Yuba Group Against Garbage v. City and County of San Francisco CA1/4 ( 2015 )

Filed 6/2/15 Yuba Group Against Garbage v. City and County of San Francisco CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
YUBA GROUP AGAINST GARBAGE,
Plaintiff and Appellant,
v.
CITY AND COUNTY OF SAN A139409
FRANCISCO et al.,
(City & County of San Francisco
Defendants and Respondents; Super. Ct. No. CPF-11-511545)
RECOLOGY SAN FRANCISCO et al.,
Real Parties in Interest.
This appeal challenges the adequacy of the City and County of San Francisco’s
(the “City”) compliance with the California Environmental Quality Act (CEQA; Pub.
Resources Code, § 21000 et seq.) with respect to two contracts, now since terminated,
concerning the transportation of waste by rail from San Francisco County to Yuba
County. The trial court dismissed the petition for writ of mandate filed by Yuba Group
Against Garbage (“YuGAG”), after sustaining the City’s demurrer without leave to
amend, on the grounds that the action was both moot and not ripe. We affirm.
I. BACKGROUND
A. Original Agreements Regarding Disposal and Transportation of Waste
In 1987, the City entered two agreements, both still in effect, that govern the
City’s disposal and transportation of municipal solid waste. In the first agreement, the
City, and the predecessors of both Waste Management of Alameda County (“WMAC”)
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and Recology San Francisco (“Recology”) agreed that WMAC’s Altamont Landfill in
Livermore, California would be the exclusive site for the disposal of the City’s solid
waste up to 15 million tons of waste or 65 years, whichever occurred earlier (“1987
Waste Disposal Agreement”). In the second agreement, Recology—in its capacity as the
licensed refuse collection and hauling company in the City—agreed to operate a transfer
station in the City and deliver waste to the Altamont Landfill (“1987 Facilitation
Agreement”).
B. Requests for Proposals
In February 2009, in anticipation of the exhaustion of the disposal capacity limit
under the 1987 Waste Disposal Agreement, the City issued a Request for Proposal for
Landfill Disposal Capacity (“RFP”). Both WMAC and Recology submitted proposals.
WMAC’s bid proposed continuing the current disposal process, with Recology taking the
waste from the transfer station and transporting it to the Altamont Landfill. Recology, on
the other hand, proposed that the City relocate waste disposal to Recology’s Ostrom Road
Landfill in Yuba County, with Recology transporting the waste out of the City by truck
and then transporting it by rail from the Port of Oakland to the Ostrom Road Landfill and,
as a back-up, Recology’s Hay Road Landfill in Vacaville (“Green Rail Project”).
In September 2009, after evaluating the proposals, the City issued a notice of
intent to award the disposal contract to Recology. The award was “contingent upon
successful negotiation of a contract for these service and approval of the contract by the
San Francisco Board of Supervisors.”
C. New Agreements
On July 28, 2011, the City and Recology executed two agreements (the “2011
Agreements”): 1) a Landfill Disposal Agreement (“2011 Landfill Agreement”), and
2) an amendment to the existing 1987 Facilitation Agreement entitled Amended and
Restated Facilitation Agreement (“2011 Amended Facilitation Agreement”). The 2011
Landfill Agreement designated the Ostrom Road Landfill as the exclusive disposal site
for the City’s solid waste. The 2011 Facilitation Agreement provided that Recology
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would transport the City’s solid waste from Recology’s transfer station through the Port
of Oakland to the Ostrom Road Landfill by rail.
D. Commencement of Litigation
In August 2011, YuGAG, a citizens group comprised of residents in Yuba and San
Francisco Counties, filed a petition for writ of mandate pursuant to Code of Civil
Procedure sections 1085 and 1094.5, alleging two causes of action. The first cause of
action alleged that the City violated CEQA by approving the Recology proposal without
evaluating the significant environmental effects of relocating the City’s waste disposal
location from the Altamont Landfill to the Ostrom Road Landfill. The second cause of
action alleged that the City violated its own administrative code in selecting Recology
through the RFP process. According to the petition, the “scope of the services at issue in
the RFP process was improperly broadened . . . to include transportation.”
The prayer for relief requested a writ of mandate requiring the City to: 1) “set
aside its approval” of the 2011 Agreements; 2) “suspend all activities in furtherance” of
its approval; 3) “re-open the RFP process”; and 4) “conduct environmental review” for
approval of the 2011 Agreements and “otherwise comply with CEQA in any subsequent
action” regarding such approval.
E. Subsequent Environmental Review and Termination of the 2011 Agreements
In April 2012, the Yuba County Planning Department issued a Notice of
Preparation (“NOP”) for an integrated Draft Environmental Impact Report (“EIR”) and
Environmental Assessment as part of the CEQA review for Recology’s proposed Green
Rail Project and proposed amendments to the permits for the Ostrom Road Landfill (“the
Project”). The Project location as described in the NOP includes Recology’s San
Francisco transfer station and the Oakland Rail Yard at 5th Avenue, as well as three sites
in Yuba County. The NOP states that the Draft EIR will evaluate the potential
environmental impacts of both Project construction and transport of the City’s waste from
Recology’s San Francisco transfer station to its Ostrom Road Landfill.
Based on the geographic scope of the Yuba County EIR, the City decided to join
in Yuba County’s environmental review efforts. Thereafter, in November 2012, the City
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and Recology agreed to terminate the 2011 Agreements (“Termination Agreement”).
The recitals to the Termination Agreement explained that Yuba County had begun a
CEQA review process that would address “the environmental impacts of the proposed
activities . . . at all points between Recology’s San Francisco transfer station and the
Ostrom Road Landfill”; that the City had elected to participate in Yuba County’s EIR
process; that the City would “act to ensure that the review process is as open to the public
and comprehensive as possible”; and that termination of the 2011 Agreements was
necessary “[t]o facilitate the City’s full and complete participation” in Yuba County’s
EIR process “and the City’s CEQA review.” The Termination Agreement states that
while “Recology’s proposal remains the City’s preferred alternative for purposes of
CEQA review, the City believes that terminating the 2011 Agreements is in the best
interest of the City and the public.”
Further, although the Termination Agreement states that the Recology’s proposal
will be the City’s proposed Project for purposes of CEQA review, it also gives the City
complete discretion to proceed with the Project, modify it, or select an alternative: “The
City reserves full discretion to consider the Project in light of the results of the Pending
CEQA Process and the City’s CEQA review, including whether to approve the Project,
whether to adopt possible mitigation measures that may apply, and whether to adopt any
and all modifications or alternatives to the Project that might be identified through the
CEQA process.”
Thereafter, the City and Yuba County agreed that Yuba County would be the
CEQA lead agency responsible for preparing the EIR. (See Cal. Code Regs., tit. 14,
§15050, subd. (a).) They based this decision on the fact that Yuba County has the
greatest regulatory responsibility for the Project as a whole because: 1) Yuba County has
discretion whether to approve permit amendments that would allow the Ostrom Road
Landfill to receive waste by rail; 2) the majority of construction activity would occur in
Yuba County; and 3) the majority of the environmental impacts would occur in Yuba
County.
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Yuba County also consulted with the Governor’s Office of Planning and Research
(“OPR”) about the designation of the lead agency. OPR advised that Yuba County would
be the appropriate lead agency, and suggested that the two jurisdictions enter into a
cooperative agreement, pursuant to the CEQA Guidelines, regarding their agreement as
to which agency should be the lead agency, as well as how they would “cooperate and
coordinate in preparation of the environmental review document for the proposed
Project.” (Cal. Code Regs., tit.14, § 15051, subd. (d).)
In March 2013, the City and Yuba County entered into an agreement concerning
their coordinated efforts to complete environmental review of the proposed Project
(“Cooperative Agreement”). The Cooperative Agreement provides that, in accordance
with California Code of Regulations, title 14, sections 15051, subdivision (d) and 15367,
Yuba County will act as the lead agency for purposes of environmental review under
CEQA and that, in accordance with sections 15096 and 15381 of title 14, the City will act
as a responsible agency. In that capacity, the City will actively participate in the CEQA
process, and will rely on the Final EIR when making a decision on any discretionary
approvals relating to the Project.
The Cooperative Agreement outlines the City’s and Yuba County’s coordinated
efforts in a number of areas related to preparation of the EIR, including staffing, EIR
scoping, public proceedings, working with the EIR consultant, and maintaining the
administrative record. Specifically, the City and Yuba County agreed to confer about the
content of the Draft EIR, “including, but not limited to, description of environmental
setting, appropriate baseline(s), significance thresholds, impact determinations,
mitigation measures, and a reasonable range of alternatives to the proposed Project.”
After entering into the Cooperative Agreement, Yuba County circulated a revised
NOP to provide notice that the City’s consideration of one or more agreements with
Recology for the disposal and transportation of San Francisco’s waste will be addressed
in the EIR. On April 17, 2013, Yuba County and the City held an additional public
scoping meeting on the Draft EIR at the San Francisco Planning Department. Yuba
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County also provided an additional 30-day comment period, from April 4 to May 3,
2013, for submission of comments on the scope and content of the Draft EIR.
F. The City’s Demurrer
After it executed the Termination Agreement, the City requested that YuGAG and
another plaintiff with a similar action that had been consolidated with YuGAG’s case
dismiss their actions. The other plaintiff settled with the City and dismissed its case.
YuGAG did not. Accordingly, the City filed a demurrer to the petition, contending that
YuGAG’s petition was “moot and unripe because the City has already terminated the
contracts at issue in this litigation.”
The trial court sustained the demurrer, finding that all of YuGAG’s claims were
either moot or not yet ripe. The court thereafter entered judgment against YuGAG and
the instant appeal followed.
II. DISCUSSION
A. Standard of Review
We review de novo a trial court’s sustaining of a demurrer, exercising our
independent judgment as to whether the complaint alleges sufficient facts to state a cause
of action. (Zelig v. County of Los Angeles (2002) 27 Cal. 4th 1112, 1126.) We assume
the truth of properly pleaded allegations in the complaint and give the complaint a
reasonable interpretation, reading it as a whole and with all its parts in their context.
(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 966-967.)
We apply the abuse of discretion standard in reviewing a trial court’s denial of
leave to amend. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) It is the appellant’s
burden to show either that the trial court erred in sustaining the demurrer or abused its
discretion in denying leave to amend. (Kong v. City of Hawaiian Gardens
Redevelopment Agency (2002) 108 Cal. App. 4th 1028, 1038.) We may affirm the
judgment if the complaint is objectionable on any of the grounds raised by the demurrer.
(Soliz v. Williams (1999) 74 Cal. App. 4th 577, 585.)
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B. Principles of Justiciability
In Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal. App. 4th 1559
(Wilson), our colleagues in Division Five of this judicial district succinctly set forth the
general principles of justiciability as follows: “California courts will decide only
justiciable controversies. (County of San Diego v. San Diego NORML (2008) 165
Cal. App. 4th 798, 813; see 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 21, pp. 84-
86.) The concept of justiciability is a tenet of common law jurisprudence and embodies
‘[t]he principle that courts will not entertain an action which is not founded on an actual
controversy. . . .’ (California Water & Telephone Co. v. County of Los Angeles (1967)
253 Cal. App. 2d 16, 22 (California Water); see also Stonehouse Homes LLC v. City of
Sierra Madre (2008) 167 Cal. App. 4th 531, 540 (Stonehouse Home).) Justiciability thus
‘ “involves the intertwined criteria of ripeness and standing. A controversy is ‘ripe’ when
it has reached, but has not passed, the point that the facts have sufficiently congealed to
permit an intelligent and useful decision to be made.” (California Water, at p. 22, fn.
omitted.) But ‘ripeness is not a static state’ (Consumer Cause, Inc. v. Johnson & Johnson
(2005) 132 Cal. App. 4th 1175, 1183), and a case that presents a true controversy at its
inception becomes moot ‘ “if before decision it has, through act of the parties or other
cause, occurring after the commencement of the action, lost that essential character” ’
(Wilson v. L.A. County Civil Service Com. (1952) 112 Cal. App. 2d 450, 453).” (Wilson,
supra, 191 Cal.App.4th at p. 1573.)
“Unripe cases are ‘[t]hose in which parties seek a judicial declaration on a
question of law, though no actual dispute or controversy ever existed between them
requiring the declaration for its determination.’ [Citation.] Moot cases, in contrast, are
‘[t]hose in which an actual controversy did exist but, by the passage of time or a change
in circumstances, ceased to exist.’ [Citation.] Because the case before us raises problems
of both ripeness and mootness, we will lay out some of the basic principles underlying
these doctrines.
“The ripeness element of the doctrine of justiciability is intended to prevent courts
from issuing purely advisory opinions. (Pacific Legal Foundation v. California Coastal
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Com. (1982) 33 Cal. 3d 158, 170. [ ] It is ‘primarily bottomed on the recognition that
judicial decisionmaking is best conducted in the context of an actual set of facts so that
the issues will be framed with sufficient definiteness to enable the court to make a decree
finally disposing of the controversy.’ (Ibid.) In an action for declaratory relief under
Code of Civil Procedure section 1060, an ‘ “actual controversy” . . . is one which admits
of definitive and conclusive relief by judgment within the field of judicial administration,
as distinguished from an advisory opinion upon a particular or hypothetical state of facts.
The judgment must decree, not suggest, what the parties may or may not do. [Citations.]’
(Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal. 3d 110, 117 (Selby).)
“A case is considered moot when ‘the question addressed was at one time a live
issue in the case,’ but has been deprived of life ‘because of events occurring after the
judicial process was initiated.’ (Younger v. Superior Court (1978) 21 Cal. 3d 102, 120.)
Because ‘ “the duty of . . . every . . . judicial tribunal is to decide actual controversies by a
judgment which can be carried into effect, and not to give opinions upon moot questions
or . . . to declare principles or rules of law which cannot affect the matter in issue in the
case before it[,] [i]t necessarily follows that when . . . an event occurs which renders it
impossible for [the] court, if it should decide the case in favor of plaintiff, to grant him
any effectual relief whatever, the court will not proceed to a formal judgment . . . .”
[Citations.]’ (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal. 2d 859, 863.)
The pivotal question in determining if a case is moot is therefore whether the court can
grant the plaintiff any effectual relief. (Giles v. Horn (2002) 100 Cal. App. 4th 206, 227;
see also Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal. App. 4th 1550,
1557 [case moot where contract with county had expired and court could not award it to
disappointed bidder].) If events have made such relief impracticable, the controversy has
become ‘overripe’ and is therefore moot. (California Water, supra, 253 Cal.App.2d at
pp. 22-23, fn. 9; see Paul v. Milk Depots, Inc. (1964) 62 Cal. 2d 129, 132.)
Thus, ‘ “[m]ootness has been described as ‘ “the doctrine of standing set in a time
frame: The requisite personal interest that must exist at the commencement of the
litigation (standing) must continue throughout its existence (mootness).” ’ [Citations.]” ’
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(Medical Board v. Superior Court (2001) 88 Cal. App. 4th 1001, 1008, quoting Arizonans
for Official English v. Arizona (1997) 520 U.S. 43, 68, fn. 22.) When events render a
case moot, the court, whether trial or appellate, should generally dismiss it. (See Lillbask
ex rel. Mauclaire v. Connecticut Dept. of Education (2d Cir.2005) 397 F.3d 77, 84; see
also Consumer Cause, Inc. v. Johnson & Johnson, supra, 132 Cal.App.4th at p. 1183
[trial court should have refused to decide case upon plaintiff’s discovery that allegations
of complaint were wrong and defendant was not violating statute at issue].)” (Wilson,
supra, 191 Cal.App.4th at pp. 1573-1574.)
C. The Trial Court Properly Sustained the Demurrer Without Leave to Amend on
the Grounds that the Petition Asserted Claims that were Both Moot and Unripe
The City contends YuGAG’s claims regarding the validity of the 2011
Agreements were moot at the time the trial court decided them. It asserts that the
execution of the Termination Agreement foreclosed YuGAG’s CEQA challenges to the
2011 Agreements. The City further claims that YuGAG’s complaints about the pending
CEQA process and its demand to re-open the RFP process are not ripe. We agree.
1. The Termination Agreement Mooted YuGAG’s CEQA Challenges
As discussed, a case is moot when a court’s decision “can have no practical impact
or provide the parties effectual relief.” (Woodward Park Homeowners Assn. v. Garreks,
Inc. (2000) 77 Cal. App. 4th 880, 888.) Mootness is typically found in cases where, as
here, there is a substantive change to the challenged law, order, or agreement after the
litigation is filed. (See, e.g., County Sanitation Dist. No. 2 v. County of Kern (2005) 127
Cal. App. 4th 1544, 1628-1629 [CEQA challenges based on contract no longer in effect
are moot]); Arnold v. California Exposition and State Fair (2004) 125 Cal. App. 4th 498,
503 [new contract that replaced challenged contract rendered issue moot]; Giles v. Horn,
supra, 100 Cal. App. 4th 206 [challenge to county contracts moot where contracts had
been fully performed and had expired]; East Bay Mun. Utility Dist. v. Department of
Forestry & Fire Protection (1996) 43 Cal. App. 4th 1113, 1131-1132 [change in
challenged policy rendered case moot]; Sierra Club v. Board of Supervisors (1981) 126
Cal. App. 3d 698, 704-705 [change to challenged general plan provision rendered issue
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moot]; see also Dawson v. Los Altos Hills (1976) 16 Cal. 3d 676, 687 [California courts
will not render advisory opinions on the validity of local laws or regulations that have
been rescinded], superseded by const. amend. on other grounds as stated in Not About
Water Com. v. Board of Supervisors (2002) 95 Cal. App. 4th 982, 994.)
YuGAG asserts that the issue is not moot because the Termination Agreement
“merely reverse[d] the formal approval” of the 2011 Landfill Agreement and the 2011
Facilitation Agreement, and “leaves [the] City’s commitment to the Recology proposal in
place.” YuGAG argues that the Termination Agreement “falls well short of granting” the
relief requested in the petition because it not only leaves the Recology proposal in place,
it expressly identifies this proposal as the “ ‘City’s preferred alternative.’ ” Thus,
according to YuGAG, “the City carves out, forecloses, any evaluation of alternative
disposal sites and remains committed to a definite course of action that cannot pre-date
CEQA compliance.”
Relying on Save Tara v. City of West Hollywood (2008) 45 Cal. 4th 116 (Save
Tara), YuGAG argues that the City has committed itself to Recology’s proposal “without
first understanding the environmental consequences thereof, or comparing such effects
with the other landfill disposal proposals before it.”
Save Tara involved a plan to build new structures on city-owned property that
contained a historic house. Before carrying out any environmental review, the West
Hollywood City Council approved a “ ‘Conditional Agreement for Conveyance and
Development of Property,’ ” which provided that the city would convey the land to a
developer and lend the developer money to build the structures, provided CEQA
requirements were first satisfied, among other conditions. (Save Tara, supra, 45 Cal.4th
at p. 124.) The Supreme Court held that the agreement constituted an approval of the
project because, despite the CEQA-compliance condition, the agreement committed the
agency to the project as a practical matter. (Id. at pp. 140-141.) The agreement stated
that its purpose was to cause the redevelopment of the property. (Ibid.) It did not make
clear that the city would remain free not to go ahead with the project based on findings in
the EIR. (Ibid.) Surrounding circumstances demonstrated the city’s commitment: It
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approved another loan to the developer that was not conditional; in support of the
developer’s application to a federal agency for funding, the city told the agency it would
commit up to $1 million in aid; it announced in its newsletter that it “ ‘will redevelop the
property’ ”; its officials told residents it was obligated to continue on a path toward
redevelopment and that certain options for uses favored by opponents, such as a park or
library, had been ruled out; and tenants of the historic house were informed that they
would be relocated. (Save Tara, supra, at pp. 123, 140-142.)
The City’s action here has both similarities to and differences to the challenged
activities in Save Tara. The City’s involvement in the Yuba County CEQA review of the
Recology proposal, together with its statement that the Recology proposal was the
“City’s preferred alternative for purposes of CEQA review,” revealed its decision to
identify the Green Rail Project as the “Project” for purposes of preparing an EIR.
However, under Save Tara, the critical question is not whether there is merely some level
of commitment to a project. Rather, the salient inquiry is “whether, as a practical matter,
the agency has committed itself to the project as a whole or to any particular features, so
as to effectively preclude any alternatives or mitigation measures that CEQA would
otherwise require to be considered, including the alternative of not going forward with
the project. (See Cal. Code Regs., tit. 14, § 15126.6, subd. (e).)” (Save Tara, supra, 45
Cal.4th at p. 139.) In this respect, the challenged 2011 Agreements are different from the
conditional development agreements set forth in Save Tara, which conditionally
committed the City of West Hollywood to take concrete actions toward realizing the
development project.
Here, the challenged 2011 Agreements have been terminated and the City has
expressly reserved “full discretion” to consider the Green Rail Project in light of the
pending CEQA review process, including whether to approve it, whether to adopt
possible mitigation measures, and whether to adopt any and all modifications or
alternatives to the Project. The Termination Agreement makes clear that there was no
binding agreement or commitment to any particular course of action. The Termination
Agreement itself recognized that the decision to approve the Project was still very much
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up in the air. Thus, although the Termination Agreement refers to the Green Rail Project
as the City’s “preferred alternative for purposes of CEQA review,” this commitment to
review the Project is unlike the commitment in Save Tara, where the City of West
Hollywood contractually bound itself to sell land for private development conditioned
upon subsequent CEQA review.
Equally unavailing is YuGAG’s citation to cases in which courts have considered
a CEQA challenge on the merits after determining that effective relief may be granted
despite partial or complete construction of the challenged project. For example, in
Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal. App. 4th 880,
(Woodward Park), a project to build two car washes was approved despite a claim by a
homeowners’ association that because of noise issues an EIR was required before the
City of Fresno could approve the project. (Id. at pp. 881-883.) The trial court agreed and
ordered the preparation of an EIR. (Id. at p. 882.) Despite the pending lawsuit and the
trial court’s order, the developer continued construction and completed the project
without obtaining an EIR. (Id. at p. 890.) On appeal, the City of Fresno argued that an
EIR was no longer required because the project was completed. (Id. at p. 887.) The
appellate court held the matter was not moot because “[t]his case does not present a
situation where a ruling by this court can have no practical impact or not provide the
parties relief.” (Id. at p. 888.) The court concluded the project could be modified, torn
down, or eliminated to restore the property to its original condition. (Ibid.)
Similarly, in Bakersfield Citizens for Local Control v. City of Bakersfield (2004)
124 Cal. App. 4th 1184, 1202-1204 (Bakersfield), the appellate court held that partial
construction of a commercial development project did not moot the appeal because the
project could still be modified, reduced, or mitigated. (See California Oak Foundation v.
Regents of University of California (2010) 188 Cal. App. 4th 227, 280, fn. 31 (California
Oak) [EIR for project necessitating removal of live oak trees not rendered moot by
removal of the trees after efforts to stay project were unsuccessful because restoration of
the site to its original condition could be compelled, additional mitigation measures could
be ordered, or the project could be modified, reconfigured or reduced]; Association for a
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Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal. App. 4th 629,
641 (ACE) [removal of gun range without EIR not moot although project completed
because of possibility that initial study under CEQA could result in mitigated negative
declaration or EIR with mitigation measures].)
Unlike the Woodward Park, Bakersfield, California Oak, and ACE cases, there is
no remaining contractual activity or structure that can be modified based on the results of
environmental review. Rather, the instant case is akin to Hixon v. County of Los Angeles
(1974) 38 Cal. App. 3d 370, 378, where the court found part of an appeal moot where a
party sought environmental review of the cutting down of trees for a sidewalk project.
The trees had already been cut down and replaced by new trees by the time of the appeal.
(Ibid.) Nothing could be done to bring back the old trees and the remedy of planting the
new ones had already been effectuated, so it would have been fruitless to order
preparation of an EIR studying that question. (Ibid.)
So too here, it would be fruitless to grant YuGAG’s petition requesting the City to
set aside its approval of two contracts and suspend all related activities regarding the
contracts, when the contracts have been terminated and have no legal effect. And as
such, it would also be ineffective to grant declaratory relief on the asserted ground that
the now null contracts were unlawfully approved in violation of CEQA and the City’s
Administrative Code. For these reasons, we hold that effectual relief is not possible and,
consequently, the claims are moot.
“When events render a case moot, the court, whether trial or appellate, should
generally dismiss it.” (Wilson, supra, 191 Cal.App.4th at p. 1574.) However, the general
rule is tempered by the court’s discretionary authority to decide moot issues. Three
discretionary exceptions to the rules regarding mootness have been recognized in CEQA
cases: (1) when the case presents an issue of broad public interest that is likely to recur
but evade review; (2) when there may be a recurrence of the controversy between the
parties; and (3) when a material question remains for the court's determination.
(Californians for Alternatives to Toxics v. Department of Pesticide Regulation (2006) 136
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Cal. App. 4th 1049, 1069; Cucamongans United for Reasonable Expansion v. City of
Rancho Cucamonga (2000) 82 Cal. App. 4th 473, 479-480.)
Here, we decline to exercise our discretion in favor of deciding moot issues.
Although YuGAG frames the issue as one involving “broad public interest,” the gist of
the petition challenges the manner in which the 2011 Agreements were created. We can
discern no broad public interest in the validity of contracts that have been terminated and
that no longer have any effect.
We are also not persuaded by YuGAG’s assertion that there may be a recurrence
of the controversy between the parties. YuGAG cannot demonstrate that any of its
claims are likely to recur because neither YuGAG nor the City knows what agreements,
if any, the City may enter into at the end of the CEQA review process.
Finally, YuGAG contends that the action is not moot because “material questions
still remain for the court’s consideration.” This exception, however, applies only “when
the judgment, if left unreversed, would preclude a party from litigating its liability on an
issue still in controversy.” (Viejo Bancorp, Inc. v. Wood (1989) 217 Cal. App. 3d 200,
205.) That is not true here. Inasmuch as the trial court did not sustain the City’s
demurrer on the merits, but on the grounds of mootness and lack of ripeness, the
judgment entered in this action will not bar YuGAG in the future from pursuing its rights.
(See Epstein v. Superior Court (2011) 193 Cal. App. 4th 1405, 1410 [holding petition
moot where actions challenged by plaintiffs had been “ ‘terminated’ ” and, if there was a
threat that they would recur in the future, “there is no reason to doubt that [a] new lawsuit
will present a forum at least equal to this one for a full airing of the questions raised”]).
For these reasons, YuGAG cannot bring this case within any of the exceptions to
the mootness doctrine. Accordingly, the trial court did not abuse its discretion in granting
the City’s demurrer.
2. YuGAG’s Remaining Challenges Are not Ripe for Review
As discussed, a basic prerequisite to judicial review of administrative acts is the
existence of a ripe controversy. (PG&E Corp. v. Public Utilities Com. (2004) 118
Cal. App. 4th 1174, 1216.) “ ‘Whether a claim presents an “actual controversy” within the
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meaning of Code of Civil Procedure section 1060 is a question of law we review de
novo.’ [Citation.]” (American Meat Institute v. Leeman (2009) 180 Cal. App. 4th 728,
741.) “ ‘To determine whether an issue is ripe for review, we evaluate two questions:
the fitness of the issue for judicial decision and the hardship that may result from
withholding court consideration. [Citation.]’ [Citation.]” (Wilson, supra, 191
Cal.App.4th at p. 1582.)
“The first prong of the ripeness analysis requires us to determine whether the issue
is ‘appropriate for immediate judicial resolution.’ [Citation.] ‘Under the first prong, the
courts will decline to adjudicate a dispute if “the abstract posture of [the] proceeding
makes it difficult to evaluate . . . the issues” [citation], if the court is asked to speculate on
the resolution of hypothetical situations [citation], or if the case presents a “contrived
inquiry” [citation].’ [Citation.]” (Wilson, supra, 191 Cal.App.4th at pp. 1582-1583.)
YuGAG’s action cannot satisfy this first prong because it required the trial court to
speculate on the resolution of an entirely hypothetical situation—the possible outcome of
the pending CEQA review.
YuGAG asserts that the City, during the ongoing CEQA process, will not consider
alternatives to the Ostrom Road Landfill and, as such, the City should be required to re-
open the RFP process. Resolution of these claims would have required the trial court to
speculate not only on the content of the pending environmental review, but also on
whether the City would seek to reenter the same agreements with Recology. The
“abstract posture” of these claims make them “too uncertain to constitute a justiciable
controversy. [Citation.]” (Wilson, supra, 191 Cal.App.4th at p. 1583.)
This case resembles Selby Realty Co. v. City of Buenaventura (1973) 10 Cal. 3d
110 (Selby Realty). In that case, the city and county adopted a general plan that proposed
extending streets across the plaintiff’s property. (Id. at p. 115.) The plaintiff filed a
lawsuit against the county, based on its adoption of the plan. (Id. at p. 116.) The
California Supreme court held that “the plan is subject to alteration, modification or
ultimate abandonment, so that there is no assurance that any public use will eventually be
made of plaintiff’s property.” (Id. at p. 120.) In so holding, the court explained that the
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plaintiff’s claim against the county was unripe because the plan “is by its very nature
merely tentative and subject to change. Whether eventually any part of plaintiff’s land
will be taken for a street depends upon unpredictable future events.” (Id. at p. 118.)
The same is true here. As noted above, the City has reserved “full discretion to
consider the Project in light of the results of the Pending CEQA Process and the City’s
CEQA review.” Moreover, the City has retained “full discretion” to decide whether to
approve the Recology proposal, modify it, or adopt some other alternative. Here, as in
Selby Realty, YuGAG’s claims are unripe because they necessarily “depend[] upon
unpredictable future events.” (Selby Realty, supra, 10 Cal. 3d at p. 118.) In this case, the
City has yet to take any action with respect to the Recology proposal. If, after the CEQA
review process, the City again contracts with Recology, remedies are available. “
‘Meanwhile, the court may not speculate on the future intention of a public agency.’
[Citation.]” (Wilson, supra, 191 Cal.App.4th at p. 1584, fn. omitted.)
It is undisputed that the CEQA review is still pending and the City has not yet
elected to proceed with Recology’s proposal. If and when the City decides to enter a new
agreement with Recology, YuGAG may pursue appropriate legal remedies at that time.
(Selby Realty, supra, 10 Cal.3d at p. 118.)
III. DISPOSITION
The judgment is affirmed. The City is entitled to its costs on appeal.
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REARDON, J.
We concur:
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RUVOLO, P.J.
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RIVERA, J.
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