Calhouns Can(n)ons

Tentative Ruling on PZLDF Case

The PZLDF case will be discussed today at 9 a..m. (not clear whether it’s at the Vets Hall or Downtown at this point.) It appears that , for now, the case can proceed on the CEQA complaint, or, on the lack of CEQA. What further rulings or unrulings Judge LaBarbera will make this morning remains to be seen.

As for the problem with the RWQCB's "Official Administrative Record," I say good luck to anybody trying to untagle that mess. The bungled ACL and CDO hearings had so many starts and stops and ins and outs and yes and nos and we dont' knows and incorporations by reference, yes/no, wait, that part but not that part, is it in? out?, regarding what was and wasn't part of the official record that the whole bungled mess resembles a Gordian Knot. Let's hope, at least, that a whole lot of stuff that was missing from the "Official Record," but was supposed to be in, at least gets put back in.

CV070472/ Prohibition Zone et al., v Regional Water Quality Control Board:
RE: Demurrer/Motion to Strike/Motion to Augment Administrative Record/Motion for CD #1040
TENTATIVE RULING DEMURRER
The Regional Water Quality Control Board demurs to the Amendment to the Second Amended Petition for Writ of Mandamus.
The Amendment was prepared as a result of the court’s grant of leave to amend the Second Cause of Action seeking traditional mandate pursuant to CCP §1085. The scope of leave was limited to the second cause of action and the petitioner was required to succinctly allege a mandatory duty on the part of the Board.
Respondent’s contention that traditional mandate is not available as a remedy is somewhat misplaced. Water Code §13330 provides that “[a]ny party aggrieved by a final decision or order of a regional board for which the state board denies review may obtain review of the decision or order of the regional board in the superior court ( id., § 13330, subd. (b), italics added), and “[e]xcept as otherwise provided herein, Section 1094.5 of the Code of Civil Procedure shall govern proceedings for which petitions are filed pursuant to this section” ( id., § 13330, subd. (d)). Given the language italicized above, Water Code section 13330 necessarily applies to an administrative appeal of a quasi-judicial action under Code of Civil Procedure section 1094.5. See City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1409
“Acts of an administrative agency that are quasi-legislative in nature, e.g., establishment of regulations to carry out a statutory policy or direction, are not reviewable by administrative mandamus.” (8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 268, pp. 1067-1068.) Rather, review of a quasi-legislative action is limited to traditional mandamus. ( Id. at p. 1068.) City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1408
If a party is aggrieved by a quasi-judicial decision made by a Regional Board for which the state board denies review, CCP §1094.5 governs the proceedings. However, there are narrow circumstances where the action of a board can be the subject of a petition for traditional writ of mandate. Those circumstances require a mandatory duty and, in the example set forth in Arcadia, a quasi-legislative act that is not reviewable by the state board.
Although Petitioners were granted leave to allege specific mandatory duties of the regional board, the Amendment of the Second Cause of Action fails to allege a viable cause of action for review pursuant to CCP §1085.The Amendment: The paragraphs of the amendment attempt to list a number of purported mandatory duties on the part of the Board.
¶86 alleges that the issuance of Notices of Violation contained threats that constitute illegal electioneering in violation of Elections Code §§18540 (a) and 18501.
Every person who makes use of or threatens to make use of any force, violence, or tactic of coercion or intimidation, to induce or compel any other person to vote or refrain from voting at any election or to vote or refrain from voting for any particular person or measure at any election, or because any person voted or refrained from voting at any election or voted or refrained from voting for any particular person or measure at any election is guilty of a felony punishable by imprisonment in the state prison for 16 months or two or three years. Elections Code §18540(a)
Any public official who knowingly violates any of the provisions of this chapter, and thereby aids in any way the illegal casting or attempting to cast a vote, or who connives to nullify any of the provisions of this chapter in order that fraud may be perpetrated, shall forever be disqualified from holding office in this state and upon conviction shall be sentenced to a state prison for 16 months or two or three years. Elections Code §18501
These statutes prohibit coercion or intimidation in the election process. They also provide criminal remedies for violations of the Elections Code. Here, the offending provisions of the Notices of Violation state, in part, that if the wastewater plant does not proceed or “fails to meet certain milestones (including a benefit assessment)” then the septic system discharge would have to be eliminated by 2011.
The prayer of the petition seeks to invalidate these Notices of Violation. According to the Regional Board, the Notices of Violation have no legal effect. If this is correct, there is no necessity to invalidate them. Moreover, petitioners do not seek to invalidate the election approving the benefits assessment nor is there any criminal sanction being sought.
¶87 seeks judicial review of so called “CAO’s”(clean up and abatement orders). Petitioners contend that the CAO’s are presented under the guise of “settlement agreements.” No basis for CCP §1085 review of settlement agreements is alleged, particularly where none of the petitioners are parties to the agreements. Moreover, no basis for relief in relation to the potential of future issuance of CAO’s is alleged. According to the complaint, Petitioners Payne and DerGaribedian were potential parties to a CAO. However, they refused to sign the proffered agreements. No other allegations establish that any petitioner is a party to a settlement agreement.
¶¶89 through 100 allege various improprieties of the Regional Board in failing to observe proper administrative hearing procedures in issuing the “cease and desist” orders that are subject of the review.
For example, ¶90 states that Water Code §185 requires the Regional Board to adopt rules to conduct its affairs in conformity, as nearly as practicable, with the provisions of Chapter 4.5. In an effort to challenge 23 CCR §648 (regulation restricting application of the formal hearing process under the APA) petitioners allege that Water Code §185 supersedes the regulation, apparently rendering it invalid. A review of 23 CCR 648 reveals that it was promulgated pursuant to the authority of Water Code §185.
Most important is the fact that all of the instances of alleged impropriety relate to the Board’s quasi-judicial acts in issuing the Cease and Desist orders. Any available review is made pursuant to the requirements of Water Code §13330 and CCP §1094.5.
¶¶101 – 103 allege that the Board had a ministerial duty to comply with CEQA. ¶101 alleges that the Board improperly claimed categorical exceptions from CEQA review and failed to address the cumulative impacts of separate cessation and cleanup orders without environmental review. The complaint does not clearly allege whether this action was quasi-legislative or quasi-judicial. In any event, if any review is available, it is made pursuant to Public Resources Code §21168 and §21168.5.
The scope of judicial review for proceedings to attack an agency's decision under CEQA is set forth in Public Resources Code sections 21168 and 21168.5. Section 21168 provides that where the action to attack arose as a result of a proceeding in which a hearing is required by law and the attack is on the grounds of noncompliance with CEQA, the action shall proceed in accordance with section 1094.5 of the Code of Civil Procedure but the court is only to determine whether the decision is supported by substantial evidence. Section 21168.5 provides that in all other actions, “the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” Newberry Springs Water Assn. v. County of San Bernardino (1984) 150 Cal.App.3d 740, 747-748 See also California Farm Bureau Federation v. California Wildlife Conservation (2006) 143 Cal.App.4th 173, 178
A petition for review pursuant to Public Resources Code §21168 is the equivalent to a review pursuant to CCP §1094.5. A petition for review pursuant to Public Resources Code §21168.5 is the equivalent to a review pursuant to CCP §1085. See Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-567
If petitioners seek review of the Board’s CEQA compliance, they must do so pursuant to the procedures set forth in Public Resources Code sections 21168 and 21168.5. Here the crux of the claim is that the Board improperly determined that the CDO’s were exempt from CEQA. The question then becomes whether the filing is timely. See Public Resources Code §21167(d).
¶105 alleges a mandatory duty to provide “assistance”. This does not state a cause of action pursuant to CCP §1085.
Water Code §13291.5 does not impose a mandatory duty on the regional board. Water Code §13301.1 requires the Regional Board to provide available current information on successful and economical water quality programs and information and assistance in applying for federal and state funds necessary to comply with the cease and desist order. The alleged failure of the Regional Board to comply with Water Code §13301.1 has nothing to do with the invalidity of the issuance of the CDO.
Most important is that there is no remedy in the prayer sought for the violation of this alleged mandatory duty.
¶¶106 through 110 provide no citations to any specific mandatory duties on the part of the Regional Board that are reviewable pursuant to CCP §1085. Rather they consist of general conclusory allegations concerning a ministerial duty not to impinge on property rights, civil rights and liberties of the petitioners.
¶111 Petitioners seek CCP §1085 review of 23 CCR §§ 2050 and 2050.5. Those regulations require petitioners to seek review by the State Board when the Regional Board fails to act. The complaint then alleges that, although petitioners were required to seek review by the State Board, since the State Board and Regional Board failed to observe the separation of powers, the court should review actions that make this requirement an exercise in futility. The allegations simply do not make out a cause of action of any kind, particularly since the State Board is not a party to this petition.
¶113 is a summary of all of the alleged mandatory duties of the Regional Board that were alleged in the body of the petition.
With the possible exception of the Board’s CEQA compliance, petitioners have failed to allege the existence of a mandatory duty that is subject to review pursuant to CCP §1085.
Accordingly, the demurrer to the Amendment to the Second Cause of Action is sustained without leave to amend. However, petitioners shall have leave to amend for the limited and specific purpose of alleging a cause of action for review the Board’s CEQA compliance with respect to the CDO’s.
Motion to Strike:The Regional Board’s motion to strike contains categories of allegations sought to be stricken.
Item 1: The motion to strike allegations that constitute improper facial challenges to various regulations is denied. The allegations appear in the First Cause of Action challenging the validity of the Cease and Desist Orders made by the Board. The cause of action attempts to invalidate the Board’s orders related to the Petitioners. The challenged orders are dependent upon valid regulations, Petitioners are making an “as applied” to invalidate the regulations.
Item 2: The failure to exhaust administrative remedies may well preclude the petitioners from raising many of the arguments they now seek to make. However, the motion to strike does not indicate where, (1) on the face of the complaint, (2) the exhibits attached to the complaint or (3) in matters upon which judicial notice can be taken that the petitioners failed to raise certain issues before the Board. The Motion to Strike those allegations is denied.
Item 3: The court recognizes that a controversy over the validity of a resolution (such as Resolution NO. R3 -2008-005) is not ripe until the resolution is effective. However, the motion to strike does not indicate where, (1) on the face of the complaint, (2) the exhibits attached to the complaint or (3) in matters upon which judicial notice can be taken that the petitioners that Resolution NO. R3 -2008-005 is not approved. Therefore, the motion to strike is denied.
Item 4: Although petitioners have standing to challenge the validity of settlement agreements they have entered into, they no standing to challenge the validity of settlements entered into by parties who are strangers to this lawsuit. However, the court notes that some of the allegations that are listed are somewhat unrelated to a challenge of the validity of settlement agreements. For example, page 2:27-3:24 of the amendment does is not entirely focused on challenging settlement agreements. Similarly page 2:9-20 does not entirely focus on challenging the settlement agreements. The court is not inclined to check each citation to make sure that it alleges a challenge to a settlement agreement. Rather than grant or deny the motion, the court observes that, at this juncture, the petitioners have not established standing to challenge the validity of settlement agreements where the petitioners are not a party.
Item 5: Government Code §25825.5 has no impact on the Regional Board. The motion is granted as to item 5.
Item 6: There is no prayer for relief based upon an unconstitutional taking. Moreover there is no cause of action alleging an unlawful taking. The motion is granted. In the event that petitioners seek such a claim, a motion for leave to amend would have to be filed.
Item 7: The demurrer disposed of these allegations related to Water Code §13301.1 and §13291.5. To the extent that the allegation appears elsewhere, they are stricken.
Item 8: The motion to strike the allegations concerning emotional distress and anxiety and damages is granted.
Motion to Augment Administrative Record: Petitioners seek review of Cease and Desist Orders that were issued by the Regional Board. Petitioners’ motion seeks to add a number of documents to the Administrative Record and objects to some additional records as well.
The general rule, i.e., that no evidence other than the administrative record may be introduced at the hearing on a petition for writ of administrative mandamus, applies whether the case is reviewed by the court under the independent judgment test. The rule also applies in cases in which the reviewing court is deciding legal issues, such as whether there was a fair trial as well as those cases in which the court is making factual determinations (i.e., determining whether the evidence supports the findings). The judge, sitting without a jury (CCP §1094.5(a)), decides the case on the basis of the record, which may be augmented only within the strict limits of CCP §1094.5(e). 1 California Administrative Mandamus (CEB 3rd Ed.) §4:1 at page 110 (Internal Citations omitted)
If a party believes that a matter is improperly included in the Administrative Record, the remedy is either an objection or a motion to strike. Similarly a party may make a motion to include an item that was a part of the administrative record and that has been omitted. Finally if a party seeks to add items that are not part of the record of proceedings, they must make a motion to augment in compliance with CCP §1094.5(e).
Code of Civil Procedure §1094.5(e) expressly limits judicial review to the evidence in the administrative record except when (1) the evidence could not with due diligence have been produced during the administrative proceedings or (2) the administrative body improperly excluded the evidence. Western States Petroleum Ass'n v Superior Court (1995) 9 C4th 559, 578, 38 CR2d 139; City of Fairfield v Superior Court (1975) 14 C3d 768, 771, 122 CR 543. These rules apply in cases involving review under the substantial evidence test and review involving fundamental vested rights under the independent judgment test. Green v Board of Dental Exam'rs (1996) 47 CA4th 786, 55 CR2d 140. To have the court consider evidence outside the administrative record, either (1) a party must establish that evidence could not with due diligence have been discovered and produced at the administrative hearing or (2) the record itself must show that the evidence was offered but was rejected. Simply not having obtained or discovered the evidence until after the close of the administrative proceedings will not be sufficient; good cause must be shown for not having obtained or discovered the evidence before the close of the administrative hearing. 1 California Administrative Mandamus (CEB 3rd Ed.) §4:1 at page 110
In the absence of a proper preliminary foundation showing that one of the exceptions noted in section 1094.5, subdivision (e) applies, it is error for the court to permit the record to be augmented. Determination of the question of whether one of the exceptions applies is within the discretion of the trial court, and the exercise of that discretion will not be disturbed unless it is manifestly abused. Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101
Petitioners do not establish the elements necessary to augment the record with extra-record evidence. Moreover, the remedy available for a successful motion to augment is often a remand to the agency for consideration of the extra-record evidence. See 1 California Administrative Mandamus (CEB 3rd Ed.) §4:12 D at page 128
The motion does not clearly identify whether it seeks to include documents omitted from the record or to add documents that were not in the record or some combination of the two. If the motion seeks to correct the record to include documents considered by Board that are now omitted, those documents should be included in the Administrative Record.
However, given the lack of definition of what should be included in the administrative record and the lack of a showing concerning whether evidence was considered by the Board or not, it is difficult to assess whether the cited documents were omitted from the record.
For example, Petitioners cite the following categories of documents. The problem is that there is a lack of clarity concerning whether the materials were considered by the Board.
1. Central Coast Water Quality Basin Plan: If the plan was considered as part of the administrative decision, it should be included in the Administrative Record. 2. Respondents contend that item 2 is included in the Administrative Record. 3. Item 3 is Page 84 of the Draft San Luis Obispo Airport EIR. If the document was considered as part of the administrative decision, it should be included in the Administrative Record.4. Petitioners argument does not indicate why the cited Los Osos water quality impacts should be a part of the Administrative Record. 5. Petitioner’s motion is unclear as to whether the LOCSD Groundwater Monitoring Reports were submitted to the Board for consideration in the challenged CDOs. If they were, they should be included in the AR. 6. Petitioner does not state that a quarterly status report and emails were part of the Administrative Record. 7. Petitioner does not state whether a chronology and news clippings were part of the Administrative Record
Petitioner’s demand for the State Water Board’s administrative record is unclear. Water Code §13330(b) provides court review of a Regional Board’s decision where the State Board has denied review. In this instance, the State Board denied review. Therefore, the record before the State Board appears irrelevant.
As to the other voluminous documents requested by the petitioners, the same principle applies. If the documents were considered by the Board in making its decision, they should be included as part of the Administrative Record. If they were not considered by the Board, petitioners must make a showing pursuant to CCP §1094.5(e) to have them included in the record.
Petitioner’s Reply Brief includes a declaration that is apparently for the purpose of establishing the elements of CCP §1094.5(e). It should have been included in the original motion. If the court is to consider this declaration, Respondents should have the opportunity to respond to it.
Motion re Identities of CDO§1040:
Respondent should be advised of the identities of CDO #1040. Moreover, the respondents should be provided a copy of the documents relied upon by the moving party in establishing their overriding privacy concerns. The parties should reach an agreement regarding any necessary confidentiality.
If the parties cannot reach an agreement, petitioners shall make a motion to allow the identities of CDO#1040 to remain confidential.








Preliminary Ruling on PZLDF Case
The PZLDF case will be discussed today at 9a..m. (not clear whether it’s at the Vets Hall or Downtown at this point.) I appears that the case can now proceed on the CEQA complaint, or, on the lack of CEQA. What further rulings Judge LaBarbera will make this morning remains to be seen.

CV070472/ Prohibition Zone et al., v Regional Water Quality Control Board:
RE: Demurrer/Motion to Strike/Motion to Augment Administrative Record/Motion for CD #1040
TENTATIVE RULING DEMURRER
The Regional Water Quality Control Board demurs to the Amendment to the Second Amended Petition for Writ of Mandamus.
The Amendment was prepared as a result of the court’s grant of leave to amend the Second Cause of Action seeking traditional mandate pursuant to CCP §1085. The scope of leave was limited to the second cause of action and the petitioner was required to succinctly allege a mandatory duty on the part of the Board.
Respondent’s contention that traditional mandate is not available as a remedy is somewhat misplaced. Water Code §13330 provides that “[a]ny party aggrieved by a final decision or order of a regional board for which the state board denies review may obtain review of the decision or order of the regional board in the superior court ( id., § 13330, subd. (b), italics added), and “[e]xcept as otherwise provided herein, Section 1094.5 of the Code of Civil Procedure shall govern proceedings for which petitions are filed pursuant to this section” ( id., § 13330, subd. (d)). Given the language italicized above, Water Code section 13330 necessarily applies to an administrative appeal of a quasi-judicial action under Code of Civil Procedure section 1094.5. See City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1409
“Acts of an administrative agency that are quasi-legislative in nature, e.g., establishment of regulations to carry out a statutory policy or direction, are not reviewable by administrative mandamus.” (8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 268, pp. 1067-1068.) Rather, review of a quasi-legislative action is limited to traditional mandamus. ( Id. at p. 1068.) City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1408
If a party is aggrieved by a quasi-judicial decision made by a Regional Board for which the state board denies review, CCP §1094.5 governs the proceedings. However, there are narrow circumstances where the action of a board can be the subject of a petition for traditional writ of mandate. Those circumstances require a mandatory duty and, in the example set forth in Arcadia, a quasi-legislative act that is not reviewable by the state board.
Although Petitioners were granted leave to allege specific mandatory duties of the regional board, the Amendment of the Second Cause of Action fails to allege a viable cause of action for review pursuant to CCP §1085.The Amendment: The paragraphs of the amendment attempt to list a number of purported mandatory duties on the part of the Board.
¶86 alleges that the issuance of Notices of Violation contained threats that constitute illegal electioneering in violation of Elections Code §§18540 (a) and 18501.
Every person who makes use of or threatens to make use of any force, violence, or tactic of coercion or intimidation, to induce or compel any other person to vote or refrain from voting at any election or to vote or refrain from voting for any particular person or measure at any election, or because any person voted or refrained from voting at any election or voted or refrained from voting for any particular person or measure at any election is guilty of a felony punishable by imprisonment in the state prison for 16 months or two or three years. Elections Code §18540(a)
Any public official who knowingly violates any of the provisions of this chapter, and thereby aids in any way the illegal casting or attempting to cast a vote, or who connives to nullify any of the provisions of this chapter in order that fraud may be perpetrated, shall forever be disqualified from holding office in this state and upon conviction shall be sentenced to a state prison for 16 months or two or three years. Elections Code §18501
These statutes prohibit coercion or intimidation in the election process. They also provide criminal remedies for violations of the Elections Code. Here, the offending provisions of the Notices of Violation state, in part, that if the wastewater plant does not proceed or “fails to meet certain milestones (including a benefit assessment)” then the septic system discharge would have to be eliminated by 2011.
The prayer of the petition seeks to invalidate these Notices of Violation. According to the Regional Board, the Notices of Violation have no legal effect. If this is correct, there is no necessity to invalidate them. Moreover, petitioners do not seek to invalidate the election approving the benefits assessment nor is there any criminal sanction being sought.
¶87 seeks judicial review of so called “CAO’s”(clean up and abatement orders). Petitioners contend that the CAO’s are presented under the guise of “settlement agreements.” No basis for CCP §1085 review of settlement agreements is alleged, particularly where none of the petitioners are parties to the agreements. Moreover, no basis for relief in relation to the potential of future issuance of CAO’s is alleged. According to the complaint, Petitioners Payne and DerGaribedian were potential parties to a CAO. However, they refused to sign the proffered agreements. No other allegations establish that any petitioner is a party to a settlement agreement.
¶¶89 through 100 allege various improprieties of the Regional Board in failing to observe proper administrative hearing procedures in issuing the “cease and desist” orders that are subject of the review.
For example, ¶90 states that Water Code §185 requires the Regional Board to adopt rules to conduct its affairs in conformity, as nearly as practicable, with the provisions of Chapter 4.5. In an effort to challenge 23 CCR §648 (regulation restricting application of the formal hearing process under the APA) petitioners allege that Water Code §185 supersedes the regulation, apparently rendering it invalid. A review of 23 CCR 648 reveals that it was promulgated pursuant to the authority of Water Code §185.
Most important is the fact that all of the instances of alleged impropriety relate to the Board’s quasi-judicial acts in issuing the Cease and Desist orders. Any available review is made pursuant to the requirements of Water Code §13330 and CCP §1094.5.
¶¶101 – 103 allege that the Board had a ministerial duty to comply with CEQA. ¶101 alleges that the Board improperly claimed categorical exceptions from CEQA review and failed to address the cumulative impacts of separate cessation and cleanup orders without environmental review. The complaint does not clearly allege whether this action was quasi-legislative or quasi-judicial. In any event, if any review is available, it is made pursuant to Public Resources Code §21168 and §21168.5.
The scope of judicial review for proceedings to attack an agency's decision under CEQA is set forth in Public Resources Code sections 21168 and 21168.5. Section 21168 provides that where the action to attack arose as a result of a proceeding in which a hearing is required by law and the attack is on the grounds of noncompliance with CEQA, the action shall proceed in accordance with section 1094.5 of the Code of Civil Procedure but the court is only to determine whether the decision is supported by substantial evidence. Section 21168.5 provides that in all other actions, “the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” Newberry Springs Water Assn. v. County of San Bernardino (1984) 150 Cal.App.3d 740, 747-748 See also California Farm Bureau Federation v. California Wildlife Conservation (2006) 143 Cal.App.4th 173, 178
A petition for review pursuant to Public Resources Code §21168 is the equivalent to a review pursuant to CCP §1094.5. A petition for review pursuant to Public Resources Code §21168.5 is the equivalent to a review pursuant to CCP §1085. See Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-567
If petitioners seek review of the Board’s CEQA compliance, they must do so pursuant to the procedures set forth in Public Resources Code sections 21168 and 21168.5. Here the crux of the claim is that the Board improperly determined that the CDO’s were exempt from CEQA. The question then becomes whether the filing is timely. See Public Resources Code §21167(d).
¶105 alleges a mandatory duty to provide “assistance”. This does not state a cause of action pursuant to CCP §1085.
Water Code §13291.5 does not impose a mandatory duty on the regional board. Water Code §13301.1 requires the Regional Board to provide available current information on successful and economical water quality programs and information and assistance in applying for federal and state funds necessary to comply with the cease and desist order. The alleged failure of the Regional Board to comply with Water Code §13301.1 has nothing to do with the invalidity of the issuance of the CDO.
Most important is that there is no remedy in the prayer sought for the violation of this alleged mandatory duty.
¶¶106 through 110 provide no citations to any specific mandatory duties on the part of the Regional Board that are reviewable pursuant to CCP §1085. Rather they consist of general conclusory allegations concerning a ministerial duty not to impinge on property rights, civil rights and liberties of the petitioners.
¶111 Petitioners seek CCP §1085 review of 23 CCR §§ 2050 and 2050.5. Those regulations require petitioners to seek review by the State Board when the Regional Board fails to act. The complaint then alleges that, although petitioners were required to seek review by the State Board, since the State Board and Regional Board failed to observe the separation of powers, the court should review actions that make this requirement an exercise in futility. The allegations simply do not make out a cause of action of any kind, particularly since the State Board is not a party to this petition.
¶113 is a summary of all of the alleged mandatory duties of the Regional Board that were alleged in the body of the petition.
With the possible exception of the Board’s CEQA compliance, petitioners have failed to allege the existence of a mandatory duty that is subject to review pursuant to CCP §1085.
Accordingly, the demurrer to the Amendment to the Second Cause of Action is sustained without leave to amend. However, petitioners shall have leave to amend for the limited and specific purpose of alleging a cause of action for review the Board’s CEQA compliance with respect to the CDO’s.
Motion to Strike:The Regional Board’s motion to strike contains categories of allegations sought to be stricken.
Item 1: The motion to strike allegations that constitute improper facial challenges to various regulations is denied. The allegations appear in the First Cause of Action challenging the validity of the Cease and Desist Orders made by the Board. The cause of action attempts to invalidate the Board’s orders related to the Petitioners. The challenged orders are dependent upon valid regulations, Petitioners are making an “as applied” to invalidate the regulations.
Item 2: The failure to exhaust administrative remedies may well preclude the petitioners from raising many of the arguments they now seek to make. However, the motion to strike does not indicate where, (1) on the face of the complaint, (2) the exhibits attached to the complaint or (3) in matters upon which judicial notice can be taken that the petitioners failed to raise certain issues before the Board. The Motion to Strike those allegations is denied.
Item 3: The court recognizes that a controversy over the validity of a resolution (such as Resolution NO. R3 -2008-005) is not ripe until the resolution is effective. However, the motion to strike does not indicate where, (1) on the face of the complaint, (2) the exhibits attached to the complaint or (3) in matters upon which judicial notice can be taken that the petitioners that Resolution NO. R3 -2008-005 is not approved. Therefore, the motion to strike is denied.
Item 4: Although petitioners have standing to challenge the validity of settlement agreements they have entered into, they no standing to challenge the validity of settlements entered into by parties who are strangers to this lawsuit. However, the court notes that some of the allegations that are listed are somewhat unrelated to a challenge of the validity of settlement agreements. For example, page 2:27-3:24 of the amendment does is not entirely focused on challenging settlement agreements. Similarly page 2:9-20 does not entirely focus on challenging the settlement agreements. The court is not inclined to check each citation to make sure that it alleges a challenge to a settlement agreement. Rather than grant or deny the motion, the court observes that, at this juncture, the petitioners have not established standing to challenge the validity of settlement agreements where the petitioners are not a party.
Item 5: Government Code §25825.5 has no impact on the Regional Board. The motion is granted as to item 5.
Item 6: There is no prayer for relief based upon an unconstitutional taking. Moreover there is no cause of action alleging an unlawful taking. The motion is granted. In the event that petitioners seek such a claim, a motion for leave to amend would have to be filed.
Item 7: The demurrer disposed of these allegations related to Water Code §13301.1 and §13291.5. To the extent that the allegation appears elsewhere, they are stricken.
Item 8: The motion to strike the allegations concerning emotional distress and anxiety and damages is granted.
Motion to Augment Administrative Record: Petitioners seek review of Cease and Desist Orders that were issued by the Regional Board. Petitioners’ motion seeks to add a number of documents to the Administrative Record and objects to some additional records as well.
The general rule, i.e., that no evidence other than the administrative record may be introduced at the hearing on a petition for writ of administrative mandamus, applies whether the case is reviewed by the court under the independent judgment test. The rule also applies in cases in which the reviewing court is deciding legal issues, such as whether there was a fair trial as well as those cases in which the court is making factual determinations (i.e., determining whether the evidence supports the findings). The judge, sitting without a jury (CCP §1094.5(a)), decides the case on the basis of the record, which may be augmented only within the strict limits of CCP §1094.5(e). 1 California Administrative Mandamus (CEB 3rd Ed.) §4:1 at page 110 (Internal Citations omitted)
If a party believes that a matter is improperly included in the Administrative Record, the remedy is either an objection or a motion to strike. Similarly a party may make a motion to include an item that was a part of the administrative record and that has been omitted. Finally if a party seeks to add items that are not part of the record of proceedings, they must make a motion to augment in compliance with CCP §1094.5(e).
Code of Civil Procedure §1094.5(e) expressly limits judicial review to the evidence in the administrative record except when (1) the evidence could not with due diligence have been produced during the administrative proceedings or (2) the administrative body improperly excluded the evidence. Western States Petroleum Ass'n v Superior Court (1995) 9 C4th 559, 578, 38 CR2d 139; City of Fairfield v Superior Court (1975) 14 C3d 768, 771, 122 CR 543. These rules apply in cases involving review under the substantial evidence test and review involving fundamental vested rights under the independent judgment test. Green v Board of Dental Exam'rs (1996) 47 CA4th 786, 55 CR2d 140. To have the court consider evidence outside the administrative record, either (1) a party must establish that evidence could not with due diligence have been discovered and produced at the administrative hearing or (2) the record itself must show that the evidence was offered but was rejected. Simply not having obtained or discovered the evidence until after the close of the administrative proceedings will not be sufficient; good cause must be shown for not having obtained or discovered the evidence before the close of the administrative hearing. 1 California Administrative Mandamus (CEB 3rd Ed.) §4:1 at page 110
In the absence of a proper preliminary foundation showing that one of the exceptions noted in section 1094.5, subdivision (e) applies, it is error for the court to permit the record to be augmented. Determination of the question of whether one of the exceptions applies is within the discretion of the trial court, and the exercise of that discretion will not be disturbed unless it is manifestly abused. Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101
Petitioners do not establish the elements necessary to augment the record with extra-record evidence. Moreover, the remedy available for a successful motion to augment is often a remand to the agency for consideration of the extra-record evidence. See 1 California Administrative Mandamus (CEB 3rd Ed.) §4:12 D at page 128
The motion does not clearly identify whether it seeks to include documents omitted from the record or to add documents that were not in the record or some combination of the two. If the motion seeks to correct the record to include documents considered by Board that are now omitted, those documents should be included in the Administrative Record.
However, given the lack of definition of what should be included in the administrative record and the lack of a showing concerning whether evidence was considered by the Board or not, it is difficult to assess whether the cited documents were omitted from the record.
For example, Petitioners cite the following categories of documents. The problem is that there is a lack of clarity concerning whether the materials were considered by the Board.
1. Central Coast Water Quality Basin Plan: If the plan was considered as part of the administrative decision, it should be included in the Administrative Record. 2. Respondents contend that item 2 is included in the Administrative Record. 3. Item 3 is Page 84 of the Draft San Luis Obispo Airport EIR. If the document was considered as part of the administrative decision, it should be included in the Administrative Record.4. Petitioners argument does not indicate why the cited Los Osos water quality impacts should be a part of the Administrative Record. 5. Petitioner’s motion is unclear as to whether the LOCSD Groundwater Monitoring Reports were submitted to the Board for consideration in the challenged CDOs. If they were, they should be included in the AR. 6. Petitioner does not state that a quarterly status report and emails were part of the Administrative Record. 7. Petitioner does not state whether a chronology and news clippings were part of the Administrative Record
Petitioner’s demand for the State Water Board’s administrative record is unclear. Water Code §13330(b) provides court review of a Regional Board’s decision where the State Board has denied review. In this instance, the State Board denied review. Therefore, the record before the State Board appears irrelevant.
As to the other voluminous documents requested by the petitioners, the same principle applies. If the documents were considered by the Board in making its decision, they should be included as part of the Administrative Record. If they were not considered by the Board, petitioners must make a showing pursuant to CCP §1094.5(e) to have them included in the record.
Petitioner’s Reply Brief includes a declaration that is apparently for the purpose of establishing the elements of CCP §1094.5(e). It should have been included in the original motion. If the court is to consider this declaration, Respondents should have the opportunity to respond to it.
Motion re Identities of CDO§1040:
Respondent should be advised of the identities of CDO #1040. Moreover, the respondents should be provided a copy of the documents relied upon by the moving party in establishing their overriding privacy concerns. The parties should reach an agreement regarding any necessary confidentiality.
If the parties cannot reach an agreement, petitioners shall make a motion to allow the identities of CDO#1040 to remain confidential.