Opinion
2d Civil No. B226571
12-01-2011
PROTECT OUR VILLAGE, Plaintiff and Appellant, v. THE CITY OF SANTA BARBARA et al., Defendants and Respondents; OLIVE OIL & GAS, LP, et al., Real Parties in Interest and Respondents.
Law Office of Herb Fox, Herb Fox; Law Office of Babak Naficy, Babak Naficy; Anthony C. Fischer for Plaintiff and Appellant. Fell, Marking, Abkin, Montgomery, Granet & Raney, LLP, Craig S. Granet for Real Parties in Interest and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 1302894)
(Santa Barbara County)
The trial court denied a petition for writ of mandate challenging the City of Santa Barbara's approval of a mitigated negative declaration for development of a three-story mixed use residential/commercial building at the corner of Coast Village Road and Olive Mill Road in Montecito. Appellant contends that an environmental impact report is required because a fair argument can be made that the project will have significant environmental impacts on water supply, aesthetics and views. We affirm.
Facts and Procedural History
Real parties in interest and respondents Olive Oil & Gas, LP and John Price (collectively Price) propose to build a mixed use residential/commercial development on the site of an existing gas station at the corner of Coast Village Road and Olive Mill Road in Montecito. The project consists of a 17,270 square foot, three-story building with eight residential condominiums on the upper floors and approximately 4,800 square feet of commercial space on the ground floor. The project also provides 38 parking spaces, 29 of which are under ground.
The project site is 18,198 square feet. Historically, the site had two zoning designations. The northern portion of the site, containing about 7,150 square feet, was zoned R-2 (two family residential). The southern portion of the site, containing approximately 11,046 square feet, was zoned C-1 (limited commercial). The project requires a zone change for the R-2 portion of the site to C-1, tentative subdivision map approval, a coastal development permit, and development plan approval.
The project is consistent with the City's general plan, local coastal plan, and condominium ordinance. The C-1 zone permits mixed-use development. The proposed building is a maximum of 45-feet high, as permitted in the C-1 zone. Provisions are built into the C-1 zone to require a buffer between adjacent commercial and residential properties. The buffer is required to be one-half the height of the building, in this case, 17-1/2 feet. The project as approved by the City council permits two encroachments into setback requirements-- an encroachment on the north side of the building of 7 feet into the required 17-1/2-foot setback on the first floor only and an encroachment of 3-1/2 feet into the required 10-foot setback on Coast Village Road to permit a second floor covered balcony. A third modification permits a portion of the required open space to be above ground level.
The area adjacent to and west of the site on Coast Village Road, from Hot Springs Road to Olive Mill Road, is zoned C-1 and contains a mixture of one-, two-, three- and four-story commercial buildings. The Montecito Inn, a 2- and 3-story hotel, is located across the street from the project site on Coast Village Road. Properties to the north and east of the site are located in the County of Santa Barbara and are zoned 7-R-2 (two-family residential).
Administrative review of the proposed project began in November 2005. The City's architectural board of review (ABR) gave conceptual approval to the project at that time. The design of the project was modified based on recommendations made by the ABR and was presented to the City planning commission on February 16, 2006, for conceptual review and comment. An initial study was prepared on November 1, 2007, pursuant to the California Environmental Quality Act. (Pub. Res. Code, § 21000 et seq. [CEQA].) Based on the initial study, the City prepared a mitigated negative declaration (MND) and circulated it for review from November 12, through December 13, 2007. After several public hearings, the planning commission approved the final MND and the project as modified on March 20, 2008.
All statutory references are to the Public Resources Code unless otherwise stated.
The planning commission's approval was appealed to the City council. After additional public hearings, the City council denied the appeal and approved the MND and the project on July 15, 2008. On August 15, 2008, the City council adopted a resolution approving the MND and granting the requested rezoning, tentative subdivision map, coastal development permit and development plan approval. As pertinent to this appeal, the City council found, based on the record before it, including the initial study, revisions to the MND, public comments, and responses to public comments, that the project as modified will not have a significant effect on the environment.
With respect to modifications to setback requirements, the City council found: "[T]he modifications . . . would provide more flexibility in the design of the development, and would serve to break up the massing of the Project and provide visual corridors to the north of the site. . . . [T]he adjacent properties on Coast Village Road do not meet required setbacks and . . . the parcel immediately next door to the Project has a covered balcony that not only extends into the setback, but also encroaches into the public right-of-way. . . . [P]ortions of the overall Project development are not being fully developed to the required setback lines and additional common open space and private outdoor space beyond what is required is being provided by the Project; as a result, the Modifications needed for the Project would not cause overdevelopment of the site and would meet the overall purpose and intent of the Zoning Ordinance." The City council also found that the project will not have a significant adverse impact upon the neighborhood's aesthetics/character in that the size, bulk and scale of the development are compatible with the neighborhood, and the project will not have a significant unmitigated adverse impact on the City's water resources.
The project is subject to nine conditions, one of which is that design of the building be returned to the ABR for further review with instructions "to reduce the apparent bulk of the Project, with particular emphasis in seeing that the Project is compatible with its Olive Mill Road neighbors [and] to study the tower element of the Project and the relationship between the second floor and third floor setbacks as well as a possible landscape buffer between the Project and its neighbor to the north." Pursuant to the City's charter, the recommendation by the ABR may be appealed to the City council. (Santa Barbara City Charter, § 814.)
The project was subject to substantial public controversy throughout the administrative proceedings, mostly due to its location at the "gateway of Montecito" and its proximity to residential properties. Hundreds of people opposed the project while hundreds more supported it. The most controversial issues were water supply and the aesthetics of the building design, including its height, scale and bulk, compatibility with the neighborhood, and its impact on mountain views.
In a lengthy statement of decision, the trial court denied a petition for writ of mandate filed by Protect Our Village (POV) challenging approval of the project. The trial court concluded that the MND prepared for the project was appropriate because the record did not contain substantial evidence supporting a fair argument that the project would have any environmental effects that could not be mitigated to a level of insignificance. In this appeal, POV contends that the City erred in approving the MND instead of preparing an environmental impact report (EIR) because substantial evidence in the record supports a fair argument that the project may have a significant effect on water supply, mountain views and aesthetics.
DISCUSSION
I. Standard of Review
On appeal, we review the legality of the agency's action de novo. (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 479.) "The city's decision to issue a negative declaration . . . is reviewed for 'prejudicial abuse of discretion,' which 'is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.' [Citations.]" (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 171.)
II. EIR Requirement
"'[A] public agency pursuing or approving a project need not prepare an EIR unless the project may result in a "significant effect on the environment" [citations], defined as a "substantial, or potentially substantial, adverse change in the environment" [citation]. If the agency's initial study of a project produces substantial evidence supporting a fair argument the project may have significant adverse effects, the agency must (assuming the project is not exempt from CEQA) prepare an EIR. [Citations.]' [Citation.] If, on the other hand, '[t]here is no substantial evidence, in light of the whole record . . . that the project may have a significant effect on the environment,' the agency may adopt a negative declaration. [Citations.]" (Save the Plastic Bag Coalition v. City of Manhattan Beach, supra, 52 Cal.4th at p. 171, fns. omitted.)
Under the fair argument standard, a project may have a significant effect whenever there is a reasonable possibility that a significant effect will occur. (Save the Plastic Bag Coalition v. City of Manhattan Beach, supra, 52 Cal.4th at p. 172.) Substantial evidence, for purposes of the fair argument standard, includes "fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact." (§ 21080, subd. (e)(1).) Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts unrelated to physical impacts on the environment. (§ 21080, subd. (e)(2).)
III. Impact on Water Availability
POV asserts the record contains substantial evidence of a fair argument that the project may have a significant environmental impact on water supply that cannot be mitigated to a level of insignificance. We disagree.
The MND analyzed the impact of the project on water supplies based on a water assessment prepared by the Montecito Water District (District) in March 2007 and concluded that any impact would be less than significant. The MND states: "The proposed project receives water service from the Montecito Water District. The District's water supply comes from the following sources, with the actual share of each determined by availability and level of customer demand: Cachuma Reservoir and Tecolote Tunnel, Jameson Lake and Doulton Tunnel, groundwater, and State Water Project entitlement of 3,000 acre feet. A Certification of Water Service Availability was issued by the Montecito Water District on June 8, 2007, which stated that they are prepared to serve the project as proposed. Therefore, with the statement from Montecito Water District that they can and will serve the site, (subject to their ordinances in place at the time of the application) the increased water usage described below would not be considered a significant impact and thus the project would have adequate service.
"The existing development on the site demands 0.57 acre feet per year (AFY)[] of water and the proposed project is estimated to demand 1.98 AFY. The calculated water demand for the proposed project assumes that all available water conservation methods will be implemented, consistent with the applicable regulations in place at the time the building permits are issued. Therefore, while the change in water use would be a net increase of approximately 1.41 AFY, it would not result in a significant impact to the Montecito Water District's water supply." (Emphasis deleted.)
"Acre foot" is a unit of volume containing 43,560 cubic feet. It is defined by the volume of one acre of surface area to a depth of one foot.
POV challenges this conclusion for several reasons. First, it contends that the initial study contained an incorrect estimate of current water usage at the project site. However, the MND subsequently circulated for public review contained the correct figures. The City's initial mistake in this regard was not fatal to its approval of the MND. (See, e.g., Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1347-1348) [erroneous information in the initial study can be corrected by reference to other materials in the record].)
POV also contends that the 1.41 acre feet increase in water use is significant. It refers to a letter from the District to the City commenting on the initial study and stating that the District considered the increase in water use significant. However, that comment was in response to incorrect numbers contained in the initial study, not the corrected numbers in the MND. POV cites no evidence that the District considers the increase in water use, comparable to the amount of water used by a single-family residence, to be significant.
In addition, POV asserts that the District adopted a water limitation ordinance (WLO) on April 15, 2008, in response to a water shortage, and therefore, sufficient water for the project may not be available. This argument is without merit. The WLO exempts projects that were issued "can and will serve" letters before enactment of the ordinance. There is no evidence that the District has insufficient water for such projects, a fact that readily distinguishes it from the case relied on by POV, Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818.
Moreover, the WLO contains a plan to establish "an equitable methodology for restricting the availability of water for new service connections and expanded service to existing connections." Part of that methodology was described in a letter from the District to the City's planning department: "Due to water supply limitations affecting the District and increasing water demand, the new ordinance as proposed will limit the water supplied to an existing served property to its historical usage." Therefore, if a water shortage exists at the time of initiation of water service for the project, it will be limited to the existing development's historic water use until the water shortage ends. As the current usage would be maintained, no significant impact on water supplies would occur as a matter of law. (See §§ 21068, 21151, subd. (b); Save the Plastic Bag Coalition v. City of Manhattan Beach, supra, 52 Cal.4th at p. 173.)
We deny POV's request, filed September 7, 2011, to take judicial notice of matters outside the administrative record concerning events occurring subsequent to approval of the project.
POV's characterization of the can and will serve letter as "paper water" is inaccurate. The term "paper water" was coined to describe an agency's reliance on entitlements to water supplies that may or may not in fact exist. (See, e.g., Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, 908, fn. 5 ["The entitlements represent nothing more than hopes, expectations, water futures or, as the parties refer to them, 'paper water'"].) As discussed above, the District has adopted a methodology to ensure that some level of water will be available to those, such as Price, who have been issued can and will serve letters. Thus, the MND does not ignore or assume a solution to the problem of water supply to the project. Rather, it identifies specific sources available to serve the project. Such written verification of water availability is considered by the Legislature to be sufficient for residential and commercial projects much larger than the project we review here. (See Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 432-433 [discussing Gov. Code and Wat. Code provisions where written verification of water availability from appropriate agency is sufficient for purposes of CEQA].) IV. Aesthetics-Impact on Views
POV asserts that the proposed project will have a significant impact on views of the Santa Ynez Mountains. The MND analyzed the impact of the project on views and concluded that any impact would be less than significant. "The views of the Santa Ynez Mountains could be altered as viewed from the sidewalk on the southern side of Coast Village Road and as you drive north on Olive Mill Road. . . . The applicant prepared a view study that utilized photographic simulations to demonstrate the proposed project's effect on scenic views of the Santa Ynez Mountains. As viewed from the sidewalk on the southern side of Coast Village Road, the mid-range views of the Santa Ynez Mountains would be diminished slightly. However, given the mature vegetation both on the north and south side of the lot, as well as the short distance of the sidewalk, the impact would be minimal. The proposed project would not be visible from Highway 101, due to the difference in topography. There are not any public viewing areas (such as parks or public gathering spaces) or designated open space areas where the public would spend considerable time contemplating the view of significant scenic resources. There are no view impacts from or to the coastline due to topography, mature vegetation and existing structures.
"The visual change resulting from the proposed project would not substantially obstruct any important visual resources as viewed from public vantage points and would not be visible from Highway 101; therefore, the impacts to scenic views would be less than significant." (Emphasis deleted.)
A City staff report contained a further explanation for the conclusion that there would be no significant impacts on views: "In both the staff report and in the Initial Study, staff acknowledged that the project would reduce some views of the mountains. However, staff concluded that the potential visual impacts are not significant because the project is not within the vicinity of public gathering places, such as parks, beaches or plazas, which are usually considered public vantage points. Views exist along the sidewalk and streets adjacent to the project site in both the north-south axis and the east-west axis. Since the streets and sidewalks are paths of travel, the views open and close depending on where someone stands or walks. Furthermore, for safety reasons, streets are not considered primary viewing locations. With the Planning Commission's denial of the setback Modification along Olive Mill Road, a view corridor up the road toward the mountains is maintained on the property. However, dense vegetation on properties further up Olive Mill Road currently obscures these views."
The gravamen of POV's argument is that sidewalks, streets, bicycle paths--virtually anywhere the public is permitted to travel--is a public vantage point. City staff concluded that streets and sidewalks are not public vantage points for purposes of CEQA. (See Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 901 ["An agency may rely on the expertise of its planning staff in determining whether a project will not have a significant impact on the environment"].)
POV cites Committee to Save the Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168, for the proposition that "[c]ourts have also found that CEQA protects scenic views from public streets." The case does not support this statement. That case involved the issue of whether a proposed fence to be built on top of a historic granite wall is subject to a CEQA exemption for which not even an initial study is required. In holding that an initial study was required the court commented: "[T]he City conceded in its findings that a fence higher than 42 inches would impair the scenic view of the granite wall from nearby streets . . . ." (Id. at p. 1187.) The concession of a party recited in a decision does not constitute a holding by the court.
POV's reliance on Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, is similarly misplaced. POV states: "[C]ourts have found that the impairment of scenic views from locations as obscure as the corner of a parking lot can constitute a potentially significant impact that requires an EIR." Quail Botanical involved a proposal for a 12.6-acre subdivision with 40 residences to be developed on existing greenhouse and farm land. Evidence in the record showed that the development would impair views of the ocean from a public park. Only a minor reference discussed obstruction of view from a parking lot adjacent to the park. (Id. at pp. 1605-1606.) No evidence was presented here that the project would impair views from comparable areas.
Similarly unpersuasive is POV's citation to La Costa Beach Homeowners' Assn. v. California Coastal Com. (2002) 101 Cal.App.4th 804, Douda v. California Coastal Com'n (2008) 159 Cal.App.4th 1181, and Schneider v. California Coastal Com. (2006) 140 Cal.App.4th 1339. These cases involved interpretation of section 30251, which requires development in the coastal zone to be "sited and designed to protect views to and along the ocean and scenic coastal areas." Here, no ocean views are involved. Similarly, POV's statement that "[t]o hold that public views from streets and sidewalks are not protected, in fact, would make an oxymoron out of the state's scenic highway program" has no relevance here. Undisputed evidence in the record establishes that the proposed project will not be seen from Highway 101, the only designated scenic highway in the vicinity of the project.
For the first time on appeal, POV raises the issue that the project may block views from nearby bicycle paths. We do not consider this argument because the issue was not raised in the administrative hearing. (See, e.g., Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197 [doctrine of exhaustion of administrative remedies precludes judicial review of factual issues not presented at administrative level].) The best POV can do is to point to brief mentions of bicycle paths in discussions of the project's traffic impacts. No one during the proceedings raised the issue of public views from bicycle paths. Therefore, administrative remedies were not exhausted and we do not consider it. (See, e.g., Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1140 ["objections must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them. Otherwise, the purpose of the exhaustion doctrine would not be served, since the courts would be called upon the step outside their limited role of reviewing the decision-making process of the administrative agency"].)
The record contains substantial evidence that, due to the broad expanse of mountain views from the Montecito area, the vast majority of the visual field will be retained. As such, the project will not substantially obstruct scenic views and the impacts on views will be less than significant.
V. Aesthetics-Neighborhood Compatibility
One of the state's environmental policies is to "'[t]ake all action necessary to provide the people of this state with . . . enjoyment of aesthetic, natural, scenic, and historic environmental qualities.'" (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 936-937, quoting § 21001, subd. (b).) The CEQA Guidelinesenvironmental checklist form asks if the project would '"[s]ubstantially degrade the existing visual character or quality of the site and its surroundings.'" (Guidelines, appen. G, § I, subd. (c).) POV asserts the size, height and bulk of the building is too big for the lot and is incompatible with the surrounding neighborhood.
(Cal. Code Regs., tit. 14, § 15000 et seq.)
CEQA requires an agency to consider the overall aesthetic impact that a project might have on the surrounding environment. (Ocean View Estates Homeowners Ass'n, Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 402.) Consideration of the overall aesthetic impact of a project "by its very nature is subjective." (Ibid.) This consideration is not the special purview of experts. As a result, "[p]ersonal observations on these nontechnical issues can constitute substantial evidence. [Citation.]" (Ibid.) However, "[t]he possibility of significant adverse environmental impact is not raised simply because of individualized complaints regarding the aesthetic merit of a project. [Citation.] 'Under CEQA, the question is whether a project will affect the environment of persons in general, not whether a project will affect particular persons.'" (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 376.)
The burden is on appellant to demonstrate by citation to the record the existence of substantial evidence. (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 498-499.) "The existence of public controversy over the environmental effects of a project shall not require preparation of an environmental impact report if there is no substantial evidence in light of the whole record before the lead agency that the project may have a significant effect on the environment." (§ 21082.2, subd. (b).) "Conflicting assertions do not ipso facto give rise to substantial 'fair argument' evidence." (Citizen Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 755.) On review, the standard "is not whether any argument can be made that a project might have a significant environmental impact, but rather whether such an argument can fairly be made." (Friends of "B" Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1003.)
With respect to obstruction of views, the MND states: "The project site is located in an urban environment in the Coast Village Road commercial corridor of the City of Santa Barbara. It is currently developed with a gas service station and is located at the eastern end of the Coast Village Road, which is characterized with commercial development and high density residential development. The development, as proposed, would be a three story structure with underground parking. It would be similar in height and architecture as the Olive Mill Inn, to the south of the project site across Coast Village Road. In this area of Coast Village Road, from the intersection of Coast Village Circle to Olive Mill Road, much of the architecture is Spanish style. To the west of Coast Village Circle the style of development becomes a mix of modern styles of 1970's buildings, a few buildings from the 1930's and approximately four converted gas station buildings.
"The City's Master Environmental Assessment (MEA) maps do not identify the parcel as being located in an area of visual sensitivity. The main visual resource of this area is along Coast Village Road, with its landscaped medians, according to the Local Coastal Plan Visual Resources map. The closest beach area is approximately 0.3 miles to the south and Highway 101, a designated scenic highway located to the east and south of the project, is below the ground level of the project site. From the public sidewalk on the south side of Coast Village Road, there is a small visual corridor of the Santa Ynez Mountains."
An agency has the discretion to determine whether to classify an impact as "significant" depending on the nature of the area affected. Thus, an agency must necessarily make a policy decision in distinguishing between substantial and insubstantial environmental impacts based, in part, on the setting. (Guidelines, § 15064, subd. (b); Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492-493.)
This is not an environment where the view of the Santa Ynez Mountains is unobstructed. Undisputed evidence in the record shows that the view of the San Ynez Mountains in the vicinity is already obstructed by buildings and vegetation and that some obstruction will occur even with a two-story structure. Thus the proposed project, even at three stories, will not significantly detract from or disturb existing mountain views. (See, e.g., McAllister v. California Coastal Com'n (2008) 169 Cal.App.4th 912, 956.)
The project is consistent with existing C-1 zoning and other land use regulations. Assuming for purposes of the issues of aesthetics under CEQA that the height, size and bulk and setbacks are not consistent with requirements of the City code, the record demonstrates any alleged deviations from the plan's requirements are minor and do not rise to the level of a significant environmental impact. The diagrams, maps, photographs of views from different vantage points, and story poles do not support a conclusion that substantial evidence has been presented to give rise to a fair argument of significant environmental impacts. We do not discount the opinions of the neighbors and citizens organizations who oppose the project. However, CEQA permits the setting or context of a proposed project to be taken into account. The opponents wish to characterize the setting of the project as "semi-rural" or "village," while the undisputed evidence is that the project is adjacent to commercial uses and is similar in size and style to other buildings in the area. As aptly stated in Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 592: "While there may be situations where it is unclear whether an aesthetic impact like the one alleged here arises in a 'particularly sensitive' context (Guidelines, § 15300.2) where it could be considered environmentally significant, this case does not test that boundary. The aesthetic difference between a four-story and a three-story building on a commercial lot on a major thoroughfare in a developed urban area is not a significant environmental impact, even under the fair argument standard."
POV contends that the City council's direction to return the project to the ABR for further design review after approving the project violates CEQA because this direction amounts to reliance on impermissible future mitigation measures. We disagree. Future review of the design of the building is permissible as a condition of approval of the project. (Guidelines, § 15075, subd. (b)(6).) Moreover, where, as here, the City has determined that all impacts of the project have been reduced to insignificance, the City can commit itself to eventually devising measures that will satisfy specific performance criteria articulated at the time of project approval. (Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1028-1029.)
Conclusion
We have reviewed the administrative record, and like the trial court, conclude that there is no substantial evidence to support a fair argument that the project may have a significant effect on water supply, views or aesthetics.
The judgment is affirmed. Real parties in interest and respondents Olive Oil & Gas and John Price shall recover costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
COFFEE, J.
James W. Brown, Judge
Superior Court County of Santa Barbara
Law Office of Herb Fox, Herb Fox; Law Office of Babak Naficy, Babak Naficy; Anthony C. Fischer for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
Fell, Marking, Abkin, Montgomery, Granet & Raney, LLP, Craig S. Granet for Real Parties in Interest and Respondents.