Today's IV, Inc. v. Fed. Transit Admin.

Full title: Today's IV, Inc. v. Federal Transit Administration, et al.

Court: UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Date published: Mar 29, 2017

Case No. LA CV13-00378 JAK (PLAx) (C.D. Cal. Mar. 29, 2017)

Opinion

Case No. LA CV13-00378 JAK (PLAx)

03-29-2017

Today's IV, Inc. v. Federal Transit Administration, et al.

The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE

CIVIL MINUTES - GENERAL

Present: The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE Andrea Keifer
Deputy Clerk Not Reported
Court Reporter / Recorder Attorneys Present for Plaintiffs: Not Present Attorneys Present for Defendants: Not Present Proceedings: (IN CHAMBERS) ORDER RE PLAINTIFF'S MOTION FOR AN ORDER TO SHOW CAUSE WHY GIRISH ROY, THE LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY AND REMY MOOSE MANLEY LLP SHOULD NOT BE HELD IN CONTEMPT OF COURT, OR IN THE ALTERNATIVE, FOR AN AWARD OF SANCTIONS AND A REFERRAL TO THE UNITED STATES ATTORNEY (DKT. 200)

I. Introduction

In January 2013, Today's IV, Inc., doing business as Westin Bonaventure Hotel and Suites ("Plaintiff"), brought this action against several defendants ("Defendants"), including the Los Angeles County Metropolitan Transportation Authority ("Metro"). Plaintiff challenged the approval by the Federal Transit Administration ("FTA") of a Regional Connector Transit Corridor Project ("Project") for the construction of a new subway line in the City of Los Angeles. Dkt. 1. Plaintiff sought declaratory and injunctive relief to limit the actions that could be taken as a result of that approval. On May 29, 2014, Plaintiff's motion for summary judgment was granted as to the claim that the Final Environmental Impact Statement ("FEIS") issued by certain Defendants was deficient. Dkt. 146 at 19-25. That Order concluded that the FEIS failed adequately to explain why open-face tunneling alternatives had been rejected for construction of the subway line under South Flower Street between 4^th and 7^th Streets (the "Lower Flower Segment"). As a result, it concluded that the FEIS did not comply with the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. Id. Based on this same violation, on September 12, 2014, Plaintiff's Motion for Injunctive Relief was granted in part. Dkt. 157 at 31. Defendants were enjoined from commencing "Cut and Cover" ("C/C") construction on the Lower Flower Segment until completion of a supplemental NEPA analysis. Id. On December 17, 2015, Defendants filed notice that a supplemental NEPA analysis had been completed, and a Final Supplemental Environmental Impact Statement ("FSEIS") had been issued. Dkt. 180. Defendants argued that, as a result, the injunction had been dissolved as a matter of law. Id. at 3-4. Plaintiff disputed this assertion. Dkt. 181. In light of this disagreement, the FTA and Metro filed separate but substantially similar motions to dissolve the injunction ("Motion to Dissolve"). Dkt. 188-89. In support of the Reply Brief filed in connection with Metro's Motion to Dissolve, Metro presented the Declaration of Girish Roy ("Roy Decl."). Dkt. 192-1. Following a hearing, the Motions to Dissolve were granted. Dkt. 196. Plaintiffs contend that the Roy Declaration contains false statements. Consequently, they filed the present Motion for an Order to Show Cause Why Girish Roy, The Los Angeles County Metropolitan Transportation Authority And Remy Moose Manley LLP Should Not Be Held In Contempt of Court, Or In The Alternative, For An Award Of Sanctions And A Referral To The United States Attorney ("Motion").¹ Dkt. 200. Defendants opposed ("Opposition," (Dkt. 206)), and Plaintiff replied ("Reply," (Dkt. 209)). A hearing on the Motion was held on March 20, 2017, and the matter was taken under submission. For the reasons stated in this Order, the Motion is DENIED.

1 Remy Moose Manley LLP is representing both Girish Roy and itself in conjunction with this Motion. At the hearing, Plaintiff noted that there was a potential conflict of interest between Roy and counsel. For example, an issue could be presented if Roy were to seek to pursue an advice of counsel defense as part of a determination of the merits of the potential claim, and there had been no viable waiver of conflicts. No motion to disqualify counsel has been filed. Further, because this Order disposes of the Motion, there is no need to address this issue.

II. Factual Background

A. Dispute and Injunction On September 12, 2014, a "narrow injunction with respect to certain aspects of Project construction" was issued for the period during which the supplemental NEPA analysis would be completed. Dkt. 157 at 26. Thus, the Injunction Order concluded that "an injunction of C/C construction along the Lower Flower Segment is warranted." Id. It is notable that the Injunction Order also concluded that Plaintiff had not met its burden to show that it was also appropriate to enjoin utility relocation along the Lower Flower Segment. Id. Following the issuance of the Injunction Order, the final judgment was entered. It provided that "[u]nless and until FTA completes the Supplemental NEPA analysis, Defendants and their agents, contractors, subcontractors and representatives are ENJOINED from commencing any cut and cover construction along the Lower Flower Segment of the Project." Dkt. 161 at 2 (emphasis in original). Defendants issued a Final Supplemental Environmental Impact Statement ("FSEIS") on December 16, 2015. Dkt. 188-1 at 13; FSEIS, Dkt. 186. The FSEIS states that it "is intended to provide more information on the tunnel construction alternatives on Flower Street that were withdrawn from consideration, specifically Open-Face Shield and Sequential Excavation Method (SEM) tunneling for the Flower Street portion of the Regional Connector project alignment . . . ." FSEIS, Dkt. 186-1 at 14. To address these alternative tunneling options, the FSEIS reviewed two alternative tunneling options:

Alternative A considers an open-face tunnel shield to construct a portion of the tunnels from 4^th Street south to approximately 5^th [S]treet followed by SEM construction of the balance of the tunnels and double crossover to the existing 7^th/Street Metro Center Station.

Alternative B considers extending EPBM tunneling on a lower alignment to avoid tie-backs from 4^th Street south to approximately 5^th Street followed by SEM construction of the balance of the tunnels and double crossover to the existing 7^th/Street Metro Center Station.

Id. at 31. The FSEIS concludes that neither Alternative A nor B would be as effective "in meeting purpose and need" of the overall Project, and that Alternatives A and B "would impact Metro operations, would pose construction and safety risks, and would result in environmental impacts." FSEIS, Dkt. 186-1 at 17. Specifically, the FSEIS concludes that Alternatives A and B "would result in a higher safety risk, would cost more money, would take longer to construct, and would result in additional adverse environmental effects than the Project. . . . While implementing Alternatives A and B may be technically possible, . . . those alternatives were considered infeasible as a matter of sound public policy, and thus were withdrawn from further consideration." Id. at 18. After Defendants issued the FSEIS, the FTA issued a Supplemental Record of Decision ("ROD"). FSEIS, Dkt. 186-3 at 195, App'x K. It stated that the "FTA has decided that Alternatives A and B will not be carried forward, and the LPA and construction method as identified in the Final EIS will remain the same and will be carried forward." Id. at 196. In this action, Defendants filed a notice of the issuance of the FSEIS/ROD on December 17, 2015. Dkt. 180.

B. Dissolution of Injunction On January 11, 2016, Metro and the FTA filed the Motions to Dissolve. Dkt. 188-89. They claimed that they had fulfilled their obligations under the Injunction Order by preparing and releasing the SEIS. Dkt. 196 at 7. Plaintiffs disagreed. They argued that the injunction should remain in place because Defendants had committed the following eight new violations of NEPA:

• Defendants failed to address a third, "deep tunnel" option submitted by Plaintiff, including in a July 27, 2015 comment. Although Plaintiff states that the FSEIS included Defendants' response to Plaintiff's comment, it argues that this response "d[id] not reveal the nature of their analysis other than their conclusions. This concealment of the analysis is what the 2014 injunction sought to correct." Dkt. 191 at 4-5;
• Defendants failed to analyze a fourth tunneling option, which would combine aspects of Alternatives A and B. Id. at 5-6;
• Defendants failed to analyze different levels of greenhouse gases that will be generated during project operations in the coming decades, as required both by NEPA and under a policy adopted by Metro in 2014. Id. at 6-10;
• Defendants ignored the risks associated with PBTBM machines, as reflected recently by the consequences of the use of one in Seattle, Washington. Id. at 10;
• Defendants falsely used the potential construction of a 5^th/Flower Station as a reason not to pursue Alternative A or B, because there is not an actual plan to create such a station. Id. at 10-11;
• Metro changed the Project in late 2015, when it revealed that the C/C construction may require some closure of Plaintiff's parking garage and loading dock entrances on Flower Street. Id. at 11;
• Metro changed the Project in early 2016, when it announced that during C/C construction, the water to Plaintiff's facilities may be cut off for several hours. Id. at 11; and

• Metro changed its schedule for pile trenching and installation on Flower Street, which is now set to begin at 4^th Street, rather than at Wilshire Boulevard as previously planned. Id. at 12-13.

An order granting the Motions to Dissolve was issued on February 5, 2016. Dkt. 196. It held that Plaintiff's arguments as to new NEPA violations exceeded the scope of the Motions to Dissolve. Id. at 7-8. Thus, each of the eight alleged NEPA violations identified by Plaintiff were outside the scope of the litigation and the Injunction Order. Id. at 8.

C. Declaration of Girish Roy As noted, the issue raised by the Motion relates to Plaintiff's allegation that Metro changed the Project in late 2015 to require some closure of Plaintiff's parking garage and loading dock entrances. In the Roy Declaration, which was submitted as part of Metro's Motion to Dissolve, Roy stated that "[t]he matters set forth in this declaration are based on my personal knowledge and/or analysis performed by Metro's engineers and consultants which I have reviewed, and my experience and expertise in construction of transit projects, and underground facilities in general." Roy Decl., Dkt. 192-1 at ¶ 2. He also stated:

Metro and the design/build contractor constructing the Project are not planning to block access to the Bonaventure's driveways during the upcoming pile installation as claimed by Bonaventure's attorney. Metro and the design/build contractor are developing a construction plan that will allow access to Bonaventure's Flower Street driveways at all times during pile installation. Plans for future steps in the cut-and-cover process are still in progress; there are no plans, draft or final, that include blocking access to Bonaventure's driveways.

Id. at ¶ 5. Roy also stated the construction plan was "based on logical and efficient construction planning." Id. at ¶ 8. Roy also stated that the plan was not, as Plaintiffs argued, designed as

a "ploy" to "avoid a full analysis of other tunneling options or to address Metro's threatened closure of Bonaventure's Flower Street driveways and threatened cut-off of the water to buildings in the Financial District during cut-and-cover construction." Pile installation will occur at some time in front of the Bonaventure regardless of where such work initially starts; the plan is not a ploy to avoid analysis or to avoid addressing the nonexistent threat to block Bonaventure's driveway.

Id. The declaration is dated January 27, 2016. Id. at 6. At his deposition, Roy testified that the declaration was "a combined effort." Ex. J to Declaration of Tiffany K. Wright ("Wright Decl."), Dkt. 206-11 at 4 (Deposition of Girish Roy ("Roy Depo.") 37:9). He testified that it was drafted with the assistance of Gary Baker, Kang Hu and Wright. Id. at 4, 6 (Roy Depo. 37:15, 69:15-18). He also testified that he spoke with consultants from AECOM and Parsons Brinckerhoff, which provided engineering services to Metro, and with persons at Arcadis, the construction management company that was involved in the project. Id. (Roy Depo. 38:11-12; 70:1-5). Wright stated that she drafted the declaration based on discussions with members of Metro's staff. Wright Decl., Dkt. 206-11 at ¶ 9. She added that she circulated a draft to Roy and other Metro staff members for review as part of the drafting process. Id. Further, she stated that Roy asked the group to review the draft declaration. Id.

D. Access to the Bonaventure Access to and from the garage and loading dock of the Bonaventure is from Flower Street between 4^th Street and 5^th Streets. Ex. A to Declaration of Donald J. Putterman ("Putterman Decl."), Dkt. 200-1 (Declaration of Michael Czarcinski ("Czarcinski Decl.") ¶ 8)). Czarcinski, the managing director of the Bonaventure, stated that "[t]hese vehicular access points are critical to the Bonaventure's twenty four hour per day, seven days per week, fifty-two weeks per year operations." Id. (Czarcinski Decl. ¶ 8). In addition, there is a passenger drop-off turnout on Flower Street that "serves hundreds if not thousands of guests arriving and departing . . . each day." Id. (Czarcinski Decl. ¶ 9). The Mitigation Monitoring and Reporting Plan ("MMRP"), which was submitted with the FSEIS, provided that "access to adjacent businesses shall be maintained via existing or temporary driveways at all times during business hours, and residences at all times" during construction. Ex. D to Wright Decl., Dkt. 206-5 at 2 (MMRP TR-1). It also provided that Metro "shall not hinder access to other public parking lots during construction." Id. Ex. E, Dkt. 206-6 at 2 (MMRP DR-6). Gary Baker, the Deputy Executive Officer for the Project, stated in a declaration that those requirements were interpreted by Metro to require a plan that allowed "vehicles [to] enter and exit the hotel's driveways" and ensured that "deliveries can be made." Ex. C to Wright Decl., Dkt. 206-4 (Declaration of Gary Baker ("Baker Decl.") ¶ 10). As of October 26, 2015, the draft construction plan prepared by Metro and design/build contractor for the Project -- Regional Connector Constructors ("RCC") -- allowed "no access" to the drop off area in front of the Bonaventure. Ex. 27 to Putterman Decl., Dkt. 200-8 at 28 (October 26, 2015 e-mail chain). On November 18, 2015, a construction plan was submitted to the Los Angeles Department of Transportation ("LADOT"). Ex. 62 to Putterman Decl., Dkt. 200-10 at 17 (January 22, 2016 e-mail). On January 6, 2016, Kang Hu, who was the Director of Project Engineering at Metro, e-mailed several people at the LADOT, requesting that the construction plan be retracted as to the west side of Flower Street, where the Bonaventure was located. Ex. 8 to Wright Decl., Dkt. 206-13 at 3 (January 25, 2016 e-mail chain). Baker testified that those plans were retracted in part because they would have imposed a sequential blocking of the loading dock driveway and the garage driveway. Ex. B to Putterman Decl., Dkt. 200-1 at 48 (Deposition of Gary Baker ("Baker Depo.") 148:18-25). On January 25, 2016, RCC employee Gregory Zweip sent an e-mail to several recipients, including Hu and Baker, and attached the draft construction plan that had been withdrawn. Ex. 8 to Wright Decl., Dkt. 206-13 at 2 (January 26, 2016 e-mail). That plan had several construction notes, including one that stated: "Contractor to provide a flagger to maintain the access; contractor shall move the K-rails in areas as needed; contractors shall coordinate with property owner to maintain access to property during construction." Ex. H to Wright Decl., Dkt. 206-9 at 4 (Deposition of Michael Aparicio ("Aparicio Depo.") 88:1-7). At his deposition, RCC executive Michael Aparicio testified that "the construction notes take precedent over what the drawing describes." Id. (Aparicio Depo. 89:16-17). The e-mail from Zweip concluded, "We are available to meet and discuss how best to show the work zone in front of the critical driveways." Ex. 8 to Wright Decl. Dkt. 206-13 at 2. Baker replied, "I would like for us to review these plans before they are submitted to LADOT to make sure we have captured all the discussions on MMRP compliance that were jointly reviewed a couple weeks ago during your absence." Id. On January 26, 2016, a mark-up of the draft of the construction plan that had been withdrawn was circulated. It included notes that stated: "the unprotected area will be for delivery staging"; "don't show any piles in the delivery staging area"; "use the details for work in front of the bonaventure [sic] driveways for this phase"; and "the two phases allows a truck to pull into the [illegible] w/o driving across the driveway." Ex. 15 to Wright Decl., Dkt. 206-14 at 5 (January 26, 2016 construction plan with notes). At Baker's deposition he testified that there were "ongoing discussions" at the time involving "maintaining access at all times during business hours through either existing or temporary driveways." Ex. B to Putterman Decl., Dkt. 200-1 at 47 (Baker Depo. 133:17-134:4). As shown by the preceding summary of evidence, on January 27, 2016, when Roy signed his declaration, the construction plan was still in development. Roy also testified that before he signed off on the deposition, he discussed the development of the plan and how to maintain access with Baker, Hu and people at Arcadis, the construction management company. Ex. J to Wright Decl., Dkt. 206-11 at 7 (Roy Depo. 71:19-25). He stated that he did not personally review the plan. Id. (Roy Depo. 72:1-5). He also stated that he was told by his staff that there were issues with the previous plan -- including as to accessing the Bonaventure -- and that it was being retracted. Id. at 8 (Roy Depo. 77:23-25; 78:3). Roy testified that his statement that there were no plans that involved blocking access to the Bonaventure's driveway was based on the commitment made in the MMRP. Id. at 9 (Roy Depo. 92:13-19). On January 29, 2016, a plan was sent to LADOT that represented "one of the early versions of plans that were developed following our discussions about how to maintain access to the . . . guest drop-off area." Ex. G to Wright Decl., Dkt. 206-8 at 22 (Baker Depo. 188:20-23). That plan showed that there would be vehicular access to the Flower Street guest drop-off area, but "it was not defined very well." Id. at 7 (Baker Depo. 89:7-25). It was later determined that the plan was not viable because it did "not provide for the safe merger of vehicles backed into traffic." Id. at 22 (Baker Depo. 189:24-190:2). Baker testified that, until March 23, 2016, Metro was still attempting to come up with a viable way to provide vehicular access to a drop-off point on Flower Street. Id. at 23 (Baker Depo. 197:6-16). However, "the intent was always to provide some drop-off." Id. at 7 (Baker Depo. 90:6-7). On March 23, 2016, a "workable solution" was developed. Id. at 24 (Baker Depo. 200:17). On April 4, 2016, the previous plan was retracted and a new plan was submitted to LADOT. Ex. 59 to Putterman Decl., Dkt. 200-10 at 2 (April 4, 2016 e-mail). A plan was developed for access to the garage. It involved two periods of approximately five hours when access to the garage would be restricted to an opening that was nine to ten feet wide. Ex. G to Wright Decl., Dkt. 206-8 at 14, 16 (Baker Depo. 137:18-138:3; 150:22-151:2). Baker testified that Metro planned to coordinate the timing of this restriction with Bonaventure so that it could occur on a weekend or after hours when the loading dock was closed. Id. at 15 (Baker Depo. 141:1-5). RCC Vice President Michael Smithson testified that he believed that the plan maintaining lanes nine to ten feet wide was "within the -- the requirements of our -- of the contract and the MMRP." Ex. E to Putterman Decl., Dkt. 200-1 at 79 (Deposition of Michael Smithson ("Smithson Depo.") 52:22-23). The evidence also shows that some within LADOT had concerns as to whether the construction plan allowed adequate truck access to the Bonaventure parking and service areas. Jesus Serrano, a transportation engineer with LADOT, testified at his deposition that Kevin Lee, a transportation engineering associate, was concerned that "the way that the construction zones were set up limited some of the -- some access to the garage." Ex. F to Wright Decl., Dkt. 206-7 at 6 (Deposition of Jesus Serrano ("Serrano Depo.") 106:10-11). Lee testified at his own deposition that he was concerned that a truck could not make the entrance to the parking garage. Ex. I to Wright Decl., Dkt. 206-10 at 4 (Deposition of Kevin Lee ("Lee Depo.") 112:10-14). However, Lee's concern was overruled by Serrano and his colleague. Ex. F., Dkt. 206-7 at 6 (Serrano Depo. 106:20-24).

III. Analysis

A. Legal Standards

1. Perjury Pursuant to 18 U.S.C. § 1621, anyone who "in any declaration . . . under penalty of perjury . . . willfully subscribes as true any material matter which he does not believe to be true . . . is guilty of perjury." The elements of perjury are "(1) false testimony under oath (2) concerning a material matter (3) with the willful intent to provide false testimony." United States v. McKenna, 327 F.3d 830, 838 (9th Cir. 2003).

2. Contempt Power "[P]erjury alone does not constitute an 'obstruction' which justifies exertion of the contempt power." In re Michael, 326 U.S. 224, 228 (1945). Rather, "there 'must be added to the essential elements of perjury under the general law the further element of obstruction to the Court in the performance of its duty.'" Id. (quoting Ex parte Hudgings, 249 U.S. 382, 383 (1919)); see also Clark v. United States, 289 U.S. 1, 11 (1933) ("Perjury by a witness has been thought to be not enough where the obstruction to judicial power is only that inherent in the wrong of testifying falsely."). The Supreme Court has emphasized that "the contempt power was to be confined to the least possible power adequate to protect the administration of justice against immediate interruption of its business." United States v. Dunnigan, 507 U.S. 87, 93-94 (1993) (internal quotation marks omitted). Dunnigan observed that, in some of its prior cases, the Supreme Court distinguished perjury that triggers exertion of the contempt power and "simple perjury" that is "not so much an obstruction of justice as an expected part of its administration." Id. at 93. "The inherent power of the courts to punish contempt of their authority and to coerce compliance with orders is not disputed." United States v. Powers, 629 F.2d 619, 624 (9th Cir. 1980). Courts may punish disobedience to court orders by either civil or criminal contempt. United States v. Rose, 806 F.2d 931, 933 (9th Cir. 1986). However, "[t]he difference between criminal and civil contempt is not always clear." United States v. Rylander, 714 F.2d 996, 1001 (9th Cir. 1983). The distinction lies in the intended effect of the contempt. United States v. Asay, 614 F.2d 655, 659 (9th Cir. 1980). "Punishment for civil contempt is intended to be either coercive or compensatory, whereas the purpose of criminal contempt punishment is punitive." Rylander, 714 F.2d at 1001. The same conduct may give rise to civil and criminal contempt, and thus "[t]o distinguish criminal from civil contempt it is necessary to determine the nature and purpose of the sanction sought and imposed." Asay, 614 F.2d at 659. There are three types of sanctions for contempt: punitive, compulsory, and compensatory. Id. The first constitutes criminal contempt and the latter two, civil contempt. Id. Fed. R. Crim. P. 42(a) requires that punishment for criminal contempt must occur "after prosecution on notice." The Court must request that the contempt charge be pursued by a government prosecutor. Fed. R. Crim. P. 42(a)(2). These procedural safeguards "apply equally to civil contempt proceedings." United States v. Powers, 629 F.2d 619, 624 (9th Cir. 1980).

B. Application The Motion fails for two principal reasons. First, Plaintiff has not shown that the statements in the Roy Declaration were false. Therefore, there has been no showing of perjury or a justification for an additional inquiry on that issue by the U.S. Attorney. The declaration states, "Metro and the design/build contractor are developing a construction plan that will allow access to Bonaventure's Flower Street driveways at all times during pile installation." Roy Decl. at ¶ 5. It also states, "there are no plans, draft or final, that include blocking access to Bonaventure's driveways." Id. The evidence supports the view that, at all times after the withdrawal of the first construction plan on January 6, 2015, RCC and Metro were aware of the requirement that they develop a construction plan that provided access to the driveways at the Bonaventure. It also shows that they were working on the development of such a plan. Further, the final plan submitted to LADOT provided some access to the Bonaventure's driveways at all times. The Oxford English Dictionary defines "block" as "1. To obstruct or close with obstacles (a passage)" or "2. To shut up or in by obstructing ingress or egress, to prevent access to or exit from." It defines "access" as "1b. To gain admission to; to enter." Thus, a reasonable interpretation of the statement in the Roy Declaration is that Metro had no plans to close completely the entry to the Bonaventure's driveways in a manner that would prevent all entry and exit. This statement is not inconsistent with a plan that restricts, but does not eliminate, such access. Further, the word "block" is ambiguous enough that Plaintiffs have not shown that Roy's statement that Metro had no plans to block access to the Bonaventure's driveways was willfully false, rather than simply imprecise. Thus, the allegedly false statement does not meet the third prong of the test for perjury, i.e., "the willful intent to provide false testimony." McKenna, 327 F.3d at 838. Plaintiff also has argued that, because a 14-wheel or 18-wheel truck could not access the garage or loading dock during the two five-hour periods in which access to the garage was to be restricted to a nine-or ten-foot opening, Metro was in willful violation of its promises and of the MMRP. However, this argument has already been rejected both by LADOT, which approved the construction plan, and by Judge Fruin of the Los Angeles Superior Court, who received applications for the issuance of a temporary restraining order based on the alleged violation and perjury, and denied relief. See Wright Decl. at ¶ 5,² id. Ex. A (March 21, 2016 application for a restraining order); id. Ex. B (June 3, 2016 application for a restraining order). Plaintiff next argues that the statement in the Roy Declaration that "[t]he matters set forth in this declaration are based on my personal knowledge and/or analysis performed by Metro's engineers and consultants which I have reviewed" was false because Roy did not have personal knowledge of the plans at issue. Dkt. 200 at 10. It argues that he did not review any existing draft plans and did not know whether plans were being developed to maintain access to the driveways at the Bonaventure. Id. Rather, he only knew that the MMRP required access and that Metro intended to comply with the MMRP. Id. There is substantial competing evidence that supports the conclusion that, at the time Roy signed his Declaration, Metro and its employees were aware that the previous draft plan had been withdrawn because it provided inadequate access to the Bonaventure. The evidence also supports the position that they were working on a plan that would provide adequate access. See, e.g., Ex. 8 to Wright Decl., Dkt. 206-13 (January 26, 2016 e-mail) (referencing the need to maintain access during construction); Ex. H to Wright Decl., Dkt. 206-9 (Deposition of Michael Aparicio ("Aparicio Depo.") 89:16-17) (describing a note that said "contractors shall coordinate with property owner to maintain access to property during construction"); Ex. 15 to Wright Decl., Dkt. 206-14 (January 26, 2016 construction plan with notes including "the two phases allows a truck to pull into the [illegible] w/o driving across the driveway"); Ex. B to Putterman Decl., Dkt. 200-1 (Baker Depo. 133:17-134:4) (stating that there were "ongoing discussions" involving "maintaining access at all times during business hours through either existing or temporary driveways"). At his deposition, Roy testified that he was told by his staff that the previous plan had been retracted because it did not allow adequate access to the Bonaventure. Ex. J to Wright Decl., Dkt. 206-11 (Roy Depo. 77:23-25; 78:3). Roy also testified that his statement that there were no plans that involved blocking access to the Bonaventure's driveway was based on the commitment made in the MMRP. Id. (Roy Depo. 92:13-19). This testimony supports the view that Roy had adequate personal knowledge, acquired through conversations with his staff and based on his professional understanding of the MMRP approval process, for the statements made in the declaration. This conclusion is not changed by Plaintiff's objections to his use of the words "block" and "access." Second, even if there were sufficient evidence to show that Roy's statement was perjurious or sufficiently suspect to warrant a criminal inquiry, it did not obstruct the Court in the performance of its duty. Michael, 326 U.S. at 228. At the time it was made, Roy's statement was not material to the issues that had been presented to the Court for decision. "A statement is material if 'it has a natural tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed.'" McKenna, 327 F.3d at 839 (quoting United States v. Leon-Reyes, 177 F.3d 816, 820 (9th Cir. 1999)). "To be material a false statement need only be 'relevant to any subsidiary issue under consideration.'" Id. (quoting United States v. Lococo, 450 F.2d 1196, 1199 (9th Cir. 1971)). Plaintiff itself demonstrates the lack of materiality in its submission in support of the Motion. There it poses the following question:

2 On January 13, 2017, Today's IV filed certain evidentiary objections to the Wright Declaration. Dkt. 210. The portions of the Wright Declaration objected to included Paragraphs 4-5 and 8-9. Id. The evidentiary objections did not comply with this Court's standing orders, and Today's IV was ordered to re-file them in the correct format. Dkt. 211. Today's IV re-filed their evidentiary objections on January 18, 2017. Dkt. 212. The re-filed objections still did not comply with the standing orders, which provide that all objections should be provided in a three column format, the first column of which "should include the entire declaration or deposition, which shall include the highlighted, underlined, and/or bracketed portions that are being objected to." Despite this non-compliance, the evidentiary objections have been considered and are hereby OVERRULED.

Had the Bonaventure and the Court been privy to the plans being drafted and submitted to LADOT concurrent with preparation, execution and submission of the Roy Declaration, and to the facts now admitted by MTA and confirmed by other witnesses concerning the continuing lack of access to the Bonaventure, would this Court have inquired into whether MTA could comply and intended to comply with the MMRP, and whether further study was warranted into the impact on the Bonaventure if MTA could not maintain access during construction?

Dkt. 200 at 16-17. Plaintiff then states: "We respectfully submit the answer is 'yes.'" Id. at 17. But the sole issue before the Court at the time the Roy Declaration was submitted was whether the Injunction Order remained in place. The Injunction Order, as noted above, found that the FSEIS failed adequately to explain why alternatives to open-face tunneling had been rejected for construction of the subway line under South Flower Street between 4^th and 7^th Street. It thus enjoined Cut and Cover construction in that area until the completion of a supplemental NEPA analysis. As the Court stated in the order granting the Motions to Dissolve, the issue of the potential street closures of Plaintiff's Flower Street parking garage and loading dock entrances was not addressed by the Injunction Order and therefore could not influence the Motions to Dissolve that Order. Dkt. 196 at 7-8. In other words, general compliance with the MMRP was not before the Court. Id. at 8. Had Plaintiff sought to enjoin construction based upon a different violation of the MMRP than the violation addressed in the Injunction Order, it would have been required to bring a new motion seeking such injunctive relief. That appears to be the relief that it then sought before the Superior Court, which denied its request. For this reason, materiality has not been shown as to the proceedings in this action.

IV. Conclusion

For the reasons stated in this Order, the Motion is DENIED.

IT IS SO ORDERED.

__________ : __________

Initials of Preparer ak