Save Berkeley's Neighborhoods v. Regents of the University of Cal. ( 2020 )

Filed 6/25/20
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
SAVE BERKELEY’S
NEIGHBORHOODS,
Plaintiff and Appellant, A157551
v. (Alameda County
THE REGENTS OF THE Super. Ct. No. RG18-902751)
UNIVERSITY OF CALIFORNIA et
al.,
Defendants and Respondents.
This case requires us to consider public universities’ obligations to
analyze student enrollment increases under the California Environmental
Quality Act (Pub. Resources Code, § 21000 et seq.; CEQA).1 CEQA requires
public universities to mitigate the environmental impacts of their growth and
development. (City of Marina v. Board of Trustees of California State
University (2006) 39 Cal. 4th 341, 349 (City of Marina).) In this context,
growth includes student enrollment increases, which the Legislature has
acknowledged “may negatively affect the surrounding environment.” (Ed.
Code, § 67504, subd. (b)(1).) “Consistent with the requirements of [CEQA],”
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts C., D., and E. of
the Discussion.
1 Undesignated section references are to the Public Resources Code.
1
the Legislature intends that the University of California “sufficiently
mitigate significant off-campus impacts related to campus growth and
development.” (Ibid.)
The University of California is required periodically to develop a
comprehensive, long-range development plan (development plan) to guide
development for each campus, based on the academic goals and projected
enrollment for that campus. (Ed. Code, § 67504, subd. (a)(1).) Under section
21080.09, the development plan must be analyzed in an environmental
impact report (EIR) under CEQA. (§ 21080.09, subd. (b).) The EIR must also
consider “[e]nvironmental effects relating to changes in enrollment levels” for
the campus. (§ 21080.09, subd. (b).) An enrollment plan satisfies CEQA only
after the environmental effects of the plan have been analyzed and addressed
as CEQA requires. (§ 21080.09, subd. (d).)
At issue here is a 2005 EIR that analyzes a development plan and
projected enrollment increases for the U.C. Berkeley campus. Save
Berkeley’s Neighborhoods (Save Berkeley) alleges the Regents of the
University of California, the President of the University of California, Janet
Napolitano, and the Chancellor of the University of California, Berkeley,
Carol Christ (collectively, respondents ) violated CEQA when they increased
enrollment well beyond the growth projected in the 2005 EIR without
conducting further environmental review. Citing section 21080.09, the trial
court ruled that respondents satisfied CEQA by analyzing projected
enrollment in the 2005 development plan EIR and had no duty to analyze the
environmental impacts of subsequent enrollment increases. It therefore
sustained a demurrer to Save Berkeley’s petition for writ of mandate and
complaint for declaratory relief. In the published portion of this opinion, we
conclude the trial court misinterpreted section 21080.09. The statute does
2
not shield public universities from complying with CEQA when they make
discretionary decisions to increase enrollment levels. Accordingly, we reverse
the judgment.
BACKGROUND
A.
Save Berkeley is a California nonprofit formed to improve Berkeley’s
quality of life and protect its environment. The Regents of the University of
California (Regents) are the governing body of the University of California
(U.C.) and serve as the CEQA lead agency with responsibility for preparing
and certifying EIRs.
In 2005, the Regents adopted a development plan to guide the U.C.
Berkeley campus through 2020 and certified a “program EIR” for the
development plan (2005 EIR). (See Cal. Code Regs., tit. 14, § 15168, subd. (a)
[describing program EIRs].)2 The development plan and the 2005 EIR
projected that, by the year 2020, U.C. Berkeley’s student enrollment would
increase by 1,650 students (above the 2001-2002 average head count of
between 31,800 to 33,450 students). Both documents also projected U.C.
Berkeley would add 2,500 beds for students.
Save Berkeley alleges that, beginning in 2007, respondents made a
series of discretionary decisions to increase enrollment well beyond the
projection analyzed in the 2005 EIR. Save Berkeley alleges respondents have
continued to approve increases, without formal decisions, public notice, or
further environmental review, in every two-semester period since 2007. By
April 2018, U.C. Berkeley’s actual student enrollment had grown by a total of
approximately 8,300 students—a five-fold increase over the 2005 projection.
2 Allfurther references to “Guidelines” are to the CEQA Guidelines
(Cal. Code Regs., tit. 14, § 15000 et seq.).
3
B.
In 2018, Save Berkeley filed a petition for writ of mandate (Code of Civ.
Proc., § 1085) and a complaint for declaratory relief (id., § 1060) challenging
respondents’ decisions to increase enrollment without further CEQA review.
In its operative (third amended) petition, Save Berkeley alleges as
follows. When respondents prepared the 2005 EIR for the development plan,
the projected increase of 1,650 students was part of the “project description,”
as that term is used in CEQA.3 (See Guidelines, § 15124.) Respondents then
changed the project when they approved enrollment increases beyond this
amount. These enrollment increases caused, and continue to cause,
significant environmental impacts that were not analyzed in the 2005 EIR,
including increased use of off-campus housing by U.C. Berkeley students
(leading to increases in off-campus noise and trash), displacement of tenants
and a consequent increase in homelessness, more traffic, and increased
burdens on the City of Berkeley’s public safety services (police, fire, and
ambulance). According to Save Berkeley, CEQA requires respondents to
prepare an EIR to analyze these impacts and to identify and adopt mitigation
measures to reduce them.
Save Berkeley also alleges it learned of the decisions to increase
enrollment (above the 1,650 projection) on October 30, 2017 and that it could
not have discovered the decisions earlier through the exercise of reasonable
diligence. Save Berkeley asks the court to compel respondents to prepare and
3Save Berkeley’s petition sometimes refers to the development plan (or
the “2020 LRDP” [Long Range Development Plan]) when it apparently
means, more precisely, the CEQA project described in the 2005 EIR—for
example: “[t]he 2020 LRDP is a ‘program’ type of CEQA project.” At oral
argument, Save Berkeley’s counsel offered to correct the terminology in an
amended petition, but we find the allegations clear enough for pleading
purposes.
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certify an EIR. In its derivative request for declaratory relief, Save Berkeley
seeks a judicial declaration that respondents’ policy of increasing student
enrollment without environmental review violates CEQA.
C.
Respondents demurred, contending Save Berkeley cannot state a cause
of action for violation of CEQA because, under section 21080.09, the
enrollment increases are not a CEQA “project” or a project change requiring
subsequent environmental review. Respondents also argued Save Berkeley’s
claims were barred by the applicable statute of limitations or moot. In
support of the latter argument, respondents asked the trial court to judicially
notice their issuance of a “Notice of Preparation of a Draft Supplemental
[EIR]” for a project entitled “Upper Hearst Development for the Goldman
School of Public Policy [(Goldman School)] and Minor Amendment to the 2020
Long Range Development Plan,” which is dated August 15, 2018.
Respondents contended the Goldman School EIR would analyze not only a
new physical development but also the increase in current and foreseeable
campus population levels.
The trial court sustained the demurrer without leave to amend,
concluding Save Berkeley’s petition was barred by the statute of limitations
“[t]o the extent [it] challenges the adequacy of the 2005 EIR” and that
“ ‘informal, discretionary decisions’ to increase student enrollment beyond
that anticipated in the [development plan]” did not constitute “project
changes” necessitating CEQA review. The court reasoned: “The [development
plan], as statutorily defined, is not a student enrollment plan. Rather, it is ‘a
physical development and land use plan’ for a campus of public higher
education. (See § 21080.09, subd. (a)(2).) Environmental effects relating to
projected changes in enrollment levels are to be considered in the [EIR]
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prepared for the long range development plan ( . . . § 21080.09, subd. (b)), but
any discrepancies between the estimated changes in enrollment levels and
the actual enrollment levels in subsequent years are not themselves project
or program changes that require subsequent [CEQA] review. The Regents’
2005 analysis of the estimated projections of enrollment changes by 2020, as
set forth in the 2005 EIR and the [development plan], satisfied the Regents’
obligations to consider the environmental impact of those enrollment plans.
(See . . . § 21080.09(d).)” Separately, the court denied Save Berkeley’s motion
to compel discovery of documents relating to enrollment increases, concluding
the document requests were overbroad. The court dismissed the case.
DISCUSSION
Save Berkeley argues: (1) it stated a cause of action for violation of
CEQA by alleging respondents substantially increased enrollment without
analyzing the environmental impacts of those decisions; (2) the trial court’s
construction of section 21080.09 is inconsistent with the plain language of the
statute, its legislative history, and long standing CEQA principles; and (3)
the trial court erred by denying Save Berkeley’s motion to compel discovery.
In the published part of our opinion, we agree with Save Berkeley on the first
two points. In the unpublished portion, we conclude Save Berkeley has failed
to meet its burden to show error in the discovery ruling.
A.
1.
“In reviewing the sufficiency of a complaint against a general
demurrer, this court treats the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions, or conclusions of fact or
law.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal. App. 4th 39,
43.) We also consider matters that may be judicially noticed. “When a
6
demurrer is sustained, this court determines whether the complaint states
facts sufficient to constitute a cause of action.” (Ibid.) “Allegations must be
factual and specific, not vague or conclusionary.” (Id. at p. 44.) However, a
“complaint ordinarily is sufficient if it alleges ultimate rather than
evidentiary facts.” (Doe v. City of Los Angeles (2007) 42 Cal. 4th 531, 550.)
We review the trial court’s interpretation of CEQA de novo, keeping in
mind the Legislature’s requirement “ ‘to afford the fullest possible protection
to the environment within the reasonable scope of the statutory language.’ ”
(Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7
Cal. 5th 1171, 1184.) We also give “ ‘great weight’ ” to the Secretary for
Natural Resources’ interpretation of CEQA in the Guidelines. (Id., at p.
1184.)
2.
When a public agency proposes to undertake an activity potentially
within CEQA’s scope, CEQA prescribes a three-step process. (Guidelines, §
15002, subd. (b) and (k).) First, the agency must decide if the activity is a
“project” i.e., an activity that “may cause either a direct physical change in
the environment, or a reasonably foreseeable indirect physical change in the
environment.” (§ 21065.) Second, if it is a project, the agency must decide
whether the project is exempt from CEQA review. (See Pub. Resources Code,
§§ 21080, 21084, subd. (a); Guidelines, § 15300 et seq.) Third, if no
exemption applies and the project may have a significant environmental
effect, the agency must prepare an EIR before approving the project. (§§
21100, subd. (a), 21151, subd. (a), 21080, subd. (d), 21082.2, subd. (d); see
California Building Industry Assn. v. Bay Area Air Quality Management Dist.
(2015) 62 Cal. 4th 369, 384.) The agency has an affirmative duty to mitigate
or avoid the project’s significant environmental impacts where feasible. (Pub.
7
Resources Code, §§ 21002.1, 21061, 21081, subd. (a); Guidelines, § 15021,
subd. (a).)
The EIR is the “heart of CEQA.” (Guidelines, § 15003, subd. (a).) Its
purpose is “to provide public agencies and the public in general with detailed
information about the effect which a proposed project is likely to have on the
environment; to list ways in which the significant effects of such a project
might be minimized; and to indicate alternatives to such a project.” (§
21061.) The EIR thus works to “ ‘inform the public and its responsible
officials of the environmental consequences of their decisions before they are
made,’ thereby protecting ‘ “not only the environment but also informed self-
government.” ’ ” (Friends of College of San Mateo Gardens v. San Mateo
County Community College Dist. (2016) 1 Cal. 5th 937, 944-945 (San Mateo
Gardens).)
Once an EIR is certified and the limitations period has passed, the EIR
is conclusively presumed to comply with CEQA regardless of any flaws.
(§ 21167.2; Laurel Heights Improvement Assn. v. Regents of University of
California (1993) 6 Cal. 4th 1112, 1130.) Here, nobody disputes that the 2005
EIR cannot be challenged because the statute of limitations has expired. (§§
21167, 21167.2.) But Save Berkeley alleges that respondents changed the
original project and that the changes will have significant environmental
effects that were not examined in the 2005 EIR. This requires us to consider
two additional CEQA concepts concerning an agency’s duty to conduct
additional environmental review after it has certified an EIR.
The first concept is tiering. The 2005 EIR is a program EIR, which is a
type of EIR that agencies often use to examine a broad program or plan that
will be followed by more narrow, related projects, which can be analyzed in
more focused CEQA documents that “tier” from the program EIR. (See
8
generally, Guidelines §§ 15152 [tiering], 15168 [program EIRs].) “Tiering is
proper ‘when it helps a public agency to focus upon the issues ripe for
decision at each level of environmental review and in order to exclude
duplicative analysis of environmental effects examined in previous
environmental impact reports.’ ” (In re Bay-Delta Etc. (2008) 43 Cal. 4th
1143, 1170.) A tiered EIR is required for a later project consistent with the
larger program if the project may cause significant environmental effects that
were not examined in the prior EIR. (Sierra Club v. County of Sonoma (1992)
6 Cal. App. 4th 1307, 1319; § 21094, subds. (a)-(c).)
The second concept concerns situations where the agency proposes
changing the original project. If the changes would require major revisions to
the prior EIR, the agency must prepare either a subsequent or supplemental
EIR, depending on the magnitude of the necessary revisions. (Pub. Resources
Code, § 21166; Guidelines, §§ 15162, subd. (a)(1), 15163, subd. (a); San Mateo
Gardens, supra, 1 Cal.5th at p. 943.) This standard is triggered by, among
other things, changes to the project that would cause new or increased
significant environmental effects. (Pub. Resources Code, § 21166; Guidelines,
§ 15162, subd. (a)(1).) When section 21166 applies, the agency must prepare
a subsequent or supplemental EIR rather than a tiered EIR. (Sierra Club v.
County of Sonoma, supra, 6 Cal.App.4th at pp. 1319-1320; § 21094, subd.
(b)(3).)
The question before us is whether the alleged changes to the 2005
project—i.e., the decisions to increase enrollment beginning in 2007—
required some form of environmental review under CEQA.
3.
9
Setting aside section 21080.09 for the moment, we have no trouble
concluding Save Berkeley has stated a valid cause of action.
Save Berkeley alleges that the “project” (§ 21065) analyzed in the 2005
EIR included a plan to stabilize enrollment and projected a modest
enrollment increase of 1,650 students between 2005 and 2020. Respondents
later made several discretionary decisions to change the project by increasing
enrollment beyond 1,650 students. The enrollment increases have caused,
and continue to cause, significant environmental impacts that were not
analyzed in the 2005 EIR. Respondents have failed to analyze the new
impacts in a CEQA document and have failed to adopt mitigation measures
to reduce or avoid them.
Accepting these allegations as true, as we must, Save Berkeley has
adequately pled that respondents made substantial changes to the original
project that trigger the need for a subsequent or supplemental EIR. (Pub.
Resources Code, § 21166, subd. (a); Guidelines, §§ 15162, subd. (a) and 15153,
subd. (a); see American Canyon Community United for Responsible Growth v.
City of American Canyon (2006)145 Cal.App.4th 1062, 1077 [“Courts have
acknowledged that an increase in the size of a development project can be a
substantial change triggering subsequent environmental review”].) This is a
routine application of basic CEQA requirements.
B.
Respondents’ main argument is that section 21080.09 effectively
exempts them from analyzing the changed increases in enrollment unless or
until a physical development project is approved. We disagree.
1.
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Section 21080.09 states:
(a) For purposes of this section, the following definitions apply:
[¶]
(2) “Long range development plan” means a physical
development and land use plan to meet academic and
institutional objectives for a particular campus or medical center
of public higher education.
(b) The selection of a location for a particular campus and the approval
of a long range development plan are subject to [CEQA] and require
preparation of an environmental impact report. Environmental
effects relating to changes in enrollment levels shall be considered
for each campus or medical center of public higher education in the
environmental impact report prepared for the long range
development plan for the campus or medical center.
(c) The approval of a project on a particular campus or medical center
of public higher education is subject to [CEQA] and may be
addressed, subject to other provisions of [CEQA], in a tiered
environmental analysis based upon a long range development plan
environmental impact report.
(d) Compliance with this section satisfies the obligations of public
higher education pursuant to [CEQA] to consider the
environmental impact of academic and enrollment plans as they
affect campuses or medical centers, provided that any such plans
shall become effective . . . only after the environmental effects of
those plans have been analyzed as required by [CEQA] in a long
range development plan environmental impact report or tiered
analysis based upon that environmental impact report . . ., and
addressed as required by [CEQA].
Respondents’ rather confusing interpretation of this statute hinges
largely on the definition of “long range development plan” in section
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21080.09, subdivision (a)(2). Respondents point out that the definition omits
the word “enrollment.” Construed together with section 21080.09,
subdivision (b), which directs universities to “prepar[e]” an EIR for a
development plan and to “consider” enrollment changes in the same EIR,
respondents argue that the Legislature limited the EIR project to the
development plan and excluded enrollment changes from the project . Tacitly
acknowledging CEQA’s broad definition of “project” under section 21065
could include decisions to increase enrollment, respondents claim that section
21080.09 trumps section 21065 because it is more specific. Further, pointing
to subdivisions (c) and (d), respondents claim that the statute directs them to
consider subsequent enrollment increases only if they are otherwise
preparing a tiered or subsequent EIR for development plans or related
physical development projects. Although they avoid the term exemption,
respondents argue in effect that, absent a development plan or a “physical
development project,” the statute exempts them from analyzing enrollment
decisions in any kind of EIR, including a stand-alone, tiered, subsequent, or
supplemental EIR.
The statute does nothing of the kind. First, nowhere does it purport to
exclude enrollment increases from the broad definition of a “project” under
section 21065. In fact, the traditional definition of a CEQA project
harmonizes easily with section 21080.09. (See Even Zohar Construction &
Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal. 4th 830, 838
[courts must harmonize statues unless they are irreconcilable].) Under
CEQA, the project determines which impacts must be analyzed. (See
Guidelines, § 15126.2, subd. (a) [“An EIR shall identify and focus on the
significant effects of the proposed project on the environment”].) Public
agencies must construe the project broadly to capture the whole of the action
12
and its environmental impacts. (Guidelines, § 15378; Bozung v. Local Agency
Formation Com. (1975) 13 Cal. 3d 263, 283-284, superseded by statute on
another ground as stated in City of Redding v. Shasta County Local Agency
Formation Com. (1989) 209 Cal. App. 3d 1169, 1177; Nelson v. County of Kern
(2010) 190 Cal. App. 4th 252, 271-272.) The Legislature has recognized that
both enrollment levels and physical development are related features of
campus growth that must be mitigated under CEQA. (See Ed. Code, § 67504,
subd. (a)(1) [campus development plans are based, in part, on projected
enrollment levels], subd. (b)(1) [legislative finding that “the expansion of
campus enrollment and facilities may negatively affect the surrounding
environment” and must be mitigated “[c]onsistent with the requirements of”
CEQA].) Thus, when a public university prepares an EIR for a development
plan, section 21080.09 requires universities to expand the analysis to include
a related feature of campus growth, future enrollment projections, which is
entirely consistent with the traditional, broad definition of a CEQA project.
(§ 21080.09, subd. (b).)
Second, the statute does not say that enrollment changes need only be
analyzed in an EIR for a development plan or physical development. When a
university prepares an EIR for a development plan, section 21080.09,
subdivision (b) requires the university to analyze “[e]nvironmental effects
relating to changes in enrollment levels” in that EIR. It does not address
subsequent enrollment decisions, much less exempt them from CEQA review.
(See Citizens for a Responsible Caltrans Decision v. Department of
Transportation (2020) 46 Cal. App. 5th 1103, 1125 [courts recognize only
express CEQA exemptions].) Similarly, section 21080.09, subdivision (d),
says that “[c]ompliance with this section” satisfies CEQA with respect to
“enrollment plans . . . only after the environmental effects of those plans”
13
have been both analyzed and addressed under CEQA together with a
development plan. It does not say that subsequent changes to enrollment
plans—with new or increased environmental effects that have not been
analyzed and addressed—are exempt from CEQA. (§ 21080.09, subd. (d).)
This is made obvious by section 21080.09, subdivision (c), which
potentially addresses enrollment decisions made after the approval of a
development plan EIR. That section states that the approval of a “project” on
a campus is “subject to [CEQA]” and “may be addressed, subject to other
provisions of [CEQA],” in an EIR that tiers from a development plan EIR.
This, too, easily harmonizes with traditional CEQA rules. As explained
above, a public university’s decision to increase enrollment levels can be a
“project” subject to CEQA whether or not it is related to a development plan.
(§ 21065.) When tiering is appropriate, the agency has the option of
analyzing that project in a tiered EIR. (See Guidelines, § 15152; § 21080.09,
subd. (c).) Given Save Berkeley’s allegations of a project change in this case,
however, “other provisions” of CEQA (§ 21080.09, subd. (c)) may require a
subsequent or supplemental EIR instead of a tiered EIR. (See § 21094, subd.
(b)(3) [when section 21166 applies, the agency must prepare a subsequent or
supplemental EIR rather than a tiered EIR]; Natural Resources Defense
Council, Inc. v. City of Los Angeles (2002) 103 Cal. App. 4th 268, 282
[“Sometimes a ‘tiered’ EIR is required (§ 21094), sometimes a ‘subsequent or
supplemental’ EIR is required (§ 21166), and sometimes a ‘supplement’ to an
EIR is required”].) In short, subsection (c) confirms that public universities
must comply with CEQA before they approve actions—including, potentially,
decisions to increase enrollment levels—that qualify as a project under the
traditional definition.
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Third, and finally, our construction of section 21080.09 is consistent
with CEQA’s other provisions and its purpose. (Union of Medical Marijuana
Patients, Inc. v. City of San Diego, supra, 7 Cal.5th at pp. 1190-1191 [CEQA
provisions must be interpreted in the context of the entire statute].) This
case illustrates why. In 2005, respondents analyzed the impacts of
increasing enrollment at the U.C. Berkeley campus by a modest amount
(1,650 students) in an EIR developed in a public process. Starting just two
years later, respondents allegedly made a series of decisions to increase
enrollment fivefold with no public notice, no CEQA analysis, and no
mitigation of environmental impacts. This undercuts the fundamental
premise of CEQA to ensure informed decisionmaking and meaningful public
participation by disclosing the environmental impacts of decisions before the
decisions are made (Laurel Heights Improvement Assn. v. Regents of
University of California (1988) 47 Cal. 3d 376, 395) as well as CEQA’s
requirement for agencies to mitigate significant environmental effects when
feasible. (Pub. Resources Code, §§ 21002.1, 21061, 21081, subd. (a);
Guidelines, § 15021, subd. (a).) Our interpretation of section 21080.09 honors
the Legislature’s intention that public universities comply with CEQA and
mitigate the impacts of their growth and development. (Ed. Code, § 67504,
subd. (b)(1); Pub. Resources Code § 21080.09, subds. (b)-(d); City of Marina,
supra, 39 Cal.4th at p. 349.)
2.
For all the above reasons, we agree with Save Berkeley that the plain
language of section 21080.09 does not exempt respondents’ decisions to
increase enrollment at the Berkeley campus from CEQA review. But even if
we assume some ambiguity exists in the statutory language, the legislative
15
history leaves no doubt.4 (See Medical Marijuana Patients, supra, 7 Cal.5th
at p. 1184.)
The California Natural Resources Agency’s Enrolled Bill Report
explains that the University of California supported enactment of section
21080.09 (Stats. 1989, ch. 659, § 1) and that the intent of the legislation was
“solely to avoid a potential argument that changes in student enrollment
levels, and any environmental impacts therefrom, must be addressed on a
statewide or system-wide basis, rather than at each campus . . . individually.”
(Cal. Natural Resources Agency, Enrolled Bill Rep. on Sen. Bill No. 896
(1989-1990 Reg. Sess.) prepared for Governor Deukmejian (Sep. 14, 1989), p.
2.) The Enrolled Bill Report also states, “The University . . . does not seek to
be excused from the ordinary requirements of CEQA.” (Ibid., italics added,
underline omitted.) This same modest intent is confirmed in numerous
committee analyses. (See, e.g., Sen. Com. on Governmental Organization,
Rep. on Sen. Bill No. 896 (1989-1990 Reg. Sess.) as amended April 18, 1989,
pp. 1-2; Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No.
896 (1989-1990 Reg. Sess.) as amended May 30, 1989, pp. 1-2; Sen. Rules
Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 896 (1989-1990 Reg.
4 Save Berkeley requested judicial notice of section 21080.09’s
legislative history. We grant the request for judicial notice of the legislative
history, over respondents’ opposition. (See Evid. Code, § 452, subd. (c); Elsner
v. Uveges (2004) 34 Cal. 4th 915, 934, fn. 19 [“we have routinely found
enrolled bill reports, prepared by a responsible agency contemporaneous with
passage and before signing, instructive on matters of legislative intent”].)
Save Berkeley also asks us to take judicial notice of certain responses to
public comments from the 2005 EIR. Save Berkeley argues the comments are
relevant to show respondents have previously taken a position contrary to
that taken in the instant litigation. We deny the latter request for judicial
notice because Save Berkeley fails to show relevance. (Doe v. City of Los
Angeles, supra, 42 Cal.4th at p. 544, fn. 4.)
16
Sess.) as amended Aug. 21, 1989, pp. 1-2.) The statute’s language reflects
this legislative intent, repeatedly framing the universities’ obligations in
terms of a “campus” (§ 21080.09, subds. (b), (c), (d).)
The legislative history is completely at odds with respondents’
interpretation.
3.
We reject respondents’ arguments that applying ordinary CEQA
principles to enrollment increases would require annual CEQA review of
enrollment levels, would turn enrollment projections into an enrollment cap,
and would interfere with the Regents’ authority over public higher education.
First, respondents have options to avoid annual CEQA review. For
example, they could analyze a range of enrollment levels in a program EIR,
based on reasonable estimates for high and low scenarios, giving them CEQA
coverage for year-to-year variability and for increases within the range.
Agencies routinely use program EIRs to avoid preparing multiple EIRs for a
series of actions. (See generally, Kostka & Zischke, Practice Under the
California Environmental Quality Act (CEB 2019), §§ 10.13-10.21.)
Second, our decision in no way caps enrollment at the University of
California or obstructs the Regents’ authority. We are merely requiring the
Regents to comply with CEQA. “[W]hile education may be [the University of
California’s] core function, to avoid or mitigate the environmental effects of
its projects is also one of [its] functions.” (City of Marina, supra, 39 Cal.4th
at p. 360; Ed. Code, § 67504, subd. (b)(1).)
The trial court erred in sustaining the demurrer without leave to
amend as to both claims for relief (mandamus and declaratory relief).
C.
17
As an alternative basis for affirming the judgment, respondents argue
that the petition, initially filed on April 27, 2018, is untimely. They contend
Save Berkeley’s challenge is barred because more than 180 days have passed
since the “commencement of the project” (§ 21167, subd. (a))—the start of the
2007 academic year. We disagree.
For a demurrer based on the statute of limitations to be sustained, the
untimeliness of the lawsuit must clearly and affirmatively appear on the face
of the complaint and matters judicially noticed. (Committee for Green
Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal. 4th 32, 42.)
When the cause of action might be, but is not necessarily, time-barred, the
demurrer must be overruled. (Ibid.)
Respondents are correct that Save Berkeley appears to challenge a
series of decisions made in 2007 and thereafter. However, at the demurrer
stage, we cannot resolve the factual issues underlying respondents’ statute of
limitations defense. Save Berkeley has alleged it lacked actual or
constructive notice of the enrollment increases before October 30, 2017, an
allegation we must accept as true on demurrer. Accordingly, Save Berkeley
has alleged sufficient facts to survive demurrer. (See Concerned Citizens of
Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal. 3d 929, 939,
italics added [“if the agency makes substantial changes in a project after the
filing of the EIR and fails to file a later EIR in violation of section 21166,
subdivision (a), an action challenging the agency’s noncompliance with CEQA
may be filed within 180 days of the time the plaintiff knew or reasonably
should have known that the project under way differs substantially from the
one described in the EIR”].)
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D.
We also reject respondents’ arguments that Save Berkeley’s petition is
moot. “[A] case becomes moot when a court ruling can have no practical
effect or cannot provide the parties with effective relief.” (Lincoln Place
Tenants Assn. v. City of Los Angeles (2007) 155 Cal. App. 4th 425, 454.)
Respondents’ arguments are spurious.
First, respondents claim that they reviewed the enrollment increases
recently in the Goldman School EIR, and thus they have already done
“exactly what [Save Berkeley] asks.” The Goldman School EIR is not before
us. Respondents cite nothing in the record to demonstrate that it properly
analyzed the increases. They forfeit the argument. (Friends of the Eel River
v. Sonoma County Water Agency (2003) 108 Cal. App. 4th 859, 877-878.)
Second, respondents claim that they cannot analyze or mitigate the
enrollment levels of past classes because those classes have “long since
departed U.C. Berkeley” and “no longer exist.” But Save Berkeley is asking
respondents to mitigate the past and ongoing impacts of their decisions to
increase enrollment levels. Respondents do not suggest that enrollment has
fallen to the levels projected in 2005, nor do they explain why they can no
longer mitigate the impacts of the higher levels. (See Save Our Schools v.
Barstow Unified School Dist. Bd. of Education (2015) 240 Cal. App. 4th 128,
145 [decision to close schools did not moot CEQA challenge because school
district could reverse or mitigate the decision].)
We need not reach the parties’ additional CEQA arguments.5
5 We deny respondents’ request for judicial notice of Save Berkeley’s
petition for writ of mandate challenging the Goldman School EIR. (See
Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1135, fn. 1 [only relevant evidence
admissible by judicial notice].)
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E.
Finally, Save Berkeley argues the trial court abused its discretion in
denying its motion to compel discovery. Save Berkeley has not met its
burden, as the appellant, to show error.
1.
Save Berkeley elected to prepare the record of proceedings, pursuant to
section 21167.6, subdivision (b)(2). It served a request for production of
documents on respondents. In particular, in requests one through four, Save
Berkeley requested all documents relating to increased enrollment prepared
in connection with the preparation and adoption of U.C. Berkeley’s 2020
development plan (in 2005) and, in requests five and six, all documents
referring or relating to increases in enrollment that were prepared after
adoption of the 2020 development plan or certification of the 2005 EIR.
Respondents objected on several grounds, including that the requests were
overbroad, and did not produce any documents. Save Berkeley filed a motion
to compel production of documents responsive to its first set of document
requests. The trial court denied Save Berkeley’s motion to compel,
concluding the requests for production were overbroad.
We also deny amicus curiae City of Berkeley’s request for judicial
notice. (See Professional Engineers in California Government v. Kempton
(2007) 40 Cal. 4th 1016, 1047, fn. 12 [“ ‘an amicus curiae accepts the case as
he finds it and may not “launch out upon a juridical expedition of its own
unrelated to the actual appellate record” ’ ”]; Ketchum v. Moses, supra, 24
Cal.4th at p. 1135, fn. 1.)
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2.
Save Berkeley concedes it may no longer challenge the 2005 EIR.
Nonetheless, it makes no attempt to explain why its document requests one
through four, which seek documents prepared in or before 2005, are not
overbroad. Save Berkeley also does not justify the breadth of requests five
and six as currently written. Despite alleging respondents made informal
decisions to increase enrollment starting in 2007, requests five and six seek
all documents relating to enrollment increases prepared after adoption of the
2020 development plan (in 2005) or certification of the 2005 EIR. Further,
Save Berkeley has not limited the scope of these requests in any other way—
such as by requesting documents prepared in connection with any particular
decision or document.
An order challenged on appeal is presumed to be correct, and it is the
appellant’s burden to demonstrate error. (Howard v. Thrifty Drug &
Discount Stores (1995) 10 Cal. 4th 424, 443.) With respect to the discovery
order, Save Berkeley has not done so.
DISPOSITION
The judgment is reversed. The action is remanded with directions that
the trial court vacate its order sustaining the demurrer and issue a new order
overruling the demurrer. Save Berkeley is awarded its costs on appeal.
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_______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
NEEDHAM, J.
A157551
22
Alameda County Superior Court, Case No. RG18902751, Hon. Frank Roesch
and Hon. Noël Wise
Law Offices of Thomas N. Lippe, APC, Thomas N. Lippe, for Plaintiff and
Appellant.
The University of California Office of General Counsel, Charles F. Robinson
and Alison Krumbein; Meyers, Nave, Riback, Silver & Wilson, Amrit S.
Kulkarni, Timothy D. Cremin and Edward Grutzmacher, for Defendants and
Respondents.
23