Santa Clarita Organization for Planning and the Environment v. Castaic Lake Water Agency

SANTA CLARITA ORGANIZATION FOR PLANNING AND THE ENVIRONMENT,

Plaintiff and Appellant,

v.

CASTAIC LAKE WATER AGENCY et al.,

Defendants and Respondents.

No. B264284

(Los Angeles County

Super. Ct. No. BS141673)

California Courts of Appeal

Second Appellate District

Division Two

Filed August 16, 2016

ORDER MODIFYING OPINION  

AND DENYING REHEARING

NO CHANGE IN JUDGMENT

THE COURT:^*

It is ordered that the opinion filed herein on July 28, 2016, be modified as follows:

1.  On page 15, footnote 4 is deleted, which will require renumbering of all subsequent footnotes.

2.  On page 15, the first full paragraph, line 3, the word ?audiotape? is changed to ?videotapes? so the sentence reads:

Before undertaking substantial evidence review, we first address SCOPE?s argument that our analysis should include four items of evidence that the trial     court refused to consider---namely, the raw videotapes and uncertified transcripts, prepared by SCOPE members, from the Agency?s board?s December 12 and December 19 meetings.

3.  The paragraph beginning at the bottom of page 16 with ?SCOPE contends? and ending on page 17 with ?(Outfitter Properties, at p. 251.)? is modified to read as follows:

SCOPE offers three reasons why, in its view, the general rule against the consideration of extra-record evidence does not apply here.  SCOPE argues that the general rule does not apply when a party is challenging an agency?s action as ultra vires (that is, beyond its statutory authority), but the law is to the contrary because courts will limit themselves to record evidence even when confronted with challenges that an agency ?acting in its quasi-legislative capacity has exceeded its authority.?  (Shapell, supra, 1 Cal.App.4th at p. 233.)  SCOPE next argues that Outfitter Properties, supra, 207 Cal.App.4th 237 supports its position, but the exceptions detailed above in Outfitter Properties do not make ?extra- record evidence . . . admissible to contradict evidence upon which the administrative agency relied in making its quasi-legislative decision.?  (Id. at p. 251.)  SCOPE lastly asserts for the first time at oral argument on appeal that it is attacking not only the Agency?s initial acquisition of Valencia, but also its ongoing operation of Valencia as its alter ego.  SCOPE urges that the latter challenge is not subject to the general rule against resort to extra-record evidence.  Even if we assume SCOPE is correct, ignore that SCOPE has forfeited this argument by waiting until oral argument on appeal to raise it (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 232, fn. 6), and overlook that SCOPE?s operative complaint primarily attacks the Agency?s acquisition of Valencia, SCOPE?s newly minted argument does it little good because the trial court had an independent basis for excluding the extra-record evidence, as we discuss next.

4.  On page 17, after the newly-inserted text described in modification number 3 above, footnote 4 should be inserted after the final line ?as we discuss next.?  The text of footnote 4 should read:

To the extent that SCOPE at oral argument on appeal requested a reversal and remand so that it can propound discovery and obtain new extra-record evidence to prove that the Agency is now operating Valencia as its alter ego, we deny that request as untimely and as wholly inconsistent with an earlier stipulation not to ?propound any further request for discovery in this matter.?  SCOPE asserts that it had tactical reasons for entering into this stipulation, but its motives do not negate the effect of its acts.

5.  On page 17, first full paragraph, line 2, the words ?audio tapes? are changed to ?videotapes? so the sentence reads:

     Second, even if the trial court could have considered this extra-record evidence, the court acted within its discretion in deciding not to admit the incomplete    videotapes and their uncertified transcripts.

6.  On page 17, first full paragraph, line 10, the words ?audio tapes? are changed to ?videotapes? so the sentence reads:

In this case, the court had evidence that at least one of the videotapes was incomplete, and that both transcripts were uncertified.

7.  On page 17, second full paragraph, line 4, the word ?audio? is changed to ?video? so the sentence reads:

SCOPE argues that the Agency did not comply with its discovery obligations before the trial court, did not properly respond to a Public Records Act request (Gov. Code, § 6250 et seq.), and did not inform SCOPE that its board?s secretary regularly video taped meetings to use in preparing official minutes.

     There is no change in the judgment.

     Appellant?s petition for rehearing is denied.

*     ASHMANN-GERST, Acting P.J., CHAVEZ, J., HOFFSTADT, J.