Segal v. City of San Diego, D072215

• Decision Date: 22 February 2019
• Docket Number: D072215
• Parties: BERNARD I. SEGAL, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent, PLAYA GRANDE, LLC, Real Party in Interest and Respondent.
• Court: California Court of Appeals Court of Appeals

BERNARD I. SEGAL, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent,PLAYA GRANDE, LLC, Real Party in Interest and Respondent.

D072215

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

February 22, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 37-2015-00037498-CU-TT-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed.

Dentons US and Charles A. Bird for Plaintiff and Appellant.

Mara Elliot, City Attorney, Glenn T. Spitzer and Heidi Vonblum, Deputy City Attorneys, for Defendant and Respondent.

Varco & Rosenbaum Environmental Law Group, Suzanne R. Varco and Jana Mickova Will for Real Party in Interest and Respondent.

Bernard I. Segal appeals a judgment denying his Code of Civil Procedure section 1094.5¹ petition for writ of mandate that challenged a decision by the City of San Diego (City) approving construction of a building proposed by real party in interest Playa Grande, LLC, in the community of La Jolla Shores and certifying the final environmental impact report (FEIR) for that project. On appeal, Segal contends that the City: (1) violated section 113.0273 of the San Diego Municipal Code (Municipal Code) by approving the project without requiring visibility triangles;² (2) City violated the requirement of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) for meaningful public participation because Municipal Code section 1510.0301, subdivision (b) does not provide any floor area ratio maximum for development within the La Jolla Shores Planned District; and (3) City violated CEQA because its FEIR did not adequately address the cumulative impacts of the project. Based on our reasoning post, we conclude the trial court correctly denied the petition for writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

In 2009 Playa Grande applied for a site development permit, coastal development permit, and tentative map waiver to demolish an existing 1,519-square-foot single-story residential building and an existing 1,538-square-foot single-story commercial building and construct a new three-story mixed-use building (Project) in the community of La Jolla Shores. The Project's site encompasses two lots totaling 3,952 square feet and is surrounded by mixed-use, commercial, office, and multi-family residential development. The Project will include 1,867 square feet of ground floor retail space, a 3,179-square-foot second floor condominium, a 2,780-square-foot third floor condominium, and 3,257 square feet of underground parking. The Project will be set back 10 feet from its eastern neighbor, a three-story mixed-use building. The Project will include a 15-foot by 15-foot entry plaza/visibility triangle at its southwest corner located at the intersection of Avenida de la Playa and El Paseo Grande and a visibility triangle at its northwest corner located at the intersection of El Paseo Grande and Calle Clara. An open carport accessed from Calle Clara will be located at the Project's northwest corner and underground parking for the condominiums will be accessed from Calle Clara through mechanical garage doors and two car elevators.

In 2009 City prepared an initial study under CEQA for the Project. In 2010 a mitigated negative declaration (MND) was completed and circulated for public comment. A City hearing officer adopted the MND and approved the Project's entitlements. City's planning commission (Planning Commission) denied an appeal, adopted the MND, and approved the Project's entitlements. After the San Diego City Council (City Council)granted an appeal from that decision, the Planning Commission again adopted the MND and approved the Project's entitlements. The City Council granted a second appeal, finding there was substantial evidence that the Project might have significant environmental impacts. Thereafter, Playa Grande revised the Project by reducing its total square footage, adding car elevators, increasing setbacks, and modifying its design.

In June 2011 City issued a notice of preparation and received public comments. In 2013 City prepared a draft environmental impact report and circulated it for public comment. City responded to the public comments in the FEIR, which it circulated in 2015. As a result of public comments, the Planning Commission required further modifications to the Project, including a 15-foot setback on its eastern side. In April 2015 the Planning Commission certified the FEIR and approved the Project's entitlements. In October 2015 the City Council denied an appeal and approved certification of the FEIR.

In November 2015 Segal filed the instant petition for writ of mandate and complaint for declaratory and injunctive relief, alleging City failed to proceed in the manner required by law by violating CEQA and/or the Municipal Code. Segal sought writs of mandate ordering City to set aside its certification of the Project's FEIR and its approval of the Project. City and Playa Grande filed a joint opposition to the petition. Following oral argument, the trial court ruled in City's favor, finding: (1) City properly concluded the Municipal Code does not require visibility triangles for the Project; (2) the FEIR adequately addressed the Project's cumulative impacts; and (3) Segal was not a property owner who could allege that City engaged in unlawful spot zoning. OnFebruary 21, 2017, the court entered judgment for City on the petition. Subsequently, the court denied Segal's motion to vacate the judgment and, in the alternative, for a new trial.³

In December 2017 Segal filed a motion for judicial notice, requesting that we take judicial notice of five exhibits attached thereto.⁴ City and Playa Grande opposed that motion. On December 20 we issued an order stating that we would consider the motion for judicial notice concurrently with this appeal. Because those exhibits should have been, but were not, presented to the trial court and did not exist at the time of City's October 2015 decision, we now decline to exercise our discretion to take judicial notice of those exhibits and deny Segal's motion for judicial notice of exhibits 1, 2, 3, 4, and 5 attached thereto.⁵ (Evid. Code, §§ 452, subd. (h), 453, 459, subd. (a); Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325-326; Vons Companies, Inc. v. Seabest Foods, Inc.(1996) 14 Cal.4th 434, 444, fn. 3; CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, 520.)

DISCUSSION

I. THE MOTION TO DISMISS THE APPEAL IS DENIED

City and Playa Grande filed a joint motion to dismiss the appeal as being untimely. In particular, they argue Segal's motion and amended motion to vacate the judgment and, in the alternative, for a new trial were procedurally deficient and therefore did not extend the time to appeal pursuant to California Rules of Court, rule 8.108(b) or (c).⁶ Opposing that motion, Segal requested that we take judicial notice of his motion and amended motion to vacate the judgment and, in the alternative, for a new trial.

A. Additional Procedural Background

On February 21, 2017, the trial court entered judgment for City. On February 22 City and Playa Grande jointly filed and served on Segal a notice of entry of judgment. On February 27 Segal filed a notice of motion to vacate the judgment and, in the alternative, for a new trial, including a memorandum of points and authorities and two supporting affidavits.⁷ On March 3 he filed a notice of amended motion to vacate thejudgment and, in the alternative, for a new trial, but omitted the supporting affidavits. On March 6 he submitted the supporting affidavits for his amended motion.

On April 7, 2017, the trial court denied Segal's amended motion on procedural and substantive grounds. In particular, the court concluded the notice of motion did not comply with sections 663a and 659 because it did not designate the grounds for the alternative motions. On May 3 Segal filed a notice of appeal.

B. The 60-Day Rule and 30-Day Extension

Rule 8.104(a)(1)(B) provides that a notice of appeal generally must be filed within 60 days after the appealing party is served with a document entitled "Notice of Entry" of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service. However, that 60-day period to file a notice of appeal from a judgment may be extended in certain cases where postjudgment motions are denied. Rule 8.108(c) provides:

"If, within the time prescribed by rule 8.104 to appeal from the judgment, any party serves and files a valid notice of intention to move—or a valid motion—to vacate the judgment, the time to appeal from the judgment is extended for all parties until the earliest of:

"(1) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order;

"(2) 90 days after the first notice of intention to move—or motion—is filed; or

"(3) 180 days after entry of judgment." (Italics added.)

Similarly, rule 8.108(b) provides:

"If any party serves and files a valid notice of intention to move for a new trial, the following extensions of time [to file an appeal] apply:

"(1) If the motion for a new trial is denied, the time to appeal from the judgment is extended for all parties until the earliest of:

"(A) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order;

"(B) 30 days after denial of the motion by operation of law; or

"(3) 180 days after entry of judgment." (Italics added.)

Section 663a, subdivision (a), provides: "A party intending to make a motion to set aside and vacate a judgment, as described in Section 663, shall file with the clerk and serve...