Filed 3/3/22

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

CRENSHAW SUBWAY 

COALITION,

Plaintiff and Appellant,

v.

CITY OF LOS ANGELES et al.,

Defendants and 

Respondents;

HAAS BHCP PROPERTY 

OWNER, LLC,

Real Party in Interest 

and Respondent.

 B309288

 (Los Angeles County

 Super. Ct. No. BS174553)

* This opinion is published as to all parts except Part II of 

the Discussion.
2

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Mitchell L. Beckloff, Judge. Affirmed.

Strumwasser & Woocher, Beverly Grossman Palmer, 

Caroline Chiappetti, and Salvador E. Perez for Plaintiff and 

Appellant. 

Michael N. Feuer, City Attorney, Terry Kaufmann-Macias, 

Assistant City Attorney, John W. Fox, Craig Takenaka, Mei-Mei 

Cheng, Elaine Zhong, Deputy City Attorneys; Burke, Williams & 

Sorensen, Charles E. Slyngstad, Nicholas J. Muscolino; Thomas 

Law Group and Amy Higuera for Defendants and Respondents. 

Alston & Bird and Edward J. Casey for Real Party in 

Interest and Respondent.

* * * * * *

After the City of Los Angeles (the City) approved a project 

aimed at “revitaliz[ing]” a neighborhood in South Los Angeles 

through the renovation and expansion of an existing shopping 

mall and the construction of additional office space, a hotel, and 

new apartments and condominiums, a neighborhood advocacy 

group sued to enjoin the project under the federal Fair Housing 

Act (42 U.S.C. § 3601 et seq.) and California’s Fair Employment 

and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The 

group’s lawsuit rests on a “gentrification” theory—namely, that 

the project will lead to an “influx of new, more affluent residents”; 

that this influx will lead to “increased rents and increased 

property values that [will] put pressure” on the low-income 

residents who currently live near the project site; and that these 
3

higher rents will push the low-income residents out of “their 

neighborhoods.” Because a majority of these low-income 

residents are Black or Latinx, the group alleges, the project has 

the effect of “mak[ing]” “dwellings” “unavailable” “because of 

race[ and] color” in violation of the disparate impact prong of the 

Fair Housing Act (and, thus, by extension, the FEHA). 

Is a disparate impact claim based on this gentrification 

theory cognizable under the Fair Housing Act? We conclude it is 

not, and this conclusion is dictated by the United States Supreme 

Court’s decision in Texas Department of Housing & Community 

Affairs v. Inclusive Communities Project, Inc. (2015) 576 U.S. 519 

(Inclusive Communities). In no uncertain terms, Inclusive 

Communities held that the Fair Housing Act does not afford relief 

if such relief “cause[s] race to be used and considered in a 

pervasive and explicit manner [in deciding whether] to justify 

governmental or private actions” because doing so “inject[s] racial 

considerations into [the] decision.” (Id. at p. 543.) Because the

Fair Housing Act itself was enacted to combat (and hence only 

prohibits) those policies and practices that “ha[ve] a ‘significantly

disparate impact on nonwhites’” (Hardie v. NCAA (9th Cir. 2017) 

876 F.3d 312, 319 (Hardie), quoting Wards Cove Packing Co. v. 

Atonio (1989) 490 U.S. 642, 658 (Wards Cove), italics added), the 

gentrification theory would be available—if at all—only when the 

low-income residents who are displaced by revitalization efforts 

are minorities. Thus, recognizing the group’s gentrification 

theory would obligate the City to “use[] and consider[]” race in 

making local planning decisions, and thus the group’s 

gentrification theory is not cognizable under the Fair Housing 

Act (and, by extension, the FEHA). 
4

For this reason and others, we affirm the dismissal of the 

group’s gentrification-based claims under the Fair Housing Act 

and FEHA. In the unpublished portion of our opinion, we also 

affirm the dismissal of the group’s claim under the California 

Environmental Quality Act (CEQA) (Pub. Resources Code, § 

21000 et seq.) as untimely.

FACTS AND PROCEDURAL BACKGROUND

I. Facts1

A. The Project

In South Los Angeles, there is a 43-acre parcel of property, 

shaped somewhat like a shark’s dorsal fin, that is bounded on the 

north by 39th Street, on the east by Crenshaw Boulevard, on the 

south by Stocker Street, and on the west by Santa Rosalia Drive 

and Marlton Avenue; Martin Luther King Jr. Boulevard runs 

east-west through the center of the parcel. The parcel is 

currently home to the Baldwin Hills Crenshaw Plaza, which 

features an enclosed mall, a movie theatre, a few commercial 

establishments, a small amount of office space, and surface 

parking lots and parking structures; the parcel contains no 

residential dwellings. The Crenshaw/LAX light rail line, which 

currently is under construction, will eventually run through the 

parcel. 

Beginning in 2008 and after various proposals, three 

private entities—Capri Urban Baldwin, LLC; Capri Urban 

Crenshaw, LLC; and Capri Urban Rosalia, LLC (collectively, the 

1 These facts are drawn from the operative third amended 

complaint as well as documents judicially noticed by the trial 

court.
5

developer)2—applied to the City to redevelop the parcel by

leaving most of the mall and theatre intact, but demolishing a 

portion of the mall and the office space and constructing a 

“mixed-use” facility with a net floor area exceeding 3 million 

square feet (the Project). At the end of the 20-year lifespan of the 

Project’s construction, the Project would have 331,838 square feet 

of retail and restaurant space; 143,377 square feet of office space; 

a new, 400-room hotel; and 961 new residential units, comprised 

of 551 condominiums for purchase and 410 apartments for rent.

Ultimately, the developer agreed to set aside 10 percent of each 

type of the residences for affordable housing—specifically, 5 

percent of the condominiums would be available only to persons 

earning less than 50 percent of the area median income and 

another 5 percent would be available for members of the 

workforce earning at most 150 percent of the area median 

income; and 5 percent of the apartments would be available to 

persons earning less than 60 percent of the area median income 

and another 5 percent would be available to persons earning less 

than 80 percent of the area median income. The developer also 

agreed to hire 25 percent of the workforce used to build and 

operate the Project from the local community.

B. The surrounding neighborhood

The Project is “near” the Leimert Park neighborhood and 

within the “Crenshaw Corridor.” Together, these areas have 

“served as the political, cultural, and commercial heart of Black 

Los Angeles” since the 1960’s, and are one of the “last majority 

Black communities in the City of Los Angeles.” Census data 

indicates that in Leimert Park, 65 percent of the residents are

2 The parcel was subsequently purchased by HAAS BHCP 

Property Owner, LLC, which is now the developer.
6

Black and 25 percent of the residents are Latinx, and in the 

Crenshaw Corridor, 43 percent of the residents are Black and 47 

percent of the residents are Latinx. 

C. Administrative proceedings

1. Department of City Planning

The Los Angeles City Council has designated the 

Department of City Planning (the Department) as its “Advisory 

Agency” to approve vesting tentative tract maps for anticipated 

land use projects. (L.A. Mun. Code, §§ 17.03.A., 17.06.) Once

approved, a vesting tentative tract establishes “certain rights to 

proceed with development.” (Id., § 17.02.) 

On December 21, 2016, the Department held a noticed 

hearing to decide, among other things, whether (1) to approve the 

vesting tentative tract map for the Project, and (2) to certify the 

final environmental impact report that had been prepared for the 

Project. 

On January 18, 2017, the Department issued a letter of 

determination that (1) approved the vesting tentative tract map, 

and (2) certified the final environmental impact report. 

The Department did not issue a notice of determination 

until March 20, 2017, which was 61 days after the issuance of its 

letter of determination. 

2. City Planning Commission

In July 2017, the City Planning Commission held a hearing 

to consider several other issues necessary to enable the Project to 

move forward—chiefly, whether to recommend that the City 

Council change the zoning and height district designation of the 

Project’s parcel. 

On August 3, 2017, the City Planning Commission issued a

letter stating its finding that no further environmental impact 
7

analysis was required, and recommending that the City Council 

adopt the proposed changes to the zoning and height district 

designation.

3. Planning and Land Use Management (PLUM) 

Subcommittee

At the behest of several groups who appealed the City 

Planning Commission’s determination, the City Council’s PLUM 

Subcommittee held a hearing in early June 2018. The PLUM 

Subcommittee subsequently issued a report recommending denial 

of the appeals, concluding that no further environmental impact 

analysis was required, and recommending that the City Council 

adopt the proposed changes to the zoning and height district 

designation.

4. City Council

At its June 27, 2018 meeting, the City Council unanimously 

voted to adopt the PLUM Subcommittee’s recommendations, 

thereby denying the appeals, concluding that no further 

environmental impact analysis was required, and enacting the 

ordinances necessary to change the zoning and height district 

designation of the Project’s parcel.

II. Procedural Background

A. Operative pleading

On July 30, 2018, the Crenshaw Subway Coalition (the 

Coalition) sued the City of Los Angeles and the City Council 

(collectively, the City), as well as the developer, to enjoin the 

Project. The Coalition is a “nonprofit organization of residents, 

property owners and merchants in the South Los Angeles 

community” who are “firmly opposed” to “gentrification” that 

would “displace long-standing Black and Latinx residents.” In 
8

the operative pleading, the Coalition alleges that the Project 

violates (1) the Fair Housing Act, (2) FEHA, and (3) CEQA.3 

B. Dismissal of the fair housing-related claims

1. The allegations

In the operative third amended complaint,4 the Coalition 

alleged that the Project violated the Fair Housing Act and FEHA 

due to the gentrification it would cause. Specifically, the 

Coalition alleged that (1) the Project will lead to an “influx of 

new, more affluent residents,” (2) this influx will lead to 

“increased rents and increased property values that [will] put 

pressure on existing, lower income residents” in the 

neighborhoods near the Project, (3) these higher rents will “push” 

the lower-income residents, who are “already rent-burdened” 

because they spend more than 50 percent of their household 

income on rent, “from their homes in the neighborhoods around 

the Project,” and (4) this displacement will fall predominantly 

upon “lower income Black and Latinx residents” living in those 

neighborhoods. The danger of displacement due to the Project is 

particularly high, the Coalition alleged, because a study

conducted by the City using data from 2000 to 2014 showed that 

these neighborhoods already had a “high” or “very high” “index of 

displacement.” The Coalition’s pleading acknowledged that “the 

goal[s] of the Project” were “to serve as ‘a catalyst for economic 

3 The initial pleading filed on July 30, 2018, was a petition 

for a writ of mandate against the City alleging only a violation of 

CEQA. The Coalition filed a first amended petition and 

complaint on September 24, 2018, which added the two housing 

discrimination claims against the City and the developer. 

4 The trial court had sustained the City and the developer’s 

demurrer to the second amended complaint with leave to amend. 
9

development in South Los Angeles,’” “‘to contribute to the 

revitalization of the West Adams-Baldwin Hills-Leimert Park’” 

neighborhoods, and “‘to eliminate and prevent the spread of 

blight and deterioration by providing housing ownership 

opportunities, together with retail, hotel, office and restaurant 

uses, and public open space,’” but alleged that this justification 

was “no[t] legally sufficient” and could in any event “be served by 

other, properly[ ]enacted policies, practices and decisions that 

have a less discriminatory effect.” As relief, the Coalition sought 

an injunction halting the Project unless and until “adequate 

measures” were taken “to ensure that the Project would not 

displace protected minorities.” The Coalition’s pleading did not 

specify what measures would be adequate: At some points

during the administrative review process, the Coalition suggested 

that setting aside all of the new, 961 residential units for lowincome residents; at other points, the Coalition suggested that 

the developer also be required to build “other permanent 

affordable housing . . . near the Project.

2. Demurrer

The City and the developer demurred to the Coalition’s fair 

housing-related claims. After briefing and a hearing, the trial 

court in May 2019 overruled the demurrer. Specifically, the court 

found that the City’s decision approving the 20-year-long Project 

constituted a “policy” (rather than a “one-off decision”) and that 

the Coalition had “met its pleading burden” of alleging that the 

Project would have a “disparate impact” by “displac[ing] Black 

and Latinx populations in the immediate environs.” 

3. Motion for judgment on the pleadings

In July 2020, the City and the developer filed a motion for 

judgment on the pleadings based on new case law—namely, the 
10

opinion in AIDS Healthcare Foundation v. City of Los Angeles

(June 15, 2020, B303308), review den. and opn. ordered nonpub.

Sept. 2, 2020, S263550 (AIDS Healthcare), which rejected a 

gentrification-based lawsuit under the Fair Housing Act. After 

briefing and a hearing, the trial court granted the motion. The 

court ruled that AIDS Healthcare was “equally applicable” in this 

case “because of the substantially similar allegations.” 

C. Dismissal of CEQA Claim

In the second amended complaint, the Coalition alleged 

that the City had violated CEQA. The City demurred to that 

claim. In February 2019, the trial court sustained the demurrer

(and granted leave to amend, but the Coalition elected not to do 

so and instead to stand on its claim as previously alleged). The 

court found that the Coalition’s challenge to the City’s CEQA 

finding was untimely because the Coalition’s July 2018 lawsuit 

was filed more than 30 days after the City posted its notice of 

determination in March 2017 and, alternatively, more than 180 

days after the City’s anointed advisory agency approved the 

vesting tentative tract map and certified the final environmental 

impact report in January 2017. 

D. Appeal

Following the entry of judgment against the Coalition on 

all of its claims in September 2020, the Coalition filed this timely 

appeal.

DISCUSSION

The Coalition argues that the trial court (1) erred in 

granting judgment on the pleadings on its Fair Housing Act and 

FEHA claims because the California Supreme Court 

subsequently ordered the AIDS Healthcare decision depublished, 
11

and (2) erred in sustaining the demurrer to its CEQA claim 

because its July 2018 lawsuit was timely filed.

Our task in evaluating orders granting judgment on the 

pleadings or sustaining a demurrer without leave to amend is the 

same: We accept as true the allegations in the operative pleading 

along with any documents properly subject to judicial notice, and 

ask (1) whether the pleading states a “legally cognizable cause of 

action” and, if it does, (2) whether the pleading also alleges facts 

sufficient to support that cause of action. (IMO Development

Corp. v. Dow Corning Corp. (1982) 135 Cal.App.3d 451, 457; 

Sparks v. City of Compton (1976) 64 Cal.App.3d 592, 596-597; 

Alameda County Waste Management Authority v. Waste 

Connections US, Inc. (2021) 67 Cal.App.5th 1162, 1174 (Alameda 

County); Code Civ. Proc., § 438, subds. (c)(1)(B) & (d).) Our 

review is de novo. (Alameda County, at p. 1174.) Leave to amend 

is properly denied when a plaintiff’s underlying theory is legally 

invalid and cannot be cured by additional allegations. (Yvanova 

v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.)

I. Fair Housing Act and FEHA Claims

The Coalition contends that the trial court’s dismissal of its 

Fair Housing Act and FEHA claims was legally incorrect. Before 

addressing the viability of the Coalition’s claim under each 

statute, we address two threshold issues.

A. Threshold issues

1. Automatic reversal

The Coalition asserts that we need not analyze the viability 

of its claims under the Fair Housing Act or FEHA because (1) the 

trial court’s ruling granting judgment on the pleadings was based 

solely on the AIDS Healthcare opinion, and the depublication of 

that opinion means that there is no basis for the court’s ruling, 
12

which must therefore be automatically reversed; and (2) we may 

not consider any further arguments in favor of affirmance 

because (a) the City and the developer never sought appellate 

review of the trial court’s earlier order overruling their demurrers

to these claims, and (b) the City and the developer are judicially 

estopped from making any argument in favor of dismissal beyond

an AIDS Healthcare-based argument because such arguments 

would be inconsistent with their earlier position that AIDS 

Healthcare alone warranted dismissal.

We reject these arguments.

To begin, the depublication of AIDS Healthcare is not 

dispositive of this appeal. Our task is to review the ruling

dismissing the Coalition’s claims, not its rationale. (Alameda 

County, supra, 67 Cal.App.5th at p. 1174; People v. Zapien (1993) 

4 Cal.4th 929, 976 [noting “firmly established” rule that appellate 

courts review the trial court’s ruling, not its rationale].) Nor can 

we infer our Supreme Court’s disapproval of the reasoning or 

holding of AIDS Healthcare from the fact of depublication; the 

California Rules of Court expressly preclude us from doing so. 

(Cal. Rules of Court, rule 8.1125(d) [“A Supreme Court order to 

depublish is not an expression of the court’s opinion of the 

correctness of the result of the decision or of any law stated in the 

opinion.”]; accord, Farmers Ins. Exchange v. Superior Court 

(2013) 218 Cal.App.4th 96, 108.)

We are also not barred from considering alternative 

arguments in support of the trial court’s order. The failure of the 

City and the developer to seek appellate review of the trial court’s 

prior order overruling their demurrers to the third amended 

complaint is of no moment. They had no right to appeal that 

prior order in the first place (e.g., Apple Inc. v. Superior Court
13

(2017) 18 Cal.App.5th 222, 238-239 [“‘An order overruling a 

demurrer is not directly appealable . . . .’”]), and their failure to 

seek a discretionary writ from that prior order would not have 

precluded them from attacking that ruling in an appeal from a 

final judgment (e.g., People v. Mena (2012) 54 Cal.4th 146, 156); 

their failure to seek appellate review therefore does not preclude 

them from making arguments that attack the prior demurrer 

ruling when articulating alternative grounds for affirming the 

trial court’s subsequent order granting their motion for judgment 

on the pleadings. The City and the developer are also not 

judicially estopped from making arguments beyond those based 

on AIDS Healthcare. Judicial estoppel only precludes a litigant 

from taking inconsistent positions before a tribunal (e.g., MW 

Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., 

Inc. (2005) 36 Cal.4th 412, 422); arguing that a theory is invalid 

for one reason is not inconsistent with arguing that a theory is 

invalid for another reason, at least where, as here, the reasons 

are in the alternative and not inconsistent with one another. 

Indeed, the Code of Civil Procedure expressly authorizes a 

litigant to file a motion for judgment on the pleadings after filing 

an unsuccessful demurrer if the motion for judgment on the 

pleadings is made on a different ground. (Code Civ. Proc., § 438, 

subd. (g)(2).) Here, the grounds advanced in the prior demurrer 

are different from the ground upon which we are now affirming.

2. Scope of this appeal

The Coalition’s gentrification theory implicates issues of

urban renewal, socioeconomic inequality, and racial injustice. 

How to balance the social benefits of revitalizing blighted 

neighborhoods against the resulting social costs of gentrification 

is a question for our elected officials—not for this court. Elected
14

officials are the ones who must grapple with these issues in 

deciding which projects to approve, where they should be sited, 

and how to mitigate the potential negative impacts of those 

projects on the surrounding neighborhoods by requiring or 

incentivizing developers to take actions that benefit local 

residents (such as setting aside affordable housing or employing 

local labor). (E.g., L.A. Mun. Code §§ 12.22.A.25, 12.22.A.31, 

12.24.U.26, 14.00.A.10; L.A. Admin. Code, § 5.582.) 

Our task is much more limited: We decide only whether 

the claims that the Coalition alleged in the operative complaint 

are legally cognizable under the Fair Housing Act and FEHA. 

For the reasons described below, the Inclusive Communities

decision by the United States Supreme Court dictates the 

conclusion that they are not.

B. Fair Housing Act claim

1. The Fair Housing Act, generally

As its name suggests, the aim of the Fair Housing Act is “to 

provide, within constitutional limitations, for fair housing 

throughout the United States.” (42 U.S.C. § 3601; 82 Stat. 81.) 

To do this, and among other ways, the statute makes it unlawful 

to “make . . . unavailable . . . a dwelling to any person because of 

race, color, religion, sex, familial status, or national origin.” (42 

U.S.C. § 3604(a).)5 As pertinent here, “[a] dwelling can be made . 

. . unavailable by, among other things, [a practice or policy] that 

limits the availability of affordable housing” for protected groups. 

5 In full, this provision provides that it shall be unlawful “[t]o 

refuse to sell or rent after the making of a bona fide offer, or to 

refuse to negotiate for the sale or rental of, or otherwise make 

unavailable or deny, a dwelling to any person because of race, 

color, religion, sex, familial status, or national origin.” (42 U.S.C. 

§ 3604(a).) 
15

(Mt. Holly Gardens Citizens in Action, Inc. v. Township of Mt. 

Holly (3d Cir. 2011) 658 F.3d 375, 381 (Mt. Holly).)

There are two types of Fair Housing Act claims. The first is 

a disparate treatment claim. To prevail, the plaintiff bringing a 

disparate treatment claim “‘must establish that the defendant 

had a discriminatory intent or motive’” when it undertook the 

challenged practice or policy. (Inclusive Communities, supra, 576 

U.S. at p. 524, quoting Ricci v. DeStefano (2009) 557 U.S. 557, 

577.) The second is a disparate impact claim. To prevail, the 

plaintiff bringing a disparate impact claim must establish that 

the challenged practice or policy has “a ‘disproportionately 

adverse effect on minorities [or other protected group]’ and [is] 

otherwise unjustified by a legitimate rationale.” (Inclusive 

Communities, at p. 524; see also id. at p. 534.) 

2. Disparate impact claims, specifically

Disparate impact claims are critical to the efficacy of the 

Fair Housing Act. Liability that turns solely on a showing of 

discriminatory impact (rather than upon discriminatory intent or 

motive) “permits plaintiffs to counteract unconscious prejudices 

and disguised animus,” and thus “serves to uncover unconscious 

or consciously hidden biases.” (Inclusive Communities, supra, 

576 U.S. at p. 540; Avenue 6E Investments, LLC v. City of Yuma

(9th Cir. 2016) 818 F.3d 493, 503 (Avenue 6E).) Liability that 

turns solely on a showing of discriminatory impact (rather than 

upon discriminatory intent or motive) “also targets ‘artificial, 

arbitrary, and unnecessary barriers’ to minority housing and 

integration that can occur through unthinking, even if not 

malignant, policies” and practices. (Avenue 6E, at p. 503, quoting 

Inclusive Communities, at p. 540.)
16

At the same time, the United States Supreme Court has 

held that the Fair Housing Act is not a panacea against all 

wrongs. Instead, it was enacted to address historically 

entrenched “segregated housing patterns” and was designed to

end that segregation by “eradicat[ing] discriminatory practices 

within [the housing] sector” that “exclude minorities.” (Inclusive 

Communities, supra, 576 U.S. at pp. 528, 539.) It was not meant 

to “displace[] . . . valid governmental policies.” (Id. at p. 540.) 

Because disparate impact liability looks solely to disproportionate 

effect without regard to the intent or motive behind the practice 

or policy, and because a practice or policy may end up having a 

disproportionate effect on minorities even when it serves a valid 

government policy, the Supreme Court has seen fit to “properly 

limit[]” disparate impact claims by articulating “safeguards” and 

“cautionary standards” to ensure that such claims do not sweep 

beyond the purpose—and hence the scope—of the Fair Housing 

Act. (Inclusive Communities, at pp. 540, 541, 544; Oviedo Town 

Center II, L.L.L.P. v. City of Oviedo (11th Cir. 2018) 759 

Fed.Appx. 828, 834 (Oviedo Town Center) [observing how 

Inclusive Communities “cabin[ed] disparate-impact liability” 

because that “theory of liability . . . would create substantial 

difficulties if applied too expansively”].) Whether “the merits” of 

an alleged disparate impact claim remain within these limits is to 

be “rigorous[ly] examin[ed]” “at the pleading stage.” (Burbank 

Apartments Tenant Assn. v. Kargman (2016) 474 Mass. 107, 127

(Burbank Apartments).) Disparate impact claims that fall 

outside “the purview” of the Fair Housing Act are not legally 

cognizable and are properly dismissed at that stage. (Laramore 

v. Illinois Sports Facilities Auth. (N.D.Ill. 1989) 722 F.Supp. 443, 

452; Southend Neighborhood Improvement Assn. v. County of St. 
17

Clair (7th Cir. 1984) 743 F.2d 1207, 1210 [dismissal is 

appropriate when the Fair Housing Act was “not designed to 

address the concerns raised by the complaint”].)

Three of the “cautionary standards” and “safeguards” 

articulated in Inclusive Communities are relevant here.

First, Inclusive Communities held that the Fair Housing 

Act does not encompass disparate impact claims that “cause[] 

race to be used and considered in a pervasive and explicit manner 

to justify governmental or private actions” because construing the 

Fair Housing Act to “inject[] race into a city’s decisionmaking 

process” raises “serious constitutional concerns” and “ten[d]s to 

perpetuate race-based considerations rather than move beyond 

them.” (Inclusive Communities, supra, 576 U.S. at pp. 542-543; 

Oviedo Town Center, supra, 759 Fed.Appx. at p. 834.) Put 

differently, courts are not to interpret “disparate-impact liability” 

under the Fair Housing Act “to be so expansive as to inject racial 

considerations into every housing decision.” (Inclusive 

Communities, at p. 543; accord, Wards Cove, supra, 490 U.S. at p. 

654 [interpreting the anti-discrimination provisions of Title VII of 

the Civil Rights Act in a way that “almost inexorably lead[s] to 

the use of numerical quotas in the workplace” is “a result that 

Congress and this Court have rejected repeatedly in the past”].)

Second, Inclusive Communities held that the Fair Housing 

Act does not encompass disparate impact claims that coopt the 

act into an “instrument to force housing authorities to reorder 

their priorities” and thereby “displace[] . . . valid governmental

policies.” (Inclusive Communities, supra, 576 U.S. at p. 540.) 

This is because the Fair Housing Act “does not decree a 

particular vision of urban development” and “does not put 

housing authorities and private developers in a double bind of 
18

liability, subject to suit” no matter where they authorize and 

build “new low-income housing.” (Id. at p. 542; Inclusive 

Communities Project, Inc. v. Lincoln Property Co. (5th Cir. 2019) 

920 F.3d 890, 903 (Lincoln).) A disparate impact claim lies 

beyond the purview of the Fair Housing Act if “the specter of 

disparate-impact litigation [on the theory underlying a Fair 

Housing Act claim] causes private developers to no longer 

construct or renovate housing units for low-income individuals” 

because, by recognizing such a claim, “the [Fair Housing Act] 

would have undermined its own purpose as well as the freemarket system.” (Inclusive Communities, at p. 544.)

Third, Inclusive Communities acknowledged that, while the 

Fair Housing Act does not categorically prohibit the consideration 

of race “in certain circumstances and in a proper fashion,” the act

will not sanction disparate-impact claims that have the effect of 

“perpetuating” “racial isolation” and segregation. (Inclusive 

Communities, supra, 576 U.S. at pp. 540, 545, 546; Southwest 

Fair Housing Council, Inc. v. Maricopa Domestic Water 

Improvement District (9th Cir. 2021) 17 F.4th 950, 960

(Southwest Fair Housing) [the Fair Housing Act “‘forbids actions . 

. . that . . . perpetuate housing segregation’”]; cf. Resident 

Advisory. Bd. v. Rizzo (3d Cir. 1977) 564 F.2d 126, 129, 143 

[public agency’s obstruction of project that would further racial 

integration of community is actionable].) That is because the 

Fair Housing Act’s underlying and overarching tenet is to “mov[e]

the Nation toward a more integrated society.” (Inclusive 

Communities, at pp. 546-547.) Contrary to what the Coalition 

argues, nothing in Inclusive Communities limits the Fair Housing 

Act’s prohibitions against claims perpetuating segregation to only 

that subset of segregation that is “to the detriment of minorities.”
19

3. Analysis

The gentrification-based theory of liability alleged by the 

Coalition is not a legally cognizable disparate impact claim under 

the Fair Housing Act because it runs afoul of the three 

“cautionary standards” articulated above.

The gentrification theory necessarily injects racial 

considerations into the City’s decisionmaking process. That is 

because this theory is premised on the allegation that the persons 

displaced by the gentrification are members of minority groups. 

The race-dependent availability of the gentrification theory is a 

function of the scope of the Fair Housing Act’s protections. The 

Fair Housing Act only prohibits policies and practices that 

discriminate—by intent or by effect—on the basis of “race, color, 

religion, sex, familial status, or national origin.” (42 U.S.C. § 

3604 (a).) The Fair Housing Act does not reach discrimination on 

the basis of socioeconomic status (United States v. City of 

Birmingham (E.D.Mich. 1982) 538 F.Supp. 819, 830 

[“discrimination on the basis of wealth” not prohibited by the Fair 

Housing Act]; see generally, San Antonio Indep. School Dist. v. 

Rodriguez (1973) 411 U.S. 1, 29 [“wealth discrimination” is not a 

protected class under equal protection principles]), and does not 

reach discrimination on the basis of race unless it has a 

“‘significantly disparate impact on nonwhites’” (Hardie, supra, 

876 F.3d at p. 319, quoting Wards Cove, supra, 490 U.S. at p. 658, 

italics added). Thus, if gentrification were a valid theory for 

relief under the Fair Housing Act, city officials would be required 

to avoid gentrification-based displacement for a potential 

development located in a majority minority community, but not
20

for one in a mostly white community.6 Thus, accepting 

gentrification as a valid theory would inexorably “cause[] race to 

be used and considered in a pervasive and explicit manner [in 

deciding whether] to justify governmental or private actions,” 

thereby “inject[ing] racial considerations into [the] decision.” 

(Inclusive Communities, supra, 576 U.S. at p. 543.) Inclusive 

Communities says such a theory is not cognizable under the Fair 

Housing Act.

By requiring a developer either to dedicate every new 

residential unit it builds to affordable housing and perhaps also 

to obligate the developer to build additional affordable housing off

site in the adjoining neighborhoods, the net effect of the 

gentrification theory is to summon “the specter of disparateimpact litigation” in a way that would cause “private developers 

to no longer construct or renovate housing units for low-income 

individuals.” (Inclusive Communities, supra, 576 U.S. at p. 544.) 

Inclusive Communities says such a theory is not cognizable under 

the Fair Housing Act.

As the Coalition’s allegations make clear, the evil of 

gentrification is that it “displace[s] Black and Latinx residents” 

from some of the “the last majority Black communities in Los 

Angeles.” According to the Coalition, this concentration of Black 

6 Although whites have standing to raise Fair Housing Act 

claims when nonwhites are victimized (e.g., Wentworth v. Hedson 

(E.D.N.Y. 2007) 493 F.Supp.2d 559, 566 [so noting]), nonwhites 

would not be victimized in significant measure by gentrification 

that displaces mostly white residents (Southwest Fair Housing,

supra, 17 F.4th at p. 961 [requiring “‘a significantly . . . 

disproportionate impact on persons’” belonging to a group 

protected by the Fair Housing Act].) 
21

residents and their Latinx neighbors is what forms “the political, 

cultural, and commercial heart of Black Los Angeles.” The 

Coalition’s gentrification theory exists to protect this 

concentration of minority community members, and thus seeks to 

employ the Fair Housing Act as a means of preserving the racial 

composition of these communities. However politically, 

culturally, historically, and commercially beneficial such 

segregation might be for those resulting communities, the Fair 

Housing Act was designed as a tool for “moving . . . toward a 

more integrated society,” not a less integrated one. (Inclusive 

Communities, supra, 576 U.S. at p. 547.) That the Coalition’s 

gentrification theory is seeking to perpetuate the segregation of a 

blended community of two minority groups (rather than a single 

minority group) does not, as the Coalition suggests, mean that 

the theory is not perpetuating segregation; that is because the 

theory is still aimed at preventing the displacement of these 

groups by others and is thus still designed to prevent a more fully 

integrated community. Inclusive Communities says claims that 

perpetuate segregation are inimical to the core purpose of the act 

and, as such, are not cognizable under it.

4. The Coalition’s chief argument

The Coalition makes a two-part argument as to why we 

must reverse the trial court’s grant of judgment on the 

pleadings—namely, (1) its operative complaint sufficiently alleges 

a prima facie case of disparate impact discrimination, and (2)

doing so is sufficient to ward off the City and the developer’s 

attack on the sufficiency of the pleadings. 

The concept of a prima facie case originated in precedent 

arising under Title VII of the Civil Rights Act (42 U.S.C. § 2000e 

et seq.) and the Age Discrimination in Employment Act (ADEA)
22

(29 U.S.C. § 621 et seq.). Being able to state a prima facie case is 

the first step in a three-step, burden-shifting rubric that is 

designed to assess the merit of disparate impact claims under 

statutes authorizing such claims as a means of challenging 

unlawful discrimination. (Southwest Fair Housing, supra, 17 

F.4th at pp. 960-961.) In this first step, the plaintiff has the 

burden of showing “a prima facie case of disparate-impact 

discrimination.” (Id. at p. 960.) Under the Fair Housing Act, this 

means the plaintiff must show that (1) the defendant has 

implemented a facially neutral “policy” (rather than making a 

“one-time decision”), (2) the policy has a “significantly adverse or 

disproportionate effect” on a protected class, and (3) there is a 

“robust” “causal connection” between the policy and the 

disproportionate effect, which is typically demonstrated through 

“statistical evidence.” (Inclusive Communities, supra, 576 U.S. at 

pp. 542-543; Southwest Fair Housing, at p. 961; Oviedo Town 

Center, supra, 759 Fed.Appx. at p. 834; Connecticut Fair Housing 

Center v. CoreLogic Rental Property Solutions, LLC (D.Conn. 

2020) 478 F.Supp.3d 259, 287 [referring to “robust causation” as 

a species of “proximate cause”]; cf. Swierkiewicz v. Sorema N.A.

(2002) 534 U.S. 506, 511-512 [pleading alleging disparate impact 

in an employment discrimination case need not plead a prima 

facie case and need only include a “short and plain statement of 

the claim” showing entitlement to relief].)

7 The plaintiff’s burden 

7 Inclusive Communities was the first decision to require the 

more onerous showing of “robust causation.” Prior to that, a 

plaintiff was required only to show that the defendant’s policy 

“actually or predictably result[ed] in” a discriminatory impact 

(Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 

1420 (Sisemore)) or that the policy caused “a significantly adverse 

or disproportionate impact” on a protected class (Committee 
23

during this first step “is not intended to be ‘onerous[]’ [citation]” 

because “a prima facie case, by itself, is not enough to establish 

liability under the [Fair Housing Act]” and is meant to be an 

entrée to further analysis. (Avenue 6E, supra, 818 F.3d at p. 513; 

Mt. Holly, supra, 658 F.3d at p. 385; Abed v. Western Dental 

Services, Inc. (2018) 23 Cal.App.5th 726, 739.) If the plaintiff 

carries his burden, the rubric moves to the second step, where 

“the burden shifts to the defendant” to prove that its policy “is 

necessary to achieve a valid” and “legitimate interest.” (Inclusive 

Communities, at p. 541; Mt. Holly, at p. 382; Southwest Fair 

Housing, at p. 967.) For these purposes, “necessary” does not 

mean “essential” or “indispensable”; instead, it means that the 

policy “in a significant way” “serves” “a legitimate business [or 

governmental] interest.” (Southwest Fair Housing, at pp. 967-

968.) And if the defendant carries the burden in this second step 

of showing a justifiable policy, then the rubric moves to the third 

step, where “the burden shifts back to the plaintiff to show the 

availability of an alternative practice that has less discriminatory 

impact yet is still equally effective in serving the defendant’s 

legitimate goals.” (Southwest Fair Housing, at p. 961; Inclusive 

Communities, at p. 533.)

We need not address the parties’ lengthy arguments about 

whether the Coalition has sufficiently alleged a prima facie case 

of disparate impact discrimination under the Fair Housing Act 

because we will assume, for sake of argument, that it has done so

Concerning Community Improvement v. City of Modesto (9th Cir. 

2009) 583 F.3d 690, 711).

The federal courts are deeply divided over precisely what 

showing satisfies Inclusive Communities’s “robust causation” test. 

(See Lincoln, supra, 920 F.3d at pp. 903-907 [detailing a four-way 

split on the meaning of this test].)
24

and has thereby established the first part of its two-part 

argument.

8 However, we conclude that the Coalition has not 

established the second part of its argument because the 

Coalition’s success in alleging a prima facie case does not insulate 

its disparate-impact claim from the dismissal compelled by 

Inclusive Communities.

That is because the three-step, burden-shifting rubric is 

merely an evidentiary standard designed to shift the burden of 

production back and forth in order to suss out the valid disparate 

impact claims from the invalid. (Inclusive Communities, supra, 

576 U.S. at p. 527; Southwest Fair Housing, supra, 17 F.4th at p. 

961.) At all times, the burden of proof remains with the Fair 

Housing Act plaintiff. (Southwest Fair Housing, at p. 967 [“‘[t]he 

ultimate burden of proving that discrimination against a 

protected group has been caused by a specific . . . practice 

8 Our assumption renders it unnecessary to address whether 

(1) the three-step, burden-shifting rubric is defined by Inclusive 

Communities or instead by regulations promulgated by the 

United States Department of Housing and Urban Development 

(HUD) (compare National Fair Housing Alliance v. Travelers 

Indemnity Co. (D.D.C. 2017) 261 F.Supp.3d 20, 22 [applying 

Inclusive Communities’s “more stringent” test]; Southwest Fair 

Housing, supra, 17 F.4th at p. 961, fn. 6 [same]; Lincoln, supra, 

920 F.3d at pp. 901-903 [same] with Burbank Apartments, supra, 

474 Mass. at p. 126 [applying HUD regulations]; Mhany 

Management, Inc. v. County of Nassau (2d Cir. 2016) 819 F.3d 

581, 617-620 [same]); (2) a Fair Housing Act plaintiff must allege 

that the policy at issue constitutes an “artificial, arbitrary, and 

unnecessary barrier[]” to housing as part of its prima facie case

(see Ellis v. City of Minneapolis (8th Cir. 2017) 860 F.3d 1106, 

1112 (Ellis) [so requiring]; Khan v. City of Minneapolis (8th Cir. 

2019) 922 F.3d 872, 874 [same]); and (3) the Coalition’s causation 

allegations satisfy the “robust causation” standard.
25

remains with the plaintiff at all times.”’”]; Wards Cove, supra, 

490 U.S. at p. 659 [“The burden of persuasion . . . remains with 

the disparate-impact plaintiff.”].) This is why “‘the establishment 

of a prima facie case, by itself, is not enough to establish liability 

under the [Fair Housing Act].’” (Avenue 6E, supra, 818 F.3d at p. 

513; Mt. Holly, supra, 658 F.3d at p. 385; cf. A.F. Arnold & Co. v. 

Pacific Professional Ins., Inc. (1972) 27 Cal.App.3d 710, 715 [lack 

of justification is an affirmative defense to a tort; it is not an 

intermediary step in a mechanism shifting the burden of 

production].) Thus, the Coalition—as the plaintiff—has always 

borne the burden of establishing that its gentrification-based, 

disparate impact claim is cognizable under the Fair Housing Act. 

As explained above, Inclusive Communities dictates that the 

Coalition cannot carry that burden based on the gentrification 

theory it advances. 

The Coalition responds that a plaintiff’s ability to 

sufficiently allege a prima facie entitlement to relief is always 

enough to defeat a challenge to the pleadings in a disparate 

impact case because the last two steps of the burden-shifting 

rubric—namely, whether the impact is justified and is 

sufficiently tailored—may only be addressed in a subsequent 

motion for summary judgment. More specifically, the Coalition 

asserts that Inclusive Communities’s safeguards are already 

accounted for in the three-step, burden-shifting mechanism and 

in the “robust causality” requirement of the plaintiff’s “prima 

facie” case, and thus have no independent force. For support, the 

Coalition cites Sisemore, supra, 151 Cal.App.4th at p. 1423,

Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1167 

(Schnall), and De Reyes, supra, 903 F.3d at pp. 430-432. Thus, 
26

the Coalition concludes, it should be permitted to proceed beyond 

the pleadings stage of its lawsuit.

We reject this argument on legal and factual grounds.

As a legal matter, Inclusive Communities forecloses 

allowing the Coalition’s gentrification-based disparate impact 

claim to proceed any further. Although Sisemore, Schnall, and 

De Reyes suggest that the second and third steps of the burdenshifting rubric are typically to be litigated on a motion for 

summary judgment rather than on demurrer or a motion for 

judgment on the pleadings, Inclusive Communities dictates that 

we reject that approach here. As explained above, the Coalition’s 

gentrification-based theory is not cognizable under the Fair 

Housing Act because that theory, by its very nature, is 

inconsistent with Inclusive Communities’s holding that the Fair 

Housing Act may not be used to inject race into land use 

decisions, to discourage the construction of affordable housing, or 

to perpetuate segregation. Allowing the case to move forward in 

order to allow for the discovery of additional facts cannot change 

the fundamental legal inconsistency between the Coalition’s 

theory and the Fair Housing Act. As a result, judgment in favor 

of the City and the developer is preordained. This is true because 

the gentrification-based theory will be just as uncognizable on 

summary judgment as it is on the pleadings, and because the 

City and the developer will prevail on the last two steps of the 

burden-shifting rubric in any event: “[A]lleviating blight is a 

legitimate interest” (Mt. Holly, supra, 658 F.3d at p. 385), and the 

“safeguards” that Inclusive Communities pronounced and that 

dictate our conclusion that the gentrification theory falls outside 

the Fair Housing Act are to be considered in the third step of the 

burden-shifting rubric (Southwest Fair Housing, supra, 17 F.4th 
27

at pp. 970-971) and dictate dismissal. Allowing the Coalition’s 

Fair Housing Act claim to proceed while knowing to a certainty 

that it would be dismissed on summary judgment would 

undermine Inclusive Communities’s pronouncement that “prompt 

resolution of these cases is important.” (Inclusive Communities,

supra, 576 U.S. at p. 543; accord, Ellis, supra, 860 F.3d at p. 

1111.) Although, as the Coalition points out, Inclusive 

Communities made its pronouncement about the need for prompt 

resolution” at the summary judgment stage of that case, the 

concerns animating the need for prompt resolution of a Fair 

Housing Act claim that is not cognizable apply with equal force at 

the pleading stage; otherwise, a defendant would have to incur 

the time and expense of extensive discovery and summary 

judgment litigation simply to obtain a dismissal to which it was 

entitled at the pleading stage. 

As a factual matter, we may not focus solely on the first, 

prima facie case step because the Coalition has also made 

allegations in its operative pleading regarding the second and 

third steps that we cannot ignore. (Cf. Schnall, supra, 78 

Cal.App.4th at p. 1167 [“since the complaint is unlikely to reveal 

defendant’s justification—if [the] pleading states a prima facie 

case of harm . . . the defendant should be made to present its side 

of the story”].) Specifically, the Coalition alleged the City’s and 

the developer’s stated justification for the Project (namely, that it 

would “serve as a catalyst for economic development” and 

“contribute to the revitalization” of the area); alleged that this 

justification was “[n]ot legally sufficient”; and alleged that the 

justification could in any event “be served by other, properly 

enacted policies, practices and decisions that have a less 

discriminatory effect.” Even if the Coalition had not made those 
28

allegations expressly in its operative pleading, the City’s and the

developer’s proffered justifications and the Coalition’s responses 

to them were part of the public record that was judicially noticed 

by the trial court in adjudicating the motions below. (See Evid. 

Code, § 452; Code Civ. Proc., § 438, subd. (d).) Thus, the last two 

steps were at issue in this case and, for the reasons noted above, 

dictate dismissal of the Coalition’s gentrification-based, disparate 

impact claim.

C. FEHA Claim

Among other things, FEHA makes it unlawful “to . . . make 

unavailable or deny a dwelling based on discrimination because 

of race, color,” or several other protected characteristics. (Gov. 

Code, § 12955, subd. (k).) FEHA expressly extends its 

prohibitions to policies and practices that have a “discriminatory 

effect.” (Id., § 12955.8, subd. (b).) By borrowing language from 

the Fair Housing Act, FEHA was meant to provide 

“‘“substantially equivalen[t]”’” protections to its federal 

counterpart. (Konig v. Fair Employment & Housing Commission

(2002) 28 Cal.4th 743, 749.) But FEHA’s protections are not 

identical: FEHA may not provide “fewer rights or remedies than 

the federal Fair Housing Act” supplies, yet FEHA is to be 

“construed liberally” and “may be construed to afford greater

rights and remedies . . . than those afforded by federal law.” 

(Gov. Code, §§ 12955.6, 12993, subd. (a), italics added; Auburn 

Woods I Homeowners Assn. v. Fair Employment & Housing 

Comm. (2004) 121 Cal.App.4th 1578, 1590-1591 (Auburn Woods), 

italics added.) 

The Coalition argues that the dismissal of its Fair Housing 

Act claim is not dispositive of its FEHA claim because FEHA can 

afford broader relief. Of course, that FEHA can be construed to 
29

be broader than the Fair Housing Act does not mean that it must 

always be construed to be broader or that it inevitably must be so 

construed in any particular case. Here, it must not. California 

courts “often look to cases construing the [Fair Housing Act] . . . 

when interpreting FEHA.” (Auburn Woods, supra, 121 

Cal.App.4th at p. 1591; Sisemore, supra, 151 Cal.App.4th at p. 

1420.) Inclusive Communities is the critical case delimiting the 

scope of disparate impact claims under the Fair Housing Act, and 

thus is pertinent to the construction of FEHA. More to the point, 

the safeguards that Inclusive Communities built into disparate 

impact claims under the Fair Housing Act would seem to be 

equally pertinent to such claims under FEHA—namely, the 

concern that such claims not be used to coopt FEHA into a tool 

for injecting race into city planning decisions, for discouraging 

affordable housing, or for perpetuating racial segregation in 

housing patterns. (Accord, Mahler v. Judicial Council of 

California (2021) 67 Cal.App.5th 82, 113 [interpreting FEHA 

through the lens of Inclusive Communities and its concern about 

“‘abusive disparate-impact claims’”].)

We therefore conclude that the Coalition’s FEHA claim 

must be rejected for the same reasons as its Fair Housing Act 

claim.

II. CEQA Claim

The Coalition argues that the trial court erred in 

sustaining the demurrer to its CEQA claim on the grounds of 

untimeliness.

A. CEQA and CEQA review, generally

CEQA is designed “‘to “[e]nsure that the long-term 

protection of the environment shall be the guiding criterion in 

public decisions.”’” (Friends of College of San Mateo Gardens v. 
30

San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 

944, quoting No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 

68, 74.) CEQA operates, not by dictating proenvironmental 

outcomes, but rather by mandating that “decision makers and the 

public” study the likely environmental effects of contemplated 

government actions and thus make fully informed decisions 

regarding those actions. (Neighbors for Smart Rail v. Exposition 

Metro Line Construction Authority (2013) 57 Cal.4th 439, 447; 

Cal. Code Regs., tit. 14, § 15002, subd. (a)(1) [a “basic purpose[] of 

CEQA [is] to . . . [¶] . . . [i]nform governmental decision makers 

and the public about the potential, significant environmental 

effects of proposed activities.”].)

Once a public agency has approved a project after 

considering the environmental effects of that project, CEQA 

allows for judicial review of the agency’s compliance with CEQA. 

(Pub. Resources Code, § 21167.) But “[t]o ensure finality and 

predictability in public land use planning decisions,” “CEQA 

provides unusually short statutes of limitations on filing court 

challenges to the approval of projects . . . .” (Cal. Code Regs., tit. 

14, § 15112, subd. (a); Stockton Citizens for Sensible Planning v. 

City of Stockton (2010) 48 Cal.4th 481, 499 (Stockton).)

As pertinent here, CEQA requires a party seeking to 

challenge a public agency’s approval of a project due to alleged 

noncompliance with CEQA to file that challenge in court (1) 

within 30 days of when the agency posts a notice of 

determination, which must be posted within five days of the 

approval itself and must be publicly posted for a full 30 days; or 

(2) with 180 days of the public agency’s “decision to carry out or 

approve the project.” (Pub. Resources Code, §§ 21167, subds. (a), 

(b), (c) & (e), 21152, subds. (a) & (c); Cal. Code Regs., tit. 14, § 
31

15112, subd. (c)(1) & (5); Citizens for a Green San Mateo v. San 

Mateo County Community College (2014) 226 Cal.App.4th 1572, 

1589-1590; Sierra Club v. City of Orange (2008) 163 Cal.App.4th 

523, 532.)

An untimely filed challenge is to be dismissed. (Cal. Code 

Regs., tit. 14, § 15112, subd. (b); Stockton, supra, 48 Cal.4th at p. 

499.)

B. Analysis

Because the Coalition first filed its CEQA challenge 558

days9 after the Department of City Planning approved the 

vesting tentative tract map and certified the final environmental 

impact report for the Project, the timeliness of the Coalition’s 

CEQA challenge boils down to whether the Department’s actions 

on January 18, 2017, constituted a “decision to carry out or 

approve” the Project. We conclude that they did.

10

For purposes of assessing the timeliness of a CEQA 

challenge, approval of a project “means the decision by a public 

agency which commits the agency to a definite course of action in 

regard to a project . . . .” (Cal. Code Regs., tit. 14, § 15352, subd. 

(a); Stockton, supra, 48 Cal.4th at pp. 505-506.) “With private 

projects” like the one in this case (that is, a project to be built by 

a private developer), “approval occurs upon [(1)] the earliest 

commitment to issue or [(2)] the issuance by the public agency of 

a discretionary contract, grant, subsidy, loan, or other form of 

9 There are 558 days between January 18, 2017, and July 30, 

2018.

10 Our decision to rely on the 180-day limitations period 

obviates any need for us to address the parties’ arguments 

regarding the 30-day limitations period and the validity of the 

notice of determination posted by the Department.
32

financial assistance, lease, permit, license, certificate, or other 

entitlement for use of the project.” (Cal. Code. Regs., tit. 14, § 

15352, subd. (b).) “No particular form of approval is required.” 

(Stockton, supra, 48 Cal.4th at p. 506.) 

Here, the Department’s approval of the vesting tentative 

tract map constitutes an “approval” for purposes of CEQA 

because it constituted the “issuance by a public agency of a 

discretionary . . . entitlement for use of the Project.” The 

Department was authorized to issue that approval (and to certify 

the final environmental impact report) because the City Council, 

consistent with the Municipal Code, had delegated that authority 

to the Department. (L.A. Muni. Code, §§ 17.03, 17.06.A.2; Pub. 

Resources Code, § 21151, subd. (c); Cal. Code Regs., tit. 14, §§

15090, subd. (b), 15025; cf. California Clean Energy Committee v. 

City of San Jose (2013) 220 Cal.App.4th 1325, 1340 [delegation 

not sanctioned by local law is invalid].) Further, and as dictated 

by statute, the Department’s approval of a vesting tentative tract 

map—whether conditional or unconditional—“confer[s] [upon the 

developer] a vested right to proceed with development in 

substantial compliance with the ordinances, policies, and 

standards” in effect at the time of approval. (Gov. Code, § 

66498.1, subd. (b); Kaufman & Broad Central Valley, Inc. v. City 

of Modesto (1994) 25 Cal.App.4th 1577, 1586, 1588 [noting that 

this statute was “intended to create a vested right affording 

greater protection and arising earlier in the development process 

than the right available under the common law doctrine”].) This 

vested right enables ‘“[t]he private sector . . . to rely upon an 

approved vesting tentative [tract] map prior to expending 

resources and incurring liabilities without the risk of having the 

project frustrated by subsequent action by the approving [public] 
33

agency . . . .”’ (Bright Development v. City of Tracy (1993) 20 

Cal.App.4th 783, 793, quoting Gov. Code, § 66498.9.) Because it 

vests rights to proceed with the project in the private developer, 

the approval of a vesting tentative tract map constitutes an 

“entitlement for use of the project” that falls comfortably within 

the definition of “approval” for CEQA purposes. 

C. The Coalition’s arguments

The Coalition makes what boils down to three categories of 

arguments in support of its position that the Department’s 

approval of the vesting tentative tract map and its simultaneous 

certification of the final environmental impact report did not 

constitute an “approval” of the Project for CEQA purposes.

First, the Coalition argues that the Department’s actions 

do not constitute an “approval” because, at that time, the City 

Council had yet to approve the City’s development agreement 

with the developer and had yet to approve the height and zoning 

district changes necessary to implement the Project. We reject 

this argument. The Department’s approval of the vesting 

tentative tract map granted the developer an entitlement to 

proceed with the Project. That the implementation of the Project 

was contingent on further approvals outside the Department’s 

purview to grant does not negate the entitlement conferred by the 

Department’s approval of the vesting tentative tract map, and 

thus does not preclude the approval of the tract map from 

constituting an “approval” for purposes of CEQA. (See Save Tara

v. City of West Hollywood (2008) 45 Cal.4th 116, 132-133 [CEQA 

“does not establish that a conditional agreement for development 

never constitutes approval of the development”].) As our 

Supreme Court put it, the pertinent regulations “define

[‘]approval’ as occurring when the agency first exercises its 
34

discretion to execute a contract or grant financial assistance [or 

take other actions committing it to a project], not when the last

such discretionary decision is made.” (Id. at p. 134, original

italics.)

Second, the Coalition argues that a “project” is defined as 

“the whole of an action” (Cal. Code Regs., tit. 14, § 15378, subd. 

(a)); that a project thus cannot be approved until all of the 

necessary approvals are conferred and all administrative appeals 

have been exhausted; and that this degree of finality was not 

attained until the City Council enacted ordinances granting the 

height and zoning district changes, approved the development 

agreement, and denied all earlier administrative appeals. We 

reject this argument. It is specifically foreclosed by the CEQA 

regulations themselves: “The term ‘project’ refers to the activity 

which is being approved and which may be subject to several 

discretionary approvals by government agencies. The term 

‘project’ does not mean each separate governmental approval.” 

(Cal. Code Regs., tit. 14, § 15378, subd. (c), italics added; Citizens 

for a Megaplex-Free Alameda v. City of Alameda (2007) 149 

Cal.App.4th 91, 105.) Although, as the Coalition notes, courts 

have sometimes cited the definition of the term “project” to assess 

whether “approval” is required, they have done so in order to 

assess whether the underlying activity had sufficiently coalesced 

to be deemed a “project” that could be approved. (Save Tara,

supra, 45 Cal.4th at pp. 134-135, 139.) 

Lastly, the Coalition argues that the City should be

equitably estopped from invoking the CEQA limitations period 

because it misled the public in the public notice announcing the 

Department’s December 2016 meeting when the vesting tentative 

tract map was to be approved and the final environmental impact 
35

report was to be certified. Specifically, the Coalition observes 

that the notice states that the Department itself was to consider 

these matters and, at the same time, states that “written 

comments” on those subjects “will be provided to the City 

Planning Commission” and that the final environmental impact 

report “will be submitted to the City Planning Commission and 

City Council for requested certification and action.” According to

the Coalition, the latter portions were misleading because they 

suggested that the Department was merely acting as a hearing 

officer for the Planning Commission and City Council rather than 

as a decision maker. We reject this argument for two reasons. 

To begin, although equitable estoppel may be invoked against 

public entities (Citizens for a Responsible Caltrans Decision v. 

Department of Transportation (2020) 46 Cal.App.5th 1103, 1128-

1129 (Caltrans Decision)), its use is to be limited to “unusual 

instances when necessary to avoid grave injustice and when the 

result will not defeat a strong public policy” (City of Goleta v. 

Superior Court (2006) 40 Cal.4th 270, 279). Further, and more to 

the point, the notice does not satisfy the baseline standard for 

invoking estoppel—let alone the heightened showing necessary to 

invoke it against a public entity. The notice at issue is, at best, 

unclear and ambiguous about whether the Department was 

making final decisions or merely making recommendations to be 

passed up the food chain to the Planning Commission and City 

Council.

11 But it is well settled that “‘[c]ertainty is essential to all 

11 And this is a generous reading because the notice is 

arguably not inaccurate or misleading at all. The notice did not 

say that the vesting tentative tract map would be submitted to 

the Planning Commission and City Council for action, and the 

Planning Commission and City Council did review the 
36

estoppels’” and that it is not enough that a person makes a 

statement that is “‘doubtful or matter of questionable inference.’” 

(Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1318, 

quoting Wheaton v. Insurance Co. (1888) 76 Cal. 415, 429-430.) 

The Coalition points us to Caltrans Decision, but the agency in 

that case unambiguously stated it would be preparing an 

environmental impact report but instead turned around and filed 

a notice of exemption that obviated the need for any impact 

report. (Caltrans Decision, at pp. 1133-1134.)

DISPOSITION

The judgment is affirmed. The City and the developer are 

entitled to their costs on appeal.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ 

Department’s certification of the final environmental impact 

report to determine whether any supplemental environmental 

analysis was necessary (and both concluded that no such 

supplemental analysis was warranted).