Filed 7/24/15 Japanese Village v. Los Angeles County MTA CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 FIVE

JAPANESE VILLAGE LLC,

Plaintiff and Appellant,

v.

LOS ANGELES COUNTY 

METROPOLITAN TRANSPORTATION 

AUTHORITY,

Defendant and Respondent.

 B259725

 (Los Angeles County

 Super. Ct. No. BS137343)

 ORDER MODIFYING OPINION

 [CHANGE IN JUDGMENT]

The opinion filed on July 9, 2015, is modified as follows:

On page 1, line 2, change “Affirmed” to “Affirmed in part, dismissed in part.”

On page 23, at the conclusion of the second paragraph, add “The cross-appeal is 

dismissed as moot. The parties are to bear their own costs incurred on cross-appeal.”

_____________________

TURNER, P.J.

______________________

MOSK, J.

______________________

KIRSCHNER, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.
Filed 7/9/15 (unmodified version)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE

JAPANESE VILLAGE LLC,

Plaintiff and Appellant,

v.

LOS ANGELES COUNTY 

METROPOLITAN TRANSPORTATION 

AUTHORITY,

Defendant and Respondent.

 B259725

 (Los Angeles County

 Super. Ct. No. BS137343)

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard 

L. Fruin, Jr., Judge. Affirmed.

Crockett & Associates and Robert D. Crockett; Latham & Watkins and Benjamin 

J. Hanelin for Plaintiff and Appellant.

Mark J. Saladino, County Counsel, Charles M. Safer, Assistant County Counsel, 

and Ronald W. Stamm, Principal Deputy County Counsel; Remy Moose Manley, 

Whitman F. Manley, Tiffany K. Wright, Jennifer S. Holman and Jeannie Lee for 

Defendant and Respondent.
2

I. INTRODUCTION

Plaintiff, Japanese Village LLC, is the owner of the Japanese Village Plaza in the 

Little Tokyo neighborhood of Downtown Los Angeles. Defendant, The Los Angeles 

County Metropolitan Transit Authority, is constructing three subway stations and an 

underground subway through Downtown Los Angeles. The project is entitled the 

Regional Connector Transit Connector Project. The subway will directly link the 7th 

Street/Metro Center Station located at 7th and Figueroa Streets to the Metro Gold Line 

light-rail system in Little Tokyo. 

Because of partial federal funding for the project, the Federal Transit 

Administration was required to conduct environmental review pursuant to the National 

Environmental Policy Act. (42 U.S.C. § 4321 et seq.) Under these circumstances, an 

environmental impact report/environmental impact study must be jointly prepared by 

federal and local authorities. (Environmental Protection Information Center v. California 

Dept. of Forestry and Fire Protection (2008) 44 Cal.4th 459, 472; Cal. Code of Regs., tit. 

14, § 15220 et seq,) For clarity’s purpose, the final environmental impact 

report/environmental impact study will be referred to as the environmental impact report. 

Plaintiff appeals from the denial of its mandate petition and declaratory relief 

complaint which upheld defendant’s certification of the environmental impact report. 

Plaintiff’s challenges arise under the California Environmental Quality Act. (Pub. 

Resources Code1, § 21000 et seq.) We are only reviewing the environmental impact 

report for violations of the California Environmental Quality Act even though it was 

jointly prepared by federal authorities. Defendant contends in its cross-appeal that the 

project is exempt from environmental review. We conclude the trial court correctly ruled 

defendant could properly certify the environmental impact report as it relates to the 

Japanese Village Plaza. Because we conclude the trial court correctly upheld the 

environmental impact report’s certification, we dismiss defendant’s cross-appeal as moot.

 

1 All further section references are to the Public Resources Code unless otherwise 

indicated. 
3

II. PLAINTIFF’S CHALLENGES TO THE ENVIRONMENTAL IMPACT REPORT’S 

CERTIFICATION

A . Plaintiff’s Verified Mandate Petition and Declaratory Relief Complaint

On May 21, 2012, plaintiff filed its verified mandate petition and declaratory relief 

complaint. According to the petition and complaint, plaintiff owns a 92,000 square foot 

property with retail, dining and office venues. The petition and complaint identifies 

various deficiencies in the environmental impact report which thereby violates the 

California Environmental Quality Act. The first cause of action seeks issuance of a writ 

of mandate because the environmental impact report does not comply with specified

California Environmental Quality Act provisions. Specifically, plaintiff alleges: the 

draft environmental impact report fails to propose a specific, identifiable project; the draft 

environmental impact report fails to develop alternatives and mitigation measures to 

avoid or substantially lessen significant ecological effects; the environmental impact 

report mischaracterizes the nature and extent of many of the project’s ecological effects; 

the environmental impact report lacks a detailed analysis of many of the project’s 

significant ecological consequences on Japanese Village Plaza in particular and the Little 

Tokyo community in general; and among the matters which are not the subject of an 

appropriate detailed analysis are parking issues, land use restrictions and noise impacts 

from the construction and operation of a subway and station. 

Further, plaintiff alleges that the inadequate analysis is confirmed by postponed 

studies relating to the project’s design and construction phases. The necessary studies 

and surveys which have been postponed include: a traffic management and construction 

mitigation plan; a construction mitigation program; structural surveys to establish 

ground-movement and loss potential; a verification of the location of underground 

utilities; confirmation of construction haul routes; monitoring requirements for total 

construction; a parking needs assessment for Little Tokyo; further design features for the 
4

First Street/Central Avenue station; a cost-benefit analysis relating to the use of a single 

tunnel boring machine; and conducting subsurface geotechnical investigations. 

In addition, the first cause of action alleges: there should have been recirculation 

of the environmental impact report after material changes were made to the noise impact 

analysis from that in the draft environmental impact report; the environmental impact 

report fails to analyze the significant ecological effects caused by reasonably foreseeable 

future development; defendant failed to adopt feasible alternatives to locating the project 

beneath Japanese Village Plaza; and defendant failed to adopt feasible mitigation 

measures that would resolve parking, noise, future development and subsidence impacts. 

And, according to the first cause of action, defendant’s findings and statement of 

overriding considerations are not supported by substantial evidence. Finally, the first 

cause of action alleges: “[Defendant] was required to make specific findings [concerning 

the absence of feasible mitigation measures] and discuss the ‘[s]pecific economic, legal, 

social, technological, or other considerations’ that outweigh these significant, 

unavoidable impacts. ([] § 21081.) [Defendant] failed to do so, and its Findings of Fact 

and Statement of Overriding Considerations, therefore, fail as a matter of law.” 

The second cause of action seeks declaratory relief. The basis of plaintiff’s 

declaratory relief claim is that defendant violated the California Environmental Quality 

Act by certifying the environmental impact report. The petition and complaint seeks: a 

writ of mandate directing defendants to set aside its approval of the project and 

certification of the environmental impact report; to cease all activities related to the 

construction of the project until there is compliance with the California Environmental 

Quality Act; a writ of mandate directing defendant to stop construction of the project 

until a proper environmental impact report has been prepared; a declaratory judgment that 

defendant’s certification of the environmental impact report violates the requirements of 

the California Environmental Quality Act; injunctive orders preventing defendant from 

proceeding with the project until a legally sufficient environmental impact report has

been prepared; and attorney fees and costs. 
5

Plaintiff moved to file an amended mandate petition. The trial court never issued 

a definitive ruling on plaintiff’s amendment motion. Thus, plaintiff’s operative pleading 

is the original petition and complaint. 

B. Plaintiff’s Trial Brief

The trial brief identifies the following issues: the environmental impact report 

fails to adequately evaluate noise impacts both during the project’s construction and longterm operation; the environmental impact report is deficient because it fails to properly 

assess parking impacts; the environmental impact report’s last minute change to the 

subway route merely shifts previously identified ecological effects and amplifies them; 

the environmental impact report fails to adequately analyze land use and subsidence 

repercussions; the environmental impact report improperly defers analysis of numerous 

aspects of the project; and the statement of overriding considerations is deficient. The 

argument portion of plaintiffs’ trial brief asserts: the environmental impact report fails to 

address significant impacts on Little Tokyo; the factual findings and overriding 

considerations statement misrepresents the information contained in the environmental 

impact report; defendant failed to adopt feasible and enforceable mitigation measures; 

mitigation measures were improperly deferred; and defendant failed to adopt a feasible 

alternative that would reduce project impacts. 

Plaintiff’s reply argues: significant construction noise impacts have not been 

mitigated; defendant improperly rejected a feasible mitigation measure to reduce 

operational noise impacts; no adequate study was made of parking impacts on Little 

Tokyo; defendant failed to evaluate land-use impacts resulting from the acquisition of 

underground easements in a dense urban area; there was improper deferral of analysis 

concerning numerous impacts; and defendant violated unspecified provisions of the 

California Environmental Quality Act by rejecting a feasible alternative with fewer 

ecological effects. In addition, plaintiff addressed defendant’s exemption contention. 

Other than in connection with a ground-borne noise and vibration issue, plaintiff never 
6

argued defendant failed to adequately respond to comments to the draft environmental 

impact report. 

C. Challenges on Appeal

Plaintiff presents four principal challenges to defendant’s certification of the 

environmental impact report. First, plaintiff challenges determinations made in 

connection with ground-borne noise and vibration impacts, both in terms of construction 

and day-to-day subway operations. In this regard, plaintiff contends there is no 

substantial evidence defendant’s mitigation measures would have reduced noise and 

vibration impacts to less than significant levels. Second, plaintiff contends defendant did 

not study nor properly mitigate the project’s parking impacts. Third, plaintiff asserts 

defendant did not properly mitigate subsidence risks. Fourth, plaintiff contends that 

defendant’s responses to comments concerning noise, vibration, parking and subsidence 

were inadequate. 

III. STANDARD OF REVIEW

The gravamen of plaintiff’s contentions is the environmental impact report’s 

discussion is flawed and fails to meet statutory requirements for good-faith investigation 

and disclosure. An environmental impact report’s fundamental purpose is to inform 

public officials and the people they serve of any significant adverse effects a project is 

likely to have on the environment. (§ 21061; Neighbors for Smart Rail v. Exposition 

Metro Line Const. Authority (2013) 57 Cal.4th 439, 447; Vineyard Area Citizens for 

Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428.) We 

presume the correctness of defendant’s decisions in the environmental impact report 

context. (San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1, 

11; State Water Resources Control Board Cases (2006) 136 Cal.App.4th 674, 723.) Our 

Supreme Court has described the limited nature of our review: “In reviewing agency 
7

actions under [the California Environmental Quality Act], . . . section 21168.5 provides 

that a court’s inquiry ‘shall extend only to whether there was a prejudicial abuse of 

discretion. Abuse of discretion is established if the agency has not proceeded in a manner 

required by law or if the determination or decision is not supported by substantial 

evidence.’” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 

564; see Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 

Cal.App.4th 184, 195.) 

Thus, our standard of review depends upon the nature of the challenge to an 

environmental impact report: “In evaluating an [environmental impact report] for 

[California Environmental Quality Act] compliance, then, a reviewing court must adjust 

its scrutiny to the nature of the alleged defect, depending on whether the claim is 

predominantly one of improper procedure or a dispute over the facts. For example, 

where an agency failed to require an applicant to provide certain information mandated 

by [the California Environmental Quality Act] and to include that information in its 

environmental analysis, we held the agency ‘failed to proceed in the manner prescribed 

by [the California Environmental Quality Act].’ (Sierra Club v. State Bd. of Forestry

(1994) 7 Cal.4th 1215, 1236; see also Santiago County Water Dist. v. County of Orange 

[(1981)] 118 Cal.App.3d [818], 829 [[environmental impact report] legally inadequate 

because of lack of water supply and facilities analysis].) In contrast, in a factual dispute 

over ‘whether adverse effects have been mitigated or could be better mitigated’ (Laurel 

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

[376,] 393), the agency’s conclusion would be reviewed only for substantial evidence.” 

(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra,

40 Cal.4th at p. 435.) The gravamen of all of plaintiff’s contentions relate to its factual 

disagreements with the environmental impact report’s conclusions. Thus, our standard of 

review as to defendant’s environmental conclusions is for substantial evidence.

In terms of the correctness of defendant’s environmental conclusions, our 

Supreme Court has explained: “Thus, the reviewing court ‘“does not pass upon the 

correctness of the [environmental impact report’s] environmental conclusions, but only 
8

upon its sufficiency as an informative document.”’ [Citations.] We may not set aside an 

agency’s approval of an [environmental impact report] on the ground that an opposite 

conclusion would have been equally or more reasonable.” (Citizens of Goleta Valley v. 

Board of Supervisors, supra, 52 Cal.3d at p. 564, quoting Laurel Heights Improvement 

Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 392 and County of 

Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189.) In a similar vein, our 

Supreme Court has explained: “‘A court’s task is not to weigh conflicting evidence and 

determine who has the better argument when the dispute is whether adverse effects have 

been mitigated or could be better mitigated. We have neither the resources nor scientific 

expertise to engage in such analysis, even if the statutorily prescribed standard of review 

permitted us to do so.’” (Western States Petroleum Assn. v. Superior Court (1995) 9 

Cal.4th 559, 572 citing Laurel Heights Improvement Assn. v. Regents of University of 

California, supra, 47 Cal.3d at p. 393.) Therefore, we defer to defendant’s resolution of 

conflicting engineering opinions and evidence. (Western States Petroleum Assn. v. 

Superior Court, supra, 9 Cal.4th at p. 572; accord Environmental Council of Sacramento 

v. City of Sacramento (2006) 142 Cal.App.4th 1018, 1042.) 

IV. PLAINTIFF’S APPEAL

A. Ground-Borne Noise and Vibration

1. The setting

Plaintiff is the owner of the Japanese Village Plaza located in the Little Tokyo 

district of Los Angeles. The environmental impact report describes Little Tokyo thusly: 

“Little Tokyo is a unique cultural community in downtown Los Angeles because it has 

the largest Japanese-American community in the continental United States . . . . Little 

Tokyo is one of only three remaining Japantowns in the United States (in addition to San 

Francisco and San Jose). Little Tokyo has a range of mixed-uses including retail, hotel, 
9

office, and commercial spaces.” According to the environmental impact report and the 

administrative record, the Japanese Village Plaza is a retail and office facility. More than 

40 businesses operate in the Japanese Village Plaza. The businesses in the area were 

characterized by Evelyn Yoshimura, a member of the Little Tokyo Service Center, as the 

“heart and soul” of the neighborhood. 

The issues relevant to ground-borne noise and vibration arise because the project

involves construction of two subway tunnels directly beneath the Japanese Village Plaza. 

And after construction, subway cars will operate directly beneath the Japanese Village 

Plaza. The environmental impact report describes the Japanese Village Plaza as a 

sensitive land use. Plaintiff argues that the tunnels are approximately 13 to 15 feet 

underground the Japanese Village Plaza. However, the tunnels are passing 13 to 15 feet 

below plaintiff’s parking garage. The tunnels in fact will pass 25 feet beneath those 

portions of the Japanese Village Plaza where the land use would be sensitive to annoying 

noise and vibration. Such sensitive areas are places for sleeping or quiet concentration. 

2. The environmental impact report’s assessment of noise and vibration resulting from 

construction and operation.

a. Criteria and consultants

In order to measure construction and operational noise and vibration impacts, 

defendant relied upon the Federal Transit Authority criteria for ground-borne vibration 

and ground-borne noise. Plaintiff does not challenge defendant’s selection of the Federal 

Transit Authority criteria for ground-borne vibration and noise. According to the 

environmental impact report, ground-borne noise is created when a vibration source 

causes a low-frequency rumble sound within a building. The environmental impact 

report explains: “[The Federal Transit Administration] has developed impact criteria for 

ground-borne vibration . . ., which is expressed as a velocity level in units of VdB, and 

ground-borne noise . . . due to transit project construction and operation of transit 
10

vehicles. . . . [Ground-borne noise] is created when a vibration source such as a train 

pass-by causes vibration of floors and walls in nearby buildings resulting in a low 

frequency rumble sound within the building. Impacts of [ground-borne noise] are 

particularly important for underground transit operations because, depending on the soil 

type, tunnels more efficiently transmit vibration to the surrounding soil than surface track 

structures.” Thus, ground-borne noise results from vibrations caused by subway 

construction and operations. 

The environmental impact report engages in a comprehensive analysis of noise 

and vibration levels. As noted, ground-borne vibration is measured technically in units of 

VdB. Ground-borne noise is measured in dBA units. The environmental impact report 

engages in this analysis in the context of subway construction and subsequent operation. 

The Federal Transportation Administration considers “a qualitative assessment is 

appropriate” where prolonged construction impacts are not anticipated. In contrast, there 

are certain quantitative or significance criteria which are applicable to prolonged 

construction. Several reports prepared by the Wilson Ihrig & Associates consulting firm 

with assistance from other engineering concerns assessed the frequency and levels of

ground-borne vibration and noise impacts. We will examine the professional assessments 

of ground-borne noise and vibration at the Japanese Village Plaza in greater detail 

shortly.

As noted, the environmental impact report relied upon the previously mentioned

studies conducted by Wilson, Ihrig & Associates, acoustical and vibration consultants 

located in California, New York and Washington. In addition, defendants relied upon 

acoustical and vibration studies conducted by Parsons Brinckerhoff, Inc. in 2009. Many 

of the documents refer to the Parsons Brinckerhoff, Inc. firm as PB. The degreed Parsons 

Brinckerhoff, Inc. staff identified in the administrative record include: Amanda Elioff, 

P.E. a senior project manager with over 26 years of geotechnical engineering experience 

who had authored 19 articles; Dawn L. McKinstry a senior project manager and urban 

planner with 29 years experience in planning and travel demand forecasting; Donald J. 

Emerson, an urban planner with 40 years of experience with planning experience in 
11

numerous states; Dr. Eugene J. Kim who had 15 years experience in transportation 

planning, transit system design and related systems management; Kevin Keller, a noise 

analyst and environmental planner with 22 years experience conducting noise and 

technical studies in the West Coast, Midwest and Honolulu; Raymond K.Y. Choy, P.E., a 

senior project engineer with extensive experience in highway and rail development in 

California, the Philippines and the Peoples Republic of China; Will H. Willson, a risk 

manager with 34 years of experience in Canada, the United Kingdom, Ireland and Hong 

Kong; and Zafer Mudar, P.E., a supervising engineer with 17 years of engineering 

experience with a special emphasis in light rail design. 

b. Vibration and noise levels during construction and subway operations

The environmental impact report analyzes ground-borne noise during construction

and later during the subway operations. The environmental impact report analyzes these 

significant subway operation impacts in VdB and dBA units; ground-borne vibration and 

noise levels respectively. During subway construction, a tunnel boring machine will be 

used. The tunnel boring machine’s use during subway construction will result in 

potentially significant impacts to office uses in the Japanese Village Plaza. 

The environmental impact report concludes that the tunnel boring machine could 

result in ground-borne vibration and noise at levels of 86 VdB and 51 dBA respectively. 

The federal annoyance criteria for a quiet office for occasional events is 78 VdB and 43 

dBA for ground-borne vibration and noise levels. For infrequent events, the federal quiet 

office annoyance criteria for ground-borne vibration and noise levels for is 83 VdB and 

48 dBA. Thus, even though the maximum vibration and noise from the tunnel boring 

machine would be occasional or infrequent, they would potentially result in a significant 

environmental impact. The environmental impact report concludes during construction, 

“Even though this maximum vibration and noise from the [tunnel boring machine] 

operations would be occasional or infrequent, the [tunnel boring machine] activities 
12

would potentially exceed the annoyance criteria listed above for occasional or frequent 

events at the . . . [Japanese Village Plaza] . . . which would result in a significant impact.” 

Also during construction, delivery trains are expected generate infrequent groundborne noise and vibration events. However, because of the infrequent use of the delivery 

trains, the environmental report indicates there would be no impact under the federal 

annoyance criteria. The environmental impact report assesses the ground-borne vibration 

and noise level for delivery trains at 64 VdB and 42 dBA respectively. But, depending 

on the location of the office in the Japanese Village Plaza, a higher ground-borne 

vibration and noise level could reach 61 VdB and 36 dBA respectively. This is roughly 

10 percent of the vibration and noise levels for construction performed by the tunnel 

boring machine. The Wilson Ihrig & Associates July 12, 2011 memorandum explains 

that the Federal Transportation Administration assesses the expected 30 trains per day as 

an infrequent event. Therefore, under the Federal Transportation Administration 

vibration and noise criteria, no significant impact will result from the use of delivery 

trains: “Ground[-]borne noise and vibration would also be generated by delivery trains in 

the tunnel during construction. These slow moving trains would possibly have wheel 

flats or operate on jointed construction rails, and it is estimated that the vibration would 

be on the order of 5 to 10 [decibels] less than that generated by [plaintiff’s] 

operations. . . . These levels would be less than the criteria for infrequent events and 

thus no impact would occur from delivery trains.” (Fn. omitted.) The Federal 

Transportation Authority identifies the ground-borne vibration impact criteria for 

occasional or infrequent events for a quiet office as 78 or 83 VdB respectively. Under 

the federal standards, an occasional event would involve 70 vibration events from the 

same source per day. Thus, even without the use of mitigation strategies, the use of slowmoving delivery trains during construction would have no significant impact. 

As to noise related impacts, the environmental impact report states: “While not 

generally likely, some [ground-borne noise] from underground construction activity such 

as tunneling could occasionally be audible. However, this [ground-borne noise] would be 

temporary and of short duration as the construction activity moves along the project 
13

alignment.” This analysis occurs in the context of a discussion of impacts assuming no 

mitigation occurs. As noted, the environmental impact report relies on statistical analysis 

provided by the Wilson, Ihrig & Associates and Parsons Brinkerhoff, Inc. firms.

It bears emphasis the July 2011 Wilson, Ihrig and Associates report focuses on 

noise and vibration significant impacts for a quiet office environment. There is a less 

precise impact analysis for what is called a general assessment of ground-borne noise and 

vibration levels. Under the less precise general assessment analysis levels, with a 

category 3 institutional landowner such as plaintiff, there would still be no significant 

noise and vibration impacts. The variations in annoyance levels are delineated in the 

administrative record.

c. Subway operation vibration and noise impacts

In terms of subway operations, without mitigation, the potentially significant 

ground-borne noise impacts for a sensitive land use would exceed the Federal Transit 

Authority annoyance criterion for frequent events. The environmental impact report 

calculates that, without mitigation, with a single pass by a subway train, potentially 

between 24 and 47 dBA would be generated under the Japanese Village Plaza. This 

ground-borne noise level would potentially exceed the Federal Transit Authority 

annoyance criterion for frequent events of 40 dBA. Thus, absent the implementation of 

mitigating measures, subway operations at the Japanese Village Plaza could involve 

potentially significant ground-borne noise impacts for a sensitive land use. In the event 

of two subway trains passing by at the same time, the ground-borne noise level would be 

increased to 50 dBA. Two subway trains passing underneath the Japanese Village Plaza 

is characterized under the Federal Transit Administration annoyance criterion as an 

occasional/infrequent event. According to the environmental impact report, this would 

be an infrequent event. The federal annoyance level for occasional/infrequent events for 

the Japanese Village Plaza is 43 dBA. Absent mitigation, the ground-born noise level 

when two subway trains passed simultaneously is expected to be 50 dBA, above the 
14

federal annoyance level. Thus, without mitigation, for occasional/infrequent events, the 

simultaneous passage of two subway trains is expected, according to the environmental 

impact report, to have potentially significant impacts. The development of the foregoing 

statistical noise and vibration data was result of additional studies conducted in May 2011 

after the filing of the initial environmental impact report. And it bears emphasis, the 

source noise level calculations were from both the Parsons Brinkerhoff, Inc. and Wilson 

Ihrig & Associates firms. 

However, with the adoption of the mitigation measures identified in the 

environmental impact report, each of these significant impacts will be reduced to less 

than significant effect. We will synthesize the mitigation impacts shortly in the technical 

reports supporting the conclusions of the environmental impact report. We now turn to 

plaintiff’s contention that the mitigation measures fail to reduce the significant impacts 

below those identified utilizing the Federal Transit Administration annoyance levels.

3. Plaintiff’s contentions concerning the absence of substantial evidence to support 

defendant’s findings concerning environmental impact report’s discussion of the 

effectiveness of the noise and vibration mitigation measures have been forfeited.

Plaintiff’s opening brief fails to identify most of the noise and vibration mitigation 

measures discussed in the environmental impact report. Defendant argues the failure to 

identify the mitigation measures and argue their insufficiency forfeits these issues on 

appeal. Defendant is correct, the opening brief barely mentions the extensive mitigation 

measures. The opening brief fails to discuss the extensive technical data that supports the 

environmental impact report’s mitigation measure conclusions. Thus, in all respects, the 

entire issue of whether the mitigation measures reduced the adverse noise and vibration 

ecological effects to less than significant impacts has been forfeited. (Mani Brothers 

Real Estate State Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1402; 

Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 

360, 380, fn. 16.)
15

4. The environmental impact report’s comprehensive discussion of the effectiveness of 

the noise and vibration mitigation measures relevant to subway construction is supported 

by substantial evidence.

As to construction related impacts, there is substantial evidence the mitigation

measures will reduce vibration and noise impacts on the Japanese Village Plaza to 

insignificant levels. As noted, the subway will be constructed underground by means of 

two tunnels. Construction will involve the use of a tunnel boring machine which can 

cause significant vibration and noise impacts. 

The environmental impact report imposes a number of mitigation measures 

including: limiting the types of construction-related vibration near sensitive areas; 

implementation of a vibration monitoring system to insure no damage results to sensitive 

buildings like the Japanese Village Plaza; imposing distance limitations on construction 

near sensitive locations; use of less vibration-intensive construction equipment; routing 

heavily-laden vehicles and earth moving equipment away from vibration-sensitive 

locations; avoiding the simultaneous use of vibration-producing construction activity; 

limiting construction activities during nighttime hours; utilization of devices with the 

“least impact” necessary to accomplish construction tasks; the use of non-impact 

demolition and construction methods; procedures for responding to noise complaints; use 

of higher performance mufflers during nighttime hours; utilizing portable noise sheds; 

minimization of jacking and pressing operations; maintenance of machinery in good 

working order; limiting delivery train speeds; the use of a resilient mat which will reduce 

ground-borne levels by at least four dBA; the use of a conveyor system rather than a 

delivery train; and a re-analysis of noise levels and use of high compliance resilient 

fasteners in the vicinity of the Japanese Village Plaza offices. And, if during the short 

time when the tunnel boring machine is utilized and the Federal Transportation Agency 

annoyance criteria is exceeded, residents are to be offered temporary relocation. These 

mitigation factors must be viewed in the context of the fact construction will last for only 
16

about three days for each of the two tunnels under any particular building. The 

environmental impact report concludes with the utilization of the foregoing mitigation 

measures the noise and vibration impacts will be less than significant. The environmental 

impact report’s findings are confirmed by the analysis in the Wilson Ihrig & Associates 

July 12, 2011 report. The Wilson Ihrig & Associates July 12, 2011 report is consistent 

with the firm’s March 28, 2012 analysis. The Wilson Ihrig & Associates July 12, 2011 

report, which relies in part on research conducted by the Parsons Brinkerhoff, Inc.

engineers, constitutes substantial evidence concerning construction-related environmental 

impacts.

5. The environmental impact report’s comprehensive discussion of the effects of the 

noise and vibration mitigation measures as to the operational impacts is supported by 

substantial evidence.

In terms of subway operation ground-borne noise and vibration impacts, 

substantial evidence supports the finding that mitigation measures have reduced the 

environmental impacts to less than significant levels. As noted, the criteria for 

determining annoyance levels is that specified by the Federal Transit Administration. 

The environmental impact report lists numerous mitigation measures designed to reduce 

noise and vibration impacts to insignificant levels. Mitigation measure NV-29 expressly 

requires that the ground-borne noise be below the Federal Transportation Administration 

annoyance criteria: “In the vicinity of the offices at Japanese Village Plaza . . . 

[defendant] shall conduct engineering studies during final design to verify initial 

estimates of [ground-borne noise] and shall implement high compliance resilient 

fasteners or other appropriate measures as needed to eliminate impacts and reduce 

ground-borne noise below [Federal Transportation Administration] annoyance criteria.”

(Italics added.) Further, mitigation measure NV-27 expressly requires the use of various 

techniques to reduce operational noise levels below the Federal Transportation 

Administration annoyance criteria: “In the vicinity of the Walt Disney Concert Hall and 
17

the Colburn School, [defendant] shall implement resiliently supported fasteners, isolated 

slab track, or other appropriate measures as needed to eliminate impacts and to reduce 

[ground-borne noise] below [Federal Transportation Administration] annoyance criteria.” 

(Italics added.) The March 28, 2012 Wilson Ihrig & Associates 17-page report expressly

identifies these mitigation measures as the types of construction techniques which will 

reduce operational ground-borne noise impacts to insignificant levels. The April 24, 

2012 report of Dr. Hooshang Khosrovani confirms the March 28, 2012 Wilson Ihrig & 

Associates analysis is based on normal engineering practice. Substantial evidence 

supports defendant’s operational noise and vibration conclusions. 

Plaintiff is correct about one aspect of mitigation measure NV-27. Mitigation 

measure NV-27, as it appears in the environmental impact report, does not require the use 

of isolated slab track technology under the Japanese Village Plaza. Isolated slab track 

technology involves pouring a concrete slab on top of a continuous elastomeric mat. 

Thus, plaintiff contends that this important technology is unavailable under the Japanese 

Village Plaza. 

Omitting the isolated slab track technology from mitigation measure NV-27 as it 

relates to plaintiff is entirely harmless. (§ 21005, subds. (a)-(b); Neighbors for Smart 

Rail v. Exposition Metro Line Construction Authority, supra, 57 Cal.4th at p. 463.) 

Mitigation measure NV-27 requires defendant to use “high compliance resilient fasteners 

or other appropriate measures” at the Japanese Village Plaza to reduce ground-borne 

noise below federal annoyance levels. (Italics added.) Thus, defendant is obligated to 

use “other appropriate measures” to bring ground-borne noise below the federal 

annoyance levels under the Japanese Village Plaza. Nothing in mitigation measure NV27 prohibits the use of isolated slab track technology under the Japanese Village Plaza. 

Of consequence, the March 28, 2012 Wilson Ihrig & Associates report suggests 

minimizing changing track types. The report explains it would be acceptable to use one 

type of mitigation throughout the subway line. This can be accomplished so long as the 
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mitigating measure provides equal or superior mitigating impact to others listed in the 

report. 

Complicating matters from plaintiff’s perspective, it is clear defendant intends to 

use isolated slab track technology beneath the Japanese Village Plaza. The April 26, 

2012 minutes of defendant’s directors board meeting expressly states the use of isolated 

slab track technology at Japanese Village Plaza is part of mitigation measure NV-27. 

According to defendants’ directors board’s minutes, mitigation measure NV-27 was 

intended to state in part: “In the vicinity of the Walt Disney Concert Hall, the Japanese 

Village Plaza and the Colburn School, [defendant] shall use resiliently supported 

fasteners, isolated slab track, or other appropriate measures as needed to eliminate 

impacts and to reduce [ground-borne noise] below [Federal Transportation Authority] 

annoyance criteria.” (Italics added.) Thus, defendant’s directors board intended that the 

isolated slab track technology be utilized under the Japanese Village Plaza and it be in the 

environmental impact report. Its omission from the version of mitigation measure NV-27 

in the environmental impact report was a harmless clerical error. 

To sum up, omitting the reference to the isolated slab track technology and the 

Japanese Village Plaza in mitigation measure NV-27 is harmless error. Mitigation 

measure NV-27 in the environmental impact report, which refers to the Japanese Village 

Plaza, does not preclude the use of isolated slab track technology. And mitigation 

measure NV-27, which references Japanese Village Plaza, requires the use of “other 

appropriate measures as needed” to reduce ground-borne vibration and noise levels below 

federal annoyance levels. Also, defendant is committed to using the isolated slab track if 

needed. The version of mitigation measure NV-27 appearing in the directors board’s 

minutes expressly states it is to be used below the Japanese Village Plaza. Moreover, it is 

anticipated that the isolated slab track technology is to be used several blocks away from 

the Japanese Village Plaza. Mitigation measure NV-27 requires its use at the Colburn 

School and the Walt Disney Concert Hall. The March 28, 2012 Wilson Ihrig & 

Associates report suggests minimizing changing track types. Finally, the omission of the 

isolated slab track technology language from mitigation measure NV-27 did not prevent 
19

informed decision-making or public participation. (Neighbors for Smart Rail v. 

Exposition Metro Line Construction Authority, supra, 57 Cal.4th at pp. 463-464; 

see 2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act 

(Cont.Ed.Bar 2d ed. 2014) §§ 23.36-23.37, pp. 23-45-23-48.) We need not address 

plaintiff’s remaining contentions which amount to an unpersuasive effort to have us 

reweigh conflicting engineering opinions. (Western States Petroleum Assn. v. Superior 

Court, supra, 9 Cal.4th at p. 572; Environmental Council of Sacramento v. City of 

Sacramento, supra, 142 Cal.App.4th at p. 1042.) 

6. Response to July 1, 2011 letter

Plaintiff contends defendant failed to adequately respond to a July 1, 2011 letter. 

This contention has no merit. The brief, conclusory and factually unsupported July 1, 

2011 letter was fully responded to prior to the conclusion of the environmental review 

proceedings and is part of the administrative record. 

B. Subsidence Issues

Plaintiff challenges the environmental impact report’s subsidence mitigation 

measures. To begin with, the very truncated discussion in the opening brief omits 

virtually all of the relevant facts concerning the subsidence mitigation measures. Hence, 

the entire subsidence issue has been forfeited. (Mani Brothers Real Estate State Group v. 

City of Los Angeles, supra, 153 Cal.App.4th at p. 1402; Citizens Opposing a Dangerous 

Environment v. County of Kern, supra, 228 Cal.App.4th at p. 380, fn. 16.) 

In any event, there is no merit to plaintiff’s subsidence contentions. Defendant 

admits in the environmental impact report there is the potential for subsidence given the 

nature of tunneling operations. However, the following are the mitigation measures to 

address these issues: GT-1, monitoring future studies; GT-2, ground improvement 

methods; GT-3, tunnel alignment grouted in advance; GT-4, monitoring devices along 
20

the route; and GT-5, use of particular machinery. Taken together, as demonstrated 

below, there is substantial evidence these mitigation measures are sufficient to reduce the 

subsidence risks to less than significant levels. (See Friends of Kings River v. County of 

Fresno (2014) 232 Cal.App.4th 105, 123 [three related mitigation measures considered 

together].) 

The feasibility of the above subsidence mitigation measures is supported by 

substantial evidence. Appendix U to the environmental impact report consists of a 

technical memorandum on geotechnical, subsurface, seismic and hazardous materials. 

The technical memorandum was prepared by the Los Angeles consulting firm of Camp 

Dresser & McKee, Inc., which is commonly referred to as CDM. The senior project 

manager for CDM was Virginia Jackson who had over 25 years experience working on 

transportation matters. CDM began environmental and engineering work on the project 

in July, 2007. Assisting in the subsidence analysis was the Parsons Brinckerhoff, Inc. 

firm’s staff. 

The memorandum evaluates potential impacts associated with the project area’s 

geological conditions and concludes the proposed tunneling would give rise to potential 

adverse subsidence impacts. The memorandum recommends certain measures to 

mitigate against potential subsidence: a preconstruction study; construction monitoring; 

and limiting potential settlement to below an acceptable threshold value established 

during the final project design. These enumerated mitigation measures are included as 

part of GT-1. Other proposed mitigation measures are reflected in GT-2 through GT-5.

The February 3, 2012 final draft of the Building and Adjacent Structure Protection 

Report prepared by the Connector Partnership indicates, “As soon as any of the above 

buildings show a settlement value greater than 0.25 inches, compensation grouting will 

be activated under the building in order to counteract the settlement developing under it.” 

Compensation grouting was described as an effective structure protection and settlement 

mitigation method. The report concludes that by applying grout to a settlement of 0.25 

inches, the damage would be negligible.
21

The April 2012 technical memorandum prepared by Ray Sosa and Bill Hansmith 

explains the use of the Boscardin and Cording method, which predicts potential damage 

to various structures. This technique was used to evaluate tunneling impacts on buildings 

adjacent to the alignment as required by mitigation measure GT-1. This method has 

gained worldwide acceptance in engineering practice. Further, by using compensation 

grouting, “[T]he settlement under these buildings could be controlled to acceptable 

levels.” Also, the use of pressurized face tunnel boring machines could “limit ground 

loss at the tunnel face to minimal amounts.” Substantial evidence supports defendant’s 

less than significant impact findings after implementation of the mitigation measures in 

connection with potential subsistence. As with other issues, plaintiff’s remaining 

subsidence contentions amount to an unpersuasive effort to have us reassess conflicting 

engineering opinions; something we are prohibited from doing. (Western States 

Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p. 572; Environmental Council of 

Sacramento v. City of Sacramento, supra, 142 Cal.App.4th at p. 1042.) 

C. Parking issues

There is no merit to defendant’s parking contentions. Relying upon technical 

studies, the environmental impact report comprehensively evaluates the project’s 

potential on-and-off street parking operational impacts and found such impacts to be 

insignificant. The environmental impact report’s parking analysis relies upon appendix L 

which contains a technical memorandum prepared by CDM and Intueor Consulting Inc., 

an Irvine, California traffic engineering firm. The degreed professionals from Intueor 

Consulting, Inc were Farid S. Naguib, T.E, and Peter Kim, P.E. and T.E., both who had 

over 20 years engineering experience. 

For example, the environmental impact report finds: “transit service can allow a 

neighborhood to grow while reducing its overall need for parking”; the project will 

“provide new non-auto access to the area, and partially offset the parking demand in the 

area.”; the project is not expected to create a demand for additional parking and can 
22

reduce existing parking demand by increasing transit access to the neighborhood; and 

because of the displacement of several businesses in the Little Tokyo area, there would 

be reduced parking demand. Thus, substantial evidence supports the finding that parking 

impacts would be less than significant. Plaintiff’s analysis amounts to nothing more than 

a request that we reweigh conflicting engineering analysis; something we are prohibited 

from doing. (Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p.

572; Environmental Council of Sacramento v. City of Sacramento, supra, 142 

Cal.App.4th at p. 1042.) 

D. Response To Comments

Plaintiff argues that defendant failed to adequately respond to comments the draft 

environmental impact report posited during the public comment period. As defendant 

correctly notes, this issue was not raised in the trial court and is thus forfeited. (El Morro 

Community Assn. v. California Dept. of Parks & Recreation (2004) 122 Cal.App.4th 

1341, 1351; A Local & Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 

1773, 1804.)

V. DEFENDANT’S CROSS-APPEAL

Defendant cross-appeals, contending its judgment on the pleadings motion should 

have been granted. The trial court declined to rule on the judgment on the pleadings 

motion which asserts the project is exempt from environmental review requirements 

imposed by the California Environmental Quality Act. We are affirming the trial court’s 

approval of defendant’s certification of the environmental impact report. There is no 

effectual relief we can provide to defendant by reaching the merits of its exemption 

contention. Thus, all of defendant’s exemption contentions are moot. (Eye Dog 
23

Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541; 

Steiner v. Superior Court (2013) 220 Cal.App.4th 1479, 1485.)

VI. DISPOSITION

The judgment is affirmed. Defendant, The Los Angeles County Metropolitan 

Transit Authority, shall recover its costs incurred on appeal from plaintiff, Japanese 

Village LLC.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

MOSK, J.

KIRSCHNER, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.