Greenbriar Sustainable Living Inc V.GRB

RE:RE:Greenbriar Sustainable refutes claims by Snetsinger

[shneps]

Let's start with the context of what was actually posted and not "cherry picked" by Jeff.

"Doesn't look good for the City in the court case, in relation to the Water District's filing of the City's "pattern and practice" fourth cause case. The court has issued a preliminary ruling overruling the City's demurrer and denying its motion to strike.

We need to find out exactly what happens next but certainly another loss for Sage Ranch currently if this decision move forward today."

I have in previous postings, and clearly stated in the first line, that this preliminary decision is not good for the City. The fourth cause of action is directly related to the City being accused of having a"pattern and practice" of approving development projects without conducting sufficient water supply analyses in violation of CEQA (California Environmental Quality Act). The fourth cause is directly between the Water District and the City, with Greenbriar Capital Corporation, et al. as real parties in interest. (Documented at bottom of page)

What exactly does "real parties in interest" mean. In layman's terms it basically means the lawsuit is between the Water District and the City but Greenbriar can be directly effected by the outcome of the court's decision. As you can note in the attached tentative decision by Judge Stephen Acquisto on Thursday, even in the fourth cause Greenbriar is noted as "real parties in interest". Therefore the case does have something to do with Sage Ranch.

"This distinction is further evidenced by the fact that the district does not seek any relief in the form of voiding prior project approvals or pre-emptively voiding future project approvals." - NR This is quote is true, relative to the various projects that the City has approved in the past and has continued to approve since the the filing of the original suit. Unfortunately it does not apply to Sage Ranch.
In the first three causes of action the judge has already ruled that the City was basically deficient in their analyses of the Sage Ranch EIR, as follows - 
"The operative petition—Second Amended Petition—alleges four causes of action.  The first, second, and third causes of action allege violations of the California Environmental Quality Act (“CEQA”), the Water Code, and the Government Code, respectively."
"On June 18, 2024, following a merits hearing on the first, second, and third causes of action, the Court issued a ruling in favor of the District on those causes of action." 

I am not going to cut and paste every detail from the the court's ruling and so have attached the document below, unlike within the news release that doesn't allow people to decipher things for themselves.

The statements within the news release's final paragraph absolutely contradict the fact that this case has nothing to due with Sage Ranch - "This case has nothing to do with Sage Ranch." However, the failure to close the fourth cause of action actually benefits Greenbriar as there is no judgment in effect against Sage Ranch nor any legal fees owed to the district as of a result." 
How can you possibly say in one breath the case has nothing to do with Sage Ranch and then the very next sentence say that "failure to close the fourth cause actually benefits Greenbriar"?
Once this fourth cause is closed a judgement will indeed be in effect for Sage Ranch.
As of Friday none of the parties responded to the judge's decision ,therefore his decision stands on the demurrer and strike.
I'm not sure what the next move is for the fourth cause (as to a final decision) but indeed it is not good for Sage Ranch that the City lost the argument.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SACRAMENTO
 

DATE/TIME JUDGE	March 7, 2025, 1:30 p.m. HON. STEPHEN ACQUISTO		DEPT. NO CLERK	36 M. LU
TEHACHAPI-CUMMINGS COUNTY WATER DISTRICT,                 Petitioner,   v.   CITY OF TEHACHAPI,                  Respondent.     GREENBRIAR CAPITAL CORPORATION, et al.,                Real Parties in Interest.			Case No. 34-2022-80003892
Nature of Proceedings:		Respondent’s Demurrer and Motion to Strike

 
The following is the Court’s tentative ruling overruling the demurrer and denying the motion to strike filed by Respondent City of Tehachapi. 

BACKGROUND

Petitioner Tehachapi-Cummings County Water District (“the District”) is a water district in Kern County.  The District was created in 1965 in the backdrop of persistent groundwater overdraft in the area.  Following a lawsuit in 1966 to determine groundwater rights, the District now serves as a court-appointed water master for three groundwater basins in the area.  The District also supplies surface water that it receives from the State Water Project (“SWP”).  The California Department of Water Resources provides SWP water to Kern County Water Agency, which, in turn, provides it to the District.  The District, in turn, supplies SWP water to a number of customers in its jurisdiction, including Respondent City of Tehachapi (“the City”).
The City is located within Tehachapi Basin, one of the groundwater basins administered by the District.  The City’s primary source of water is groundwater, to which the City has an allocated right under the 1966 judgment.  The City supplements any excess demand by purchasing SWP water from the District under the 2017 Term Municipal & Industrial Agreement
(“M&I Agreement”) between the City and the District.  
In 2021, the City approved and certified the environmental impact report (“EIR”) for a 995-unit housing project called the Sage Ranch Development Project (“Sage Ranch”) proposed by Real Party in Interest Greenbriar Capital Corporation.  The District filed this action alleging that the City certified the EIR with insufficient analysis with respect to water supplies.  The District’s primary complaint is that the EIR assumed, without support, that the District would be able to provide increasing amounts of SWP water to meet the City’s projected future demands in excess of amounts the District projects to be available.
The operative petition—Second Amended Petition—alleges four causes of action.  The first, second, and third causes of action allege violations of the California Environmental Quality Act (“CEQA”), the Water Code, and the Government Code, respectively.  The bifurcated fourth cause of action seeks declaratory relief based on an allegation that the City has had a pattern and practice of approving development projects without conducting sufficient water supply analyses in violation of CEQA.
            On June 18, 2024, following a merits hearing on the first, second, and third causes of action, the Court issued a ruling in favor of the District on those causes of action.  The Court found that the water supply analysis required by CEQA as explained in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 was deficient in a number of ways.  
Following the Court’s ruling, the City filed this demurrer challenging the fourth cause of action on the basis that it is essentially a challenge to past project approvals for which declaratory relief is not available.  The City also contends that because the cause of action challenges individual project approvals, it is barred by the requirement of exhaustion of administrative remedies, the relevant statute of limitations, and the failure to join as indispensable parties all stakeholders in past projects approved by the City and future projects to be reviewed by the City.  The City also moves to strike the prayer for declaratory relief on the basis that the declaration sought would impermissibly limit the City’s lawful authority to approve projects. 
 

LEGAL STANDARDS

A general demurrer may be made on the ground that the pleading “does not state facts sufficient to constitute a cause of action.”  (Id., § 430.10, subd. (e).)  A demurrer tests the legal sufficiency of the petition.  (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.)  The trial court considers the properly pleaded material facts and matters that may be judicially noticed, and tests their sufficiency.  (Cedar Fair, L.P. v. County of Santa Clara (2011) 194
Cal.App.4th 1150, 1158-1159.)  A demurrer is treated as “admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.”  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
A motion to strike lies to strike “any irrelevant, false, or improper matter inserted in any pleading,” or “any part of any pleading not drawn or filed in conformity with the laws of this state[.]”  (Code Civ. Proc., § 436, subds. (a), (b).)  “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (Id., § 437, subd. (a).)  A request for “relief not supported by the allegations of the complaint” is an irrelevant matter subject to a motion to strike.  (Id., § 431.10, subds. (b)(3), (c).)

DISCUSSION

1. The District’s Request for Judicial Notice

The District requests judicial notice of 14 items, consisting of the court records in this case related to the first three causes of action and various records related to the City’s environmental review of projects other than Sage Ranch.  The request is denied as to all 14 items.  Judicial notice is proper only as to relevant matters.  (Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 341.)  The court records and the records of the City’s other environmental reviews are only being offered as evidence to prove the allegations of the fourth cause of action.  (See Pet. Opp. Br., pp. 12:19-23, 13:18-21.)  Where this Court is only tasked with reviewing the sufficiency of the allegations, evidentiary support for the allegations is irrelevant and not properly considered.  

2. The Fourth Cause of Action Alleges a Ripe Controversy Subject to Adjudication.

The fourth cause of action alleges the City has a “pattern and practice” of violating CEQA with respect to analyzing the availability of water for projects, such that the City has adopted a “de facto policy of flouting CEQA requirements and approving projects without properly assessing water availability for these projects and environmental impacts of supplying the water to these projects[.]  (Second Am. Pet., ¶ 127; see also ¶¶ 121-126, 128-129.)  The City argues there is no ripe controversy subject to adjudication because the relief sought is an improper advisory opinion regarding future CEQA projects, which are subject to case-by-case administrative review.  The City contends no adjudiciable controversy exists until each project is approved. 
The demurrer on this ground is overruled.  The City’s arguments were squarely rejected in Californians for Native Salmon and Steelhead Assn. v. Department of Forestry (1990) 221 Cal.App.3d 1419 (“Native Salmon”).  At issue in Native Salmon was the Department of
Forestry’s responsibility for reviewing and approving timber harvest plans (“THPs”), which are plans submitted by loggers for specific logging operations on privately owned timberlands.  (Id.
at p. 1422.)  “The THP preparation and approval process is the functional equivalent of the preparation of the environmental impact report (EIR) contemplated by the California
Environmental Quality Act (CEQA),” and substantive CEQA requirements “are deemed part of the [THP review process].”  (Ibid.)
The petitioners in Native Salmon challenged the approval of a specific THP by a petition for administrative mandamus, but also sought declaratory relief on the basis that the
Department’s employees “have failed and continue to fail to perform their duty to comply with the law,” by engaging in a “pattern and practice … in their … approval of timber harvest plans, both in their failure to evaluate and respond to comments, and to assess cumulative impacts[.]”  (Id. at p. 1424.)  The trial court sustained the Department’s demurrer to the declaratory relief cause of action on the basis that “no actual controversy existed” and that courts should not issue advisory opinions.  (Id. at p. 1425.)   
The Court of Appeal reversed.  The court found that the allegations regarding the dispute over the Department’s handling of public comments and cumulative impact assessments in reviewing THPs “sufficiently set forth an actual controversy over significant aspects of respondents’ legally-mandated duties.”  (Id. at p. 1427.)  The court also rejected the
Department’s argument that “an action for declaratory relief does not lie to review an administrative decision.”  (Id. at p. 1428.)  The court reasoned:
Generally, a specific decision or order of an administrative agency can only be reviewed by a petition for administrative mandamus.  [Citations.]  Appellants, however, challenge not a specific order or decision, or even a series thereof, but an overarching, quasilegislative policy set by an administrative agency.  Such a policy is subject to review in an action for declaratory relief.  
  
(Id. at p. 1429.)
            The declaratory relief cause of action against the City in this case is analogous to the one against the Department of Forestry in Native Salmon.  In Native Salmon, the petitioners sought a declaration regarding the disputed legality of the alleged “pattern and practice” of the
Department, of failing to timely address public comments and inadequately analyzing cumulative impacts in reviewing each THP.  Similarly, the District here is seeking a declaration regarding the disputed legality of the alleged “pattern and practice” of the City, of inadequately analyzing the availability water for each project by, in part, overstating the amount of water available from the District.  (Second Am. Pet., ¶ 122.)  An action for declaratory relief is properly brought to resolve such disputes.   
  The City attempts to distinguish Native Salmon by arguing that unlike the petitioners in
Native Salmon who were challenging a “quasi-legislative policy” set by the Department, the
District here is challenging “discrete, quasi-adjudicative decisions on individual projects.”  (Demurrer, p. 15:7-22.)  It appears to the Court that just as the Department in Native Salmon did, the City here is “confus[ing] review of specific, discretionary administrative decisions with review of a generalized agency policy.”  (Native Salmon, supra, 221 Cal.App.3d at p. 1429.) 
The petitioners in Native Salmon were challenging the Department’s “pattern and practice” employed across THP reviews, which amounted to a “policy” of violating legal requirements with respect to addressing public comments and analyzing cumulative impacts.  It was in this context that the court in Native Salmon stated that the petitioners were challenging “not a specific order or decision … but an overarching, quasi-legislative policy” of the Department.  The District here is similarly alleging that the City is engaging in a “pattern and practice” employed across CEQA reviews, which amounts to a “policy” of violating the water supply analysis requirement.  There is no meaningful distinction between the declaratory relief cause of action upheld in Native Salmon and the one alleged here. 
            The City then relies on Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, where the Court of Appeal upheld the sustaining of a demurrer against a “pattern and practice” declaratory relief cause of action brought against the state and regional water boards.  In that case, the petitioner brought a general claim for declaratory relief on the basis that the State Water Resources Control Board (“State Board”) and regional water boards “have systematically failed to comply with the” nonpoint source pollution policy (“NPS Policy”), and “failed to take measures to address” pollution despite being aware of the problem.  (Id. at p. 10.)  The court found that these general allegations did not present a
“narrow, precise question[]” necessary for declaratory relief, especially on such “a complex matter which will take substantial time to resolve and will necessarily require different approaches in different localities.”  (Id. at p. 14.)
The court noted that among the general allegations was a specific allegation that the State
Board “picked and chose whether to review regional water board orders in a manner avoiding compliance with the NPS Policy and evading judicial review.”  (Id. at p. 11.)  Citing the established principle that the “State Board’s decision to review a regional water board action is entirely within the State Board’s discretion and not subject to judicial review,” the court concluded that declaratory relief was unavailable as to this allegation.  (Id. at p. 14.)
The court also rejected the petitioner’s argument that its claim was akin to the “pattern and practice” claim in Native Salmon.  But the court did so on a factual ground, based on judicially noticeable documents showing that contrary to the petitioner’s allegation, the state and regional water boards “[did] not ignore or refuse to implement the NPS Policy.”  (Id. at p. 18.) 
Based on these defects, the court concluded that “[a]lthough the complaint generally alleges a pattern and practice of ignoring or not implementing the NPS policy, at its heart, the complaint contests the effectiveness of the State Board’s and regional water boards’ efforts to implement the policy,” which “will not support an action for declaratory relief[.]”  (Ibid.) 
Monterey Coastkeeper is distinguishable.  The allegations in Monterey Coastkeeper were general allegations amounting to a challenge against the agencies’ effectiveness within a complex regulatory scheme of controlling nonpoint source pollution.  The allegations here are more specific and present a narrow question on how the City is consistently failing to perform an adequate water analysis, including “overstat[ing] the amount of water available to the District,
“ignor[ing] the potential impact on the District’s other customers and the environment,” and overstating the amount water the District must provide the City under the M&I Agreement. 
(Second Am. Pet., p. 41:4-19.)  And unlike the State Board’s discretionary decision to review regional board decisions, the alleged policy here does not stem from discretionary decisions that  are exempt from judicial review.  The District sufficiently alleged a “pattern and practice” claim that is more akin to the claim in Native Salmon than the one struck down in Monterey Coastkeeper. 
III.     The Fourth Cause of Action Is Not Subject to Exhaustion of Administrative Remedies, Statute of Limitations, or Joinder Requirements That Apply to Challenges to Individual Project Approvals.
 
The City makes a number of additional arguments why the fourth cause of action is defective.  The City argues the cause of action challenges all past and future CEQA project approvals, but the District has not exhausted the administrative remedies provided by CEQA.  The City also contends that the cause of action is barred by the applicable statutes of limitations to the extent it challenges past projects, and that stakeholders in past and future projects are indispensable parties that should have been joined as real parties in interest.
These arguments again ignore the distinction between a challenge made to a specific project approval by the City and a challenge against a policy that is being implemented by the City across CEQA reviews.  This distinction is further evinced by the fact that the District does not seek any relief in the form of voiding prior project approvals or preemptively voiding future project approvals, but only a declaration that the alleged pattern and practice does not comply with the applicable laws.  (See Second Am. Pet., at pp. 44:20-45:2.)  Such declaration would not impermissibly infringe upon the rights of past or future stakeholders or upon any duties or discretion vested within the City.  
            The City cites Venice Coalition to Preserve Unique Community Character v. City of Los Angeles (2019) 31 Cal.App.5th 42 in support of its contention that the fourth cause of action is time-barred.  The city in that case, years prior to the lawsuit, had approved a specific plan for
Venice and found it consistent with the city’s general plan.  (Id. at pp. 48-49.)  The specific plan created a ministerial approval process for certain types of developments.  (Id. at pp. 50-51.)  
One of the petitioner’s claims was a challenge to the city’s “ongoing failure to ensure that … [the] projects [approved ministerially under the specific plan]” were consistent with the requirements of the general plan.”  (Id. at p. 52.)  The Court of Appeal found that the petitioner’s challenge was “essentially a challenge to the specific plan itself as being inconsistent with the [general plan].”  (Ibid.)  And because the city had already approved the specific plan (including the ministerial approval process within) years ago, the challenge was untimely under the 90-day statute of limitations to challenge “the decision of a legislative body to adopt or amend a … specific plan” under Government Code section 65009, subdivision (c)(1)(A).  (Ibid.)
            The claim in Venice Coalition was time-barred because it challenged the adoption of a practice (ministerial approval of certain developments) that had been approved as part of the specific plan, and such approvals were subject to a 90-day statute of limitations.  Here, the District is not challenging a policy that (as far as the Court is aware) has an analogous statute of limitations.  And statutes of limitations specific to individual project approvals do not apply here because the District’s challenge, again, is not against individual project approvals but against the alleged policy.
        IV.      The Petition Does Not Seek Improper Relief.
The City moves to strike from the operative petition the following request for relief: “For a judgment determining and declaring that the City’s pattern and practice of failing to analyze incremental and cumulative project impacts on water resources does not comply with applicable law and therefore is null and void . . . .”  (Second Am. Pet., p. 44:20-22.)  The City argues that this relief may not be granted as to already-approved projects for which the statute of limitations has run.  The motion is denied with respect to this request for relief.  This request seeks a declaration with respect to the legality of the City’s “pattern and practice” of inadequate water analysis, and does not seek to void past approvals of projects.  
The City also moves to strike the following request for a declaration: 

1. declaring that the City has no power to approve development projects without first demonstrating the availability of an adequate and reliable wet water supply that does not harm or impair the rights of other lawful water users; 

 

2. requiring the City to identify and disclose the source and environmental impacts of each development project’s reliable supply of wet water prior to project approval; and/or 

 

3. requiring the City to disclose and evaluate the impacts, including impacts on other lawful water users, of permitting development projects to proceed without the availability of an adequate and reliable water supply.

 
(Second Am. Pet., pp. 43:25-44:5, 44:20-45:2.)  The City argues that such a declaration would unlawfully limit its ability to approve ministerial projects that are not subject to CEQA.  The motion is also denied as to this request for relief because the City’s reading of the requested relief ignores the context.  The fourth cause of action, which is the basis for the requested declaratory relief, alleges inadequate environmental review only where CEQA requires environmental review.  (See id. ¶¶ 121-129.)  The Court does not read the requested declaration to mean that the City cannot approve development projects without properly analyzing water supply even where CEQA does not apply and environmental review is not required.   

CONCLUSION

For these reasons, the demurrer is overruled and the motion to strike is denied.
 
* * *
This tentative ruling shall become the Court’s final ruling unless a party wishing to be heard so advises the clerk of this department no later than 4:00 p.m. on the court day preceding the hearing, and further advises the clerk that such party has notified the other side of its request for hearing. 
The parties may appear remotely through the use of Zoom. The parties may join the Zoom session by audio and/or video through the link/telephone number which can be obtained by contacting the clerk of the court at [e-mail] or [phone] no later than 4:00 p.m. the day before the scheduled hearing. In the event that a hearing is requested, oral argument shall be limited to no more than 30 minutes per side.
Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government Code section 68086 and California Rules of Court, rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official
Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp13.pdf
A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list. Once the form is signed it must be filed with the clerk.
If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court
Reporter’s Office and an official reporter will be provided.
In the event that this tentative ruling becomes the final ruling of the Court, the order will be effective immediately.  No formal order or other notice will be required.  (Code Civ. Proc., §
1019.5; Cal. Rules of Court, rule 3.1312.)