1

Filed 3/30/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

SAVE THE HILL GROUP,

Plaintiff and Appellant,

v.

CITY OF LIVERMORE,

Defendant and Respondent;

LAFFERTY COMMUNITIES, INC.,

Real Party in Interest and

Respondent. A161573

(Alameda County

Super. Ct. No. RG19020186)

This appeal is from a superior court judgment denying a petition for

writ of mandate filed by appellant

, Save the Hill Group (Save the Hill), a

private group of concerned residents, against respondents, developer and real

party in interest, Lafferty Communities, Inc. (Lafferty)

, 1 and the City of

Livermore (City). Save the Hill seeks to have set aside the City’s decision s to

a p p rov e a residential housing development project known as the Garaventa

Hills Project ( the P roject) and to certify a reissued final environmental

impact report ( R FEIR) under the California Environmental Quality Act

(CEQA) (Pub. Resources Code

, § 2100 et seq.). 2

1 Lafferty was formerly known as Livermore LT Venture I Group, LLC

.

2 Unless otherwise stated, all statutory citations herein are to the

Public Resources Code. Subsequent references to “Guidelines” are to the2

For reasons that follow, w e conclude Save the Hill has raised a

challenge to the adequacy of the RFEIR’s analysis of the “ no project ”

alternative that is both preserved for appeal and meritorious. The R FEIR ’s

certification and the P roject ’s approval therefore cannot stand

. Accordingly,

we reverse and remand to the superior court for further proceedings

consistent with the opinion set forth post

.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Project and Project Site.

On July 27, 2011, Lafferty submitted a development application for 76

homes on a 31.7

- acre project site in the Garaventa Hills that is the last

remaining undeveloped area in that section of the City of Livermore

( hereinafter, P roject S ite). The initial proposed development included a

looped roadway system and a two

- way v ehicular and pedestrian connector

bridge over A l tamont Creek , which crosse s the P roject S ite. On

November 16, 2011, the City issued a n otice of p reparation of a d raft

e nvironmental i mpact r eport (DEIR) , which was published a year later , in

November 2012

.

The DEIR describe d the P roject S ite , known as Garaventa Hills

, as

“moderately steeply sloping” with two prominent knolls at the center and an

intermittent stream channel, Altamont Creek, at the southern boundary.

Garaventa Hills consists of predominately non

- native grassland habitat.

West of the Project S ite is the 24

- acre Garaventa Wetlands Preserve, owned

and managed by the Livermore Area Recreation and Park District (LARPD).

The P roject S ite, together with the Garaventa Wetlands Preserve, provides

habitat for a variety of special

- status species protected under the California

CEQA guidelines found in California Code of Reg ulations, title 14, section

15000 et seq.3

Endangered Species Act and /or the federal Endangered Species Act . These

species includ e the California red

- legged frog , California tiger salamander

,

California burrowing owl , San Joaquin kit fox

, western spadefoot toad

, vernal

pool fairy shrimp , Livermore tarplant

, palmate

- bracted bird’s beak , and

Congdon’s tarplant

.

The area of the Garaventa Hills and Wetlands Preserve is

hydrologically connected to the Springtown Alkali Sink, a unique alkaline

wetlands area owned and managed by the Wetl ands Exchange in cooperation

with the City, the California Department of Fish and Wildlife (CDFW)

, and

the U.S. Fish and Wildlife Se rvice (USFWS). The DEIR recognized that any

a lterations to existing drainage patterns in the Garaventa Hills may affect

the quantity, timing and quality of precip it ation that enters the se wetlands

and which is needed to maintain a functioning ecosystem.

When comments on the DEIR were solicited from the public

, it became

clear there was considerable opposition to Lafferty’s original proposal

.

Lafferty therefore altered course and proposed a more modest project that

reduced the number of residential units from 76 to 47 , eliminated the

vehicular bridge

, and preserved a large rock outcroppi ng. The City then

released a f

inal e nvironmental i mpact r eport (FEIR) in June 2014.

On July 1, 2014, the City’s planning commission recommended that the

city council reject Lafferty’s second proposal due to concerns about grading,

aesthetics and comments by the LARPD regarding compatibility with the

Garaventa Wetlands Preserve. The city council agreed and, on

September 14, 2015, declined to certified the F EIR or approve Lafferty’s

second proposed pro ject.

L afferty

, therefore

, returned t o the drawing board and, on September 8,

2017, submitted a revised application . This smaller

- scale project consist ed of4

44 new residences, and a pedestrian bridge across Altamont Creek that

would also serve as a secondary emergency vehicle access (EVA) road

. In

August 2018 , the City published the RFEIR. According to the R FEIR, t he

project w ould result in the permanent removal of 31.78 acres of grasslands

with an additional 1.18 acres being temporarily disturbed for construction of

the pedestrian bridge and EVA road. To address these and other

environmental impacts, various mitigation measures were proposed,

including a cquisition of a n 85

- acre compensatory mitigation site (the Bluebell

site) located in the Springtown Alkali Sink

.

II. The Approval and RF EIR Certification Process.

On August 23, 2018, the City held a neighborhood meeting to discuss

the revised Project. On December 4, 2018, the planning commission then

conducte d a public hearing to consider the R FEIR. Afterward, the planning

commission unanimously agreed to recommend that the city council approve

the R FEIR with a few changes, including a reduction in the number of

proposed residences from 47 to 44.

O n April 22

, 201 9 , the city council held a public hearing on the R FEIR

with t he planning commission’s proposed changes . After the planning

commission presented the R FEIR and numerous citizens, including

representatives of Save the Hill, commented on it, the city council adopted a

resolution certifying the R FEIR and approving the P roject that is now before

us

. The following day, the City filed its notice of determinat ion

.

III. The Petition.

On May 23, 2019 , Save the Hill filed a petition for writ of mandate

(petition) asserting causes of action for , among other things, failure to

consider significant environmental impacts

, to adequately investigate and

evaluat e the no

- proj ect alternative to the P roject

, and to mitigate significant5

environmental impacts. Save the Hill asked the superior court to set aside

and vacate the P roject ’s approval and certification of the R FEIR and to order

the City to prepare a legally adequate environmental impact report (EIR)

.

The administrative record was lodged on September 5, 2019 , and a hearing

was set for January 10 , 2020

.

IV. The Superior Court’s Order.

On January 16, 2020, the superior court iss ued a tentative order

finding the R FEIR’s determination of infeasibility for the no

- project

alternative inadequate because it failed to disclose and evaluate the

possi bility of using existing mitigation funding to make the no

- project

alternative feasible. The court then asked for supplemental briefing on the

issue whether Save the Hill exhausted its administrative remedies in

challenging the R FEIR as inadequate on this basis

.

On April 20, 2020, the superior court issued its f inal order denying

Save the Hill’s petition. Judgment was entered in respondents’ favor on

September 23, 2020. This appeal followed.

DISCUSSION

Save the Hill contends the superior court erred by finding that it failed

to exhaust administrative remedies before raising a legal challenge to the

adequacy of the R FEIR’s evaluation of the possibility of having no project as a

reasonable alternative to the P roject. Additionally, Save the Hill contends

the City violated CEQA by certifying a n R FEIR that failed t o : (1) adequately

evaluate the no

- project alternative ; ( 2 ) adequately evaluate or mitigate the

P roject’s environmental impacts on the threatened vernal pool fairy shrimp

and the hydrologically significant Springtown Alkali Sink ; (3) identify

appropriate compensatory mitigation for the permanent loss of about 32 acres

of seasonal wetlands ; and ( 4 ) evaluate the possibility of preserving Garaventa6

Hills as a means to meet the City’s unrelated contractual obligations to

acquire environmentally sig nificant properties to mitigate the environmental

harms of other projects. We begin with the relevant law.

I. The CEQA Framework

.

The Legislature intended CEQA “ ‘ “ to be interpreted in such manner

as to afford the fullest possible protection to the environment within the

reasonable scope of the statutory language. ” ’ ” ( Sierra Club v. County of

Fresno (2018) 6 Cal.5th 502, 511 ( Sierra Club ) .) “ ‘ “ [T]he purpose of CEQA is

to protect and maintain California’s environmental quality. With certain

exc eptions, CEQA requires public agencies to prepare an EIR for any project

they intend to carry out or approve whenever it can be fairly argued on the

basis of substantial evidence that the project may have a significant

environmental effect

. . . . ” [Citat ion.] The California Supreme Court has

“repeatedly recognized that the EIR is the ‘heart of CEQA.’ [Citations.] ‘Its

purpose is to inform the public and its responsible officials of the

environmental consequences of their decisions before they are made. Thus,

the EIR “protects not only the environment but also informed self

government. ” ’ ” ’ ([Citation], quoting Laurel Heights Improvement Assn. v.

Regents of University of California (1993) 6 Cal.4th 1112, 1123 [26

Cal.Rptr.2d 231, 864 P.2d 502].)” ( California Clean Energy Committee v. City

of Woodland (2014) 225 Cal.App.4th 173, 186 ( California Clean Energy ).)

An EIR is “an informational document” design ed “to provide public

agenci es 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 , 2d par. ; Guidelines,

§ 15003, subd s . (b)

– (e).) “ ‘ Because the EIR must be certified or rejected by7

public officials, it is a document of accountability. ’ ” ( Sierra Club, supr a

, 6

Cal.5th at p. 512.) The general public, “ ‘ being duly informed, can respond

accordingly to action with which it disagrees. ’ ” ( Ibid .)

An interest ed party may enforce a public agency’s compliance with

CEQA by petitioning the superior court for i ssuance of a writ of mandat e

.

( Pub. Resources Code, §§ 21168 .9, subd. (b), 21177; Code Civ. Proc., § 1086

[for standing to seek writ of mandate, party must be “beneficially interested”

in the litigation’s subject matter] .) “ An appellate court ’ s review of the

administrative record for legal error and substantial evidence in a CEQA case

. . . is the same as the trial court ’ s: [We] review[] the agency ’ s action, not the

trial court ’ s decision; in that sense appellate judicial review under CEQA is

de novo. ’ [Citation s .] We therefore resolve the substant ive CEQA issues on

which we granted review by independently determining whether the

administrative record demonstrates any legal error by the [agency] and

whether it contains substantial evidence to support the [agency’s] factual

determinations. ” ( Vineyard Area Citizens for Responsible Growth, Inc. v. City

of Rancho Cordova (2007) 40 Cal.4th 412, 427.) “ ‘[A]n agency may abuse its

discretion under CEQA either by failing to proceed in the manner CEQA

provides or by reaching factual conclusions unsup ported by substantial

evidence. ’ ” ( Banning Ranch Conservancy v. City of Newport Beach (2017) 2

Cal.5th 918, 935 ( Banning ).)

“ ‘ Judicial review of these two types of error differs significantly: While

we determine de novo whether the agency has employed the correct

procedures, “ scrupulously enforc[ing] all legislatively mandated CEQA

requirements ” [citation], we accord greater def erence to the agency ’ s

substantive factual conclusions. In reviewing for substantial evidence, the

reviewing court “ may not set aside an agency ’ s approval of an EIR on the8

ground that an opposite conclusion would have been equally or more

reasonable, ” for , on factual questions, our task “ is not to weigh conflicting

evidence and determine who has the better argument. ” ’ ” ( Sierra Club

,

supra

, 6 Cal.5th at p. 512 .) “ The ultimate inquiry, as case law and the CEQA

guidelines make clear, is whether the EIR in cludes enough detail ‘ to enable

those who did not participate in its preparation to understand and to consider

meaningfully the issues raised by the proposed project. ’ ” ( Id

. at p. 516 .) This

inquiry is g enerally a mixed question of law and fact subject to de novo

review, but to the extent factual questions predominate, a substantial

evidence review appl ies

. ( Ibid. )

II. The superior court erred in finding S ave the Hill failed to

e xhaust its administrative r emedies before challenging the

no

- project al ternative analysis

.

The superior court rejected Save the Hill’s challenge to the adequacy of

the no

- project alternative analysis on the procedural ground of fai lure to

exhaust administrative remedies. Specifically, the court found that while

Save the Hill representatives “express[ed] their desires that the site be

preserved as open space,” they did not mention the environmental documents

or express concern that the City insufficiently studied project alternatives.

As discussed post , CEQA does not requ ire public interest groups such as Save

the Hill, which often are unrepresented by counsel at administrative

hearings, to do more than fairly appris e the agency of their complaints in

order to preserve them for appeal.

When preparing an EIR, CEQA “ ‘ requi res the public agency to consider

feasible alternatives to the project which would lessen any significant adverse

environmental impact. (§§ 21002, 21081; [citation].) One alternative is “no

project.” (See Guidelines, § 15126, subd. (d)(2) [“no project” alternative to be

considered along with proposed project ’ s environmental impact]; [citation].)’9

[Citation.]” ( Planning & Conservation League v. Department of Water

Resources (2000) 83 Cal.App.4th 892, 911 ( Planning & Conservation League ).)

Here

, Save the Hill contends the R FEIR’s evaluat i on of the no

- project

alternative was deficient. T he superior court agreed but

, nonetheless

, found

Save the Hill forfeited the right to challenge the no

- project alternative

evaluation by failing to raise a proper objection during the administrative

process. We review th e court’s finding de novo. ( Clews Land &

Livestock, LLC v. City of San Diego (2017 ) 19 Cal.App.5th 161, 185.) The

following rules apply.

“ ‘ In order to attack a decision that is subject to CEQA, the alleged

grounds for noncompliance must have been presented to the public agency,

and the person attacking the decision must have raised some objection during

the administrative proceedings. (§ 21177, subds. (a), (b).)’ [Citation.]

Although an issue must first have been raised during the administrative

process to be preserved for judicial review, it may be argued in court by a

dif ferent person. [Citation.]” ( California Clean Energy, supra , 225

Cal.App.4th at p. 191.) “ ‘ [T]he objections must be sufficiently specific so that

the agency has the opportunity to evaluate and respond to them.’ [Citation.]

This requirement is known a s the exhaustion doctrine. [Citation.] The

rationale behind this rule is that the public agency should have the

opportunity to receive and respond to articulated factual issues and legal

theories before its actions are subjected to judicial review. [Cit ation.]”

( Porterville Citizens for Responsible Hillside Development v. City of Porterville

(2007) 157 Cal.App.4th 885, 909

– 910 ( Porterville Citizens ).)

Generally speaking, “ ‘ “ ‘ bland and general references to environmental

matters ’ ” ’ ” or “ ‘ “ ‘ isolated and unelaborated ’ ” ’ ” comments do not satisfy

the exhaustion requirement ; rather, t he “ ‘ “ ‘ exact issue ’ ” ’ ” must have been10

presented to the agency

. ( E.g., North Coast Rivers Alliance v. Marin

Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 623, 631

[ plaintiff failed to exhaust administrative remedies where it s letters during

the administrative process failed to apprise the agency of any specific

inconsistencies with the plan’s policies or programs]; South of Market

Community Action Network v. City and County of San Francisco (2019) 33

Cal.App.5th 321, 347 ( South of Market Community Action ) [ plaintiffs’

remarks during the public comment period that reflected “general concerns

abo ut the amount of wind generated by the 5M Project, ‘wind tunnel’ effects,

and requests for mitigation measures” were “ insufficient to raise the specific

issues [they] assert [ed] on appeal”]

. ) At the same time, courts have

acknowledged less specificity is required to preserve an issue for appeal in an

administrative proceeding than in a court proceeding because parties are not

generally represented by counsel before administrative bodies : “ ‘ “ ‘ T o hold

such parties to knowledge of the techn ical rules of evidence and to the

penalty of waiver for failure to make a timely and specific objection would be

unfair to them. ’ ” ’ ” ( Santa Clarita Organization for Planning the

Environment v. City of Santa Clarita (2011) 197 Cal.App.4th 1042, 1051; se e

Planning & Conservation League v. Castaic Lake Water Agency (2009) 180

Cal.App.4th 210, 251 ( Castaic Lake ) [ to satisfy exhaustion doctrine,

petitioner’s objections need only “ ‘fairly apprise[]’ ” the agency of the EIR’s

purported defect ] .)

We conclude on this record Save the Hill’s objections during the

administrative process met this standard of fairly apprising the City of the

RF EIR’s failure to adequately flesh out the feasibility of no t going forward

with th e P roject. For example, durin g the public comment period, Carolyn

Morgan wrote the City to express concern for “the destruction of habitat11

when the hill is bulldozed to make suitable building pads” and to ask whether

Lafferty owned other land in the City “more suitable for building.” Morgan

then queried whether “[Lafferty] could sell the development credits to

another builder in a more suitable area ” so that “ the habitat would be saved

of [ sic ] forever.” In R FEIR comment H

- 2 , the City responded by specifically

directing Morgan to the no

- project/no

- development alternative evaluation,

which indicated the Project S ite is zoned for residential development and that

the P roject’s habitat

- loss impact would be mitigated to in significant levels.

In addition, d uring the April 22, 2019 city council meeting at which the

R FEIR was presented for certifi cation , several Save the Hill representatives

objected to the P roject and voiced support for the alternative of preserving

the P roject S ite as open space in perpetuity. For example, Michelle Mitchell

asked, “ ‘ Is it possible that during [a future] General Plan reevaluation the

City can take the time to look once again to rezoning this property so that it

might remain open space? Given the City’s history of preserving open space

and hillsides, the City’s current General Plan, and the City’s work with the

Altamont Landfill Open Space committee on [a] recommended list of priority

areas for future acquisition and [its work with] eastern Alameda County, I’d

like to request that the City c onsider working with other local agencies [and]

the Save the Hill Group to secure funding from the Altamont Landfill Open

Space Committee and partnering with [a] local park district or districts to

preserve this area as open space.”

Another Save the Hill representative, Michaela Morrow

, then point ed

to the R FEIR’s report that roughly 32 acres of sensitive habitat would be

permanently destroyed and asked the city council

, instead

, to protect the land

as open space in accordance with the general plan

. Save the Hill

representative Bianca Covarelli , in turn, told the city council that funds were12

available for buying and preserving Garaventa Hill s as open space and

“ ‘ we’re working on co llaborating with finding a buyer for this unique

beautiful space to maintain open space. ’ ” Covarelli also reiterated

, “This is

an environmentally and ecologically sensitive, very uniqu e

, hill that should

be honored and left intact as pristine, maintained open space

. . . . Our goal

from Save the Hill Group is to maintain this unique open space

. . . . ”

In response to these comments, several city council members raised

questions to the planning commission regarding the possibility of preserving

the P roject S ite as o p e n space. Council m ember Bob Woerner acknowledged

the community’s desire not to have the P roject and asked whether the City

could buy the land itself and just “ ‘ “ make this all go away

. . . . ” ’ ” In

response, Assistant City A ttorney Catrina Fobian advis ed him that zoning

rules could not be changed at that point and t hat he should l imit his

“ ‘ evaluat [ion] [to] the project that is set before you

— not look at the

possibility of what the City could do with the property as we’re currently not

under contract to purchase that property; Lafferty Communities is under

contract to purchase that property

. So that would be a separate course of

action, apart from your determination as to what to do with this proposal

before you this evening. ’ ”

In the same vein, M ayor John Marchand asked whether anyone had

made an offer to buy Garaventa Hill and whether there were funds available

,

specifically “the Altamont O pen Space funds,” to conserve the Project Site

.

P lanning Manager Steve Stewart responded th at these funds were subject to

“specific re quirements” and we re “tied to sites with significant native

. . .

biological diversity and also for non

- motorized uses

. ” Mayor Marchand also

asked, “ ‘ If we did change the zoning to be permanent open space and decided

that there could be no development on this property, that constitutes a13

taking? ’ ” City Attorney Jaso n Alcala responded , “ ‘Yes; if the Council were to

take that action, you would be faced with the likelihood of a takings

lawsuit. ’ ” 3 T ak ing this counsel to heart

, Councilmember Woerner lamented

,

before voting to certify the R FEIR , “There is no way under the rules that we

have to work under to get to zero

. . . . This is [the] best we can do. We don’t

have a lot of latitude

. . . . ”

T hese discussions show the city council was very much focused

, at Save

the Hill’s prompting, on the feasibility of a no

- project alternative. While the

superior court discounted the m for not specifically referring to the R FEIR’s

project alternatives evaluation

, we conclude they sufficed to fairly apprise the

City of its position. (See Castaic Lake, supra

, 180 Cal.App.4th at p. 251; Save

Our Residential Environment v. City of West Hollywood (1992) 9 Cal.App.4th

1745, 1750 [“ SORE’s objections to the Project, while not identifying the

precise legal inadequacy upon which the trial court’s ruling ultimately rested,

fairly apprised [the agency] that SORE believed the environmental impacts of

developing the Project

. . . would be deleterious to the surrounding

community ” ].)

Moreover

, “ the doctrine of exhaustion of administrative remedies has

not hardened into inflexible dogma. [Citation.] It contains its own

exceptions, as when the subject matter of the controversy lies outside the

administrative agency ’ s jurisdiction [citation]

, when pursuit of an

administrative remedy would result in irreparable harm [citations]

, when the

administrative agency cannot grant an adequate remedy [citations]

, and

when the aggrieved party can positively state what the adminis trative

3 As discussed post ( pp. 19

– 21 ) , the representations by the City’s

attorneys that it would be illegal for the City to attempt to rezone and

purchase the Project Site for conservation were not included, much less

explained, in the RFEIR.14

agency ’ s decision in his particular case would be. ( [Citation.] See also

Exhaustion of Administrative Remedies in California , 56 Cal.L.Rev. 1061,

1068

– 1081.) ” ( Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830,

834. )

The last mentioned exception applies here. The record is replete with

incidences of Save the Hill representatives urging c ouncilmembers to

consider the possibility of obtaining funding to purchase and conserve the

P roject S ite . While Save the Hill did not frame i ts urging in the language of

the R FEIR’s no

- project alternative , the evidence is overwhelming that, had it

done so, the result would have been the same: The City would have rejected

the group’s proposal and certified the R FEIR. As described , when

councilmembers broached the possibility of obtaining such funding to

purchase and conserve Garaventa Hills, they were advised by staff and

attorneys that it was too late and would expose the City to liability under the

takings clause

. They were also instr ucted to limit their focus to the P roject in

front of them

— even though CEQA required them to focus on both the P roject

and feasible alternatives

, including the no

- project alternative

.

On t his record , we may conclude the City had no intention to consider

the alternative of not having th e P roject go forward

. (See Ogo Associates v.

City of Torrance, supra

, 37 Cal.App.3d at p. 834.) Accordingly, we decline to

apply the exhaustion of remedies doctrine as a bar to Save the Hill ’s no

project c hallenge

.

III. The no

-

project alternative analysis i s inadequate.

We thus turn to the merits of Save the Hill ’s claim that the R FEIR’s no

project alternative discussion was inadequate , as it failed to disclose and

analyze information regarding the availability of funding sources that could15

have been used to purchase and permanently conserve the P roject S ite

. The

following standard s apply.

“ CEQA requires that the no project alternative discussed in an EIR

address ‘existing conditions’ as well as ‘what would be reasonably expected to

occur in the foreseeable future if the project were not approved, based on

current plans and consist ent with available infrastructure and community

services.’ (Guidelines, former § 15126, subd. (d)(4), now § 15126.6, subd.

(e)(2).) The existing conditions, supplemented by a reasonable forecast, are

characterized as the no project alternative. The description must be

straightforward and intelligible, assisting the decision maker and the public

in ascertaining the environmental consequences of doing nothing

. ”

( Planning & Conservation League, supra

, 83 Cal.App.4th at p. 911; see Center

for Biological Diversity v. Department of Fish & Wildlife (2015) 234

Cal.App.4th 214, 253.) Moreover, the discussion “ must contain sufficient

detail to help ensure the integrity of the process of decisionmaking by

precluding stubborn problems or serious criticism from being swept under the

rug. ( Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn.

(1986) 42 Cal.3d 929, 935 [citations] ; [citation] .) It must reflect the analytic

route the agency traveled from evidence to action. [Citation.] An EIR which

does not produce adequate information regarding alternatives cannot achieve

the dual purpose served by the EIR, which is to enable the reviewing agency

to make an informed decision and to make the decisionmaker ’ s reasonin g

accessible to the public, thereby protecting informed self

- government.

[Citation.]” (

King s County Farm Bureau v. City of Hanford (1990) 221

Cal.App.3d 692, 733 ; see South of Market Community Action

, supra

, 33

Cal.App.5th at p. 331 [ “ ‘ overriding issue ’ ” is whether the agency

“ ‘ “ reasonably and in good faith ” ’ ” discussed the project in sufficient detail to16

allow the public to discern from the EIR the agency’s analytic route from

evidence to action ] .)

T hus, t o prove prejudicial error, the appellant must demonstrate “ ‘ the

failure to include relevant information preclude[d] informed decisionmaking

and informed public participation, thereby thwarting the statutory goals of

the EIR process.’ [Citation.]” ( Neigh bors for Smart Rail v. Exposition Metro

Line Construction Authority (2013) 57 Cal.4th 439, 463 .)

Here

, t he R FEIR identifies “No Project, No Development” as an

alternative that is environmentally superior to the P roject itself because it

assumes the proposed Project is not approved and the site would remain in

an undeveloped state, with no development of roadways or residences. Yet

t he R FEIR ultimately rejects the no

- project alternative because : (1) it would

not meet the P roject ’s obj ectives of completing implementation of the

Maralisa Planned Development

, 4 contributing to housing availability and

providing housing near employment centers ; and (2) it is “not necessarily

feasible to assume the site would remain undeveloped in the long term”

because the Project S ite is zoned for residential development and there is no

current proposal for the City or other agency to purchase or otherwise

preserve it.

As Save the Hill note s, there is no mention in this discussion about the

existence and feasibility of using available funding sources to purchas e the

P roject S ite and set aside Garaventa Hills for conservation rather than

development

. Yet r espondent s concede th e P roject S ite is eligible for

4 In the 1990 ’ s, development of Garaventa Hills was proposed as part of

the Marlisa Planned Development , a project to construct hundreds of

residences and a school north and south of Altamont Creek

. However,

Garaventa Hills w as later removed from the Maralisa Planned Development

due to environmental and hydrological concerns.17

con s er v ation funding under two settlement agreements to which the City is a

party: the Dougherty Valley Settlement Agreement (DVSA) and the

Altamont Landfill Settlement Agreement (ALSA)

. T he DVSA

, deployed to

mitigate environmental impacts from a large housing project, require d the

developer to pay several million dollars in fees into a settlement fund to be

used by the City for acquisitions , including permanent trails , open space, or

agricultural p reservation easements, in two areas: (1) north of Interstate 580

and east of Collier Canyon Road in Alameda County (which includes the

P roject S ite) ; and (2) the Tassajara Valley area of Contra Costa County

.

The D V SA also mandates with respect to open space acquisitions that

priority be given to “purchases in areas containing unique vegetation and/or

endangered species habitat. ” Respondents do not dispute Garaventa Hills

falls within both the geographic scope of the DVSA , as it sits squarely within

the area north of Interstate 580 and east of Collier Canyon Road in Alameda

County , and wit hin the environmental scope of the DVSA , as t he site

contains both unique vegetation and endangered species habitat

. T he City

itself describes the P roject S ite a s “the last undeveloped area with in the City

limits in the vicinity

, ” with “no additional development ” assumed in its

immediate vicinity

.

T he ALSA, in turn, was executed to address environmental harm from

the expansion of the Altamont Landfill. T he record reflects that as of March

2018 , ALSA’s open space fund contained approximately $11.2 million

earmarked for land acquisitions in designated areas that include the P rojec t

S ite

. To that end, the Altamont Landfill Open Space C ommittee (Open Space

Committee) adopted and the city council approve d a list of priority areas for

future acquisitions with ALSA funds that include the Springtown A lkali S ink18

area , which arguably cove rs Garaventa Hills, upstream and hydrologically

connected to the Sink

.

And similar to the DVSA, the ALSA specifies that “first priority” should

be given to “acquisition of property having significant value for preservation

of native biological diversity and/or wildlife habitat” and that “second

priority” should be given to “acquisition of property having significant value

for visual character and/or non

- moto rized recreation.” Respondents do not

dispute Garaventa Hills meets both of these standards. However, t hey argue

that conservation of Garaventa Hills would not be a reasonably foreseeable

consequence of implementing the no

- project alternative because the Project

Site is already zoned for residential development and there is no known

willing buyer.

We find weaknesses w ith these a rguments. First , a s the superior court

noted when finding the R FEIR’s no

- project alternative evaluation deficient

,

the P roject S ite ’s zon ing designation is not unalter able

. Even our Supreme

Court has recognized “the use of zoning to facilitate the availability of private

recreational facilities to the residents of [a city] is within the scope of the

city’s police power.” ( Ehrlich v. City of Culver City (1996) 12 Cal.4th 854,

881

– 882.) In fact, t he record reflects that, before approving the Project at

hand, the City recognized it s power to change the zoning designation of a 65

-

plus

- acre parcel of environmentally sensitive property in the vicinity of

Garaventa Hills that was privately owned by the Anne and Jason Farber

Foundation (Farber Property). Similar to the P roject S ite, the Farber

Property was home to several special

- status wildlife species, including vernal

pool fairy shrimp , California tiger salamander , California red

- legged frog and

San Joaquin kit fox , that would have be en impacted by development. In19

2011, using DVSA /

ALSA funds, the Ci ty purchased th e Farber Property in

order to permanently preserve it as open space

.

In deciding to acquire the Farber Property , the City applied criteria

developed by the Open Space Committee that prioritized preservation of

native biological diversity an d/or wildlife habitat (primary) and significant

value for visual character and/or nonmotorized recreation (secondary)

. T h e

Open Space C ommittee’s criteria also included the proposed acquisition’s

strategic value in land protection and the existence of additional funding

sources and willing sellers. As to the Farber property’s strategic value, the

City’s staff concluded in recommending acquisition : “The Zoning Designation

is Planned Development. Over the last decade and a half, the property has

been under options with home

- builders. The most recent development

proposal for the property is for 145 residential units clustered to avoid the

vernal pools and seasonal wetlands. The District’s acquisit ion would end

development speculation on the property and preserve the property in

perpetuity. ” (Italics added.)

We agree with Save the Hill that the City’s acquisition of the Farber

Property is noteworthy here, as it illuminates the lack of relevant

information in the R FEIR’s no

- project alternative evaluation regarding the

feasibility of acquiring Garaventa Hills to conserv e it as open space

.

R espondents ’ argu ments

— that there is no evidence G araventa Hills ha d a

willing seller (like t he Farber family ) or ha d been targeted for acquisition

with DVSA or ALSA funds

— further illuminate this informational void

. In

this case, t he City could not apply the criteria that it applied when acqui ring

t he Fa rber Property because the relevant information was not in the R FEIR.

T he R FEIR’s deficiencies o n this issue w ere laid bare at the April 22,

2019 city council meeting when s everal c ouncil m embers asked for the ve r y20

information about the feasibility of acquiring the P roject S ite for open space

(including funding sources ) that Save the Hill complains was omitted. (See

ante

, pp. 11

– 14 .) C ouncil members should have been directed to specific

information in the R FEIR , but there was none . Instead

, the y received

unsupported answers and warnings from the City’s attorneys that any

attempt to acquire the P roject S ite could expose t he City to liability under the

takings clause

. ( See ante

, pp. 11

– 14

. )

This begs the question: If it is il legal or otherwise impossible for the

C ity to acquire and conserve the P roject S ite , why does the R F E IR ’s no

project alternative analysis fail to say so ? 5 As the California Supreme Court

warns, “ ‘[f]ailure to disclose information called for by CEQA may be

prejudicial “regardless of whether a different outcome would have resulted if

the public agency had complied” with the law (§ 21005, subd. (a)).’

[Citati on.]” ( Banning

, supra

, 2 Cal.5th at p. 942; see Laurel Heights

Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d

376, 405 ( Laurel Heights ) [“ An EIR must include detail sufficient to enable

those who did not participate in its preparation to understand and to consider

meaningfully the issues raised by the proposed project ”].)

5 The City’s potential for liability under the takings clause is an issue

beyond the scope of this appeal. We note, however, the issue is not as

straigh tforward as respondents suggest. For one, the “general purpose of

zoning and planning is to regulate the use of land to promote the public

welfare, a power the courts have construed very broadly. Indeed, one of the

traditional uses of the police power li es in providing citizens adequate

recreational opportunities. (See, e.g., Associated Home Builders [

, etc., Inc. v.

City of Walnut Creek (1971)] 4 Cal.3d 633, 638 [‘The elimination of open space

in California is a melancholy aspect of the unprecedented population increase

which has characterized our state in the last few decades

. . . . [G]overnmental entities have the responsibility to provide park and

recreation land to accommodate this human expansion

. . . . ’].)” ( Ehrlich v.

City of Cu lver City, supra

, 12 Cal.4th at pp. 881

– 882.)21

Nor does the City’s potential exposure to liability excuse its duty to

fulfill CEQA’s informational mandate. ( Planning & Conservation League,

supra , 83 Ca l.App.4th at p. 913 [ “the threat of litigation cannot be allowed to

derail environmental review” ] .) Lafferty has never had the absolute right as

owner to develop Garaventa Hills. Rather, Lafferty’s plan has always been

contingent on obtaining certificati on of a legally adequate EIR. ( See Laurel

Heights, supra , 47 Cal.3d at p. 425 [refusing to “ countenance any attempt to

reject an alternative on the ground that the Laurel Heights site has already

been purchased or that activities there have already commenced,” as it

“would be untenable for [defendants] to rely on the result of their own

noncompliance as a basis for determining their future action” ].) As the

Guidelines make clear , an EIR “shall focus on alternatives to the project or

its location whi ch are capable of avoiding or substantially lessening any

significant effects of the project, even if these alternatives would impede to

some degree the attainment of the project objectives, or would be more costly .”

(Guidelines, § 15126.6, subd. (b) , ita lics added.)

Finally, we acknowledge many unknown variables exist regarding the

feasibility of acquiring Garaventa Hills. However, “[d] rafting an EIR

. . .

involves some degree of forecasting. While foreseeing the unforeseeable is

not possible, an agency [nonetheless] must use its best efforts to find out and

disclose all that it reasonably can.” (Guidelines, § 15144.) The fact that two

funding sources exist for the precise purpose of enabling the City to acquire

environmentally sensitive areas su ch as Garaventa Hills for conservation is

just the sort of information CEQA intended to p rovide tho se charged with

making important

, often irreversible

, environmental choices on the public’s

behalf.22

At the end of the day, “ CEQA compels process. It is a m eticulous

process designed to ensure that the environment is protected. Because the

EIR is the heart and soul of CEQA, we must assure that [the] EIR facilitated

the environmental review process as envisioned by CEQA.” ( Planning &

Conservation League, supra

, 83 Cal.App.4th at p. 911.) Here, this process

failed. Lacking adequate information regarding the no

- project alternative,

the city council could not make an informed, reasoned decision on whether

this P roject should go forward

. Accordingly

, its decisions to certify the

R FEIR and approve the P roject must be set aside and a new EIR prepared.

( See Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236 ;

Banning, supra , 2 Cal.5th at p. 942 [ EIR’s omission of relevant information

that resulted in inadequate evaluation of project alternatives constituted

prejudicial error ] ; see also Kings County, supra , 221 Cal.App.3d at p. 735

[EIR’s omission of data comparing natural gas to coal violated CEQA’s

informational mandate an d constituted prejudicial error]; King and Gardiner

Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 869 ( King and

Gardiner ) [EIR’s omission of sufficient information regarding mitigation for

significant water supply impacts “constitutes a prejudici al violation of CEQA

by itself”]

. )

IV. The R FEIR’s analysis and mitigation with respect to vernal pool

fairy shrimp and the Springtown A lkali S ink are adequate.

A few issues remain. In its opening brief, Save the Hill argued the City

violated CEQA by failing to analyze the P roject’s hydrological i mpacts to the

downstream Springtown A lkali S ink and by failing to mitigate the loss of

critical habitat for the threatened vernal pool fairy shrimp (VPFS). After

r espondents challenged th e se arguments in its brief

, Save the Hill omit ted

them from the r eply b rief , thereby abandoning them . ( The Police Retirement23

System of St. Louis v. Page (2018) 22 Cal.App.5th 336, 346, fn. 3.) We

nonetheles s very briefly discuss them here

. 6

“ Under CEQA, ‘If the agency decides to approve a project despite its

significant adverse impacts, the agency must issue findings which specifically

state how the agency has responded to the significant impacts identified in

the EIR.’ ([Citation]; see CEQA, § 21081; CEQA Guidelines, § 15091.) One

such finding is that ‘[c]hanges or alterations have been required in, or

incorporated into, the project which mitigate or avoid the significant effects

on the environment.’ (CEQA, § 21081, subd. (a)(1); CEQA Guide lines,

§ 15091, subd. (a)(1).) Any such finding must be supported by substantial

evidence in the record. ( CEQA Guidelines, § 15091, subd. (b) .)” ( California

Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603,

625 ( California Nativ e Plant ).) “[W]here substantial evidence supports the

approving agency ’ s conclusion that mitigation measures will be effective,

courts will uphold such measures against attacks based on their alleged

inadequacy. ( Laurel Heights, supra , 47 Cal.3d at p. 407.)” ( Sacramento Old

City Assn. v. City Council (1991) 229 Cal.App.3d 1 011, 1027 ( Sacramento Old

City ).)

6 Save the Hill also abandoned a third argument

— that the RFEIR

failed to address impacts from the Project’s proposed construction of a

pedestrian bridge

— after respondents pointed out two factual flaws. First,

Save the Hill mistakenly claimed the FEIR failed to address the need to

realign Altamont Creek to accommodate the bridge when in fact no

realignment was needed. Second, Save the Hill claimed a mitigation

measure included in the DEIR, Traf

- 3, was er roneous ly omitted from the

FEIR. In fact this measure was appropriately omitted because it related to

vehicle traffic while the bridge proposed in the FEIR was limited to

pedestrian traffic.24

A. VPFS.

Garaventa Hills is designated as a special habitat for V PFS. The

R FEIR identifies as a potentially significant impact of the P roject the

permanent loss of approximately 0.004 acre of seasonal wetland that could be

occupied by VPFS

. As mitigation, the R FEIR requires Lafferty to

(1) complete surveys of the area using a protocol acceptable to the USFWS to

determine whether VPFS are present and, if their presence is detected,

(2) obtain authorization from the USFWS for the tak ing of VPFS before

filling or disturbing the seasonal wetland and (3) provide compensatory

habitat for lost habitat at a mitigation ratio of 9:1, 10:1 or 11:1 depending on

the location of the mitigation site, as recommended in the East Ala meda

County Conservation Strategy

.

Save the Hill con demns these mitigation measures as inadequate

because t hey are conditional, requiring implementation only if VPFS are

actually found on the P roject S ite

. However, as respondents note, the City

assumed f

or purposes of the RF EIR that VPFS are present

, even though they

had not been detected

, when adopting these measures. Moreover, CEQA

permits an agency to defer to a future date the adoption of more specific

mitigation measure s: “ [ F ] or kinds of impacts for which mitigation is known

to be feasible, but where practical considerations prohibit devising such

measures early in the planning process (e.g., at the general plan amendment

or rezone stage), the agency can commit itself to eventually devisin g

measures that will satisfy specific performance criteria articulated at the

time of project approval. Where future action to carry a project forward is

contingent on devising means to satisfy such criteria, the agency should be

able to rely on its commi tment as evidence that significant impacts will in

fact be mitigated. ” ( Sacramento Old City, supra , 229 Cal.App.3d at pp. 1028

–25

1029; see California Native Plant , supra

, 172 Cal.App.4th at p. 621 [“the

details of exactly how mitigation will be achieved under the identified

measures can be deferred pending completion of a future study”] .) The

RFEIR meets this standard by adopting specific performance criteria for

Lafferty to follow in case VPFS ar e found at the Project Site

.

Thus, because substantial evidence supports the City’s finding that the

VPFS mitigation measures are adequate

, we affirm it. ( Sacramento Old City,

supra , 229 Cal.App.3d at p. 1027; California Native Plant, supra , 172

Cal.App.4th at p. 625.)

B. Springtown Alkali Sink.

Save the Hill also contends the RF EIR failed to analyze foreseeable

significant hydrological impacts to the Springtown A lkali S ink, a n

environmentally sensitive land form downstream from the P roject S ite. (See

Guidelines, § 15125, subd. (c) [“EIR must demonstrate that the significant

environmental impacts of the proposed project were adequately investigated

and discussed”].) Save the Hill relies on the EIR for the Maralisa Planned

Development

, which acknowledged: “Water quality degradation from project

development area has the potential to adversely affect the nearby

downstream Springtown alkali sink area, and to contribute to water quality

problem s of Alameda Creek and ultimately San Francisco Bay.” Based on

this acknowledgment

, Save the Hill claims it was arbitrary and capricious for

the City to omit discussion of these impacts in the R FEIR.

Respondents have a twofold response . First, they note Save the Hill

does not dispute the R FEIR’s finding

, based on an expert’s hydrological

study

, that the P ro ject will not cause significant hydrological impacts t o the

Garaventa Wetlands Preserve, an area adjacent to the P roject S ite.

A fortiori, respondents continue, there must be no significant impacts t o the26

more distant Springtown A lkali S ink. Second, respondents insist the

Maralisa Planned Development’s EIR is irrelevant here because th at project

was significantly larger

, involv ing 230 acres and several hundred residential

units . T his P roject involves only 31.7 acres and 44 residential u nits.

We agree with these points , which Save the Hill does not dispute.

Accordingly, b ecause the hydrological expert’s report constitutes substantial

evidence supporting the City’s finding of no significant hydrological impacts

as a result of th e P roject , we uphold the R FEIR on this issue. (See The Police

Retirement System of St. Louis v. Page , supra

, 22 Cal.App.5th at p. 346, fn . 3;

Laurel Heights, supra , 47 Cal.3d at p. 407. )

V. The identified compensatory mitigation measure for permanent

loss of s ensitive habitat is adequate.

The R FEIR recognizes the permanent loss of up to 31.78 acres of

habitat that supports the California tiger salamander , California red

- legged

frog

, San Joaquin kit fox

, California burrowing owl , and potentially the

American ba dger . The R FEIR therefore requires Lafferty to provide offsite

compensatory mitigation at a 2.5:1 to 3:1 ratio for th is permanent habitat

loss for each of these species, which can be on the same site if the site has

sufficient space. Lafferty proposed th e Bluebell site for this compensatory

mitigation, an 85

- acre parcel in the Springtown A lkali S ink area that

contains part of Altamont Creek

, sensitive soil, vernal pools, and numerous

plant and animal species

.

Save the Hill c ontends the Bluebell site i s inadequate for mitigation

because it is a lready p rotected open space under local law and , thus, cannot

make up for the los t habitat

. The loc al law to which the group refers is the

City’s general plan , goal objective OSC

- 1.1, policy P6 : “The City shall

preserve and maintain

. . . the Springtown Alkali Sink area as [an] important27

wildlife and plant habitat[] through preservation of open space i n and around

these areas.”

Respondents counter th e general plan provision is merely aspirational

.

It does not accomplish w hat t he R FEIR’s measure does

— creat ion of a

perpetual legal restrain t on development at the Bluebell site supported by

funding for both upkeep and enforc e ment. R espondents further note the City

retains the right to compel Lafferty to protect a different mitigation site if the

Bluebell site proves inadequate.

We agree with respondents . U ndisputedly, the Bluebell site is suitable

for mitigation, as it con tains sensitive habitat that houses a variety of plant

and animal species. Moreover, t he R FEIR require s th is site, which is

currently privately owned

, to be placed “under [ a ] permanent ea sement with

an endowment for restoration and management in perpetuity.” The general

plan requires no thing of the sort

. And , if the Bluebell site proves inadequate

for the mitigation task with respect to any of the identified animal species,

the R FEIR aut horizes the City to compel Lafferty to find and protect an

alternative site. (See Preserve Wild Santee v. City of Santee (2012) 210

Cal.App. 4 th 260 , 279 [“ Generally, an agency does not need to identify the

exact location of offsite mitigation property for an EIR to comply with

CEQA ”] ; Guidelines, § 15126.4 , subd. (a)(1)(B) [ “ specific details of a

mitigation measure

. . . may be developed after project approval when it is

impractical or infeasible to include those details during the project’s

en vironmental review provided that the agency (1) commits itself to the

mitigation, (2) adopts specific performance standards the mitigation will

achieve, and (3) identifies the type(s) of potential action(s) that can feasibly

achieve that performance standa rd ” ].)28

Finally, we turn to Save the Hill ’s argument that the Bluebell site’s

protection under a conservation easement would not result in the provision of

any new resources to offset or compensate for the habitat permanently l ost to

the P roject. “It woul d simply ensure the Bluebell Site would not also be lost.”

Save the Hill relies on King and Gardiner , supra

, which rejected an EIR’s

plan to mitigate the loss of agricultural land to oil and gas activity by

implementing agricultural con servation easements . The appellate court

concluded “ implementation of agricultural conservation easements for the

289 acres of agricultural land estimated to be converted each year would not

change the net effect

. . . [that] there would be 289 fewer acres of agric ultural

land in Kern County.” ( 45 Cal.App.5th at pp. 875

– 876

. )

We do not find King and Gardiner, supra

, helpful in this case

. First, it

involved the proposed loss of 7,450 acres of land to a n oil and gas drilling

project (45 Cal.App.4th at pp. 871, 875

– 876 ), as compared to the proposed

loss in this case of about 32 acres. More importantly, CEQA does not require

mitigation measures that completely eliminate the environmental impacts of

a project . R ather, CEQA permits mitigati on measures that would

substantially lessen the significant environmental effects of the project.

(§ 21002.) T he Guidelines , in turn, provide that mitigation may include

“ [ c ] ompensating for the impact by replacing or providing substitute resources

or environments

. . . . ” (Guidelines, § 15370, subd. (e)

, italics added .)

Consistent with this guideline, a s King and Gardiner a ppears to recognize

( 45 Cal.App.5th at p

. 875 )

, conservation easements are an accepted part of

“ ‘ agencies’ toolboxe s as available mitigation’ ” for environmental impacts.

( See Masonite Corp. v. County of Mendocino (2013) 218 Cal.App.4th 230, 238

–

239 [ “[agricultural conservation easements] m ay appropriately mitigate the

direct loss of farmland when a project converts agricultural land to a29

nonagricultural use, even though an ACE [ agricultural conservation

easement] does not replace the onsite resources” ]; see Friends of Kings River

v. County of Fresno (2014) 232 Cal.App.4th 105, 124

– 126 [ discussing case law

re cognizing that offsite preservation of habitats for endangered species,

which is functionally similar to an agricultural conservation easement, is an

accepted means of mitigating impacts on biological resources ].)

Thus, for the reasons stated, we conclude substantial evidence supports

the City’ s conclusion that preserv ation of the Bluebell site is a dequate

compensatory mitigation for the permanent loss of 31.78 acres of habitat

under th e P roject. ( See Sierra Club, supra , 6 Cal.5th at p. 512

. )

VI. Save the Hill lacks standing to challenge the City’s compliance

with the terms of the DVSA or ALSA.

Last, Save the Hill contends the City violated CEQA by failing to

pursu e the possibility of preserving Garaventa Hills in order to meet its

obligations under the DV SA and ALSA to acquire environmentally important

properties as compensatory mitigation to offset the environmental harms of

other City projects

. Save the Hill failed to raise this issue at any point prior

to this appeal

, thereby forfeiting review of it. ( Sea & Sage Audubon

Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417.) Moreover, it in any

event lacks merit. Save the Hill was not a party to the DVSA or ALSA and

therefore lacks standing to enforce any obligation arising from tho se

agreements against the City. ( Republic Indemnity Co. v. Schofield (1996) 47

Cal.App.4th 220, 227.)

DISPOSITION

The judgment is reversed. The matter is remanded to the superior

court with instructions to : (1) vacate its order denying Save the Hill’s

challenge by way of petition for writ of mandate to the RFEIR’s no

- project

alternative analysis ; (2) enter a modified order and a modified judgment30

consistent with our opinion that Save the Hill’s challenge to the n o

- project

alternative analysis was both preserved and meritorious ; and ( 3 ) issue a

peremptory writ of mandate direct ing the City to set aside the certification of

the RF EIR and approval of the P roject. Save the Hill is entitled to recover

costs on appeal.

_________________________ Jackson, P. J.

WE CONCUR:

_________________________ Simons, J.

_________________________ Needham, J.

A161573 / Save the Hill Group v. City of Livermore31

A1 6 1573 / Save the Hill Group v. City of Livermore

Trial Court: Superior Court Alameda County

Trial Judge: Frank Roesch

Counsel: Greenfire Law and Jessica L. Blome , for Plaintiff and

Appellant

.

Jason Rudy Alcala

, City Attorney

, Kelly Joanne Trujillo

, Assistant City Attorney ; Remy Moose Manley,

Sabrina V. Teller and Elizabeth R. Pollock for

Defendant and Respondent.

Buchalter, Douglas C. Straus and Alicia Guerra, for Real

Party in Interest and Respondent.