Save the Agoura Cornell Knoll v. City of Agoura Hills ( 2020 )

Filed 2/24/20; Certified for publication 3/17/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SAVE THE AGOURA CORNELL B292246, B295112
KNOLL et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. BS169207)
v.
CITY OF AGOURA HILLS et al.,
Respondents;
DORON GELFAND et al.,
Real Parties in Interest and
Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Mary H. Strobel, Judge. Affirmed.
Gaines & Stacey, Fred Gaines and Lisa A. Weinberg for
Appellants Doron Gelfand and Agoura and Cornell Roads, LP.
Advocates for the Environment, Dean Wallraff and
Kathleen R. Unger for Respondents Save the Agoura Cornell
Knoll and California Native Plant Society.
_______________________
In this CEQA1 action, appellants Agoura and Cornell
Roads, LP (ACR) and Doron Gelfand (Gelfand) (collectively,
Appellants), appeal from the trial court’s judgment granting a
peremptory writ of mandate that directed the City of Agoura
Hills (City) to set aside its approval of a mixed-use development
project, and to prepare an environmental impact report (EIR) for
the project. Appellants also appeal from the trial court’s post-
judgment order granting attorney’s fees to the petitioners in
the action, Save the Agoura Cornell Knoll and California Native
Plant Society (collectively, Petitioners). Among other arguments,
Appellants assert that the trial court erred in concluding that the
project’s potentially significant environmental impacts required
the preparation of an EIR rather than the mitigated negative
declaration adopted by the City. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. The Proposed Project
This action challenges the City’s approval of a mixed-use
commercial and residential development proposed by Appellants.
The project, known as the Cornerstone Mixed-Use Project,
proposed the development of 35 residential apartment units plus
retail, restaurant, and office space on an 8.2-acre site. The
project site is on an undeveloped hillside at the southeast corner
of Agoura Road and Cornell Road in Agoura Hills, California.
1 CEQA refers to the California Environmental Quality
Act (Pub. Resources Code, § 21000 et seq.) and the regulations
implementing it (Cal. Code Regs., tit. 14, § 15000 et seq.) (CEQA
Guidelines). Unless otherwise stated, all further statutory
references are to the Public Resources Code.
2
The property is mostly covered with grasses and scattered oak
trees, and its dominant feature is a knoll with oak trees at the
corner of Agoura Road and Cornell Road. In addition to oak trees
and scrub oak habitat, the site contains both native and non-
native plants, including three plant species that are considered to
be rare, threatened, or endangered. Although the site is vacant
with no existing structures, commercial retail centers are located
to the west, northwest, and north of the property.
The majority of the project site is located in an area covered
by the Agoura Village Specific Plan (AVSP). The portion of
the site that is outside the AVSP-covered area is located in a
Significant Ecological Area. The AVSP sets forth regulations and
guidelines for new developments in the planning area. The City
certified a final EIR for the AVSP in 2006, and adopted the AVSP
in 2008. As proposed, the Cornerstone Mixed-Use Project would
consolidate 24 parcels into two lots, with approximately 6.23
acres in Lot 1 and 1.98 acres in Lot 2. The area in Lot 2 would be
reserved for open space in accordance with the AVSP.
II. Administrative Proceedings
ACR is a California limited partnership and the owner of
the property located at the project site. Gelfand is a limited
partner of ACR. Gelfand submitted applications to the City for
a development permit, a conditional use permit, an oak tree
permit, and a tentative parcel map for the Cornerstone Mixed-
Use Project. After reviewing various studies and reports to
evaluate the potential environmental impacts, the City issued a
final Initial Study-Mitigated Negative Declaration (MND) for the
project in November 2016. At a public hearing held on January
5, 2017, the Agoura Hills Planning Commission voted to approve
3
the project and adopt the MND.
The Los Angeles/Santa Monica Mountains chapter of the
California Native Plant Society (CNPS), a statewide non-profit
organization focused on the preservation of native California
plants, appealed the Planning Commission’s decision. On March
8, 2017, the Agoura Hills City Council held a public hearing on
the appeal. At the close of the hearing, the City Council approved
the Cornerstone Mixed-Use Project and adopted the MND. The
City Council found that, based on the record before it, there was
no substantial evidence that the project would have a significant
effect on the environment because the project plans incorporated
feasible mitigation measures that would reduce any potential
environmental impacts to a less than significant level. On March
16, 2017, the City filed a Notice of Determination of its approval
of the project and adoption of the MND.
III. Writ Proceedings
Save the Agoura Cornell Knoll (STACK), a local citizen’s
group, filed a verified petition for writ of mandate on April 7,
2017, and a first amended petition on August 10, 2017. The first
amended petition added CNPS as a petitioner. It named the
City, the Agoura Hills City Council, and the Agoura Hills
Planning Commission as respondents, and ACR and Gelfand as
real parties in interest. The petition alleged three causes of
action for violation of CEQA, violation of planning and zoning
law, and violation of the City’s Oak Tree Ordinance. On January
29, 2018, Appellants and the City each filed an opposition to the
petition. On February 13, 2018, Petitioners filed a reply.
The trial court held a hearing on the writ petition on March
13, and May 22, 2018. On May 23, 2018, the court issued a 64-
4
page decision granting in part and denying in part the petition.
The court granted the petition as to the causes of action for
violation of CEQA and violation of the City’s Oak Tree
Ordinance, and denied the petition as to the cause of action for
violation of planning and zoning law. With respect to the CEQA
claim, the court concluded that there was substantial evidence to
support a fair argument that the project may have significant
environmental impacts on cultural resources, sensitive plant
species, oak trees, and aesthetic resources, and that the MND’s
proposed mitigation measures are inadequate to reduce those
impacts to less than significant. With respect to the Oak Tree
Ordinance claim, the court concluded that the permit issued by
the City violated the ordinance’s prohibition against the removal
of more than 10 percent of the total estimated oak tree canopy or
root structure on the project site.
On June 26, 2018, the trial court entered judgment in favor
of Petitioners on their causes of action for violation of CEQA and
violation of the Oak Tree Ordinance, and ordered the issuance
of a peremptory writ of mandate. On July 20, 2018, the court
issued the writ of mandate directing the City to set aside its
approval of permits for the project. The writ also directed the
City to set aside the MND that it had adopted for the project and
to prepare an EIR in compliance with the court’s May 23, 2018
decision. On August 23, 2018, Appellants filed an appeal from
the judgment (Appeal B292246).
IV. Post-Judgment Attorney’s Fees
On August 24, 2018, Petitioners filed a motion to recover
their attorney’s fees pursuant to Code of Civil Procedure section
1021.5. Petitioners sought a total of $339,559 in attorney’s fees,
5
which included a request for a lodestar multiplier of 2.0. On
November 1, 2018, Appellants and the City each filed an
opposition. The City opposed only the requested multiplier.
Appellants contested Petitioners’ entitlement to attorney’s fees,
the amount of fees sought, and Gelfand’s individual liability for a
fee award.
On November 15, 2018, the trial court partially granted the
motion and found that Petitioners were entitled to attorney’s fees
in the amount of $142,148. The court denied Petitioners’ request
for a lodestar multiplier, and ordered supplemental briefing on
whether Gelfand was individually liable for the fee award. On
December 18, 2019, after considering the parties’ supplemental
briefs, the trial court found that Gelfand and ACR were jointly
and severally liable for the attorney’s fees. The court awarded
Petitioners a total of $142,148 in attorney’s fees with 50 percent
payable by the City and 50 percent payable by ACR and Gelfand.
On January 9, 2019, Appellants filed an appeal from the post-
judgment order for attorney’s fees (Appeal B295112).2
2 On February 22, 2019, this court denied Appellants’ motion
to consolidate Appeals B292246 and B295112, but ordered that
the appeals be considered concurrently for the purposes of oral
argument and decision.
6
DISCUSSION
In Appeal No. B292246, Appellants challenge the trial
court’s issuance of a writ of mandate directing the City to set
aside its approval of the Cornerstone Mixed-Use Project and to
prepare an EIR for the project. In Appeal No. B295112, they
contest the trial court’s post-judgment award of attorney’s fees
to Petitioners as the successful parties in the CEQA action.
I. Overview Of CEQA
CEQA and the regulations implementing it “embody
California’s strong public policy of protecting the environment.”
(Tomlinson v. County of Alameda (2012) 54 Cal. 4th 281, 285.) As
the California Supreme Court has explained, “CEQA was enacted
to advance four related purposes: to (1) inform the government
and public about a proposed activity's potential environmental
impacts; (2) identify ways to reduce, or avoid, environmental
damage; (3) prevent environmental damage by requiring project
changes via alternatives or mitigation measures when feasible;
and (4) disclose to the public the rationale for governmental
approval of a project that may significantly impact the
environment.” (California Building Industry Assn. v. Bay Area
Air Quality Management Dist. (2015) 62 Cal. 4th 369, 382.)
“CEQA review is undertaken by a lead agency, defined as
‘the public agency which has the principal responsibility for
carrying out or approving a project which may have a significant
effect upon the environment.’ [Citation.]” (Friends of the Eel
River v. North Coast Railroad Authority (2017) 3 Cal. 5th 677,
712, italics omitted.) The lead agency’s implementation of CEQA
“proceeds by way of a multistep decision tree, which has been
7
characterized as having three tiers. [Citation.] First, the agency
must determine whether the proposed activity is subject to CEQA
at all. Second, assuming CEQA is found to apply, the agency
must decide whether the activity qualifies for one of the many
exemptions that excuse otherwise covered activities from CEQA’s
environmental review. Finally, assuming no applicable
exemption, the agency must undertake environmental review of
the activity. . . .” (Union of Medical Marijuana Patients, Inc. v.
City of San Diego (2019) 7 Cal. 5th 1171, 1185, fn. omitted.)
When a proposed activity is a project and does not qualify
for a CEQA exemption, “the agency must first undertake an
initial study to determine whether the project ‘may have a
significant effect on the environment.’ [Citations.] If the initial
study finds no substantial evidence that the project may have a
significant environmental effect, the lead agency must prepare
a negative declaration, and environmental review ends.
[Citations.] If the initial study identifies potentially significant
environmental effects but (1) those effects can be fully mitigated
by changes in the project and (2) the project applicant agrees to
incorporate those changes, the agency must prepare a mitigated
negative declaration. This too ends CEQA review. [Citations.]
Finally, if the initial study finds substantial evidence that the
project may have a significant environmental impact and a
mitigated negative declaration is inappropriate, the lead agency
must prepare and certify an EIR before approving or proceeding
with the project. [Citations.]” (Union of Medical Marijuana
Patients, Inc. v. City of San Diego, supra, 7 Cal. 5th 1171 at
pp. 1186-1187; see also § 21080, subds. (c), (d).)
“At the ‘heart of CEQA’ [citation] is the requirement that
public agencies prepare an EIR for any ‘project’ that ‘may have a
8
significant effect on the environment.’ [Citations.]” (Friends of
College of San Mateo Gardens v. San Mateo County Community
College Dist. (2016) 1 Cal. 5th 937, 944.) “Given the statute’s
text, and its purpose of informing the public about potential
environmental consequences, it is quite clear that an EIR is
required even if the project’s ultimate effect on the environment
is far from certain. [Citations.]” (California Building Industry
Assn. v. Bay Area Air Quality Management Dist., supra, 62
Cal.4th at pp. 382-383, italics omitted.) Accordingly, “‘if a lead
agency is presented with a fair argument that a project may have
a significant effect on the environment, the lead agency shall
prepare an EIR even though it may also be presented with other
substantial evidence that the project will not have a significant
effect.’” (Berkeley Hillside Preservation v. City of Berkeley (2015)
60 Cal. 4th 1086, 1111-1112, quoting CEQA Guidelines, § 15064,
subd. (f)(1); see also Save the Plastic Bag Coalition v. City of
Manhattan Beach (2011) 52 Cal. 4th 155, 171 [“If the agency’s
initial study of a project produces substantial evidence
supporting a fair argument the project may have significant
adverse effects, the agency must . . . prepare an EIR.”].)3
“In reviewing an agency’s . . . decision for compliance with
CEQA, we ask whether the agency has prejudicially abused its
discretion; such an abuse is established ‘if the agency has not
proceeded in a manner required by law or if the determination or
3 For CEQA purposes, a significant effect on the environment
means “a substantial, or potentially substantial, adverse change
in any of the physical conditions within the area affected by the
project including land, air, water, minerals, flora, fauna, ambient
noise, and objects of historic or aesthetic significance.” (CEQA
Guidelines, § 15382; see also §§ 21060.5, 21151, subd. (b).)
9
decision is not supported by substantial evidence.’ ([ ] § 21168.5.)
In determining whether there has been an abuse of discretion,
we review the agency’s action, not the trial court’s decision. ‘[I]n
that sense appellate judicial review under CEQA is de novo.’
[Citation.]” (Center for Biological Diversity v. Department of Fish
& Wildlife (2015) 62 Cal. 4th 204, 214-215.) We determine de
novo whether the agency has employed the proper procedures,
and we review the agency’s substantive factual conclusions for
substantial evidence. (Sierra Club v. County of Fresno (2018) 6
Cal. 5th 502, 512; Covina Residents for Responsible Development
v. City of Covina, (2018) 21 Cal. App. 5th 712, 724.)
An agency’s decision to rely on a negative declaration or a
mitigated negative declaration under CEQA “‘is reviewed for
abuse of discretion under the “fair argument” standard.’” (Jensen
v. City of Santa Rosa (2018) 23 Cal. App. 5th 877, 886; see also
Wollmer v. City of Berkeley (2009) 179 Cal. App. 4th 933, 939.) In
describing the scope of judicial review of an agency’s application
of the fair argument standard, the Supreme Court has stated:
“[A] reviewing court may not uphold an agency’s decision [not to
prepare an initial EIR under the fair argument test] ‘merely
because substantial evidence was presented that the project
would not have [a significant environmental] impact. The
[reviewing] court’s function is to determine whether substantial
evidence support[s] the agency’s conclusion as to whether the
prescribed “fair argument” could be made. If there [is]
substantial evidence that the proposed project might have a
significant environmental impact, evidence to the contrary is not
sufficient to support a decision to dispense with preparation of an
EIR and adopt a negative declaration, because it [can] be “fairly
argued” that the project might have a significant environmental
10
impact. Stated another way, if the [reviewing] court perceives
substantial evidence that the project might have such an impact,
but the agency failed to secure preparation of the required EIR,
the agency’s action is to be set aside because the agency abused
its discretion by failing to proceed “in a manner required by
law.”’” (Berkeley Hillside Preservation v. City of Berkeley, supra,
60 Cal.4th at p. 1112.) “The fair argument standard thus creates
a low threshold for requiring an EIR, reflecting the legislative
preference for resolving doubts in favor of environmental review.
[Citation.]” (Covina Residents for Responsible Development v.
City of Covina, supra, 21 Cal.App.5th at p. 723, fn. omitted.)
II. Exhaustion Of Administrative Remedies
As a preliminary matter, we first consider Appellants’
argument that Petitioners waived any claim that they exhausted
administrative remedies by failing to raise the issue in their
opening brief before the trial court and instead addressing it for
the first time in their reply brief. Appellants further assert that,
given the purported waiver, the trial court erred in considering
the evidence cited by Petitioners in their reply brief to show they
had satisfied the exhaustion requirement.4
4 Although Appellants refer to the alleged failure to
preserve the issue of exhaustion as a waiver, the proper term
is forfeiture. As the Supreme Court has explained in various
contexts: “‘“[W]aiver” means the intentional relinquishment or
abandonment of a known right.’ [Citations.] … [¶] … [Waiver]
differs from the related concept of forfeiture, which results when
a party fails to preserve a claim by raising a timely objection.
[Citation.]” (Lynch v. California Coastal Com. (2017) 3 Cal. 5th
470, 475-476.) Therefore, “‘forfeiture results from the failure to
11
A. CEQA’s Exhaustion Requirement
“The rule requiring exhaustion of administrative remedies
is well settled. ‘In general, a party must exhaust administrative
remedies before resorting to the courts. [Citations.] Under
this rule, an administrative remedy is exhausted only upon
“termination of all available, nonduplicative administrative
review procedures.” [Citations.]’” (Williams & Fickett v. County
of Fresno (2017) 2 Cal. 5th 1258, 1267-1268.) “‘The rule “is not
a matter of judicial discretion, but is a fundamental rule of
procedure . . . binding upon all courts.”’ [Citation.]” (Plantier v.
Ramona Municipal Water Dist. (2019) 7 Cal. 5th 372, 383.)
“‘“Exhaustion of administrative remedies is a jurisdictional
prerequisite to maintenance of a CEQA action.”’” (City of Long
Beach v. City of Los Angeles (2018) 19 Cal. App. 5th 465, 474.)
Section 21177 sets forth CEQA’s exhaustion requirement. It
provides, in relevant part, that a CEQA action “shall not be
brought . . . unless the alleged grounds for noncompliance . . .
were presented to the public agency orally or in writing by any
person during the public comment period . . . or prior to the close
of the public hearing on the project before the issuance of the
notice of determination.” (§ 21177, subd. (a).) “The purpose of
the exhaustion doctrine is to ensure public agencies are given the
opportunity to decide matters within their expertise, respond to
objections, and correct any errors before the courts intervene.
[Citations.]” (Bridges v. Mt. San Jacinto Community College
Dist. (2017) 14 Cal. App. 5th 104, 115; see also Sierra Club v. City
invoke a right, while waiver denotes an express relinquishment
of a known right; the two are not the same.’” (Id. at p. 476.)
12
of Orange (2008) 163 Cal. App. 4th 523, 535 [“‘The rationale for
exhaustion is that the agency “‘is entitled to learn the contentions
of interested parties before litigation is instituted. If [plaintiffs]
have previously sought administrative relief . . . the [agency] will
have had its opportunity to act and to render litigation
unnecessary, if it had chosen to do so.’”’”].)
“‘To advance the exhaustion doctrine’s purpose[,] “[t]he
‘exact issue’ must have been presented to the administrative
agency. . . .” [Citation.] While “‘less specificity is required to
preserve an issue for appeal in an administrative proceeding
than in a judicial proceeding’” . . . “generalized environmental
comments at public hearings,” “relatively . . . bland and general
references to environmental matters” [citation], or “isolated and
unelaborated comment[s]” [citation] will not suffice. The same is
true for “‘[g]eneral objections to project approval. . . .’ [Citations.]”
[Citation.] “‘[T]he objections must be sufficiently specific so that
the agency has the opportunity to evaluate and respond to
them.’”’ [Citation.]” (City of Long Beach v. City of Los Angeles,
supra, 19 Cal.App.5th at pp. 474-475.) “‘“The petitioner bears the
burden of demonstrating that the issues raised in the judicial
proceeding were first raised at the administrative level.
[Citation.]” [Citation.] An appellate court employs a de novo
standard of review when determining whether the exhaustion of
administrative remedies doctrine applies. [Citation.]’ [Citation.]”
(Monterey Coastkeeper v. State Water Resources (2018) 28
Cal. App. 5th 342, 359; see also Bridges v. Mt. San Jacinto
Community College Dist., supra, 14 Cal.App.5th at pp. 116-117.)
13
B. Petitioners Did Not Forfeit Their Claim That
They Exhausted Administrative Remedies
The record reflects that, in the first amended petition for
writ of mandate filed in the trial court, Petitioners specifically
alleged that they had “performed all conditions precedent to filing
this action, including exhaustion of all administrative remedies
available to them.” They did not address the issue of exhaustion
in their opening brief to the trial court. However, in arguing that
the MND failed to mitigate the project’s significant impacts,
Petitioners did cite some of the public comments made in the
administrative proceedings, which described those impacts and
disputed the adequacy of the MND’s mitigation measures. After
Appellants and the City argued in their opposition briefs that
Petitioners had failed to prove exhaustion as to each of their
claims, Petitioners then responded to this argument in their
reply brief by asserting that they had exhausted administrative
remedies as to the specific issues raised in their petition, and by
citing the portions of the administrative record that they claimed
showed this requirement had been met.
At both the March 13, 2018 and May 22, 2018 hearings on
the writ petition, the trial court heard argument as to whether
Petitioners had forfeited their right to establish the exhaustion
of administrative remedies by failing to raise the issue in their
opening brief, and if not, whether exhaustion was shown as to
specific claims alleged in the petition. At the end of the March
13, 2018 hearing, the trial court denied Appellants’ request to
allow supplemental briefing on the arguments made at that
hearing. Despite this denial, Appellants filed a supplemental
brief on May 14, 2018, in which they asserted that any alleged
evidence of exhaustion should not be admitted. In its May 23,
14
2018 decision, the trial court granted Petitioners’ request to
strike Appellants’ supplemental brief for disregarding its prior
order, and found that Petitioners had not forfeited the issue of
exhaustion by addressing it for the first time in their reply brief.
The court also found that CEQA’s exhaustion requirement was
satisfied as to some, but not all, of the issues raised in the
petition.
Appellants contend that the trial court erred in considering
any alleged evidence of exhaustion included in the administrative
record because Petitioners forfeited the issue by failing to raise it
in their opening brief in the writ proceedings. We conclude that
this claim lacks merit. While Petitioners bore the burden of
proving the exhaustion of administrative remedies, there was
no jurisdictional requirement that they argue the issue in a
separate section of their opening brief. Some of the evidence that
Petitioners cited in their opening brief to support the merits of
their CEQA claims was the same evidence that they cited in their
reply to show they had exhausted administrative remedies.
Petitioners adequately preserved the issue for consideration in
the trial court by expressly alleging in their petition that they
had exhausted all administrative remedies; by lodging the
complete administrative record with the court as part of the writ
proceedings; by citing the relevant portions of the administrative
record that supported their claims in their opening brief; and by
citing the evidence of exhaustion in their reply brief in response
to Appellants’ contention that exhaustion had not been shown.
As explained in Save Our Residential Environment v. City
of West Hollywood (1992) 9 Cal. App. 4th 1745, a case cited by
the trial court in rejecting Appellants’ forfeiture claim, “[t]he
purposes of CEQA, including the provisions regarding the
15
exhaustion of administrative remedies, are not served by
requiring proof in the record of compliance with the requirement
that a person objecting to the [p]roject present his or her
comments, orally or in writing, at the appropriate stage of the
proceedings when there is no real dispute that the requirement
was in fact met.” (Id. at p. 1750.) Here, once Appellants placed
the issue of exhaustion in dispute by asserting in their opposition
that this requirement had not been met, Petitioners addressed
the issue in their reply based on the evidentiary record before the
trial court. The court then gave the parties ample opportunity
over the course of two hearings to argue whether Petitioners had
in fact exhausted administrative remedies as to each issue raised
in the petition. Under these circumstances, Petitioners’ failure to
argue in their opening brief that they satisfied the exhaustion
requirement as to each of their claims did not result in the
forfeiture of that issue in the trial court.
None of the cases cited by Appellants in support of
forfeiture compel a different conclusion. In two of the cases–St.
Mary v. Superior Court (2014) 223 Cal. App. 4th 762 and Balboa
Ins. Co. v. Aguirre (1983) 149 Cal. App. 3d 1002–the appellate
court applied the well-established principle that new legal
theories raised for the first time in a reply brief generally will
not be considered unless good cause is shown for the failure to
present them earlier. (St. Mary v. Superior Court, supra, at
pp. 782-783 [defendants raised new theory for relief in reply brief
filed in support of discovery motion despite representations to
trial court that motion was not based on that ground]; Balboa
Ins. Co. v. Aguirre, supra, at pp. 1009-1010 [plaintiff forfeited
equal protection claim where issue was never raised in trial court
and was asserted for first time in reply brief on appeal].) This
16
principle does not, however, preclude Petitioners from proving
exhaustion of administrative remedies because that issue was
not a new legal theory raised for the first time in a reply brief.
Rather, as discussed, it was first alleged by Petitioners in their
writ petition and then argued in their reply in direct response to
the failure-to-exhaust arguments raised by Appellants and the
City. The other cases on which Appellants rely–Jay v. Mahaffey
(2013) 218 Cal. App. 4th 1522 and Plenger v. Alza Corp. (1992) 11
Cal. App. 4th 349 – are also inapposite. In each of those cases, the
moving party offered new evidence with their reply papers. (Jay
v. Mahaffey, supra, at p. 1538 [moving parties in anti-SLAPP
motion “wait[ed] until the reply briefs to bring forth any evidence
at all, when the [opposing parties] would have no opportunity to
respond”]; Plenger v. Alza Corp., supra, at p. 362, fn. 8 [where
party moving for summary judgment offered new evidence with
reply, trial court had discretion to consider such additional
evidence “so long as the [opposing] party . . . ha[d] notice and an
opportunity to respond”].) Here, Petitioners did not submit any
new evidence of exhaustion with their reply brief, but rather cited
the evidence in the already-admitted administrative record.
Appellants also have failed to show that they suffered any
prejudice from the trial court’s consideration of the evidence of
exhaustion cited in Petitioners’ reply. Appellants assert that the
trial court’s decision to allow such evidence while rejecting their
supplemental brief deprived them of an opportunity to respond to
Petitioners’ claim that they satisfied the exhaustion requirement.
The trial court, however, acted well within its discretion in
striking Appellants’ supplemental brief, which was filed in direct
contravention of the court’s order at the March 13, 2018 hearing
where the issue of exhaustion was thoroughly argued. (Bozzi v.
17
Nordstrom, Inc. (2010) 186 Cal. App. 4th 755, 765 [trial court had
broad discretion to refuse to consider a “surrebuttal brief” filed
without a prior court order finding good cause for the late
submission].) Moreover, as Petitioners correctly note, this court
independently reviews the administrative record to determine
whether the exhaustion of administrative remedies doctrine
applies. Given that the parties have had an opportunity to fully
brief the issue of exhaustion in the appeal before this court,
Appellants cannot show they were prejudiced by Petitioners’
failure to argue the issue in their opening brief before the trial
court. On this record, the issue of whether Petitioners exhausted
their administrative remedies has not been forfeited.5
III. Standing And Statute of Limitations
Notwithstanding their arguments concerning forfeiture, in
their own appellate reply brief, Appellants assert for the first
time that this entire action must be dismissed because STACK
lacks standing to bring the action under CEQA, and CNPS is
barred by the statute of limitations from serving as a substitute
petitioner. With respect to standing, Appellants specifically
5 In addition to forfeiture, Appellants contend that
Petitioners failed to meet their burden of proving that they
exhausted administrative remedies as to the specific claims
raised in their writ petition. We consider whether CEQA’s
exhaustion requirement was satisfied as to Petitioners’ claims
about the project’s impacts on cultural resources, sensitive plant
species, oak trees, and aesthetic resources in our discussion of
each of these alleged environmental impacts. We also consider
whether Petitioners exhausted administrative remedies as to
their cause of action for violation of the City’s Oak Tree
Ordinance in our discussion of that claim.
18
argue that STACK failed to prove that either the organization or
any of its members objected to the approval of the project prior to
the close of the public hearing, as required by section 21177.6
With respect to the statute of limitations, Appellants claim that
CNPS cannot maintain the action because it was not named as
a petitioner until the first amended petition, which was filed
after the statute of limitations in section 21167 had expired.7
Appellants contend that, in the absence of a proper petitioner,
this court lacks jurisdiction to hear any of the CEQA claims.
Appellants never asserted the lack of standing or the
statute of limitations in the proceedings before the trial court,
nor did they argue these issues in their opening brief on appeal.
In raising these issues for the first time in their reply brief,
Appellants do not offer any explanation for their failure to
present them earlier. Rather, they simply cite the general rule
that “a contention based on a plaintiff’s lack of standing cannot
be waived . . . and may be raised at any time in the proceeding.”
6 Section 21177, subdivision (b) states that “[a] person shall
not maintain an action or proceeding unless that person objected
to the approval of the project orally or in writing during the
public comment period provided by this division or before the
close of the public hearing on the project before the filing of notice
of determination. . . .” Subdivision (c) of the statute provides that
“[t]his section does not preclude any organization formed after
the approval of a project from maintaining an action . . . if a
member of that organization has complied with subdivision (b).”
7 Section 21167, subdivision (b) provides that “[a]n action
or proceeding alleging that a public agency has improperly
determined whether a project may have a significant effect on
the environment shall be commenced within 30 days from the
date of the filing of the notice [of determination].”
19
(McKinny v. Board of Trustees (1982) 31 Cal. 3d 79, 90.) While
it is true that the issue of standing can be raised at any time,
including for the first time on appeal, that is not the case with
the statute of limitations. “Because a statute of limitations is an
affirmative defense, it is forfeited if it is not properly asserted in
a general demurrer or pleaded in an answer. [Citations.]” (PGA
West Residential Assn., Inc. v. Hulven Internat., Inc. (2017) 14
Cal. App. 5th 156, 176; accord, Minton v. Cavaney (1961) 56 Cal. 2d
576, 581.) Here, neither Appellants nor the City pleaded the
statute of limitations in their respective answers to the first
amended petition, nor did they assert it in a demurrer to the
petition. The defense was thus forfeited. Additionally, by failing
without explanation to present any argument regarding the
statute of limitations in their opening brief, Appellants are
precluded from raising it in their reply. (California Building
Industry Assn. v. State Water Resources (2018) 4 Cal. 5th 1032,
1050 [where appellant fails to raise an argument “until its
appellate reply brief,” it “has forfeited the argument”];
Varjabedian v. City of Madera (1977) 20 Cal. 3d 285, 295, fn. 11
[“[o]bvious reasons of fairness militate against consideration of
an issue raised initially in the reply brief of an appellant”].)
Under these circumstances, we need not consider whether
STACK has standing to bring this action under CEQA.8 Even if
8 Resolving the issue of STACK’s standing in this case also
would fall outside the proper scope of appellate review because it
would require consideration of factual issues not included in the
record, such as when STACK was formed and whether any of
its members objected to the approval of the project during the
administrative proceedings. (Tanguilig v. Neiman Marcus
Group, Inc. (2018) 22 Cal. App. 5th 313, 330 [“appellant may not
raise a new theory on appeal when the theory rests on facts that
20
we were to assume that STACK lacks standing, Appellants do
not dispute that CNPS has standing, and they have forfeited
any claim that CNPS cannot maintain the action based on the
statute of limitations. Because at least one of the petitioners has
standing under CEQA, this court has jurisdiction over the appeal.
IV. Impacts On Cultural Resources
In granting the writ petition on the cause of action for
violation of CEQA, the trial court concluded that an EIR was
required to consider the project’s impacts on tribal cultural
resources. Appellants argue that the trial court erred in
reaching this conclusion because Petitioners failed to exhaust
administrative remedies as to their cultural resource claims.
Appellants further assert that, even if exhaustion was shown,
there was no substantial evidence to support a fair argument
that the MND’s mitigation measures are insufficient to reduce
the impacts on cultural resources to less than significant.
A. Relevant Background
Prior to the arrival of the Europeans, a Native American
group known as the Chumash occupied the region where the
project site is located. The project site includes an identified
prehistoric archaeological site, CA-LAN-1352, which consists of a
surface scatter of lithic artifacts and a subsurface deposit at the
were . . . not fully developed in the trial court”]); Rayii v. Gatica
(2013) 218 Cal. App. 4th 1402, 1409 [appellate court “will not
consider a new issue where the failure to raise the issue in the
trial court deprived an opposing party of the opportunity to
present relevant evidence”].)
21
northern end of the property. Studies of CA-LAN-1352 conducted
in 1988 and 2004 determined the site represented a significant
heritage resource under CEQA. In 2011, an expanded Phase II
test excavation of the site concluded that it met the requirements
for inclusion in the California Register of Historical Resources
(CRHR) because it retained the potential to yield information
important to the prehistory of the area. In 2014, Rincon
Consultants, Inc. prepared a peer review of the 2011 study and
concurred with that study’s assessment that the site was eligible
for listing in the CRHR. The 2014 peer review recommended
that CA-LAN-1352 should be avoided, and if avoidance was not
feasible, then a Phase III data recovery program should be
conducted. It also recommended that all construction-related
ground-disturbing activities should be monitored by a qualified
archaeologist and a Chumash Native American representative.
In adopting the MND, the City reviewed the archaeological
studies of CA-LAN-1352 conducted in 1988, 2004, and 2011, and
the peer review report prepared in 2014. The City concluded
that, because the project would involve extensive grading of the
site to develop multiple mixed-use buildings and parking areas,
the environmental impacts on cultural resources were potentially
significant and would require mitigation. The MND sets forth
three mitigation measures–CS-CR-1, CS-CR-2, and CS-CR-3–
that the City contended would reduce the project’s impacts on
cultural resources to a less than significant level.
CS-CR-1 requires monitoring of the site during ground-
disturbing activities. It provides, in relevant part: “Monitoring
of all project related ground disturbing activities of sediments
that appear to be in a primary context shall be conducted by
a qualified archaeologist and/or paleontologist [and Native
22
American monitor qualified to identify Chumash and Gabrieleno
resources] approved by the City Planning Department. . . . If
archaeological/paleontological resources are encountered during
ground-disturbing activities, the City Planning Department shall
be notified immediately, and work shall stop within a 100-foot
radius until the archeologist has assessed the nature, extent, and
potential significance of any remains pursuant to [CEQA]. In
the event such resources are determined to be significant,
appropriate actions are to be determined by the archeologist
consistent with CEQA . . . and the City General Plan, in
consultation with the City Planning Department.”
CS-CR-2 addresses the proper notification process if any
human remains are discovered at the site. It states, in pertinent
part, that in the event human remains are discovered, “the City’s
Environmental Analyst and County Coroner shall be notified
immediately. . . . If the human remains are determined to be
prehistoric, the County Coroner shall notify the Native American
Heritage Commission, which will determine and then notify the
Most Likely Descendent (MLD). The MLD shall complete an
inspection and make a recommendation within 48 hours of the
notification. If no recommendation is received, the remains shall
be interred with appropriate dignity on the property in a location
not subject to future development.”
CS-CR-3 mandates an excavation program if the site
cannot be avoided. It provides: “If avoidance of CA-LAN-1352 is
not possible, the project applicant shall complete a Phase III data
recovery excavation program prior to project-related ground
disturbance. The Phase III data recovery program should be
completed by a professional archeologist who meets the Secretary
of the Interior’s Professional Qualifications Standards for
23
prehistoric archaeology . . . and include the preparation of a work
plan/research design, fieldwork, laboratory analysis of recovered
artifacts and ecofacts, special studies if appropriate, the
preparation of a technical report, and curation of recovered
materials. The technical report shall include a mitigation
monitoring and reporting plan. The Phase III fieldwork shall be
conducted by a Native American monitor qualified to identify
Chumash and Gabrieleno resources.”
B. Petitioners Exhausted Administrative
Remedies As To The Cultural Resource Claims
In the writ proceedings, Petitioners raised six arguments
regarding the project’s potential impacts on cultural resources.
The trial court found Petitioners had exhausted administrative
remedies as to four of the six arguments. On appeal, Appellants
assert that none of these claims were raised in the administrative
proceedings. Based on our independent review of the record, we
conclude that Petitioners satisfied the exhaustion requirement
as to each cultural resource claim at issue in this appeal.
Petitioners’ first claim is that the MND fails to identify and
analyze CA-LAN-1352 as a tribal cultural resource in accordance
with sections 21074, subdivision (a) and 21082.3, subdivision (b).
Section 21074 defines “tribal cultural resources” as including
sites with cultural value to a California Native American tribe
that are determined to be eligible for inclusion in the CRHR.
(§ 21074, subd. (a)(1).) Section 21082.3 provides that, if a project
may have a significant impact on an identified tribal cultural
resource, the environmental document shall discuss the impact
and any feasible alternatives or mitigation measures, including
measures that may be agreed upon in consultation with a
24
California Native American tribe that is affiliated with the
geographic area of the project. (§ 21082.3, subd. (b).) While it
appears that none of the public comments submitted to the City
cited these specific statutory provisions, several objections were
raised about the City’s failure to consult with Chumash tribes on
measures that could preserve the site’s cultural resources.
Specifically, in a February 2016 letter to the City Council,
archeologist Chester King stated: “I found no evidence of
consultation with Native American tribes as required by . . .
section 21083.099 in the MN[D]. The significance of the loss of
the cultural resource to Chumash people and the possibility of
mitigation of the loss needs to be determined as part of the
environmental review.” The letter also noted that “[n]o project
alternatives are presented that result in preservation of the site.”
Similarly, in a February 2017 email to the City’s Planning
Director, a member of the Elders Council of the Santa Ynez Band
of Chumash Indians wrote: “The area in which this project is
being proposed is considered to be sensitive when it comes to
Chumash culture. . . . What measures, in consultation with
Chumash tribes, has the City of Agoura Hills Planning Dept. and
the applicant made to assure and avoid impacts to cultural
heritage?” At the March 2017 City Council hearing, an
individual named Emily Hilfand also complained about the lack
of consultation with Chumash tribes, stating: “I’m very
concerned about the known impacts [to] . . . CALAN1352. The
City never contacted any Chumash tribe members about this
9 Section 21083.09 required the Office of Planning and
Research to revise the CEQA guidelines to include separate
consideration of tribal cultural resources.
25
plan.” Taken together, these comments fairly apprised the City
of the concern that the MND failed to adequately address project
alternatives or mitigation measures that could preserve tribal
cultural resources, including measures formed in consultation
with the Chumash tribes. (See Santa Clarita Organization for
Planning the Environment v. City of Santa Clarita (2011) 197
Cal. App. 4th 1042, 1052 [“[d]espite the general nature” of an
advocacy group’s letter, it “‘fairly apprised’ the city of [the
group’s] concerns” about the proposed mitigation measure];
California Native Plant Society v. County of El Dorado (2009) 170
Cal. App. 4th 1026, 1056 [where CNPS argued in public comments
that the proposed mitigation was not adequate, it “‘fairly
apprised the [c]ounty’ of its central claims”].)
Petitioners’ three remaining claims concern CS-CR-3.10
In the writ proceedings, Petitioners challenged this mitigation
measure on the following grounds: (1) it improperly defers
analysis of the project’s impacts on cultural resources by failing
to define the boundaries of CA-LAN-1352 and to determine the
feasibility of avoidance; (2) it is insufficient to mitigate the
impacts on cultural resources to a level below significant; and
(3) it improperly defers formulation of a Phase III data recovery
program, including a mitigation plan. The record reflects that
these claims were adequately presented to the City.
Among the objections set forth in his February 2016 letter,
Dr. King stated that the “project will destroy” CA-LAN-1352, that
“avoidance is not feasible without changing the project footprint,”
10 Petitioners did not raise any claims regarding CS-CR-2 or
the adequacy of the MND in addressing any potential discovery
of human remains at the project site.
26
and that the City’s MND “does not allow for consideration of
alternatives.” Dr. King also expressed his concern that the MND
“is not adequate for environmental review” of CA-LAN-1352. He
noted that an “archeological excavation of [the] site . . . is a
significant undertaking,” and thus, “[a] data recovery design
should be a part of an environmental impact document” that
would “describe the proposed excavation program and estimate
its cost” and “be subject to public review.” In his oral comments
at the City Council hearing, Dr. King reiterated his concern that
“an archaeological site is going to be destroyed.” He also asserted
that the MND is “totally inadequate” because studying the
impacts on the site “would require a very large archeological
project,” but apart from referring to “data recovery,” the MND
does not describe “what the mitigation would be” or “what will
happen to the site.” At the City Council hearing, Emily Hilfand
raised similar concerns about CS-CR-3’s proposed excavation
plan, stating: “The mitigations mentioned in the [MND] for the
Cornerstone project are also insufficient. Doing a Phase 3
excavation for an archeological site is not [a] mitigation effort, it’s
a destructive copout. There will not be a site after this
development because the hill will be taken down to bedrock as
mentioned in the project [r]eports.” In addition, CNPS asserted
in its administrative appeal that the MND was inadequate
because the boundaries of CA-LAN-1352 needed to be defined to
determine the project’s impact on the site. These written and
oral comments were sufficient to inform the City of the alleged
deficiencies in CS-CR-3, and therefore, to preserve Petitioners’
claims about those deficiencies for judicial review. (See Santa
Clarita Organization for Planning the Environment v. City of
Santa Clarita, supra, 197 Cal.App.4th at pp. 1051-1052;
27
California Native Plant Society v. County of El Dorado, supra,
170 Cal.App.4th at p. 1056.)
C. An EIR Is Required To Address The Project’s
Impacts On Cultural Resources
Appellants do not dispute that the portion of the project
site that is occupied by CA-LAN-1352 meets the definition of a
“tribal cultural resource” because it has yielded, or may be likely
to yield, important historical information. (§ 21074, subd.
(a)(1)(A).) They also do not dispute that the project may have
significant impacts on the site’s archeological and paleontological
resources, and that mitigation is required to reduce those impacts
to less than significant. Their contention on appeal is that the
MND’s mitigation measures “ensure that CA-LAN-1352 will be
avoided and undisturbed by the Project . . . through archeological
and paleontological and/or Native American expert monitoring
during all ground disturbing activities.” We conclude, however,
that substantial evidence supports a fair argument that the
MND’s measures improperly defer mitigation of the project’s
impacts on cultural resources, and are insufficient to avoid or
reduce those impacts to a less than significant level.
Generally, “‘[i]t is improper to defer the formulation of
mitigation measures until after project approval; instead, the
determination of whether a project will have significant
environmental impacts, and the formulation of measures to
mitigate those impacts, must occur before the project is approved.’
[Citations.]” (Oakland Heritage Alliance v. City of Oakland
(2011) 195 Cal. App. 4th 884, 906; see also CEQA Guidelines,
§ 15126.4, subd. (a)(1)(B).) “[A]n exception to this general rule
applies when the agency has committed itself to specific
28
performance criteria for evaluating the efficacy of the measures
to be implemented in the future, and the future mitigation
measures are formulated and operational before the project
activity that they regulate begins. [Citation.]” (Center for
Biological Diversity v. Department of Conservation (2019) 36
Cal. App. 5th 210, 239.) Thus, “‘“for [the] kinds of impacts for
which mitigation is known to be feasible, but where practical
considerations prohibit devising such measures early in the
planning process . . ., the agency can commit itself to eventually
devising measures that will satisfy specific performance criteria
articulated at the time of project approval.”’” (Oakland Heritage
Alliance v. City of Oakland, supra, at p. 906.) “Conversely,
‘“[i]mpermissible deferral of mitigation measures occurs when
[the agency] puts off analysis or orders a report without either
setting standards or demonstrating how the impact can be
mitigated in the manner described. . . .’”” (Preserve Wild Santee
v. City of Santee (2012) 210 Cal. App. 4th 260, 280-281.)
Appellants claim that the MND’s mitigation measures are
sufficient “to ensure that CA-LAN-1352 will be avoided and
undisturbed” because CS-CR-1 mandates that “the tribal cultural
resources will be preserved in place,” while CS-CR-3 requires the
completion of a data recovery program if “preservation becomes
impossible.” Contrary to their contention, however, neither of
these measures is designed to ensure the avoidance of CA-LAN-
1352 as a tribal cultural resource. CS-CR-1 provides for the
monitoring of ground-disturbing activities with allowances for
work stoppages so that “appropriate actions” can be taken for any
significant archeological or paleontological resources that are
discovered at the site. CS-CR-3 in turn provides for a Phase III
data recovery excavation program prior to any project-related
29
ground disturbance “[i]f avoidance of CA-LAN-1352 is not
possible.” Yet the MND does not set forth any analysis of
whether CA-LAN-1352 can be avoided, nor does it specify any
performance criteria for evaluating the feasibility of avoidance as
an alternative to excavation. As the trial court observed, an
important step in determining whether avoidance is feasible
would be to define the boundaries of the archaeological site.
However, in their 2014 peer review, Rincon Consultants noted
that prior studies did not completely define the boundaries of the
CA-LAN-1352, and that the boundaries would need to be defined
if the site cannot be avoided by the project. There is nothing in
the record to suggest that, following the 2014 peer review, the
City attempted to define the boundaries of CA-LAN-1352 to
determine if the site could be avoided, or that it was impractical
or infeasible for the City to make this determination as part of its
initial review.11 (CEQA Guidelines, § 15126. subd. (a)(1)(B)
[specific details of mitigation measure may be developed after
project approval only “when it is impractical or infeasible to
include those details during the project’s environmental review,”
11 Appellants assert the City could not identify the precise
boundaries of CA-LAN-1352 in the MND because applicable law
precludes the City from publicly disclosing information about the
location of archaeological sites. (See CEQA Guidelines, § 15120,
subd. (d); Gov. Code, § 6254, subd. (r).) However, the issue is not
whether the site’s boundaries should have been disclosed in the
MND, but whether those boundaries should have been defined by
the City to determine whether the site could be avoided. There is
no indication in the record that the City sought to fully define the
boundaries of CA-LAN-1352 prior to approving the project, and
neither the City nor Appellants suggested otherwise in the
proceedings before the trial court.
30
and the agency “adopts specific performance standards the
mitigation will achieve”].)
On the other hand, the record contains substantial evidence
to support a fair argument that avoidance of CA-LAN-1352 is not
feasible based on the existing project footprint. In his February
2016 letter, Dr. King stated that he specialized in the study of
the archaeology and history of Native Americans in Southern
California. He had studied the archeology of the Santa Monica
Mountains for 54 years. After reviewing the prior studies of
CA-LAN-1352 and the MND, Dr. King opined that the “proposed
Cornerstone project will destroy [the] archaeological site,” and
that “avoidance is not feasible without changing the project
footprint.” Dr. King offered a similar opinion at the City Council
hearing, stating: “I’m concerned that an archaeological site is
going to be destroyed by this project. The [MND] kind of skirts
around this issue, says maybe it’ll be destroyed. Well, if it’s going
to be like it’s shown, the site will be destroyed. Once an
archaeological site is destroyed, it can’t be replaced. . . .” Dr.
King’s comments thus support a fair argument that the proposed
monitoring of the project’s extensive grading activities, as
mandated by CS-CR-1, will be ineffective to avoid the site and the
significant impacts to it.
If, as Dr. King opined, avoidance of CA-LAN-1352 is not
feasible, then CS-CR-3 requires the implementation of a Phase
III data recovery excavation program. Dr. King explained that a
proper excavation of the site would be “a significant undertaking”
in terms of scope and cost. However, the MND does not consider
whether a large-scale excavation program of the kind described
by Dr. King would be feasible, and whether alternative measures
could effectively mitigate the harm caused by the loss of the site.
31
Moreover, like CS-CR-1’s avoidance plan, CS-CR-3 improperly
defers mitigation of the project’s impacts to the site by delaying
formulation of several components of the data recovery plan until
some future time. CS-CR-3 simply provides a generalized list of
measures to be undertaken by a qualified archaeologist and
Native American monitor, but it does not set forth any
performance standards or guidelines to ensure that these
measures will be effective. For instance, the program calls for
the future “preparation of a technical report” that “shall include a
mitigation monitoring and reporting plan.” Yet the MND does
not explain how the undefined monitoring and reporting plan
would mitigate the potentially significant effects on the site’s
cultural resources, nor does it specify any criteria for evaluating
the efficacy of that plan. There is also no indication in the record
that it was impractical or infeasible for the City to articulate
specific performance criteria for these data recovery measures at
the time of project approval. (See, e.g., Preserve Wild Santee v.
City of Santee, supra, 210 Cal.App.4th at p. 281 [city
impermissibly deferred mitigation where EIR did not state why
specifying performance standards for mitigation measure “was
impractical or infeasible at the time the EIR was certified”]; San
Joaquin Raptor Rescue Center v. County of Merced (2007) 149
Cal. App. 4th 645, 670 [mitigation improperly deferred where “no
specific criteria or standard of performance is committed to in the
EIR”]; Endangered Habitats League, Inc. v. County of Orange
(2005) 131 Cal. App. 4th 777, 792 [deferral not proper where
proposed “mitigation measure does no more than require a report
be prepared and followed”].)
In arguing that an EIR is not required to address the
project’s impacts on cultural resources, Appellants primarily
32
challenge the evidentiary value of the comments made by Dr.
King. Appellants contend that Dr. King’s comments are mere
“speculation and unsubstantiated opinion.” We disagree. In his
letter to the City Council, Dr. King set forth his qualifications as
an expert in Native American archaeology and history. He also
indicated that his opinions about the project’s impacts on CA-
LAN-1352 were based on his review of the 2011 study of the site,
the 2014 peer review, and the MND. Regardless of whether Dr.
King ever personally inspected the site, he had an adequate
background and knowledge base to support his opinion about the
significant effects of the project on the site’s cultural resources.
(Pocket Protectors v. City of Sacramento (2004) 124 Cal. App. 4th
903, 928 [“expert opinion if supported by facts, even if not based
on specific observations as to the site under review” may qualify
as substantial evidence supporting a fair argument].)
Appellants further assert that, even if Dr. King’s comments
reflected a disagreement among experts over the significance
of the project’s impacts, the City was entitled to rely on the
expertise of its own consultants, and did so by adopting the
specific recommendations made by Rincon Consultants in the
2014 peer review. However, as the trial court noted, this is not
a case where the experts disagreed about whether a proposed
project would have a significant effect on the environment. To
the contrary, Rincon Consultants opined that CA-LAN-1352
should be avoided, and that a Phase III data recovery program
should be conducted if avoidance was not feasible. Dr. King
agreed that data recovery would be required if the project was
not reconfigured to avoid the site, but opined that the MND’s
proposed measure, CS-CR-3, did not provide for an adequate
data recovery program to mitigate the site’s loss.
33
Moreover, to the extent there was a conflict in the evidence,
“‘neither the lead agency nor a court may ‘weigh’ conflicting
substantial evidence to determine whether an EIR must be
prepared in the first instance.’” (Citizens for Responsible & Open
Government v. City of Grand Terrace (2008) 160 Cal. App. 4th
1323, 1340; see also CEAQ Guidelines, § 15064, subd. (f)(1).) “It
is the function of an EIR, not a negative declaration, to resolve
conflicting claims, based on substantial evidence, as to the
environmental effects of a project.” (Pocket Protectors v. City of
Sacramento, supra, 124 Cal.App.4th at p. 935.) Because the
record contains substantial evidence supporting a fair argument
that the MND’s measures are inadequate to avoid or mitigate the
impacts to CA-LAN-1352 “to a point where clearly no significant
effect on the environment would occur,” an EIR is required to
consider the project’s impacts on cultural resources. (§ 21064.5.)
V. Impacts On Sensitive Plant Species
Appellants also challenge the trial court’s conclusion that
an EIR is required to consider the project’s impacts on sensitive
plant species. They contend that the trial court erred because the
MND includes three measures that are sufficient to reduce any
adverse impacts caused by project-related activities, and to offset
any loss of individual plants through restoration, preservation,
and enhancement efforts. They further assert that Petitioners
failed to exhaust administrative remedies as to several of their
claims about these mitigation measures.
A. Relevant Background
Three plant species considered to be rare, threatened, or
endangered occur at the project site: the Agoura Hills dudleya,
34
the Lyon’s pentachaeta, and the Ojai navarretia. All three plant
species occur in areas zoned for project-related fuel modification
activities, such as mowing, pruning, and clearing of brush.12
Rare plant surveys of the area were conducted in 2007 and 2008
as part of the AVSP EIR. A biological resources inventory and
impact analysis, which included a project site field investigation,
was completed in February 2014, and a supplemental rare plant
survey of the site was conducted in July 2014.
According to the results of the July 2014 survey, there are
142 Agoura Hills dudleya at the project site, including 90 within
the limits of fuel modification. There is one Lyon’s pentachaeta,
which also is located within the limits of fuel modification. There
are 74 Ojai navarretia within the limits of grading, seven within
the limits of landscaping, and 163 within the limits of fuel
modification. It is anticipated that the soils in the occupied areas
will contain seeds of these plant species, and that the number of
live individual plants at the site will vary each season depending
on growing conditions. The July 2014 survey also found that all
three plant species would be potentially susceptible to impacts
from grading, landscaping, and/or fuel modification activities.
In adopting the MND, the City concluded that the project’s
potential impacts to these three plant species were significant,
but mitigable through the following measures: CS-BIO-1, which
discusses mitigation for the Agoura Hills dudleya and the Lyon’s
12 “Fuel modification involves removal of particularly
flammable vegetation and replacement with more fire resistant
varieties, and a fuel modification plan must be incorporated as
a component of a required landscaping plan.” (Endangered
Habitats League, Inc. v. County of Orange, supra, 131
Cal.App.4th at p. 787, fn. 8.)
35
pentachaeta; CS-BIO-3, which addresses mitigation for the Ojai
navarretia; and CS-BIO-2, which provides for monitoring of fuel
modification activities for all three species.
B. An EIR Is Required To Address The Project’s
Impacts On Sensitive Plant Species
In the writ proceedings, the trial court concluded that the
evidence supported a fair argument that each of the MND’s
measures would be ineffective to mitigate the potentially
significant impacts on the sensitive plant species occurring at the
site. Based on our independent review of the record, we agree
that there is substantial evidence supporting a fair argument
that, even with these mitigation measures, the project may have
a significant environmental impact on sensitive plant species.
1. CS-BIO-1
CS-BIO-1 provides for plant surveys, onsite restoration,
and offsite preservation and enhancement for the Agoura Hills
dudleya and the Lyon’s pentachaeta. It states that, prior to the
issuance of a grading permit, a qualified plant ecologist will
perform surveys for listed species, including the dudleya and the
pentachaeta, during the blooming period from April to June. If a
state or federally listed species is found, avoidance is required
unless the project applicant provides substantial documentation
that avoidance would not be feasible or would compromise the
objectives of the AVSP. Avoidance is defined as a minimum 200-
foot setback unless an active maintenance plan is implemented.
If avoidance is not feasible, a qualified ecologist will prepare a
restoration plan involving salvage and replanting in coordination
with applicable federal, state, and local agencies. The plan must
identify the number of plants to be replanted and the methods to
36
be used for onsite preservation, and include a monitoring
program to measure the success of the effort. The required level
of success is defined as a minimum of three consecutive years of
growth of a population equal to or greater than that which would
be lost due to the project. The restoration plan must be
submitted to the City for approval prior to the issuance of a
grading permit, and must be implemented prior to completion of
the project. If approved, the plan requires annual monitoring
and reporting for a five-year period.
In seeking writ relief, Petitioners argued that CS-BIO-1 is
inadequate in several ways, including that it improperly defers
the formulation of certain mitigation efforts and fails to set forth
performance criteria to ensure that mitigation would be effective.
Appellants contend that these claims were never raised in the
administrative proceedings. The record shows otherwise. In an
October 2016 letter to the City’s Planning Director, the Santa
Monica Mountains Conservancy wrote that the MND’s sensitive
plant measures are deficient because they “are either deferred
mitigation, vaguely defined, do not mitigate habitat loss, or rest
on unproven sensitive species reestablishment methods.”
Similarly, in a March 2017 letter to the City, the environmental
law firm, Chatten-Brown & Carstens (CBC), stated that these
measures “are vague, deferred, or ineffective, and will not ensure
the propagation of rare plant species . . . that would be required
for the Project’s impacts to remain at a level below significance.”
The letter also asserted that CS-BIO-1, in particular, improperly
defers a determination of whether avoidance is feasible and fails
to specify performance standards for restoration. These
arguments about CB-BIO-1 accordingly were preserved for
judicial review.
37
Appellants argue that CS-BIO-1 provides sufficient
mitigation standards to protect the dudleya and pentachaeta
plants occurring at the site. However, the record contains
substantial evidence to support a fair argument that this
measure is inadequate to mitigate the potential impacts to these
species. First, in adopting each of the plant mitigation measures,
the City relied on surveys conducted at the project site in 2007,
2008, December 2013, and July 2014. In an August 2016
comment letter to the Planning Director, the California
Department of Fish and Wildlife (CDFW) noted that these
surveys were outdated, and that the most recent one was done in
the summer during an ongoing drought. According to the CDFW,
botanical surveys that are older than two years and performed in
conditions that do not maximize detection “may overlook the
presence or actual density of some special status plant species
on the [p]roject site.” The CDFW therefore recommended that
“additional botanical surveys be conducted at the appropriate
time of year with proper weather conditions and the results
incorporated into the environmental document for review and
comment.” While CS-BIO-1 calls for future surveys during the
blooming period, there was no showing that it was infeasible for
the City to perform these surveys prior to project approval so that
the MND could provide an accurate assessment of the sensitive
plant populations that may be impacted. (CEQA Guidelines,
§ 15126.4, subd. (a)(1)(B).)
Second, CS-BIO-1 provides for a restoration plan involving
salvage and replanting if avoidance is not feasible, but there is
substantial evidence that restoration may not effectively mitigate
the impacts to the dudleya and pentachaeta species. In its letter,
the CDFW explained that these species could suffer adverse
38
impacts from project-related construction, maintenance, and fuel
modification activities. The project also could introduce invasive
ant species onto the habitats occupied by these plants, which
could interfere with pollination and dispersal. The CDFW
further stated that the “impacts will continue to be significant
because CS-BIO-1 will not result in adequate avoidance or
successful mitigation. . . .” With respect to the restoration plan,
the CDFW cautioned that “[c]reation or restoration using
transplanting or topsoil collection should be considered
experimental in nature and not be considered as a mitigation
measure” for the dudleya and pentachaeta species. A similar
observation was made in the 2008 AVSP EIR, which noted that
“most of the attempts to re-establish Lyon’s pentachaeta have
failed.” Based on this evidence, it can be fairly argued that
restoration, whether onsite or offsite, is not an effective form of
mitigation for these plant species. (California Native Plant
Society v. County of El Dorado, supra, 170 Cal.App.4th at p. 1060
[substantial evidence supported fair argument that MND’s plant
restoration measure was inadequate where experts opined that
transplanting affected species was an “experimental” and
“unproven method”].)
Third, the MND defers formulation of certain components
of CS-BIO-1 without setting specific performance criteria to
ensure that these measures, as implemented, will be effective.
For instance, CS-BIO-1 mandates a 200-foot minimum setback to
avoid dudleya and pentachaeta plants found at the site unless
“avoidance would not be feasible” or an “active maintenance plan
is implemented for the known occurrence.” Yet the MND does
not specify performance standards for determining the feasibility
of avoidance or for evaluating the efficacy of any maintenance
39
plan that may be adopted in lieu of the minimum buffer zone.
(See Preserve Wild Santee v. City of Santee, supra, 210
Cal.App.4th at p. 281 [“‘EIR is inadequate if “[t]he success
or failure of mitigation efforts . . . may largely depend upon
management plans that have not yet been formulated, and have
not been subject to analysis and review within the EIR”’”].)
Additionally, while CS-BIO-1 sets standards for measuring the
success of the restoration plan, it does not provide for any feasible
alternatives if those salvage and replanting efforts fail. Because
substantial evidence indicates that restoration may fail, there is
a fair argument that CS-BIO-1 may be ineffective in offsetting
the loss of dudleya and pentachaeta plant life at the project site.
In arguing that CS-BIO-1 provides for sufficient mitigation,
Appellants contend that the City’s failure to perform updated
surveys prior to project approval does not reflect any deficiency in
the MND. It is true, as Appellants assert, that “an agency is not
required to conduct all possible tests or exhaust all research
methodologies to evaluate impacts. Simply because an additional
test may be helpful does not mean an agency must complete the
test to comply with the requirements of CEQA.” (Save Panoche
Valley v. San Benito County (2013) 217 Cal. App. 4th 503, 524.)
On the other hand, additional testing may be required under
CEQA “if the initial testing is insufficient.” (Gray v. County of
Madera (2008) 167 Cal. App. 4th 1099, 1115.) Here, the MND
was based on outdated surveys taken in the midst of an ongoing
drought during which, according to the CDFW, dudleya and
pentachaeta plants might be difficult to detect. Hence, the
evidence supported a fair argument that an updated survey
would not merely be helpful, but would be necessary to formulate
an adequate mitigation measure for these affected plant species.
40
Citing the 2008 AVSP EIR, Appellants also assert that
restoration of the dudleya and pentachaeta plants is feasible with
an active management and maintenance plan to monitor success.
However, as the trial court observed, that prior report stated that
any success in replanting Lyon’s pentachaeta “would only occur
for as long as the management occurs,” and that “a site with
appropriate soils would need to be actively maintained in
perpetuity.” While CS-BIO-1 requires five years of annual
reporting and monitoring for its restoration plan, it does not
provide for active maintenance in perpetuity or alternative
mitigation measures if the replanting efforts do not succeed.
Moreover, while the biologists who conducted the 2013 and 2014
rare plant surveys opined that CS-BIO-1 would reduce impacts
on the affected plants to a less than significant level, the CDFW
offered a contrary opinion in its August 2016 comment letter.
The CDFW’s analysis provides substantial evidence to support a
fair argument that CS-BIO-1 is inadequate to mitigate the
project’s potentially significant impacts to the dudleya and
pentachaeta plant species. (See California Native Plant Society
v. County of El Dorado, supra, 170 Cal.App.4th at p. 1060 [where
the views of agency biologists about the ineffectiveness of MND’s
plant mitigation measure conflicted with those of the expert who
reviewed the project for the developer, the biologists’ “views were
adequate to raise factual conflicts requiring resolution through
an EIR”].)
2. CS-BIO-3
CS-BIO-3 requires onsite restoration, offsite preservation,
or offsite enhancement for the Ojai navarretia. It states that the
project applicant must offset the loss of individual navarretia
plants at a 2:1 ratio using one of these methods or another
41
mitigation method approved by the City’s Planning Director. A
plan identifying the location and methodology for satisfying the
required ratio must be submitted to the City and the CDFW.
Onsite restoration would involve the collection of seed from inside
the development footprint and replanting of the seed in a suitable
area. Offsite preservation would consist of locating a population
of Ojai navarretia containing at least two times the number of
individual plants impacted by the project and preserving the
population in perpetuity. Offsite enhancement would consist of
locating a disturbed poor quality population of Ojai navarretia
containing at least two times the number of impacted onsite
plants and enhancing the conditions of the habitat to promote the
long-term viability of the population. The selected plan would
need to be prepared by a qualified plant ecologist and submitted
to the City for approval prior to the issuance of a grading permit,
and if approved, it would require maintenance and monitoring by
the applicant for a minimum of five years. Offsite presentation or
enhancement is permitted only if the applicant demonstrates
that onsite restoration is either not feasible or not as likely to be
successful as the offsite methods.
Appellants contend that Petitioners’ arguments concerning
the adequacy of CS-BIO-3 were not raised in the administrative
proceedings. However, the record reflects that several different
groups apprised the City of these issues during the public
comment period. As discussed, the Santa Monica Mountains
Conservancy objected to the MND’s plant measures on grounds
that they defer mitigation, are vaguely defined, fail to mitigate
habitat loss, and rest on unproven restoration methods. At the
City Council hearing, CNPS’s local chapter president, Snowdy
Dodson, also raised concerns about the feasibility of restoration,
42
noting: “Mitigating the loss of rare plants is next to impossible.
The rarity means that they are often site-specific for soils and
climate conditions. Transplanting, seed-sewing, growing in a
nursery are usually not an option.” In its letter to the City, CBC
specifically objected to CS-BIO-3 on the grounds that it “is both
impermissibly deferred and likely ineffective,” and “will not
mitigate the loss of the 244 individual plants.” The CDFW also
addressed the likely ineffectiveness of CS-BIO-3 in its comment
letter. On this record, Petitioners’ arguments regarding CS-BIO-
3 satisfied the exhaustion requirement.
The evidence shows that, like CS-BIO-1, CS-BIO-3 may be
ineffective in mitigating the project’s impacts to sensitive plant
species. The CDFW’s stated concerns about the unreliability of
the prior botanical surveys and the need for updated surveys as
part of the environmental review process applied equally to the
Ojai navarretia. Moreover, unlike CS-BIO-1, CS-BIO-3 does not
require that any field surveys be performed prior to the issuance
of a grading permit. While it is possible, as Appellants assert,
that the surveys mandated by CS-BIO-1 for “listed plants”
might include the Ojai navarretia, this species is not listed as
endangered or threatened under state or federal law. Rather, it
is considered a special-status species based on the CNPS’s rare
plant ranking system. Thus, there is uncertainty as to what
future studies, if any, will be done to obtain accurate, up-to-date
information about the site’s navarretia population and how it
may be impacted by the project.
Additionally, although CS-BIO-3 expressly provides that
“[o]nsite restoration is preferred” over offsite alternatives, there
is substantial evidence in the record that replanting the Ojai
navarretia outside the project footprint may not be a feasible
43
mitigation measure. In its comment letter, the CDFW indicated
that, like the dudleya and pentachaeta species, the navarretia is
at risk of adverse impacts from the project, including the possible
introduction of invasive weeds and ant species that may interfere
with navarretia pollinators and dispersal agents. The CDFW
further stated that the transplanting of special-status plants was
uncertain and often failed, and hence, it should “not be viewed as
a mitigation measure” for the Ojai navarretia. In response to this
evidence, Appellants again cite to the analysis in the 2008 AVSP
EIR that active plant management could reduce the impacts to a
sensitive plant species to a less than significant level. However,
as discussed, that prior analysis concerned the Lyon’s
pentachaeta, not the Ojai navarretia. It also made clear that
active management would need to continue in perpetuity rather
than the five-year period required by CS-BIO-3.
Appellants argue that, even if onsite restoration were
ineffective, CS-BIO-3 provides for offsite preservation and
enhancement as alternative mitigation measures. Petitioners
assert that there is no evidence in the record to suggest that
either of these measures is feasible. Appellants, on the other
hand, contend that, in the absence of evidence demonstrating
that these measures are infeasible, any doubts must be resolved
in favor of the City’s decision. However, under the fair argument
standard, “‘deference to the agency’s determination is not
appropriate and its decision not to require an EIR can be upheld
only when there is no credible evidence to the contrary.’”
(Georgetown Preservation Society v. County of El Dorado (2018)
30 Cal. App. 5th 358, 370; see also Jensen v. City of Santa Rosa,
supra, 23 Cal.App.5th at p. 884 [fair argument standard “‘creates
a low threshold requirement for initial preparation of an EIR
44
and reflects a preference for resolving doubts in favor of
environmental review when the question is whether any such
review is warranted’”].) While the CDFW did not directly address
the feasibility of offsite preservation or enhancement in its letter,
it did state that the project’s impacts to the Ojai navarretia
“would continue to be significant because CS-BIO-3 will not
result in adequate avoidance or successful mitigation.” The
CDFW’s opinion constitutes substantial evidence supporting a
fair argument that, even with CS-BIO-3, the project may have a
significant impact on the Ojai navarretia species.
3. CS-BIO-2
CS-BIO-2 states that, prior to fuel modification activities
at the project site, a qualified biologist will locate and flag all
Agoura Hills dudleya, Lyon’s pentachaeta, and Ojai navarretia
plants within the fuel modification zone. The biologist will also
demarcate an appropriate buffer of at least 10 feet, develop and
implement protocols for protecting the plants in consultation with
the Los Angeles County Fire Department, and monitor all fuel
modification activities in these areas. Upon completion of each
fuel modification effort, the biologist will remove the flagging that
was used to demarcate the plant locations.
In the writ proceedings, Petitioners argued that CS-BIO-2
is infeasible and likely ineffective. While Appellants contend that
Petitioners failed to exhaust administrative remedies as to this
claim, the record reflects that the City was fairly apprised of the
concerns about the MND’s mitigation of impacts to sensitive
plant species in fuel modification zones. The CDFW specifically
addressed whether CB-BIO-2 would provide sufficient mitigation
for these plants in its comment letter. In its letter to the City,
CBC also stated: “The MND . . . fails to consider the Project’s
45
fuel modification zone in its analysis of the Project’s impacts on
rare and endangered plant species. Fuel modification zones for
the Project may extend hundreds of feet from the buildings. . . .
Thus, without disclosure and analysis, this impact cannot have
been adequately mitigated such that use of an MND is
appropriate.” Given these public comments, Petitioners’ claims
about CB-BIO-2 were adequately raised in the administrative
proceedings.
In its comment letter, the CDFW expressed the following
opinion about the efficacy of CB-BIO-2 as a mitigation measure:
“The effects of entering into vegetative communities supporting
sensitive plant species for the purposes of clearing wildfire fuel
is by its nature a disruptive activity with a high probability
of resulting in incidental take of special status plant species
including state and federal listed species. Fuel modification also
alters the ecosystem of the community and may result in direct
adverse effects to special status plant species. Therefore, CDFW
is concerned that Mitigation Measure CS-BIO-2 . . . will not
adequately avoid direct and/or indirect impacts . . . to onsite
populations of Lyon’s pentachaeta, Agoura Hills dudleya, or the
Ojai navarretia . . . within the proposed fuel modification zone.”
The CDFW’s opinion supports a fair argument that CS-BIO-2
does not provide adequate mitigation for the sensitive plant
species in the fuel modification zones.
In arguing that CS-BIO-2 sufficiently mitigates the impacts
to these plant species, Appellants point out that the monitoring of
fuel modification activities at the site will take place prior to the
issuance of a grading permit and continue throughout grading
and construction. However, as the trial court noted, the City’s
fuel modification plan for the project indicates that routine
46
maintenance activities will be conducted indefinitely. If the
monitoring required by CS-BIO-2 only occurs through project
construction, then this measure may be ineffective at mitigating
the impacts caused by fuel modification activities that occur after
construction has ended.
In sum, there is substantial evidence supporting a fair
argument that the MND’s proposed measures are infeasible or
inadequate to mitigate the project’s impacts on the Agoura Hills
dudleya, Lyon’s pentachaeta, and Ojai navarretia to a less than
significant level. Accordingly, an EIR is required to address the
potential impacts on these sensitive plant species. (CEQA
Guidelines, § 15065, subd. (a)(1) [EIR is required where a project
“has the potential to . . . threaten to eliminate a plant or animal
community [or] substantially reduce the number or restrict the
range of an endangered, rare or threatened species”].)
VI. Impacts On Native Oak Trees
In granting writ relief, the trial court concluded that an
EIR was required to consider the project’s potential impacts on
native oak trees present at the site. On appeal, Appellants assert
that Petitioners’ claims about the impacts on oak trees are barred
by their failure to exhaust administrative remedies. They also
argue that the mitigation measures in the MND are sufficient
to reduce the impacts on oak trees to less than significant.
A. Relevant Background
Native oak trees are considered a valuable resource by
the CDFW, and are protected by the City’s Oak Tree Ordinance.
(Agoura Hills Municipal Code (Municipal Code), Art. IX, §§ 9657-
9657.5.) The ordinance includes the City’s Oak Tree Preservation
47
Guidelines, which provide for the protection and replacement of
oak trees that may be disturbed or removed by development in
the area. (Municipal Code, Art. IX, Appen. A.) The site of the
project contains oak woodland consisting of valley oaks, coast live
oaks, and scrub oaks, all of which are protected under the Oak
Tree Preservation Guidelines.
According to the MND, there are currently 59 valley oak
and coast live oak trees and 61,845 square feet of scrub oak
habitat on the project site. During project construction, 29 of the
59 valley and coast live oak trees would be removed, and six
other oak trees would experience encroachment within their
protected zones. The project also would involve the removal of
21,271 square feet of scrub oak habitat. Four oak trees that
stand on the distinctive knoll at the northwest corner of the site
would be preserved in a newly-constructed plaza.
In adopting the MND, the City concluded that the project
would have significant impacts on the site’s oak trees, but that
such impacts would be reduced to less than significant with two
mitigation measures, CS-BIO-9 and CS-BIO-10. CS-BIO-9
generally provides for the replacement of oak trees removed
during project development, and where onsite replacement is
not feasible, it allows for an in-lieu fee to be paid to the City to
acquire land to plant new oak trees. CS-BIO-10 requires that,
prior to the issuance of a grading permit, the project applicant
must submit an oak tree survey, an oak tree report, and an oak
tree preservation program for review and approval by the City.
48
B. Petitioners Exhausted Administrative
Remedies As To The Oak Tree Claims
In their brief before the trial court, Petitioners contended
that the MND fails to adequately analyze and mitigate the
project’s impacts on oak trees, including water loss caused by
mass grading. Petitioners also argued that the MND’s mitigation
measures are uncertain and ineffective, and improperly defer
various aspects of mitigation such as the in-lieu fee payment. On
appeal, Appellants claim that Petitioners failed to meet their
burden of showing that these specific issues were presented in
the administrative proceedings. We disagree.
The record reflects that the City’s Oak Tree Consultant and
Appellants’ landscape architect each described the risk that mass
grading would result in a water deficit to the oak trees at the
project site. These experts also discussed the removal of scrub
oaks due to fuel modification activities and the efficacy of
replacing them with smaller trees. In addition, various
environmental groups informed the City of their concerns about
the project’s impacts on oak trees and the adequacy of the MND’s
mitigation measures. For instance, in its appeal letter, CNPS
wrote that the MND “does not adequately analyze environmental
consequences to the oak population at the project site,” and that
“[t]he ‘mitigation’ for this capacious and significant take is to
authorize an Oak Tree Permit, a variance, a small percentage of
onsite mitigation, with [an] undisclosed and vague promise to
plant oaks at an in lieu fee location.” A local CNPS member
reiterated these concerns at the City Council hearing, noting:
“The mitigation for the oak tree removal is not consistent with
the Specific Plan. It uses . . . replacement specimens that are
considerably smaller. It offers no monitoring plan to ensure the
49
long-term viability of the oaks and it doesn’t address the
associated plants that go along with an oak community.” At the
same hearing, a local resident specifically complained that the
mass grading required by the project would interrupt the
subsurface water flow to both retained and replacement oak
trees.
Other written and oral comments presented to the City
questioned the adequacy of mitigation through replanting of trees
and payment of an in-lieu fee. In a March 2017 letter to the City,
the Conejo Oak Tree Advocates (COTA) objected to the in-lieu fee
option, noting: “[T]he Mitigation Measures and Conditions allow
the applicant to pay a fee in lieu of . . . replacement of destroyed
trees. This possibility is a tremendous loss to your community.”
COTA urged the City to reconsider the measure because it would
allow “eliminating 59% of City protected Valley oak and Coast
Live oak trees on this site by simply paying a fee.” At the City
Council hearing, a member of COTA raised a similar concern
about allowing the project to “pay an in lieu fee instead of
replanting,” and asked the City to prepare a “full EIR that offers
. . . options with less impacts.” In its letter to the City, CBC
specifically asserted that CS-BIO-9 would not be an effective
measure, stating: “CS-BIO-9 . . . permits payment of an in-lieu
fee instead of replacement of the 29 trees that will be removed if
space is not available for replanting. This does not mitigate the
loss of oak woodlands on the site and will result in a new loss of
oak trees in Agoura Hills. Even if trees are replanted onsite or
offsite, grading and drainage alterations to the site will reduce
the ability of replanted oak trees to survive and thrive.”
Considering the totality of this record, Petitioners preserved each
of their oak tree claims for judicial review.
50
C. An EIR Is Required To Address The Project’s
Impacts On Oak Trees
Appellants contend that an EIR is not necessary to consider
the project’s potential impacts to native oak trees because CS-
BIO-9 and CS-BIO-10 provide feasible and effective measures for
mitigating those impacts. We conclude, however, that there is
substantial evidence supporting a fair argument that the MND
does not adequately analyze the significant impacts that the
project may have on the site’s oak trees, nor does it effectively
mitigate those potential impacts to a less than significant level.
1. CS-BIO-9
CS-BIO-9 provides for the replacement of oak trees that are
removed for development. It states that four oak trees will be
planted to replace each tree that is approved for removal. For
impacts involving 10 percent or less of oak tree removal, each oak
tree must be replaced onsite with trees of the same species. For
impacts involving greater than 10 percent of oak tree removal,
trees must be replaced onsite or an in-lieu fee must be paid to the
City to acquire land or plant new oak trees on another site. To
mitigate the removal of 21,271 square feet of scrub oak habitat,
at least 213 five-gallon scrub oak trees must be planted onsite. If
the City’s Planning Director or Oak Tree Consultant determines
that the onsite planting of the required number of scrub oak trees
is not feasible, then an equivalent in-lieu fee must be paid into
the City’s Oak Tree Mitigation Fund.
The evidence in the record supports a fair argument that
CS-BIO-9 is inadequate to mitigate the significant impacts on
oak trees. First, the record contains substantial evidence that
mass grading from the project may cause a loss of water to both
51
the retained and replacement trees. According to the 2008 Oak
Tree Report prepared by Appellants’ consultant: “Mass grading
of a site . . . will disrupt the natural subsurface water flowing
along the bedrock and supplying moisture to the trees. This will
likely cause a water deficit to indigenous oaks of this site.” The
report noted that “[i]t will be necessary to immediately respond to
this problem by establishing a method for replacing this water
loss.” In 2014, the City’s Oak Tree Consultant similarly opined
that there would be impacts to the retained oaks from the “severe
alteration of underground water availability as a result of grade
alteration.” The City’s consultant recommended that the project
arborist “provide supplemental irrigation details in order to
mitigate for the loss of seasonal flow from upslope.” At the City
Council hearing, an individual named Jess Thomas expressed
similar concerns about “the effect of the required grading on the
remaining and replacement oak trees.” Thomas explained that
“mass grading severely interrupts the natural waterways
underneath the earth,” which would impact the ability of “all of
the oak trees” on the site to survive. Despite these risks from
mass grading, CS-BIO-9 does not include any provisions for
mitigating the loss of water for the retained or replacement trees.
Moreover, while the MND states that the retained oaks will have
“no direct construction impacts,” it fails to provide any analysis of
the potential impacts to trees from the disruption of subsurface
water flow.
Second, there is substantial evidence that prior efforts at
oak tree restoration have failed. In a September 2016 letter to
the City’s Planning Director, the Resources Conservation District
of the Santa Monica Mountains reported: “To date, there have
been no successful restorations of oak woodlands. It is relatively
52
easy to plant oak trees, but the extensive ecological network and
soils that make a forest from those trees has been thus far
impossible to recreate.” In its comment letter, CBC similarly
stated that [a]ttempts to recreate oak woodlands as mitigation for
other developments are often unsuccessful.” In addition, CNPS
cautioned that planting a boxed tree from a nursery would not
mitigate the loss of fauna and plant life that are part of the oak
community. As the trial court noted, the MND contains no
analysis showing that CS-BIO-9 would be likely to succeed in
recreating or restoring the oak woodland lost to project
development.
Third, the evidence supports a fair argument that CS-BIO-
9 improperly defers formulation of the in-lieu fee program as an
alternative to onsite tree replacement. “In-lieu fee programs . . .
may offer the best solution to environmental planning challenges,
by providing some certainty to developers while adequately
protecting the environment. But in order to provide a lawful
substitute for the ‘traditional’ method of mitigating CEQA
impacts, that is, a project-by-project analysis, the fee program
must be evaluated under CEQA. [Citation.]” (California Native
Plant Society v. County of El Dorado, supra, 170 Cal.App.4th
at p. 1053.) Here, CS-BIO-9 provides that the in-lieu fee
payment will be used by the City to acquire land or plant oak
trees on another site, preferably in close proximity to the
removed trees. However, the MND does not specify the fees to be
paid or the number of trees to be planted offsite, nor does it
identify whether any other sites might be available to the City for
the planting of new oak trees. The MND also does not contain
any analysis of the feasibility of an offsite tree replacement
program. Given the evidence that prior efforts to recreate oak
53
woodlands have been unsuccessful, it cannot be presumed that
the offsite planting of oak trees through an in-lieu fee payment is
a feasible alternative to the onsite replacement of oak trees in
their native habitat. (Id. at p. 1059 [payment of in-lieu fee
pursuant to county ordinance did not eliminate need for EIR
because, “in the absence of any environmental review, [a fee
ordinance] does not presumptively establish full mitigation” for a
given project].)
In arguing that CS-BIO-9 adequately mitigates the impacts
on oak trees, Appellants note that state law allows mitigation
through funds contributed for oak tree conservation. They cite
section 21083.4, subdivision (b), which states that if a county
determines that a project may have a significant effect on oak
woodlands, it may contribute funds to the state’s Oak Woodlands
Conservation Fund for the purpose of purchasing oak woodlands
conservation easements. However, as the trial court pointed out,
that statute applies to county contributions to a state-run fund,
whereas CS-BIO-09 requires payment to the City to acquire land
or locate another site to plant new trees. In any event, section
21083.4 does not relieve the City of its obligation to analyze the
in-lieu fee measure under CEQA to determine if it adequately
mitigates this project’s impacts “to a point where clearly no
significant effect on the environment would occur.” (§ 21064.5.)
Appellants also assert that CS-BIO-9 provides for sufficient
mitigation because it includes various requirements to maximize
the viability of the replaced oak trees, such as replanting trees in
their species-specific habitat, adopting a preference for planting
mature oaks within the site, and mandating agency review of
project plans. However, as discussed, none of the provisions in
CS-BIO-9 address the risk of a subsurface water deficit due to
54
mass grading, even though the experts for both Appellants and
the City opined that it was necessary to establish a method for
replacing this water loss to the oak trees. The MND does not
discuss this potentially significant impact, nor does it evaluate
the evidence that prior attempts to restore oak woodlands have
failed. (See Nelson v. County of Kern (2010) 190 Cal. App. 4th 252,
267 [EIR required where agency “fails to gather information and
undertake an adequate environmental analysis in its initial
study’”]; Sundstrom v. County of Mendocino (1988) 202
Cal. App. 3d 296, 311 [“[w]here the local agency has failed to
undertake an adequate initial study,” it “should not be allowed to
hide behind its own failure to gather relevant data”].) Based on
this record, substantial evidence supports a fair argument that
CS-BIO-9 is inadequate to reduce the project’s impacts to oak
trees to a less than significant level.13
13 Petitioners contend that the MND also fails to analyze and
mitigate the impacts to scrub oaks that may result from being
replaced with smaller-sized trees and from fuel modification
activities that may require extensive pruning. While the trial
court found that the evidence did not support a fair argument
regarding these particular contentions, it concluded that an
EIR was required based on Petitioners’ other oak tree claims.
Because we agree that an EIR is required to consider the project’s
impacts on oak trees, we need not address Petitioners’ specific
arguments regarding the adequacy of the MND’s mitigation
measures for scrub oaks. In accordance with CEQA, the EIR
prepared by the City must clearly identify and describe all
significant effects of the project on the environment, and discuss
feasible mitigation measures for each significant environmental
effect that is identified. (§ 21100, subd. (b); CEQA Guidelines,
§§ 15126.2, subd. (a), 15126.4, subd. (a)(1).)
55
2. CS-BIO-10
CS-BIO-10 requires the project applicant to submit the
results of an oak true survey and an oak tree report, including an
oak tree preservation program, for review and approval by the
City prior to the issuance of a grading permit. The project must
be developed and operated in compliance with the approved oak
tree preservation program and any other conditions determined
to be necessary by the City’s Oak Tree Consultant. The program
must include a number of components, including restrictions on
grading and construction-related activities near the driplines of
trees, limits on irrigation and watering, and requirements for
fencing, trenching, and pruning. Under the program, the health
of the retained oak trees must be assessed prior to construction,
and any trees in a weakened condition must be treated to
invigorate them. The health of the trees also must be monitored
during all phases of construction, and any problems that are
detected must be properly addressed.
The record contains substantial evidence that CS-BIO-10
may not be effective in reducing the project’s impacts on oak trees
to less than significant. Like CS-BIO-9, CS-BIO-10 does not
address the risk that mass grading may disrupt the subsurface
water flow at the project site and cause a water deficit to the
site’s oak trees. Appellants claim that CS-BIO-10 is sufficient to
mitigate the risk of water loss because it provides for an oak tree
preservation program with several components that are designed
to ensure the health of the retained oak trees. However, the
program’s components are primarily aimed at protecting the oak
trees from damage caused by encroachment during grading and
construction. They do not address the long-term survival of the
retained or replacement oak trees whose natural source of water
56
is reduced by mass grading. While Appellants point to the
program’s watering and irrigation requirements as an example of
potential mitigation, those provisions actually limit the supply of
water to the oak trees by prohibiting permanent irrigation and
watering during the summer months. Neither these components
nor any others required by an oak tree preservation program
provide for lost water to be replaced. Because substantial
evidence supports a fair argument that, even with CS-BIO-9 and
CS-BIO-10, the project may have significant impacts on native
oak trees, an EIR is required to address those potential impacts.
VII. Impacts On Aesthetic Resources
In granting the writ petition for violation of CEQA, the
trial court concluded that there was substantial evidence to
support a fair argument that the project may have significant
impacts on the aesthetic resources of the site, and that the MND
is inadequate to mitigate those impacts to less than significant.
On appeal, Appellants do not challenge the merits of the trial
court’s ruling on the project’s impacts to aesthetic resources.
Rather, their sole contention is that Petitioners failed to exhaust
administrative remedies as to their aesthetic resource claims.14
14 Appellants’ reply brief includes a single, isolated reference
to the merits of the Petitioners’ claims. It states that “there is no
substantial evidence supporting a fair argument that significant
aesthetic impacts remain.” This conclusory assertion is not
accompanied by any discussion explaining why Petitioners’
claims lack merit or why the trial court’s ruling was incorrect.
On appeal, “‘“the party asserting trial court error may not . . .
rest on the bare assertion of error but must present argument
and legal authority on each point raised. [Citation.]” [Citations.]
When an appellant raises an issue “but fails to support it with
57
The MND states that “[t]he mature oak trees on the project
site offer a scenic resource, with the distinct example being the
knoll of oak trees on the northwestern corner of the project site.”
In adopting the MND, the City concluded that the potential
development of this knoll was a significant impact, but was
mitigatable through measure AES-3. AES-3 requires the project
applicant to “avoid development, removal, or reduction . . . of that
knoll,” and to minimize grading and other earthwork in the area
“in order to avoid substantially modifying a scenic resource.” The
City also concluded that the removal of oak trees at the site was a
potentially significant impact, but that CS-BIO-9 and CS-BIO-10
“would reduce the visual impacts related to the removal of oak
trees to a less than significant level.”
In seeking writ relief, Petitioners argued that the City
incorrectly had concluded that the MND’s measures adequately
mitigated the project’s impacts on aesthetic resources. With
respect to the scenic knoll, Petitioners asserted that the knoll’s
oak trees were at risk for harm from project construction and
reasoned argument and citations to authority, we treat the point
as waived.”’” (Hernandez v. First Student, Inc. (2019) 37
Cal. App. 5th 270, 277; see also Public Employment Relations Bd.
v. Bellflower Unified School Dist. (2018) 29 Cal. App. 5th 927, 939
[“‘“[w]e are not bound to develop appellants’ argument for them[;]
. . . [t]he absence of cogent legal argument or citation to authority
allows this court to treat the contention as waived”’”]; Allen v.
City of Sacramento (2015) 234 Cal. App. 4th 41, 52 [“[w]hen legal
argument with citation to authority is not furnished on a
particular point, we may treat the point as forfeited and pass
it without consideration”].) Because Appellants do not make any
reasoned argument as to whether the MND adequately mitigates
the project’s aesthetic impacts, that issue has been forfeited.
58
changes in subsurface water flow caused by mass grading, and
that there was no substantial evidence that any of the MND’s
mitigation measures, including AES-3, would effectively protect
those trees. With respect to the removal of the oak trees,
Petitioners argued that there was no substantial evidence that
CS-BIO-9 and CS-BIO-10 would adequately mitigate the harm
to scenic resources caused by the loss of the trees. Petitioners
specifically contended that CS-BIO-9’s allowance of a fee
payment in lieu of planting new trees would not reduce the
impacts on aesthetic resources at the site, and that CS-BIO-10
would not protect the long-term survival of the site’s oak trees.
Petitioners also noted that several of the trees to be removed
were among the largest and most vigorous oaks, and that the
MND did not address this significant scenic loss.
Appellants assert that none of Petitioners’ claims about the
project’s impacts on aesthetic resources were presented in the
administrative proceedings. However, our independent review
of the record demonstrates that Petitioners satisfied the
exhaustion requirement as to each of these claims. During the
public comment period, a number of individuals and groups
raised issues about the project’s aesthetic impacts. For instance,
in a March 2017 email to the City Council, a local resident wrote
that he was “opposed to this monstrous project moving forward in
its current state,” and was “particularly distressed at the planned
destruction of countless oak trees” because the “plants and
habitat of our beautiful hills, with all of the gorgeous oaks
populating these hillsides [are] what makes us unique.” In a
March 2017 comment letter, the group Save Open Space (SOS)
stated that the project would “substantially degrade the existing
visual character of the site,” including its “natural steep oak
59
studded hillside” and “distinctive topographical feature which is
the large natural corner knoll.” At the City Council hearing, an
SOS member reiterated these concerns, noting: “[T]he vast
majority of the steep, . . . oak-studded hillside will be replaced by
buildings which will degrade a major view for all parts of our
City.” She added that the “corner knoll is not being preserved.”
CBC also addressed the project’s aesthetic impacts in its
comment letter, stating that “[t]he conversion of a scenic knoll
into seven three-story buildings, along with the removal of 29
trees and 95,000 cubic yards of grading will cause significant
adverse impacts to the visual quality of the site.”
In addition to receiving these comments about the project’s
adverse aesthetic impacts, the City was fairly apprised of the
concerns about water loss to the oak trees from mass grading. As
discussed, experts for both the City and Appellants explained
that mass grading at the site could disrupt subsurface water flow
to the oak trees, and recommended that a method of replacing
this water loss be implemented. The City’s Oak Tree Consultant,
in particular, reported that the oaks on the knoll “would require
supplemental irrigation” as a result of “the interruption of sheet
flow from upslope.” She also advised the City to reconsider
removing certain valley oak trees because they were the largest
and most vigorous specimens on the site. The record further
reflects that the City was fairly apprised of the concern that the
MND’s in-lieu fee measure would not effectively mitigate the
project’s impacts to the oak trees. As described, COTA objected
to using an in-lieu fee to replace the loss of 29 oak trees in both
its written and oral comments to the City. In their respective
letters to the City, CBS asserted that the in-lieu fee would “not
mitigate the loss of oak woodlands on the site,” and CNPS
60
characterized the measure as an “undisclosed and vague promise
to plant oaks” at another location. On this record, Petitioners
adequately exhausted administrative remedies as to each of their
aesthetic resource claims.
VIII. Violation Of Oak Tree Ordinance
In addition to the CEQA cause of action, the petition for
writ of mandate alleged a cause of action for violation of the
City’s Oak Tree Ordinance. In granting the petition as to this
claim, the trial court concluded that the oak tree permit issued by
the City violated the ordinance’s prohibition on the removal of
more than 10 percent of the total estimated tree canopy. On
appeal, Appellants do not present any argument regarding the
merits of the trial court’s ruling.15 Instead, they assert that
Petitioners did not raise the City’s compliance with the ordinance
in the administrative proceedings, and therefore, failed to
exhaust their administrative remedies as to this claim.
15 As with the issue of aesthetic impacts, Appellants’ briefing
on appeal includes a conclusory assertion that the trial court
erred in finding that City’s issuance of the oak tree permit
violated the Oak Tree Ordinance as to the number of affected
trees. However, Appellants do not make any cognizable claim of
error with respect to the trial court’s conclusion that the City
violated the ordinance’s 10-percent rule, nor do they offer any
factual or legal basis for determining that there was statutory
compliance. Appellants therefore have forfeit any challenge to
the merits of the trial court’s ruling. (Hernandez v. First Student,
Inc., supra, 37 Cal.App.5th at p. 277; Public Employment
Relations Bd. v. Bellflower Unified School Dist., supra, 29
Cal.App.5th at p. 939; Allen v. City of Sacramento, supra, 234
Cal.App.4th at p. 52.)
61
The City’s Oak Tree Ordinance requires a permit to cut,
prune, remove, or encroach into the protected zone of an oak tree.
(Municipal Code, § 9657.5.) An oak tree permit may be issued to
a project applicant if the City finds that the continued existence
of the affected oak tree prevents the development of the project;
however, the applicant may not request the removal of more than
10 percent of the total estimated tree canopy or root structure of
all trees on the subject property. (Id. at § 9657.5, subd. (C)(3)(c).)
In seeking writ relief, Petitioners argued that the City violated
the ordinance in issuing an oak tree permit for the project
because, among other reasons, the permit allowed for the removal
of more than 10 percent of the oak tree canopy on the project site.
The trial court agreed, noting that the City’s own consultant had
advised the City that the project would result in the removal of
35 to 36 percent of the oak trees, and thus, exceed the amount
permitted by the Oak Tree Ordinance.
Appellants contend that the issue of statutory compliance
with the ordinance’s 10-percent removal limitation was not
presented to the City in the administrative proceedings. The
record shows, however, the City clearly was apprised of the issue.
In a May 23, 2014 memorandum to the Planning Director, the
Oak Tree Consultant for the City explained that her analysis
showed that “36 percent of the coast live oak and valley oak trees
will be removed,” and that the “Municipal Code states that not
more than 10 percent of the total estimated tree canopy or root
structure of all trees on the site may be removed.” In a June 29,
2015 memorandum, the Oak Tree Consultant again advised the
City’s Planning Director that the proposed development would
require the removal of 35 to 36 percent of the oak tree canopy,
62
and that the “overall impact therefore exceeds the impact
permitted by the Zoning Code.”
A number of groups and individuals also raised this issue
in their oral and written comments to the City. In a March 2017
letter to the City, SOS quoted the exact language of Municipal
Code section 9657.5, subdivision (C)(3)(c), and explained that
“[t]he proposed development violates the 10% rule.” In its appeal
letter, CNPS likewise cited the relevant provision of the
ordinance in asserting that “[t]he rules specify that no more than
10% of the oak population shall be removed for any project,” and
that the applicant “proposes removal of over 40% of all three oak
species.” At the City Council hearing, an SOS representative
pointed out that the “proposed project is cutting down 36% of the
oaks, when a maximum of 10% is allowed.” Another speaker
focused her remarks exclusively on the City’s lack of compliance
with the 10-percent rule, stating: “The maximum number of oak
trees which you can authorize for removal pursuant to Zoning
Code Section 9657.5 which you should have in front of you, is 10%
. . ., but [what] you’ve been requested to approve is far greater
than that. . . . Therefore, the Planning Commission erred in
granting an oak tree permit allowing for more than 10% of the
trees to be removed plain and simple. You do not have the right
to approve a permit that violates the City’s duly adopted law.”
Once again, Appellants’ exhaustion claim lacks merit.
IX. Award of Attorney’s Fees
Appellants challenge the trial court’s award of attorney’s
fees to Petitioners on two grounds. First, Appellants contend
that Petitioners are not entitled to any attorney’s fees because
they failed to provide notice of the CEQA action to the Attorney
63
General in accordance with section 21167.7 and Code of Civil
Procedure section 388. Second, Appellants claim that the trial
court erred in concluding that Gelfand was personally liable for
50 percent of the fee award.
A. Governing Law
Code of Civil Procedure section 1021.5 provides in relevant
part: “Upon motion, a court may award attorneys’ fees to a
successful party against one or more opposing parties in any
action which has resulted in the enforcement of an important
right affecting the public interest if: (a) a significant benefit,
whether pecuniary or nonpecuniary, has been conferred on the
general public or a large class of persons, (b) the necessity and
financial burden of private enforcement, or of enforcement by one
public entity against another public entity, are such as to make
the award appropriate, and (c) such fees should not in the
interest of justice be paid out of the recovery, if any.”
Accordingly, “‘[t]o obtain attorney fees under [Code of Civil
Procedure] section 1021.5, the party seeking fees must show that
the litigation: “‘“‘(1) served to vindicate an important public right;
(2) conferred a significant benefit on the general public or a large
class of persons; and (3) [was necessary and] imposed a financial
burden on plaintiffs which was out of proportion to their
individual stake in the matter.’ [Citation.]” [Citation.]’”
[Citations.] Because the statute states the criteria in the
conjunctive, each must be satisfied to justify a fee award.
[Citations.]’ [Citation.]” (City of Maywood v. Los Angeles
Unified School Dist. (2012) 208 Cal. App. 4th 362, 429.)
An award of attorney’s fees under Code of Civil Procedure
section 1021.5 generally is reviewed on appeal for abuse of
64
discretion. (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal. 5th
480, 488; Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52
Cal. 4th 1018, 1025.) “‘Fees approved by the trial court are
presumed to be reasonable, and the objectors must show error in
the award.’ [Citation.]” (Laffitte v. Robert Half Internat. Inc.,
supra, at p. 488.) “‘“However, de novo review of such a trial court
order is warranted where the determination of whether the
criteria for an award of attorney fees and costs in this context
have been satisfied amounts to statutory construction and a
question of law.”’ [Citation.]” (Conservatorship of Whitley (2010)
50 Cal. 4th 1206, 1213.) Under some circumstances, determining
whether the criteria for a fee award are satisfied may involve
“a mixed question of law and fact and, if factual questions
predominate, may warrant a deferential standard of review.”
(Connerly v. State Personnel Bd. (2006) 37 Cal. 4th 1169, 1175.)
B. CEQA’s Notice Requirement Does Not Preclude
Petitioners From Recovering Attorney’s Fees
Appellants argue that Petitioners cannot satisfy the
necessity and financial burden criteria of Code of Civil Procedure
section 1021.5 because they did not timely serve the Attorney
General with a copy of their first amended petition as required by
section 21167.7 and Code of Civil Procedure section 388. Section
2116.7 states, in relevant part, that every person who brings a
CEQA action “shall . . . furnish pursuant to Section 388 of the
Code of Civil Procedure a copy of any amended or supplemental
pleading filed by such person in such action to the Attorney
General. No relief, temporary or permanent, shall be granted
until a copy of the pleading has been furnished to the Attorney
General in accordance with such requirements.” Code of Civil
65
Procedure section 388 in turn provides that “the party filing the
pleading shall furnish a copy to the Attorney General of the State
of California . . . within 10 days after filing.”
In this case, it is undisputed that Petitioners filed the
original petition for writ of mandate on April 7, 2017, and mailed
a copy of the petition to the Attorney General five days later on
April 12, 2017. Petitioners filed the first amended petition on
August 10, 2017; however, they did not mail a copy of that
amended petition to the Attorney General until five months later
on January 20, 2018. Appellants assert that Petitioners’ failure
to serve the Attorney General with a copy of the first amended
petition within 10 days of filing precluded the trial court from
granting them any relief, including attorney’s fees under Code of
Civil Procedure section 1021.5.
In support of this argument, Appellants cite the decision
in Schwartz v. City of Rosemead (1984) 155 Cal. App. 3d 547
(Schwartz). In Schwartz, the plaintiff successfully obtained a
writ of mandate ordering the defendant city to conduct an
environmental assessment pursuant to CEQA of a proposed
cogeneration plant near the plaintiff’s property. (Id. at p. 554.)
In affirming the trial court’s denial of the plaintiff’s request for
attorney’s fees, the appellant court concluded that the plaintiff
was not entitled to attorney’s fees under Code of Civil Procedure
section 1021.5 because the financial burden that he undertook in
pursuing the action was not out of proportion to his personal
interest in the case. (Id. at p. 560.) The court also concluded that
the plaintiff’s failure to timely serve the Attorney General with a
copy of the pleadings refuted a showing of the necessity and
financial burden of private enforcement. (Id. at pp. 560-561.)
As the court explained: “[Plaintiff’s] failure to comply with the
66
statutory requirements of serving a copy of his pleading to the
Attorney General within 10 days of filing effectively precluded
the Attorney General from exercising an informed decision
regarding intervention in this action. If the Attorney General
had been promptly notified of [plaintiff’s] action and had decided
to intervene, [plaintiff] may not have been required to pursue his
lawsuit to the extent he ultimately did. The service of pleadings
on the Attorney General has the effect of informing that office of
the action and permits the Attorney General to lend its power,
prestige, and resources to secure compliance with CEQA and
other environmental laws, perhaps without the necessity of
prolonged litigation. If the Attorney General is properly served
and elects not to intervene, then a plaintiff's pursuit of a lawsuit
becomes presumptively ‘necessary.’” (Id. at p. 561.)
Contrary to Appellants’ contention, Petitioners are not
barred from recovering attorney’s fees based on their failure to
strictly comply with the 10-day notice requirement of section
21167.7 and Code of Civil Procedure section 388. First, as our
Supreme Court has recognized, these statues do “not make such
notification a prerequisite to recovering fees” under Code of Civil
Procedure section 1021.5. (Vasquez v. State of California (2008)
45 Cal. 4th 243, 258.) Instead, in determining in a particular case
“whether private enforcement was sufficiently necessary to
justify an award of fees, the trial court exercises its equitable
discretion in light of all the relevant circumstances.” (Id. at
pp. 258-259, fn. omitted.) The Schwarz court likewise
acknowledged that a lack of compliance with CEQA’s notice
requirement was not an absolute bar to attorney’s fees, noting
that “situations may exist where these statutory provisions
67
should not be strictly followed.” (Schwartz, supra, 155
Cal.App.3d at p. 561.)
Second, the reasoning in Schwarz for denying attorney’s
fees does not apply to the facts of this case. In Schwartz, the
plaintiff served the Attorney General with a copy of his pleadings
34 days after the filing of the action and only four days before the
hearing on his writ petition. (Schwartz, supra, 155 Cal.App.3d at
p. 561.) As a result, the Attorney General’s office advised the
defendant city that, due to the plaintiff’s late service, it did not
have an opportunity to conduct even a preliminary review of the
petition prior to the hearing. (Schwartz, supra, 155 Cal.App.3d
at p. 560.) Here, Petitioners served the Attorney General with a
copy of their original petition five days after it was filed and 11
months before the first writ hearing. The first amended petition,
which was not materially different from the original petition, was
served on the Attorney General a month and a half before that
hearing. The Attorney General therefore had ample time to
intervene and did not do so, making private enforcement of the
action necessary. (Conservatorship of Whitley, supra, 50 Cal.4th
at p. 1217 [“the ‘necessity . . . of private enforcement’ has long
been understood to mean simply that public enforcement is not
available, or not sufficiently available”].)
Appellants also contend that the trial court erred in
admitting a declaration from Petitioner’s attorney, which
described when the copies of the original and first amended
petitions were mailed to the Attorney General and attached
copies of those notices. Appellants objected to the declaration on
the grounds that it was submitted with Petitioner’s reply brief,
was not part of the administrative record, and did not meet the
requirements for a proof of service under Code of Civil Procedure
68
section 1013a. We conclude, however, that the trial court did
not abuse its discretion in admitting the challenged evidence.
(Litinsky v. Kaplan (2019) 40 Cal. App. 5th 970, 988 [trial court’s
ruling on the admissibility of evidence is reviewed for abuse of
discretion]; accord, Dart Industries, Inc. v. Commercial Union
Ins. Co. (2002) 28 Cal. 4th 1059, 1078.)
Because Appellants first raised the issue of notice to
the Attorney General in their opposition to the writ petition,
Petitioners properly responded in their reply by submitting a
declaration from their attorney that addressed this specific
evidentiary issue. (Jay v. Mahaffey, supra, 218 Cal.App.4th at
p. 1538 [evidence submitted with reply may be admissible where
it “fill[s] gaps in the evidence created by the . . . opposition”]).
Additionally, because the declaration concerned events that
occurred after the administrative proceedings, the trial court had
discretion to admit it as part of the writ proceedings. (See Code
Civ. Proc., § 1094.5, subd. (e) [“[w]here the court finds that there
is relevant evidence that, in the exercise of reasonable diligence,
could not have been produced . . ., the court may admit the
evidence at the hearing on the writ”].) Finally, the fact that the
declaration did not include formal proofs of service did not render
it inadmissible. Neither section 21167.7 nor Code of Civil
Procedure section 388 requires the filing of a proof of service as
part of the notification procedure. Rather, these statutes simply
provide that a party bringing a CEQA action must “furnish” a
copy of its pleadings to the Attorney General. (§ 21167.7; Code
Civ. Proc., § 388.) The declaration was sufficient to show that
this requirement was met. On this record, Appellants have
failed to demonstrate that the trial court erred in finding that
69
Petitioners were entitled to attorney’s fees under Code of Civil
Procedure section 1021.5.
C. Gelfand Is Personally Liable For His Portion
Of The Attorney’s Fee Award
Appellants assert that, even if Petitioners were entitled to
recover their attorney’s fees, the trial court erred in finding that
Gelfand was jointly and severally liable for half of the fee award.
Appellants argue that Gelfand has no personal liability in this
case because he was not the applicant or the property owner for
the Cornerstone Mixed-Use Project, but rather acted solely in his
representative capacity as an officer of ACR’s general partner.
“Generally speaking, the opposing party liable for attorney
fees under [Code of Civil Procedure] section 1021.5 has been
the defendant person or agency sued, which is responsible for
initiating and maintaining actions or policies that are deemed
harmful to the public interest and that gave rise to the litigation.
[Citations.]” (Connerly v. State Personnel Bd., supra, 37 Cal.4th
at pp. 1176-1177; accord, Adoption of Joshua S. (2008) 42 Cal. 4th
945, 957 [“the parties against whom attorney fees should be
assessed should be those responsible for the policy or practice
adjudged to be harmful to the public interest”].) The designation
of a person or entity as a real party in interest in a litigation does
not necessarily make that person or entity an opposing party
within the meaning of Code of Civil Procedure section 1021.5.
(Connerly v. State Personnel Bd., supra, 37 Cal.4th at pp. 1180-
1181.) Rather, opposing parties found liable for attorney’s fees
under the statute typically are “either real parties in interest
that [have] a direct interest in the litigation, the furtherance of
which was generally at least partly responsible for the policy or
70
practice that gave rise to the litigation, or [are] codefendants
with a direct interest intertwined with that of the principal
defendant.” (Id. at p. 1181.) Accordingly, in the context of a
mandamus proceeding, “a real party in interest . . . that has a
direct interest in the litigation, more than merely an ideological
or policy interest, and actively participates in the litigation is an
opposing party within the meaning of Code of Civil Procedure
section 1021.5 and can be liable for attorney fees under the
statute.” (Mejia v. City of Los Angeles (2007) 156 Cal. App. 4th
151, 161; see also San Bernardino Valley Audubon Society, Inc.
v. County of San Bernardino (1984) 155 Cal. App. 3d 738, 756
[“[w]hen a private party is a real party in interest and actively
participates in litigation along with the governmental agency, it
is fair for that party to bear half the fees”].)
In this case, the record demonstrates that Gelfand was a
real party in interest who pursued a direct interest in the project
that gave rise to the CEQA action and actively participated in the
litigation. First, Gelfand was properly named as a real party in
interest in the litigation. Section 21167.6.5 requires a petitioner
in a CEQA action to name, as a real party in interest, any person
who is identified as the applicant in the notice of determination.
(§ 21167.6.5, subd. (a).) It is undisputed that Gelfand was listed
as the sole applicant in the City’s Notice of Determination for its
approval of the project and adoption of the MND.
Second, there is substantial evidence supporting a finding
that Gelfand had a direct interest in the project that gave rise to
the litigation. In January 2011, a representative for ACR wrote a
letter to the City in which he requested on Gelfand’s behalf that
the project be placed on hold while Gelfand decided how to best
proceed. The letter noted that Gelfand had been “the owner of
71
the property for the past six years,” and had “diligently been
designing a project intended to meet the City’s objectives as set
forth in the [AVSP].” In July 2013, Gelfand personally wrote a
letter to the City in which he requested that the hold on the
project be removed so that he could proceed with a formal
application. In his letter, Gelfand identified himself as the
“owner of the Cornerstone property,” and listed both his name
and ACR as the applicants for the project. After voting to
approve the project, the Planning Commission enacted three
resolutions granting entitlements for the project, each of which
identified Gelfand as the applicant. In approving the project, the
City Council enacted parallel resolutions that also named
Gelfand as the sole project applicant. In the first amended
petition, Petitioners alleged on information and belief that
Gelfand and ACR were the “legal and equitable owners of the
Project Site and the Applicants for the entitlements being
challenged in this case.” In their verified answer to the first
amended petition, Gelfand and ACR admitted those specific
allegations.
Third, the evidence is sufficient to support a finding that
Gelfand actively participated in all stages of the litigation. In
addition to filing a verified answer, Gelfand and ACR jointly
filed an opposition to the writ petition, objections to evidence, a
supplemental brief on issues of exhaustion and cultural resource
impacts, an opposition to the motion for attorney’s fees, and a
supplemental brief on Gelfand’s personal liability for a fee award.
Both Gelfand and ACR have appealed the underlying judgment.
At no time before judgment was entered did Gelfand ever dispute
his status as a project applicant or as a real party in interest.
72
In arguing that Gelfand cannot be personally liable for
attorney’s fees, Appellants note that ACR is a California limited
partnership and the sole owner of the property at issue in this
case. Gelfand, on the other hand, is one of 27 limited partners in
ACR, and the president of the corporation that serves as ACR’s
sole general partner. Appellants assert that, because Gelfand
merely acted as an officer of ACR’s general partner throughout
the project development and approval process, he is not liable for
any of ACR’s obligations. However, the trial court reasonably
could have inferred from the evidence that Gelfand was not
acting solely in a representative capacity on behalf of ACR, but
was also holding himself out as a property owner and/or project
applicant. As noted, Gelfand specifically was identified as the
owner of the subject property in ACR’s correspondence to the
City, including correspondence signed by Gelfand. Gelfand also
was identified as the sole project applicant in the City’s notice of
determination and various resolutions granting entitlements for
the project. There is no indication that Gelfand ever objected to
any of those documents or sought to correct them to name ACR
as the proper applicant. Instead, Gelfand participated in the
administrative process leading to the City’s approval of the
project, and then actively litigated the merits of the CEQA action
and the attorney’s fee motion. Considering the totality of these
circumstances, the trial court did not err in finding that ACR
and Gelfand were jointly and severally liable for 50 percent of
the attorney’s fee award.
73
DISPOSITION
The judgment is affirmed. The post-judgment order
granting attorney’s fees to Petitioners also is affirmed.
Petitioners are to recover their costs on appeal.
ZELON, J.
We concur:
PERLUSS, P. J.
FEUER, J.
74
Filed 3/17/20; Order Certifying Publication
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SAVE THE AGOURA CORNELL B292246, B295112
KNOLL et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. BS169207)
v.
CITY OF AGOURA HILLS et al., ORDER CERTIFYING OPINION
FOR PUBLICATION
Respondents;
DORON GELFAND et al.,
Real Parties in Interest and
Appellants.
THE COURT:
The opinion in this case filed February 24, 2020 was not
certified for publication. It appearing the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c), the request by a non-party pursuant to California
Rules of Court, rule 8.1120(a) for publication is granted.
IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
ORDERED that the words “Not to be Published in the
Official Reports” appearing on page 1 of said opinion be deleted
and the opinion herein be published in the Official Reports.
____________________________________________________________
PERLUSS, P. J., ZELON, J., FEUER, J.
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