Gulli v. San Joaquin Area Flood Control Agency

NOT TO BE PUBLISHED

Super. Ct. No. STKCVUWM20150011880

MURRAY, J.

Plaintiff Dominick Gulli's company, Green Mountain Engineering, was one of two companies to submit proposals to build a flood gate to address potential flooding in Stockton. Gulli's proposal, which claimed a flood gate was unnecessary, was not selected by defendant San Joaquin Area Flood Control Agency (Agency).^[1] After the Agency certified a final Environmental Impact Report (EIR) and approved the selected

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project, Gulli petitioned for a writ of mandate, seeking, among other things, to vacate the EIR, suspend all activity, and require the Agency to contract with him. The trial court ultimately denied Gulli's petition.

On appeal, Gulli contends: (1) the administrative record does not conform to Public Resources Code section 21167.6^[2]; (2) the selected project is not needed for flood protection; and (3) the EIR failed to inform the public and elected officials of various environmental consequences. As will be seen, many of Gulli's contentions are grounded on his belief that his solution is superior, as well as his expert disagreement with the Agency's determinations. Gulli argues on appeal that the flood control issue could be best addressed "by simply buying diesel pumps and piping such that if a 100-year storm rains in Stockton and the power goes out the pumps can evacuate the water into the river." As we shall discuss, the law is clear that disagreement amongst experts does not make an EIR inadequate.

After oral argument and the opinion in this case was filed, Gulli filed a motion to recuse the Hon. Ronald Robie, who was on the original panel. Justice Robie honored the request and recused himself. Subsequently, a new panel was constituted and oral argument was again heard.

Having considered the matters raised in the original briefing and those relevant to that briefing in the oral argument, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Flood Hazard & the Selected Project

In 2008, the Federal Emergency Management Agency (FEMA), revoked accreditation of levees surrounding the Smith Canal in Stockton. The surrounding area

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became a "special flood hazard area," an area expected to be inundated by a 100-year flood. The area includes 5, 000 properties and 15, 000 residents.

To address the flood risk and reacquire FEMA accreditation, the Agency evaluated several options, ultimately concluding the most cost-effective alternative was constructing a fixed flood wall and gate structure at the mouth of the Smith Canal.

In July 2013, with the Agency's authorization, proposals to build the Smith Canal Gate were sought from engineering firms. Two firms responded with proposals; one was Gulli's company, Green Mountain Engineering. In the proposal, Gulli suggested an alternative to a gate, explaining: "Normally [Green Mountain] would not pursue a [Statement of Qualification/Statement of Proposal] such as this since it should likely be awarded to the Engineers that performed the initial engineering, prepared the initial planning documents and obtained the funding. In this situation [Gulli] feels so strongly that the proposed gate is not a viable solution to the flood control issue . . . that [Green Mountain] is herewith submitting a proposal that will address the issues requested in the [Statements of Qualifications] as well as all of the potential solutions based on cost, schedule and [Urban Levee Design Criteria] compliance."

The other firm was unanimously selected, and the Agency entered into a consultant contract with it.

The CEQA Process

In June 2014, a notice of preparation of an EIR issued. A draft EIR circulated the following year (DEIR). The DEIR noted that several measures and alternatives had been considered but were not carried forward - including four alternatives proposed by Green Mountain. The Agency determined that none of the Green Mountain alternatives met the project objectives and were, therefore, not analyzed further.

After the DEIR issued, Gulli made public comments and submitted letters urging consideration of the Green Mountain proposals. Gulli made further public comments at

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an Agency board meeting: "I believe there [are] much better solutions to this problem . . . ."

In late 2015, the final EIR circulated. It addressed the four alternatives proposed by Green Mountain and concluded none of them met the project objectives and were therefore not feasible. On November 19, 2015, the Agency certified the final EIR and the project was approved.

The Writ Petition

A month later, Gulli, acting in pro per, petitioned for a writ of mandate.^[3] In his petition, he argued the selected gate proposal would damage the environment more than other possible solutions. He sought to, inter alia, vacate the EIR, suspend all activity, require the Agency to "thoroughly and completely review alternatives to rehabilitate the levees," and require that the Agency contract with him.

After a series of successful demurrers to certain causes of action, Gulli filed his third amended petition. In it, Gulli requested more circumscribed relief, limiting his causes of actions to CEQA claims.

Thereafter, the parties submitted briefs on the petition for writ of mandate. Gulli argued the Agency (1) restrained and failed to address public comments; (2) piecemealed the environmental review; (3) failed to recirculate the EIR after new information was discovered; (4) filed a false "notice of intent" and statement of overriding "circumstances"; (5) failed to notify interested parties; and improperly evaluated; (6) hydrodynamic and water quality impacts; (7) project alternatives; (8) visual impact; (9) flooding impacts; and (10) navigational safety hazards.

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The Trial Court's Denial of the Petition

The trial court denied the writ petition in a 31-page order.^[4] It noted that, under section 21168.5, its inquiry is limited to whether a prejudicial abuse of discretion exits - which is shown where the Agency has not proceeded in a manner required by law or where its determination is not supported by substantial evidence.

The trial court noted that Gulli's challenge was primarily that the Agency's determination was not supported by substantial evidence. As such, Gulli bore the burden of demonstrating that the studies on which the EIR is based are"' "clearly inadequate or unsupported."' "^[5] To do so, Gulli must lay out the evidence favorable to the other side and show why it is lacking. And, under CEQA guidelines, disagreements among experts do not make an EIR lacking.

The trial court found Gulli's arguments centered on a proposed alternative (upgrade a pumping station) that was "never raised or discussed during the CEQA process. . . . Insofar as this now appears to be the basis of the challenge to the Project, those arguments are barred." The court went on to explain that even if Gulli's current theories and opinion had been presented to the Agency for consideration, he would not prevail because a disagreement among experts does not render an EIR inadequate. The court further noted that rather than laying out evidence favorable to the other side and showing why it was lacking, as he was required to do, Gulli had simply concluded the evidence was insufficient. This was fatal to the challenge.

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The trial court also found no merit in Gulli's other contentions. In doing so, it noted the Agency had properly considered hydrodynamic impacts, project alternatives, visual impact, flooding impacts, and navigational safety hazards - and Gulli's differing opinion did not suffice for a successful challenge.

DISCUSSION

On appeal, Gulli has opted to proceed in pro per, as he did before the trial court. Acting as his own attorney, he has filed appellate briefs that are difficult to follow and replete with procedural violations. We note that pro per litigants are required to follow the rules of appellate procedure; they are treated like any other party and receive no greater consideration. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)

I. Gulli's Code of Civil Procedure section 909 Request

Before the argument section of his opening brief, Gulli cites to Code of Civil Procedure section 909 (section 909) and asks that this court consider "additional evidence of other facts occurring prior to the decision of the appeal." In support, he argues: "1. The CEQA process was approved prematurely as . . . the [Agency] did not have enough information before them to make the proper decisions; [¶] 2. The record is incomplete as described in the pleadings; and [¶] 3. There is substantial additional evidence since the approval of the EIR . . . . The evidence also proves that the conclusions reached to approve the EIR were not based on substantial evidence." We deny the request.

Assuming that section 909 applies to challenge an agency's CEQA determinations, ^[6] that provision permits appellate courts to take additional evidence only

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in exceptional circumstances. (City of Petaluma v. Cohen (2015) 238 Cal.App.4th 1430, 1438 fn.7.)

Here, no such exceptional circumstances appear. Gulli broadly asserts that the record is incomplete, that substantial additional evidence exists, and that evidence proves the EIR was not based on substantial evidence. But his claim is without support. Indeed, Gulli fails to specify what additional evidence or documents he wants us to consider. He makes only vague reference to the record being "incomplete as described in the pleadings." To the extent he is attempting to incorporate by reference trial court documents, it is inappropriate. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295 fn. 20 (Soukup), citing Colores v. Board of...