Filed 10/22/14 Quartz Hill Cares v. City of Lancaster CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


QUARTZ HILL CARES,                                                      B248060 consolidated with
                                                                        B250864
         Plaintiff and Appellant,
                                                                        (Los Angeles County
         v.                                                             Super. Ct. No. BS122336)

CITY OF LANCASTER et al.,

         Defendants and Respondents;

WAL-MART STORES, INC.,

         Intervener and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County, John A.
Torribio, Judge. Affirmed.
         Leibold McClendon & Mann and John G. McClendon for Plaintiff and Appellant.
         Stradling Yocca Carlson & Rauth and Allison E. Burns for Defendants and
Respondents.
         Manatt, Phelps & Phillips, Jack S. Yeh and Keli N. Osaki for Intervener and
Respondent.
                                            _____________________
                                     INTRODUCTION
         Quartz Hill Cares appeals from the judgment of the trial court discharging its
preemptory writ of mandate. Quartz Hill Cares contends that the writ was based on the
trial court’s misconstruction of the disposition in our previous opinion in this case
(Quartz Hill Cares v. City of Lancaster (Mar. 15, 2012, B227957) [nonpub. opn.])
(QHC I). We conclude the trial court correctly applied our disposition. Accordingly, we
affirm the judgment.
                    FACTUAL AND PROCEDURAL BACKGROUND
         Quartz Hill Cares filed a petition for writ of administrative mandate challenging
the certification by the City of Lancaster and the City Council of the City of Lancaster
(the City) of the Final Environmental Impact Report (FEIR) for a project to develop
commercial retail and restaurant facilities on residentially-zoned property (the project).
The writ petition alleged that the City’s approval of the applications submitted by
Wal-Mart Stores, Inc. (Walmart) to develop the project violated various provisions of the
Planning and Zoning Law (Gov. Code, § 65000 et seq.) and the FEIR violated certain
directives in the California Environmental Quality Act (CEQA) (Pub. Resources Code,
§ 21000 et seq.1 & Cal. Code Regs., tit. 14, § 15000 et seq. (Guidelines)). The trial court
denied the writ petition and Quartz Hill Cares appealed.
         In QHC I, we rejected Quartz Hill Cares’ five contentions under the Planning and
Zoning Law and two contentions under CEQA. However, agreeing with one contention,
we reversed the judgment denying Quartz Hill Cares’ petition for writ of mandate on the
sole ground that the necessary supporting data was missing from the FEIR’s analysis of
one alternative to the project. Specifically, we held that “the FEIR is insufficient as an
informative document because its finding that the Reduced Commercial Density
Alternative was not economically viable lacks the requisite evidentiary support. Because
its conclusion is unsupported by substantial evidence, therefore, the City prejudicially


1
         All further statutory references are to the Public Resources Code, unless otherwise
noted.

                                              2
abused its discretion by failing to proceed in a manner required by CEQA.” Our opinion
explained, “We agree with Quartz Hill Cares’ argument, citing Citizens of Goleta
Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167 (Goleta Valley), that the
evidence of economic infeasibility was not specific and concrete such as would justify
the FEIR’s conclusion to reject the alternative as ‘not economically viable.’ ” Our
disposition reversed the judgment “in accordance with the views expressed in [the]
opinion.”
       After our opinion was filed, Wal-Mart and the City evaluated how to proceed in
light of our holding. They considered whether to make changes or additions to the
previously certified FEIR, or whether circumstances and the statutes required they
prepare a subsequent or supplemental EIR (SEIR). Concluding the circumstances did not
necessitate an SEIR (Guidelines, §§ 15162 & 15164), Wal-Mart prepared an addendum
to the FEIR, and the City determined that pursuant to Guidelines section 15164,
subdivision (c), circulation of the addendum for public review was not required. As part
of the addendum, Wal-Mart’s expert prepared a memorandum entitled “The Commons at
Quartz Hill (Lancaster, CA) – Analysis of Economic Feasibility of Reduced Commercial
Density Alternative” for the purpose of supplying the missing data to support the FEIR’s
finding that the Reduced Commercial Density Alternative was not economically feasible.
       The City Council held a public meeting on December 11, 2012, after which it
passed Resolution No. 12-72 that certified the FEIR and addendum, adopted the
necessary environmental findings, a statement of overriding considerations, and the
mitigation monitoring program, and approved an amendment to the City’s General Plan,
known as General Plan Amendment No. 06-04.
       Quartz Hill Cares submitted its proposed judgment after appeal which included a
proposed peremptory writ of mandate ordering the City to set aside and vacate the
adoption of all of the project approvals, including the earlier certification of the entire
FEIR. Wal-Mart, joined by the City, objected to Quartz Hill Cares’ proposed judgment
and writ on the grounds, inter alia, that it was overbroad, inconsistent with CEQA, and an
inappropriate mischaracterization of our opinion.

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       The trial court sustained all of Wal-Mart’s objections but two, which two are not
at issue here. The court found that our opinion in QHC I had “affirmed the [previous]
judgment in full except for one issue . . . .” and that our remititur remanded the matter to
the trial court. Accordingly, the trial court entered judgment after appeal in favor of
Quartz Hill Cares and against the City and Wal-Mart on the claim of insufficient
evidence in the FEIR to support the finding that the Reduced Commercial Density
Alternative was not economically viable. The court entered judgment in favor of the City
and Wal-Mart and against Quartz Hill Cares “[a]s to all of [Quartz Hill Cares’] remaining
claims.”
       Turning to the writ of mandate, the trial court found pursuant to section 21168.9,
that the portion of the FEIR identified as deficient in our opinion was severable from the
remainder of the FEIR, that severance would not prejudice complete and full compliance
with CEQA, and that the remainder of the project complied with CEQA. The writ
severed the deficient finding and required the City to “take appropriate action to ensure
compliance with the California Environmental Quality Act (‘CEQA’) with respect to the
sufficiency of evidence in the EIR to support the City’s Finding that the Reduced Density
Alternative was not economically viable as specifically identified in and consistent with
the Court of Appeal Opinion.” The court retained jurisdiction over the proceedings in
accordance with section 21168.9, subdivision (b) until it determined that the City had
complied with CEQA.
       In February 2013, the City filed its return requesting discharge of the writ. The
return explained that the City had prepared the addendum, held the public meeting on the
project, and adopted the addendum in Resolution No. 12-72. Quartz Hill Cares objected
to the return on the ground that the City “did not de-certify the [FEIR] for the Project”
and did not circulate the addendum for public review and comment. Finding “that the
City has complied with the Peremptory Writ of Mandate issued by the Court on
January 18, 2013,” the trial court discharged the writ of mandate. Quartz Hill Cares’
timely appeal followed.


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                                     CONTENTIONS
       Quartz Hill Cares contends that the trial court improperly discharged the writ
because our disposition required decertification of the entire FEIR; the issue addressed in
the addendum could not be severed from the FEIR; and the trial court erred in failing to
recirculate the revised portion of the FEIR for public comment.
                                       DISCUSSION
       Our disposition in QHC I “reversed in accordance with the views expressed in this
opinion” the trial court’s judgment denying Quartz Hill Cares’ writ petition. Such a
disposition is “an appropriate summary method of incorporating by reference directions,
as to proceedings on a retrial, specifically indicated in the body of the opinion.”
(9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 885, p. 946, italics added.) To
determine what was intended by our disposition, it must “ ‘be read in conjunction with
the appellate opinion as a whole’ [citation] and, . . . considered in the framework of the
statutory scheme to which it relates.” (In re Candace P. (1994) 24 Cal.App.4th 1128,
1132, italics added; Schwartz v. Schwartz (1969) 268 Cal.App.2d 685, 690.) Whether the
trial court correctly interpreted our opinion is a question of law subject to our
independent review. (Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859.)
       Quartz Hill Cares contends that QHC I required the City to decertify the entire
FEIR and revise and recirculate the corrected portion of the FEIR to the public. All of
the arguments in Quartz Hill Cares’ opening brief hinge on a sub-subheading on page 23
of our QHC I opinion that “Certification of the FEIR must be reversed because the City
failed to provide sufficient evidence to support its conclusion that the Reduced
Commercial Density Alternative was ‘not economically viable.’ ” (Italics omitted.) To
support its central contention that QHC I required decertification of the entire FEIR,
Quartz Hill Cares quotes the italicized portion of this sub-subheading out of context,
while ignoring the remainder of the sentence and of the opinion.2 “ ‘Some

2
       See, for example Quartz Hill Cares’ arguments: (1) “[A]dendums can only be
used in conjunction with ‘a previously certified EIR.’ [Citation.] Consequently, instead
of reversing the FEIR’s certification as the Opinion required . . . the City recertified the
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misimpressions are created by the reader or critic who takes a sentence or paragraph from
an opinion, sometimes out of context, and analyzes it as a Shakespeare scholar would, or
as though it were a verse from Holy Writ, discovering hidden meanings, innuendoes, and
subtleties never intended.’ [Citation.]” (Harris v. Superior Court (1992) 3 Cal.App.4th
661, 666 -667.)
       There is no ambiguity about the intention in our disposition. The opinion as a
whole readily discloses a single ground for our reversal, namely that the FEIR’s analysis
of one project alternative lacked supporting evidence. Otherwise, we rejected all of
Quartz Hill Cares’ remaining CEQA-based challenges, thus confirming that the
remainder of the FEIR complied with CEQA. Our holding is law of the case to which the
trial court is bound. (Stockton Citizens for Sensible Planning v. City of Stockton (2012)
210 Cal.App.4th 1484, 1498.) The trial court correctly rejected Quartz Hill Cares’
sweeping interpretation and followed our holding by finding that our opinion “affirmed
the judgment in full except for one issue” and that “[t]he remainder of the Project
complie[d] with CEQA.” Wholescale decertification of the FEIR was not necessary.
       Quartz Hill Cares next contends that the trial court erred in finding pursuant to
section 21168.9 that the portion of the FEIR identified as deficient in QHC I is severable
from the remainder of the FEIR. Quartz Hill Cares contends severance does not comport
with our opinion which required decertifying the entire FEIR.
       The statutory scheme that is the context for our opinion (In re Candace P., supra,
24 Cal.App.4th at p. 1132) confirms that decertification of the entire FEIR was not
required as severance satisfied the disposition in QHC I. Section 21168.9 gives trial




defective FEIR- as well as the Addendum . . . .” (2) “Wal-Mart and the City obviously
did not want the new judgment to include the Opinion’s order that the City ‘must reverse’
its certification of the FEIR.” (3) “[T]he Opinion ordered the City to reverse its
CEQA . . . certification that ‘[t]he final EIR has been completed in compliance with
CEQA.’ ” (4) “Every certification of a final EIR must be preceded by its
circulation . . . .”

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courts flexibility to tailor a remedy to fit a specific CEQA violation.3 (Preserve Wild
Santee v. City of Santee (2012) 210 Cal.App.4th 260, 288. (Santee).) Section 21168.9
“ ‘ “expressly authorize[s] the court to fashion a remedy that permits some part of the
project to go forward while an agency seeks to remedy its CEQA violations” ’ ” so that
the issuance of a writ does not necessarily halt all work on a project. (Santee, at p. 288.)
Thus, “[i]f a court finds . . . any determination, finding, or decision of a public agency”
violates CEQA, section 21168.9 permits the court to mandate “ ‘that the determination,
finding, or decision be voided by the public agency, in whole or in part’ ” upon making
the findings listed in the statute. (Santee, at p. 288, italics in original, quoting from
§ 21168.9, subd. (a)(1).) Our opinion identified one solitary finding in the FEIR that
violated CEQA, with the result severance of that finding under section 21168.9,
subdivision (b) would not contravene our disposition.
       Quartz Hill Cares argues that the trial court could not sever the Reduced
Commercial Density Alternative from the FEIR because “[o]n its face,” section 21168.9,
subdivision (b) “does not address severance of portions of an EIR.” To the contrary,
section 21168.9, subdivision (b) allows a court to limit a mandate to “that portion of a
3
         Section 21168.9 reads in relevant part, “If a court finds, as a result of a trial,
hearing, or remand from an appellate court, that any determination, finding, or decision
of a public agency has been made without compliance with this division, the court shall
enter an order that includes one or more of the following: [¶] (1) A mandate that the
determination, finding, or decision be voided by the public agency, in whole or in part.
[¶] . . .[¶] (b) Any order pursuant to subdivision (a) shall include only those mandates
which are necessary to achieve compliance with this division and only those specific
project activities in noncompliance with this division. The order shall be made by the
issuance of a peremptory writ of mandate specifying what action by the public agency is
necessary to comply with this division. However, the order shall be limited to that
portion of a determination, finding, or decision or the specific project activity or
activities found to be in noncompliance only if a court finds that (1) the portion or
specific project activity or activities are severable, (2) severance will not prejudice
complete and full compliance with this division, and (3) the court has not found the
remainder of the project to be in noncompliance with this division. The trial court shall
retain jurisdiction over the public agency’s proceedings by way of a return to the
peremptory writ until the court has determined that the public agency has complied with
this division.” (§ 21168.9, subds. (a)(1) & (b), italics and bold added.)

                                               7
determination, finding, or decision or the specific project activity or activities found to be
in noncompliance.” (Italics added.) This provision “limit[s] the court’s mandates to only
those necessary to achieve CEQA compliance and, if the court makes specified findings,
to only ‘that portion of a determination, finding, or decision’ violating CEQA.” (Santee,
supra, 210 Cal.App.4th at p. 288, italics added.) Pursuant to that statute, the trial court
here made the enumerated findings, and based thereon severed the portion of the FEIR
that contains the determination that QHC I found violated CEQA, namely the finding that
the Reduced Commercial Density Alternative was not commercially viable.
       Finally, Quartz Hill Cares contends that the order discharging the writ was
improper because it deprived the public of its “privileged position” in the CEQA process
(Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986)
42 Cal.3d 929, 936) by enabling Wal-Mart and the City to utilize an addendum to avoid
public review of, and comment on, the corrections. Quartz Hill Cares reasons that an
addendum can only be used in conjunction with a previously certified EIR (Guidelines,
§ 15164, subd. (a)).4 As our opinion mandated reversal of the FEIR’s certification here,
Quartz Hill Cares asserts that Guidelines section 15088.5 required the City to circulate
the modified portions of a new FEIR for public review. However, as already analyzed,
QHC I did not require decertification of the entire FEIR and so the City could proceed by
use of an addendum. Public review was not required (Ibid.)




4
       Guidelines section 15164, subdivision (c) states, “An addendum need not be
circulated for public review but can be included in or attached to the final EIR or adopted
negative declaration.”

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                                   DISPOSITION
      The judgment discharging the writ of mandate is affirmed. Appellant to bear costs
on appeal.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              ALDRICH, J.




We concur:




             KLEIN, P. J.




             KITCHING, J.




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