Sierra Club v. City of Los Angeles

Filed 9/27/06 Sierra Club v. City of Los Angeles CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Inyo County. Lee E. Cooper, Jr., Judge. (Retired Judge of the Ventura Munic. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Rockard J. Delgadillo, City Attorney, Richard M. Brown, General Counsel Water & Power, and Joseph A. Brajevich, Deputy City Attorney, for Defendants, Cross-Complainants and Appellants City of Los Angeles et al.

California Environmental Law Project and Laurens H. Silver for Respondent Sierra Club.

Law Office of Donald B. Mooney and Donald B. Mooney for Respondent Owens Valley Committee.

Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, J. Matthew Rodriquez, Senior Assistant Attorney General, Daniel L. Siegal, Supervising Deputy Attorney General, and Gordon Burns, Deputy Attorney General, for Respondents and Cross-Complainants California Department of Fish & Game and California State Lands Commission.

No appearance for Respondent County of Inyo.

I. INTRODUCTION

Defendants and appellants City of Los Angeles, acting by and through the Department of Water and Power for the City of Los Angeles (sometimes referred to collectively herein as the City), appeal from an order enjoining them from exporting water from the Owens Valley through the second Los Angeles aqueduct. Defendants contend: (1) the trial court violated their due process rights when it issued an injunction not requested by any of the parties; (2) the injunction is punitive and violates Government Code section 818; (3) the injunction does not meet fundamental requirements for issuing an injunction, and (4) the trial court abused its discretion in issuing the injunction. We conclude, however, that defendants have forfeited their challenges to the injunction by failing to object or request modification in the trial court. We will therefore affirm the order.

II. FACTS AND PROCEDURAL BACKGROUND

This case is the latest chapter in the continuing litigation -- described as “interminabl[e]” in 1984 -- arising from the City’s exporting water from the Owens Valley to supply the City’s needs. (See County of Inyo v. City of Los Angeles (1984) 160 Cal.App.3d 1178, 1180.) The matter has already resulted in six published opinions. (Ibid.; see also County of Inyo v. City of Los Angeles (1981) 124 Cal.App.3d 1; County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82; County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185; County of Inyo v. City of Los Angeles (1976) 61 Cal.App.3d 91; County of Inyo v. Yorty (1973) 32 Cal.App.3d 795.)

A. Background

In 1913, the City completed an aqueduct to transport water from the Owens Valley to the City. In 1970, the City completed a second aqueduct (the second aqueduct) for the same purpose. The two aqueducts provide the City with a significant portion of its water supply, using water rights the City acquired early in the 20th century in Inyo and Mono counties. (See generally County of Inyo v. Yorty, supra, 32 Cal.App.3d at pp. 799-801.)

In 1972, the County of Inyo (County) filed suit claiming that the increasing pumping of groundwater to supply the second aqueduct was harming the environment, and the practice should be analyzed in an Environmental Impact Report (EIR) under the California Environmental Quality Act, Public Resources Code section 21000 et seq. (County of Inyo v. Yorty, supra, 32 Cal.App.3d at pp. 797-798.) The Court of Appeal ultimately issued a writ of mandate limiting the City’s groundwater pumping and requiring it to prepare an EIR. (Id. at pp. 815-816.)

The City issued EIRs in 1976 and 1979, but the court found both to be legally inadequate. (See County of Inyo v. City of Los Angeles, supra, 160 Cal.App.3d at p. 1186; County of Inyo v. City of Los Angeles, supra, 124 Cal.App.3d 1, 14-15; County of Inyo v. City of Los Angeles, supra, 71 Cal.App.3d at pp. 203, 205.)

In 1991, the County and the City entered into the Inyo County/Los Angeles Long Term Water Agreement, which was intended to provide environmental protection to the Owens Valley from the effects of pumping and exporting groundwater and to identify measures to mitigate past and future environmental damage. The agreement provided a description of the Lower Owens River Project (LORP) and committed the City and the County to implement the LORP. When completed, the LORP will restore a flow of water to an approximate 62-mile stretch of the Lower Owens River between the intake of the Los Angeles aqueduct and Owens Lake. The City will provide the water from its water supply in the Owens Valley.

The City and the County completed a third EIR in October 1991, purporting to address all the water management practices and facilities associated with augmented groundwater pumping in the Owens Valley and the projects and water management procedures identified in the Long-Term Water Agreement. The Department of Water and Power and the County then petitioned the Court of Appeal for discharge of the outstanding writ.

In 1994, the Court of Appeal denied the petition and ordered the County and the City to respond to issues raised by the Sierra Club, the Owens Valley Committee, the California Department of Fish and Game, and the California State Lands Commission,^[1] which had been participating in the litigation as amici curiae.

After several years of negotiations, the parties executed a memorandum of understanding (MOU) in 1997. The MOU required the City to develop, plan, and implement measures to mitigate the adverse effects of the City’s project; the LORP was the principal mitigation feature of the MOU.

The court discharged the writ based on the representations of the parties that the MOU had resolved all outstanding issues and that the LORP would be implemented in full compliance with CEQA.

B. Current Litigation

On December 24, 2001, the Sierra Club and the Owens Valley Committee filed a complaint against defendants for injunctive and declaratory relief alleging defendants had failed to meet certain obligations of the MOU relating to the LORP. The operative pleading is the second amended complaint, filed in September 2003. The Sierra Club and the Owens Valley Committee sought an injunction and writ requiring defendants to complete a draft EIR for the LORP and to enjoin them from groundwater pumping in the County for export to the City until the draft EIR was completed and the LORP was implemented with a water flow consistent with defendants’ obligations under the MOU. The state agencies appeared as real parties in interest and filed a cross-complaint against the City for declaratory relief and a writ of mandate. The County also appeared as a real party in interest.

On September 15, 2004, the parties filed a stipulation and order, which the court executed. The stipulation and order stated that its purpose was “to resolve the issues raised in the Amended Complaint and the Cross Complaint . . . .” Any party could seek enforcement of the stipulation and order by bringing a motion to set a hearing for an order to show cause why remedies, sanctions, “or other order proposed in the motion, or otherwise determined to be appropriate by the court, should not be imposed.”

On February 28, 2005, the state agencies filed a motion for an order to show cause why remedies and sanctions should not be imposed for violation of court order. The state agencies sought the establishment of new deadlines, the submission of progress reports twice monthly to explain significant issues, verification of the progress reports by the Department of Water and Power’s general manager, and the limitation of the City’s groundwater pumping or export of water from the Owens Valley based on the estimate of water that the City saved because of the delays, beginning on September 5, 2005. The state agencies did not request any restriction on the City’s use of the second aqueduct.

The Sierra Club and the Owens Valley Committee also filed a motion for an order to show cause why remedies and sanctions should not be imposed for violation of a court order. That motion requested essentially the same sanctions as the state agencies had requested, and further argued that the sanctions “should take into consideration the significant monetary [sic] to the City associated with its failure to comply with the Court’s orders. Such sanctions should be designed to ensure that the City does not benefit financially from its failure to comply with the Court’s Orders.”

The City opposed both motions. Following a hearing, the trial court found the City to be in violation of the stipulation and order, and the trial court set a hearing on the question of sanctions. The parties filed further position papers on the appropriate sanctions. None of the parties requested or discussed any restriction on the use of the second aqueduct.

The trial court held a hearing on the issue of sanctions on July 25, 2005. Upon the conclusion of the hearing, the court ordered that the City be enjoined and restrained from exporting water from the Owens Valley through the second aqueduct. The trial court further ordered that the injunction be stayed on the following conditions: (1) that the City limit groundwater pumping from the Owens Valley to 57,412 acre-feet per year without reducing in-valley uses; (2) that the City pay a penalty of $5,000 per day on and after September 5, 2005, until 40 cubic feet per second (cfs) flow is established in the Lower Owens River; (3) that the City pump 16,294 acre-feet of water per year to replenish the groundwater supply; (4) that the flow be commenced in the Lower Owens River not later than January 25, 2007, and that the 40 cfs flow be established within six months thereafter; (5) that a special master or referee be appointed to monitor compliance; (6) that each month commencing October 5, 2005, the City provide a verified report of the amount of water exported and spread and the progress made toward completion of the LORP; and (7) that the only thing that would preclude vigorous enforcement of the order was force majeure. And, if the conditions were not complied with, the injunction would become permanent.

The parties prepared a formal order consistent with the trial court’s oral ruling. The trial court executed the order, and it was filed on August 8, 2005.

Following the order, the City and the County entered into a settlement agreement regarding funding of the LORP. The settlement agreement was intended to expedite implementation of the LORP through the elimination of federal funding and the permitting delays associated with that funding. The City agreed to pay the County $5,242,965 toward the County’s LORP funding obligations, and the County agreed to forgo its federal grant funds in the same amount. As part of the settlement agreement, the City agreed it would appeal only those portions of the trial court’s order that establish a permanent injunction against the use of the second aqueduct and that it would not appeal any of the conditions of the stay, such as the pumping restrictions, spreading requirements, and penalty payments.III. DISCUSSION

A. Forfeiture of Issues

The City raises a multipronged challenge to the injunction, contending: (1) the trial court violated the City’s due process rights when it issued an injunction not requested by any of the parties; (2) the injunction is punitive and violates Government Code section 818; (3) the injunction does not meet fundamental requirements for issuing an injunction, and (4) the trial court abused its discretion in issuing the injunction.

As we discuss below, we conclude that the City has forfeited its claims by failing to preserve them in the trial court. “‘An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below. [Citation.]’” (Children’s Hospital and Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 776 (Bonta).) This is so because “[i]t is unfair to the trial judge and to the adverse party to take advantage of an alleged error on appeal where it could easily have been corrected at trial.” (Ibid.) In Bonta, the court held that the appellant Department of Health Services (DHS) had waived a challenge to the trial court’s award of attorney fees because “the theory was never presented to the trial court, either in a motion to vacate pursuant to Code of Civil Procedure section 663, in the memorandum in opposition to the award of attorney fees DHS submitted to the trial court, orally at the postjudgment hearing conducted by the court on the issue of fees, or in any other way.” (Id. at p. 776.)

When the trial court itself first raises an issue, a litigant must object and request a continuance to preserve the issue for appeal. (Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1287 (Monarch).) In Monarch, the trial court granted a discovery motion on grounds that had not been briefed by the parties or included in the notice of motion. (Id. at p. 1285.) The first notice of those grounds the appellant received was at the hearing on the motion when the trial court announced its ruling. (Ibid.) The appellate court agreed that “fundamental principles of due process” required the trial court to allow the appellant “to have notice and the opportunity to be heard, so that the ensuing order does not issue like a ‘bolt from the blue out of the trial judge’s chambers.’” (Id. at p. 1286.) The court nonetheless ruled that the appellant had forfeited the issue by failing to object. (Ibid.) The court stated that the appellant should have requested a continuance at the hearing to file a supplemental brief or should have filed a motion to reconsider. (Id. at pp. 1286-1287.)

Here, as in Monarch, the City did not object when the trial court announced its intended ruling from the bench, did not request a continuance to file a supplemental brief, and did not file a motion for reconsideration. Moreover, the City had available, but did not use, a remedy that was not applicable in Monarch -- in addition to the actions listed above, the City could have raised its arguments in a motion to dissolve or modify the injunction under Code of Civil Procedure section 533. Under that statute, the trial court may dissolve or modify a permanent injunction simply because “the ends of justice would be served.” (Code Civ. Proc., § 533; see also Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 788-789 [noting the trial court’s inherent authority to modify an injunction in the interest of justice].)

The City contends, however, that because the trial court had earlier overruled the City’s evidentiary objections, an objection to the terms of the injunction would have been futile. The City’s position is not supported by the record. At the hearing on the issue of sanctions, counsel for the City objected to late filed declarations and materials on the grounds that the City had had no opportunity to cross-examine the declarant under Evidence Code section 720, and the City had not had adequate time to prepare. The trial court sustained the City’s objection and further stated that it did not think the material was “particularly edifying or helpful.” Thus, the City is simply wrong in its assertion that an objection would have been futile.

Furthermore, the stipulation and order expressly contemplated that the trial court could craft its own remedies and sanctions: under the stipulation and order, any party could bring a motion to set a hearing for an order to show cause why remedies, sanctions, “or other order proposed in the motion, or otherwise determined to be appropriate by the court, should not be imposed.” (Italics added.) Although we agree that the trial court should have afforded notice and an opportunity to be heard on the creative sanctions it planned to impose (see Monarch, supra, 78 Cal.App.4th at p. 1286), the City failed to raise any objection in the trial court.

In fact, the trial court appeared to invite input on the appropriateness of the sanctions. First, the trial court observed that the stipulation and order “g[a]ve the Court virtually unlimited power to control the parties in this matter.” Counsel for the City responded, “The stipulation and order certainly gives the Court the right to impose additional remedies. Those remedies are still subject to reasonableness and the codes that are out there.” The court further stated, “Well, I perceive this particular case to be one of declaratory relief and in[ ]equity, regardless of how people have captioned things. Now, if anyone dissents from that perspective, now is the time to tell me.” Counsel for the City did not respond to that comment.

After hearing extensive argument on the appropriate sanctions, the court noted that the City had been in violation of CEQA since 1973; mitigation measures had long ago been agreed to, but had never been accomplished; and “virtually every order pursuant to that stipulation has been violated,” and no deadline had been met. The court stated, “Now, I’m going to outline what I think the order should be, given what I’ve thought about so far. This case . . . had its origins in the building of a second aqueduct. So I’m going to make this order, and don’t start fussing until you’ve heard everything I have to say.” The court then outlined the terms of the injunction.

Counsel for the City requested clarification of certain terms of the injunction -- the date the $5,000 per day payments were to commence and the extent of the monthly reporting for exporting water. However, counsel did not raise any objection to the injunction. The trial court concluded, “We’ll let everybody think about that, and if we need to have a further hearing on it, we will.” Despite this invitation, the City’s only response was to file a notice of appeal.

We therefore conclude that the City has forfeited its arguments for purposes of appeal by failing to first present them in the trial court.

B. Request for Sanctions

The Sierra Club and the Owens Valley Committee have requested this court to find that the appeal was frivolous under Code of Civil Procedure section 907 and to award them attorney fees and costs as well as such damages as may be just. Although we conclude respondents are entitled to their costs on appeal, we decline to make a finding that the appeal was frivolous or to award attorney fees.

“An appeal is frivolous ‘only when it is prosecuted for an improper motive--to harass the respondent or delay the effect of an adverse judgment--or when it indisputably has no merit--when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]’ [Citation.] Nevertheless, an appeal is not frivolous simply because it has no merit. [Citation.] Sanctions are to be ‘used most sparingly to deter only the most egregious conduct.’ [Citation.] Further, ‘[a]n appeal, though unsuccessful, should not be penalized as frivolous if it presents a unique issue which is not indisputably without merit, or involves facts which are not amenable to easy analysis in terms of existing law, or makes a reasoned argument for the extension, modification, or reversal of existing law. [Citation.]’ [Citation.] It has long been the policy of this court to apply these principles when sanctions are sought. [Citation.]” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422.)

Here, the City represents that it is in compliance with the terms of the injunction, and this appeal therefore has not resulted in any delay. Although we have found forfeiture of issues based on failure to make objections in the trial court, as the City has pointed out, we could have nonetheless chosen to exercise our discretion to address the issues on the merits. We therefore determine that this case does not meet the highly egregious standard that would justify the imposition of sanctions.

IV. DISPOSITION

The order appealed from is affirmed. Costs to respondents.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

RICHLI

J.

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^[1] The California Department of Fish and Game and the California State Lands Commission are referred to collectively herein as the state agencies.