The Second District Court of Appeal (Div. 6) has issued a November 22, 2022 Order modifying its opinion and denying rehearing in G.I. Industries v. City of Thousand Oaks (2022) ___ Cal.App.5th ___, without changing the judgment. That case expanded existing law under the Brown Act and CEQA by holding, on an issue of first impression, that a public agency must agendize a staff determination that a project is CEQA-exempt as an item of business for the meeting on project approval. (My October 31, 2022 post on the case can be found here.)

In denying rehearing, the Court made some relatively minor changes in the Opinion, which was issued in the procedural context of reversing a judgment of dismissal entered by the trial court after sustaining without leave the City’s demurrer to plaintiff’s Brown Act claim. The Court removed a statement that it was “undisputed” that the solid waste disposal franchise contract at issue qualifies as a CEQA “project,” apparently allowing the City to “fight another day” on that issue. It changed some language characterizing plaintiff’s writ petition that previously had stated the city council expressly approved a CEQA exemption by motion and vote; the Opinion now states council moved and voted on a finding of CEQA exemption, a subtle distinction, but one that may be significant in a context where CEQA prescribes no requirement that the lead agency’s decision-making body (as distinct from its staff) expressly make or approve an exemption finding. The Court deleted language stating the “City Council” was the lead agency, revising it to state the “City” was the lead agency, thus eliminating an erroneous conflation of the “lead agency” with its “decision making body.”

And, undoubtedly because of the demurrer stage at which it was decided, the Court also walked back some of its overreaching language on remedy; thus, it deleted the statement that plaintiff/appellant had “shown that it is at least entitled” to a remedy voiding the CEQA exemption determination, replacing it with language that plaintiff/appellant has “alleged sufficient facts that if proven would at least entitle it” to such a remedy. The Court similarly revised its statement that it need not determine whether plaintiff/appellant “is” entitled to any other relief to whether it “may be” so entitled.

Before the ink was dry on the Court’s modification and rehearing denial order, the California State Association of Counties (CSAC) and the County of Solano filed a (premature) request with the California Supreme Court to depublish the Court of Appeal’s opinion (before it had even become final). (Case No. S277439.) Any petition for review in this case is due to be filed by December 5, although (if it is not depublished) the Supreme Court could still act to order review on its own motion up until December 27, 2022. We will continue to watch with interest for any further developments in this case.