Today's IV, Inc. v. L. A. Cnty. Metro. Transp. Auth.

83 Cal.App.5th 1137

300 Cal.Rptr.3d 61

TODAY'S IV, INC., Plaintiff and Appellant,

v.LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY et al., Defendants and Respondents.

B306197

Court of Appeal, Second District, Division 8, California.

Filed October 5, 2022

Putterman Yu Wang, Donald J. Putterman, George E. Chikovani ; Law Office of Christopher Sutton, Christopher Sutton; Vedder Price, Michelle L. Landry ; Esner, Chang & Boyer, Stuart B. Esner, and Kathleen J. Becket for Plaintiff and Appellant.

Mary C. Wickham, County Counsel, Charles M. Safer, Assistant County Counsel, Ronald W. Stamm, Deputy County Counsel; BDG Law Group, Gregory M. Bergman, Richard A. Fond, Matthew R. Hicks, Jason J. Barbato ; Remy Moose Manley and Tiffany K. Wright for Defendant and Respondent Los Angeles County Metropolitan Transportation Authority.

Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson, and Kristin M. Tannler for Defendant and Respondent Regional Connector Constructors.

STRATTON, P. J.

Appellant Today's IV filed a civil complaint against respondents Los Angeles County Metropolitan Transportation Authority and Regional Connector Constructors for their "unreasonable" construction of an underground subway line in downtown Los Angeles, which affected the Westin Bonaventure Hotel and Suites (the Bonaventure), owned by Today's IV. A portion of the construction runs under Flower Street, between 4th and 5th Streets, where the Bonaventure is located.

Today's IV alleged claims for nuisance and inverse condemnation due to 1) respondents’ use of the cut-and-cover construction method instead of the tunnel boring machine method; 2) construction work during nights and weekends, which was particularly harmful to the Bonaventure's operation as a hotel; 3) violation of certain noise limits; and 4) interference with access to the Bonaventure. Today's IV alleged lost contracts, including a $3.3 million airline contract, and loss of business. It requested compensatory and punitive damages from respondents.

The trial court found no liability and entered judgment in favor of respondents. Today's IV appealed from the May 15, 2020 judgment in favor of Los Angeles County Metropolitan Transportation Authority and the May 15, 2020 judgment in favor of Regional Connector Constructors.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Appellant Today's IV, Inc. (Today's IV) owns and operates the Westin Bonaventure Hotel and Suites (the Bonaventure) located in downtown Los Angeles. The Bonaventure includes 1,354 rooms for hotel guests, 35 meeting rooms for conferences and events, restaurants, and a revolving lounge providing 360-degree views of Los Angeles. The Bonaventure occupies the entire city block between Flower and Figueroa Streets and is bounded on the north and south by 4th Street and 5th Street, respectively. The only access to the Bonaventure's parking garage and loading dock are via Flower Street—which is a one-way southbound street with five to six lanes. The Bonaventure's main guest/invitee drop-off and pick-up point is on Flower Street as well; there is limited guest access from Figueroa Street.

The City National Plaza and Towers (CNP), consisting of two office buildings, a pedestrian plaza, and a subterranean garage, occupies the city block between Flower and Figueroa Streets, and is bounded on the north and south by 5th and 4th Streets. CNP has two entrances/exits from its parking garage. FSP-South Flower Street Associates, LLC (FSP) has owned CNP, as well as its J-2 garage, since October 1, 2013.

The Los Angeles County Metropolitan Transportation Authority (Metro) is a local public transportation agency responsible for planning, building, and operating public transit, rail, and other transportation systems within Los Angeles County.

One such public transit infrastructure project undertaken by Metro is the Regional Connector Transit Project (the Project), which—when completed—will directly link the tracks of three Metro rail lines—Metro Gold Line, Metro Blue Line, and Metro Expo Line. The rail connector will run from the 7th Street/Metro Center Station (the terminus of the Metro Blue Line and Metro Expo Line) located at 7th and Figueroa Streets, to the Metro Gold Line near the Little Tokyo/Arts District Station at 1st and Alameda Streets. The Project, when completed, will allow continuous train operations between Long Beach and Montclair and from East Los Angeles and the San Gabriel Valley to Santa Monica without having to transfer subway lines.

Metro selected Regional Connector Constructors (RCC) as the general contractor to build the Project. RCC is a joint venture consisting of Skanska USA Civil West California District, Inc. (Skanska) and Traylor Bros., Inc.

The Project includes construction of a 1.9-mile tunnel to connect the underground subway/public transit system. It also includes three new underground stations in downtown Los Angeles. A portion of the Project runs along and under Flower Street, including between 4th and 5th Streets—exactly where the Bonaventure is located. Plus, vehicle access into the Bonaventure's underground parking garage is available only by means of a single driveway from Flower Street. Thus, the Bonaventure was bound to be affected by construction of the Project, and indeed, the underlying action by appellant Today's IV against respondents Metro and RCC¹ arises from their construction of the Project and its effect on the Bonaventure.

B. Environmental Impact Report/Study

The Project resulted from nearly 20 years of planning and environmental review. According to a "purpose and need report" prepared for Metro, the Project area is "a major population and employment center for the Los Angeles region, served by extremely congested road networks that will further deteriorate with the projected population growth of 31 percent and employment growth of seven percent ... by 2035. The anticipated growth and increase in transit routes to the area will create more crowding, more delays, and longer travel times for riders." The Project would not only "improve the region's public transit service and mobility" but also would allow for "greater accessibility while serving population and employment growth in downtown Los Angeles." The Project was "planned with the goal of improving travel times, reducing transfers, reducing traffic congestion, improving air quality, and creating a sustainable light rail transit system that serves people throughout the region as well as in downtown Los Angeles."

In January 2009, Metro completed "an Alternatives Analysis" that evaluated transit mode and alignment alternatives for the Project. As a result, Metro culled over 30 light rail alternatives to two options.

On September 3, 2010, Metro published a draft "environmental impact report/environmental impact study" (EIR) for the Project for public review and comment. Metro held two public hearings to receive written and oral testimony from the general public on the draft EIR. The draft EIR contemplated constructing the subway by using the cut-and-cover technique on Flower Street immediately facing the Bonaventure's east exterior. The draft EIR also included a third light rail alternative in response to community input.

On July 22, 2011, a supplemental EIR was circulated for public review and comment. Based on comments received and input from community meetings, the Project's design was refined to address environmental impacts.

Metro issued (but did not yet approve) the final EIR in January 2012. Metro held meetings with the Flower Street Business District stakeholders, a group that included Today's IV (as owner of the Bonaventure), FSP (as owner of CNP and J-2 garage), and other landowners or those with commercial interests in the Project area on Flower Street, to discuss all issues related to the construction on Flower Street. Stakeholder meetings held on February 24 and 28, and on March 5 and 9, 2012, included discussions about Metro's decision not to use tunnel boring machine construction on that part of Flower Street. Today's IV attended those meetings.

On April 26, 2012, Metro's Board of Directors (Board) approved the Project and certified the Project's final EIR. The final EIR states it complies with the National Environmental Policy Act (NEPA) and the California Environmental Quality Act ( Cal. Code Regs., tit. 14, § 15000 et seq. (CEQA)). The final EIR "defines the alternatives studied and describes each alternative's associated potential transportation and environmental impacts, operating and maintenance and capital costs, and potential funding sources." Potential areas of impact included transit, traffic, parking, land use/neighborhoods, visual quality, air quality, climate change, noise and vibration, geology, exposure to hazardous substances, safety and construction impacts, and "other CEQA determinations."

Chapter 1 of the final EIR presents "the purpose and need for transportation investments" in the Project area. The purpose is to "improve transit travel time and provide more reliable transit service." The Project would not only "improve the region's public transit service and mobility" but also would allow for "greater accessibility while serving population and employment growth in downtown Los Angeles." Chapter 2 summarizes "alternatives considered, including physical features and operating characteristics." Chapter 3 summarizes transportation benefits and impacts of each alternative.

Chapter 4 discusses environmental factors, impacts, mitigation, and specifically, analysis of potential noise and vibration impacts during construction based on applicable standards. The EIR specified that the "noise impact analysis for operation of this project is based on criteria defined in the [Federal Transit Administration (FTA)] Transit Noise and Vibration Impact Assessment" dated May 2006. Some land use types are more sensitive to noise than others; the FTA noise impact criteria classify sensitive land uses into three...