36 percent of the site’s oak tree canopy when the Ordinance prohibited removal of more than 10 percent. Finally, the Court held that the trial court properly awarded Petitioners STACK and CNPS $142,148 in attorneys’ fees under Code of Civil Procedure § 1021.5, made payable 50% by City and 50% by Real Parties, notwithstanding that Petitioners furnished their first amended petition to the Attorney General (AG) beyond the 10-day statutory period for doing so.
Continue Reading Second District Affirms Judgment Invalidating City of Agoura Hills’ Mixed-Use Project Approvals and Related MND Based On CEQA and Local Oak Tree Ordinance Violations
Time for some “spring cleaning” updates on several notable CEQA-related matters.Continue Reading Spring CEQA Roundup – 2020
In an opinion filed June 28, and later ordered modified and published on July 27, 2018, the Second District Court of Appeal (Div. 6) affirmed the trial court’s $21,160.46 cost award in favor of a prevailing party public agency for costs associated with preparing the administrative record in a CEQA case, despite petitioner’s election to prepare the record, where the petitioner had unreasonably delayed and the agency acted reasonably. LandWatch San Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638.
Continue Reading Second District Affirms Order Awarding CEQA Record Preparation Costs to Agency That Took Over Process After Unreasonable Delays, Notwithstanding Petitioner’s Election to Prepare Record
It’s always nice not to lose a hard-won prevailing party cost award due to a court’s imprecise use of party designations – which can get confusing where there are multiple appeals at issue. On October 4, 2016, the Fifth Appellate District Court of Appeal issued a two-page Order entitled “Order Modifying Opinion and Denying Rehearing [Includes Change In Judgment]” in the recently decided consolidated appeals in the Citizens for Ceres v. City of Ceres litigation. The minor change made in the last sentence of the opinion’s disposition clarified that: (1) Respondents (City of Ceres and Real Party Wal-Mart Stores, Inc., et al.) were awarded costs as prevailing parties in the merits appeal, which affirmed the trial court’s judgment denying the writ petition challenging the EIR, statement of overriding considerations, and approval of Wal-Mart’s controversial Ceres project; and (2) Appellants (Wal-Mart, et al.) were awarded costs as prevailing parties in the separate costs appeal, which resulted in the published portion of the opinion reversing the trial court’s order taxing costs of $44,889.71 claimed by Wal-Mart for amounts it had to reimburse the City for administrative record preparation. My post on the Court’s partially published September 12, 2016 opinion in the case can be found here.
Continue Reading Fifth District Denies Rehearing, Corrects Published Opinion And Judgment In Consolidated City of Ceres Appeals To Reflect Wal-Mart’s Cost Award As Prevailing Party On Costs Appeal
In the published portion of an opinion filed September 12, 2016, the Fifth District Court of Appeal reversed the trial court’s order taxing costs in the amount of $44,889.71 which were claimed by prevailing real party in interest Wal-Mart in connection with preparation of the administrative record. The costs were incurred by respondent and lead agency City of Ceres when it directed its outside counsel to prepare the record in a CEQA action challenging a Wal‑Mart Supercenter project, and were reimbursed by real party Wal-Mart pursuant to an agreement with the City that required the project applicant to reimburse it for all expenses arising from legal challenges to the project. Citizens For Ceres v. City of Ceres (Wal-Mart Stores, Inc., et al., Real Parties in Interest) (2016) 3 Cal.App.5th 237.
Continue Reading Neither CEQA Administrative Record Preparation Statute nor Case Law Precludes Award of Costs to Prevailing Real Party who Reimburses Lead Agency Its Costs of Record Preparation
About one year after being placed in the California Legislature’s “Inactive File,” SB 122 (concerning concurrent preparation of the CEQA administrative record and OPR electronic database) is back “off the shelf.” The bill passed in the State Assembly yesterday, and will next be considered by the Senate for concurrence in the Assembly’s amendments. It must be passed by both houses between now and the end of the month (if it is to be sent to Governor Brown for signature).
As originally proposed in early 2015, SB 122 contained only one detailed statutory provision – the addition of Public Resources Code § 21167.6.2 – which would create a detailed new alternative method for expedited preparation of the record of proceedings (i.e., the “administrative record”) in CEQA cases, at the election and expense of the applicant and with the consent of the public agency. It also contained two “placeholder” sections declaring the Legislature’s intent to establish an electronic database clearinghouse of CEQA documents maintained by the State Office of Planning and Research (OPR) and to establish a public review period for Final EIRs.Continue Reading Statutory CEQA Reform Proposal (SB 122) Reemerges With Optional Expedited Record Preparation Provisions Unchanged; Fleshes Out OPR Electronic Database Placeholder; And Drops Controversial Effort To Provide Public Review Period for Final EIRs
In a published opinion filed January 26, 2016, the Court of Appeal for the Fourth Appellate District (Division 2) reversed a trial court’s order denying CEQA plaintiffs’ motion to amend judgments entered four (4) years earlier to add a previously unnamed corporate entity so that it would be liable on award of over $1 million in attorneys’ fees entered under CCP § 1021.5. Highland Springs Conference And Training Center v. City of Banning (SCC Acquisitions, Inc., et al., Real Parties in Interest) (4th Dist., Div. 2, 2016) 244 Cal.App.4th 267.
Continue Reading Motion to Amend CEQA Action Judgments to Make Additional Judgment Debtor Liable For Million Dollar Fee Award Not Barred By Plaintiffs’ Unreasonable Four-Year Delay Or Laches Absent New Party’s Showing Of Prejudice, Holds Fourth District