Filed 11/29/ 22 Save Our Glendale v. City of Glendale CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115( b). This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SAVE OUR GLENDALE

,

Petitioner and Appellant

,

v.

CI TY OF GLEN DALE e t al.

,
Respondent s

. B 3 08034

(Los Angeles County Super. Ct. No. B S174805 )

APPEAL from a judgment of the Superior Court of
Los Angeles County. Richard L. Fruin

, Jr., Judge

. Affirm ed

.

Naira Soghbatyan for Petition er and App ellant

.

M ichael J. Garcia, City Attorney, Gillian Van Muyden, Chief Assistant City Attorney, and Yvette Neukian , Deputy City Attorney, for Respondent s

.

___________________

__________

_2 Petitioner and appellant Save Our Glendale (pet itioner)

see ks to over turn t he t rial court ’ s decision upholding the City of
Glendale ’ s ( City) certi fication of a final program environmental impact report (Program EIR) for the South Glendale Community Plan (the Community Plan). Petitio ner also seeks to o verturn the
trial cour t ’ s d e cisi on upholding City approval of a portion of the Community Plan and related implemen ta tion actions. A nd

, petitioner seeks to overturn the trial court ’ s rejection of its subsequent challenges to City approval of a citywide inc lusionary

z o ning o rdin ance a nd a mendments to the City ’ s 200 6 Downtown Specific Plan (the Downto wn Plan). Finally , petitioner challenges

the trial court ’ s award of costs to respondents

. 1

We affirm.
FACT UAL AND PROCEDURAL BACKGROUND Community Plan and Progr am EIR
The Community Plan i s a community planning

- level document designed to guide development in southern G lendale over the next 25 years. The Community Plan Program EIR was certified, and po rtions of the Community Plan and implementing
actions w ere a pp roved on Jul y 31, 2018

. Pla nning efforts began
in 2011 a nd included extens ive public involvement in surveys and questionna ires , vision boards , study sessions , com muni t y meetings , workshops and road shows , extensive W eb site information , res earch , a scop i n g meeting , a 6 0

- day Pr ogram EIR comment period , and 26 public meetings/hearings over a six

- year

1 Respondents belo w and on appeal include the City, the City of Glendale Council, and the City of Glendale Community P l anning Department. We re f er to the three respon d ents collectively as the City.3

pe riod

. The City ’ s planning efforts were supported in part through a competitive grant from the Los Angeles County Metropolitan Transportation Aut hority that t he City used to

pr epar e a sm aller transit

- oriented design plan for the Tropico area of the City and which later folded into the broade r Community Plan.
The Pr ogram EIR was prepared as a program

- l evel EIR. ( Cal. Code Reg s., tit. 14, § § 15146, 1515 2 , subd. (b)

. ) The City publi shed t he Program EIR notice of pr eparation on September 7, 2016, and published notice of availability on January 1 1, 2018. A
draft Program EIR was c irculated 60 days for public comment
, and on July 31, 2018, the C i ty took the followi ng actions: (1) Certi fied t h e Program EIR and adopted a statement of overriding considerations and mitigati o n monitoring and reporting program; (2) Ad opted an environmentally superior
alter native for Tropico; (3) Authorized the initiation of the transit

p lan for Trop ico; (4) D irecte d main tenance of current zoning densities in other Community Plan ce nters and co r r idors; (5) Directed sta ff t o hold study sessions to review the mixed

- use designations for those centers and corridors; (6) Directed staff to imple ment the Co m munity Pla n ’ s “ R o ad ’ s End Neighbo rhood ” as single family residential and ma intain re sidential de n sities in the Community Plan ’ s area ; (7) Directed staff to modify the land use element map and text amendments necessary for Tropico so that
it mat ched the Com munity Pla n; and (8) Int roduced an ordinance downzoning six C3 District III lots wit hin the Comm u nity Plan. On Au gust 14
, 2018, the City adopted the C 3 down sizing ordinance and filed the Program EIR Notice of Determination

.4

Downtown Plan
The Downtown Pla n is an ex isting specific plan within the larger Com munity Plan a rea for which the City had ce rtified a program EIR in 2006. The Community Plan treated the
Downtown Plan as a stand

- alone plan governed by its own
standards. On March 27, 2018, the City imp o sed a mor ato r iu m on new

r esidential development in the Downtown Plan in order to study potential modifi cations to design standards and incentives.
As the parties agree

, amendments to the Downtown Plan were subsequently approved, a n d the City adopted a ci tywide
inc lusion a ry zoning ordinance. Original Petition for W r it of Mandate On August 30, 2018, petitioner filed its original verified petition for writ of mandate and complaint challenging the City ’ s July 31, 2018, cer tification o f the Commun ity Pl an Pro gram EIR

a nd pro j ect approvals. The notice of intent filed with that petition d id not refer to any commencement of an action challengin g the subsequently approved Downtown Plan

a men dments or adoption of the city w ide inclus ionary zoning
ordina n ce. On Augu st 30, 201 8, and then again on December 18, 2018,
in accordance with Public Re sources Code section 21167.6

, subdivision (b)( 2), 2 petitioner filed notices of election to prepare
the admini strative reco r d.

2 Pub lic Resources Code section 21 167.6, subdi vision (a), provides, in relevant part: “ At the time that the action or proceeding is filed, the plaintiff or petitioner shall f ile a reque st that t he res ponden t public a gency p repare the record. ”5

Trial Court Transfers Record Preparation to th e City Beginnin g in t h e fall of 2018 and continuing to June 2019, the City exchanged correspondence with petiti oner concerning record preparation. But petitioner could not complete the record. Thus, a fter the trial was continued , the City filed a motion
seeki ng an orde r dire c ting petitioner to correct and supplement the administrative record, or in the alternative, for an order

aut hori zing resp o ndents to complete preparation of the
administration record so it can be c ertified, and or der ing payment of responden ts ’ costs of pre p aration. At the August 7, 2019, hearing on the City ’ s motion, the
trial court d i s cussed the state of the administrative record with

counse l. The trial court asked counsel to “ talk ” and “ finalize ” the
ind ex for the record. Th e City ’ s cou nsel repre sented that they had prepared a “ modified index ” and that the parties were abou t

“ 90 percent plus there

, ” but it was still incomplete. Counsel
asked the trial court if it wanted “ respondents to co mplete that
AR index

. ” The trial cou rt responded by asking couns e l if she

was “ willing to prepare i t at no cost to the petitioner. ” Cou nsel replied: “ Well, we would like to recover the cost that we put out so far, but the additional cost, I think we ’ re willing to forgo that

. ” Ultimately, the trial co urt transf er red p reparati o n of the record to respondents, reaso ning: “ [T]he administra tive record to

Alternatively, t he petit ioner may “ elect to prepare the r ecord of proceedings

. . . subject to certification of its accurac y by the public agency within the time limit specified in this subdivision [60 days from the da te of the reques t ]. ” (Pub. Res. Code, § 21167. 6, su bd . (b)(2).) All fu rther statutory referen ces are to the Publi c Resources Code unless otherwise indicated.6

date has not been prepared timely, and I ’ m not casting any
criticism. I ’ m just saying it hasn ’ t been done. I need to get it done to keep the present tri al date. ” I n so ru ling, the trial c ourt pointed out to petitioner that respondents “ agreed to assume the expense of getting this across the goal line, and I think that ’ s a pretty good deal for you. ”
L ater in the hearing, the City ’ s counse l st ated: “ W e ’ r e still

go ing to make a motion for those costs. We ’ re entitled to under
th e law. ” The trial court and counsel then dis cus sed who would assume the cost of copying the administrative record. When t he trial court asked if it w as “ normally t he p etitioner, ” the City

r eplied

, “ Correc t, the petitioner ’ s expense. ” The trial court t hen asked petitioner ’ s counsel if she wanted to assume that expense

. Be fore she could reply, the trial c ourt urged the parti es to discuss it; no ruling on costs was made. In sum, a s refle cted in th e trial court ’ s final statement of decision filed July 21, 2020

, o n August 7, 2019, the trial court

“ granted the City ’ s alternate motion and ordered the Cit y to finish t h e preparation of the [record]. ”
A t a subsequent hearing o n August 14, 2019, the City

r epresented that the administrative record would be “ready ” by August 26, 2019.
F ir st Amended Petition for W r it of M andate

Unbeknownst to the City or the trial court, 3 pet i tioner was preparing a first amended petition for writ of mandate. In fact,

3 T he tria l court was understandably frustrated with petitione r ’s counsel ’ s lack of commu nicati on and con duct i n

con n ection with this filing

. The trial court ’ s frustration co ntinued throughout these proceedings.7

o n Aug u st 26, 2019, the date when the City certified the
administrative re cor d

, petitioner filed a first amended ve rified

p etitio n for writ of mandate and complaint (the amended petition). As noted by the trial court, the amended pet ition

“ massi vely expan ded th e allegations ” made in the original petition

— it is “ 84 pages long, has 383 paragraphs and pleads 22
causes of a c tion, ” includ ing “ CEQA c auses of action against projects that were not challenged in the ” original petition

. Notabl y, the amend ed petitio n chal l enged the D owntown Plan amendments and citywide inclusionary zoning ordinance, both of
which the City a p proved after the ori ginal p etition was filed (New CEQA Claims)

. Petitioner neither asked the City to prepare the record fo r the New CE QA Claims nor ga v e notice that it was electing t o
prepare the recor d for those cl a ims. ( § 21167.6.)
Petitioner’s First B rief on the Amended Petition On Octo ber 18, 2019, petitioner filed its opening brief. In response, the City filed a n ex p arte app lica ti on, aski ng the trial
court to doub le the page limit for its o pposition or strike the opening brief. After hearings on October 29 and No vember 1, 2019, the trial court struck petitioner ’ s opening brief “ f or a variety of reasons ” and order ed a rewrite.
T he matter was se t for trial beginning January 17, 2020.8

Petitioner ’

s Second Brief on the Amended Petition ; City ’ s Motion to Supplement and for Costs
On Novembe r 15, 2019, petition e r filed its second opening
b rief. S hortly thereafter, it filed request s fo r ju d icial notic e and a motion to augment the record. 4
On December 19, 2019 , the Ci ty filed its o p position to petitioner ’ s sec ond opening brief , motion to augment, and request s for judicial notice. It also filed a motion to supplement
the rec ord and for costs. On Janua r y 6, 2020, pe titioner filed its opp o sition to the C ity ’ s motion to supplement and for costs.
Lo dging of the Record On January 9, 2020, the City lodged the certified record and its own joint appendix. The follo wing day , petiti oner l o dged its joint append i x. Hearing on Motion to Supplement/Costs On January 31, 2020, the trial court mostly granted the City ’ s motion to supplement/costs, but deferred ru ling on costs.
Tr ial and Judgme n t From February 14 , 2020, through June 22, 202 0, the trial
court hel d a se r ies of hearings on pretrial motions. Ultimately,

o n Ju ly 2 1 , 2020, it is s ued its 6 0

- page statement of decision, finding for the City on all issues and claims. As is relevant to issues raised in this appeal, the tri al court
de n ied petitio ner ’ s moti on to a ugment the record (except for o ne docum ent) and the r e quest s for judi cial noti ce (except for one

4 As the t rial court point ed out

, part of the motion to augment conta ined 150 ca tegories of documents, exceeding 10,000 pag es

.9

exhibit). It then d i s missed petitioner ’ s New CEQA Claims for failure to comply with section 21167.6 ’ s mandate regarding

prep a rati on of the ad ministrati ve rec o rd. On the merits, and pursuant to the Public Resources C ode
and the Guidelines for the Implementation of CEQA (Cal. Code Reg s., tit. 14, § 15000 et seq

. (Guidelines))

, the trial court found petitioner ’ s claims against the EIR and the C it y ’ s ap prov als of
the Community Plan unmeritorious.
The trial court also awarded the City its costs as prevailing part y

. Memorandum of Costs; Motion to Tax Costs On August 5 , 2020, the City filed a memorandum of co sts,

se eking $ 15,924.9 9

. In r esponse, pet itioner fi led a m otion to tax

costs. It argued, in ter alia, that the trial court only

“ ‘ provisionally ’ transferred ” record preparation to the City, and
did so “ relying on [the] City ’ s c onsent t o bear AR prep a ration

costs. ” The City opposed p e titioner ’ s m otion to t ax, no t ing that (1) the trial court de ferred ru ling on the costs for preparing the
administrative record until after trial, and (2) “ Although the Court asked [the] City to consider fore g oing record preparation costs, at n o time did [t he] City wai ve its re q uest f o r costs and has repeatedly preserved its right to r e quest such costs. ” Ultimately, t he trial court awarded the City $14,5 78.34 in

costs

. A pp eal
Petition e r ’ s timely appeal ensued.10 D ISCUSS ION
I

. Trial court properly dismissed pe titioner ’ s N ew CEQA cl aims
B efore we address pe titioner ’ s challen ges to the EIR, we first consider petitioner ’ s objections to pro cedur al ruli ngs by the

t rial court. T h ese rulings f rame the scope of the issues on appeal. As set for th above, petitioner fi led its amen ded petiti on wi t h the new claims on the same day that the City filed its record
certification and answer to petitioner ’ s original peti tion. As the trial court aptly noted, these new claims related to the City ’ s ad option of the Downtown Plan am endments and the cityw ide
in c lusionary zoning ordinance

. The Downtown Plan amendments and inclusionary zoning or dinance are separate p r o jects adopted after the Community Plan Prog ram EIR was certified. As such, they are unrelated to the Community Plan.
Peti tio ner n ever ele ct ed to p repar e a record or requested that the City prepare a record for the New CEQA Cl aims wh en it
f i led its amended petition. Instead, it filed “ unauthorized motions to augment the record with extra record evidence numbering more th an 1 0,000 pa ges

. . . three w eeks after it filed
its initial brief. ” Becau se petitioner f ailed to follow secti on 21167.6 ’ s m andatory procedures, petitioner had no certified record for its New CEQA Claims. 5

Western States Petroleum Assn . v. Superior Court (1995)
9 Ca l.4t h 559 ( Weste r n States ) does not c ompel a different resu l t.

5 It fo llows that the t r ial court properly denied petiti o ner ’s motio n to augm ent th e record and requests for judicial notice. For the same reasons, w e do not cons ider “ the augmented record presented to the lower court through Petitioner/Appellan t ’ s M otion to Aug ment, whic h the l ower court d e nied. ” We accordingly deny petitioner ’ s request for judicial notice on appeal.11

In Western States , our Supreme Court reaffirmed “ that extra

record evidence is generally not admissible in non

- CEQA
traditional manda mus actions challenging quasi

- legislative
admin istrative de cisions. ” ( West e rn Sta tes , supra , at p. 574.) I t

went o n to extend that prin ciple to CEQA actions. ( Ibid . [ “ there is no sound reason why CEQA and non

- CEQA cases should be governed by different evidentiary rules ” ].) That said, our high court recognized “ seve ral l imited exceptions to the general rule e xcluding extra

- record eviden ce. ” ( Western States

, supra , 9 C al.4 t h at p. 575, fn. 5.) Petitioner has not demonstrated how any of those exceptions applies here.
Absent a n admin istrative record o f evidence t o support petiti o ner ’ s alle gations, the New CEQA Claims were properly

dismissed. 6

6 During oral argument, petitioner’s counsel asserted that the City had stipulated to an augmented record. We have

c arefully reviewed the portion s of the r eporte r ’s transcript and clerk’s transcript cited by counsel and see no such unconditional stipulation. In fact, the identified pages of the clerk’s transcript are to the City’s opposition to the motion to augment. And, while the Ci ty may have stipulated to in c luding some of the documents, it did object to petitioner’s “organization, labeling, order and inappropriate separation of the documents from their logical groupings.” Thus, the City only agreed t o part of the “requested
augme ntation pend ing proper reorg a nization .” There is no indication that the proper reorganization ever was completed. Moreover, the City also indicated that it was preserving general objections to these documents. At the hearing in the trial court on the mo tion to augm ent, the C ity ec h oed its objection that a motion to augment is not “the proper process,” which is partially why it was opposing the motion. Regardless, as set forth belo w , the trial court alternately dismissed the New CEQA Claims on12 Alternatively, the trial court properly dismissed petitioner ’ s New CEQA Claims on the grounds tha t petitioner pled inconsistent allegations concerning these clai ms in its am ended peti tion

. I t is we ll

- settled th a t “ [a] plaintiff may plead
inconsistent counts or causes of action in a verified complaint, but this rule does not entitle a party to describe the same transaction as including contr adictory or antagonisti c facts. ” ( Alfaro v. Commun i t y Housi ng Improvement System & Planning
Assn.

, Inc. (2009) 171 Cal.App.4t h 1356, 1381.) Here, t he amended p etition alleges that the DSP and IZO were separate independent projects and that they were part of,
but severed fr om, t he Community Plan. As the t r ial court aptly noted, these allegations are inher ently inconsistent. As such, they are improper. In light of these determinations, w e need not address petitioner ’ s remaining arguments concerning its New CEQA
Claims

. I I. Envi ro n mental pr otection u n der C E QA

“ ‘ The Supreme Court has repeatedly observed that the Legislature intended CEQA to be interpreted to af ford the fullest possible protection to the environment within the reasonable scope of the s t atutor y language. ’ [Citatio n. ] To furt her that

p urpose , ‘ CEQA contains a “ substantive mandate ” requiri ng publi c agencies to refrain from approving projects with significant
environmental effects if “ there are feasible alternatives or mitigation measures ” that can substantially less en or avoid those

the ground s that they were incon sisten t with other allegations pled in the amended petition. Petitioner did not address this point during oral argument.13

effe cts. ’ [Citation.] CEQA neverthe less ‘ perm its government agencies to approve projects that have an environmentally deleterious effect, but [it] also require them to justify those choices in light of speci f ic soc ial or economic condit io n s. ’ [Cit ation. ] ” ( Calif

o rnia Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4t h 9 57
, 978 ( Native Plant ) .)

“ The ‘ heart of CEQA ’ is the EIR. [Citation s.] ‘ The EIR, with all its specificity and complexity, i s the m echanism prescribed by C E QA to for ce inform e d deci s ion m aking and to expose the decision making pr o c ess to public scrut iny. ’ [Citation.] The requirements governing EIR ’ s are set forth in t h e statute and in the CEQA gui delines. ” ( Native Plant

, sup r a , 177 Cal.App.4t h at pp. 97 8

– 9 79.)
I I I

. St andard s of r e view

“ Under CEQA, courts review quasi

- legislative agency decisions for an abuse of discretion. [Citation.] At both the trial and appellate level, the court examines the administrative record

anew

. [Cit ation.] ” (

Native Plan t , supra , 17 7 Cal.App. 4t h at

p. 984.)

“ An ‘ agency may abuse its discretion under CEQA either by failing to pro ceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. ’ [Citatio n. ] ‘ Jud icial review of these tw o types of error dif fers

s i gnificantly

. . . ’ however. [Citation.] ” ( Nati ve Pl ant , supra , 177 Cal.App.4t h at p. 98 2 .) For that reason, “ [i] n evaluating an EIR for CEQA compliance

. . . , a reviewing court must adjust its

s crutin y to the nature of the a l leged def ect, depen ding o n whether the claim is predom inantly one of improper procedure or a dispute ove r the facts. ” ( Vineyar d Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal. 4t h 412
,14

435

. ) “ Wh ether an ‘ agency h as e mpl o yed the correct pr ocedur e s, ’
is reviewed ‘ de novo

. . . “ scrupulously enforc [ing] all legislatively
mand ated CEQA requirements ” [citation]

. . . . ’ [Citation.] But

an ‘ agency ’ s substantive factual conclusions ’ are ‘ accor d [ed]

g reater deference

. ’ [C itat i on.] ‘ In reviewi ng for substantial evidence, the reviewing court “ may not set aside an agency ’ s

approva l of an EIR on the ground that an opposite conclusion would have been equally or more reasonable, ” for, on factual

que s tions, our task “ is not to w eigh con flic ting evide nce an d
determine wh o has the better argument. ” [Citation. ] ’ [Citation.] ” ( Sierra Cl ub v. City of Orange (2008) 163 Cal.App.4t h 523, 531. )
I V

. Trial court properly found that the C ommunity P lan involve d

a pro gram E IR
Petitioner a rgue s that t he trial c ourt e r red in finding that the Community Plan involved a “ community ” plan and a

“ program ” EIR, obvi ating the need for EIR

- specifi city or CEQA

c hallenge s because later physical projects would have their own

en vi ro nmental review. We ar e not convin ced.
A. Releva n t law

“ A program EIR is an EIR which may be prepared on a
series of actions t hat can be charac terized as one large pro ject. ” (G u i delin es , § 15168 , subd. (a). ) S ectio n 15 1 68 , subdivision (a)(3) specifically authorizes the use of the prog ram EIR fo r the
i ssuance of “ plans. ” To qualify as a program, the actio ns must be related either geographically, as lo gical parts in a chain of a c tions, in
connection with the issu ance of p lans to gover n the conduct of the continuing program, or “ [ a ] s ind ividual ac tiviti e s carried out under the same authorizing statutory or regulatory authority and having generally similar environmental effects whi c h can be15

mitigated in similar ways. ” ( Guidelines, § 15168 , subd. (a)(3).)
As t he trial court co rrectly note d, “ [a] n E IR for a ‘ lo cal general plan should focus on the secondary effects that can be expected to
f ollow from the adoption, or ame ndment, but t h e EIR n eed not be

as detai led as an EIR on the specific construction pro jects t hat might follow. ’ ” ( Guidelin es , § § 15 146 , s u bd. (b), 15152 , subd. (b)

. ) In other words, “ a ‘ program EIR ’ evaluates the broad policy direction of a planning docum e nt, such as a g enera l plan , but
does not examine the potential site

- specific impacts of the many in d ividual projects tha t may be p ropose d in the future consistent with the plan. [ Citations.] Program EIRs play a key role in a

‘ tiered ’ CEQ A analysis. ” ( C i tizens for a Su stain able T reasure Island v. City and County of San Fran cisco (2014) 227 Cal.App.4t h 1036 , 10 47.)
In con trast, a p roject EIR “ is prepared for a construction

level project, and ‘ should focus primarily on the changes in the
environment that w ould result fro m the devel opment project [and] examine all p hases of the project including p lanning

, constru ction, and o peration. ’ [Cit a tions.] ” ( Citizens for a Sustainable Treasure Island v. City and County of San Fran cisco

, supra , 247 Cal.Ap p .4t h at p

. 1047 [citing G uidel ines, § 15161 ].)
B. Analysis Here, as the trial court found

, the Community Plan is
de scribed as t he adoptio n of t h e second in a se ries o f four community plans, involving amendments to the General Plan and zoning ordinanc e , which together con stitut e a series of actions
relat ed geographically as lo gical parts in a chain o f actions, and
in div idual activi ties havin g gene r ally similar environmental effects

— the very d efinition of a program EIR. In fact, the

pr o gram EIR provides th at the Community Plan is “ intende d to16

act as an an alytical superstructure for s u bsequent, more det ailed analyses asso ciated with individual di scr e tionary project appl ications consistent with the proposed ” Community Plan. (Fn. omitted. ) The fact that future environmental review may qualify for exemptions and streamlining is not forecl osur e of
fu rther CEQ A review/mitigat ion. In fac t, the Pro gram E I R commits the City to subs equent review pursuant to CEQA gui d e lines for tiering fr om a p rogram EIR. The cases cited by p etitioner are inapposite because t h ey do not address program versus project

- level EIRs; rather, they

conce rn whether a n EIR need ed to b e prepared in the first
instance. ( Cit y of Redlands v. Coun ty of San Ber nardino (2002) 96 Cal.App.4t h 39 8, 4 10 ; Bozung v. Lo cal Agency Formation Com. (197 5 ) 13 Cal.3d 263, 281 .)
Pe titioner further challenges the trial court ’ s determinati on

on the ground s that its reliance upon tiering of futu r e projects

was erron eous. We disagree. Tiering uses “ anal ysis of general matters contained in a
broader EIR (s uch as one prepared for a general plan or policy statement) with later EIR s and negativ e declarat ions o n narrower projects ; incorpora t ing by reference the gener al discussions from the broader EIR ; and co ncentrating the later EIR or nega ti ve declarat i on solely on the issues specific to the later project. ” (Gui delines

, § 15152 , su bd. (a).) T iering is

encour a ged to “ eliminate repetitive d iscussions of the sa me iss ues and focus the later EIR or negative declaration on the actual issues ripe for decision at eac h level of environmental review. ” (Guidelines

, § 15152 , subd. (b).) Thus

, despite pe titioner ’ s
argum e nt to the contrary, tiering u n der section 15152 do es not require later environmental review

, whether by subsequent EIR17

or negative declaration, to “ cure

. . . in a dequacies ” or reduce impacts, particularly those a lready analyzed and determi n ed to
be in capa b le of mitigation.
I n light of the foreg oing, we reject petitioner ’ s contention
that the tr ial court impr operly upheld project description, premature n o tice of determination, baseline, alternatives, failed or deferred mitigatio n, and nonc o ncurrent a doptio n and study of

gener a l plan land use, cir culati on, and environmental justice
elements

. V. EIR baseline was not flawed
Petitioner a r gues that the judgment must be reversed
because the EIR baseline for the pro gram EIR was flawed

. Accor d ing to petiti oner, t h e EIR ’ s projected baseline is not supported by substantial evidence.
A. Relevant law
A n accurate b aseline is fundamental for an EIR; without it,
the “ analysis of impacts, mitigation measures and project
alternative s becom e s impossible. ” ( Cou nty of Am a dor v.
El Dorado County Water Agency (1999) 76 Cal.App.4t h 931, 95 3.) CEQA mandates t hat the base line b e bas e d upon physical environmental conditions as they exist at the time the notice of preparation is filed. (Gui delines

, § 15125, sub d. (a)( 1). ) Whi l e CEQA allows pro jected baselines of future conditions where the

ex isting circumstances are subject to change

, it mandates that

“ [u]se of projected future conditions as the only baseline must be supported by reliable projecti o n s base d on s ubstant ial ev ide n ce in
the record. ” (Gui delines

, § 15125, subd. (a)( 2 ).)
B. Anal y s is The program EIR po pulation and housin g baseline is supported by a mple evidence : data relied upon is source d and the18

baseline settings are explained and s u pported. Sp ecifically , the

p rogram EIR relies upon U.S . Census data, the South ern California Association of Govern ments ’ s 2 017 profile of the City of Glendale , the Housing Element, and the City ’ s habitable dwelling u nit data to establis h a po pulation and housing base line
and t o calc u late population based on the aver age persons per house hold. Furthermore, the summary of the project, local and

reg ional conditions , and forecasted growth in the pr ogram EIR are also supported b y subs tantial evidence. 7

V I

. Comm unity Plan d id not vio late t h e planning and zoning
law s Petitioner argues that the Communi ty Plan violated the planning and zoning laws . It points us to two claimed err o rs: (1) i nterna l GP incon sisten cy, and (2) nonc oncurrent adopti on of
the environm ent al just ice e lement. W e addr e ss each in turn.
A. Internal inco nsistency Government Code section 65300.5 provides, in relevant part: “ L egi slat u re intends that the genera l plan and elements and parts thereof co mprise an integrated, inter nally consistent

a nd co mpatibl e statemen t of p o licies for the adopting agency. ”
A ccording to petitioner, the Commun i ty Plan is inconsistent and therefore imprope r pursuant to this st atute. Petitioner ’ s reliance upon Gove rnment Code section 65300.5 is misplaced. As the tri al court cor rectly fou nd , o n July 31, 2018, when the City certifie d the Program EIR and

7 Because the basel ine is not flawed, it follows that we reject petitioner ’s contention that all of the EIR ’s a lterna tives are

unreas onab le

.19

approved Alt ernative 2 , Gle n dale, a charter city , was not subject to either Government Code section 65300.5 or 65359, which impose general plan consistency requirement s on general law
citi es . Thu s , as a matter of l aw, petitioner ’ s claim is rejected. Setting that aside, petitioner o f fers no evidence tha t the Community Plan resulted in inconsistencies. And, a s the trial court aptly noted, “ [t]he [Commu nity P lan] is not i mplemented

y et. Amend ments t o insure c onsistency with the general pla n will be made b efore the [ Commu n ity Plan ] is impleme nted

. ” Since the Community Plan amendments have yet to be adopted, petitioner ’ s cl a im of in consistency is premature.
B. Environment al justice G ove rnm ent Code s e ction 65302, subdivision (h)(2),

re q uires a city or coun ty to “ adopt or review the environmental justice element, or the environmental justice goal, policies, and objectives in o ther eleme nts, upon the adoption or next revision of

two or m ore elemen ts con c urrently on or after January 1, 201 8

. ”
Peti t ion er conte nds th at the Community Plan approvals adopted and/or amended two elements of the City ’ s general plan, thereby requiring t h e City to adopt an environ mental justice element.
Petitioner is mistak en. Th e C ommunity P lan implement ation sect i on explicitly

re fers to la ter implementa tion actions that will include the adoption of environmental justice policies to satisfy G overnment C o de sec tion 65302, subdivision (h) (2). The mere m en tion of
th ese two el ements for later a m endment does not im m edi ate ly trigger Government Code section 65302, subdivision (h)(2)

,

c ompliance

.20

V I I. I mpacts and m itigation m ea s ures are identified Petitioner asserts that the City “ fail[ed] to mitigate impact s ” and “ omit [ted] cu mu lative i m p acts ” and that these alleg ed omissions violate CEQ A ’ s in formation mandates. Mitig ation measures are actions that are intended t o avoid, minimize, rectify, or eliminate any significate adverse impact of a project. (Gui delin es, § § 15370 , 1512 6 .4
, subd. (a)(1).)
Enfo r c ement of such measures is ensured through the adoptio n of

a r e quired mitigation monitoring and reporting requirement. ( § 2 1 081.6.) For the reasons outlined by the trial court , we disagree.
The EI R discusses t he env i ronme ntal impac ts of t he C ommunity Plan project and the mi tigation measures for those impacts and whether, after the application of the mitigation me a sures, the

en vironmental impacts will remain significant.
VIII

. Notice of De termination As it d id in th e tri a l court, p etiti o n er a sserts that the Notice of Determination was prejudicially premature. But, as it
also did in the t rial court, petitioner relies upon exhibits not
received into evidence. Be cause thi s argument is not bas ed upo n admitted evi dence, it fa ils.
I X. Fa ilur e to r ecirculate the EIR Petitioner argues that the City viol ated CEQA by failin g to recirculate the EIR to reflect new significant information. Respondents do not ad dress thi s ar g um ent in their r espond ents ’
brief.

“ ‘ If signi ficant new i nformation is ad d ed to an EIR [or to the administrative record], the lead agency must i s sue a new notice and recirculat e the EIR for comments and consultation. ’ [Citations.] ” ( Gray v. County o f Madera (2008) 167 Cal.Ap p.4t h21

1099, 1120.) Acco rding to pet itioner, t he new significant
information includes the “ DSP Moratori u m ” and the fact tha t the City realized its Comm unity Plan was inconsistent. These claims fail.
Petit ioner ’ s claim concerning the “ DSP Morato rium ” is one of the New CEQA Claim s properly d ismissed b y the t rial court.
While the original petition for writ of mandate set forth one paragraph conc er ning the DSP Moratorium , no allegations arose
from it. Those alle g ations did not appea r unti l the first amended petition. And, as discu ssed above, the Commun ity Pl a n is not
inconsistent.
X

. Costs
A. Standard of review
We review the trial court ’ s cost award for abuse o f
d iscr etion. ( El Dorado Meat C o . v. Yosemite Meat & Locke r Serv ice , Inc. (2007) 150 Cal.App.4t h 612, 617.)
B

. Relevan t law

“ [A ] prevailing party is entitled as a matter of right to recover costs in any action or proceeding. ” (Code Civ. Proc., § 1032, su bd. (b).) The statutes govern i ng the award of co s t s

crea te three categories of costs: (1) those specifically enume ra ted

as “ allo wa ble ” ( Co de Civ

. Proc., § 1033.5, subd. (a) (sectio n 1033.5 ) ) ; (2) those specifically en umerate d as “ not allowable

. . . excep t when expressly authorized b y law ” ( § 1033.5, sub d. (b) ); and (3) those “ not mentioned ” in the statutes , which are

r ecoverable “ in the cou rt ’ s d i scretion ” ( § 1033.5, subd. (c)(4)). ( Gorman v. Tassajara Development Corp. (2009 ) 178 Cal.App.4t h 44, 71.) A ny costs a warded must be “ rea s onably necessary to the22

co nduct of the litigation ” and “ r ea sonable in amount. ” ( § 1033 .5, subd s. ( c)(2) & (3 ).)
Co u rts employ a burden

- shi fting analysi s

. The prevailing party bears the initial burden of establishing prima fa cie
entitlement to the recove r y of costs, which it meets if it s verified
cost bill “ ‘ appears proper on its fac e. ’ ” ( B enach v. Co unty of
Lo s Ang e l es (2007) 149 C al.App.4t h 8 36, 855; L adas v. California
State Au to. Assn. (1993) 19 Cal.App.4t h 761, 774.) Th e nonprevailing party then b e a rs the burden of mak ing a “ proper[] object[ion] ” to specific costs in a motion to tax. ( Jones v.
D umrichob ( 1998) 6 3 Cal .App.4t h 1258, 1265.)
C

. Anal y sis Applying these legal principles, we conclude that the trial
court pro perly awarded respondents the i r costs.

1

. Filing fees
S ection 1033.5 , subdivision ( a ) (14) , allows a prevailing part y to recover costs for “ [f]e e s for the el e ctronic filing or service of documents through an electronic filing servi ce provider if a court requires or orders electronic f iling or service of docume nts. ” Furthermore, courier and messenger c harges related to trial

prepar ation and incurr e d for such m a tters as filing documents with the court, complying with document demands , and transporting exhibits to and from the courtroom may also be
reimburs able c os ts. (See, e.g., Ladas v. California State Auto.
Assn.

, sup ra , 19 Cal.A pp.4t h at p. 776 ; Benach v. C o unty of
Los Angeles

, supra , 149 Cal.App.4t h at pp. 857

– 858 .) Here, the tr ial court required pick

- up and delivery of the
record and related docume nt s, and requested service of courtesy copies. Thus, the trial c ourt ’ s award of costs for these s ervice s

was w ell within the trial court ’ s di scretion.23 On appeal, petitioner asks us to re vers e the cost award on

t he gro unds that the cost breakdown of e

- filing and e

- service fees

“ significantly differe d ” between the Cit y ’ s mem orandum of c osts and i ts opp o sition to petitioner ’ s motion to tax costs. We are not

con vinced. While the descr i ption of those charg es may be different , the total charges are the same.

2. Costs of h earing transcr ipts
Petitio ner further argues that the t rial court e rred in

aw arding respondents costs for 10 transc ripts.
S ection 1033 .5, s ubdivi sio n (a)(9), allows for the recovery of
costs for “ [t]ranscripts of court proceedings ordered by th e court. ” (See also § 1033.5, subd

. (c )(4) [ certain items may be a llowed in
th e court ’ s discre t ion] .)
T he trial court acted well w ithin its discretion when it determined that the City needed all of the hearing transcripts to fairly conduct th is litigation

. Petitioner referenced incomplete transcripts in various motions and declarat ions. As the tr i al court aptly noted, th is case was unnece ssar il y conte ntious and complicated, partially because of petitioner ’ s mischaracterizations. For example, petitioner re pea tedly insisted
that the City agreed to pa y record preparation cos t s and th at the
tri al cou r t did not trans fer record preparation to the City.
Petitio ner is wrong. As set forth above, when petitioner could not timely prepare the record, the trial court ordered the C i ty to do

so. And, w hil e the City was initially “ w illing to co nsider ” fo rg oing

some c osts, it never agreed to do so ; in fact, it expressly re served its right to request costs. Despite these clear facts, petitioner
continues to misrepresent what occurred , confirming why hearing

t r anscripts were criti cal t o ensure fai rness, int egri ty
, a nd

accuracy in the se proceedings. ( § 10 33.5, subd. (c) (4).)24 In so finding, we reject petitioner ’ s assertion that it would be inequitable to award t h ese costs to res pond ents b ecause petitioner already paid for “ transcript /rep orter costs. ” Petitio ner ch o se to transc r ibe all of the hearings, and the City paid for its copy of the transc ri pts it needed to conduct the litigation. The C i ty was n o t required to share in pet itioner ’ s transcript costs

. That said, o n March 6, 2020, the trial court asked for the
F e bruary 28, 2 0 20, and March 6, 2020, transcripts in order to
review the matter under submission. On Marc h 23, 2020, petitioner asked the City to share the cost of providing the transcripts req uired by the court, and the City ag reed to the March 6, 2 020, t r anscript only

. Thus, respondents rightly agreed
to be taxe d for this one cost

.

3. Costs of exhibits Petitioner argues that costs ass ociated with pho tocopying
trial ex h ibits are not recoverable. Section 1033.5, s ubdivision (a )(13), allow s a party to

rec o ver costs for “ [m]odels, the en l argement of exhibits and

p hoto copies of exhibits, and the electronic presentation of exhibits, including costs of rental eq uipm e nt and electronic formatting, may be allowed if they w ere reasonabl y he lpful to aid
the t rier o f fact. ” (See, e.g., El Dorado M eat Co . v. Yosemite Meat

a nd Locker Service, Inc.

, supra , 150 Cal.App.4t h at pp. 61 8

– 619.) Here, as set forth in the City ’ s mem o randum of costs , the City sough t cost s for copying the record to pr ovide the tr ial court
with t h e evidence it n eeded for trial. ( B enach v. County of
Los Angeles

, su

pra , 149 Cal.App.4t h at p. 856 [ “ [a]lthough the [prev ailing party] did no t use the majority of its exhibits at trial, nothing in dicates it could have anticipa ted that the y would no t be

u s ed. An ex peri e nced trial judge wou ld rec ognize that it would be25

in equitable to deny as allowable costs exhibits any prudent
counsel would pre p are in advance of trial ” ].) The trial court did
not abuse its dis cretion in awardin g them.

4. Record pr eparat i on co sts As th e prevailing party in a CEQ A proceeding, the City was
entitled to costs . (Code Civ. Proc., § 1032, subd. (b).) Those costs
inc l ude “ the amounts

. . . reasonably and necessarily incurred in preparing the ” re cord of proceedin gs. ( Wagn er Far m s, In c. v. Mod e sto Irrigation Dist. (2006 ) 145 C al.App.4t h 765

, 774 ; River Valley Preservation Project v. Metropolitan Trans it Development
Bd. (1995) 37 Cal.App.4t h 154 , 181 [ “ Whether a par ticular cost to

prepare a n administrat ive record w as nec essa ry and reasonable
is a n issue for the soun d disc retion of the trial court ” ] .) Urg ing us to reverse , petitioner argues that the City either agreed to p ay costs or forgo future costs. W hile t he record is not entirely clear, the trial c ourt did not err in co ncludi n g th a t the City specifica lly re served its right to seek costs

. As noted above, respondents ’ counsel specifically stat e d that th ey were “ still going to make a motion for those costs. We ’ re entitled to under the
law

. ” This sta tement sup po rts the tr ial co u rt ’ s determination
th at the City did not unequivocally agree to either waive all costs

o r forgo all future costs. For the first time on appeal, petitioner argues that the City is estopped from claiming costs it agree d to forgo

. Asid e from the
fact that w e are not convinced by petitioner ’ s characterization of
counsel ’ s comments at t h e August 7, 2019, hearing, t his argument has been forfei ted. It is well

- settled that arguments
not raised in the t rial court m a y not be raised on a ppeal. ( Mer idian Fina ncial S ervices, Inc. v. Phan (2021) 67 Cal.App.5t h 657, 699 .)26 D ISPOSITION
The judgmen t is a ffirmed

. Respondents are entit led to

costs on appea l.
N OT T O BE PUBLISHED IN THE OFFICIAL REPORTS

.

_____________

_ ____ ___, Acting P. J

. A SHMA NN

- G ER ST

We co n cur:

_____________________ ___, J. CHAVEZ

_______ ________ _____ ____, J. H O FFSTADT