Motion for Preliminary Injunction in Silicon Valley Foundation For A Better Environment vs Santa Clara Valley Water District et al| Trellis.Law

On November 08, 2017 a Motion-Secondary was filed involving a dispute between Silicon Valley Foundation For A Better Environment, and Board Of Directors For The Santa Clara Valley Water District, California Department Of Fish And Wildlife, Santa Clara Valley Water District, for Writ of Mandate Unlimited (02) in the District Court of Santa Clara County.

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Jason W. Holder, SBN 232402
HOLDER LAW GROUP
317 Washington St., #177

Tel.: (510) 338-3759
Email: jason@holderecolaw.com

WATER AND POWER LAW GROUP PC

Berkeley, CA 94704-1229

(510) 296-5588 (main)
Email: pskibel@waterpowerlaw.com

SILICON VALLEY FOUNDATION FOR
A BETTER ENVIRONMENT

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

SILICON VALLEY FOUNDATION FOR A
BETTER ENVIRONMENT, a California non-
rofit Corporation;

Petitioner and Plaintiff, PETITIONER’S REPLY MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF
vs. MOTION FOR PRELIMINARY INJUNCTION

SANTA CLARA VALLEY WATER
DISTRICT, a special district, BOARD OF Date: April 20, 2018
DIRECTORS FOR THE SANTA CLARA Time: 10:00 a.m.
VALLEY WATER DISTRICT, and DOES 1
ASSIGNED FOR ALL PURPOSES TO:
THE HONORABLE HELEN WILLIAMS
Respondents and Defendants, DEPARTMENT 10

and

SANTA CLARA VALLEY WATER
DISTRICT, a special district, and DOES 21

Real Parties in Interest.

PETITIONER’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR PRELIMINARY INJUNCTION
INTRODUCTION: PROJECT CHANGES CAUSE IRREPARABLE HARM

INJUNCTION

ss or Irreparable
Harms, ..0......csseseeseseeseseseeseseeseseseeseseeseseseenees

ALQUMEMIS. oo. ee eeeeeeeeeeeseeceeeestseseeeseseeesescsescsesceesceesceeseseseeeseeeseeeseeneteeeeeeeeeee 2

The Record Shows That Maximum Floodwall Height Was
Increased Substantially Since the Project Was Initially Approve
in 2011.

Because the District Did Not Timely and Publicly Disclose Its
Informal Approvals of Substantial Project Changes, Its Statute
Limitations Defense is Unavailing.

The District Exaggerates the Interim Harms That Could Result if
Preliminary Injunction Issues and Downplays the Irreparable
Harms to the Foundation’s Members and the Public if it is Denied. ....... 5

rds the Significant Environmen
Impacts that Will Result from Substantial Project Changes... 7

Necessary Public Process to Ensur
Feasible Alternatives and Mitigation to Avoid and Reduce Impacts.

ssing CEQA Claims is Not as Defe
Suggested.

Imposing an Undertaking Would be I est Case
Standards. .........cceessseseeseseseeseseeeseseeeseeneee

CONCLUSION: A PRELIMINARY INJUNCTION SHOULD ISSUE TO PREVENT
IRREPARABLE HARMS 10

PETITIONER’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
PRELIMINARY INJUNCTION
(1940) 15 Cal.2d 16 10}
Bay Area Air Quality Management District
(2016) 1 Cal.App.Sth 715
Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural Association
(1986) 42 Cal.3d 929

(1977) 71 Cal.App.3d 185

(1988) 47 Cal.3d 376

(2005) 130 Cal.App.4th 1491
Napa Citizens for Honest Gov. v. Napa County Bd. of Supervisors
(2001) 91 Cal.App.4th 342
Right Site Coalition v. Los Angeles Unified School District
(2008) 160 Cal.App.4th 336

(2014) 231 Cal.App.4th 1152
Tahoe Keys Prop. Owners’ Assn. v. State Water Resources Control Board
(1994) 23 Cal.App.4th 1459.
Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova
(2007) 40 Cal.4th 412

Federal Cases

(9th Cir. 1985) 766 F.2d 1319 10

Cal. Code Civ. Proc., section 529 10}

Cal. Code Civ. Proc., section 529.1 .....ccceeeeeeeee seeseeeeees 9, 10

Public Resources Code, section 21167

Other Authorities

Remy, et al, Guide to CEQA: California Environmental Quality Ac
(Solano Press, 11th ed., 2007) 9, 10

PETITIONER’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
PRELIMINARY INJUNCTION
INTRODUCTION: PROJECT CHANGES CAUSE IRREPARABLE HARM

In its Opposition papers, Respondent Water District (“District”

floodwall has much more significant adverse impacts than an 8-f

mpts to persuade the

of the Project and that it’s impacts were

completely analyzed in the PEIR

ace if the preliminary injunction is granted, risking harm to the

These positions lack factual support; indeed, they are each contradicted by the agency’s own

records. The arguments are based on fundamental misrepresentati

First, the PEIR simply describe “from approximately five to eight

feet above the adjacent eleva walls.” This description forms the basis

of the impact analysis and initial Project approvals, not descriptions buried in other documents. Second,

the Petition is timely because

substantial changes ultimately made to the Project, after several months of reconsideration — neither

formal approval of the construc

preliminary injunction should not be

requirements ensure that the “winter levee” currently in place

flood protection for the area than the existing conditions prio

any delay in Project construction during these proceedings will

its own contract requirements, which presumably assure adequacy

Project changes that have been made since initial Project appro

rrant subsequent CEQA review and will

cause significant harm if allo

See generally Opposition to Motion for Preliminary Injunction; MPA (“Opposition” or “Opp.”). For descriptions of all
defined terms not defined herein, see: Attachment A to Opening MPA: List of Acronyms and Abbreviations.

ETITIONER EPLY
ARGUMENT: PETITIONER SATISFIES THE TEST FOR PRELIMINARY INJUNCTION
The District Cannot Not Dispel Petitioner’s Likelihood of Success or Irreparable Harms.
The District’s Opposition Depends on Mischaracterizations and R
The Record Shows That Maximum Floodwall Height Was Increased Su
Since the Project Was Initially Approved in 2011.

The original maximum floodwall height analyzed in the PEIR and

— t, with an earthen berm base in Reach E

(adjacent to Edgewater Drive)

District claims that it has not

question of what Project the District initially approved because neither of those documents were

ption of Project floodwalls. Figure 2-3B

does not describe floodwall hei erent floodwall design for Reach E than

cifies an approximate 8-foot

maximum height for floodwalls a

presumably accurate project description, not with the description in some other document.

“When an EIR incorporates an earlier environmental document by reference, ‘the incorporated

part of the referenced document

he referenced document and th

California Supreme Court has emphasized is critical that the lead agency provide a “road map” to the

incorporated document because:

The audience to whom an EIR must communicate is not the reviewi

court may explain or supplement ma omplete in the EIR, for
example, is irrelevant, because the public and decision makers
available at the time the proj
whether the project’s significant environmental effects

Exh. B to Holder Decl., PEIR excerpts, pp. 2-5 [Figure 2-2A], 2-17 [description of LB Element], 2-19 [Figure 2-3B]
Opp., p. 6:11-15 [citing Exhs. 27, 28, 30].
Exh. A to Holder Decl., Board Agenda Memo, p. 2 [stating Final PEIR describes Program elements].
Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, 443 (Vineyard
Ibid., emphasis in original.

ETITIONER EPLY
Here, the PEIR’s description of floodwall height does not reference any other documents, let alone

provide a road map to materials ow insists fill the informational gap.

The District also inaccurately asserts that the PEIR itself ana

ge), program-level analysis o

impacts ofa 12- to 14- foot tall floodwall, it was completely silent with

rely on for this information. IR to claim

the PEIR analyzed these impacts

District also claimed that the approved by the [Water Board], [CDFW]

d permits allowing construction

ed permits that allowed 6- to 9-f

n amendment to the SAA specifi

ermits had always allowed a 12-t

did permit applications specify a maximum 9-foot tall floodwall

District to apply for Amendment 2 to the SAA? The District is c

enced by the numerous contentious public meetings necessary to explain

nd quell substantial community o

one project, the 2014 Project perm

still another, and through mid-

Opp., pp. 6, 15 [citing Exh. 5, undated photo renderings and CEQA Peer Review document dated Sept. 29, 2017].
Exh. B to Holder Deel., PEIR, pp. 3.B-23 — 3.B-24; see also id. at p. 2-17 [only description of floodwall height].
Exh. Y to Chu Decl., Water District Responses to Questions, dated May 9, 2017, p. 2.
I to Holder Decl., Amended 401 Certification, p. 8 [Condition 1]; Exh. C to Holder Decl., Application for
401 Certification, p. 3-7; see also Exh. M to Holder Decl., Amendment 2 to SAA.
Opposition, pp. 6-7, 15.
County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 198 [small groundwater project described at the outset
of the EIR process became much a much larger one with more significant impacts by the time it was approved].
See generally Exhs. 37 [community meeting transcript, 11/18/16], 42 [community meeting transcript, 01/30/17], 43.
[community meeting transcript, 05/10/17], 44 [community meeting transcript, 06/28/17].

ETITIONER EPLY
nse is Unavailing.

revailing on the merits of its

claims, the District first and primarily attempts to shield itself from the claims through faulty arguments}

that the lawsuit is untimely. The it perhaps did change the Project, the

Petition is not timely because i r, in December 2016 or January 2017, 180

or a 180-day statute of

limitations under Section 21167, how

1 changes made to the Project s

meeting minutes and constructi

Without a specific explanation concerning the substantial Proj

mposing floodwall, it was approp

PEIR provided accurate information concerning the Project’s des

informed the public in June or July 2016 that it was proceeding, no matter what, with a project that

e PEIR in several respects it might have a potentially viable argument

that the CEQA statute of limitations in PRC section 21167 was t

contract or commencemen

But this is not what the District did. For almost a year, from

2017, the District held multiple community meetings initially d

the maximum floodwall height t

public meetings and in other commu

Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 937-939.
Exh. 34, pp. 258-59, 278-80 [agenda and Phase 2 construction plans cited in Opposition, p. 11].
See Concerned Citizens supra, 42 Cal.3d at 938 [commencement of a substantially changed project “is more misleading
than if the agency had prepared no EIR, since the public might justifiably but erroneously assume that the project being built}
is the one discussed in the EIR”].
See Communities for a Better Environment v. Bay Area Air Quality Management Dist. (2016) 1 Cal.App.Sth 715, 724.
Opp., pp. 11-13; Exhs. 37, pp. 444-445, 42, pp. 508-516, 43, pp. 613-648, 44, pp. 694-717, 46;
Neu. Decl., p. 3, § 4 [District held 4 meetings to “discuss various options to incorporate changes to the floodwall”].

ETITIONER EPLY
to CDFW and the Water Board. on member that, if the higher

floodwall were pursued, further environmental review would be r For months there was no

all design, there were merely proposals and assurances that the final

eedback. Ultimately, a year aft

d public input and proceed with its modified Project.

of community meetings and outreac would have been premature. It also

December 2016 or January 2017 because at that time stakeholders

til the June 28, 2017 meeting, stakeholders

rict was considering modifying

requested an amendment to the S

agency was determined to proceed with this controversial Project change.

The District’s statute of limitations argument insists that the

ng community feedback and seeking permit modifications. In light of

statute of limitations defense

to string stakeholders along until the

asserted limitations periods had run? If so, such gamesmanship

Injunction Issues and Downplays the Irreparable Harms to the Fo
Members and the Public if it is Denied.

a preliminary injunction, if gran

truction contract terms requi

Exhs. AA and BB to Holder Reply Decl. [District presentation of proposed Project changes to resource agencies].
Exh. DD to Chu Reply Decl., email from T. Schane re supplemental environmental review, dated April 26, 2017.
Exh. 44, pp. 705-706 [transcript of June 2017 meeting where attendees were finally informed of the decision to
proceed with the 14-foot floodwall without any alterations].
Petitioner finally “knew” of the Project changes when Mr. Chu received, on July 5, 2017, an email from Tami Schane
forwarding, Amendment 2 to the SAA and the accompanying application for the amendment. Chu Reply Decl., 4 9.

ETITIONER EPLY
than pre-construction conditions.

his requirement when arguing the

left in place for the duration of litigation. If it is enough f

preliminary injunction issues would only be a small percentage

Phase 2 of this Project will cost approximately $50 million, so the additional claimed costs of

approximately $5 million dollars is relatively small in the ove

rict from delay is quite minimal.

rms to the community and the pub

construction is completed, allowing the District to proceed with the completion of the higher floodwall

during the pendency of the litigation will likely result in the permanent loss of views across the creek

and the permanent impairment of scenic resources. Further impairment of longfin smelt habitat (due to

ting from upstream retention pond

continued winter construction activities) may push the species from “threatened” to “endangered.”

Under CESA, an endangered species faces the grave prospect of permanent extinction. There is

e conclusion of this litigat

longfin smelt — extinction by defin eversible.

EQA process” is an independent legitimate object of injunctive

Already, members of the public ha

environmental review process. District from constructing por

es and mitigation measures. The Court

P
Exh. CC to Holder Reply Decl., p. 11-6 [Before October 15 each year, Contractor shall completely repare the site
for the winter such that the pre-construction conditions combined with the new construction completed shall both provide
equal to or a better degree of flood protection for the area than the existing conditions prior to Contractor operations”).
Exh, 34, p. 259; Exh. 49, p. 788.
Laurel Heights Improvement Assn. v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 425.
Reply Declaration of Katja Irvin ISO MPI, p. 2, {{§ 9-10; Exh. FF to Irvin Reply Decl., Sierra Club letter.

ETITIONER EPLY
iminary injunction in a CEQA case even if the balance of harms does not

plaintiff demonstrates a likelihood of success on the merits.

tal Impacts that Will

Relying on its argument that it

District glosses over the unmitigated impacts of (i) a much tal

ance from the street, (ii) retaining water upstream during

The redesigned 14-foot tall concrete floodwall will cause new and more severe impacts to

neighborhood views and to recreation facilities. Because the Di

PEIR analyzed the impacts ofa lays and disregards the impacts of a

higher and more imposing floodwall. The claims, however, are no

dgewater Drive (Reach E) that —_

since then “design refinements” resulted in the complete remova

floodwall can, and likely will, attract more graffiti. The higher floodwall will also more completely

amatically alter the characte

These more severe impacts were never analyzed.

from the Project area during

vidence and stream gauge

measurements. The report by Dr. Hobbs confirms the harm that reduced downstream freshwater

on longfin smelt, discusses ho

Right Site Coalition v. Los Angeles Unified School District (2008) 160 Cal.App.4th 336, 342.
Opp., p. 15-16.
Exh. B to Holder Decl., PEIR, p. 2-19 [Figure 2-3B]; see also Nguyen Decl., p. 3, { 6.
Exh. 21 [graffiti already present on new Project floodwall downstream of Abel Street bridge].
Exh. EE to Chu Reply Decl., rendering of comparative height of floodwall in relation to 2-story home; see also
37, p. 394 [neighborhood resident stating adjacent 14-foot floodwall will make park look like a “prison yard”).
Compare Opp., p. 7, Ins. 21-26, Man. Decl., | 19-21, Hanson Decl., {| 2, and Exh. 56, p. 825 Opening MPA, p.
and Exh. S to Holder Decl., Hobbs Report, Ins. 248-286 [Google earth images from mid-April 2017 showing water retained
behind berm and stream gauge measurements showing precipitous declines in stream flow below Project site].

ETITIONER EPLY
tat for longfin smelt, and show

The Opposition dismisses the photographs documenting

retention pond and documenting the

ess the inaccurate assumption,

r intended to comply with this restriction. If the restriction had instead

been adopted as a mitigation measure it could only be modified or deleted through a determination,

t the measure is infeasible o

he Project itself and assumed adherence fo:

purposes of impact analysis. The D

evidentiary support. The Opposition does not address potentially significant impacts to longfin smelt

that may be caused by Project cons deadline.

evidence supporting the claim that the

will not adversely impact the longfin smelt.

Subsequent CEQA Review is Not a Hollow Procedural Exercise, But is a Necessary
Public Process to Ensure Full and Fair Consideration of Feasible Alternatives and

changes injuring longfin smelt is

impacts from the Project changes and

consideration of feasible alternatives and mitigation that can avoid or reduce such impacts. While the

District now categorically denies there would be any such impacts and dismissively characterizes the

ject a mere “disagreement about Project design,” members of the

Exh. S to Holder Decl., Hobbs Report, Ins. 178-185, 248-286, 345-348, 369-380.
Compare Opening MPA, p. 3 with Opp., pp. 7, 15-16.
Lincoln Place Tenants Ass'n v. City of Los Angeles (2005) 130 Cal.App.4th 1491, 1509, as modified on denial of
reh’g (Aug. 11, 2005) [ifa mitigation measure later becomes “impractical or unworkable,” the “governing body must state a
legitimate reason for deleting an earlier adopted mitigation measure, and must support that statement of reason with
substantial evidence”], citing Napa Citizens for Honest Gov. v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342,
358-359; see also Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1167-1168, 1173 [a supplemental
EIR must be prepared when a public agency determines a previously adopted mitigation measure is infeasible”].
Hanson Decl., p. 3, § 4; see also Exh. 56, pp. 827-828. Neither the Hanson Declaration nor the accompanying report
address potential impacts to longfin smelt that result from construction activities occurring after October 15th

ETITIONER EPLY
Had the District complied with CEQA’s requirements for

alternatives (such as the FreeV ovements) and mitigation measures

t enhancement smelt). The Court’s issuance of the

requested preliminary injunction is the only means to avoid for

properly considers all feasible means to avoid and reduce the significant adverse im

The Standard of Review for Assessi

the Foundation’s CEQA claims, the District implies that only

mention the much less deferential

“failure to proceed” standard a The District’s selective

leaves the false impression that the

o prevail on the merits.

Similarly, the District asserts that a preliminary injunction should only issue in “extreme

circumstances” where the plainti

Imposing an Undertaking Would be Inconsistent with Public Interest Case Standards.

The District’s demand for an undertaking misapprehends applicab

“mandatory, not discretionary”

ect.” Under this statute, the Court must|

find that the “plaintiff will not suffer undue economic hardship” by filing the bond, providing discretio:

uirement. Here, the Foundation serves in

a representative capacity for the concerns of many stakeholders

Opp., p. 15; see also Exhs. 37, 42, 43, 44; see also Reply Decl. of Somnath Mukherjee, {{] 4-13; Exhs. GG
and HH to Reply Mu Reply Irvin Decl., 4] 6-10; see also Exh. FF to Reply Irvin Decl.;
Reply Chu Decl., 3-6.
Opp., pp. 9, 14.
See ibid., citing Tahoe Keys Prop. Owners’ Assn. v. SWRCB (1994) 23 Cal.App.4th 1459, 1470-71.
Remy, et al, Guide to CEQA: California Environmental uality Act (Solano Press, 11th ed., 2007), p. 887 [“With
respect to the first factor, this standard does not require a showing that the plaintiff will necessarily prevail on the merit
instead, only a reasonable probability of success is required”], excerpts attached hereto as Attachment A; see also Right Site
Coalition supra, 160 Cal.App.4th 336, 342.
CCP § 529.1(c) broadly provides that a “construction project” includes construction of “other structure[s].”

ETITIONER EPLY
visitors to the Project area.? Forcing the Foundation to shoulder the entire financial burden ofa bond
would impose a hardship on the Foundation and its members that clearly is “undue.”

Second, as the District concedes, no reported California court decision, but a long line of federal|
court cases (many in the Ninth Circuit), have held that bonding should be waived or nominal in
environmental protection cases to avoid “clos[ing] the courthouse door.”? In non-environmental

California cases, courts have upheld waiving the bond requirement, or required only a nominal bond.**

Third, a leading CEQA treatise reaches the exact opposite conclusion than asserted in the

Opposition. The Guide to CEQA states that interpreting CCP section 529 to make a bond mandatory

“would be nonsensical” and that courts retain common law discretion to waive a bond or to require
10 only a nominal bond, in meritorious environmental lawsuits.**

Il Finally, Section 529.1, subdivision (a) requires that the District: (i) pursue a bond in a separate

12 “noticed motion” and (ii) show that “there is no reasonable possibility that [the Foundation] will obtain

13 a judgment against the [District].” Therefore, the District’s request to impose an undertaking

14 requirement is not properly before the Court.

15 Til. CONCLUSION: A PRELIMINARY INJUNCTION SHOULD ISSUE TO PREVENT
IRREPARABLE HARMS
16
The District's Opposition papers serve only to underscore the central question raised by the
17
Foundation’s motion for preliminary injunction: Will this Court allow the District to spend millions of
18
dollars in furtherance ofa substantially modified major infrastructure project, adversely affecting
19
hundreds of neighboring residents, many users of the creek trail, and sensitive biological resources
20
before the Court determines whether the object of these expenditures was approved based upon a
21
seriously flawed environmental review and project approval process? For the reasons stated above
22
and in the Foundation’s moving papers, a preliminary injunction should issue.
23
April 13, 2018 HOLDER GROUP
24
25 By Ler
J m W. Holder
26 Attorfieys for Petitioner/Plaintiff SILICON VALLEY
FOUNDATION FOR A BETTER ENVIRONMENT
27 42 Petitioner in this matter is the Foundation, it is not “a private citizen” as Water
District asserts. (See Opp., p. 18, In. 6.)
a See, e.g., People ex rel. Van De Kamp v. Tahoe Regional Plan (9th Cir. 1985) 766 F.2d 1319, 1325.
28 44 See City of Los Angeles v, Superior Court (1940) 15 Cal.2d 16, 23.
4s Remy, et al., Guide to CEOA, pp. 889-893, excerpt attached hereto as Attachment A.
10
PETITIONER'S REPLY MPA ISP MPI
Attachment A: Excerpts from Remy, et al., Guide to CEQA:
California Environmental Quality Act
(Solano Press, 11th ed., 2007)
ata glance...
injunctive Relief 987
Preliminary Injunctions 887
Stays Pursuant to Code Civ.
Proc. § 10945, Subdivision (g) 888
Posing a Bond "Unceraing’
in Environmental Cases. 889
Issues to Be Addressed by
a Court in CEQA Litigation 893
Peremptory Writs of Mandate 894
Pub, Res, Code
§ 21168, Subd. (a)(1) 895
Pub. Res. Code
§ 211689, Subd. (a)(2) 895
Pub. Res. Code
§ 211689, Subd. (=)(3) 899
Pub. Res. Code
§ 21168.9, Subd. (b) 900
Pub. Res. Code
§ 211689, Subd, (¢),
Galante Vineyardsu
CHAPTER XVII Monterey Peninsula
Water Management District 901
The Propriety of
Judicial Remedies Interlocutory Relief 902
Continuing Court Jurisdiction 904
Recovery of Litigation Costs 907
Attorneys’ Fees Awards
to “Successful Parties” 908
The Equitable “Private
A. Injunctive Relief Attorney General”
Prerequisites to an Attorneys!
Fees Award Under§ 1021.5. 910
The mere filing of a CEQA lawsuit does not automatically enjoin project proponents Considerations on Appeal. 921
from proceeding with their projects. “An injunction is an equitable remedy, not a
cause of action, and thus it is attendant to an underlying cause of action.” County of
Del Norte v. City of Crescent City (Ast Dist. 1999) 71 Cal. App. 4th 965, 973 [84 Cal.
Rptr. 2d 179]. If during the pendency of litigation in the superior court, a petitioner CEQA = California Environmental
Quality Act
desires to halt project-related activities, the petitioner must seek either a “preliminary
injunction” (traditional mandamus) or a “stay” (administrative mandamus)

1. Preliminary Injunctions
The standard governing the issuance of a preliminary injunction is well-set-
tled. As stated by the California Supreme Court:
This court has traditionally held that trial courts should evaluate two interre-
lated factors when deciding whether or not to issue a preliminary injunction.
The first is the likelihood that the plaintiff will prevail on the merits at trial. The
second is the interim harm that the plaintiff is likely to sustain if the injunction
were denied as compared to the harm that the defendant is likely to suffer if the
preliminary injunction were issued. [Citations omitted.]
IT Corp. v. County of Imperial (1983) 35 Cal. 3d 63, 69-70 [196 Cal. Rptr. 715]!
ith respect to the first factor, this standard does not require a showing that
plaintiff will necessarily prevail on the merits; instead, only a reasonable proba-
lity of success is required. Baypoint Mortgage Corp. v. Crest Premium Real Estate
Investments Retirement Trust (2d Dist. 1985) 168 Cal. App. 3d 818, 824 [214 Cal.
ptr. 531]
A court's determination whether to grant a preliminary injunction “must be
guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plain-
tiff’s showing on one, the less must be shown on the other to support the injunction,
Butt v. State of California (1992) 4 Cal. 4th 668, 677-678 [15 Cal. Rptr. 2d 480] (Butt)

887
(citing Kingv. Meese (1987) 43 Cal. 3d 1217, 1227-1228 [240 Cal. Rptr. 29). Still, “[a]
trial court may not grant a preliminary injunction, regardless of the balance of interim
harm, unless there is some possibility that the plaintiff would ultimately prevail on the
merits of the claim” Buit, supra, 4 Cal. 4th at p. 678 (citing Common Cause of Cakifornia
v. Board of Supervisors (1989) 49 Cal. 3d 432, 442-443 [261 Cal. Rptr. 574]); Scates v,
Rydingsword (Ast Dist. 1991) 229 Cal. App. 3d 1085, 1096 [280 Cal. Rptr. 544]. Thus, a
court should deny injunctive relief if ether of the two factors alone would support a
tuling denying relief: Jessen v. Keystone Savings and Loan Association (4th Dist. 1983) 142
Cal. App. 3d 454, 459 [191 Cal. Rptr. 104}.
Before the trial court can exercise tts dis- Significantly, “before the trial court can exercise its discretion, the applicant must
cretion, the applicant
must make a prima make a prima facie showing of entitlement
to injunctive relief” TripleA Machine Shop, Inc.
facie showing of entitlement to ingune- 21 State of California (1st Dist. 1989) 213 Cal. App. 3d 131, 138 [261 Cal. Rptr. 493]
five
(italics added). Thus, for example, “[t]he burden is on the plaintiff to show that it
would be harmed if the preliminary injunction were not granted” Casmalia Resources,
Lid. 0. County of Santa Barbara (2d Dist. 1987) 195 Cal. App. 3d 827, 838 [240 Cal.
Rptr. 903]. But see Volpicelli'v. Jared Sydney Torrance Memorial Hospital (2d Dist. 1980)
109 Cal. App. 3d 242, 248 [167 Cal. Rptr. 610] (“[a]n explicit finding of irreparable
harm is not required to sustain a preliminary injunction[]”).
Indeed, even though as a technical matter an order to show cause directs the
defendant “to show cause” why a preliminary injunction should not issue, “the burden
is on [the] plaintiff (moving party) to show all elements necessary to support issuance
of a preliminary injunction” 2 Weil and Brown, California Crvil Procedure Before Trial
(2005), p. 9(11)-30, {| 9:632.1. As one appellate court noted, the right to an injunc-
tion “must be clear” and the “extraordinary power” of injunctive relief “should rarely,
if ever, be exercised in a doubtful case.” Crty of Tiburon v. Northwestern Pacific Rail
Road Co, (Ast Dist. 1970) 4 Cal. App. 3d 160, 179 [84 Cal. Rptr. 469] (City ofTuron).
However, “[i]f the denial of an injunction would result in great harm to the plaintiff,
and the defendants would suffer little harm if it were granted, then it is an abuse of
discretion to fail to grant the preliminary injunction” Robdinsv. Superior Court (1985)
38 Cal. 3d 199, 205 [211 Cal. Rptr. 398].
Because injunctive reliefis an equitable Finally, because injunctive relief is an equitable remedy (Meridian, Lid. v. City
remedy, such relief should onby issue if & County of San Francisco (1939) 13 Cal. 2d 424, 447 [90 P. 2d 537}), such relief should.
use of this extraordinary remedy, only issue if a petitioner demonstrates that equity requires use of this extraordinary
remedy. Traditional equitable principles to be considered by a court include the ques-
tion of whether the party seeking relief has “unclean hands” or has unreasonably
delayed seeking relief See, e.g., London v. Marco (2d Dist. 1951) 103 Cal. App. 2d 450,
453 [229 P. 2d 401]; Nutro Products, Inc. v, Cole Gratn Co. (2d Dist. 1992) 3 Cal. App.
4th 860, 869 [5 Cal. Rptr. 2d 41); Vesperv. Forest Lawn Cemetery Association (3d Dist.
1937) 20 Cal. App. 2d 157,163-166[67 p. 2d 368]; Youngblood v. Wilcox (4th Dist. 1989)
207 Cal. App. 3d 1368, 1376 [255 Cal. Rptr. 527]2
2. Stays Pursuant to Code of Civil
Procedure Section 1094.5, Subdivision (g)
Code of Civil Procedure section 1094.5, subdivision (g), provides that, in an
administrative mandamus case, a court may issue a “stay” of the operation of the
challenged administrative agency action:

888 GUIDE TO CEQA
T]he court in which proceedings under this section are instituted may stay the
operation of the administrative order or decision pending the judgment of the
court. ... However, no stay shall be imposed or continued if the court is satisfied
that it is against the public interest.
Under Code of Civil Procedure section 1094.5, the issuance or denial of a stay is Under Code of Civil Procedure section
left to the discretion of the court. West Coast Home Improvement Company v, Contractors’ 1094.5, the issuance or denial
of a stay is
Left to the discretion
of the court.
State License Board (2d Dist. 1945) 68 Cal. App. 2d 1, 4,6 [155 P. 2d 863]; Morton w. Supe:
rior Court (1st Dist. 1953) 119 Cal. App. 2d 665 [260 P. 2d 215]; 2 California Adminis-
trative Mandamus (Cont. Ed. Bar 3d ed. 2004), § 11.23, “This comports with the ‘inherent
power’ of each superior court ‘to exercise reasonable control over litigation before it[,]’
[Citation]” Sterlingv. Santa Monica Rent Control Board (2d Dist. 1985) 168 Cal. App. 3d
176, 187 [214 Cal. Rptr. 176]
The court may not issue a stay if the court is satisfied that issuance of the stay The court may not isste a stay if the court
would be against the public interest. Code Civ. Proc., § 1094.5, subd. (g). Neither 1b satisfied that issuance ofthe stay would
be against the public interest.
Code of Civil Procedure section 1094.5, subdivision (g), nor case law establishes addi-
tional factors to guide the court's discretion. Code Civ. Proc., § 1094.5, subd. (g);
Board of Medical Quality Assurance v. Superior Court (5th Dist. 1980) 114 Cal. App. 3d
272, 276 [170 Cal. Rptr. 468] (“[s]ubdivision (g) of section 1094.5 requires on/y that
before the issuance of a stay order ‘the court [be] satisfied that it is [not] against the
ublic interest[]’”) (italics added)

3. Posting a Bond or “Undertaking”
in Environmental Cases
Even where a petitioner has satisfied its burden to obtain a preliminary injunc- Even where a petitioner has satisfied its
tion or stay, a court may require the petitioner to post an “undertaking”? to protect burden to obtain a preliminary injunction
or stay, a court may require the petitioner
the respondent or real party in interest against any “damages” sustained “by reason of to post an undertaking.
the injunction, if the court finally decides that the applicant [petitioner] was not enti-
tled to the injunction.” Code Civ. Proc., § 529, subd. (undertakings required in
connection with preliminary injunctions), 4

a. Code of CivilProcedure Section 529. RN nr eer
ro requ under

the public

Era Onitits face, Code of Civil Procedure section 529 seems toparle the posting
an undertaking mandatory upon the issuance of a preliminary injunction. Code Civ.
‘oc., § 529 (“[o]n granting an injunction, the court or judge must require an under-
aking on the part of the applicant to the effect that the applicant will pay to the
arty enjoined any damages, not exceeding an amount to be specified, the party may
ustain by reason of the dajunction, ifthe court Enaly decides
© that the applicant was
ot entitled to the g inunotion[ h a nf ibl proacl ow would|
witl of disc ‘io
ond in’ nforce
tes Sea eg, "Puple ox wal Yan de Kamp v. Tahoe Regional Pisa ey (9th Cin,
1985) 766 F. 2d 1319 (People ex rel. Van de Kamp); Friends of the Earth, Inc. v. Brinegar
(9th Cir. 1975) 518 F. 2d 322; Natural Resources Defense Council, Inc. v. Morton (D.D.C

CHAPTER XVII Judicial Remedies 889
1971) 337 F. Supp. 167; Sierra Club v. Froehlke (S.D. Tex. 1973) 359 F. Supp. 1289:
State of Alabama ex rel. Baxley v. Corps of Engineers (N.D, Ala. 1976) 411 F. Supp. 1261
‘State of Alabama

wie nder these federal precedents, once a petitioner has shown a likelihood of
on the merits and an entitlement to injunctive relief, a federal judge may
quire only a minimal bond in recognition that a larger bond might be beyond the
eans of the public interest organization or other entity seeking enforcement of an
Te require such a petit

Case Info

Judge

Helen E. Williams Track Judge’s New Case

Case No.

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Document Filed Date

April 13, 2018

Case Filing Date

November 08, 2017

County

Parties

Board of Directors for the Santa Clara Valley Water District Respondent
California Department of Fish and Wildlife Respondent
Jason William Holder Attorney
Margaret Moore Sohagi Attorney
Santa Clara Valley Water District Real Party In Interest
Santa Clara Valley Water District Respondent
Silicon Valley Foundation For A Better Environment Petitioner
Paul Kibel Attorneys for Plaintiffs
Alison Krumbein Attorney
Nicole Gordon Attorney
Edward Pierce Attorney
Bradley Solomon Attorneys for Defendants

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Motion-Secondary: Silicon Valley Foundation For A Better Environment vs Santa Clara Valley Water District et al

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