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1 ALLEN MATKINS LECK GAMBLE
MALLORY & NATSIS LLP
2 ANDREW A. WOOD (BAR NO. 279403)
KELLY C. SMITH (BAR NO. 308013)
3 RACHEL A. ROSENBLUM (BAR NO. 341011)
2010 Main Street, 8th Floor
4 Irvine, California 92614-7214
Phone: (949) 553-1313
5 Fax: (949) 553-8354
E-Mail: awood@allenmatkins.com
6 ksmith@allenmatkins.com
rrosenblum@allenmatkins.com
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Attorneys for Plaintiff
8 JP Biane Farms
9 SUPERIOR COURT OF CALIFORNIA
10 FOR THE COUNTY OF KERN
11
12 JEAN-PIERRE BIANE, doing business as JP Case No. BCV-22-103359 (TMF)
BIANE FARMS,
13 Hon. Therese M. Foley
Plaintiff, Dept. K
14
vs.
15 PLAINTIFF JEAN-PIERRE BIANE’S
COUNTY OF KERN, and DOES 1 through 50, OPPOSITION TO DEFENDANT COUNTY
16 inclusive, OF KERN’S DEMURRER TO PLAINTIFF’S
FIRST AMENDED PETITION
17 Defendants.
Date: September 12, 2023
18 Time: 9:00 a.m.
Dept: K
19
Complaint Filed: 12/13/2022
20 Am. Complaint Filed: 06/15/2023
Trial Date: None Set
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LAW OFFICES
Allen Matkins Leck Gamble
Mallory & Natsis LLP
PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF
4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION ............................................................................................................... 5
4 II. ALLEGATIONS IN THE PETITION ................................................................................ 7
5 A. Biane Owns A Small Family Farm on a Formerly Quiet Road in
Kern County ............................................................................................................ 7
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B. Granite’s Application for a Massive Mining Operation in Kern
7 County ..................................................................................................................... 7
8 C. Granite’s Environmental Impact Report and Project Conditions of
Approval .................................................................................................................. 8
9
D. The County Allows Granite to Disregard the Approved Access
10 Routes ...................................................................................................................... 8
11 E. The County Acknowledges Granite’s Violation of the Project
Approvals But Fails and Refuses to Heed Biane’s Repeated Calls for
12 it to Act .................................................................................................................... 9
13 III. LEGAL STANDARD FOR DEMURRER ......................................................................... 9
14 IV. BIANE PROPERLY ALLEGED ALL NECESSARY FACTS ....................................... 10
15 A. The County Has a Clear, Present and Ministerial Duty to Act ............................. 10
16 1. The County’s Statutory Interpretation Is Inaccurate and
Improper for Demurrer .............................................................................. 11
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2. “May” Does Not Shield the County from Its Enforcement
18 Obligations ................................................................................................ 12
19 3. The County Has an Independent CEQA Obligation to
Enforce ...................................................................................................... 12
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4. The County Has a Mandatory Duty to Protect Its Citizens ....................... 14
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B. The County’s Contention that Biane Failed to Exhaust
22 Administrative Remedies Is Inapposite ................................................................. 15
23 C. Mr. Biane’s Chosen Remedies Are Proper ........................................................... 17
24 1. Mr. Biane’s Relief Cannot Be Satisfied Solely Through
Damages .................................................................................................... 17
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2. Dual Remedies for Mandamus and Declaratory Relief Are
26 Appropriate................................................................................................ 18
27 V. CONCLUSION ................................................................................................................. 19
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LAW OFFICES
Allen Matkins Leck Gamble -2-
Mallory & Natsis LLP
PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF
4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION
1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 Amir v. Superior Court
(2018) 26 Cal.App.5th Supp. 1 ......................................................................................... 12
5
Californians for Native Salmon & Steelhead Ass’n v. Department of Forestry
6 (1990) 221 Cal.App.3d 1419 ............................................................................................. 19
7 Clovis Unified Sch. Dist. v. Chiang
(2010) 188 Cal.App.4th 794 .............................................................................................. 18
8
Del E. Webb Corp. v. Structural Material Co.
9 (1981) 123 Cal.App.3d 593 ............................................................................................... 10
10 Elijo Ranch v. County of San Diego
(1998) 65 Cal.App.4th 608 ................................................................................................ 17
11
K.G. v. Meredith
12 (2012) 204 Cal.App.4th 164 .............................................................................................. 19
13 Lara v. Board of Supervisors
(1976) 59 Cal.App.3d 399 ................................................................................................. 11
14
Lincoln Place Tenants Assn v. City of Los Angeles
15 (2007) 155 Cal.App.4th 425 .................................................................................... 6, 13, 14
16 Lindelli v. Town of San Anselmo
(2003) 111 Cal.App.4th 1099 ...................................................................................... 15, 16
17
Ludgate Ins. Co. v. Lockheed Martin Corp.
18 (2000) 82 Cal.App.4th 592 ................................................................................................ 10
19 People v. Ledesma
(1997) 16 Cal. 4th 90......................................................................................................... 11
20
People v. Standish
21 (2006) 38 Cal.4th 858........................................................................................................ 12
22 Quelimane Co. v. Stewart Title Guar. Co.
(1998) 19 Cal.4th 26.......................................................................................................... 10
23
Sheetz v. County of El Dorado
24 (2022) 84 Cal.App.5th 394 ................................................................................................ 19
25 Sierra Club v. County of San Diego
(2014) 231 Cal.App.4th 1152 ............................................................................................ 14
26
Statutes
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Mitigation Measure 4.13-3 ............................................................................................................ 14
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LAW OFFICES
County Code, § 19.100.030.J ........................................................................................................ 14
Allen Matkins Leck Gamble -3-
Mallory & Natsis LLP
PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF
4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION
1 Page(s)
2 County Code, § 19.100.050 ........................................................................................................... 14
3 Constitutional Provisions
4 Cal. Const., art. XI, § 7 .................................................................................................................. 14
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LAW OFFICES
Allen Matkins Leck Gamble -4-
Mallory & Natsis LLP
PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF
4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION
1 I. INTRODUCTION.
2 Granite Construction Company, Inc. is at it again. After (as others have alleged) disrupting
3 lives throughout California and the Western United States,1 it now turns to Kern County, where it
4 daily jeopardizes the lives and livelihood of a small family farmer and his employees. Kern County
5 officials have already determined that in doing so Granite violated multiple promises it made to the
6 County when it convinced the County to award it a Conditional Use Permit (“CUP”) for mining
7 operations at Granite’s Solari Project (“Project”), near Arvin.
8 Documents revealed through Public Records Act requests—which will come into evidence
9 if this case proceeds—establish the County knows Granite has violated its CUP. (See First Amended
10 Petition ¶ 52: Director Lorelai Oviatt confirming Granite is out of compliance with its CUP and
11 directing the County to send Granite a letter that the County would “put a stop work on the project”
12 if Granite refused to comply.) Yet for reasons unknown until recently, the County has refused to do
13 anything meaningful about it. This forced Petitioner Biane—a small family farmer whose family
14 has farmed on these lands for many decades—to petition this Court for redress.
15 Granite’s response was to go on the offensive to crush Biane. It sued him on trumped up
16 charges of trespass and harassment. (See Kern County Superior Court Case No. BCV-23-102060.)
17 And, here, it took over the County’s defense, having its counsel appear ostensibly on the County’s
18 behalf to have the County parrot Granite’s position, to achieve Granite’s objectives, to the detriment
19 of the County’s residents. Granite’s/the County’s positions, however, misunderstand and misapply
20 the relevant law. Accordingly, their demurrer should be overruled, and the case should proceed so
21 that Mr. Biane may obtain the redress his County government has refused him.
22 The thrust of the County’s demurrer is a request for carte blanche to allow hundreds of 25-ton
23 trucks to unlawfully barrel through local farmland, instead of approved access routes, to appease the
24 billion-dollar mining corporation that is bankrolling the County’s legal defense. Project traffic has
25 significantly interfered with Mr. Biane’s (personally and doing business as JP Biane Farms and in
26
1
27 See, e.g., Grewal v. State of California, Sacramento Sup. Court Case No. 2022-00326190 (wrongful death based in
part on Granite activity); Eskman v. Dept. of Transportation, Sacramento Sup. Court Case No. CVBL2100298;
28 Southern California Gas Co. v. Competitive Edge Electric, Inc., Granite Construction, Inc., et al. Riverside Sup.
Court Case No. CVPS2106161; SEC v. Granite Construction Inc., Northern District Case No. 4:22cv4857.
LAW OFFICES
Allen Matkins Leck Gamble -5-
Mallory & Natsis LLP
PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF
4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION
1 his capacity as Trustee of the J.P. Biane Living Trust dated November 24, 2021) private use and
2 enjoyment of his farmland. The County has allowed Granite to debilitate local farmland, endanger
3 workers, pollute local crops with noxious fumes, damage roadways, and create safety hazards for
4 other drivers.
5 In 2008, Granite submitted a joint application for a Conditional Use Permit (“CUP”) and a
6 California Surface Mining and Reclamation Act permit for approval of its 77-million-cubic-yard
7 Project. The County imposed certain mandatory requirements and mitigation measures designed to
8 reduce impacts associated with the Project, including the requirement that Granite’s Project traffic
9 use designated access routes when traveling to and from the Project site to avoid adverse impacts to
10 the surrounding community and ensure that the roadways used by Project traffic (often carrying
11 massive amounts of excavated materials) could handle the constant heavy-duty truck traffic. But
12 with the express and implied blessing of the County, Project traffic has disregarded the approved
13 access routes and currently speeds down Rancho Road (a two-lane country road that goes straight
14 through Biane’s farm), endangering Biane and his employees’ lives.
15 Granite claims the County can escape liability because the County has a discretionary or
16 permissive ability to pick and choose which approval conditions it wants to enforce—in other words,
17 that it can ignore the approval conditions Granite wants it to ignore. But the County has no such
18 discretion. Instead, the California Environmental Quality Act (Pub. Resources Code, §§ 21000, et
19 seq.) (“CEQA”) independently establishes a mandatory obligation and ministerial duty on the
20 County that requires it to act no matter what it thinks the CUP allows it to do. As the Court of
21 Appeal so artfully expressed, “[m]itigation conditions are not mere expressions of hope.” (Lincoln
22 Place Tenants Assn v. City of Los Angeles (2007) 155 Cal.App.4th 425, 353.) California requires
23 the County to “suspend specific activity” of any “agency and real party of interest” (Granite), where
24 that agency “has failed to comply with CEQA.” (Id., at 452.)
25 Mr. Biane has alleged each necessary fact to bring his Petition against the County. The
26 County cannot, especially at the Demurrer stage, be given permission to continue to turn a blind eye
27 to Granite’s unlawful behavior. The County’s inaction sends a clear message that the County
28 prioritizes (and bends to the will of) massive corporations over small family farmers. Without this
LAW OFFICES
Allen Matkins Leck Gamble -6-
Mallory & Natsis LLP
PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF
4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION
1 Petition, the County will continue this improper behavior for the entire thirty years of the Project;
2 for thirty more years Mr. Biane’s local community will suffer.
3 II. ALLEGATIONS IN THE PETITION.
4 A. Biane Owns A Small Family Farm on a Formerly Quiet Road in Kern County.
5 For over seventeen years, Mr. Biane has owned and operated a farm located at 1901 Rancho
6 Road, Arvin, California 93203 under the name JP Biane Farms. (Petition, ¶ 8.) Biane’s Farm was
7 formerly owned by Biane’s grandfather and father, and Biane has been farming the land since 1989.
8 (Petition ¶ 15.) A large portion of Biane’s farmland is adjacent to Rancho Road—a shoulder-less,
9 twenty-foot-wide road operated by Kern County. (Petition ¶ 17.) The road runs through the middle
10 of a portion of Biane’s Farm.
11 Rancho Road is the main point of access to Mr. Biane’s farm. (Id.; Petition ¶ 15.) As such,
12 it is frequented by Biane, his employees, and visitors to the farm who use the road to access various
13 parts of the fields and farmland. (Id.) For decades, Mr. Biane (and his father and grandfather before
14 him) operated the farm, using Rancho Road, without issue. (Petition ¶ 15.) Now, an onslaught of
15 trucks barrels down Rancho Road every day, jeopardizing the safety of Biane’s family and
16 employees and nearly destroying his business.
17 B. Granite’s Application for a Massive Mining Operation in Kern County.
18 Granite currently operates a 77-million-cubic-yard Solari Sand and Gravel mining project in
19 Kern County. (Petition ¶ 19.) In 2008, Granite submitted a joint application to the County for a
20 CUP and a California Surface Mining and Reclamation Act permit (“Mining Application”) for the
21 County to approve its Project. (Petition ¶ 19.) Granite’s operation, which encompasses about 543
22 acres, includes asphalt and concrete recycling operations, an asphalt plant, a concrete plant, and
23 ancillary facilities. (Petition ¶ 19.)
24 Granite stated in its Mining Application that it anticipated excavating about 2.4 million tons
25 of sand and gravel in its first year of operation and would eventually reach a yearly excavation rate
26 of 4.5 million tons of sand and gravel by its 23rd year. (Petition ¶ 20.) This effort requires the use
27 of 25-ton haul trucks, making 786 to 1,440 trips for 250 days of the year. (Petition ¶ 22.)
28 As part of the approval process, the County required that Granite provide “a figure that
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PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF
4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION
1 specifically identifies the access route to and from the project site… If multiple routes are to be
2 utilized, please identify each route respectively.” (Petition ¶ 26.) Granite agreed to use specific
3 access routes to bring these massive amounts of excavated materials from the mining project.
4 (Petition ¶ 26.) These routes did not include Rancho Road. (Petition ¶¶ 29, 42, 43.)
5 C. Granite’s Environmental Impact Report and Project Conditions of Approval.
6 The County required Granite to prepare an environmental impact report (“EIR”) for the
7 Project, to comply with CEQA. (Petition ¶ 32.) As part of the EIR, Granite once again certified the
8 access routes that the project traffic would use. A July 2011 traffic study prepared in connection
9 with the EIR analyzed transportation impacts associated with the Project (“Traffic Study”).2
10 (Petition ¶ 36.) The Traffic Study did not analyze the use of Rancho Road; rather, it described
11 access routes to and from the Project site as “Copus Road/David Road, Wheeler Ridge Road and
12 Sebastian Road” along with “the Interstate 5 Freeway and Highway 99.” (Petition ¶ 37.)
13 The EIR also evaluated the potential impacts that Granite’s haul trucks would have on the
14 County’s local roadways. The EIR imposed a mitigation measure requiring that Granite videotape,
15 prior to Project activity, any existing roadways proposed for Project use. (Petition ¶ 40.) The
16 mitigation measure explicitly requires this precaution to ensure later rebuild and construction
17 initiations. All EIR mitigation measures, such as 4.13-3 dictate a mandatory enforcement obligation
18 on the County (discussed in Section IV-3). (Petition ¶ 40.) The haul routes listed, and referenced
19 in the EIR mitigation measures, do not include Rancho Road. (Id.)
20 Relying on Granite’s representations in the CUP, Mining Application, and the specific
21 access route studies in the EIR and Traffic Study, the Planning Commission voted to certify the EIR,
22 adopt the MMRP, and conditionally approve the CUP as recommended by County staff. (Pet. ¶ 44.)
23 D. The County Allows Granite to Disregard the Approved Access Routes.
24 Once the Project began operating, trucks began jeopardizing local farmers’ safety. One of
25 Granite’s subhaulers nearly ran over a Biane employee as he traversed Rancho Road to reach a
26 different part of the farm. (Petition ¶ 47.) The presence of these trucks has heightened the risk and
27 frequency of such accidents, which only adds to Biane’s concerns for his employees’ safety. (Id.)
28
2
The Mining Application, CUP, EIR and Traffic Study are collectively referred to as the “Granite Application.”
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PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF
4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION
1 Project traffic also poses a hazard for the roadways and Biane’s farm. It emits noxious fumes
2 and drops gravel as it speeds by, damaging Biane’s crops and Rancho Road, cracking windshields
3 of Biane’s and his employee’s vehicles, and presenting a serious risk that Biane or his employees
4 will get struck by ricocheting gravel (if not by the trucks themselves). (Petition ¶ 49.)
5 The frequent use of Rancho Road by these enormous haul trucks has caused Rancho Road
6 to deteriorate rapidly and the asphalt in the road to break down. (Id.) Project traffic speeds down
7 Rancho Road at speeds well above the speed limit with zero disregard for the safety of others. (Id.)
8 As a result of Granite’s actions (and the County’s inaction), Biane has been unable to plant acres of
9 crops on his land and will ultimately have incurred millions of dollars in damages. These damages
10 will continue to accrue each year until Granite ceases its behavior.
11 E. The County Acknowledges Granite’s Violation of the Project Approvals But
12 Fails and Refuses to Heed Biane’s Repeated Calls for it to Act.
13 Biane has exhausted every feasible contact within the County. He has contacted the Planning
14 Department for the County, the County Assistant Planning Director Craig Murphy, the County
15 Planner Randall Cates, Field Representatives for the 5th and 2nd Districts, and various other County
16 staff members. (Petition ¶¶ 52-56.) Both Mr. Murphy and Mr. Cates informed Biane that Rancho
17 Road was not part of the approved access route to or from the Project and that they would contact
18 Granite’s management about their improper use of Rancho Road. Following their conversation,
19 Mr. Cates sent Petitioner copies of the CUP and MMRP. (Petition ¶ 52.)
20 Around this time, Director of County Planning and Natural Resources Lorelei H. Oviatt sent
21 a letter to other County officials in the County Planning Department stating that Granite was out of
22 compliance with its CUP and the County needed to send Granite a letter stating that it would “put a
23 stop work on the project” if Granite failed to come into compliance. (Petition ¶ 65.)
24 The County never took action. (Petition ¶ 67, 68.) Since this time, Biane has made zero
25 progress with County officials and representatives have stopped responding. (Petition ¶ 76, 80.)
26 III. LEGAL STANDARD FOR DEMURRER
27 A demurrer tests the legal sufficiency of the facts alleged in the Petition to determine whether
28 they state a cause of action. So the ultimate truth or falsity of the facts alleged in the Petition is not
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PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF
4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION
1 at issue in ruling on a demurrer as the actual evidentiary proof of facts is a matter for trial.
2 (Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 47 (“[I]t is not the ordinary function
3 of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes
4 the defendant’s conduct.”) Therefore, “[a]s a general rule in testing a pleading against a demurrer
5 the facts alleged in the pleading are deemed to be true.” (Del E. Webb Corp. v. Structural Material
6 Co. (1981) 123 Cal.App.3d 593, 603.)
7 “The California Supreme Court has consistently held that ‘a plaintiff is required only to set
8 forth essential facts of his case with reasonable precision and with particularity sufficient to acquaint
9 a defendant with the nature, source and extent of his cause of action. The particularity required in
10 pleading facts depends on the extent to which the defendant may be assumed to have knowledge of
11 the facts equal to that possessed by the plaintiff.’” (Ludgate Ins. Co. v. Lockheed Martin Corp.
12 (2000) 82 Cal.App.4th 592, 608.)
13 IV. BIANE PROPERLY ALLEGED ALL NECESSARY FACTS
14 A. The County Has a Clear, Present and Ministerial Duty to Act.
15 The County, acting through Granite’s attorneys, argues the Petition fails because it does not
16 allege the existence of a “ministerial duty” imposed on the County. This technical argument fails
17 for two reasons. First, the County fails to provide an accurate statutory interpretation of the
18 underlying Kern County Code of Ordinances, Chapters 19.100,19.104, and 19.114 (“Ordinances”).
19 Second, the Petition expressly alleges the existence of the County’s ministerial duties.
20 Essentially, the County’s improper contention – that it has absolute discretion to decide
21 whether and when to enforce the conditions of approval and mitigation measures it requires to
22 reduce the impacts of development projects on the local community – evidences a failure of its
23 governmental obligation to protect the health, safety and welfare of County residents. The County
24 has a duty, irrespective of statutory law or regulations, to ensure that its residents are protected. It
25 fulfills that duty by imposing conditions and mitigation measures on new development, such as the
26 Project. If the County has no intention of ever enforcing those conditions or mitigation measures as
27 necessary to protect its residents, its initial imposition of the conditions is pointless.
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Mallory & Natsis LLP
PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF
4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION
1 1. The County’s Statutory Interpretation Is Inaccurate and Improper for
2 Demurrer.
3 The crux of the County’s argument rests on the Ordinances’ language. The County contends
4 that because two of the three ordinances feature “may” language, the County has discretionary
5 authority and can disregard its enforcement obligations. This argument requires the Court, at the
6 demurrer stage, to make a statutory determination, and then apply the facts to such determination.
7 Ordinarily, when a statute provides a court “may” do something, the statute is permissive,
8 not mandatory, and grants the court discretionary authority. But this is not a fixed rule of statutory
9 construction. (People v. Ledesma (1997) 16 Cal. 4th 90, 65 (“Although the ‘shall’/’may’ dichotomy
10 cited by defendant is a familiar interpretive device, it is not a fixed rule of statutory construction”).)
11 “May” can be interpreted as mandatory by legislative intent:
12 The term “may” has been “construed to be mandatory where the object to be obtained
compels such a construction, or where that construction is necessary to give effect to
13 the legislative intent….This rule is consistent with the general principle that, unless
clearly indicated otherwise, the words in a statute are to be given a sensible
14 construction according to their commonly understood meaning.”
15 (Lara v. Board of Supervisors (1976) 59 Cal.App.3d 399, 407.)
16 In its Demurrer, Granite/the County conveniently omits this prevailing case law dictating
17 that “may” is not always determinative of a mandatory versus discretionary duty. The “sensible
18 construction” or “legislative intent” argument applies directly to the County’s instant obligations.
19 The County created specific conditions of approval and imposed detailed mitigation measures to
20 protect its local community from harm. It even admitted that if Granite did not comply with its
21 conditions that it would need to “put a stop to work on the project.” (Petition ¶ 65.) There would be
22 no reason to condition Granite’s Application and Project approvals on certain measures – like using
23 specified access routes – if the County had no intention of enforcing them. The only “sensible
24 construction” is that the County created these Ordinances intending to enforce them.
25 “May” is thus not determinative of the County’s ministerial duty to act because the “sensible
26 construction” of the Ordinances requires the County to enforce its conditions of approval and
27 mitigation measures. Irrespective of whether the Court agrees with this conclusion (which it
28 should), the “sensible construction” analysis requires the Court to engage in a determination of
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PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF
4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION
1 statutory interpretation and factual application at this early stage of the proceeding. This is not
2 proper at this stage, and the Court should instead deem Mr. Biane’s allegations as true. The County’s
3 argument thus fails, and the demurrer should be overruled.
4 2. “May” Does Not Shield the County from Its Enforcement Obligations.
5 Next, and by the County’s technical argument, the word “shall” (and other mandatory
6 language) in the Public Resources Code, MMRP, CUP and SMARA creates a mandatory duty. The
7 County states that the permissive terminology used in the Ordinances – that it “may” act – provides
8 immunity from its failure to act to protect its residents and enforce the conditions imposed on
9 development that it previously approved. However, there are numerous Ordinances and obligations
10 with mandatory “shall” language.
11 CEQA requires a public agency, such as the County, to enforce mitigation measures it
12 imposes on new development. As noted in the County’s Demurrer, “the term ‘shall’ is interpreted
13 as mandatory and not permissive. Indeed, the presumption [is] that the word “shall” in a statute is
14 ordinarily deemed mandatory....’ [Citation.]” (Amir v. Superior Court (2018) 26 Cal.App.5th Supp.
15 1, citing People v. Standish (2006) 38 Cal.4th 858, 869.)
16 The Public Resource Code, Section 21081.6(b) states:
17 [a] public agency shall provide that measures to mitigate or avoid significant effects
on the environment are fully enforceable
18
19 The Mitigation Monitoring Reporting Program (“MMRP”) further states:
20 [a]ny existing roadway segments proposed to be used by the project proponent shall,
in consultation with the Kern County Public Works Department, be videotaped prior
21 to initiation of construction activities and rebuilt to match existing conditions prior
to the commencement of operations.” (Id, 4.13-3.)
22
23 The CUP also states that all mitigation measures present in the MMRP are “[c]onditions of
24 [a]pprovals.” (CUP, at p. 7.) The County’s argument that it does not have to enforce the CUP does
25 not account for the mandatory language of the MMRP. These mandatory code provisions are not
26 discretionary and must be enforced.
27 3. The County Has an Independent CEQA Obligation to Enforce.
28 The County attempts to argue that Granite’s “substantial compliance” with the Mining
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PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF
4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION
1 Application satisfies the Ordinances. It states that because the access routes are simply one out of
2 many conditions, Granite is in “substantial compliance” with the CUP and MMRP. This argument
3 fails because the County’s enforcement obligation does not arise from County Ordinances, but from
4 CEQA. CEQA denotes a mandatory duty on the County to enforce Mitigation Measure 4.13-3
5 (quoted above), which allows Granite to use only those roads videotaped and studied as approved
6 access routes. (Lincoln Place Tenants Assn v. City of Los Angeles (2007) 155 Cal.App.4th 425.)
7 The Lincoln Place Court made this same determination. A tenant’s association petitioned
8 for writ of mandate to compel a city to enforce mitigation measures contained in a tract map that the
9 city’s agency issued to a developer. The Lincoln Place Court granted the tenant’s association’s
10 petition for writ of mandate, entered judgment against the city and compelled it to enforce the
11 mitigation measures of the at-issue EIR. It reasoned that “[w]here a public agency has failed to
12 comply with CEQA, the trial court (1) must vacate the CEQA determination...” or
13 (2) if the court finds that a specific project activity will prejudice the consideration
and implementation of mitigation measures or project alternatives and could result
14 in an adverse physical environmental change, mandate that the agency and any real
party in interest suspend specific activity until the agency complies with CEQA;
15 (3) mandate that the agency take specific action necessary to comply with CEQA.
16 (Id., 452.)
17 It also reasoned that mitigation measures must be enforced because “[t]he fundamental goals
18 of environmental review under CEQA are information, participation, mitigation, and
19 accountability.” (Id., at 443.) “Mitigating conditions are not mere expressions of hope.” (Id., at
20 353.) Similarly, in this instant action, CEQA requires that the County enforce the mitigation
21 measures imposed by the MMRP. As stated above, Mitigation Measure 4.13-3 required Granite to
22 videotape all intended access routes before initiating the Project. If Granite subsequently uses a
23 non-videotaped access route, like Rancho Road, it is violating the MMRP. CEQA then mandates
24 that the activity is either “suspend[ed] until the agency complies…[or]…that the agency take
25 specific action necessary to comply.” (Lincoln Place Tenants Assn., at 452.)
26 Moreover, the County’s “substantial compliance” argument fails considering the express
27 language of County Code § 19.100.050. The County Code explicitly states that “[a]ny change to
28 adopted conditions of approval…shall be treated as a substantial deviation from the approved plan
LAW OFFICES
Allen Matkins Leck Gamble -13-
Mallory & Natsis LLP
PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF
4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION
1 and shall be considered by the planning commission at a regularly scheduled public hearing.”
2 (County Code, § 19.100.050.) The conditions of approval required Granite to study each road before
3 the Project began (and it never studied Rancho Road) to ensure eventual rehabilitation. (County
4 Code, § 19.100.030.J; Mitigation Measure 4.13-3.) Its failure to do so should be considered a
5 “substantial deviation” under County Code § 19.100.050.
6 The County is prohibited from simply ignoring the mitigation measures and Granite’s blatant
7 substantial deviation from its conditions of approval. Such inaction would “render [the conditions]
8 meaningless by moving ahead with the project in spite of them.” (Sierra Club v. County of San
9 Diego (2014) 231 Cal.App.4th 1152, 1167, quoting Lincoln Place, at 450.) The County is simply
10 unwilling to accept that it has a mandatory duty to enforce the approval conditions it required.
11 4. The County Has a Mandatory Duty to Protect Its Citizens.
12 Last, but not least, the County is also required to protect the health and safety of its
13 inhabitants. California’s constitution bequests power to its counties to enforce all local, police,
14 sanitary and other ordinances and regulations not in conflict with general laws. (Cal. Const., art. XI,
15 § 7.) The County here has undertaken the responsibility to require environmental protections,
16 conditions of approval and other mitigation measures for Granite’s Project. The County enacted
17 such measures to protect its local community from the exact kind of harm that is now occurring.
18 By expertly teaming up with Granite, the County has picked a large corporation over the
19 needs of its citizens. Every day, it allows hundreds of large trucks to barrel through Rancho Road
20 causing a dangerous environment for Biane and his employees. The County
Preview
1 ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP 2 ANDREW A. WOOD (BAR NO. 279403) KELLY C. SMITH (BAR NO. 308013) 3 RACHEL A. ROSENBLUM (BAR NO. 341011) 2010 Main Street, 8th Floor 4 Irvine, California 92614-7214 Phone: (949) 553-1313 5 Fax: (949) 553-8354 E-Mail: awood@allenmatkins.com 6 ksmith@allenmatkins.com rrosenblum@allenmatkins.com 7 Attorneys for Plaintiff 8 JP Biane Farms 9 SUPERIOR COURT OF CALIFORNIA 10 FOR THE COUNTY OF KERN 11 12 JEAN-PIERRE BIANE, doing business as JP Case No. BCV-22-103359 (TMF) BIANE FARMS, 13 Hon. Therese M. Foley Plaintiff, Dept. K 14 vs. 15 PLAINTIFF JEAN-PIERRE BIANE’S COUNTY OF KERN, and DOES 1 through 50, OPPOSITION TO DEFENDANT COUNTY 16 inclusive, OF KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION 17 Defendants. Date: September 12, 2023 18 Time: 9:00 a.m. Dept: K 19 Complaint Filed: 12/13/2022 20 Am. Complaint Filed: 06/15/2023 Trial Date: None Set 21 22 23 24 25 26 27 28 LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF 4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION ............................................................................................................... 5 4 II. ALLEGATIONS IN THE PETITION ................................................................................ 7 5 A. Biane Owns A Small Family Farm on a Formerly Quiet Road in Kern County ............................................................................................................ 7 6 B. Granite’s Application for a Massive Mining Operation in Kern 7 County ..................................................................................................................... 7 8 C. Granite’s Environmental Impact Report and Project Conditions of Approval .................................................................................................................. 8 9 D. The County Allows Granite to Disregard the Approved Access 10 Routes ...................................................................................................................... 8 11 E. The County Acknowledges Granite’s Violation of the Project Approvals But Fails and Refuses to Heed Biane’s Repeated Calls for 12 it to Act .................................................................................................................... 9 13 III. LEGAL STANDARD FOR DEMURRER ......................................................................... 9 14 IV. BIANE PROPERLY ALLEGED ALL NECESSARY FACTS ....................................... 10 15 A. The County Has a Clear, Present and Ministerial Duty to Act ............................. 10 16 1. The County’s Statutory Interpretation Is Inaccurate and Improper for Demurrer .............................................................................. 11 17 2. “May” Does Not Shield the County from Its Enforcement 18 Obligations ................................................................................................ 12 19 3. The County Has an Independent CEQA Obligation to Enforce ...................................................................................................... 12 20 4. The County Has a Mandatory Duty to Protect Its Citizens ....................... 14 21 B. The County’s Contention that Biane Failed to Exhaust 22 Administrative Remedies Is Inapposite ................................................................. 15 23 C. Mr. Biane’s Chosen Remedies Are Proper ........................................................... 17 24 1. Mr. Biane’s Relief Cannot Be Satisfied Solely Through Damages .................................................................................................... 17 25 2. Dual Remedies for Mandamus and Declaratory Relief Are 26 Appropriate................................................................................................ 18 27 V. CONCLUSION ................................................................................................................. 19 28 LAW OFFICES Allen Matkins Leck Gamble -2- Mallory & Natsis LLP PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF 4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 Amir v. Superior Court (2018) 26 Cal.App.5th Supp. 1 ......................................................................................... 12 5 Californians for Native Salmon & Steelhead Ass’n v. Department of Forestry 6 (1990) 221 Cal.App.3d 1419 ............................................................................................. 19 7 Clovis Unified Sch. Dist. v. Chiang (2010) 188 Cal.App.4th 794 .............................................................................................. 18 8 Del E. Webb Corp. v. Structural Material Co. 9 (1981) 123 Cal.App.3d 593 ............................................................................................... 10 10 Elijo Ranch v. County of San Diego (1998) 65 Cal.App.4th 608 ................................................................................................ 17 11 K.G. v. Meredith 12 (2012) 204 Cal.App.4th 164 .............................................................................................. 19 13 Lara v. Board of Supervisors (1976) 59 Cal.App.3d 399 ................................................................................................. 11 14 Lincoln Place Tenants Assn v. City of Los Angeles 15 (2007) 155 Cal.App.4th 425 .................................................................................... 6, 13, 14 16 Lindelli v. Town of San Anselmo (2003) 111 Cal.App.4th 1099 ...................................................................................... 15, 16 17 Ludgate Ins. Co. v. Lockheed Martin Corp. 18 (2000) 82 Cal.App.4th 592 ................................................................................................ 10 19 People v. Ledesma (1997) 16 Cal. 4th 90......................................................................................................... 11 20 People v. Standish 21 (2006) 38 Cal.4th 858........................................................................................................ 12 22 Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26.......................................................................................................... 10 23 Sheetz v. County of El Dorado 24 (2022) 84 Cal.App.5th 394 ................................................................................................ 19 25 Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152 ............................................................................................ 14 26 Statutes 27 Mitigation Measure 4.13-3 ............................................................................................................ 14 28 LAW OFFICES County Code, § 19.100.030.J ........................................................................................................ 14 Allen Matkins Leck Gamble -3- Mallory & Natsis LLP PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF 4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION 1 Page(s) 2 County Code, § 19.100.050 ........................................................................................................... 14 3 Constitutional Provisions 4 Cal. Const., art. XI, § 7 .................................................................................................................. 14 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES Allen Matkins Leck Gamble -4- Mallory & Natsis LLP PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF 4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION 1 I. INTRODUCTION. 2 Granite Construction Company, Inc. is at it again. After (as others have alleged) disrupting 3 lives throughout California and the Western United States,1 it now turns to Kern County, where it 4 daily jeopardizes the lives and livelihood of a small family farmer and his employees. Kern County 5 officials have already determined that in doing so Granite violated multiple promises it made to the 6 County when it convinced the County to award it a Conditional Use Permit (“CUP”) for mining 7 operations at Granite’s Solari Project (“Project”), near Arvin. 8 Documents revealed through Public Records Act requests—which will come into evidence 9 if this case proceeds—establish the County knows Granite has violated its CUP. (See First Amended 10 Petition ¶ 52: Director Lorelai Oviatt confirming Granite is out of compliance with its CUP and 11 directing the County to send Granite a letter that the County would “put a stop work on the project” 12 if Granite refused to comply.) Yet for reasons unknown until recently, the County has refused to do 13 anything meaningful about it. This forced Petitioner Biane—a small family farmer whose family 14 has farmed on these lands for many decades—to petition this Court for redress. 15 Granite’s response was to go on the offensive to crush Biane. It sued him on trumped up 16 charges of trespass and harassment. (See Kern County Superior Court Case No. BCV-23-102060.) 17 And, here, it took over the County’s defense, having its counsel appear ostensibly on the County’s 18 behalf to have the County parrot Granite’s position, to achieve Granite’s objectives, to the detriment 19 of the County’s residents. Granite’s/the County’s positions, however, misunderstand and misapply 20 the relevant law. Accordingly, their demurrer should be overruled, and the case should proceed so 21 that Mr. Biane may obtain the redress his County government has refused him. 22 The thrust of the County’s demurrer is a request for carte blanche to allow hundreds of 25-ton 23 trucks to unlawfully barrel through local farmland, instead of approved access routes, to appease the 24 billion-dollar mining corporation that is bankrolling the County’s legal defense. Project traffic has 25 significantly interfered with Mr. Biane’s (personally and doing business as JP Biane Farms and in 26 1 27 See, e.g., Grewal v. State of California, Sacramento Sup. Court Case No. 2022-00326190 (wrongful death based in part on Granite activity); Eskman v. Dept. of Transportation, Sacramento Sup. Court Case No. CVBL2100298; 28 Southern California Gas Co. v. Competitive Edge Electric, Inc., Granite Construction, Inc., et al. Riverside Sup. Court Case No. CVPS2106161; SEC v. Granite Construction Inc., Northern District Case No. 4:22cv4857. LAW OFFICES Allen Matkins Leck Gamble -5- Mallory & Natsis LLP PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF 4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION 1 his capacity as Trustee of the J.P. Biane Living Trust dated November 24, 2021) private use and 2 enjoyment of his farmland. The County has allowed Granite to debilitate local farmland, endanger 3 workers, pollute local crops with noxious fumes, damage roadways, and create safety hazards for 4 other drivers. 5 In 2008, Granite submitted a joint application for a Conditional Use Permit (“CUP”) and a 6 California Surface Mining and Reclamation Act permit for approval of its 77-million-cubic-yard 7 Project. The County imposed certain mandatory requirements and mitigation measures designed to 8 reduce impacts associated with the Project, including the requirement that Granite’s Project traffic 9 use designated access routes when traveling to and from the Project site to avoid adverse impacts to 10 the surrounding community and ensure that the roadways used by Project traffic (often carrying 11 massive amounts of excavated materials) could handle the constant heavy-duty truck traffic. But 12 with the express and implied blessing of the County, Project traffic has disregarded the approved 13 access routes and currently speeds down Rancho Road (a two-lane country road that goes straight 14 through Biane’s farm), endangering Biane and his employees’ lives. 15 Granite claims the County can escape liability because the County has a discretionary or 16 permissive ability to pick and choose which approval conditions it wants to enforce—in other words, 17 that it can ignore the approval conditions Granite wants it to ignore. But the County has no such 18 discretion. Instead, the California Environmental Quality Act (Pub. Resources Code, §§ 21000, et 19 seq.) (“CEQA”) independently establishes a mandatory obligation and ministerial duty on the 20 County that requires it to act no matter what it thinks the CUP allows it to do. As the Court of 21 Appeal so artfully expressed, “[m]itigation conditions are not mere expressions of hope.” (Lincoln 22 Place Tenants Assn v. City of Los Angeles (2007) 155 Cal.App.4th 425, 353.) California requires 23 the County to “suspend specific activity” of any “agency and real party of interest” (Granite), where 24 that agency “has failed to comply with CEQA.” (Id., at 452.) 25 Mr. Biane has alleged each necessary fact to bring his Petition against the County. The 26 County cannot, especially at the Demurrer stage, be given permission to continue to turn a blind eye 27 to Granite’s unlawful behavior. The County’s inaction sends a clear message that the County 28 prioritizes (and bends to the will of) massive corporations over small family farmers. Without this LAW OFFICES Allen Matkins Leck Gamble -6- Mallory & Natsis LLP PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF 4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION 1 Petition, the County will continue this improper behavior for the entire thirty years of the Project; 2 for thirty more years Mr. Biane’s local community will suffer. 3 II. ALLEGATIONS IN THE PETITION. 4 A. Biane Owns A Small Family Farm on a Formerly Quiet Road in Kern County. 5 For over seventeen years, Mr. Biane has owned and operated a farm located at 1901 Rancho 6 Road, Arvin, California 93203 under the name JP Biane Farms. (Petition, ¶ 8.) Biane’s Farm was 7 formerly owned by Biane’s grandfather and father, and Biane has been farming the land since 1989. 8 (Petition ¶ 15.) A large portion of Biane’s farmland is adjacent to Rancho Road—a shoulder-less, 9 twenty-foot-wide road operated by Kern County. (Petition ¶ 17.) The road runs through the middle 10 of a portion of Biane’s Farm. 11 Rancho Road is the main point of access to Mr. Biane’s farm. (Id.; Petition ¶ 15.) As such, 12 it is frequented by Biane, his employees, and visitors to the farm who use the road to access various 13 parts of the fields and farmland. (Id.) For decades, Mr. Biane (and his father and grandfather before 14 him) operated the farm, using Rancho Road, without issue. (Petition ¶ 15.) Now, an onslaught of 15 trucks barrels down Rancho Road every day, jeopardizing the safety of Biane’s family and 16 employees and nearly destroying his business. 17 B. Granite’s Application for a Massive Mining Operation in Kern County. 18 Granite currently operates a 77-million-cubic-yard Solari Sand and Gravel mining project in 19 Kern County. (Petition ¶ 19.) In 2008, Granite submitted a joint application to the County for a 20 CUP and a California Surface Mining and Reclamation Act permit (“Mining Application”) for the 21 County to approve its Project. (Petition ¶ 19.) Granite’s operation, which encompasses about 543 22 acres, includes asphalt and concrete recycling operations, an asphalt plant, a concrete plant, and 23 ancillary facilities. (Petition ¶ 19.) 24 Granite stated in its Mining Application that it anticipated excavating about 2.4 million tons 25 of sand and gravel in its first year of operation and would eventually reach a yearly excavation rate 26 of 4.5 million tons of sand and gravel by its 23rd year. (Petition ¶ 20.) This effort requires the use 27 of 25-ton haul trucks, making 786 to 1,440 trips for 250 days of the year. (Petition ¶ 22.) 28 As part of the approval process, the County required that Granite provide “a figure that LAW OFFICES Allen Matkins Leck Gamble -7- Mallory & Natsis LLP PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF 4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION 1 specifically identifies the access route to and from the project site… If multiple routes are to be 2 utilized, please identify each route respectively.” (Petition ¶ 26.) Granite agreed to use specific 3 access routes to bring these massive amounts of excavated materials from the mining project. 4 (Petition ¶ 26.) These routes did not include Rancho Road. (Petition ¶¶ 29, 42, 43.) 5 C. Granite’s Environmental Impact Report and Project Conditions of Approval. 6 The County required Granite to prepare an environmental impact report (“EIR”) for the 7 Project, to comply with CEQA. (Petition ¶ 32.) As part of the EIR, Granite once again certified the 8 access routes that the project traffic would use. A July 2011 traffic study prepared in connection 9 with the EIR analyzed transportation impacts associated with the Project (“Traffic Study”).2 10 (Petition ¶ 36.) The Traffic Study did not analyze the use of Rancho Road; rather, it described 11 access routes to and from the Project site as “Copus Road/David Road, Wheeler Ridge Road and 12 Sebastian Road” along with “the Interstate 5 Freeway and Highway 99.” (Petition ¶ 37.) 13 The EIR also evaluated the potential impacts that Granite’s haul trucks would have on the 14 County’s local roadways. The EIR imposed a mitigation measure requiring that Granite videotape, 15 prior to Project activity, any existing roadways proposed for Project use. (Petition ¶ 40.) The 16 mitigation measure explicitly requires this precaution to ensure later rebuild and construction 17 initiations. All EIR mitigation measures, such as 4.13-3 dictate a mandatory enforcement obligation 18 on the County (discussed in Section IV-3). (Petition ¶ 40.) The haul routes listed, and referenced 19 in the EIR mitigation measures, do not include Rancho Road. (Id.) 20 Relying on Granite’s representations in the CUP, Mining Application, and the specific 21 access route studies in the EIR and Traffic Study, the Planning Commission voted to certify the EIR, 22 adopt the MMRP, and conditionally approve the CUP as recommended by County staff. (Pet. ¶ 44.) 23 D. The County Allows Granite to Disregard the Approved Access Routes. 24 Once the Project began operating, trucks began jeopardizing local farmers’ safety. One of 25 Granite’s subhaulers nearly ran over a Biane employee as he traversed Rancho Road to reach a 26 different part of the farm. (Petition ¶ 47.) The presence of these trucks has heightened the risk and 27 frequency of such accidents, which only adds to Biane’s concerns for his employees’ safety. (Id.) 28 2 The Mining Application, CUP, EIR and Traffic Study are collectively referred to as the “Granite Application.” LAW OFFICES Allen Matkins Leck Gamble -8- Mallory & Natsis LLP PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF 4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION 1 Project traffic also poses a hazard for the roadways and Biane’s farm. It emits noxious fumes 2 and drops gravel as it speeds by, damaging Biane’s crops and Rancho Road, cracking windshields 3 of Biane’s and his employee’s vehicles, and presenting a serious risk that Biane or his employees 4 will get struck by ricocheting gravel (if not by the trucks themselves). (Petition ¶ 49.) 5 The frequent use of Rancho Road by these enormous haul trucks has caused Rancho Road 6 to deteriorate rapidly and the asphalt in the road to break down. (Id.) Project traffic speeds down 7 Rancho Road at speeds well above the speed limit with zero disregard for the safety of others. (Id.) 8 As a result of Granite’s actions (and the County’s inaction), Biane has been unable to plant acres of 9 crops on his land and will ultimately have incurred millions of dollars in damages. These damages 10 will continue to accrue each year until Granite ceases its behavior. 11 E. The County Acknowledges Granite’s Violation of the Project Approvals But 12 Fails and Refuses to Heed Biane’s Repeated Calls for it to Act. 13 Biane has exhausted every feasible contact within the County. He has contacted the Planning 14 Department for the County, the County Assistant Planning Director Craig Murphy, the County 15 Planner Randall Cates, Field Representatives for the 5th and 2nd Districts, and various other County 16 staff members. (Petition ¶¶ 52-56.) Both Mr. Murphy and Mr. Cates informed Biane that Rancho 17 Road was not part of the approved access route to or from the Project and that they would contact 18 Granite’s management about their improper use of Rancho Road. Following their conversation, 19 Mr. Cates sent Petitioner copies of the CUP and MMRP. (Petition ¶ 52.) 20 Around this time, Director of County Planning and Natural Resources Lorelei H. Oviatt sent 21 a letter to other County officials in the County Planning Department stating that Granite was out of 22 compliance with its CUP and the County needed to send Granite a letter stating that it would “put a 23 stop work on the project” if Granite failed to come into compliance. (Petition ¶ 65.) 24 The County never took action. (Petition ¶ 67, 68.) Since this time, Biane has made zero 25 progress with County officials and representatives have stopped responding. (Petition ¶ 76, 80.) 26 III. LEGAL STANDARD FOR DEMURRER 27 A demurrer tests the legal sufficiency of the facts alleged in the Petition to determine whether 28 they state a cause of action. So the ultimate truth or falsity of the facts alleged in the Petition is not LAW OFFICES Allen Matkins Leck Gamble -9- Mallory & Natsis LLP PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF 4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION 1 at issue in ruling on a demurrer as the actual evidentiary proof of facts is a matter for trial. 2 (Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 47 (“[I]t is not the ordinary function 3 of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes 4 the defendant’s conduct.”) Therefore, “[a]s a general rule in testing a pleading against a demurrer 5 the facts alleged in the pleading are deemed to be true.” (Del E. Webb Corp. v. Structural Material 6 Co. (1981) 123 Cal.App.3d 593, 603.) 7 “The California Supreme Court has consistently held that ‘a plaintiff is required only to set 8 forth essential facts of his case with reasonable precision and with particularity sufficient to acquaint 9 a defendant with the nature, source and extent of his cause of action. The particularity required in 10 pleading facts depends on the extent to which the defendant may be assumed to have knowledge of 11 the facts equal to that possessed by the plaintiff.’” (Ludgate Ins. Co. v. Lockheed Martin Corp. 12 (2000) 82 Cal.App.4th 592, 608.) 13 IV. BIANE PROPERLY ALLEGED ALL NECESSARY FACTS 14 A. The County Has a Clear, Present and Ministerial Duty to Act. 15 The County, acting through Granite’s attorneys, argues the Petition fails because it does not 16 allege the existence of a “ministerial duty” imposed on the County. This technical argument fails 17 for two reasons. First, the County fails to provide an accurate statutory interpretation of the 18 underlying Kern County Code of Ordinances, Chapters 19.100,19.104, and 19.114 (“Ordinances”). 19 Second, the Petition expressly alleges the existence of the County’s ministerial duties. 20 Essentially, the County’s improper contention – that it has absolute discretion to decide 21 whether and when to enforce the conditions of approval and mitigation measures it requires to 22 reduce the impacts of development projects on the local community – evidences a failure of its 23 governmental obligation to protect the health, safety and welfare of County residents. The County 24 has a duty, irrespective of statutory law or regulations, to ensure that its residents are protected. It 25 fulfills that duty by imposing conditions and mitigation measures on new development, such as the 26 Project. If the County has no intention of ever enforcing those conditions or mitigation measures as 27 necessary to protect its residents, its initial imposition of the conditions is pointless. 28 LAW OFFICES Allen Matkins Leck Gamble -10- Mallory & Natsis LLP PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF 4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION 1 1. The County’s Statutory Interpretation Is Inaccurate and Improper for 2 Demurrer. 3 The crux of the County’s argument rests on the Ordinances’ language. The County contends 4 that because two of the three ordinances feature “may” language, the County has discretionary 5 authority and can disregard its enforcement obligations. This argument requires the Court, at the 6 demurrer stage, to make a statutory determination, and then apply the facts to such determination. 7 Ordinarily, when a statute provides a court “may” do something, the statute is permissive, 8 not mandatory, and grants the court discretionary authority. But this is not a fixed rule of statutory 9 construction. (People v. Ledesma (1997) 16 Cal. 4th 90, 65 (“Although the ‘shall’/’may’ dichotomy 10 cited by defendant is a familiar interpretive device, it is not a fixed rule of statutory construction”).) 11 “May” can be interpreted as mandatory by legislative intent: 12 The term “may” has been “construed to be mandatory where the object to be obtained compels such a construction, or where that construction is necessary to give effect to 13 the legislative intent….This rule is consistent with the general principle that, unless clearly indicated otherwise, the words in a statute are to be given a sensible 14 construction according to their commonly understood meaning.” 15 (Lara v. Board of Supervisors (1976) 59 Cal.App.3d 399, 407.) 16 In its Demurrer, Granite/the County conveniently omits this prevailing case law dictating 17 that “may” is not always determinative of a mandatory versus discretionary duty. The “sensible 18 construction” or “legislative intent” argument applies directly to the County’s instant obligations. 19 The County created specific conditions of approval and imposed detailed mitigation measures to 20 protect its local community from harm. It even admitted that if Granite did not comply with its 21 conditions that it would need to “put a stop to work on the project.” (Petition ¶ 65.) There would be 22 no reason to condition Granite’s Application and Project approvals on certain measures – like using 23 specified access routes – if the County had no intention of enforcing them. The only “sensible 24 construction” is that the County created these Ordinances intending to enforce them. 25 “May” is thus not determinative of the County’s ministerial duty to act because the “sensible 26 construction” of the Ordinances requires the County to enforce its conditions of approval and 27 mitigation measures. Irrespective of whether the Court agrees with this conclusion (which it 28 should), the “sensible construction” analysis requires the Court to engage in a determination of LAW OFFICES Allen Matkins Leck Gamble -11- Mallory & Natsis LLP PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF 4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION 1 statutory interpretation and factual application at this early stage of the proceeding. This is not 2 proper at this stage, and the Court should instead deem Mr. Biane’s allegations as true. The County’s 3 argument thus fails, and the demurrer should be overruled. 4 2. “May” Does Not Shield the County from Its Enforcement Obligations. 5 Next, and by the County’s technical argument, the word “shall” (and other mandatory 6 language) in the Public Resources Code, MMRP, CUP and SMARA creates a mandatory duty. The 7 County states that the permissive terminology used in the Ordinances – that it “may” act – provides 8 immunity from its failure to act to protect its residents and enforce the conditions imposed on 9 development that it previously approved. However, there are numerous Ordinances and obligations 10 with mandatory “shall” language. 11 CEQA requires a public agency, such as the County, to enforce mitigation measures it 12 imposes on new development. As noted in the County’s Demurrer, “the term ‘shall’ is interpreted 13 as mandatory and not permissive. Indeed, the presumption [is] that the word “shall” in a statute is 14 ordinarily deemed mandatory....’ [Citation.]” (Amir v. Superior Court (2018) 26 Cal.App.5th Supp. 15 1, citing People v. Standish (2006) 38 Cal.4th 858, 869.) 16 The Public Resource Code, Section 21081.6(b) states: 17 [a] public agency shall provide that measures to mitigate or avoid significant effects on the environment are fully enforceable 18 19 The Mitigation Monitoring Reporting Program (“MMRP”) further states: 20 [a]ny existing roadway segments proposed to be used by the project proponent shall, in consultation with the Kern County Public Works Department, be videotaped prior 21 to initiation of construction activities and rebuilt to match existing conditions prior to the commencement of operations.” (Id, 4.13-3.) 22 23 The CUP also states that all mitigation measures present in the MMRP are “[c]onditions of 24 [a]pprovals.” (CUP, at p. 7.) The County’s argument that it does not have to enforce the CUP does 25 not account for the mandatory language of the MMRP. These mandatory code provisions are not 26 discretionary and must be enforced. 27 3. The County Has an Independent CEQA Obligation to Enforce. 28 The County attempts to argue that Granite’s “substantial compliance” with the Mining LAW OFFICES Allen Matkins Leck Gamble -12- Mallory & Natsis LLP PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF 4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION 1 Application satisfies the Ordinances. It states that because the access routes are simply one out of 2 many conditions, Granite is in “substantial compliance” with the CUP and MMRP. This argument 3 fails because the County’s enforcement obligation does not arise from County Ordinances, but from 4 CEQA. CEQA denotes a mandatory duty on the County to enforce Mitigation Measure 4.13-3 5 (quoted above), which allows Granite to use only those roads videotaped and studied as approved 6 access routes. (Lincoln Place Tenants Assn v. City of Los Angeles (2007) 155 Cal.App.4th 425.) 7 The Lincoln Place Court made this same determination. A tenant’s association petitioned 8 for writ of mandate to compel a city to enforce mitigation measures contained in a tract map that the 9 city’s agency issued to a developer. The Lincoln Place Court granted the tenant’s association’s 10 petition for writ of mandate, entered judgment against the city and compelled it to enforce the 11 mitigation measures of the at-issue EIR. It reasoned that “[w]here a public agency has failed to 12 comply with CEQA, the trial court (1) must vacate the CEQA determination...” or 13 (2) if the court finds that a specific project activity will prejudice the consideration and implementation of mitigation measures or project alternatives and could result 14 in an adverse physical environmental change, mandate that the agency and any real party in interest suspend specific activity until the agency complies with CEQA; 15 (3) mandate that the agency take specific action necessary to comply with CEQA. 16 (Id., 452.) 17 It also reasoned that mitigation measures must be enforced because “[t]he fundamental goals 18 of environmental review under CEQA are information, participation, mitigation, and 19 accountability.” (Id., at 443.) “Mitigating conditions are not mere expressions of hope.” (Id., at 20 353.) Similarly, in this instant action, CEQA requires that the County enforce the mitigation 21 measures imposed by the MMRP. As stated above, Mitigation Measure 4.13-3 required Granite to 22 videotape all intended access routes before initiating the Project. If Granite subsequently uses a 23 non-videotaped access route, like Rancho Road, it is violating the MMRP. CEQA then mandates 24 that the activity is either “suspend[ed] until the agency complies…[or]…that the agency take 25 specific action necessary to comply.” (Lincoln Place Tenants Assn., at 452.) 26 Moreover, the County’s “substantial compliance” argument fails considering the express 27 language of County Code § 19.100.050. The County Code explicitly states that “[a]ny change to 28 adopted conditions of approval…shall be treated as a substantial deviation from the approved plan LAW OFFICES Allen Matkins Leck Gamble -13- Mallory & Natsis LLP PLAINTIFF JEAN-PIERRE BIANE’S OPPOSITION TO DEFENDANT COUNTY OF 4873-6926-6810.1 KERN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED PETITION 1 and shall be considered by the planning commission at a regularly scheduled public hearing.” 2 (County Code, § 19.100.050.) The conditions of approval required Granite to study each road before 3 the Project began (and it never studied Rancho Road) to ensure eventual rehabilitation. (County 4 Code, § 19.100.030.J; Mitigation Measure 4.13-3.) Its failure to do so should be considered a 5 “substantial deviation” under County Code § 19.100.050. 6 The County is prohibited from simply ignoring the mitigation measures and Granite’s blatant 7 substantial deviation from its conditions of approval. Such inaction would “render [the conditions] 8 meaningless by moving ahead with the project in spite of them.” (Sierra Club v. County of San 9 Diego (2014) 231 Cal.App.4th 1152, 1167, quoting Lincoln Place, at 450.) The County is simply 10 unwilling to accept that it has a mandatory duty to enforce the approval conditions it required. 11 4. The County Has a Mandatory Duty to Protect Its Citizens. 12 Last, but not least, the County is also required to protect the health and safety of its 13 inhabitants. California’s constitution bequests power to its counties to enforce all local, police, 14 sanitary and other ordinances and regulations not in conflict with general laws. (Cal. Const., art. XI, 15 § 7.) The County here has undertaken the responsibility to require environmental protections, 16 conditions of approval and other mitigation measures for Granite’s Project. The County enacted 17 such measures to protect its local community from the exact kind of harm that is now occurring. 18 By expertly teaming up with Granite, the County has picked a large corporation over the 19 needs of its citizens. Every day, it allows hundreds of large trucks to barrel through Rancho Road 20 causing a dangerous environment for Biane and his employees. The County