Save Berkeley's Neighborhoods v. The Regents of the U. of Cal. ( 2021 )

Filed 10/21/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
SAVE BERKELEY’S
NEIGHBORHOODS,
A160560
Plaintiff and Appellant,
v. (Alameda County
Super. Ct. No. RG19022887)
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA et
al.,
Defendants and Respondents;
COLLEGIATE HOUSING
FOUNDATION,
Real Party in Interest and
Appellant.
SAVE BERKELEY’S
NEIGHBORHOODS, A160561
Plaintiff and Appellant,
v. (Alameda County
Super. Ct. No. RG19022887)
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA et
al.,
Defendants and Respondents;
AMERICAN CAMPUS
COMMUNITIES et al.,
Real Parties in Interest and
Appellants.
Save Berkeley’s Neighborhoods (SBN) filed a petition for writ of
mandate pursuant to the California Environmental Quality Act (Pub.
Resources Code, 1 § 21000 et seq.; CEQA) challenging a proposed project to
develop new academic, residential, and parking buildings on University of
California Berkeley’s campus. The trial court found SBN failed to timely
serve its petition on American Campus Communities, American Campus
Communities Services, Inc., American Campus Communities Partnership,
L.P. (jointly, ACC), and Collegiate Housing Foundation (CHF) (jointly,
appellants), and sustained their demurrer without leave to amend. However,
the court declined to dismiss the petition because it concluded appellants
were not indispensable parties. Appellants subsequently appealed the
finding they are not indispensable parties, and SBN filed a cross-appeal
arguing the trial court erred in concluding it failed to name and serve
appellants within the applicable statute of limitations. We affirm the order. 2
1All statutory references are to the Public Resources Code unless
otherwise noted.
2 Pending before this court are five requests for judicial notice. On
November 17, 2020, appellants filed a request for judicial notice of the notice
of determination, various documents regarding review of the project, excerpts
from the final supplemental environmental impact report prepared in
connection with the project, various documents regarding the legislative
history of Assembly Bill No. 320 (2011–2012 Reg. Sess.), and SBN’s motion
for leave to file a second amended petition. SBN objects to two of the exhibits
attached to appellants’ first request for judicial notice: (1) text changes to the
draft supplemental environmental impact report, and (2) excerpts from the
final supplemental environmental impact report. On March 11, 2021,
appellants filed a second request for judicial notice of certain CEQA findings.
On September 14, 2021, appellants filed a third request for judicial notice of
certain court filings in City of Berkeley v. Regents of the University of
California (Super. Ct. Alameda County, No. RG19023058) and Save
Berkeley’s Neighborhoods v. Regents of the University of California (Super. Ct.
Alameda County, No. RG19022887). SBN also objects to appellants’ second
and third requests for judicial notice. We grant in part appellants’ first
2
I. BACKGROUND
The Regents of the University of California (Regents) approved a new
development for additional academic space and campus housing, and certified
a final supplemental environmental impact report (SEIR). The project would
demolish an existing parking structure and construct apartment housing
above a new parking structure and a new academic building adjacent to the
new residential building (project). On May 17, 2019, the Regents filed a
notice of determination (NOD) regarding the project, which identified
American Campus Communities and CHF as the parties undertaking the
request for judicial notice as to exhibits E through I, and grant in full
appellants’ second and third requests for judicial notice. (Evid. Code, §§ 452,
subds. (b)–(d), 459, subd. (a).) We deny appellants’ request for judicial notice
of exhibits A, B, C, and D, because those documents were part of the record
before the trial court and are included in the record on appeal. (Davis v.
Southern California Edison Co. (2015) 236 Cal.App.4th 619, 632, fn. 11.)
On February 9, 2021, SBN filed a request for judicial notice of seven
exhibits related to the administrative record lodged in the trial court, a
petition filed in a related case, City of Berkeley v. Regents of the University of
California (Super. Ct. Alameda County, No. RG19023058), and an opinion by
this court from a prior appeal between the parties, Save Berkeley’s
Neighborhoods v. Regents of University of California (2020) 51 Cal.App.5th
226. The request for judicial notice also asks this court to take judicial notice
of nine documents that were before the trial court and are included in the
joint appendix. On April 12, 2021, SBN filed a second request for judicial
notice regarding two pleadings filed with the lower court following its order
sustaining the demurrers and excerpts of the administrative record lodged
with the trial court. Appellants do not oppose either request. We grant in
part SBN’s first request for judicial notice as to exhibits 1 through 7, and
grant in full SBN’s second request for judicial notice. (Evid. Code, §§ 452,
subds. (c), (d), 459, subd. (a).) We deny SBN’s request for judicial notice of
the joint appendix documents as unnecessary because the documents were
part of the record before the trial court and are included in the record on
appeal. (Davis v. Southern California Edison Co., supra, 236 Cal.App.4th at
p. 632, fn. 11.)
3
project. American Campus Communities is the developer for the project, and
CHF is the ground lessee and borrower in connection with the housing
component of the project.
SBN notified the Regents it intended to challenge its adoption of the
project and certification of the SEIR. On June 13, 2019, SBN filed a petition
for writ of mandate seeking to vacate the Regents’ certification of the SEIR
on the grounds that the approval violated CEQA. The petition identified
various alleged omissions from the SEIR. The petition further asserted the
Regents “[f]ailed and refused to recirculate a revised draft supplemental EIR
including said necessary information,” failed to prepare and certify “a
subsequent, rather than supplemental EIR,” and failed to make certain
required findings or support findings with substantial evidence. The petition
named the Regents, Janet Napolitano, as president of the University of
California, and Carol T. Christ, as chancellor of University of California,
Berkeley, as respondents in the action.
On September 18, 2019, SBN filed a first amended petition for writ of
mandate. That petition was substantively identical to the initial petition,
except it added American Campus Communities and CHF as real parties in
interest. The amended petition acknowledged American Campus
Communities and CHF were listed as the parties undertaking the project in
the NOD, and thus were being named pursuant to section 21167.6.5,
subdivision (a) (section 21167.6.5(a)). 3 SBN subsequently filed a first
amendment to the first amended petition for writ of mandate, seeking to add
3 Section 21167.6.5(a) provides: “The petitioner or plaintiff shall name,
as a real party in interest, the person or persons identified by the public
agency in its notice filed pursuant to subdivision (a) or (b) of Section 21108 or
Section 21152 . . . .”
4
American Campus Communities Services, Inc. and “American Campus
Communities Operating Partnership LP” as real parties in interest.
ACC and CHF filed demurrers in response to the amended petition.
They asserted SBN failed to name them as parties within the applicable
statute of limitations, section 21167.6.5(a) requires their joinder as real
parties in interest, and they are necessary and indispensable parties to the
litigation. Because these defects could not be cured, appellants requested the
court sustain the demurrer without leave to amend and dismiss the entire
action. 4 SBN opposed these demurrers.
Following a hearing on the matter, the trial court sustained the
demurrers without leave to amend. The court noted the Regents’ NOD
identified American Campus Communities and CHF as the parties
undertaking the project, and SBN failed to name and serve them within
either section 21167’s 30-day limitations period or section 21167.6.5(a)’s 20-
day limitations period. The court then applied the factors set forth in Code of
Civil Procedure section 389, subdivision (b) (CCP section 389(b)) 5 and
4The Regents also requested the trial court dismiss the action with
prejudice for the same reasons set forth in appellants’ demurrers. However,
that demurrer is not part of the pending appeal.
5 CCP section 389(b) provides if certain necessary parties cannot be
joined in an action, “the court shall determine whether in equity and good
conscience the action should proceed among the parties before it, or should be
dismissed without prejudice, the absent person being thus regarded as
indispensable. The factors to be considered by the court include: (1) to what
extent a judgment rendered in the person’s absence might be prejudicial to
him or those already parties; (2) the extent to which, by protective provisions
in the judgment, by the shaping of relief, or other measures, the prejudice can
be lessened or avoided; (3) whether a judgment rendered in the person’s
absence will be adequate; (4) whether the plaintiff or cross-complainant will
have an adequate remedy if the action is dismissed for nonjoinder.” (Code
Civ. Proc., § 389, subd. (b); see also part II.B.3., post.)
5
concluded the Regents, ACC, and CHF were closely aligned because ACC and
CHF were “undertaking the project for the University’s own use and benefit.”
The court noted SBN would have no way to challenge the SEIR if the case
was dismissed, whereas ACC and CHF were parties in a related case
challenging the same SEIR and thus unlikely to be subject to a harmful
settlement. The court thus concluded ACC and CHF were not indispensable
parties, dismissed ACC and CHF, but declined to dismiss the entire matter.
ACC and CHF timely appealed. SBN subsequently filed a cross-appeal.
II. DISCUSSION
Appellants contend the trial court erred by applying the equitable
balancing test set forth in CCP section 389(b). They assert their designation
as real parties in interest under section 21167.6.5 required the conclusion
that they are necessary and indispensable parties to the litigation.
Appellants further argue even if the trial court properly applied CCP
section 389(b), the factors demonstrate they are indispensable parties to the
litigation. In response, SBN argues the order sustaining appellants’
demurrer is not appealable. SBN further asserts, via a cross-appeal, the trial
court erred in concluding SBN did not join appellants within the applicable
statute of limitations. We disagree with both parties’ positions.
A. Appealability
As a threshold issue, SBN argues the appeal must be dismissed
because it arises from an interlocutory order. SBN argues the issue of
whether appellants are indispensable parties “remain[s] in the underlying
action” because the same issue was raised by the Regents, who remain a
party to the action.
“In multiparty actions, a judgment disposing of all the issues as to one
party is appealable even if issues remain as to other parties.” (Martis Camp
6
Community Assn. v. County of Placer (2020) 53 Cal.App.5th 569, 588; Tinsley
v. Palo Alto Unified School Dist. (1979) 91 Cal.App.3d 871, 880 (Tinsley)
[“when there is a . . . judgment resolving all issues between a plaintiff and
one defendant, either party may appeal from an adverse judgment, although
the action remains pending between the plaintiff and other defendants”].)
This exception to the final judgment rule applies even if some of the legal
issues related to the dismissed parties are identical to those remaining in the
action among other parties. (Tinsley, at pp. 880–881 [rejecting contention
that the exception to the final judgment rule does not apply because the legal
issues raised and relief sought by the remaining party were identical to those
raised and sought by the appealing parties]; accord Oakland Raiders v.
National Football League (2001) 93 Cal.App.4th 572, 578 [rejecting
contention that “entry of judgment in favor of defendants was improper
because they are indispensable parties whose interests are identical to those
of the remaining defendants”].)
SBN relies on Call v. Alcan Pacific Co. (1967) 251 Cal.App.2d 442(Alcan) to argue this exception to the final judgment rule does not apply here
because the interests of CHF and ACC are identical to those of the Regents.
In Alcan, the court considered whether an early dismissal of a surety fell
within the multiparty exception to the final judgment rule. (Id. at pp. 448–
449.) In concluding the exception did not apply, the court noted the principal
and surety had “such a unity of interest between them that a judgment in
favor of the latter alone is not a final judgment from which an appeal lies.”
(Id. at p. 449.) It explained “suits on bonds” constituted “a ‘special class of
cases’ ” because the bond “bound principal and surety jointly and severally.”
(Id. at p. 449, fn. 11.) While CHF, ACC, and the Regents may have similar
7
interests in the project and this litigation, it is in no way analogous to the
unity in Alcan.
Here, the trial court’s order sustaining CHF’s and ACC’s demurrers
disposed of all issues between them and SBN, and CHF’s and ACC’s appeal
does not violate the final judgment rule. We thus turn to the merits of the
appeal.
B. Necessary and Indispensable Parties
The parties do not dispute appellants are necessary parties pursuant to
section 21167.6.5(a). At issue, however, is whether they are indispensable
under the current statutory scheme. If ACC and CHF are found to be
indispensable parties, then the entire action must be dismissed. (See
Beresford Neighborhood Assn v. City of San Mateo (1989) 207 Cal.App.3d
1180, 1190 (Beresford).) If they are not indispensable, then the court may
allow the action to proceed. (Code Civ. Proc., § 389, subd. (b).)
1. Standard of Review
“Our overriding purpose in construing a provision of CEQA, as with
any statute, is ‘to adopt the construction that best gives effect to the
Legislature’s intended purpose.’ [Citation.] In determining that intended
purpose, we follow ‘[s]ettled principles.’ [Citation.] ‘We consider first the
words of a statute, as the most reliable indicator of legislative intent.’
[Citation.] In doing so, we give the words ‘their usual and ordinary meaning,’
viewed in the context of the statute as a whole. [Citation.] As part of this
process, ‘ “ ‘[every] statute should be construed with reference to the whole
system of law of which it is a part so that all may be harmonized and have
effect.’ ” ’ [Citation.] [¶] When the language of a statute is ambiguous—that
is, when the words of the statute are susceptible to more than one reasonable
meaning, given their usual and ordinary meaning and considered in the
8
context of the statute as a whole—we consult other indicia of the
Legislature’s intent, including such extrinsic aids as legislative history and
public policy.” (Union of Medical Marijuana Patients, Inc. v. City of San
Diego (2019) 7 Cal.5th 1171, 1183–1184.)
2. Indispensability Under Sections 21108 and 21167.6.5
The NOD identified American Campus Communities and CHF as the
entities “Undertak[ing] [the] Project.” At issue is whether that designation
supplants the equitable balancing test in CCP section 389(b) and creates a
presumption of indispensability. We conclude it does not.
a. Assembly Bill No. 320
Prior to 2012, section 21108 did not require a lead agency to identify
any real parties in interest. (Stats. 2004, ch. 525, § 2, p. 4154.) However,
former section 21167.6.5, subdivision (a) required real parties in interest to
be named and served in certain actions: “The petitioner or plaintiff shall
name, as a real party in interest, any recipient of an approval that is the
subject of an action or proceeding brought pursuant to Section 21167, 21168,
or 21168.5, and shall serve the petition or complaint on that real party in
interest . . . not later than 20 business days following service of the petition or
complaint on the public agency.” (Stats. 2004, ch. 522, § 1, p. 4139.)
The phrase “any recipient of an approval” was not defined by statute.
Courts thus were required to “first determine what approval is ‘the subject of’
that action” and then “determine whether that person or entity can be
deemed a recipient of that approval.” (Quantification Settlement Agreement
Cases (2011) 201 Cal.App.4th 758, 850.)
In response to this ambiguity, the Legislature passed Assembly Bill
No. 320 (2011–2012 Reg. Sess.) (Assembly Bill 320), which amended in
relevant part sections 21108 and 21167.6.5. (Stats. 2011, ch. 570, §§ 1, 3.)
9
The Senate floor analysis explained the purpose of the bill was to “clarif[y]
the persons who must be named as a real party in interest.” (Sen. Rules
Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill 320, as
amended June 14, 2011, p. 1.) Accordingly, the Legislature amended
section 21108, subdivision (a) (section 21108(a)), to require state agencies to
“identify the person or persons in subdivision (b) or (c) of Section 21065, as
reflected in the agency’s record of proceedings . . . .” in any filed notice of
determination. 6 (Stats. 2011, ch. 570, § 1.) Similarly, the Legislature
amended section 21167.6.5(a) to replace the phrase “any recipient of an
approval” with “the person or persons identified by the public agency in its
notice filed pursuant to subdivision (a) or (b) of Section 21108 . . . or, if no
notice is filed, the person or persons in subdivision (b) or (c) of Section 21065,
as reflected in the agency’s record of proceedings for the project.” (Stats.
2011, ch. 570, § 3.)
b. Analysis 7
Appellants argue Assembly Bill 320 sought to provide “ ‘finality and
certainty’ ” as to who must be joined in CEQA actions. They assert the trial
6 The relevant portions of section 21065 provide: “(b) An activity
undertaken by a person which is supported, in whole or in part, through
contracts, grants, subsidies, loans, or other forms of assistance from one or
more public agencies. [¶] (c) An activity that involves the issuance to a person
of a lease, permit, license, certificate, or other entitlement for use by one or
more public agencies.” (§ 21065, subds. (b)–(c).)
7 Appellants address and raise independent arguments with respect to
sections 21108 and 21167.6.5. However, we note section 21108, standing
alone, merely addresses what information lead agencies must include in a
notice of determination. It does not address actions relating to such notices
or issues of joinder. Section 21108 is only relevant to this dispute because
section 21167.6.5(a) incorporates the entities identified in the NOD pursuant
to section 21108 as the “real part[ies] in interest” who must be named and
served in certain actions. Accordingly, we analyze both statutes together.
10
court’s decision to utilize CCP section 389(b)’s equitable balancing test
undermines this purpose.
We first look to the plain language of the statute for guidance. (Union
of Medical Marijuana Patients, Inc. v. City of San Diego, supra, 7 Cal.5th at
p. 1184.) Appellants contend that where the Legislature creates a statutory
framework for initiating actions against state agencies, the suit must be
brought under those conditions imposed by the Legislature. They assert
“[t]he Legislature clearly intended dismissal as the sanction for failure to
comply with Section 21167.6.5.”
The statute does not support appellants’ interpretation. Nothing in
section 21167.6.5(a) states an action against a lead agency must be dismissed
for failure to properly name and serve the real parties in interest. While
section 21167.6.5(a) uses the word “shall,” it only requires that parties “shall”
file and serve the real parties in interest within a limitations period.
(§ 21167.6.5, subd. (a).) Failure to do so excludes the real parties in interest
from the action. The statutory language does not expressly condition a
petitioner’s ability to bring suit upon the inclusion of the real parties in
interest. (See ibid.) Likewise, the cases upon which appellants rely are
distinguishable. Those cases involve, for example, a failure to file an action
against a lead agency within the statute of limitations or a failure to file a
claim with a state board prior to filing suit. (See, e.g., Committee for Green
Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 57;
Lattin v. Franchise Tax Board (1977) 75 Cal.App.3d 377, 382.) Here, the
issue is SBN’s failure to name and serve the real parties in interest, not the
lead agency, within the applicable statute of limitations. And none of the
cases upon which appellants rely address the key question: whether an
action against a lead agency must be dismissed—despite being filed within
11
the limitations period—because of a failure to do so for necessary third
parties.
Nor does subdivision (d) of section 21167.6.5 support appellants’
position. Section 21167.6.5, subdivision (d) states: “Failure to name
potential persons, other than those real parties in interest described in
subdivision (a), is not grounds for dismissal pursuant to Section 389 of the
Code of Civil Procedure.” Contrary to appellants’ argument,
section 21167.6.5, subdivision (d) recognizes courts will apply the equitable
balancing test under CCP section 389(b). For persons who are not real
parties in interest, section 21167.6.5, subdivision (d) states dismissal under
CCP section 389(b) is inappropriate. However, it does not state dismissal is
mandatory for those who are real parties in interest. Rather, subdivision (d)
implies the failure to name real parties in interest may be grounds for
dismissal depending on the factors set forth in CCP section 389(b).
Because the statutory text is silent as to the impact on a party’s failure
to name and serve the real parties in interest, we turn to the legislative
history for guidance. Assembly Bill 320 did not alter the requirement that
petitioners challenging certain projects must name and serve the real parties
in interest. (Compare former § 21167.6.5, subd. (a), Stats. 2004, ch. 522, § 1,
with § 21167.6.5, subd. (a).) However, prior to Assembly Bill 320 the real
parties in interest were defined as “any recipient of an approval.” (Stats.
2004, ch. 522, § 1, p. 4139.) The phrase “any recipient of an approval” was
not defined in either CEQA or its implementing administrative regulations
(CEQA Guidelines), and parties and courts were left to independently assess
what entities qualified. (See, e.g., Quantification Settlement Agreement
Cases, supra, 201 Cal.App.4th at pp. 850–855 [in assessing various
agreements between two water districts and an irrigation district, the court
12
concluded the United States and various Indian tribes were recipients of
approval for purposes of § 21167.6.5]; County of Imperial v. Superior Court
(2007) 152 Cal.App.4th 13, 33 (County of Imperial) [addressing whether two
water districts with the right to a possible future acquisition of water were
recipients of approval].)
Under the pre-Assembly Bill 320 statutory scheme, courts engaged in a
two-part analysis. First, they needed to determine who constituted a real
party in interest—i.e., who was a “recipient of an approval.” (Quantification
Settlement Agreement Cases, supra, 201 Cal.App.4th at p. 850.) Resolving
this question often involved numerous sub-questions. For example, in
Quantification Settlement Agreement Cases, the court first examined “what
[project] ‘approval’ is to be deemed the subject of that action” because “[o]nly
then can we determine who the recipients of that approval were for purposes
of section 21167.6.5(a).” (Id. at pp. 850, 851.) The court then analyzed
whether the parties at issue should be deemed “recipients” of the identified
approval. (Id. at pp. 854–855.) Courts did not employ Code of Civil
Procedure section 389, subdivision (a) (CCP section 389(a)) as part of this
analysis. Rather, as explained in Quantification Settlement Agreement Cases,
section 21167.6.5(a) supplanted CCP section 389(a). “If an entity is a
recipient of an approval for purposes of section 21167.6.5(a), that entity is a
necessary party in a CEQA action challenging the EIR for the project that
was approved, and no further showing need be made under subdivision (a) of
Code of Civil Procedure section 389 to make that entity a necessary party.”
(Quantification Settlement Agreement Cases, at p. 855.)
If courts concluded the entities were real parties in interest and thus
deemed necessary parties, they then addressed the second part of the
analysis: whether those real parties in interest were also indispensable.
13
(Quantification Settlement Agreement Cases, supra, 201 Cal.App.4th at
p. 855.) To make this assessment, courts applied the equitable balancing test
in CCP section 389(b). (Quantification Settlement Agreement Cases, at
p. 855.; County of Imperial, supra, 152 Cal.App.4th at p. 35.) As the Third
Appellate District explained, “[A] recipient of an approval, while a necessary
party, is not necessarily an indispensable party, such that the CEQA action
must be dismissed in the absence of that party. Instead, if a court finds that
‘unnamed parties received approvals, [the court must] then consider whether
under Code of Civil Procedure section 389, subdivision (b) [the unnamed
parties] qualify as indispensable parties, requiring dismissal of the action.’ ”
(Quantification Settlement Agreement Cases, at p. 848.)
The legislative history indicates the Legislature amended
sections 21108 and 21167.6.5 to clarify the first step of this process—i.e., who
constituted a real party in interest. As noted by the Legislature, County of
Imperial, supra, 152 Cal.App.4th 13 highlighted the ambiguity regarding
what parties must be named under former section 21167.6.5(a). (Sen. Rules
Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill 320, as
amended June 14, 2011, pp. 3–4.) Under former section 21167.6.5(a),
petitioners could believe they had named all relevant parties, only to have a
court conclude indispensable parties were not named and dismiss the
petition. (See, e.g., County of Imperial, supra, 152 Cal.App.4th at p. 40.) The
Legislature thus amended sections 21167.6.5(a) and 21108 to “provid[e] a
bright-line rule as to which persons must be named [and served] in the CEQA
complaint.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Assem. Bill 320, as amended June 14, 2011, p. 3.) The
amendments to sections 21108 and 21167.6.5(a) defined the real parties in
interest as “the person or persons in subdivision (b) or (c) of Section 21065” as
14
identified by the lead agency in its notice of determination or exemption. The
Legislature enacted these amendments to eliminate any ambiguity regarding
who must be named as a real party in interest. 8 (Concurrence in Sen.
Amend., Assem. Bill 320, as amended June 14, 2011, pp. 2–3.)
What the Legislature did not do, however, was alter the second step—
i.e., evaluating whether the real party in interest was indispensable to the
action. In considering Assembly Bill 320, the Legislature discussed at length
County of Imperial, supra, 152 Cal.App.4th 13. (See, e.g., Sen. Rules Com.,
Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill 320, as
amended June 14, 2011, pp. 3–4.) It noted the appellate court concluded the
two water districts at issue “were ‘recipients of approval,’ indispens[a]ble
parties, and that ‘[t]he trial court carefully balanced the various factors and
determined, on balance, that equity was best served by dismissing the action
for failure to name [the water districts].’ ” (Id. at p. 4.) But the Legislature
then focused exclusively on the first item: identifying “ ‘recipients of
approval’ ” by “removing references to ‘recipients of approval,’ and, instead,
requiring specified persons to be named as real parties in interest . . . .”
(Ibid.) The Legislature did not address that portion of County of Imperial
that assessed indispensability under CCP section 389(b). (See generally, Sen.
Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem.
Bill 320, as amended June 14, 2011; see also County of Imperial, supra,
152 Cal.App.4th at pp. 26, 35.)
8 Appellants argue we must defer to a lead agency’s determination for
who constitutes a real party in interest. We need not address this point.
Even assuming deference is required, at most it would be deference to who
constitutes a necessary party. (See Quantification Settlement Agreement
Cases, supra, 201 Cal.App.4th at p. 855.) Here, SBN does not argue ACC and
CHF were not real parties in interest under section 21167.6.5(a).
15
In limiting its focus to clarifying the real parties in interest, the
Legislature recognized the failure to name a real party in interest “can be
grounds for dismissal”—but does not mandate dismissal—under existing law.
(Concurrence in Sen. Amend., Assem. Bill 320, as amended June 14, 2011,
p. 2, italics added; ibid. [“Under CEQA civil procedure laws, if a lawsuit does
not name a recipient of an approval, the court must determine whether ‘in
equity and good conscience the action should proceed among the named
parties, or should be dismissed without prejudice, the absent person being
thus regarded as indispensable.”].) Assembly Bill 320, when passed by the
Assembly, included a provision that “[a]llowed a CEQA legal action to be
dismissed if the petitioner or plaintiff fails to timely serve a recipient of an
approval identified in the lead agency’s NOD or NOE [(notice of exemption)].”
(Concurrence in Sen. Amend., Assem. Bill 320, as amended June 14, 2011,
p. 2.) However, the Senate amendments “[d]elete[d] the provision that allows
a CEQA legal action to be dismissed for failure to serve the recipients of the
lead agency’s approval with the petition or complaint.” (Concurrence in Sen.
Amend., Assem. Bill 320, as amended June 14, 2011, p. 1.) “When a statute
has been construed by judicial decision, and that construction is not altered
by subsequent legislation, it must be presumed that the Legislature is aware
of the judicial construction and approves of it.” (Stavropoulos v. Superior
Court (2006) 141 Cal.App.4th 190, 196.)
Nor does the legislative history reflect any intent to limit CEQA actions
or otherwise eliminate the CCP section 389(b) equitable balancing test for
real parties in interest. To the contrary, the legislative history indicates the
Legislature’s intent was to “prevent the dismissal of important and
meritorious CEQA cases.” (Concurrence in Sen. Amend., Assem. Bill 320, as
16
amended June 14, 2011, p. 3.) The approach advocated by appellants would
increase dismissal of CEQA cases.
In sum, we disagree the Legislature replaced the CCP section 389(b)
balancing test with a presumption of indispensability when it enacted
Assembly Bill 320. The trial court did not err in applying CCP section 389(b).
3. CCP Section 389(b)’s Equitable Balancing Test
Those entities deemed real parties in interest under
section 21167.6.5(a) are considered necessary parties for purposes of Code of
Civil Procedure section 389. (Quantification Settlement Agreement Cases,
supra, 201 Cal.App.4th at p. 855 [“If an entity is a recipient of an approval for
purposes of section 21167.6.5(a), that entity is a necessary party in a CEQA
action challenging the EIR for the project that was approved, and no further
showing need be made under subdivision (a) of Code of Civil Procedure
section 389 to make that entity a necessary party.”].) If a necessary party
cannot be joined, “the court shall determine whether in equity and good
conscience the action should proceed among the parties before it, or should be
dismissed without prejudice, the absent person being thus regarded as
indispensable. The factors to be considered by the court include: (1) to what
extent a judgment rendered in the person’s absence might be prejudicial to
him or those already parties; (2) the extent to which, by protective provisions
in the judgment, by the shaping of relief, or other measures, the prejudice can
be lessened or avoided; (3) whether a judgment rendered in the person’s
absence will be adequate; (4) whether the plaintiff or cross-complainant will
have an adequate remedy if the action is dismissed for nonjoinder.” (Code
Civ. Proc., § 389, subd. (b).)
These factors “are not arranged in a hierarchical order, and no factor is
determinative or necessarily more important than another.” (County of
17
Imperial, supra, 152 Cal.App.4th at p. 35.) However, “potential prejudice to
that unjoined person is of critical importance.” (Tracy Press, Inc. v. Superior
Court (2008) 164 Cal.App.4th 1290, 1298.) We review a trial court’s order
regarding whether to dismiss for failing to join an indispensable party for an
abuse of discretion. (Citizens for Amending Proposition L v. City of Pomona
(2018) 28 Cal.App.5th 1159, 1179.)
Appellants argue they have fundamentally different interests from the
Regents. They note the Regents’ interest is to add academic space and
housing, whereas appellants’ interest is to develop, build, manage, and
operate the project. They argue delays and additional mitigation could
significantly impact appellants’ financial interests while minimally impacting
the Regents’ goals, and any judgment would fail to reflect their unique
interests.
Developers are often found to be indispensable parties in CEQA
actions. (See, e.g., Beresford, supra, 207 Cal.App.3d at pp. 1187–1190; Sierra
Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 499 (Sierra
Club).) But a developer is “not necessarily an indispensable party.” (See
Quantification Settlement Agreement Cases, supra, 201 Cal.App.4th at
p. 848.) “ ‘Whether a party is . . . indispensable is a matter of trial court
discretion in which the court weighs “factors of practical realities and other
considerations.” ’ ” (City of San Diego v. San Diego City Employees’
Retirement System (2010) 186 Cal.App.4th 69, 84; accord Deltakeeper v.
Oakdale Irrigation Dist. (2001) 94 Cal.App.4th 1092, 1106 (Deltakeeper) [“if a
party to a contract were always indispensable in a suit to set aside the
contract, it would eliminate the exercise of discretion accorded to the trial
court under [Code of Civil Procedure] section 389, subdivision (b)”].)
18
Here, the record reflects a strong unity of interest between the Regents
and appellants. While the parties’ motivations may differ, both the Regents
and appellants have similar interests in having the project proceed in a
timely manner. (See County of Imperial, supra, 152 Cal.App.4th at p. 38
[“The test for determining the ability to protect an absent party’s interest is
whether existing and absent parties’ interests are sufficiently aligned that
the absent party’s rights necessarily will not be affected or impaired by the
judgment or proceeding.”]; see also Citizens for Amending Proposition L v.
City of Pomona, supra, 28 Cal.App.5th at p. 1184 [city “ha[d] an interest in
the validity of an agreement to which it is a party. . . . It was not an abuse of
discretion of the trial court to conclude from this interest that [the city] could
‘be expected to argue vigorously in favor of’ upholding the contract.”].) The
Regents noted the Goldman School of Public Policy (GSPP), which would
obtain the additional academic space, was one of the university’s leading
programs and the new academic building would be “critical to ensure the
ongoing success and sustainability” of GSPP. Likewise, the Regents deemed
additional housing “a high priority” because the rising cost of housing
negatively impacts the university’s recruitment and the “campus
community.”
Nor, in this instance, does appellants’ role in developing, building,
managing, and operating the project create a distinct economic interest.
While ACC would operate and manage the additional housing, the record
indicates the Regents—specifically the UC Berkeley Parking and
Transportation division and GSPP—would manage and operate the new
parking structure and the new academic building. The Regents also would
regain ownership of the project once the project debt was repaid. Finally, we
note appellants have not cited to any evidence that would support their claim
19
that heightened costs caused by additional mitigation or delay would solely
impact or be borne by them.
The cases cited by appellants to support their argument regarding their
interests are distinguishable. Both Sierra Club and Beresford involved
nonjoined developers in suits to set aside either building permits or zoning
and planning approvals. (Sierra Club, supra, 95 Cal.App.3d at p. 498;
Beresford, supra, 207 Cal.App.3d at p. 1185; accord County of Imperial,
supra, 152 Cal.App.4th at p. 18 [petition challenging approval of agreement
to transfer water to certain water districts].) Those courts concluded the
developers were indispensable parties because the petitions challenged
projects pursued by the developers which would have no meaningful
involvement by the government agency apart from the initial approvals.
(Sierra Club, at p. 498; Beresford, at p. 1189; see also County of Imperial, at
p. 23 [State Water Resources Control Board’s sole role was approving water
transfer].) Similarly, in Save Our Bay, Inc. v. San Diego Unified Port District
(1996) 42 Cal.App.4th 686 at page 693, the court found the nonjoined
landowner was an indispensable party in a CEQA action. While the district
authorized purchase of the land for the project, the court noted the district
had no specific interest to ensure the purchase of the property and thus
“ ‘cannot be expected to represent the [owner’s] interests.’ ” (Save Our Bay, at
p. 696.)
In these cases, the lead agency was neither an owner or developer of
the project, and the unjoined entity had “undertaken the efforts necessary to
secure such [governmental] approvals” for the project. (Beresford, supra,
207 Cal.App.3d at p. 1189.) Here, however, the Regents are not so removed
from the project. As noted above, the Regents pursued the project and
continued to have a vested interest in its success. The project is for the
20
benefit of the University of California, Berkeley, the Regents will be involved
in the management and operation of two-thirds of the new buildings (i.e., the
parking garage and the academic building), and it will obtain ownership of
the project upon repayment of the project debt.
Moreover, appellants have not cited any evidence in the record to
indicate they invested resources in the project that would be uniquely
harmed. While appellants argue a writ would inevitably be inconsistent with
SBN’s contractual rights and expectations in connection with the project,
they have failed to argue this point with any specificity. We note the contract
between appellants and the Regents was not submitted until after the trial
court issued its tentative ruling on the demurrers, and the trial court
declined to “consider the Respondent’s [(Regents’)] untimely submission.”
Appellants offer no argument for why it would be proper for us to now
consider them, and we thus decline to do so. (Accord Doers v. Golden Gate
Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [documents not presented to
trial court not considered on appeal]; In re Zeth S. (2003) 31 Cal.4th 396, 405
[“It has long been the general rule and understanding that ‘an appeal reviews
the correctness of a judgment as of the time of its rendition, upon a record of
matters which were before the trial court for its consideration.’ ”].) 9
Finally, we note SBN would not have an adequate remedy if the action
was dismissed for nonjoinder as the limitations period has run. (See
9With regard to the second factor in CCP section 389(b), we recognize
the court may be unable to fashion relief that could directly protect
appellants’ “contractual rights and expectations.” However, appellants have
not specifically identified what these “contractual rights and expectations”
encompass and, as discussed above, these interests likely align with those of
the Regents. Moreover, such “rights and expectations” may already be
protected via the contractual arrangements between appellants and the
Regents.
21
part II.C., post.) We recognize, as highlighted by appellants, that SBN’s
failure to name and serve appellants gave rise to the present situation.
However, as explained by the court in Deltakeeper, supra, 94 Cal.App.4th at
page 1108, “ ‘The foremost principle under CEQA is that the Legislature
intended the act “to be interpreted in such manner as to afford the fullest
possible protection to the environment within the reasonable scope of the
statutory language.” ’ ”
Based on the facts presented and the record before this court, we
cannot say the trial court abused its discretion in concluding appellants are
not indispensable parties to the litigation pursuant to CCP section 389(b).
C. SBN’s Cross-appeal
SBN appeals from the trial court’s order granting appellants’
demurrers on the ground it erroneously determined the petition was subject
to CEQA’s 30-day statute of limitations in section 21167, subdivision (c).
SBN asserts the NOD failed to adequately describe the project and thus did
not trigger the 30-day limitations period or the 20-day limitations period in
section 21167.6.5(a).
1. Relevant Legal Framework
“After a local agency decides to approve a project for which an EIR has
been prepared, it must file a notice with the county clerk. [Citations.]
Among other things, the agency must ensure the notice contains a brief
description of the project, information identifying the project and its location,
a statement that an EIR was prepared and certified under CEQA, the
agency’s conclusion whether the project will have a significant effect on the
environment, whether it adopted mitigation measures and a mitigation
monitoring program, and where the public may examine the final EIR and
22
the record of project approval.” (Residents Against Specific Plan 380 v.
County of Riverside (2017) 9 Cal.App.5th 941, 962.)
“The notice triggers the running of a statute of limitations on CEQA
challenges. ‘To be timely, an action challenging the adequacy of an EIR must
be commenced within 30 days after the county clerk posts the notice of
determination that the project’s lead agency has filed with it. [Citations.]’
[Citations.] ‘[T]he 30-day limitations period does not begin to run if the
notice of determination is substantively defective in failing to properly
describe the lead agency’s actions. [Citations.] A notice of a determination’s
adequacy is governed by the substantial compliance doctrine which “ ‘means
actual compliance in respect to the substance essential to every reasonable
objective of the statute’ ” even though it may contain “ ‘technical
imperfections of form . . . .’ ” ’ ” (Residents Against Specific Plan 380 v.
County of Riverside, supra, 9 Cal.App.5th at pp. 962–963.) If the lead
agency’s notice of determination is defective, the 180-day limitations period
set forth in section 21167, subdivision (a) applies. (See International
Longshoremen’s & Warehousemen’s Union v. Board of Supervisors (1981)
116 Cal.App.3d 265, 273.)
2. Analysis
SBN asserts the SEIR analyzed the environmental impacts of student
enrollment increases, and the NOD was substantively defective because its
project description failed to mention that analysis. We disagree.
Undoubtedly, the project description contained in the NOD does not
mention the enrollment increase. The NOD states: “The campus is
proposing new development to accommodate additional academic space for
the [GSPP] and to provide housing for campus-related occupants. The
existing Upper Hearst parking structure would be demolished and replaced
23
with apartment housing stacked on a new parking structure. The residential
component would consist of up to 150 units in five stories over parking. A
new academic building is proposed adjacent to the new residential building.
The Project includes a minor amendment to the 2020 Long Range
Development Plan to expand the Housing Zone to accommodate the proposed
housing land use on the Project site.” However, the student enrollment
increase is not described in the SEIR as part of the project. Rather, the
project—as described by both the SEIR and the NOD—involves the
demolition of an existing parking structure and the construction of a new
parking structure, new housing, and a new academic building. The project is
not for the purpose of promoting future growth in the student body, but
rather to respond to a lack of resources for the current university community.
SBN has not identified any evidence in the record to suggest the
student population reassessment was a material aspect of the project. To the
contrary, its petition specifically critiques the SEIR for stating the increased
enrollment is not part of the project. While the SEIR considered past growth,
it did so to create a revised “campus headcount baseline” from which to
assess the project’s impact.
We are unaware of any provision in CEQA or the CEQA Guidelines
that require lead agencies to describe their baseline or EIR analyses in a
notice of determination. Rather, a notice of determination merely must state
the local agency’s determination of “whether the project will, or will not, have
a significant effect on the environment.” (§ 21152, subd. (a); accord Stockton
Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 514
[“The CEQA Guidelines do not demand that the [notice of exemption] itself
disclose and explain all the arguable environmental implications, or all the
grounds upon which such a challenge to the exemption determination might
24
be based.”].) Omitting this portion of the SEIR was not a substantial defect
in the NOD.
Finally, we note SBN has not demonstrated that this alleged error in
the NOD was prejudicial. SBN filed its initial petition within the 30-day
limitations period. Moreover, that petition specifically challenged the
adequacy of the SEIR’s evaluation of student enrollment increases. Thus,
any alleged error in the NOD project description did not interfere with
appellants’ ability to make an informed decision whether to pursue legal
action or its ability to bring a timely challenge. SBN’s failure to name and
serve appellants is unrelated to any error in the NOD’s project description.
Accordingly, we conclude the 30-day statute of limitations in
section 21167 applied to SBN’s petition. While SBN filed its original petition
within that time period, it failed to name appellants, and section 21167.6.5(a)
required SBN to name and serve the real parties in interest “not later than
20 business days following service of the petition or complaint on the public
agency.” (§ 21167.6.5, subd. (a).) SBN failed to do so, and the trial court
properly dismissed appellants without leave to amend.
III. DISPOSITION
The trial court’s order granting ACC’s and CHF’s demurrers without
leave to amend is affirmed. The parties shall bear their own costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(3).)
25
MARGULIES, ACTING P. J.
WE CONCUR:
BANKE, J.
SANCHEZ, J.
A160560, A160561
Save Berkeley’s Neighborhoods v. Regents of the University of California
26
Trial Court: Superior Court of Alameda County
Trial Judge: Brad Seligman, Judge
Counsel:
Law Offices of Thomas N. Lippe, APC and Thomas N. Lippe for Plaintiff and
Appellant Save Berkeley’s Neighborhoods.
No appearance for Defendants and Respondents.
Monchamp Meldrum, Amanda Monchamp and Rob Taboada for Real Party in
Interest and Appellant Collegiate Housing Foundation.
Morgan, Lewis & Bockius, Deborah E. Quick, Phillip Wiese and Ella Foley
Gannon for Real Parties in Interest and Appellants American Campus
Communities, American Campus Communities Services, Inc., and American
Campus Communities Operating Partnership, L.P.
27