Cooper v. County of Los Angeles

• Decision Date: 04 May 1977
• Citation: 138 Cal.Rptr. 229,69 Cal.App.3d 529
• Court: California Court of Appeals Court of Appeals
• Parties: Leon COOPER, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents; Pierce SHERMAN, Real Party in Interest and Appellant. Civ. 49246.

Page 229

138 Cal.Rptr. 229

69 Cal.App.3d 529

Leon COOPER, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents Pierce SHERMAN, Real Party in Interest and Appellant.

Civ. 49246.

Court of Appeal, Second District, Division 5, California.

May 4, 1977.

James E. Biava, and Macdonald, Halsted & Laybourne, Orville A. Armstrong and Nancy E. Spero, Los Angeles, for real party in interest and appellant

Trabish & Caplan, and David L. Caplan, Marina Del Rey, for plaintiff and respondent.

No appearance for defendants and respondents.

STEPHENS, Associate Justice.

This is the second appeal from a declaratory judgment of the Superior Court of Los Angeles County taken by appellant and real party in interest. It centers around an interpretation and application of section 21170 of the Public Resources Code. ¹ The first appeal resulted in a reversal and a remand of the controversy to trial court with instructions that the trial court make more specific findings. The opinion is entitled Cooper v. County of Los Angeles and is reported at 49 Cal.App.3d 34, 122 Cal.Rptr. 464. On the subsequent remand, the trial court prepared new findings of law and fact, and once again entered judgment for respondent. On this present appeal, the real party in interest asserts that the trial court, on remand, disregarded the law as interpreted by the Court of Appeal in its opinion. He seeks relief accordingly.

FACTS

Pierce Sherman, the appellant and real party in interest, is the owner of certain real property located near the Pacific Coast Highway within the community of Malibu. On January 5, 1971, he filed an application with the Board of Supervisors of Los Angeles to have the above property rezoned from residential use to recreational and resort use. The board of supervisors approved said application by ordinance which became effective on July 15, 1971 (Zoning Ordinance 10289). At the time, the zoning change was all that was necessary for Sherman to be in a position to lawfully proceed with his planned construction of a recreational complex which included a hotel, theatre house, restaurant, bar, and other incidental businesses.

However, on September 7, 1971, respondent Leon Cooper, who is a landowner and resident of Malibu, filed a complaint for declaratory relief seeking to have the zonechange ordinance declared unconstitutional. The complaint did not raise any issues with respect to the California Environmental Quality Act of 1970 (CEQA) (Pub. Res. Code, § 21000 et seq.) which had been adopted by the California Legislature in 1970. Under the provisions of CEQA an Environmental Impact Report (EIR) must be prepared prior to a change in zoning.

While the declaratory action was pending, the California Supreme Court filed its decision in Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247, 104 Cal.Rptr. 761, 502 P.2d 1049, holding that private land However, on December 5, 1972, the California Legislature undertook to ameliorate the hardships created by the Friends of Mammoth decision when it enacted Public Resources Code sections 21169 and 21170. The enactment was an urgency measure and, as such, immediately operational. Its general effect was to limit the retroactive application of CEQA in certain compelling situations. Section 21169 validates all projects 'undertaken, carried out or approved' prior to December 5, 1972, despite a failure to comply with the requirements of CEQA. With respect to those projects which were pending litigation on December 5, 1972, the Legislature provided that such projects would be validated as well, where 'substantial liabilities for construction and necessary materials have been incurred.' (§ 21170; emphasis added.)

developers undertaking projects pursuant to the authority of a governmental body must also comply with CEQA and prepare an EIR. The decision was not limited to a prospective application.

Failure to comply with the requirements of CEQA is not controverted by real party. Following the enactment of the above described statutory sections, real party in interest amended his pleadings alleging that he had performed substantial construction and had incurred substantial liabilities for necessary materials, and therefore fell within the 'vested rights' exception to CEQA compliance pursuant to section 21170 of the Public Resources Code.

The trial court did not agree. It concluded that although Sherman performed in good faith and in reliance upon the zoning change, the construction work performed by him 'was not substantial when viewed in relation to the overall project, and no substantial liabilities for necessary materials were so incurred.' The trial court also made the following conclusion of law: 'Public Resources Code Section 21170 is clear and requires In the conjunctive substantial liabilities for construction, and substantial liabilities for necessary materials, and substantial construction.' (Emphasis added.)

The above judgment was appealed by real party in interest. The case was heard before Division Two of this district in June 1974 (Cooper v. County of Los Angeles, supra, 49 Cal.App.3d 34, 122 Cal.Rptr. 464). In its published opinion, the Court of Appeal held that the trial court imposed too many conditions upon the qualification of the project for validation under section 21170. The court expressed the opinion that the phrase 'substantial liabilities for construction and necessary materials have been incurred,' as worded within the statutory section, was Not intended to be in the conjunctive, and also that section 21170 should be interpreted liberally in accordance with the legislative intent.

On the subsequent remand, the trial court once again rendered judgment against real party in interest. It concluded that the construction performed and the liabilities incurred by Sherman were not, as an aggregate, 'substantial' within the meaning of the appellate court opinion and section 21170. In so holding, the trial court adopted the following findings of fact and conclusions of law:

'FINDINGS OF FACT

'. . ..S O

'16. The Real Party in Interest incurred the following substantial liabilities for construction and necessary materials in good faith and in reliance on zoning ordinance 10289 between July 15, 1971, the effective date of the ordinance, and October 12, 1972:

a. Consulting and design work by Mr. Monsato in the amount of $1,200.00.

b. Preliminary engineering geological report by F. Beech Laten and Associates in the amount of $1,600.00.

c. Percolation tests and study of sewage disposal facilities by Kenneth I. Mullen, consulting Engineers, Inc. in the amount of $2,212.27.

'17. Prior to October 12, 1972, the Real Party in Interest did not perform any work that would constitute substantial construction Either in dollar amount

or in a percentage relation to the overall project.' (Emphasis added.)

'CONCLUSIONS OF LAW

'. . ..ION

'5. Prior to October 12, 1972, the Real Party in Interest incurred a substantial liability for materials and construction.

'6. Prior to October 12, 1972, the Real Party in Interest did not perform substantial construction either In dollar amount or in percentage relation to the overall project.

'. . ..or

'8. Sections 21169 and 21170 of the Public Resources Code do not operate to confirm, validate, and declare legally effective Zoning Ordinance 10289 because the Real Party in Interest did not perform substantial construction prior to October 12, 1972.' (Emphasis added.)

Real party in interest contends that the trial court, on remand, 'in contravention of the established doctrine of the law of the case' ignored the principles of law established by the appellate court in its opinion. He urges that the mandate of the appellate court in Cooper should be interpreted as validating, under section 21170, a land development project if either substantial liabilities or substantial construction can be shown by the weight of the evidence. It is his conclusion that since the trial court concluded that he had incurred 'substantial liabilities for necessary materials for construction,' and since the law of the case requires the aforesaid Cooper interpretation of section 21170, his porject should have been validated by the trial court as a matter of law.

Respondent, on the other hand, insists that real party in interest has misconstrued the appellate court opinion. He contends that substantial construction as well as substantial liabilities must be shown by the weight of the evidence before a validation under section 21170 can be proper.

It is evident from the above that the sole issue for us to consider on this second appeal is whether the trial court, on remand, properly applied the Law of the case as interpreted by the appellate court in its Cooper opinion.

DISCUSSION

I

In the case where a reviewing court has remanded a matter to a trial court, with instructions, the trial court is required to carry out those instructions in consonance with the principle of the law of the case--any material variance or deviation is unauthorized, and constitutes error. (See Hampton v. Superior Court, 38 Cal.2d 652, 656, 242 P.2d 1; Coffee--Rich, Inc. v. Fielder, 48 Cal.App.3d 990, 998, 122 Cal.Rptr. 302.) The principle is founded upon a need for judicial economy in the administration of justice. (People v. Rath Packing Co., 44 Cal.App.3d 56, 118 Cal.Rptr. 438; English v. Olympia Auditorium, Inc., 10 Cal.App.2d 196, 52 P.2d 267.) However, the doctrine applies exclusively to issues of law, and not those of fact. (Estate of Baird, 193 Cal. 225, 236, 223 P. 974; Muktarian v. Barmby, 264 Cal.App.2d 966, 968, 70 Cal.Rptr. 903.) Moreover, it does not apply to issues that could have been raised at the first appeal, but were not, or to those conclusions of law that were not necessary to the appellate court's decision. (Di Genova v. State Board of Education, 57 Cal.2d 167, 179, 18 Cal.Rptr. 369, 367 P.2d 865; Estate of Horman, 5 Cal.3d 62, 73, 95 Cal.Rptr....