PARKS LEGAL DEFENSE FUND et al., Plaintiffs and Appellants, v. THE CITY OF HUNTINGTON BEACH et al., Defendants and Respondents.
G048620
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE
July 15, 2014
Super. Ct. No. 30-2008-00051261. NOT TO BE PUBLISHED IN OFFICIAL REPORTS.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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appeal from an order of the Superior Court of Orange County, Gail Andrea Andler, Judge. Affirmed in part, reversed in part and remanded. Request for judicial notice granted.
Claremont Land Group, Mark C. Allen and Geralyn L. Skapik for Plaintiffs and Appellants.
Kane, Ballmer & Berkman, Murray O. Kane, Guillermo A. Frias; Jennifer McGrath, City Attorney and John M. Fujii, Deputy City Attorney.
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I
FACTS
The city sought to construct a senior center in its Central Park. In furtherance thereof, the city adopted a resolution certifying a final environmental impact report (EIR) for the project and approving a conditional use permit (CUP). On March 4, 2008, Parks filed a petition for a writ of mandate challenging the city‘s actions, and asserting multiple causes of action (Parks Legal Defense Fund v. The City of Huntington Beach (Super. Ct. Orange County, 2009, No. 30-2008-00051261)) (Original Proceeding).
The superior court granted in part and denied in part the requested relief. The judgment, by its terms, decreed that the certification of the EIR and the issuance of the CUP were each vacated. It also remanded the matter to the city council for further consideration and ordered the preparation, circulation and consideration of “a subsequent Environmental Impact Report (‘SEIR‘) addressing the suitability of alternative off-site
In addition, the court issued a peremptory writ of mandate in which it ordered the city council to vacate the certification of the EIR, all actions by the city council taken with respect to the senior center in reliance on the EIR, and the issuance of the CUP. The writ further stated: “E. This Court shall retain jurisdiction over Respondents with respect to the Project by way of a return of this Writ until the Court determines that Respondents have adequately complied with the Writ. [¶] F. Respondents shall file a return to this Writ and serve it on all parties no later than 90 days after the date of the Writ‘s issuance . . . .” Finally, the court awarded attorney fees to Parks Legal Defense Fund, in an amount to be determined.
Each party appealed. The appeals were resolved in this court‘s prior opinion in Parks Legal Defense Fund v. The City of Huntington Beach (Dec. 13, 2010, G043109 [nonpub. opn.]) (the First Appeal). In that opinion, we held that both the certification of the EIR and the issuance of the CUP had to be set aside, and we affirmed the judgment except with respect to a time-barred declaratory relief action. We held the EIR was deficient for failure to discuss the availability of certain closed school cites as alternative locations and the loss of open space caused by the use of in-lieu fees to construct the senior center instead of to create more open space. In addition, we held that the project was inconsistent with the Central Park master plan‘s low intensity designation.
The city thereafter filed in the superior court a status conference statement dated April 22, 2011. In that statement, the city represented that a second appeal addressing attorney fees had been dismissed on April 15, 2011, following the stipulation of the parties in furtherance of a settlement agreement (Laquer Urban Clifford & Hodge v. The City of Huntington Beach (Apr. 18, 2011, G043943)) (Second Appeal). It further
In that status conference statement, the city said that the judgment had effectively vacated the certification of the EIR and the issuance of the CUP. The city also noted that the judgment had directed it to prepare a subsequent EIR. The city represented that it had complied with that directive inasmuch as it had proceeded with the preparation of a supplemental EIR and a general plan amendment.1 In conclusion, the city stated, “there is no basis for the Court to retain jurisdiction any longer over this Action.”
A City of Huntington Beach Request for City Council Action prepared by the city attorney for the July 5, 2011 city council meeting said: “On May 20, 2011, the trial court stated that it would not relinquish its jurisdiction until the City Council complied with the Court of Appeal‘s opinion to set aside the certification of the EIR and the issuance of the CUP. The trial court set a hearing date of July 12, 2011, for the City Council to take these actions. If the City Council sets aside the certification of the EIR and issuance of the CUP, the trial court will relinquish its jurisdiction of this lawsuit. If the City Council fails to set aside the certification of the EIR and issuance of the CUP by the July 12, 2011, hearing the trial court will continue to maintain its jurisdiction of this lawsuit and most likely restrain the City from taking any action on the EIR and the CUP.”
On May 18, 2012, Parks Legal Defense Fund and Lawrence Geisse commenced a new proceeding in the superior court (Parks Legal Defense Fund v. The City of Huntington Beach (Super. Ct. Orange County, No. 30-2012-00570541)) (the Second Proceeding). However, the city continued to pursue a resolution of the Original Proceeding.
The city filed, in the Original Proceeding, a February 15, 2013 return to the writ and a February 15, 2013 motion seeking an order discharging the writ. The city represented that it had vacated the certification of the EIR and the issuance of the CUP, prepared and adopted a supplemental EIR addressing the deficiencies identified in this court‘s opinion, amended the city‘s general plan to accommodate the higher intensity use of the senior center, and issued a new CUP. Having performed these tasks, the city argued that it had complied with the judgment, the writ and the decision of this court in the First Appeal and, thus, was entitled to have the writ discharged.
In support of its motion, the city filed a copy of a 1589-page administrative record. We observe that the record on appeal also contains copies of: (1) the portion of a transcript of the July 5, 2011 city council meeting dealing with the senior center; (2) a notice of a January 24, 2012 public hearing before the planning commission pertaining to the senior center SEIR, CUP, and general plan amendment; (3) the portion of a transcript of the January 24, 2012 planning commission meeting dealing with the senior center; (4) a January 25, 2012 planning commission notice of action pertaining to the senior center SEIR; (5) the portion of a transcript of an April 16, 2012 city council meeting dealing with the senior center; (6) the city council‘s Resolution No. 2012-18 certifying the final
Parks opposed the city‘s motion, arguing that the Original Proceeding was over and done with and the superior court had long since determined it had no further jurisdiction over the matter. It also asserted that the only reason the city was filing the motion in the Original Proceeding was that it was trying to avoid litigating various city actions, including the approval of an SEIR, in the Second Proceeding. In addition, Parks argued, inter alia, that the city still had failed to adequately address the previously identified problems with the EIR.
By order of May 6, 2013, the superior court in the Original Proceeding determined that it had jurisdiction to consider the SEIR pursuant to the terms of the judgment. It further found that the return adequately addressed the issues identified in the judgment, including the consideration of alternative sites, the use of Quimby Act funds and the loss of open space, and the CUP‘s conformity with the Central Park master plan. The court held that the senior center was then in compliance with CEQA and that the city was at liberty to issue the CUP. In addition, it ordered the writ discharged. Parks filed an appeal, resulting in the matter now before us (Case No. G048620) (Third Appeal).
The “First Amended Petition and Complaint” (some capitalization omitted) dated June 26, 2013 and filed in the Second Proceeding asserted, inter alia, that the SEIR violated CEQA for a litany of reasons and that the city violated section 612 of its own charter in approving the senior center project without a vote of the people. The city filed a demurrer. On October 3, 2013, the court in the Second Proceeding sustained the
II
DISCUSSION
A. First Topic—Jurisdiction:
Parks’ first topic heading reads: “ONCE THE CITY UNEQUIVOCALLY VACATED ITS APPROVALS AND THE ORIGINAL TRIAL COURT JUDGE ISSUED A RETURN OF WRIT IN JULY 2011, CAN A SUBSEQUENT TRIAL COURT JUDGE RESURRECT JURISDICTION OVER THE PROJECT WHEN THE ORIGINAL TRIAL COURT JUDGE DID NOT RETAIN JURISDICTION AT THE TIME THE 2011 WRIT WAS RETURNED AND DISCHARGED?” Parks then states that the answer to its question is “NO.”
In its first argument, Parks both mischaracterizes the facts and demonstrates its misunderstanding of the function of a return to a peremptory writ of mandate in a CEQA action. Parks says that, in response to the city‘s April 2011 request, the superior court issued a return to the writ in July 2011, that this constituted a discharge of the writ, and that the superior court thereupon lost jurisdiction to entertain any further matters pertaining to the Original Proceeding. It also says that when the city filed its “second Motion for Return” in February 2013, the court had no jurisdiction to act upon it. Parks concludes: “All actions taken . . . relating to the second Return of Writ are therefore void.”
First of all, we address mechanics and terminology. The court enters a judgment directing the issuance of a writ. The judgment should specify the terms of the
As stated in
Here, the judgment properly ordered the issuance of a peremptory writ of mandate. And, the writ properly ordered the city to file a return and stated that the court would retain jurisdiction until such time as it was satisfied that the city had adequately complied with the writ.
Thereafter, the city filed a status conference statement in April 2011 in which the city argued that the judgment itself had effectively vacated the certification of the EIR and the issuance of the CUP, and that because the city had proceeded with the preparation of a supplemental EIR and a general plan amendment, there was no ground for the court to retain jurisdiction of the matter. Even were we to construe this status
After the city council vacated both the certification of the EIR and the issuance of the CUP, another status conference was held. However, there is no indication that the city filed a return to the writ in advance of that status conference. In its July 12, 2011 minute order, the court stated that it deemed “the matter in compliance with the remand order,” but it neither discharged the writ nor dismissed the case.
Eventually, the city got around to filing both a return to the writ and a motion for discharge. Inasmuch as it appears that this was the first formal return that the city filed, and that the court had not previously ordered a discharge of the writ, the court had continuing jurisdiction to hear and pass upon the return. (Ballona Wetlands Land Trust v. City of Los Angeles, supra, 201 Cal.App.4th at pp. 479-480.) It also had continuing jurisdiction to enforce its judgment and to enforce compliance with this court‘s opinion in the First Appeal. (
In arguing to the contrary, Parks misinterprets language found in Ballona Wetlands Land Trust v. City of Los Angeles, supra, 201 Cal.App.4th at page 480. There, the court stated: “We conclude that the trial court‘s retained jurisdiction under
Moreover, as City of Carmel-By-The-Sea v. Board of Supervisors, supra, 137 Cal.App.3d 964 makes clear, in passing upon compliance with a peremptory writ, the court is not required to consider the wording of the peremptory writ in a vacuum, without reference to the language of the judgment itself. (Id. at pp. 973-974.) Here, the judgment remanded the matter to the city council for further consideration and specifically ordered it “to prepare, circulate, and consider a subsequent Environmental Impact Report (‘SEIR‘) . . . .” The court did not lose jurisdiction to enforce this portion of the judgment just because it was not reiterated in the body of the peremptory writ.3
(1) Introduction—
Parks’ second topic4 heading reads: “CAN THE 2013 TRIAL COURT JUDGE RESURRECT JURISDICTION AND ISSUE A SECOND RETURN OF WRIT THAT INCORPORATES AND RULES ON CHALLENGES RELATING TO THE ADEQUACY OF THE SUBSEQUENT EIR?” Parks then states that the answer to its question is “NO.” (Underscoring omitted.)
(2) Scope of Jurisdiction—
We have, in essence, already addressed this issue. As we stated above, a court does not issue a return and the superior court in this matter did not lose jurisdiction to act in the Original Proceeding. More specifically, it did not lose jurisdiction to enforce the writ, the judgment, and the opinion of this court in the First Appeal. That means it had the power to determine whether the SEIR complied with the judgment and this court‘s opinion. That does not mean, however, that the superior court had the jurisdiction to address every conceivable challenge to the SEIR, including challenges based on material facts not in existence at the time of entry of judgment. (Cf. Ballona Wetlands Land Trust v. City of Los Angeles, supra, 201 Cal.App.4th at p. 480.) Yet the language of the May 6, 2013 order could be construed as addressing more than just compliance with the writ, the judgment, and this court‘s opinion.
The italicized language can be interpreted to mean that the court determined the proposed senior center complied with CEQA not only with respect to the enumerated issues, but also with respect to every conceivable issue arising under CEQA, whether or not predicated on material facts in existence at the time of entry of judgment. Consequently, it is overbroad. We affirm the order to the extent it holds that the writ has been satisfied and is discharged, and that the three identified issues have been adequately addressed. The order is otherwise reversed. On remand, the trial court shall issue a new and different order reading in pertinent part as follows:
“The Court has the jurisdiction to consider the Subsequent Environmental Impact Report prepared pursuant to the terms of the December 15, 2009 Judgment (‘Judgment‘) in this action, in order to determine compliance with the Judgment. The Return adequately addresses the three issues of concern raised in the Judgment: (1) The discussion and consideration of alternative sites; (2) The loss of open space and use of Quimby Act funds for the project; and (3) The Conditional Use Permit‘s compliance with the Central Park master plan. Accordingly, it is ordered and decreed that the Subsequent Environmental Impact Report adequately addresses the issues identified in the Judgment. The Writ has been complied with and is hereby discharged.”
Interestingly, we observe that Parks’ discussion under the above-referenced topic heading actually has little if anything to do with its stated topic. However, to the extent issues not falling within the ambit of the stated topic are strewn about the discussion under that topic heading, we need not address them. It is well settled that the “appellant‘s brief ‘must’ ‘[s]tate each point under a separate heading or subheading summarizing the point . . . .’ [Citations.] This is not a mere technical requirement; it is ‘designed to lighten the labors of the appellate tribunals by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.’ [Citations.]” (In re S.C. (2006) 138 Cal.App.4th 396, 408; accord, Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166.) Accordingly, we treat as waived any argument not contained under a separate heading or subheading. (Conservatorship of Hume (2006) 139 Cal.App.4th 393, 395, fn. 2; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.)
In addition, arguments that are not supported by citation to the record or to legal authority are deemed waived.5 (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 109.) Parks has made several such unsupported arguments and they are deemed waived for this additional reason also.
C. Third Topic—City‘s Failure to Comply With Writ:
Parks’ final topic heading reads: “THE CITY HAS STILL FAILED TO ADEQUATELY ADDRESS THE ISSUES IN THE PRIOR WRIT.” (Boldface and
Inconsistencies aside, perhaps what Parks meant to argue under its third topic heading was that, even if the court had continuing jurisdiction, it erred in finding that the city had adequately addressed the issues of concern raised in the judgment. However, in the discussion under the third topic heading, Parks provides a solitary page reference—to the writ itself. Parks cites no portion of the record pertaining to the purportedly faulty SEIR. In addition, Parks does not provide a single citation to legal authority in support of its arguments under this topic heading. Parks’ arguments on this topic are waived for failure to provide citations to either the record or legal authority in support of its point.6 (Schubert v. Reynolds, supra, 95 Cal.App.4th at p. 109.)
III
DISPOSITION
The order is affirmed in part, reversed in part, and remanded. On remand, the superior court shall vacate its May 6, 2013 order and enter a new and different order
MOORE, J.
WE CONCUR:
O‘LEARY, P. J.
IKOLA, J.