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Posts Tagged ‘res judicata’

Petition by Collective Citizens Groups Barred by Res Judicata and Collateral Estoppel Where Individual Group Received Previous Final Judgement on Same Project Issues

Friday, September 14th, 2018

In The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, the Fourth District Court of Appeal affirmed a judgement entered by the trial court sustaining a demurrer without leave to amend, holding that a mandate action brought by The Inland Oversight Committee (IOC), CREED-21, and the Highland Hills Homeowners Association (HOA) alleging CEQA and Water Code violations was barred by res judicata based on the final judgment in the HOA’s prior related CEQA action and failure to state a claim.

The Court’s opinion involved challenges to modifications to the Highland Hills Project (Project), a 541-acre mixed use development in the City of San Bernardino (City). The specific plan and associated EIR were originally approved in 1982. Subsequent amendments to the Project and challenges to those amendments resulted in an agreement. As relevant here, the agreement’s second addendum (Second Addendum) permitted “minor modifications” to the Project, defined as those resulting in development with the same or less intense environmental impacts from a CEQA standpoint, could be approved as “ministerial acts” by the City’s development director without further planning commission involvement.

In 2014, Real Party in Interest First American Title Insurance Company (First American), the developer’s successor in interest, applied for modified construction plans that (1) further reduced the total number of units; (2) eliminated commercial uses, including a convenience store and golf course; (3) increased park acreage and protected an important ridge line by eliminating higher-elevation development; and (4) substantially reduced the Project’s  footprint and impact on jurisdictional streams and wetlands. The City’s development director adopted and made findings from an independent environmental consultant’s report that these were “minor modifications” in line with the Second Addendum. The City rejected appeals by the HOA and approved the modifications. The City filed a motion in the trial court requesting confirmation the proposed changes complied with the terms of the Second Addendum. The trial court granted the motion. The HOA timely appealed.

In an unpublished 2017 decision, the Court of Appeal held that the HOA “failed to demonstrate either that the City eliminated any mitigation measures without due consideration or that there was a lack of substantial evidence supporting the City’s conclusion that the [Project modifications] would have equally intense or less intense environmental impacts than the unmodified [Project].”

The IOC, joined by CREED-21 and the HOA, filed suit in 2015 challenging the approval of the minor modifications by the City for being illegal under CEQA and the Water Code. The trial court sustained the City and First American’s demurrer without leave to amend on the grounds that the issues were moot by the principle of res judicata. The IOC, CREED-21, and the HOA collectively appealed.

Addressing the doctrine of res judicata, the Appellate Court found that a valid final judgement on the merits bars subsequent action by the parties “or their privities on the same cause of action.” Identical causes of action are those that involve the same “primary right.” For CEQA cases, res judicata is limited; “if two actions involve the same general subject matter but involve two distinct episodes of purported noncompliance, the doctrine of res judicata does not apply.” Applying these principles, the Court held that the IOC, CREED-21, and the HOA’s CEQA claim was the same one asserted in the related action brought only by the HOA and resolved in 2017. Specifically, the claims in both are that the City violated CEQA by failing to conduct further environmental review by treating First American’s proposal as “minor modifications” under the Second Addendum. The HOA litigated the claim and lost, receiving a final judgement on arguments that were specifically alleged in the action brought by the three groups together.

The Court then turned to principles of collateral estoppel. Privity is found where “a relationship between the party to be estopped and the unsuccessful party in the prior litigation is “sufficiently close” so as to justify application of collateral estoppel. Thus, the Court likewise barred the same CEQA claim as asserted by the IOC, CREED-21, and the HOA together because the entities are in privity with the HOA. Such a relationship renders the losing litigant a “virtual representative” of the new plaintiffs where it has the “same interest” as them and a “strong motive” to assert it. The IOC, CREED-21, and the HOA shared the same interest in “promoting responsible land use and planning” and sought to invalidate the minor modifications. Since there was no evidence the HOA failed to zealously litigate the related matter, the IOC, CREED-21, and the HOA’s collective interests were adequately represented in the previous case.

The Court also dismissed appellants Water Code claim that asserted a Water Supply Assessment (WSA) was required for the Project modifications. While a WSA is required for certain discretionary development approvals, the Project modifications, as held above, were ministerial.

The Court affirmed the trial court’s judgement; the demurrer was sustained.

Key Point:

The doctrines of res judicata and collateral estoppel prevent citizens’ groups from collectively filing a lawsuit with the same issues that one of the groups had previously received a final judgment on.

Third Appellate District Grants Partial Publication of CEQA Decision Relating to Agricultural Mitigation, Urban Decay, Res Judicata, and the Deliberative Process Privilege

Wednesday, April 25th, 2012

In Citizens for Open Government v. City of Lodi (2012) ___ Cal.App.4th ___ (Opinion), the Court rejected Citizens for Open Government’s and Lodi First’s (Petitioners) challenges to the reapproval by defendant City of Lodi (City) of a conditional use permit for a proposed shopping center to be anchored by a Wal-Mart Supercenter (Project) after the original EIR for the Project was revised and recertified. The trial court denied Petitioners’ writ and the Third Appellate District affirmed.

The appellate court found the trial court abused its discretion in permitting the City of Lodi to withhold various emails pursuant to the deliberative process privilege because the City did not meet its burden of proof that the doctrine was applicable. However, the Court concluded that Petitioners failed to meet their burden to show that the City’s improper exclusion of the emails from the administrative record constituted prejudicial error. The Court explained that to show prejudice Petitioners should have sought writ review of the trial court’s decision to exclude the emails. Because it failed to do so, Petitioners were not entitled to reversal on appeal for this error.

In an unpublished portion of the decision, Petitioners argued that other documents withheld as attorney-client privilege lost such privileged status after the City shared the documents with the Real Parties. The Court disagreed. The Court explained that it did not matter whether the documents were shared with the Real Parties’ attorneys or the Real Parties directly: “It was still communication between parties on the same side of the litigation aimed at sharing information with one another to produce an EIR that would withstand a legal challenge for noncompliance with CEQA.”

Turning to the substantive adequacy of the revised EIR, Petitioners alleged that the EIR failed to adequately address urban decay, agricultural, climate change, and water supply impacts, and that the EIR failed to include a reasonable range of alternatives. The Court did not publish the portions of its decision addressing the substantive merits of Petitioners climate change and water supply claims. The Court did, however, publish the portion of its decision addressing the relationship of the Doctrine of Res Judicata to Petitioner Lodi First’s challenge to the water supply analysis. Each of the published portions of the decision is addressed below.

The Court held that the record contained sufficient evidence to support the conclusion that the revised EIR included a reasonable range of alternative. Based on the rule of reason and an understanding that CEQA provides no ironclad rule governing the nature or scope of alternatives, the Court concluded the City’s failure to identify a feasible alternative that could achieve most of the project objectives and avoid or significantly reduce the Project’s significant and unavoidable impacts was not error. The EIR considered five alternatives (no project, alternative land use, reduced density, reduced size, and alternative location). Reduced density and alternative land use alternatives were rejected from detailed consideration in the revised EIR. The Court upheld the City’s decision to reject these alternatives from detailed consideration. The Court explained, based on the facts in this case, that the City was not required to analyze an alternative that was inconsistent with the zoning for a project site and that substantial evidence supported the conclusion that the reduced density alternative was not economically feasible. The Court also held that the three alternatives that were analyzed in detail within the EIR (no project, reduced size, and alternative location) constituted a reasonable range of alternatives. Lastly, the court determined that substantial evidence supported the City’s rejection of the environmentally superior alternatives (no project and reduced size) because the record demonstrated that neither alternative would entirely fulfill the applicant’s or City’s objectives.

In the published portion of the opinion addressing urban decay, the Court held that the revised EIR did not need to address urban “blight” conditions. The Court concluded that the record demonstrated that urban decay and urban blight are two separate phenomena. The record demonstrated that deteriorated homes and other existing blighted properties in the Project area have no relationship to the condition of the retail environment, which needed to be evaluated to consider the Project’s potential urban decay impact. Therefore, the Court concluded that the baseline used to analyze potential urban decay impacts of the Project was not required to disclose urban blight within the Project vicinity.

The Court also affirmed the trial court’s ruling that it was proper for the City to rely on the economic baseline from 2006 and 2007 (the baseline at the time the NOP was published) in evaluating urban decay impacts in the revised EIR. The court reviewed the City’s determination not to update the baseline for an abuse of discretion. Based on this standard, the Court concluded the City was not required to update the baseline because evidence in the record demonstrated that updating the baseline was problematic as economic conditions are rapidly changing and these rapidly changing conditions did not affect the urban decay findings. Therefore, the Court held the City did not abuse its discretion in declining to update the economic baseline.

With respect to Petitioners’ challenge to the adequacy of the agricultural mitigation ratio adopted by the City, the Court concluded Petitioners’ argument demonstrated a misunderstanding of CEQA. The City concluded that no feasible mitigation could reduce impacts to agriculture to a less than significant level. Specifically, the EIR explained that because agricultural conservation is not true mitigation no level of conservation can be scientifically justified as correct and the level of mitigation is a matter of local concern. For this reason, the Court explained that the question is not whether substantial evidence supported the determination that a greater mitigation ratio was infeasible. The question is whether substantial evidence supported the conclusion that no feasible mitigation was available. The Court found the record included such evidence.

In rejecting the water supply arguments advanced by one of the Petitioners, the Court held that the claim was barred by the doctrine of res judicata. As explained by the Court, res judicata applies and bars a petitioner from re-litigating issues that were or could have been previously litigated where the prior proceeding is final on the merits and the present proceeding is on the same cause of action as the prior proceeding. Here, there was no dispute that the prior proceeding was final on the merits and the conditions and facts upon which the new proceeding was based were not materially different from the original proceeding. Therefore, because Petitioner could have raised its water supply claims in the prior proceeding, res judicata barred the claim in this proceeding.

Lastly, in the unpublished portion of the opinion addressing climate change, the Court found that the revised EIR failed to properly analyze potential climate change impacts. The Court stated that an EIR cannot refuse to analyze an impact based on the conclusion that it would be speculative. Rather, an EIR must disclose after thorough analysis of an issue the reasons further analysis is considered too speculative for evaluation. However, the Court found that the City prepared the required climate change analysis after the FEIR was released to the public. While this approach violated CEQA, a CEQA violation only invalidates an EIR if it is prejudicial. The Court concluded that CEQA Guidelines section 15088.5, subdivision (a)(4), only requires recirculation when an EIR is fundamentally and basically inadequate and conclusory. Here, only a portion of the EIR was fundamentally and basically inadequate. The Court concluded this flawed portion was not significant because the climate change analysis prepared after the FEIR was released demonstrated that the Project would not have a significant impact on climate change. The record included no evidence submitted before or after the study was produced to support the conclusion that climate change impacts were significant. Therefore, the City’s failure to analyze climate change impacts in the EIR was not prejudicial.

Key Points:

Where no level of mitigation will reduce an impact to less than significant, the mitigation measure(s) adopted by the lead agency to reduce the impact to the extent possible constitutes a policy determination that will be upheld if supported by substantial evidence.

To utilize the deliberative process doctrine to withhold documents from inclusion in the administrative record, the lead agency must ensure that the record supports the conclusion that the public interest in nondisclosure clearly outweighs the public interest in disclosure.

Lastly, in CEQA litigation in which a petitioner challenges both an original EIR and revised EIR, res judicata bars the litigation not only of issues that were actually litigated in the original lawsuit but also issues that could have been litigated.

Written By: Tina Thomas and Chris Butcher
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Ninth Circuit Reiterates that Laches is Strongly Disfavored in Environmental Cases

Tuesday, March 6th, 2012

In Save the Peaks Coalition v. United States Forest Service (9th Cir. 2012) 2012 U.S. App. LEXIS 2563, the Ninth Circuit Court of Appeals determined that, although Save the Peaks Coalition (“SPC”) abused the judicial process by holding back claims that should have been asserted in an earlier litigation, laches did not bar SPC from bringing a challenge under the National Environmental Policy Act (“NEPA”) because the United States Forest Service (“USFS”) failed to demonstrate that it suffered prejudice. However, the Court found that the USFS complied with NEPA, thus upholding the lower court’s decision to grant USFS’s motion for summary judgment.

In a prior lawsuit, a different petitioner – utilizing the same attorney as SPC – brought a similar complaint challenging USFS’s approval of the use of man-made snow from Class A+ reclaimed water at a ski area in the San Francisco Peaks. In light of the prior case, the District Court found that laches barred SPC’s action. SPC timely appealed, first claiming that the lower court erred in finding that laches barred its claims, and second that the USFS violated NEPA because: 1) USFS’s final environmental impact statement (FEIS) did not thoroughly discuss the significant environmental consequences of making snow from reclaimed water; 2) USFS failed to ensure scientific integrity of its analysis; and, 3) USFS did not disseminate quality information.

Laches apply when there is clear evidence that (1) the plaintiff lacked diligence in pursuing its claims, and (2) the defendant experienced prejudice as a result. To determine whether a plaintiff lacks diligence, a court must consider several factors, such as whether the plaintiff communicated its position to the defendant, the nature of the defendant’s response, and the length of delay. Here, the Court found that SPC lacked diligence. However, the Court held that USFS failed to show it experienced prejudice as a result of SPC’s delay. Specifically, USFS had not started construction before the suit was filed, and no irreversible harm was done. Because USFS did not show prejudice, the Court ruled that the lower court erred in barring SPC’s claims by laches. In reaching its holding, the Court explained that courts strongly discourage the use of laches as a defense in environmental cases. Environmental damages affect more than just the plaintiff, and use of laches to defeat a challenge typically would conflict with the purpose behind Congressional environmental policies.

Turning to SPC’s NEPA claims, the Court used a rule of reason standard to determine whether USFS took a “hard look” at the environmental consequences of making snow with reclaimed water, as required by NEPA. In rejecting SPC’s arguments, the Court found that the USFS’s FEIS discussed the significant probable environmental impacts and was replete with careful considerations of the risks its decision posed. The lengthy discussion in the FEIS, along with USFS’s responses to comments, compelled the Court to rule that the USFS did in fact take the requisite “hard look” at the environmental impacts and human risks of making snow with reclaimed water. The Court also rejected SPC’s argument that USFS failed to ensure scientific integrity pursuant to NEPA by considering the conclusions of the Arizona Department of Environmental Quality (ADEQ). The Court dispelled this argument by showing that the USFS’s careful consideration of the risks made little reference to the ADEQ analysis. SPC’s last argument concerning the dissemination of quality information was abandoned due to failure to respond to USFS’s summary judgment motion on the issue.

Key Points: 

As demonstrated in Turtle Island Restoration Network v. U.S. Dept. of States (9th Cir. 2012) 2012 U.S.LEXIS 3263, where privity between parties can be established res judicata may bar the subsequent litigation making it unnecessary to establish laches.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)

For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Holds Res Judicata Bars NEPA and ESA Challenges to Guidelines Adopted by State Department

Tuesday, February 21st, 2012

In Turtle Island Restoration Network v. U.S. Dept. of States (9th Cir. 2012) 2012 U.S.LEXIS 3263, the Ninth Circuit Court determined that res judicata barred Turtle Island Restoration Network (“TIRN”) from bringing a challenge under the National Environmental Policy Act (“NEPA”) and Endangered Species Act (“ESA”) because an organization for which TIRN was formally a member, the Earth Island Institute (“EII”), should have raised the NEPA challenge during a prior lawsuit. In the prior lawsuit, EII did not bring any NEPA challenge; EII instead alleged that the guidelines adopted by the United States Department of State (“State Department”) were inconsistent with law. In the new litigation, TIRN argued that the State Department failed to comply with NEPA and ESA in approving the guidelines.

Res judicata only applies where there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties. In this case, the only disputed issue was whether there was “an identity of claims.” A court must consider four factors in answering this question: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. The Court focused on the fourth question. The Court found that EII and TIRN could have conveniently brought claims for NEPA and ESA violations when it filed its prior complaint. The Court stated that a party’s decision not to advance NEPA and ESA claims in an asserted effort to resolve the issues without litigation is not an excuse for failing to raise the claims during prior litigation. The Court acknowledged that the two actions may be procedurally different, but reiterated that both arise from the government’s regulation of shrimp imports to encourage foreign turtle-safe shrimp harvesting. Therefore, the Court held that the two suits arose out of the same transactional nucleus of facts. Res judicata barred the NEPA and ESA challenges that TIRN could have brought in its prior complaint.

Key Points:

Res judicata may bar a petitioner from bringing NEPA and ESA challenges based on an agency’s alleged pattern and practice of violating the Acts if the petitioner could have asserted these challenges in prior litigation.

Written By: Tina Thomas and Chris Butcher

For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.