Today's Iv, Inc. v. L. A. Cnty. Metro. Transp. Auth.

• Decision Date: 28 October 2015
• Docket Number: B260855
• Court: California Court of Appeals Court of Appeals
• Parties: TODAY'S IV, INC., dba WESTIN BONAVENTURE HOTEL AND SUITES Plaintiff and Appellant v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Defendant and Respondent.

TODAY'S IV, INC., dba WESTIN BONAVENTURE HOTEL AND SUITES Plaintiff and Appellant v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Defendant and Respondent.

B260855

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

October 28, 2015

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BS137540)

APPEALS from the judgment of the Superior Court of Los Angeles County, Richard Fruin, Judge. Affirmed in part and dismissed in part.

The Silverstein Law Firm, Robert P. Silverstein and Bradly S. Torgan; Law Office of Christopher Sutton and Christopher Sutton for Plaintiff and Appellant.

Mark J. Saladino, County Counsel, Mary C. Wickham, Acting County Counsel, Charles M. Safer, Assistant County Counsel, and Ronald W. Stamm, Principal Deputy County Counsel; Remy Moose Manley, Whitman F. Manley, Tiffany K. Wright, Jennifer S. Holman and Jeannie Lee for Defendant and Respondent.

I. INTRODUCTION

Plaintiff, Today's IV, Inc., operates the Westin Bonaventure Hotel and Suites in Downtown Los Angeles (the hotel). Defendant, The Los Angeles County Metropolitan Transit Authority, is undertaking the construction of a subway and three subway stations. The project is entitled the Regional Connector Transit Connector Project (the project). The subway will directly link the 7th Street/Metro Center to the Gold Line light-rail system in the Little Tokyo section of Downtown Los Angeles.

Because of partial federal funding for the project, the Federal Transit Administration was required to conduct environmental review pursuant to the National Environmental Policy Act. (42 U.S.C. § 4321 et seq.) Apart from a dispute concerning public record disclosure, plaintiff's challenges arise under the California Environmental Quality Act. (Pub. Resources Code¹, § 21000 et seq.) Under these circumstances, an environmental impact report/environmental impact study must be jointly prepared by federal and local authorities. (Environmental Protection Information Center v. California Dept. of Forestry and Fire Protection (2008) 44 Cal.4th 459, 472; Cal. Code of Regs., tit. 14, § 15220 et seq. (Guidelines²).) For clarity's sake, the final environmental impact report/environmental impact study will be referred to as the environmental impact report.

Plaintiff appeals from the judgment upholding defendant's certification of the environmental impact report and denying a California Public Records Act (Public Records Act) request. (Gov. Code, § 6250 et seq.) We shall review the environmental impact report only for violations of the California Environmental Quality Act although it was jointly prepared with federal authorities. Defendant contends in its cross-appeal thatthe project is exempt from environmental review. We conclude the trial court correctly ruled defendant could properly certify the environmental impact report as it relates to plaintiff. We further conclude plaintiff may not challenge the trial court's adverse decision in the Public Records Act dispute on direct appeal. Because we affirm the judgment, this disposition obviates the need to address defendant's cross-appeal. We therefore dismiss defendant's cross-appeal as moot.

II. PLAINTIFF'S CHALLENGES TO CERTIFICATION OF THEENVIRONMENTAL IMPACT REPORT AND PUBLIC RECORDS ACTALLEGATIONS

A. Plaintiff's Verified Mandate Petition and Injunctive Relief Complaint

On May 25, 2012, plaintiff filed its verified mandate petition and injunctive relief complaint. According to the petition and complaint, the hotel consists of 1,354 guest rooms and suites, convention and other facilities and numerous restaurants. The hotel occupies the entire city block bounded by Figueroa Avenue and Fourth, Fifth and Flower Streets. Vehicle access into the hotel's underground parking lot is available only by means of a single driveway from Flower Street.

The first cause of action seeks issuance of a writ of mandate because defendant violated the Public Records Act. According to the first cause of action, defendant improperly asserted exemptions for disclosure of public records and failed to produce the "Flower Street Tunneling Study" in response to plaintiff's request. The remainder of plaintiff's claims relate to the California Environmental Quality Act.

The second through fifth causes of action seek issuance of a writ of mandate because the environmental impact report does not comply with specified California Environmental Quality Act provisions. In the second cause of action, plaintiff alleges the environmental impact report fails to support ecological conclusions concerning the following: baseline of geotechnical conditions within and around the hotel structures thatwill be impacted by vibration and excavation activities; vehicular access and egress; disability access; emergency access, evacuation and human safety; temporary construction easements; noise; the exclusion of a tunnel boring machine from portions of the financial district; financial detriments; and grade separation on Flower Street that will result from the use of "cut and cover" construction method.

The third cause of action alleges the environmental impact report fails to adopt feasible mitigation measures or alternatives. According to the mandate petition and injunctive relief complaint, the cut and cover construction method will result in numerous significant impacts which are described in the second cause of action. In connection with the cut and cover construction method, plaintiff alleges defendant failed to adopt a feasible alternative that would have far less serious environmental impacts. Plaintiff alleges: "[Defendant] did not adopt an alternative to the 'cut and cover' construction method even though feasible alternatives exist which would result in far less severe environmental impacts, including but not limited to the [tunnel boring machine] method. There is no substantial evidence in the record supporting a conclusion that use of the [tunnel boring machine] method is infeasible in the Financial District or supporting compelling overriding considerations to support [defendant's] decision not to revise this aspect of the [p]roject in the Financial District when it made such a modification for the Little Tokyo area and in the Financial District between [Third] and [Fourth] Streets, but not further along Flower Street."

In addition, in the third cause of action, plaintiff alleges the mitigation measures for certain of the problems identified in the second cause of action are predicated on studies that will occur in the future. The second cause of action alleges: "The [environmental impact report] offers only improperly deferred mitigation in violation of [the California Environmental Quality Act]. By contrast to such vague assurances of possible future action, [the California Environmental Quality Act] requires that the [environmental impact report] provide specific mitigation measures to address these impacts not only to ensure that the level of impact will indeed be reduced to a less than significant level, but also to determine whether the mitigation, itself, creates any otherimpacts that must in turn be addressed. [Defendant] failed to comply with this requirement."

The fourth cause of action alleges that there were significant changes in the environmental impact report which required its recirculation. Presumably, plaintiff is alleging the changes to project required recirculation of the environmental impact report. Plaintiff identifies two significant changes to the draft and final environmental impact reports which warranted recirculation of the environmental impact report. To begin with, the project uses a tunnel boring machine to construct a tunnel from the Little Tokyo area towards Fourth and Flower Streets. Then the project utilizes the cut and cover technique on Flower Street between Third and Fourth Streets. (We will explain shortly the with greater precision where the tunnel boring machine and cut and cover construction methods are to be utilized.) Plaintiff asserts there will be a grade separation on Flower Street during construction by as much as 24 inches. In the second cause of action, plaintiff alleges this grade separation will foreseeably result in significant impacts on traffic in the Financial District including access to freeways and other properties. In the fourth cause of action, according to plaintiff, the grade separation issue arose after the circulation of the draft and supplemental environmental impact reports. Thus, before certification of the environmental impact report, the document should have been recirculated to allow public comment on the grade separation impact issue.

The fifth cause of action alleges that the environmental impact report fails to consider future planned construction. According to plaintiff, there is a planned station to be built in the Financial District, but only in the future. This planned station is "admittedly still part of the[p]roject" although its future construction is dependent upon the availability of financing. Therefore, plaintiff alleges, "[Defendant's] failure to fully analyze the [new s]tation in the [environmental impact report] as part of the [p]roject constitutes improper piecemealing in violation of [the California Environmental Quality Act]." In the sixth cause of action, plaintiff seeks injunctive relief to maintain the status quo and to enjoin defendant from proceeding with the project until there is an opportunity for full judicial review. In its answer, defendant denies generally all the materialallegations of the petition and complaint. In addition, defendant asserts 13 affirmative defenses, including exemption from...