California Court Opinions

Filed 8/28/09 (Original published opn. filed 7/31/09; this supp. opn. is not certified for publication and may not be cited or relied on under Cal. Rules of Court, rule 1115. Because it modifies an otherwise published opinion, this supp. opn. has been posted with the published opinions to facilitate tracking subsequent history of the 7/31/09 opn.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

GRIFFIN DEWATERING CORPORATION,

Plaintiff and Respondent,

v.

NORTHERN INSURANCE COMPANY OF NEW YORK,

Defendant and Appellant.

G036896

(Super. Ct. No. 00CC04293)

SUPPLEMENTAL OPINION ON

DENIAL OF REHEARING

I. Supplemental Opinions on

Denial of Rehearing

California reviewing and appellate courts have found it useful, on occasion, to issue supplemental opinions explaining why they were denying rehearing, and indeed have done so since 1906. (See National Bank v. Los Angeles etc. Co. (1906) 2 Cal.App. 659.) In the present case, several factors prompt this supplemental opinion. The petition for rehearing cites two “new” authorities. It also provides a long list of “facts” it says should have been mentioned in the opinion. And we have also received a request for modification from an accountant (who does not otherwise appear to be connected with the case), who, in that request, reveals that he misunderstands our original opinion. He thinks we said that the insurer “did not breach the insurance policy.”

We issue this supplemental opinion to deal with “new” authorities, the proffered new “facts,” as well as make clear (now) that the insurer breached the policy; it just didn’t breach it unreasonably.

II. “New” Authority

The rehearing petition cites us to two “new” authorities, Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 723 (Wilson) and the as-yet unfinal Bosetti v. U.S. Life Ins. Co. in The City of New York (2009) 175 Cal.App.4th 1208 (Bosetti). Neither case is apposite, since both are explorations of the genuine dispute doctrine. (See Wilson, supra, 42 Cal.4th at pp. 723 [explaining why insurance company could not obtain summary judgment under genuine dispute defense where insurance company claimed that 21-year old plaintiff in an uninsured motorist case had a preexisting degenerative disk disease]; Bosetti, supra, 175 Cal.App.4th at pp. 1235-1241 [explaining why insurance company was entitled to summary adjudication of bad faith claim against it under genuine dispute doctrine].) And as we said in the original opinion, we do not address at all any arguable applicability of the genuine dispute doctrine to the case.

Moreover, neither Wilson nor Bosetti purports to change the rule that a request for a defense in a third party (liability) insurance policy is evaluated at the time the request is made, in light of the facts of the complaint against the insured and other facts known by the insurance company, in light of the potentiality rule.

III. New “Facts”

To read the petition for rehearing, one would almost believe that we had decided a different case. On pages 9 through 13 of the petition for rehearing appear a long list of “facts” that the insured says should, at least, have been included in the opinion. The gravamen of these “facts,” at least according to the petition, is that the insurer “knew” (the word is used no less than eight times) from the inception of the policy that the total pollution exclusion in its policy would not exclude the company’s liability for any sewage claims, and its employees readily admitted as much.

Preliminarily, it should be noted that almost all the “facts” which the petition for rehearing lists came from evidence developed after the trial court had ruled in a pre-trial motion in limine that the insurer had breached the insurance contract unreasonably as a matter of law. Those facts were not put before the trial judge in that fateful motion. Most of the evidence supporting them was developed as a part of the insurer’s punitive damages case, which went to the jury with the express understanding that the insurer breached the insurance policy unreasonably. Thus the most that might be made of these facts would be some sort of remand; the judgment (based on the in limine ruling) still could not stand.

However, it turns out that the list of “facts” contains some serious errors. The record references do not support the “facts” as framed in the petition for rehearing.

In an appendix to this supplemental opinion, we go through each of the 16 proffered “facts,” and explain how each one is either (a) irrelevant to the basic question of whether the insurer was reasonable when, for a time, it declined to defend the insured against the district’s suit for indemnity, or (b) is an incorrect statement of the record. The appendix in most cases sets forth the actual transcript verbatim.

We give one example right now. The petition for rehearing states as a “fact” this: “Northern knew the pollution did not bar coverage for the property damage claim by South Coast because Lynch [one of the insurer’s employees] testified, a sewage spill inside a house (‘in your basement’) was not an excluded ‘pollutant’ because ‘it wasn’t something that was polluting the environment.’ (15 AA 3625).” (Rehr. pet. at p. 9.)

But if one checks pages 3625 and 3626 of volume 15 of the Appellant’s Appendix, one merely finds testimony acknowledging that there was in-house discussion among the insurer’s employees concerning the applicability of the pollution exclusion to sewage claims and that some employees disagreed with others on the topic. That hardly shows the insurer itself “knew” there was coverage. It only shows in-house debate. Moreover, the record reference for what “Northern knew” is to testimony elicited in the context of a question that explicitly did not seek any “legal binding [sic] on anybody.”

In any event, all the proffered facts (whether accurate statements of the record or not) are irrelevant because, as the court stated in Chatton v. National Union Fire Ins. Co. (1992) 10 Cal.App.4th 846, 865, opinion evidence is irrelevant to the interpretation of an insurance policy. Under the heading (directly apropos to the petition for rehearing here): “Admission of Liability by Insurer’s Employees Does Not Establish Liability,” the Chatton court said: “Respondents’ final argument that there was coverage for advertising injury under the terms of the CGL policy because National Union’s employees themselves admitted the existence of such liability requires but a brief reply. It is well settled that the interpretation of an insurance policy is a legal rather than a factual determination [citations]. Consistent therewith, it has been held that opinion evidence is completely irrelevant to interpret an insurance contract. [Citations.]” (Chatton, supra, 10 Cal.App.4th at p. 865, original italics deleted, italics added .)

As the appendix shows, there were no actual admissions of liability in the case before us. Thus, Chatton, where there were admissions, applies a fortiori.

SILLS, P. J.

WE CONCUR:

BEDSWORTH, J.

ARONSON, J.

Appendix to Supplemental Opinion on Denial of Rehearing

There are 16 “facts” which the petition for rehearing says should have been in the original opinion. In this appendix we set out verbatim (with one long exception, there mostly verbatim) the entirety of each “fact,” and then explain why the “fact” was not in the original opinion. In most cases we have set out in the margin the actual testimony or language from the record to which the petition for rehearing refers, erring (alas, to the detriment of yet more trees) on the side of inclusiveness.

1. Fact as framed in the petition for rehearing: “Northern knew it was insuring Griffin’s operations, including its sewage by-pass operations, against claims and lawsuits alleging property damage, as evidenced by (1) Northern inspecting Griffin’s operations in 1993 and 1995 during and after its underwriting process and (b) [sic] describing Griffin’s covered ‘operations’ on the first page of Northern’s policy (AA 4032) as those of a ‘sewer contractor.’ (16 RT 3068, 3071).”

Reason not included in the original opinion: The record references are to the testimony of the insured’s expert. The testimony of a party’s bad faith expert that the expert thought a policy should cover sewage “operations” does not establish that the insurer “knew,” at least prior to the MacKinnon decision, that sewage claims were not within the purview of the policy’s pollution exclusion. Also, the opinion of an expert is not relevant to establish coverage as such. (See Chatton v. National Union Fire Ins. Co. (1992) 10 Cal.App.4th 846, 865 [“opinion evidence is completely irrelevant to interpret an insurance contract”].)

2. Fact as framed by the petition for rehearing: “Vanetta Smiley, Northern’s adjuster (who participated in denying Griffin a defense), knew that ‘the building of sewer bypasses was considered an operation for which Northern was insuring Griffin.’ (15 AA 3649 (Depo. P. 370:1-6)).”

Reason not included in the original opinion: The record reference merely shows that at the time of the deposition Smiley only acknowledged that sewage bypasses were an “operation for which” the insurer “was insuring” the insured. It is not an admission that, at the time the decision was made in 1999, Smiley thought the pollution exclusion could not apply to a sewage claim.

3. Fact as framed by the petition for rehearing: “Jerrie Lynch (Northern’s underwriter on Griffin’s policy and Mike Bernath (the author of Northern’s underwriting guidelines) believed sewage was not a pollutant, thereby raising the ‘potential’ that the claim was covered, obligating Northern to defend Griffin. (16 RT 3186-87)”

Reason not included in the original opinion: The record references to pages 3186-3187 show that the insured’s expert believed that a particular employee of the insurer named Speers made the decision to deny coverage maybe — or maybe not (the witness tried to qualify his answer) in consultation with another employee of the insurer named Bernath. To be charitable to the petitioner, it is possible that the petition also refers to testimony on the preceding page, in which the expert noted that different employees of the insurer had different views on the application of the pollution exclusion to sewage claims, which disagreement was apparently resolved by Speers (or maybe Speers and Bernath together) unilaterally. Just because one employee of an insurance company may believe that there is coverage does not necessarily make a denial of coverage unreasonable, a point that the expert appeared to concede in his answer to an insurance company’s right to “internal disagreement.”

4. Fact as framed by the petition for rehearing: “Northern knew the pollution exclusion did not bar coverage for the property damage claim by South Coast because, as Lynch testified, a sewage spill inside a house (‘in your basement’) was not an excluded ‘pollutant’ because ‘it wasn’t something that was polluting the environment.’ (15 AA 3625).”

Reason not included in the original opinion: We quote from all of page 3625 of the Appellant’s Appendix and into much of page 3626 in the margin. Lynch’s testimony simply shows that insurance company employees can disagree with each other. We know of no law that says that if an insurance company employee thinks that an exclusion might not apply to a given situation that that means any position to the contrary on the part of the insurance company is necessarily unreasonable.

5. Fact as framed in the petition for rehearing: “Northern knew that ‘the underwriting intent of putting the total pollution exclusion endorsement on the policy was so that Northern would be protected against certain environmental risks or harms associated with Griffin Remediation Company” (13 RT 2590, ital. added) a sister company of Griffin Dewatering Corporation. Indeed, Northern insisted on including the total pollution exclusion in the policy for that purpose. (13 RT 2592) Northern knew the pollution exclusion was not intended to exclude coverage for Griffin Dewatering’s sewage –related claims (id.) but to exclude claims related to Griffin Remediation’s activities (13 RT 2686) since those activities presented ‘environmental [matters] that could trigger pollution claims.’ (13 RT 2646-47).”

Reason not included in the original opinion: The record references to pages 2590 through 2592 are to the testimony of William Harrison, the insured’s broker. His testimony shows, in the context of a previous question involving workers’ compensation risks, that he thought the pollution exclusion should not preclude sewage claims. It also shows that the insured’s broker thought that the insured’s sister company, the “remediation” company, was indeed subject to the pollution exclusion. As noted above, opinion evidence cannot establish coverage.

6. Fact as framed in the petition for rehearing: “Northern knew the pollution exclusion did not bar coverage for property damage claims caused by sewage in connection with the South Coast project because Northern issued a Certificate of Insurance naming Griffin and South Coast as insured in connection with liabilities on that project, which dealt exclusively with sewage. (13 RT 2710-11; 17 AA 4178, 4181 (Certificate of Insurance)).”

Reason not included in the original opinion: The record reference to pages 2710 to 2711 of the reporter’s transcript is to testimony of Robert Gokoo, an attorney representing the district, which simply establishes that the district was itself an additional insured on the policy. The record reference to page 4178 is to Griffin’s proposal to do work for the district, and the reference to page 4181 is to the certificate of insurance that said: “South Coast Countys Water District is hereby added as an additional insured. . . .” None of this shows that the insurer intended that the pollution exclusion ever applied to sewage claims.

7. Fact as framed in the petition for rehearing: “Following Northern’s initial denial, Bill Harrison (Griffin’s insurance broker since 1987 who negotiated and placed the policy) directed one of his brokerage’s attorneys in its environmental division, Brett Reich, to prepare and send a written legal opinion to Northern (13 RT 2599) setting forth (1) caselaw holding that sewage claims were not barred by the pollution exclusion; and (2) an explanation why the exclusion did not bar the Waters claim, hence demonstrating a potential for coverage. (13 RT 2595-98, 2675, Exh. 74) The reasons Reich detailed included: . . . .” We omit the details of the argument set forth in the letter. Reason not included in the original opinion: A letter from the insured’s broker in 1996, more than seven years prior to the MacKinnon decision, making the legal case for coverage does not necessarily show that the insurer’s position was unreasonable. It only shows that the insurer was exposed to some of the insured’s arguments in favor of coverage.

8. Fact as framed in the petition for rehearing: “At trial, Tom Lysaught (Director of Northern’s Environmental Claims Unit who participated in the denial of Griffin’s claim) conceded that the Reich’s memorandum ‘was correct’ because (1) sewage is not necessarily a pollutant; (2) the pollution exclusion applies only to environmental harm; and (3) the exclusion is ambiguous (18 RT 3572, 3568-69), thus confirming Northern’s awareness of a potential for coverage, requiring a defense.”

Reason not included in the original opinion: The record reference to pages 3568 through 3569 of the reporter’s transcript do not show that Lysaught admitted that he thought it was ambiguous from the beginning; they only show that he recognized that courts had disagreed about application of the exclusion. Indeed, far from thinking that the broker’s letter was correct, the transcript shows that he continued to think it incorrect. The record reference to page 3572 of the reporter’s transcript simply shows while Lysaught recognized that the MacKinnon opinion had ultimately vindicated the broker’s position, there were “other cases” that had taken the insurer’s side.

9. Fact as framed in the petition for rehearing: “Harrison testified that, when Griffin’s policy came up for renewal, he voiced concern to Lynch about renewing with Northern. Harrison did so because Northern had denied the Water’s sewage claim because, as Lynch told Harrison, Northern “did not want to set precedent” given that there were ‘many, many other’ such claims. (13 RT 2612) But Lynch assured Harrison that if Griffin renewed, he would ‘come to Houston’ (13 RT 2611), ‘look [Griffin’s principals] in the eye’ (id.) and tell them that “[Northern] would agree to cover the – any similar-type sewage backup claims going forward” (id.).”

Reason not included in the original opinion: Pages 2610 through 2612 of the reporter’s transcript is simply the broker’s testimony that the insurer was willing to cover future sewage claims after the Waters claim. This part of the case was well covered in the original opinion explaining the parties’ disagreement over the scope of the Houston Oral Promise.

10. Fact as framed in the petition for rehearing: “Harrison testified that at the Houston meeting, Lynch stated Northern was ‘sorry that the Waters claim had not been covered’ (13 RT 2623-24) but in promising ‘to cover [sewage claims] going forward,’ Lynch meant that ‘[Northern’s] underwriting intent all along [including under the 1996 policy] . . . never contemplated not covering . . . sewage backup claims’ (13 RT 2612) that and Lynch ‘intended to cover these types of claims all along.[’] (13 RT 2614).”

Reason not included in the original opinion: Pages 2623 through 2624 of the reporter’s transcript simply recount Lynch’s attendance at the meeting giving rise to the Houston Oral Promise. It does not follow that because Lynch “was apologizing” for the way the Waters claim “went” that the insurer acted unreasonably in denying the defense of that same claim later. Page 2612 recounts the insured’s broker’s opinion that if the insurer was willing to cover sewage claims after the Waters claim, then there must have been an underwriting intent “all along” that the sewage claims would be covered. Lynch, however, never said that. Pages 2614 to 2615 similarly recounts what the broker thought Lynch thought, not what Lynch actually thought. Obviously the fact that a broker thought that an employee of an insurance company thought that a particular exclusion should not apply in a given instance is not substantial evidence that the insurer itself never intended the exclusion should apply.

11. Fact as framed in the petition for rehearing: “Harrison, Kazem Khonsari (Griffin’s President) and Eric McAnelly (Griffin’s in-house counsel) understood Lynch’s statements in Houston to mean that given the parties’ underwriting intent, Northern would ‘at least defend the action’ arising from the Waters claim. (13 RT 2629, 15 RT 3002, 15 RT 3007; 14 RT 2814).”

Reason not included in the original opinion: The record references simply recount why the insured re-submitted a request for a defense of the district’s suit. Page 2629 shows that the broker thought it was worth “another run,” pages 3001 and 3002 show the insured’s president’s recollection of the Houston Meeting that the insured would not assert the exclusion if anything in the future happened, page 3007 is to the same effect, except there the insured’s president was under cross-examination, and page 2814 was the testimony of a contract administrator working for the insured who also recounted the Houston meeting as one in which it was agreed that, if any sewage claims arose in the future, they would be covered. The topic of the Houston Meeting was well covered in the original opinion, and in fact the main reason the case took so long.

12. Fact as framed in the petition for rehearing: “During the Houston meeting, Khonsari ‘specifically asked [Lynch] if anything comes from South Coast are we covered, and the answer was yes.’ (15 RT 3019) Lynch responded that ‘anything that developed out of the Waters’ claim would be covered in the future.’ (15 RT 3022) ‘The main issue [Khonsari] was concerned about was our coverage about this sewage bypass.’ (15 RT 3005) Lynch ‘understood’ his concern, ‘assured [Khonsari] and [shook his] hand [saying] ‘that won’t be happening in the future, go on with your business. You’re covered. Don’t worry about it anymore.”’ (15 RT 3009).”

Reason not included in the original opinion: The opinion goes to some length to explain why the court could not affirm the judgment based on the Houston Oral Promise. (See slip. op. at pp. 38-39.) As the original opinion notes, had the insured added a cause of action based on the Houston Oral Promise, the conflict over whether the district’s suit on the Waters claim was a “future” suit within the meaning of the Houston Oral Promise would have been resolved in the insured’s favor.

13. Fact as framed in the petition for rehearing: “McAnelly, who attended the Houston meeting, had the same understanding from Lynch as Khonsari — that Northern would provide coverage for any claims related to the Waters incident in the future. If the Waters claim suddenly ‘c[a]me back to life the week after the Houston meeting,’ Northern would have ‘paid [it].’ ‘That’s what I understood’ at the 1997 Houston meeting. (14 RT 2814) (This testimony went unrebutted at trial; Northern presented no employee who attended the 1997 Houston meeting.).”

Reason not included in the original opinion: As with the previous fact, the original opinion recognizes that the insured’s side of the Houston Oral Promise was that the Waters claim would be covered if it iterated itself in the form of a future suit against the insured. (See slip op. at p. 3.) However, as the original opinion also explains, the insured elected to forego liability on a breach of the Houston Oral Promise and focus on liability under the written insurance contract. (See slip op. at pp. 17-19, 38-39.)

14. Fact as framed in the petition for rehearing: “Northern knew that South Coast’s complaint alleged a claim for ‘property damage’ within the meaning of the insuring clause of Northern’s policy (17 AA 4156-77), thereby raising a potential for coverage Northern could not conclusively eliminate based on a dispute regarding the pollution exclusion’s applicability — thus requiring Northern to defend.”

Reason not included in the original opinion: The swath of pages cited is to the complaint by the district against the insured. This “fact” is little more than a legal argument.

15. Fact as framed in the petition for rehearing: “Northern knew there was no California caselaw interpreting the pollution exclusion (15 AA 3668; 18 RT 3600) and hence no California law support for Northern’s position that the exclusion was unambiguous and barred Griffin’s claim.”

Reason not included in the original opinion: As explained in the original opinion, the absence of direct Supreme Court authority supporting the application of an exclusion to a given suit does not necessarily show that the application of the pollution exclusion to sewage is unreasonable. The original opinion also notes that at least two panels of the Court of Appeal, prior to MacKinnon, took a broad view of the total pollution exclusion.

16. Fact as framed in the petition for rehearing: “Northern knew that actual coverage existed, since when Griffin was sued in an earlier case (‘City of Vista’) in which sewage had spilled into a lagoon, Northern agreed to defend Griffin even though the policy contained a pollution exclusion containing the same definition of ‘pollutant’ as in the policy at issue here. (4 AA 829, 901, 905; RA 109; RA 6-7, 102-05)”

Reason not included in original: The record reference to page 829 of the appellant’s appendix is simply to the cover page of a reply by the insurer in a summary adjudication motion in 2003. Pages 901 and 905 of the appellant’s appendix are to a letter from AIG, which, while too long to reproduce verbatim, does not mention any City of Vista claim. Pages 6 and 7 of the Respondent’s Appendix are from the insured’s own in limine motion to exclude evidence that the insurer’s policy was anything but primary. Page 6 is from the supporting points and authorities asserting that the insurer had agreed to honor a 1998 request to defend a suit (not exactly an “earlier” case – recall that the Houston Meeting — where everyone agreed that the company would cover all future sewage claims — was in May 1997) involving the City of Vista. That case involved a sewage spill from drilling into a pipeline. Pages 102 to 103 of the Respondent’s Appendix is a letter from the insured’s contract administrator referencing the City of Vista suit. While the letter is too long to reproduce, we see nothing in it that the insured made a request for a defense in that suit prior to the 1997 Houston Meeting. The only date given about that suit, given on the first page of the letter, is to March 5, 1998, again, after the Houston Meeting had generated a promise that future claims (at least future non-Waters claims) would be covered. Page 109 is from an internal memo within the insurer about the City of Vista claim. Nothing in the memo contravenes the insured’s own pleadings that the request for a defense in the City of Vista case came in 1998.

Filed 7/16/09 (pub. order 8/17/09; see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

CITY OF LONG BEACH,

Plaintiff and Appellant,

v.

LOS ANGELES UNIFIED SCHOOL DISTRICT et al.,

Defendants and Respondents.

B207721

(Los Angeles County

Super. Ct. No. BS109101)

APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Affirmed.

Robert E. Shannon, City Attorney and Michael J. Mais, Assistant City Attorney; Richards, Watson & Gershon, Steven H. Kaufmann and Ginetta L. Giovinco for Arkin & Glovsky, Sharon J. Arkin and Scott C. Glovsky; Law Offices of Michael L. Oran and Michael L. Oran for Plaintiff and Appellant.

Pircher, Nichols & Meeks and Fernando Villa; R. Bruce Tepper for Defendants and Respondents.

_________________________

INTRODUCTION

Through a petition for writ of administrative mandate, the City of Long Beach (Long Beach) unsuccessfully sought to overturn the certification under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.; Cal. Code Regs., tit. 14, § 15000 et seq.) by the Los Angeles Unified School District (LAUSD) of a final environmental impact report (FEIR) evaluating the plan to construct a high school on the western edge of Long Beach. Aimed at reducing overcrowding in Banning and Carson High Schools, the proposed project is intended to serve students from the City of Carson (Carson) who attend LAUSD schools. Long Beach appeals from the denial of its writ petition contending that LAUSD has failed to provide adequate detail and analysis sufficient to enable meaningful consideration of the environmental issues raised by the proposed project. We hold that LAUSD did not prejudicially abuse its discretion because it proceeded in the manner required by law where the FEIR adequately analyzes the challenged impacts of the project and is sufficient as an informational document. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The project

The project at issue is for the construction of a high school (the project) to serve LAUSD’s South Region Planning Area on the western edge of Long Beach at its boundary with Carson. Although in the early 1970’s, Long Beach annexed the area where LAUSD proposes to construct the school, for more than a century the area has lain within LAUSD’s boundaries. Located within the purview of LAUSD’s Local District 8, the high school will be constructed on 13.7 acres of land bounded on the north by Dominguez Park and the Aquatic Center in Carson, on the south by West Carson Street, on the east by a Union Pacific Rail Line, and on the west by Santa Fe Avenue. Surrounding land uses include a mix of recreational facilities, institutional, light industrial uses, and residences.

Situated on the same block of Santa Fe Avenue as the proposed school, and separated only by Dominguez Park, is Dominguez Elementary School, which has been operated by LAUSD for nearly 100 years. The project site was selected from eight proposed, and a number of other informal, sites within a designated radial Target Search Area around LAUSD’s Carson and Banning High Schools. LAUSD created the Target Search Area because all of the schools within its reach had operated well over capacity for some time. After several public meetings and analyses of the proposed sites, LAUSD selected this as one of two that were not afflicted with environmental hazards related to industry.

Known as South Region High School Number 4, the project consists of 182,000 square feet of school facilities to serve approximately 1,809 students in grades 9 through 12. The project calls for 67 classrooms, a library/media center, a performing arts center, two gymnasiums, a multi-purpose facility, food services, a career center, a health center, “set aside” classrooms, a student store, centralized administrative offices, a police facility, and space for ancillary uses and support services, such as restrooms, custodial and supply rooms, and storage. The project will also include recreational space and athletic facilities, basketball courts, and a lighted stadium to accommodate baseball, football, and soccer.

2. Environmental review of the project

In 2005, LAUSD issued a Notice of Preparation and an Initial Study. After public review, LAUSD distributed a draft environmental impact report (DEIR) for public review and comment.

In addition to analyses of the various parts of the environmental impact report (EIR), LAUSD commissioned three major studies, the Health Risk Assessment (HRA), the Pipeline Safety Study (PSS), and the Rail Safety Study (RSS), among others. The studies were appended to and made part of the EIR as Appendixes C, D, and E, respectively. The EIR incorporates by reference LAUSD’s New School Construction Program Final EIR (the Program EIR), certified by LAUSD in 2004. The Program EIR provides an environmental overview for LAUSD’s school construction process.

In February 2007, LAUSD released a recirculated DEIR addressing new information developed about additional sources of potential hazardous emissions in proximity to the site. LAUSD also revised the HRA. Twenty-two commenters, including Long Beach, submitted letters in response to the DEIR. LAUSD provided written responses to each letter.

After the public hearing, on April 24, 2007, LAUSD’s Board certified the FEIR and approved the project by adopting Findings of Fact, a Mitigation Monitoring Program, and a Statement of Overriding Considerations.

3. Long Beach’s writ petition and the trial court’s ruling

In its ensuing writ petition, Long Beach argued that LAUSD violated provisions of CEQA because the FEIR “does not adequately analyze or evaluate the environmental impacts of the Project, relies on flawed assumptions and studies, defers mitigation measures, and fails to respond adequately to comments, thus failing to provide information that is meaningful and useful to the decisionmakers and to the public.” Additionally, Long Beach alleged that the FEIR impermissibly failed to evaluate, and LAUSD failed to adopt, feasible mitigation measures to reduce the significant, adverse environmental impacts caused by the project sufficient to satisfy CEQA’s requirements. Finally, Long Beach alleged that the FEIR failed to include adequate assessments of (1) health and safety issues; (2) air quality; (3) traffic impacts; (4) land use; (5) cumulative impacts; and (6) reasonable project alternatives, with the result that LAUSD failed to proceed as required by law.

The trial court denied the petition. The court found that Long Beach as petitioner had not borne its burden to present credible evidence that the agency’s findings and conclusions were not supported by substantial evidence. After analyzing each of the elements of the FEIR challenged by Long Beach, the court concluded that the evidence supported LAUSD’s decision that the FEIR was adequate and complied with CEQA. Long Beach’s timely appeal followed the entry of judgment against it.

CONTENTIONS

Long Beach contends that the EIR fails as an informational document and must be revised.

DISCUSSION

1. Standard of Review

The goal behind CEQA is “to compel government at all levels to make decisions with environmental consequences in mind.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393 (Laurel Heights).) Our task is to “ensure that the public and responsible officials are adequately informed ‘ “of the environmental consequences of their decisions before they are made.” [Citation.]’ ” (Berkeley Keep Jets Over the Bay Com. v. Board of Port Comrs. (2001) 91 Cal.App.4th 1344, 1356.) Accordingly, our task is limited. (Ibid.)

Although the parties appear to disagree about the standard of review, it is well established. “If the substantive and procedural requirements of CEQA are satisfied, a project may be approved even if it would create significant and unmitigable impacts on the environment. [Citation.] ‘In reviewing an agency’s determination under CEQA, a court must determine whether the agency prejudicially abused its discretion. (§ 21168.5.) Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination is not supported by substantial evidence.’ [Citation.] Courts are ‘not to determine whether the EIR’s ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document.’ [Citation.] ‘ “The appellate court reviews the administrative record independently; the trial court’s conclusions are not binding on it.” ’ [Citation.]” (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1197 (Bakersfield).)

“ ‘ “The EIR must contain facts and analysis, not just the bare conclusions of the agency.” [Citation.] “An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.” ’ [Citations.] ‘CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive.’ [Citation.]” (Bakersfield, supra, 124 Cal.App.4th at p. 1197, citing § 21005, subd. (b).) “The question whether an EIR is sufficient as an informative document depends on the lead agency’s [LAUSD here] compliance with CEQA’s requirements for the contents of an EIR: whether the EIR reflects a reasonable, good faith effort to disclose and evaluate environmental impacts and to identify and describe mitigation measures and alternatives; and whether the final EIR includes reasonable responses to comments on the draft EIR raising significant environmental issues. [Citations.]” (1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2009) § 11:37, p. 566 (Kostka).) “Analysis of environmental effects need not be exhaustive, but will be judged in light of what was reasonably feasible.” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1390-1391 (Irritated Residents).) “Therefore, ‘[n]oncompliance with CEQA’s information disclosure requirements is not per se reversible; prejudice must be shown.’ [Citations.]” (Bakersfield, supra, at pp. 1197-1198, citing, Irritated Residents, supra, at p. 1390 & § 21005, subd. (b) [there is no presumption that error is prejudicial].)

“Failure to comply with the information disclosure requirements constitutes a prejudicial abuse of discretion when the omission of relevant information has precluded informed decisionmaking and informed public participation, regardless whether a different outcome would have resulted if the public agency had complied with the disclosure requirements. [Citations.]” (Bakersfield, supra, 124 Cal.App.4th at p. 1198, quoting from Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26 & Irritated Residents, supra, 107 Cal.App.4th at p. 1391.)

We apply the substantial evidence test to conclusions, findings, and determinations, and to challenges to the scope of an EIR’s analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions. (Bakersfield, supra, 124 Cal.App.4th at p. 1198.) “Substantial evidence” is defined as “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” “Substantial evidence is not ‘[a]rgument, speculation, unsubstantiated opinion or narrative, evidence which is clearly inaccurate or erroneous, or evidence of social or economic impacts which do not contribute to, or are not caused by, physical impacts on the environment . . . . Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.” (Bakersfield, supra, at p. 1198, quoting from § 21082.2, subd. (c); Guidelines, § 15384, subds. (a) & (b).)

As our Supreme Court succinctly put it, “an agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. (§ 21168.5.) Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’ [citation], we accord greater deference to the agency’s substantive factual conclusions.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435 (Vineyard Area).)

With these rules in mind, we turn to the various challenges raised by Long Beach.

2. Health Impacts

Long Beach contends that the FEIR is fatally flawed because it does not adequately evaluate project-related health impacts, fails to include a reasoned analysis in support of its conclusions, and inappropriately relies on mitigation measures to reach a conclusion of “no significant impact” without providing an explanation for how the measures will be effective.

A. Air quality mitigation measures

CEQA contains special provisions for environmental review of the acquisition or construction of a school. Section 21151.8. sets out the scope of the review as well as findings a school district must make. Toward that end, LAUSD’s environmental consultants conducted the HRA in January 2007, using an Industrial Source Complex-Short-Term model. The consultants collected information from the United States and California Environmental Protection Agencies, and the South Coast Air Quality Management District (SCAQMD), among others. The HRA considered potential long-term exposures to hazardous emissions generated from all facilities located within one-fourth of a mile of the site that might reasonably emit hazardous or acutely hazardous air emissions (§ 21151.8, subd. (2)(A)), including all sources of emissions, such as on-road (vehicle emissions) and off-road (locomotive) mobile sources, stationary sources such as the ARCO retail gas service station, Frontier Charbroiled Burgers, Raytheon, Crown Lift Trucks, DirecTV, trucking and terminals, among others, as well as risks associated with carcinogenic chemicals and noncarcinogenic sources, such as refineries, and gas stations. As required by section 21151.8, subdivision (a)(2), the assessment reviewed the area within one fourth of a mile radius around the project site, and identified 14 potential sources of hazardous emissions. One of the 14 potential sources was the Long Beach Freeway (Interstate 710), because it runs near the school boundary, even though it lies outside the 500-foot radius specified in section 21151.8, subdivision (a)(1)(D) and the one-fourth of a mile area specified by Education Code section 17213, subdivision (b) and section 21151.8, subdivision (a)(2).

The FEIR found that impacts from hazardous or acutely hazardous materials emitted from facilities located near the project site would be significant because they would exceed the acceptable threshold for adults, although not for children. The FEIR proposed two mitigation measures, namely, the installation of a 70-foot setback at the southern boundary of the site (Measure 3B-1) and use of an enhanced heating, ventilation, and air conditioning filtration system capable of a 70 percent reduction of indoor particulate matter (Measure 3B-2). With implementation of mitigation measures 3B-1 and 3B-2, the FEIR concluded that the estimated potential cancer risk for adults, considering all sources evaluated, would be below the state threshold and hence impacts would be reduced to a less-than-significant level.

Long Beach argues the FEIR provides no explanation of how mitigation measures 3B-1 and 3B-2 would work and insufficient analysis to support the FEIR’s findings. It argues that “the EIR improperly fails to explain the causal relationship between these mitigation measures and a reduction to acceptable levels of carcinogenic risk.”

To the contrary, LAUSD’s Office of Environmental Health and Safety (OEHS) evaluated the significant health effects. The proposed mitigation measures 3B-1 and 3B 2 are in response to the evaluation. Further, LAUSD commissioned a second environmental consultant, Ensight, to review the findings in the HRA and evaluate the potential carcinogenic risks for the hypothetical administrative staff with the OEHS-proposed mitigation measures in place. After factoring in mitigation measures 3B-1 and 3B-2, the second consultant concluded that the carcinogenic risks from indoor and outdoor exposure to all contaminants would fall “below the established level of significance” for adults. Although brief, the mitigation-measure proposal contains sufficient information to enable the public to discern the analytic route LAUSD traveled from evidence to action. (Irritated Residents, supra, 107 Cal.App.4th at p. 1397.) The OEHS memorandum, along with Ensight’s ensuing analysis, all contained in the FEIR as Appendix J, together with the HRA (Appendix C), provide substantial evidence for the FEIR’s conclusion that mitigation measures 3B-1 and 3B-2 would reduce the impacts to less than significant. The mitigation measures were analyzed, were specific, and were defined. Together, these documents contain sufficient detail to enable those who did not participate in the FEIR’s preparation to comprehend and meaningfully consider the issues raised by the proposed project and the conclusions LAUSD reached. (Bakersfield, supra, 124 Cal.App.4th at p. 1197.)

We disagree with Long Beach that LAUSD’s response to its comment about mitigation measures 3B-1 and 3B-2 constituted an improper “scavenger hunt” because it referred to Appendix J, without further explanation. The level of detail required in a response to a comment depends on factors such as the significance of the issues raised, the level of detail of the proposed project, the level of detail of the comment, and the extent to which the matter is already addressed in the DEIR or responses to other comments. (Twain Harte Homeowners Assn. v. County of Tuolumne (1982) 138 Cal.App.3d 664, 684-686; Cleary v. County of Stanislaus (1981) 118 Cal.App.3d 348, 358-360.) The organization of an EIR should not require readers “to sift through obscure minutiae or appendices” to find important components of the analysis. (San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 659.) However, in its comment to the DEIR, Long Beach asserted that there was no evidence to support the finding that mitigation measures 3B-1 and 3B-2 would reduce impacts to below significant levels. LAUSD responded in kind to Long Beach’s comment by noting that the first part of Long Beach’s comment summarized the HRA’s contents and did not raise issues related to analysis or findings of the recirculated portions of the DEIR. But, the response goes on to explain that calculations of the mitigation measures’ effect were conducted and detailed descriptions could be found in the FEIR’s Appendix J, entitled the HRA Mitigation Report. The response also referred Long Beach to the Topical Response 1, a two-page response that fully described the issue. Each document cited in the comment is contained in the FEIR, either as the HRA in Appendix C or the second Ensight analysis in Appendix J, or as part of chapter 8, Response to Comments. The response listed the specific documents LAUSD believed supported its findings and the documents were clearly organized with the result no sifting or hunting was required.

The question is whether LAUSD reasonably and in good faith discussed the air quality impacts and mitigation measures in detail sufficient for the public to discern from the FEIR the “analytic route the . . . agency traveled from evidence to action.” (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515.) The sufficiency of any EIR is judged “in the light of what is reasonably feasible. . . . The courts have not looked for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” (Guidelines, § 15151.) The FEIR’s discussion in Chapter 3A, with footnotes referring to the HRA, is adequate here.

B. Truck traffic and air quality

Long Beach argues that the FEIR fails to take into account the close proximity of the large amounts of truck traffic in the area, the resulting exposure to diesel emissions, and the effects of particulate matter on childhood asthma and reduced respiratory capabilities.

Reviewing the HRA, it took into account not only the truck traffic and diesel emissions, but all sources of emissions, including mobile sources such as vehicle and locomotive emissions, and factored in to its analysis the emissions from a wide variety of light, medium, and heavy-duty trucks, motorcycles, and cars. It analyzed the effects of all of these emissions on respiratory systems. As noted, the HRA also analyzed the 710 Freeway, although it is located more than one-fourth of a mile away from, and beyond 500 feet of the school (§ 21151.8, subd. (a)(1)(D) & (a)(2)(A); Ed. Code, § 17213, subd. (b)). The HRA analyzed the potential of increased respiratory illnesses. A page and a half of the HRA was devoted to explanation of how the data were computed and analyzed. Tables A1 and A2 quantified the carcinogenic and noncarcinogenic risks by source to the respiratory system, among other things.

On appeal, Long Beach challenges LAUSD’s responses to its comment and that of Carson. These comments raised the issue of the increase in the incidence of asthma, and in particular the findings of an unnamed, recent USC exposure assessment from the increase in rail, truck, and freeway traffic on the Alameda Corridor and Santa Fe Avenue in close proximity to the project, which traffic increase is expected to result from the rise in capacity at the Ports of Los Angeles and Long Beach. Also, Long Beach claims, there is no analysis of the impacts on the specific streets located close to the project site. Long Beach argues that LAUSD’s responses did not comply with Guidelines section 15088, subdivision (c), which requires that the written response address in detail significant environmental issues raised when the lead agency’s position varies with objections raised by the comments. The response must give reasons why specific comments and suggestions were not accepted. The response must have a good faith, reasoned analysis. Conclusory statements unsupported by factual information will not suffice. (Ibid.)

LAUSD’s response to Long Beach’s comment was more than “ ‘Comment noted’ followed by a one-off statement that the project will have a net benefit to air pollution,” Long Beach’s contention to the contrary notwithstanding. LAUSD’s response acknowledged that research indicates that adverse health effects are associated with close proximity to air pollution sources. The response then explained that regional air pollution, which extends to the entire Los Angeles metropolitan region a nonattainment area for both coarse and fine particulate matter is impossible to control at the level of a single school. However, the response explained how the HRA evaluated the contributions from all local facilities and land uses in accordance with section 21151.8 and Education Code section 17213 (one-fourth of a mile from hazardous emissions or substances and 500 feet of a freeway), and the 710 Freeway. The response repeated the HRA’s findings that “[b]ecause acute health effects of high particulate matter concentrations are still under scientific inquiry and specific health risk thresholds have not yet been established, their effect is impossible to quantitatively assess. However, the chronic non-carcinogenic hazard was found to be less than significant for both students and staff, while the carcinogenic hazard was found to be significant for staff members only.”

LAUSD’s response to Carson’s comment did account for the truck activity and increase in such activity near the site. The comment explained, as described in the Existing Conditions section of the EIR’s traffic study, that although the model used in the HRA did not analyze the impacts of truck activity on specific streets, “the traffic counts conducted for the traffic analysis were adjusted upward to reflect the concentration of truck activity in the area.” (Italics added.) Furthermore, “per the direction of the Cities of Carson and Long Beach staff,” LAUSD applied a “2 per year growth factor,” to the “existing counts [to] include adjustments for truck activity . . . to account for overall growth . . . .” (Italics added.) LAUSD’s response explained that its model expected truck traffic along the Alameda Corridor to increase. Finally, the response addressed the concerns about the potential for increased asthma and chronic respiratory illness by noting that the HRA’s section on noncarcinogenic hazards and its conclusion, including the Appendix A and Tables A-1 and A-2, set out the potential for increased asthma or other chronic respiratory illnesses. The response ends by explaining how the chronic hazards are anticipated to be “less than significant at the proposed school site.”

The requirement of a detailed written response to comments helps to ensure that the lead agency will fully consider the environmental consequences of a decision before it is made, that the decision is well informed and open to public scrutiny, and that public participation in the environmental review process is meaningful. (People v. County of Kern (1974) 39 Cal.App.3d 830, 841-842.) LAUSD’s responses explained that the HRA had revised upward the increase in truck traffic in response to earlier comments, acknowledged, although the HRA did not analyze the impact of truck activity for specific streets, that it otherwise considered the fact of increased truck activity in the area. Each response contained the same level of detail as the comment, and each demonstrated a good faith analysis and observed how and where in the HRA the matter was addressed and analyzed. (Twain Harte Homeowners Assn. v. County of Tuolumne, supra, 138 Cal.App.3d at p. 686.) In our view, these responses to Long Beach and Carson satisfied the requirements of Guidelines section 15088, subdivision (c).

i. Cumulative impacts of the project on air quality and truck traffic

Long Beach argues that the FEIR is an insufficiently informative document because it omits cumulative impacts on air quality and traffic “and, in turn, on staff and student health” from the emissions generated by the 405 and 710 freeways.

We digress first to make the point that generally, “[t]he purpose of an environmental impact report is to identify the significant effects on the environment of a project . . .” (§ 21002.1, subd. (a), italics added; see also, §§ 21061, 2, 21080 & 21100, subd. (b); Remy et al., Guide to CEQA, California Environmental Quality Act (11th ed. 2006) p. 2 (Guide to CEQA)), not the impact of the environment on the project, such as the school’s students and staff. While section 21151.8 requires the lead agency acquiring or constructing a school to consider whether the site itself contains environmental hazards, materials, the overall purpose of the cumulative impacts section of an EIR is to consider the “change in the environment” that results from the incremental impact of the project when added to other closely related projects. (Guidelines, § 15355, subd. (b), italics added; Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1024-1025 (Los Angeles Unified School Dist.); see also, Guide to CEQA, supra, p. 466.) Accordingly, Long Beach’s criticism of LAUSD’s analysis for failure to consider the cumulative effects of air quality “on staff and student health” is not the aim of the cumulative impacts analysis.

Turning to the law of cumulative impact analyses, “ ‘[t]he cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonable foreseeable probable future projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time.’ (CEQA Guidelines, § 15355, subd. (b).) ‘Cumulative impact analysis “assesses cumulative damage as a whole greater than the sum of its parts.” ’ [Citation.]” (Irritated Residents, supra, 107 Cal.App.4th at p. 1403; see Los Angeles Unified School Dist., supra, 58 Cal.App.4th at pp. 1024-1025; see also Guidelines, § 15130, subd. (a)(1).) The cumulative impact analysis is an important element of the EIR.

“[T]he relevant issue to be addressed in an EIR is not the relative amount of impact resulting from a proposed project when compared to existing environmental problems caused by past projects, but rather whether the additional impact associated with the project should be considered significant in light of the serious nature of the existing problems.” (Guide to CEQA, supra, p. 473 (italics omitted, italics added), citing Los Angeles Unified School Dist., supra, 58 Cal.App.4th at pp. 1025-1026.)

“ ‘Guidelines section 15130, subdivision (b) provides that “[t]he discussion of cumulative impacts shall reflect the severity of the impacts and their likelihood of occurrence, but the discussion need not provide as great detail as is provided of the effects attributable to the project alone. The discussion should be guided by the standards of practicality and reasonableness.” . . . [A] good faith and reasonable disclosure of such impacts is sufficient.’ [Citation.]” (Irritated Residents, supra, 107 Cal.App.4th at p. 1403.)

“We review an agency’s decision regarding the inclusion of information in the cumulative impacts analysis under an abuse of discretion standard. ‘The primary determination is whether it was reasonable and practical to include the projects and whether, without their inclusion, the severity and significance of the cumulative impacts were reflected adequately.’ [Citation.]” (Environmental Protection & Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 525 (EPIC).)

Long Beach first challenges the geographic scope of the FEIR’s analysis of the cumulative impacts on air quality and traffic. Long Beach argues that LAUSD violated Guidelines section 15130, subdivision (b)(2) by “apparently only includ[ing] projects that LAUSD unilaterally, without explanation or justification, determined had ‘the potential to impact study area intersections’ ” (emphasis omitted), and omitted to consider the long list of projects named in various comments to the DEIR, which projects Long Beach feels should have been included in the analysis.

“An EIR should define the relevant area affected in its analysis of cumulative impacts. [Citation.]” (Kostka, supra, § 13:45, p. 654.) “Lead agencies should define the geographic scope of the area affected by the cumulative effect and provide a reasonable explanation for the geographic limitation used.” (Guidelines, § 15130, subd. (b)(3).)

“The factors to consider in determining which projects to include in the list include the nature of the resource in question, the location of the project, and the type of project. [Citation.] The CEQA Guidelines specify that location may be important when the location of other projects determines whether they contribute to an impact. For example, projects located outside a watershed would ordinarily not contribute to cumulative water quality impacts within the watershed.” (Kostka, supra, § 13:42, p. 651; Guidelines, § 15130, subd. (b)(2).)

An EIR’s cumulative impact analysis should include all sources of related impacts, not simply similar sources or projects. (Kostka, supra, § 13.44, p. 653.) Thus, “when the cumulative impact being considered is water runoff from logging operations, the EIR should evaluate all projects that contribute to runoff and erosion problems, not only other logging projects . . . .” (Ibid.) Additionally, “[p]roject type[s] may be important . . . when the impact is specialized, such as a particular air pollutant . . . .” (Guidelines, § 15130, subd. (b)(2).) The area affected will depend on the nature of the impact being analyzed.

While the geographic context or scope to be analyzed “cannot be so narrowly defined that it necessarily eliminates a portion of the affected environmental setting” (Bakersfield, supra, 124 Cal.App.4th at p. 1216, citing Guidelines, § 15126.2, subd. (a)), selection of the geographic area affected by the cumulative impacts falls within the lead agency’s discretion. (Guidelines, § 15130, subd. (b)(3); Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection (2004) 123 Cal.App.4th 1331, 1351 (Ebbetts Pass).) The selection of the assessment area is left to the agencies’ expertise, and “[a]bsent a showing of arbitrary action, we must assume that the agencies have exercised this discretion appropriately. [Citation.]” (Ebbetts Pass, supra, at p. 1351.)

LAUSD’s general analysis of cumulative impacts contained in its “Cumulative Scenario” section explains that it addressed the cumulative impact for each subject area, e.g., traffic, air quality, in the chapter associated with that subject. The Cumulative Scenario section then gives a general summary of the analysis, stating “[a] list of all the major projects proposed or currently under development in Carson and Long Beach was evaluated and 11 of those projects were determined to have the potential to impact study area intersections. . . . All related projects are located in the City of Long Beach within an approximately three-mile radius of the project site. The City of Carson did not identify any specific projects in the area of the proposed site that might affect the analyzed intersections.” (Italics added.) An EIR may set out a cumulative impacts section within each chapter that analyzes a particular type of impact. If this approach is used, it may also be advisable to include a summary of the analysis in a separate section on cumulative impacts. (See Kostka, supra, § 13.51, p. 661.) The FEIR’s approach complies with this recommendation for presenting the cumulative impact analysis.

Turning to Chapter 3A of the FEIR, devoted specifically to air quality, the cumulative impact portion covers a different, broader area than Long Beach suggests. The FEIR relies on the SCAQMD’s CEQA Handbook for methods for determining the cumulative significance of land use projects, and relies on the strategy in the 2003 Air Quality Management Plan (AQMP) for reducing the high levels of pollutants within the South Coast Air Basin. LAUSD’s response to comments indicates that it considered the entire South Coast Air Basin with respect to ozone and particulate matter, and listed a container facility, a trucking company, terminals, and Long Beach Unified School District, among other projects. Accordingly, the FEIR contains a reasonable explanation for the geographic limitation used and its determination that the project will not cause an incremental effect. (Guidelines, § 15130.) LAUSD did not abuse its discretion in defining the geographic scope of the cumulative impact area for air quality.

The FEIR then describes how, if an individual project “reduced the rate of growth of vehicle miles traveled, and is consistent with the AQMP, then the project’s cumulative impact [on air quality] could be considered less than significant.” Because (1) the consultants expected the project to reduce emissions levels through the reduction of vehicle miles traveled, and (2) there was no proposed school construction within a one-mile radius of the project site, the FEIR concludes that the project “would not contribute to cumulative impacts on air quality.” (Italics added.) Likewise, the project would not generate new hazards that would affect other sites with the result, the FEIR determines that “the proposed project would not contribute to cumulatively considerable impacts associated with hazards or hazardous materials.” The analysis of cumulative impacts is only necessary if the impact is significant and the project’s incremental effect is cumulatively considerable. (Kostka, supra, § 13.40, p. 649, citing Guidelines, § 15130.) If the lead agency determines that a project’s incremental effect is not cumulatively considerable, the EIR need only briefly describe the basis for its findings. (Kostka, supra, citing Guidelines, § 15130, subd. (a)(2).) Here, given LAUSD’s conclusion that the project would not have a cumulatively considerable impact on air quality, its relatively brief explanation for its conclusion is sufficient.

As for the traffic impacts, Long Beach argues that LAUSD’s cumulative impact analysis does not adequately explain why it only addressed “the potential to impact study area intersections.” The traffic and transportation section of the FEIR explains that LAUSD contacted both Long Beach and Carson to compile a list of related projects to include in the study. Carson identified none, but Long Beach provided a list of 79 projects located in that city. The FEIR explains that Long Beach’s exhaustive list “was subsequently narrowed down to the 11 shown on Table 3G-10 on the basis of their proximity to the project site and potential to contribute to project area traffic volumes” on surface streets in the area. In its comment, Long Beach objected to the FEIR’s failure to consider all planned growth for the Ports of Long Beach and Los Angeles, the Burlington Northern Santa Fe Railroad’s proposed near-dock facility, the proposed expansion of Union Pacific Railroad’s container transfer facility located on the Terminal Island Freeway/Sepulveda Boulevard intersections, just a “couple [of] miles” south of the project. (See fn. 8, ante.) LAUSD responded by explaining it included in the traffic analysis projects based on location, likely travel patterns, and analyzed intersections. Certain of those projects identified by Long Beach fell outside the area where a direct effect on a particular intersection was expected. The FEIR’s analysis is backed by the Traffic Impact Analysis as Appendix H. LAUSD did not abuse its discretion in defining the geographic scope of the cumulative impact area for traffic for it provided a reasonable explanation for the geographic limitation used and its conclusion that the project will not cause an incremental effect with respect to impacts. (Guidelines, § 15130, subd. (b)(3).)

The cumulative analysis in the Traffic and Transportation Chapter 3G concludes, after analyzing the trips generated for each of the 11 projects based on projections from the Institute of Transportation Engineers, that “[t]he project would not contribute to cumulatively considerable traffic impacts.” Stated otherwise, because LAUSD concluded that the project’s incremental effect would not be cumulatively considerable, the EIR adequately provides a brief description of why the cumulative impacts would not be significant. (Kostka, supra, § 13.40, p. 649, citing Guidelines, § 15130, subd. (a)(2).)

Long Beach next argues that LAUSD omitted from its cumulative impacts section and its responses to comments “closely related past” projects identified by Long Beach such as the 405 and 710 freeways, the ports, petroleum refineries and chemical plants. (Italics added.)

As noted, the “Cumulative Scenario,” considered “all the major projects proposed or currently under development in Carson and Long Beach” (italics added) and evaluated those determined to have the potential to impact study areas. With respect to past projects, LAUSD explained in response to a comment from the Carson Environmental Coalition, that the SCAQMD’s Handbook, upon which the air quality assessment of the project was based, “does not require a listing of emissions from existing and planned projects (e.g., existing emissions from vehicles traveling on freeways, ports, and refineries, as well as residential and commercial developments) for a cumulative air quality impacts analysis.” (Italics added.) On appeal, LAUSD argues that the 405 and 710 freeways, ports, storage company, the Alameda Corridor, the refineries and diesel fuel stations listed by Long Beach in its comments, are necessarily included in the cumulative impacts analysis because they are analyzed as past projects that comprise the “baseline,” i.e., the environmental setting or set of environmental conditions against which it then compared its project’s anticipated cumulative impact. (Guidelines, § 15125, subd. (a).) LAUSD asserts that “[e]ach impacts section, of necessity, considers past projects in its impacts analysis . . . .” This is because “ ‘[p]ast projects’ may have already caused impacts that are cumulatively significant. [Citation.]” (Guide to CEQA, supra, at pp. 472-473.)

Our Supreme Court explained that “an EIS/EIR must reasonably include information about past projects to the extent such information is relevant to the understanding of the environmental impacts of the present project considered cumulatively with other pending and possible future projects.” (EPIC, supra, 44 Cal.4th at p. 525, italics added.) The historical context for this project is discussed in numerous places in the FEIR. In the air quality section, for example, the FEIR describes the degradation of air quality in the entire South Coast Air Basin and the fact that it is a nonattainment area. The FEIR and response to comments lists the background pollutant concentrations registered by the SCAQMD for its Source Receptor Area 4. In its hazards and hazardous materials section, the FEIR describes such sources within one-fourth of a mile of the project and a freeway or busy traffic corridor within 500 feet of a school. (§ 21151.8, subd. (a)(2)(A).) This includes the 710 Freeway, the railroad, trucking, terminals, and service stations. Looking more broadly, LAUSD explained in its response to comments that the “South Coast Air Basin is a nonattainment area for ozone and particulate matter less than 10 microns” and that new projects have the potential to add pollutants that would affect ozone and particulate matter ambient concentrations.

As explained, we review the agency’s decision to include information in the cumulative impacts analysis under an abuse of discretion standard. We determine whether inclusion was reasonable and practical and whether, without their inclusion, the severity and significance of the cumulative impacts were reflected adequately. (EPIC, supra, 44 Cal.4th at p. 525.) Nothing in Long Beach’s arguments or comments demonstrates how the FEIR’s ultimate conclusion would be different if the analysis included within its sweep the 405 Freeway, the ports, the Alameda Corridor, and other sources of air pollution that had already contributed to the nonattainment status of the South Coast Air Basin before this project commenced.

Long Beach nonetheless argues that LAUSD’s reliance on section 21151.8’s one-fourth of a mile requirement in the cumulative impact analysis is erroneous because that statute refers to project-specific impacts, not cumulative impacts. Applying the one-fourth of a mile geographic scope to both cumulative and project-specific impacts would make no distinction between the two impacts, Long Beach argues, because each analysis would consider only sources within one-fourth of a mile, with the result, the impact conclusion would always be the same.

Actually, as explained, the FEIR creates different geographic areas for each impact discussed. Hence, apart from the fact that FEIR indicates it considered “all the major projects proposed or currently under development in Carson and Long Beach” and evaluated those having an impact irrespective of distance from the project, it included the entire South Coast Air Basin for cumulative air quality impacts, and the 11 listed projects having cumulative impacts on traffic on surface streets. (Italics added.) The FEIR limited its consideration to one-fourth of a mile radius of the project only for hazards and hazardous materials because it was required to do so by section 21151.8, subdivision (a)(2)(A). (See fn. 2, ante.) In any event, contrary to Long Beach’s logic, applying the same geographic scope to analysis of project-specific impacts and cumulative impacts does not necessarily result in the same conclusion. Project-specific analysis considers the effect of the project on the environment. Cumulative impacts analysis evaluates the incremental impact of the project in conjunction with, or collectively with, other closely-related past, present, and reasonably foreseeable probable future projects. (Guidelines, § 15355, subd. (b); Irritated Residents, supra, 107 Cal.App.4th at p. 1403; Los Angeles Unified School Dist., supra, 58 Cal.App.4th at pp. 1024-1025.)

“[T]he discussion of cumulative impacts should be guided by the standards of practicality and reasonableness.” (EPIC, supra, 44 Cal.4th at p. 525.) Although Long Beach disagrees with the FEIR’s discussion of existing projects such as the freeways and ports, based on the record here, the FEIR analyzes every project within the delineated geographic areas for each subject, and so it does not “cherry-pick” the projects, despite Long Beach’s contention otherwise. Therefore, we conclude that the FEIR’s cumulative impacts analysis for air quality and traffic is not an abuse of discretion.

C. Railroad

Long Beach contends that the FEIR fails to meaningfully analyze the risks from the Union Pacific rail line, located 30 feet from the eastern edge of the project site (the San Pedro Subdivision Line), which “may ship hazardous materials.” (Italics added.)

The RSS did recognize that the rail cars passing on San Pedro Subdivision Line might carry hazardous materials. Wilson Geosciences Inc. prepared the RSS for the EIR pursuant to the Education Code requirements (Cal. Code Regs., tit. 5, § 14010, subd. (d)), and assessed the potential safety issues. Among other things, the RSS considered the statistical information for the years 1997 to 2004 and listed the type of cargo as the “full range of commodities,” both hazardous and non-hazardous. The RSS also evaluated among other things, railroad safety, the probability of derailment, accident history, train speed, number of train movements per day or week, the statistical information for train miles, freight tonnage per train, and the number of incidents leading to derailment and the release of hazardous materials. The RSS concluded that the annual probability of a freight train accident and derailment within the study area would be “one train derailment every 20 years” or 2.76 per one million train-miles, i.e., “[t]he likelihood of a train accident, and a subsequent train derailment, along the railroad track that runs adjacent to the Site is very low . . . .”

The FEIR notes that historically, the San Pedro Subdivision Line was the only access to the Ports of Long Beach and Los Angeles. In 2002 the Alameda Corridor freight rail line opened and the Union Pacific Railroad was required to shift all of its port-related traffic from the San Pedro Subdivision Line to the new Corridor. As a result, use of the San Pedro Subdivision Line “has been substantially reduced, and it now supports local switching (i.e., redirecting cars for coupling with trains in other locations) and the occasional staging of empty trains destined for peak use at the ports.” (Italics added.) Nonetheless, the FEIR explains that the San Pedro Subdivision Line could see six to eight trains per day, only four of which would run during school hours. In the event of disruption along the Alameda Corridor, however, that number could increase to 25 trains per day with train lengths of up to 90 cars. The RSS “assumed” for purposes of the analysis that the trains may ship hazardous materials. The study found more than twice the acceptable level of risk of impact from a train derailment based on the potential for derailment. The RSS found such risk to be potentially significant and recommended, as a mitigation measure that the architect incorporate a setback of 128 feet from the centerline of the track along the eastern perimeter of the proposed school site, or other engineered solution to minimize potential impacts related to potential train derailment (incorporated in the FEIR as mitigation measure 3B-4). The FEIR’s ultimate conclusions are based on the substantial evidence found in the RSS. (Bakersfield, supra, 124 Cal.App.4th at p. 1197.) Wilson Geosciences Inc.’s RSS contained analysis and detailed facts sufficient to inform readers of the variety of risks posed by the San Pedro Subdivision Line and its proximity to the school. (Irritated Residents, supra, 107 Cal.App.4th at pp. 1390-1391.)

Long Beach argues that the FEIR provides no analysis about what types of chemicals the trains might carry, does not analyze whether the proposed barrier could minimize the harm caused by each of these chemicals if released by a train accident, or how the barrier could contain an airborne chemical release. LAUSD responded to Long Beach’s concerns by describing how the mitigation measures would work: the wall, designed in concert with the pipeline mitigation, would provide a culvert to prevent the spread of any hazardous material and drain it away from the school. Also, LAUSD’s OEHS develops a Safe School Plan for every school facility in consideration of site-specific features that may require special emergency response procedures, such as proximity to the San Pedro Subdivision Line, in compliance with Education Code sections 32282 et seq. As for specific chemicals that might be on the trains, as LAUSD explained to the trial court, it was not evident that the railroad would provide specific information about its manifests. Otherwise, Long Beach and the RSS implicitly acknowledge that the likelihood that the Union Pacific Railroad might carry hazardous materials was merely hypothetical. The analysis of the effects on the environmental need not be exhaustive. It will be assessed, however, in light of what was reasonably feasible. (Irritated Residents, supra, 107 Cal.App.4th at pp. 1390-1391.) Describing and analyzing each specific chemical the trains might theoretically carry in the future would be speculative and infeasible, and hence not required in this circumstance given the RSS and the FEIR have considered the possibility of a derailment of a train carrying airborne and other hazardous materials.

3. Traffic and Safety Impacts

A. Pedestrian safety

Long Beach contends that the FEIR fails as an informational document and does not satisfy CEQA with respect to pedestrian safety and traffic impacts because it does not adequately analyze or mitigate project-related student traffic, drop-off, and pedestrian safety.

Specifically, Long Beach observes that two of the project site’s four sides do not have continuous sidewalks and hence provide unsafe travel routes. The Pedestrian Safety Analysis is faulty, Long Beach argues, because the FEIR does not consider the possibility that students might travel those areas and there is no analysis of the potential dangers facing students who walk through the industrial areas in the east and southeast of the project.

The FEIR’s Chapter 3D, “Pedestrian Access and Safety” analyzes whether the project would create unsafe walking routes to schools for students walking from local neighborhoods. Because of the importance of safety for pedestrian students, LAUSD decided to include a separate pedestrian safety subchapter in the FEIR. The FEIR declares that the only residential areas served by the project lie to the west of the site, not in the industrial east and southeast of the school. Figures 3D-1 and 3D-2 depict the recommended pedestrian routes, which do not take students to the industrial areas on the east and southeast side of the project. The portions of the sidewalk that are “discontinuous” are located south of the project and east of Santa Fe Avenue. To the degree that students might reside to the east and southeast of the project, they would attend schools in Long Beach and not LAUSD. The FEIR reasonably declares that “No students are expected to travel from the southeast or east of the project site since those areas are served by the Long Beach Unified School District.” After surveying the eastern boundary of the site, the FEIR finds that the industrial land uses bordering the rail line to the east preclude pedestrian access to the proposed site. Because pedestrian traffic to the east of the site would not generate any or even a significant impact, LAUSD was not required to provide additional detail or analysis related to potential pedestrian traffic east of the site. (See Guidelines, § 15143.)

Long Beach observes that LAUSD’s math is wrong. In its comments, it explained that LAUSD undercounted the number of students expected to walk or bike to the school. Long Beach explains that LAUSD calculated that 21.6 percent of its estimated 1,809 students bike or walk to school would equal 125 students, rather than 391, as Long Beach computed. LAUSD responded to this comment by acknowledging that while its consultants had originally undercounted the number of students expected to walk or bike to school at 125, they modified the analysis after the comment to reflect the accurate number. After recognizing the math error, the consultants nonetheless reached the same conclusions about impacts on traffic safety.

The problems of students walking across the school’s access driveway as staff vehicles enter and exit the site and the possibility of students crossing at locations without signals are also identified in the FEIR. The pedestrian subchapter found that “[w]ith 390 students expected to walk/bike to the proposed project, impacts could be potentially significant, without sufficient mitigation.” The FEIR then describes mitigation measures 3D-1 through 3D-4, and concludes that with implementation of those measures, pedestrian safety impacts would be reduced to less than significant levels.

Without any analysis of why it is legally insufficient, Long Beach adds in an offhand manner that the four mitigation measures constitute “deferred mitigation at that[, and] do not satisfy CEQA.” Impermissible deferral of mitigation measures occurs when an EIR puts off analysis or orders a report without either setting standards or demonstrating how the impact can be mitigated in the manner described in the EIR. (See Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 794 [requiring report without established standards is impermissible delay]; Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1275 [requiring biological report and compliance with any recommendations in the report is impermissible deferral of mitigation measure].) Here, mitigation measures 3D-1 through 3D-4 are not impermissibly delayed. Those measures are specific and contain identifiable timelines. They require no further evaluation or investigation and hence do not delay mitigation.

In short, the basis for the pedestrian safety consultant’s conclusions are described in its 108-page Traffic Impact Analysis, which is contained in the FEIR as Appendix H, and so the FEIR’s ultimate conclusions are supported by substantial evidence and the FEIR is sufficient as an information document on the topic. (Bakersfield, supra, 124 Cal.App.4th at p. 1197.) Furthermore the FEIR properly contains facts and analysis in sufficient detail to enable non-participants to understand and to consider the issues raised. (Ibid.)

B. Parking

Long Beach challenges the FEIR’s parking analysis largely because there is no arrangement for student parking, despite LAUSD’s estimate that there would be a demand for 402 student spaces. Claiming that the estimate of 402 is “artificially low,” Long Beach argues that drivers will be forced to search for on-street parking and compete with neighborhood residents for spots. Long Beach adds that the parking problem will be compounded during football and soccer games.

LAUSD counters that the FEIR adequately analyzes the potential parking impacts. LAUSD’s traffic consultant analyzed the student population at the school and estimated, based on the Institute of Transportation Engineers’ (ITE) Parking Generation (3d ed. 2004) that there would be a total parking demand of 402 spaces. However, that estimate was probably inflated, LAUSD explained, because it included both staff cars even though the project provides parking for staff and students who would be dropped off, bike, or take public transportation to school. After surveying the adjacent neighborhoods at various periods of the day, including times of peak parking demand, evenings, and during athletic events, the traffic consultant determined that more than 1,000 spaces are available at any given time of the day within one-fourth of a mile of the site, even factoring in time-restricted spaces, and limited parking for street cleaning and trash pick-ups. Based thereon, the traffic consultant concluded that “the existing parking supply would provide sufficient unutilized on-street parking to meet the proposed school’s projected demand of 402 student parking spaces during the day[,] the adult school program[,] and the combined demand associated with simultaneous soccer and football games.” After concluding that no project-related parking impacts existed, LAUSD nonetheless plans to limit the number of students parking in local neighborhoods by “promoting alternative transportation modes for students and staff through . . . public-transit, [and] designation of on-site parking areas for carpools and vanpools.”

Long Beach quotes San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656 that “[t]he social inconvenience of having to hunt for scarce parking spaces is not an environmental impact; the secondary effect of scarce parking on traffic and air quality is.” (Id. at p. 697.) An EIR must “address the secondary physical impacts that could be triggered by a social impact. [Citation.]” (Ibid., citing Guidelines, § 15131, subd. (a).)

However, the FEIR and its supporting document, namely, the Traffic Impact Analysis, provide a detailed analysis of the parking impacts and demonstrate that there exists nearly three times more spaces than even the conservatively-estimated demand. The analysis provides substantial evidence to support LAUSD’s conclusion in the FEIR that there will be no significant parking impacts. (Bakersfield, supra, 124 Cal.App.4th at pp. 1197-1198; Guidelines, § 15384.)

Long Beach describes parking in the area as “scarce” and the spots as “coveted.” It cites its comment that “school-generated parking demands in the residential area west of the project site could lead to parking restrictions that would force most student and visitor parking into the adjacent industrial area . . . .” (Italics added.) But, substantial evidence includes “facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.” (Bakersfield, supra, 124 Cal.App.4th at p. 1198, quoting from § 21082.2, subd. (c); Guidelines, § 15384.) Long Beach provided no facts to support its hypothesis that parking is scarce. But, LAUSD did. As noted in its response, the consultants found more than three times the needed space available within one-fourth of a mile of the school site, Long Beach’s supposition is unfounded.

4. Land use

Long Beach contends that the FEIR fails to include analysis of land uses and omits discussion about whether the project is consistent with Long Beach’s General Plan in violation of Guidelines section 15125, subdivision (d).

Long Beach’s General Plan’s land use element designates the project site as Light Industry where land is “strictly intended to be preserved as industrial employment opportunity areas and other, non-industrial uses are strongly discouraged.” Long Beach’s Zoning Code identifies the project site as medium industrial (IM). LAUSD’s Initial Study noted that the project would have a “less than significant impact” with respect to conflicts with applicable land use plans because it expected the project to qualify for an Administrative Use Permit. Then, LAUSD declared itself exempt from local zoning ordinances by passing a resolution rendering inapplicable Long Beach’s Zoning Ordinance. (Gov. Code, § 53094, subd. (b).)

Long Beach argues that LAUSD remains responsible for analyzing the project’s consistency with Long Beach’s General Plan because “[z]oning ordinances are subservient to, and must be consistent with, general plans – not the reverse . . . .”

First, Long Beach misperceives the Guidelines when it challenges LAUSD for failing “to address the need for an analysis of the project’s consistency with the Long Beach General Plan.” (Italics added.) “[W]hile there is no requirement that an EIR itself be consistent with the relevant general plan, it must identify and discuss any inconsistencies between a proposed project and the governing general plan. [Citation.]” (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 360-361, italics added, citing Guidelines, § 15125, subd. (d).) “Because IERs are required only to evaluate ‘any inconsistencies’ with plans, no analysis should be required if the project is consistent with the relevant plans. [Citation.]” (Kostka, supra, § 12.28, p. 605, italics added.)

LAUSD’s responses explained that no inconsistency exists, with the result that it is not required to discuss the Long Beach General Plan in the FEIR. The Initial Study considered possible inconsistencies between the project and the general plan and concluded there was a less-than-significant impact or conflict with any applicable land use plan, including a general plan. The Initial Study explained that the proposed project was “not expected to conflict with applicable land use plans” because “[t]he project site and land uses to the east and south are designated as Light Industry in the City of Long Beach General Plan Land Use Element.” Long Beach’s Zoning Code designates the area as IM. Schools are permitted in designated IM districts, the Initial Study explained, provided they meet applicable zoning criteria. After explaining that the project was expected to meet those criteria, the Initial Study concluded that the project “would . . . be compatible with adjacent uses” and that the commercial area to the east of the rail line extending to the 710 freeway was “generally considered compatible with schools.” Therefore, the Initial Study decided there was less than significant land use impact and so compatibility with Long Beach’s General Plan would not be analyzed in the EIR.

Long Beach commented that secondary schools are not identified as permitted uses in the zoning district IM. In its response, LAUSD pointed out that it had exercised its local zoning exemption power under Government Code section 53094 “render a city or county zoning ordinance inapplicable to a proposed use of property by the school district.” (Gov. Code, § 53094, subd. (b).)

In sum, because LAUSD explained how the proposed school would not conflict with the Long Beach General Plan, and because the school district exercised its exemption power with respect to any possible conflict with Long Beach’s Zoning Code, no inconsistencies exist and so the FEIR is not required to provide additional analysis. (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors, supra, 91 Cal.App.4th at pp. 360-361, citing Guidelines, § 15125, subd. (d); Kostka, supra, § 12.28, p. 605.) Notwithstanding the lack of any obligation to discuss inconsistencies, the FEIR actually contains a seven-paragraph discussion about the Long Beach and Carson general plans and zoning ordinances in section 5.1, entitled “Environmental Effects Found Not to be Significant.”

5. Project alternatives

Long Beach contends that LAUSD fails to undertake a meaningful analysis of alternatives, with the result it fails as an informational document.

An EIR need not consider every conceivable alternative to a project. (Guidelines, § 15126.6, subd. (a).) The Guidelines require that the EIR “describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives. An EIR . . . . must consider a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation. An EIR is not required to consider alternatives which are infeasible. The lead agency is responsible for selecting a range of project alternatives for examination and must publicly disclose its reasoning for selecting those alternatives.” (Guidelines, § 15126.6, subd. (a), italics added.)

“CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose. [A]n EIR for any project subject to CEQA review must consider a reasonable range of alternatives to the project, or to the location of the project, which: (1) offer substantial environmental advantages over the project proposal (Pub. Resources Code, § 21002); and (2) may be ‘feasibly accomplished in a successful manner’ considering the economic, environmental, social and technological factors involved. [Citations.]” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 566, citing § 21061.1; Guidelines, § 15364.) Lead agencies are bound by the rule of reason: The Guidelines specify that “[t]here is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason. (Citizens of Goleta Valley v. Board of Supervisors[, supra,] 52 Cal.3d 553 and Laurel Heights Improvement Association v. Regents of the University of California[, supra,] 47 Cal.3d 376).” (Guidelines, § 15126.6, subd. (a).) “The alternatives shall be limited to ones that would avoid or substantially lessen any of the significant effects of the project.” (Guidelines, § 15126.6, subd. (f).)

Long Beach contends first that the FEIR does not evaluate a reasonable range of alternatives. It argues that although the FEIR includes a “no project alternative,” LAUSD “then includes a relabeled version of this same alternative (dubbed ‘Continuation of Existing Use’) under the guise of satisfying the requirement that the EIR analyze a range of alternatives.” Hence, Long Beach argues the FEIR only considers two real alternatives to the project which, it contends, is not an adequate range. Stated otherwise, Long Beach appears to contend that the “no project alternative” and the “continuation of existing use” alternative are the same, with the result that the FEIR’s range of alternatives is two.

Chapter 4 of the FEIR, entitled “Alternatives Analysis,” discusses the following alternatives: expanding the existing Banning and Carson High Schools, developing a different type of school on the proposed site, and selecting among seven specific alternative sites for the project. LAUSD then selects and analyzes in further detail the alternatives of (1) not constructing the project, (2) continuing the existing use on the site, (3) reducing the project size, and (4) alternative sites. Each alternative was measured against the project’s objectives. Even if the “no project alternative” is identical to the alternative of “continuing the existing use,” LAUSD’s FEIR contains analysis of a wider range of alternatives than merely the two cited by Long Beach. Otherwise, LAUSD is not required to consider alternatives that do not feasibly attain most of the basic objectives of the project or that would not avoid or substantially lessen any of the significant effects of the project. (Guidelines, § 15126.6, subd. (a).)

Long Beach’s argument is unavailing that the trial court improperly placed on it, not the lead agency, the obligation to demonstrate better sites. LAUSD explained that the criteria used to generate and analyze the alternative sites came about after (1) holding four community meetings focused on site selection, alternative sites, and selection criteria; (2) reviewing site selection and alternative sites; (3) affording community input at its January 25, 2005 Board Meeting, and an augmented facilities committee meeting on January 27, 2005; and (4) applying the site selection criteria established by its Facilities Service Division. Based on the information gathered there, the FEIR explains that each alternative site was infeasible or did not fulfill the project objectives because, inter alia, of the proximity to hazardous materials pipelines or an oil tank farm, the inability to meet certain state guidelines for schools, or to alleviate the demand for high school seats, and some locations were outside of LAUSD’s boundaries or were inappropriately close proximity to industrial uses. The FEIR also explains that the “no project alternative” was not feasible because it contravened the very purpose of constructing a new school by forcing students to continue to attend the overcrowded Banning and Carson High Schools.

Long Beach next argues that the alternatives analysis is conclusory and lacking in supporting evidence. It argues there is no explanation of the criteria used to generate the alternative sites and LAUSD’s response to comments on this point is equally deficient.

“The EIR shall include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project. A matrix displaying the major characteristics and significant environmental effects of each alternative may be used to summarize the comparison.” (Guidelines, § 15126.6, subd. (d).) “An EIR must describe all reasonable alternatives to the project [citation], including those capable of reducing or eliminating environmental effects; the specific alternatives of ‘no project’ must also be evaluated. [Citations.] The discussion of alternatives need not be exhaustive, and the requirement as to the discussion of alternatives is subject to a construction of reasonableness. The statute does not demand what is not realistically possible, given the limitation of time, energy and funds.” (Foundation for San Francisco’s Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, 909-910; see also Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1351; cf. § 21002.)

In our view, the FEIR’s analysis of alternatives is sufficiently informative to satisfy CEQA. LAUSD made an objective, good-faith effort to provide a meaningful analysis of the project’s alternatives. It compared and contrasted the several project alternatives to allow meaningful evaluation, analysis and comparison. Chapter 4 contains 29 pages of discussion and analysis of alternatives, and includes a 9-page matrix. In addition to the analysis contained in the FEIR, LAUSD’s response to comments added detailed information explaining the basis for its conclusion that the site chosen was the best alternative. CEQA requires neither that the EIR be perfect, nor that the analysis be exhaustive. (Bakersfield, supra, 124 Cal.App.4th at p. 1197.) At bottom, Long Beach’s criticism is that six of the sites LAUSD rejected were located in Carson, whose population in part, the school is intended to serve, and the only sites deemed viable were those in Long Beach, whose residents will not attend the school. Yet, courts do not “ ‘pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.’ [Citation.]” (Laurel Heights, supra, 47 Cal.3d at p. 392.)

As our Supreme Court explained in Laurel Heights, “A court may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. [Citation.] A court’s task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. We have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so. Our limited function is consistent with the principle that ‘The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.’ [Citation.]” (Laurel Heights, supra, 47 Cal.3d at p. 393.) Long Beach has not demonstrated on appeal how LAUSD abused its discretion by failing to proceed in a manner required by CEQA, or how its conclusions are unsupported by substantial evidence, or how this FEIR is insufficient as an information document.

DISPOSITION

The judgment is affirmed. Appellant to bear the costs of appeal.

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

CITY OF LONG BEACH,

Plaintiff and Appellant,

v.

LOS ANGELES UNIFIED SCHOOL DISTRICT et al.,

Defendants and Respondents.

B207721

(Los Angeles County

Super. Ct. No. BS109101)

ORDER CERTIFYING OPINION

FOR PUBLICATION

THE COURT:

The Los Angeles Unified School District has requested that our opinion, filed on July 16, 2009, be certified for publication. It appears that our opinion meets the standards set forth in California Rules of Court, rule 8.1105(c). The request is granted. The opinion is ordered published in the Official Reports.

Filed 8/17/09 (original opn. filed 8/11/09 was vacated)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE ANGEL FLORES,

Defendant and Appellant.

F055859

(Super. Ct. No. SF014436A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Gary A. Ingle, Judge.

Gretchen Franklin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted Jose Angel Flores of violating Penal Code sections 4501.1 (battery by gassing), 4501.5 (battery by a prisoner on a nonprisoner), and 69 (interfering with a peace officer in the performance of his duties). Flores argues reversal is required because the trial occurred before his Pitchess motion was heard. We conclude that Flores waived the right to a hearing on the motion by refusing to continue the trial date.

In the published portion of the opinion, we conclude that battery by a prisoner on a nonprisoner is a necessarily included offense of battery by gassing. Accordingly, Flores should not have been convicted of violating section 4501.5 once the jury found him guilty of violating section 4501.1. We therefore will vacate the section 4501.5 conviction and remand the matter to the trial court for resentencing.

FACTUAL AND PROCEDURAL SUMMARY

Flores was imprisoned at Wasco State Prison. On November 15, 2007, he was being transported between cells by Correctional Officer Jerry Brazeal. Brazeal testified that after Flores arrived in his new holding cell, Brazeal instructed Flores to stand facing the back wall so Brazeal could exit the cell. As Brazeal left the cell, he heard Flores spit, and felt spit hit the back of his uniform. Brazeal turned around and Flores made a derogatory comment and lunged towards Brazeal. Brazeal pushed Flores against the back wall. Flores then spit in Brazeal’s face. Flores was subdued without further incident.

Flores was charged with aggravated battery by gassing (§ 4501.1), battery by a prisoner on a nonprisoner (§ 4501.5), and interfering with an officer in the performance of his duties (§ 69). Each count also alleged that Flores had suffered a prior conviction within the meaning of section 667.5, subdivision (b). The jury convicted Flores of each count and found the enhancement on each count to be true. The trial court sentenced Flores to the midterm of three years on count 1, one year consecutive on count 2, and one year for the section 667.5 enhancement, for a total term of five years.

DISCUSSION

I. Failure to Hear Pitchess Motion before Trial*

Flores’s counsel filed a motion seeking any complaints filed against the three correctional officers involved in the incident, as well as the records of any disciplinary action taken against the three officers (a Pitchess motion). The hearing on the motion was scheduled for July 9, 2008. The notice of motion correctly indicated that trial was scheduled for July 7, 2008, two days before the scheduled hearing on the motion.

At the June 18, 2008, motions hearing, counsel stated he was requesting a continuance of the trial date so the Pitchess motion could be heard before the trial. The People did not object to the request. The trial court advised Flores that he had a right to a speedy trial and asked if he would waive that right to permit a hearing on the Pitchess motion. Flores refused to do so. The trial court then explained that if Flores did not agree to a continuance, the trial would proceed without the information sought in the motion. Flores stated that he understood. The trial court then gave Flores an opportunity to speak with his attorney. After a short recess, Flores informed the trial court he wished to go to trial as scheduled on July 7, 2008. The trial court confirmed Flores had an opportunity to speak with his attorney and that he understood that if he went to trial on July 7 there would not be a hearing on the Pitchess motion. Flores stated he understood what he was giving up. Trial counsel then stated that he objected to going to trial on July 7.

At the June 25 trial readiness hearing, Flores’s counsel again advised the trial court that Flores refused “to waive time” to permit a hearing on the Pitchess motion. Flores did not comment on the issue.

First, Flores contends the above facts constituted ineffective assistance of counsel and an abuse of the trial court’s discretion. He points out that the last day for the commencement of trial pursuant to section 1382, subdivision (a)(2) was July 20, 2008. Counsel and the trial court apparently believed this section required the trial to commence no later than July 7, 2008. This mistake, according to Flores, resulted in his counsel being ineffective and the trial court committing an abuse of its discretion.

Second, Flores argues that trial counsel had the authority to waive time for trial beyond the statutory limits without his consent. He argues that counsel was ineffective for failing to do so, and the trial court abused its discretion because it did not realize counsel had this right. Flores argues that these errors resulted in his believing he had to choose between a speedy trial and having his motion heard.

We see the issue differently. Flores made it abundantly clear that he wanted the trial to commence as quickly as possible, even if it meant giving up his Pitchess motion. Flores made his decision after being advised of the consequences by the trial court and discussing the matter with counsel. Flores wants us to reverse a decision he now regrets. We will not do so.

The record indicates Flores received competent legal advice (with the possible exception of being informed of an incorrect last date for his right to a speedy trial), was advised of the consequences of refusing a continuance, and made an informed decision to forgo the right to have a hearing on the Pitchess motion. When a person knows he or she has a right and then chooses to give up that right, the person has waived the right. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.) Flores waived his right to a hearing on the Pitchess motion. (Cowan, at p. 371.)

Nor is there merit to Flores’s claim that counsel should have acted against his wishes and continued the trial. While counsel may have had such a right, counsel cannot be criticized for acquiescing in Flores’s decision. Clients frequently make decisions that are not in their best interests. The record indicates that Flores was a difficult client, one prone to acting against the advice of counsel. Under these circumstances, we will not criticize trial counsel. Flores was made aware of his options, stated he understood them, and received exactly what he wanted — a trial beginning on July 7. This waiver precludes review of the issue.

II. The Sections 4501.1 and 4501.5 Convictions

Flores was convicted of violating sections 4501.1 and 4501.5. The trial court imposed consecutive sentences on these counts. Flores argues, and the People concede, that a violation of section 4501.5 is a necessarily included offense of a violation of section 4501.1. We agree.

The issue of lesser included offenses arises because of the tension between sections 954 and 654. Section 954 provides that an accusatory pleading may charge different statements of the same offense, and that the defendant may be convicted of “any number of the offenses charged.” (Ibid.) Section 654 provides that while a defendant may be convicted of any number of offenses charged, he or she may be sentenced only once for each criminal act. (Id., subd. (a).)

“In People v. Pearson (1986) 42 Cal.3d 351, 359, we recognized the tension between these statutes, observing: ‘This court has long struggled with the problem of permitting multiple convictions while protecting the defendant from multiple punishment.’ The solution we have adopted is, in general, to permit multiple convictions on counts that arise from a single act or course of conduct—but to avoid multiple punishment, by staying execution of sentence on all but one of those convictions. [Citation.]

“But despite the seemingly absolute language of section 954 (‘the defendant may be convicted of any number of the offenses charged’), there is an exception to the general rule permitting multiple convictions. ‘Although the reason for the rule is unclear, this court has long held that multiple convictions may not be based on necessarily included offenses. [Citations.]’ [Citation.] ‘“The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.” [Citations.]’ [Citation.]” (People v. Ortega (1998) 19 Cal.4th 686, 692, overruled on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1229.)

The test in Ortega is commonly referred to as the elements test. “The elements test is satisfied when ‘“all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” [Citation.]’ [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]” (People v. Lopez (1998) 19 Cal.4th 282, 288 (Lopez).)

There is, however, a second test for determining whether one offense is necessarily included in another offense, commonly referred to as the accusatory pleading test. Under the accusatory pleading test, “a lesser offense is included within the greater charged offense ‘“if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” [Citation.]’ [Citations.]” (Lopez, supra, 19 Cal.4th at pp. 288-289.)

In this case we must use the elements test because, as explained by the Supreme Court, a defendant cannot be convicted of a necessarily included offense unless it meets the elements test. (People v. Ramirez (2009) 45 Cal.4th 980, 985.) “‘Courts should consider [both] the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes.’ [Citation.]” (Ibid.) “Under the ‘elements’ test, we look strictly to the statutory elements, not to the specific facts of a given case. [Citation.] We inquire whether all the statutory elements of the lesser offense are included within those of the greater offense.” (Ibid.)

Section 4501.1 criminalizes the conduct commonly known as battery by gassing. The elements of a violation of this section are: (1) The defendant was confined in a state prison; (2) while confined, the defendant intentionally caused to be placed or thrown human bodily fluids or substances on the body of a peace officer or state prison employee; and (3) the bodily fluid actually made contact with the skin or a membrane of a peace officer or state prison employee. (Judicial Council of Cal. Crim. Jury Instns. (2008) CALCRIM No. 2722.)

Section 4501.5 criminalizes a battery committed by a prisoner on a nonprisoner. The elements of a violation of this section are: (1) The defendant was confined in a state prison; (2) while confined, the defendant willfully touched the victim in a harmful or offensive manner; and (3) the victim was not confined in a state prison. (CALCRIM No. 2723.)

CALCRIM No. 2723 explains that the touching can be done indirectly by causing an object to touch the other person, and that the slightest touching can constitute a battery. (See also People v. Myers (1998) 61 Cal.App.4th 328, 335; People v. Wright (1996) 52 Cal.App.4th 203, 210, fn. 17; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 13, p. 646.)

It is obvious that an individual confined in a state prison who gasses a peace officer, such as a correctional guard, or other state prison employee, will always violate both sections 4501.1 and 4501.5. The act of placing or throwing human bodily fluids or excrement, or a substance containing either bodily fluids or excrement, thereby causing such substance to contact the skin or membrane of the employee, also is a harmful or offensive touching. Both sections require the defendant to have acted in a willful manner. By definition, a peace officer or a state prison employee is an individual who is not confined in the state prison. Therefore, by establishing that the defendant has violated section 4501.1, the prosecution also has established that the defendant violated section 4501.5. We cannot conceive of any set of circumstances where a different result could occur.

One could easily conceive of a situation, however, where section 4501.5 is violated and section 4501.1 is not. The act of an individual who is confined in a state prison striking a correctional officer with his fist would be a battery under section 4501.5, but would not constitute gassing as defined in section 4501.1. The prisoner did not utilize human excrement or other bodily fluids in committing the battery. Because every battery by gassing also constitutes a battery by a prisoner on a nonprisoner, battery by a prisoner on a nonprisoner is a necessarily included offense to battery by gassing. Because section 4501.5 is a necessarily included offense to a violation of section 4501.1, Flores should not have been convicted of violating section 4501.5 once the jury found he had violated section 4501.1.

DISPOSITION

The conviction for violating section 4501.1 is affirmed. The conviction for violating section 4501.5 is vacated. The matter is remanded for resentencing.

CORNELL, J.

WE CONCUR:

ARDAIZ, P.J.

VARTABEDIAN, J.

Filed 8/17/09

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

FASHION VALLEY MALL, LLC,

Plaintiff and Appellant,

v.

COUNTY OF SAN DIEGO,

Defendant and Respondent.

D053411

(Super. Ct. No. 37-2007-00072513-

CU-MC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Yuri Hoffman, Judge. Affirmed.

Cahill, Davis & O’Neall, C. Stephen Davis, Chris K. O’Neall and Andrew W. Bodeau for Plaintiff and Appellant.

John J. Sansone, County Counsel, and Walter J. De Lorrell III, Senior Deputy County Counsel, for Defendant and Respondent.

Fashion Valley Mall, LLC (Mallco) appeals from the trial court’s summary judgment ruling in favor of the County of San Diego (the County) on Mallco’s complaint for a refund of property taxes. At issue is the trial court’s ruling that a 100 percent change in ownership occurred when record title in the Fashion Valley Shopping Mall in San Diego (the Mall) was transferred by Equitable Life Assurance Company of the United States (Equitable) to Mallco as Equitable’s initial capital contribution to Mallco’s parent company, Fashion Valley MM, LLC (FVM), which gave Equitable a 50 percent membership interest in FVM. Mallco contends that due to its membership interest in FVM, it retained 50 percent of the beneficial use of the Mall, and thus only a 50 percent change in ownership of the Mall occurred for purposes of property tax reassessment, rather than a 100 percent change in ownership as found by the trial court. As we will explain, we conclude that a 100 percent change in ownership of the Mall occurred, and accordingly we affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. The Transaction

In 2001, Equitable was the fee owner of 100 percent of the Mall when it entered into a transaction involving the transfer of its ownership of the real property (the Transaction). The issue in this appeal is whether, for property tax reassessment purposes, Equitable transferred all or only 50 percent of its ownership interest in the Mall.

The structure of the Transaction was as follows. Equitable and Simon Property Group, L.P. (Simon), created a Delaware limited liability company, FVM, to function as a holding company. Simon and Equitable became equal members in FVM, with each of them holding a 50 percent interest. Simultaneously, a wholly owned subsidiary of FVM was formed — Mallco — as the operating company for FVM, with the role of holding title to the Mall and acting as the management, leasing and development agent for it. As each of their initial capital contributions to FVM, Equitable contributed the Mall, and Simon contributed $165 million.

As part of the Transaction, the parties used a grant deed recorded in the San Diego County Recorder’s office to transfer record title in the Mall directly from Equitable to Mallco. A “Contribution Agreement” entered into by Equitable, Simon, FVM and Mallco detailed an off-record chain of title in which the grant deed transferring the Mall directly to Mallco from Equitable would “be deemed to be a contribution by Equitable of the Mall to [FVM], and the contribution of the Mall by [FVM] to Mallco,” resulting in FVM “hold[ing] title to the Mall in Mallco.” At closing, FVM was to make a special, one-time distribution to Equitable, equivalent to Simon’s initial $165 million capital contribution to FVM, and Simon was designated as the managing member of FVM.

B. Reassessment of the Mall

In August 2002 the San Diego County Assessor determined that the Transaction resulted in a 100 percent change in ownership of the Mall. It therefore reassessed the Mall pursuant to Revenue and Taxation Code section 75.10, increasing the assessed value of the Mall for property tax purposes from approximately $247 million to $360 million. Mallco filed an appeal of the assessor’s decision with the San Diego County Assessment Appeals Board (the AAB).

C. The Reformation Agreement

While Mallco’s appeal of the assessor’s decision was pending before the AAB, Equitable, Simon, FVM and Mallco entered into a June 2004 agreement entitled “Agreement to Rescind, Restructure and Reform the Contribution Agreement Dated September 28, 2001″ (the Reformation Agreement). The Reformation Agreement provided that it was intended to “expressly document[] a change in ownership of only fifty percent (50%) of the Mall, by providing that Equitable transfer one-half of its ownership interest in the Mall to [Simon] in exchange for [Simon's] [i]nitial [c]apital [c]ontribution and thereafter requiring both Equitable and [Simon] to transfer their respective one-half ownership interests in the Mall to [FVM].” (Italics added.)

The Reformation Agreement sought to effectuate a transfer of only 50 percent ownership of the Mall by providing that “[f]or property tax purposes only” certain provisions in the Contribution Agreement describing the Transaction were “rescinded, reformed, restructured, superseded and replaced” in favor of provisions stating that upon closing of the deal described in the Contribution Agreement the following shall occur: (1) Equitable shall transfer an undivided 50 percent interest in the Mall to Simon; (2) as consideration, Simon shall transfer its initial contribution in FVM to Equitable; (3) Equitable shall transfer to FVM “as a capital contribution” its remaining undivided 50 percent interest in the Mall; (4) Simon shall transfer to FVM “as a capital contribution” the 50 percent interest in the Mall that it received from Equitable; and (5) Equitable shall deed the Mall to Mallco. The Reformation Agreement further provided that the grant deed transferring the Mall directly from Equitable to Mallco “shall be deemed to be a contribution by Equitable and Simon of their respective interests in the Mall to [FVM], and the [c]ontribution of the Mall by [FVM] to Mallco.”

Emphasizing that the parties intended the prior version of the Contribution Agreement to remain in effect for all purposes except for the assessment of property taxes, the Reformation Agreement provided that it “shall be operative, and is to be given effect, . . . solely for property tax purposes. In all other respects, the Contribution Agreement, and the structure of the transaction described in the Contribution Agreement, shall remain in full force and effect for all other purposes, including without limitation income tax and securities purposes and commercial and real estate activities.” (Italics added.)

D. The Ruling of the Assessment Appeals Board

In its appeal to the AAB, Mallco relied on the Reformation Agreement to argue that only a 50 percent change in ownership in the Mall had occurred. The AAB ruled against Mallco, concluding that a 100 percent ownership change occurred, and that the Reformation Agreement was not effective to change the property tax effects of the Transaction in that it did not actually rescind the Transaction but instead purported to reform it “solely for property tax purposes,” while otherwise maintaining the status quo.

E. Mallco Files this Litigation and the Parties File Cross-motions for Summary Judgment

Mallco then filed an action for refund of property taxes against the County in the superior court pursuant to section 5140, seeking a ruling setting aside the assessor’s reassessment of the Mall.

The parties submitted cross-motions for summary judgment based on the stipulated facts and exhibits contained in the administrative record of the proceeding before the AAB. The trial court ruled in favor of the County, holding that “the Final Decision of the [AAB] upholding the County Assessor’s 100% change in ownership determination was correct.”

Mallco appeals from the judgment.

II

DISCUSSION

A. Standard of Review

The issue of whether, based on a set of undisputed facts, there has been a change in ownership for purposes of property tax assessment “is a question of law subject to this court’s independent de novo judicial review.” (Shuwa, supra, 1 Cal.App.4th at p. 1644.) We thus apply a de novo standard of review in considering Mallco’s appeal of the trial court’s ruling.

B. Applicable Law

Article XIII A of the California Constitution (Proposition 13) provides that real property shall be reassessed for property tax purposes when a “change in ownership” occurs or the property is “newly constructed” or “purchased.” (Cal. Const., art. XIII A, § 2, subd. (a).) Because the meaning of “change of ownership” as used in Proposition 13 was not defined, the Legislature enacted various provisions defining that term. (§§ 60-66; Auerbach v. Assessment Appeals Bd. No. 1 (2006) 39 Cal.4th 153, 161 (Auerbach).) “[S]ection 60 . . . contains the basic change-in-ownership test; section 61 . . . contains examples of what is a change in ownership; and section 62 . . . contains examples of what is not a change in ownership.” (Auerbach, at p. 161.)

“[T]he Legislature intended for section 60 to contain the overarching definition of a ‘change in ownership’ for reassessment purposes.” (Pacific Southwest, supra, 1 Cal.4th at p. 162.) Section 60 states: “A ‘change in ownership’ means a transfer of a present interest in real property, including the beneficial use thereof, the value of which is substantially equal to the value of the fee interest.” Thus, as our Supreme Court has explained, the test set forth in section 60 ” ‘contains three parts: “A ‘change in ownership’ means [1] a transfer of a present interest in real property, [2] including the beneficial use thereof, [3] the value of which is substantially equal to the value of the fee interest.” ‘ ” (Auerbach, supra, 39 Cal.4th at p. 161.)

Sections 61 and 62, which set forth examples of what is and is not a change in ownership, were intended “to elaborate on common transactions” because “[l]ay assessors and taxpayers would otherwise have difficulty applying [the] legal concepts” contained in section 60’s definition. (Pacific Southwest, supra, 1 Cal.4th at p. 161.) Thus, ” ‘common types of transfers were identified and concrete rules for them were set forth in proposed Sections 61 and 62.’ ” (Ibid.)

Section 61, subdivision (j) applies here because it establishes that the transfer of real property from a corporation (such as Equitable) to a limited liability company (such as FVM) is a change in ownership. Specifically, section 61, subdivision (j) provides that “[t]he transfer of any interest in real property between a corporation, partnership, or other legal entity and a shareholder, partner, or any other person” constitutes a change in ownership. “Person” as defined in the Revenue and Taxation Code — and as used in section 61, subdivision (j) — includes a limited liability company and thus encompasses FVM. (§ 19.)

Another provision relevant to this litigation is section 62, subdivision (a)(2). Under that provision, with certain exceptions, “[a]ny transfer between an individual or individuals and a legal entity or between legal entities, such as a cotenancy to a partnership, a partnership to a corporation, or a trust to a cotenancy, that results solely in a change in the method of holding title to the real property and in which proportional ownership interests of the transferors and transferees, whether represented by stock, partnership interest, or otherwise, in each and every piece of real property transferred, remain the same after the transfer.” (Ibid., italics added) Mallco argued to the AAB that due to the Reformation Agreement, section 62, subdivision (a)(2) applied to the Transaction.

C. The Reformation Agreement Does Not Apply

Before we analyze whether the Transaction created a change in ownership for purposes of property tax reassessment, we must first determine which version of the Transaction is applicable — the version set forth in the original documentation or the version set forth in the Reformation Agreement. As we will explain, because the Reformation Agreement purports to apply “[f]or property tax purposes only,” it is a sham transaction that is ineffective to change the terms of the Transaction for purposes of a property tax analysis.

Of central importance here, the Reformation Agreement provided that it “shall be operative, and is to be given effect, . . . solely for property tax purposes. In all other respects, the Contribution Agreement, and the structure of the transaction described in the Contribution Agreement, shall remain in full force and effect for all other purposes, including without limitation income tax and securities purposes and commercial and real estate activities.” The Reformation Agreement expressly provided that the recorded grant deed would remain unchanged, and it made no provision for any changes to the FVM LLC Agreement, which continues to reflect the Transaction as originally entered into by the parties, including that Equitable would contribute 100 percent of the Mall to FVM as its initial capital contribution, and that Simon would contribute $165 million to FVM as its initial capital contribution.

Mallco has cited no authority, and we are aware of none, permitting a transaction to simultaneously exist in two different forms — i.e., “solely for property tax purposes” on the one hand, and for “income tax and securities purposes and commercial and real estate activities” on the other hand. Because the form of the Transaction as described in the Reformation Agreement purports to exist solely for the purpose of attempting to avoid a property tax reassessment, while the original form of the Transaction continues to exist for all other purposes — and is consistent with the Transaction as set forth in other documents, including the FVM LLC Agreement — the Transaction described in the Reformation Agreement is a mere fiction.

Analogous situations are discussed by federal courts under the “sham-in-fact” doctrine in the area of federal income taxation. Under that doctrine, “[s]hams in fact are transactions that never occur. In such shams, taxpayers claim deductions for transactions that have been created on paper but which never took place.” (Kirchman v. C.I.R. (11th Cir. 1989) 862 F.2d 1486, 1492 (Kirchman).) Under the sham-in-fact doctrine, “paper transactions which solely attempt to create deductible losses or expenses are not recognized.” (Dow Chem. Co. v. United States (E.D. Mich. 2003) 250 F.Supp.2d 748, 812.) In deciding whether a transaction is a sham in fact, courts ” ‘will ignore accounting tricks and other transactional artifices’ ” and will “consider[] whether appropriate business formalities are employed, industry customs and practices are followed, and there is compliance with relevant commercial norms.” (Id. at p. 811.)

Here, as in other shams in fact, the Reformation Agreement is nothing more than a paper transaction and a transactional artifice that exists for the purpose of seeking to avoid tax liability. It has no economic substance other than to avoid tax liability, and is thus a legal fiction that cannot be given effect for the purposes of determining Mallco’s property tax liability. ” ‘ “[A] transaction is to be given its tax effect in accord with what actually occurred and not in accord with what might have occurred.” ‘ ” (Penner v. County of Santa Barbara (1995) 37 Cal.App.4th 1672, 1679, italics added, quoting Don E. Williams Co. v. Commissioner (1977) 429 U.S. 569, 579.) Because the parties did not reform the Transaction for all purposes, and did not amend all of the documents relevant to the Transaction, including the FVM LLC Agreement, what actually occurred is the Transaction as described in the original documents. Because the Reformation Agreement is a sham, we will not consider it when determining whether there was a change in ownership of the Mall for property tax purposes. ” ‘To hold otherwise would be to exalt artifice above reality’ ” (Shuwa, supra, 1 Cal.App.4th at p. 1650), which we refuse to do.

D. Equitable Did Not Retain a Beneficial Interest in the Mall

We now turn to the issue of whether, based on the Transaction as originally structured, there was a 100 percent change in ownership, as the County contends, or only a 50 percent change in ownership, as Mallco contends.

1. Beneficial Interest Must Transfer for a Change in Ownership to Occur

As we have explained, section 61, subdivision (j) applies here. It states that a change in ownership occurs when there is a “transfer of any interest in real property between a corporation, partnership, or other legal entity and a shareholder, partner, or any other person.” (Ibid.) Equitable — a New York corporation — transferred 100 percent of its fee interest in the Mall to FVM — a limited liability company classified as a “person” for the purposes of the statute (§ 19). The County contends that, based on section 61, subdivision (j), we should conclude that the Transaction created a 100 percent change in ownership of the Mall.

However, Mallco argues that in addition to applying section 61, subdivision (j), we also must look to the general definition of a change in ownership set forth in section 60. One of the three requirements for a change in ownership set forth in section 60 is a transfer of the beneficial use of an interest in real property. (Auerbach, supra, 39 Cal.4th at p. 161 [" ' "A 'change in ownership' means [1] a transfer of a present interest in real property, [2] including the beneficial use thereof, [3] the value of which is substantially equal to the value of the fee interest” ‘ ” (italics added)].) “The second prong of section 60 requires that to constitute a change in ownership there must be a transfer not only of bare legal title but also of the transferor’s beneficial or equitable interest in the land.” (Pacific Southwest, supra, 1 Cal.4th at p. 163.) Focusing on the concept of beneficial interest, Mallco argues that Equitable retained its beneficial interest in 50 percent of the Mall because it transferred the Mall to FVM, in which it holds a 50 percent membership interest. Mallco contends that due to its status as a member of FVM, “the full beneficial interest did not convey because Equitable always retained the right to receive one-half of the net income generated by the Mall; always bore one-half of the losses resulting from the operation of the Mall . . . ; was required to provide equally for the cash needs in respect of the Mall . . . ; retained its income tax basis in its retained 50% share of the Mall . . . ; and retained 50% percent control to direct the activities of [FVM].” (Fns. omitted.)

We agree that, despite the applicability of section 61, subdivision (j) to this case, we nevertheless should focus on whether there has been a transfer of a beneficial interest as set forth in section 60. As our Supreme Court has explained, “[a] factual analysis of section 60’s factors is always necessary” because “[s]ection 60 provides the ‘overarching definition’ of a change in ownership,” and “[t]he examples found in sections 61 and 62 must be interpreted in light of this definition.” (Auerbach, supra, 39 Cal.4th at p. 165, fn. 4; see also Pacific Southwest, supra, 1 Cal.4th at p. 169 [result of analysis under § 60 took precedence over specific exception set forth in § 62].) Thus, in light of section 60, we interpret the phrase “[t]he transfer of any interest in real property,” as used in section 61, subdivision (j), to mean “a transfer of a present interest in real property, including the beneficial use thereof, the value of which is substantially equal to the value of the fee interest” as set forth in section 60. (Italics added.)

2. Mallco Contends that Equitable Retained Its Beneficial Interest in the Mall Due to Its Status as a Member of FVM

The central question presented, therefore, is whether Equitable retained a 50 percent beneficial interest in the Mall due to its status as a member in FVM. Evidence Code section 662 creates a presumption that “[t]he owner of the legal title to property is presumed to be the owner of the full beneficial title,” and states that “[t]his presumption may be rebutted only by clear and convincing proof.” (Ibid.) Our Supreme Court has relied on this presumption in analyzing whether the beneficial use of a property transferred for property tax purposes. (Pacific Southwest, supra, 1 Cal.4th at p. 164; Auerbach, supra, 39 Cal.4th at pp. 158, 163.)

Mallco contends that it has rebutted the presumption set forth in Evidence Code section 662 by focusing on Equitable’s status as a member of FVM, including its right to receive the income generated by the Mall and its right to exercise control over the Mall. Mallco points to several provisions in the FVM LLC Agreement showing that, as a member of FVM, Equitable has a certain amount of control over the Mall, including participation in any decision to sell or encumber the Mall. Mallco also relies on provisions in the FVM LLC Agreement that it contends provides Equitable with 50 percent of the economic benefits from the Mall. Mallco draws the conclusion, which it wishes us to adopt, that because Equitable, as a member of FVM, is allocated 50 percent of the income or losses generated by the Mall and exercises some degree of control over the Mall, Equitable has a 50 percent beneficial interest in the Mall.

3. Mallco Improperly Focuses on Whether Equitable Obtained the Ultimate Economic Benefit From the Mall

At the heart of Mallco’s argument is its broad definition of beneficial interest. Mallco contends: “Whether a taxpayer has retained a beneficial interest in property requires consideration of the ultimate economic benefit.” According to Mallco, “the beneficial interest is determined by looking to the right to receive income generated from the property, or otherwise retain an economic interest in the property.” Mallco argues that applying the “ultimate economic benefit test,” Equitable retains a beneficial interest in the Mall, because, as a member of FVM, it purportedly obtains half of the income generated by the Mall. As we will explain, we reject Mallco’s argument because the “ultimate economic benefit” test is overly broad and finds no support in case law or the legislative history.

We begin with statements in the legislative history about the separate requirement in section 60 that, for a change in ownership in real property to occur, a transfer of beneficial interest must take place. According to the Task Force Report, the concept of “[b]eneficial use” in the definition of a “change in ownership” was meant “to protect custodianships, guardianships, trusteeships, security interests, and other fiduciary relationships from unintended change in ownership treatment.” (Task Force on Property Tax Admin., Rep. to Assem. Com. On Rev. & Taxation, supra, at p. 39.) The Task Force Report offered the example of a father who buys land for his minor son, “taking title as custodian for the son.” (Ibid.) It explained that “when the son reaches majority and gets the property outright there is no change in ownership” because “[t]he son was the real owner from the outset and when he reached majority there was no transfer of the beneficial use.” (Ibid.) In such a situation, “bare legal title” will have transferred, but the “beneficial interest” in the property will stay with the same person. (See Pacific Southwest, supra, 1 Cal.4th at p. 163 [distinguishing between transfer of "bare legal title" and "beneficial or equitable interest in the land"].)

Case law provides only limited clarification of the meaning of “beneficial use” as it appears in section 60. The most pertinent discussion appears in Pacific Southwest, supra, 1 Cal.4th 155. There, our Supreme Court addressed whether the beneficial use of property transferred to the buyer in the situation of a sale and leaseback of real property. In Pacific Southwest, the owner of a commercial property sold the property to the buyer but retained an interest in the real property in the form of a lease covering a portion of the property. (Id. at pp. 163-164.) The seller contended that beneficial use had not transferred due to its exclusive use of the portion of the real property covered by the lease. (Id. at p. 163.) Explaining that there was “no evidence showing a custodial or trust relationship” between the buyer and the seller, our Supreme Court concluded that the buyer of the property had acquired beneficial use of the property, despite the leaseback to the seller. (Id. at p. 164.) Thus, consistent with discussion in the Task Force Report, Pacific Southwest analyzed whether beneficial use was held by two different parties by focusing on whether a fiduciary situation existed, in which one party holds title for the benefit of another. It did not focus on the concept of the ultimate economic benefit.

In support of its proposed “ultimate economic benefit” test, Mallco relies on two cases. First, Mallco cites Pacific Southwest, supra, 1 Cal.4th 155, which, as we have explained, does not support Mallco’s argument. Second, Mallco relies on Reilly v. City and County of San Francisco (2006) 142 Cal.App.4th 480. In Reilly, a trust held title to real property, with the income from the property going to the trust’s income beneficiary. (Id. at pp. 485-486.) Reilly concluded that “[t]he receipt of income generated by property qualifies as a ‘beneficial use’ of the property . . . ,” even though the income beneficiary did not have the right to occupy the property. (Id. at p. 495.) Although Reilly concerned a trust beneficiary’s receipt of income from a property, it does not support the broad proposition, advanced by Mallco, that a party holds a beneficial interest in a property, within the meaning of section 60, whenever it ultimately obtains an economic benefit from the property. Instead, Reilly is consistent with the principle expressed by the Task Force Report and Pacific Southwest that beneficial use and bare legal title may be split in a fiduciary situation, such as that presented by a trust holding title for the beneficiary of the trust.

Mallco has identified no case law outside of the context of a fiduciary situation — and we are aware of none — in which one party was found to enjoy beneficial use for the purposes of section 60, while another party held legal title. Accordingly, we reject the broad ultimate economic benefit test that Mallco proposes, and we instead follow the principle developed in Pacific Southwest and the Task Force Report that a party will hold an interest in the beneficial use of real property while another party holds legal title only in fiduciary situations, such as custodianships, guardianships, trusteeships and security interests. As no such fiduciary situation exists in this case, we conclude that the entity that holds the beneficial interest in the Mall is the same entity that holds legal title to the Mall, namely, Mallco. Accordingly, there is no merit to Mallco’s contention that Equitable retains a beneficial interest in the Mall due to the fact that it ultimately receives an economic benefit from the Mall as a member of FVM.

4. Equitable Does Not Hold a Beneficial Interest in the Mall Due to Its Ability to Exercise Some Degree of Control Over the Mall as a Member of FVM

Mallco also argues that because, as a member of FVM, Equitable exercises some degree of control over Mall, it retains a beneficial interest in the Mall. We reject this argument because it is FVM, through its operating company Mallco, that exercises control over the Mall, not Equitable.

Significantly, a member in a limited liability company does not hold any interest in the real property owned by the limited liability company. “A member has no interest in specific limited liability company property.” (Del. Code Ann., tit. 6, § 18 701; see also Corp. Code, § 17300 ["A member or assignee has no interest in specific limited liability company property"].) Instead, a member possesses a personal property interest in its limited liability company membership interest. (Del. Code Ann., tit. 6, § 18 701 ["A limited liability company interest is personal property"; Corp. Code, § 17300 ["A membership interest and an economic interest in a limited liability company constitute personal property of the member or assignee"].) Thus, under the FVM LLC Agreement, Equitable had the right to receive distributions from FVM if the company made a profit, and it had the right to participate in certain management decisions, including decisions about whether to sell or encumber the Mall. But those benefits and rights derived from the personal property interest that Equitable had in its membership interest in FVM; they did not derive from any beneficial interest in the real property.

Munkdale v. Giannini (1995) 35 Cal.App.4th 1104 (Munkdale) addressed a similar issue in the context of a partnership. In Munkdale, a partnership owned several parcels of real property. The issue there was whether the partners enjoyed beneficial use of the real property, as set forth in section 60, by virtue of their status as partners of the partnership. Munkdale examined the legal nature of the interest held by a partner in a partnership, including the significant limitations on a partner’s use of the property for his or her own purposes, and concluded that a partner does not enjoy beneficial use of the real property held by the partnership. As Munkdale explained, ” ‘most of the normal incidents of ownership are held by the partnership as a group rather than the individual partners.’ ” (Munkdale, supra, 35 Cal.App.4th at p. 1111, italics omitted.)

The same analysis applies in the case of limited liability companies, such as FVM and Mallco. As the FVM LLC Agreement makes clear, there are numerous restrictions on Equitable’s ability to make use of the Mall. The Mall is owned and managed by FVM, through its operating company Mallco. Equitable’s right to make decisions about the Mall is limited by the terms of the FVM LLC Agreement, under which Simon, not Equitable, is the managing member. Although Mallco points to provisions in the FVM LLC Agreement that require Equitable’s approval before certain decisions are made about the Mall, such as selling it or encumbering it, the decisions on those topics are made by FVM, with Equitable participating in the decisions as a member, according to the terms of the FVM LLC Agreement. Thus, similar to the result in Munkdale, because of the restrictions inherent in its status as member of FVM, Equitable does not hold a beneficial interest in the Mall.

For these reasons, we conclude that Equitable did not, due to its status as a member of FVM, retain a beneficial interest in the Mall. Accordingly, the trial court properly concluded that a 100 percent change in ownership occurred as a result of the Transaction.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

MCINTYRE, J.

Filed 8/17/09

IN THE SUPREME COURT OF CALIFORNIA

RUSSELL CHRISTOFF, )

)

Plaintiff and Respondent, )

) S155242

v. )

) Ct.App. 2/8 B182880

NESTLÉ USA, INC., )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. EC036163

)

In 1986, professional model Russell Christoff was paid $250 to pose for a photograph to be used in Canada on a label for bricks of coffee. Sixteen years later, Christoff saw his face on a jar of Taster’s Choice instant coffee in the United States and discovered that his image had been used without his consent on millions of labels sold internationally for the preceding five years. Christoff filed the present action for appropriation of his likeness six years after Nestlé USA, Inc. (Nestlé), began using his image on the Taster’s Choice label but less than a year after his discovery.

The trial court applied a two-year statute of limitations and instructed the jury to determine under the discovery rule whether Christoff knew or should have known earlier that Nestlé had used his image. The jury found that Christoff did not know, and should not reasonably have suspected prior to seeing the jar, that his image was being used without his consent and awarded him more than $15 million in damages.

The Court of Appeal reversed, holding that under the single-publication rule, because Christoff had not filed his lawsuit within two years after Nestlé first “published” the label, his cause of action is barred by the statute of limitations unless, on remand, the trier of fact finds that Nestlé had hindered Christoff’s discovery of the use of his photograph, or that the label had been “republished.” We granted review.

We agree with the Court of Appeal that the judgment must be reversed because the trial court erroneously ruled that the single-publication rule does not apply to claims for appropriation of likeness. But we do not agree with the Court of Appeal that this means that Christoff’s action necessarily is barred by the statute of limitations unless he can show on remand that Nestlé had hindered his discovery of the use of his photograph, or that the label had been “republished.” The Court of Appeal’s ruling presupposes that Nestlé’s various uses of Christoff’s likeness, including its production of the product label for a five-year period, necessarily constituted a “single publication” within the meaning of the single-publication rule. Because the parties were prevented by the trial court’s erroneous legal ruling from developing a record concerning whether the single-publication rule applied, we remand the matter for further proceedings.

Facts

In 1986, Russell Christoff, an actor and professional model, posed gazing at a cup of coffee, as if he enjoyed the aroma. The photo shoot was arranged by Nestlé Canada. Christoff was paid $250 for a two-hour photo shoot and received a contract providing that if Nestlé Canada used the picture on a label it was designing for a brick of Taster’s Choice coffee, Christoff would be paid $2,000 plus an agency commission. The price for any other use of Christoff’s image would require further negotiations. Without informing Christoff, or paying him according to the terms of the contract, Nestlé Canada used Christoff’s image on the coffee brick.

Eleven years later, in 1997, Nestlé decided to redesign its label for Taster’s Choice instant coffee, which, for three decades, had prominently featured a “taster,” that is a person peering into a cup of coffee. The high resolution artwork of the original “taster” used to produce the existing label had been lost. Nestlé searched without success for other high resolution artwork of the original “taster,” but found instead the photograph of Christoff that Nestlé Canada had used on the coffee brick, which satisfied the requirements.

Nestlé decided to use Christoff’s image because he looked “distinguished” and resembled the original “taster.” Christoff’s photograph was “youthened” to make him appear younger and more similar to the original “taster.” Nestlé believed that it had authority to use Christoff’s image because it had been widely used in Canada. Nestlé never investigated the scope of the consent and never asked Christoff if he consented to the use of his image. Christoff’s image was used in the redesigned Taster’s Choice label beginning in 1998. The redesigned label was used on several different Taster’s Choice jars, including regular coffee, decaffeinated, and various flavors. Labels bearing Christoff’s image also were produced in different languages and placed on jars of coffee to be sold internationally. For the label used in Mexico, Christoff’s image was altered to add sideburns and darken his complexion. Images of jars of coffee bearing Christoff’s image appeared in Nestlé’s multiple advertising campaigns for Taster’s Choice, including transit ads, coupons in newspapers, magazine advertisements, and Internet advertisements.

In 2002, a person standing in line with Christoff at a hardware store remarked that he “look[ed] like the guy on my coffee jar.” A month or so later, on June 4, 2002, Christoff saw a jar of Taster’s Choice instant coffee on a store shelf and, for the first time, recognized his photograph on the label. He purchased the jar of coffee and called his agent.

In 2003, Nestlé again redesigned its label using another model, James Vaccaro, as the “taster.” Vaccaro was paid $150,000 for the use of his image for 10 years. The new label started circulating in May 2003, but jars of Taster’s Choice with Christoff’s image were still in Nestlé’s inventory and could have been shipped to retailers.

PROCEDURAL BACKGROUND

In 2003, Christoff sued Nestlé, alleging causes of action for unauthorized commercial use of another’s likeness in violation of Civil Code section 3344, common law appropriation of likeness, quantum meruit (initially labeled “quasi-contract”), and unjust enrichment. The trial court denied Nestlé’s motion for summary judgment based on the statute of limitations, ruling that the Uniform Single Publication Act as codified in Civil Code section 3425.3 (hereafter section 3425.3), which states that “[n]o person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine,” did not apply to Christoff’s claims because they were not “based on defamation.” The trial court reasoned that the single-publication rule “was developed in the common law to avoid the problems that mass publication of books and newspapers created for the tort of defamation.” The court explained that Christoff’s “claim is not defamation-like because he is not alleging that he suffered damages from offensive communications,” but rather his “claim arises from the alleged unauthorized use of his likeness, which is protected by his right of publicity.” Christoff “does not claim that this use was offensive, but instead seeks compensation for the defendant’s use of his likeness in advertising.”

The court applied a two-year statute of limitations under Code of Civil Procedure section 339 and instructed the jury that because Christoff filed his complaint on February 7, 2003, he could “claim damages that took place at any time on or after February 7, 2001.” The court further instructed the jury that “the rule of delayed discovery” would apply and Christoff could “also seek damages that took place from the time Nestlé USA first used his image” if Christoff proved that “prior to his discovery of the facts he did not previously suspect, or should have suspected, that his photograph was on the Taster’s Choice label.” The trial court denied Nestlé’s motion for summary adjudication, in which it asserted that there was no evidence it knowingly used Christoff’s photograph without his consent.

At trial, Nestlé vigorously objected to the testimony of Christoff’s damage expert, Peter Sealy, that the icon on the Taster’s Choice label was responsible for 5 to 15 percent of Nestlé’s profits from selling Taster’s Choice instant coffee. This testimony was the basis for Christoff’s argument that he was entitled to 10 percent of Nestlé’s profits from the sale of Taster’s Choice instant coffee. Christoff’s accounting expert testified that, during the six-year period Nestlé used Christoff’s likeness, Nestlé’s total profits from Taster’s Choice were $531,018,000 and, based on Sealy’s testimony, Christoff was entitled to $53,101,800.

Joseph Hunter, a former partner at Ford Models, a prominent modeling agency, also testified as an expert for Christoff. According to Hunter, a model generally charges a day rate for a photo shoot and a usage fee for different uses such as packaging, billboards, and transit. He valued the use of Christoff’s photograph for a six-year period at $1,475,000. In addition to the six-year time period, Hunter assumed that the photo was used “in virtually all kinds of media that existed.” He acknowledged that Vaccaro received $150,000 for the use of his image for a 10-year period but explained that $150,000 is a very low fee.

At the close of Christoff’s case, the court granted Nestlé’s nonsuit motion on the issue of punitive damages. The court found no evidence of malice.

The jury concluded as follows: (1) Nestlé knowingly used Christoff’s photograph or likeness on the Taster’s Choice labels for commercial purposes without Christoff’s consent; (2) prior to 2002, Christoff did not know and should not have known or reasonably suspected that his photograph was being used for commercial purposes; (3) Christoff suffered $330,000 in actual damages; (4) the profits attributable to the use of Christoff’s photograph or likeness were $15,305,850; (5) the damages for the common law appropriation claim were $330,000 and for the quantum meruit claim were $15,635,850. The trial court subsequently granted Christoff’s motion for attorney fees. Nestlé appealed from the judgment and the order awarding costs and attorney fees.

The Court of Appeal reversed the judgment and remanded the case for a new trial, ruling that the single-publication rule codified in section 3425.3 applied to the tort of appropriation of likeness. The court applied our decision in Shively v. Bozanich (2003) 31 Cal.4th 1230, 1245 (hereafter Shively), which held that the defamation cause of action in that case accrued upon the “ ‘first general distribution of the publication to the public,’ ” and reasoned that whether the discovery rule delayed the accrual of the cause of action depended upon whether Nestlé hindered Christoff’s discovery of the use of his photograph. The court directed that, in a retrial, the trier of fact must consider whether Nestlé hindered Christoff’s discovery of the use of his photograph and “whether any republications occurred within the two-year limitations period.”

Discussion

The Court of Appeal ruled that the single-publication rule as codified in section 3425.3 applied to Christoff’s cause of action for unauthorized commercial use of his likeness and, thus, the statute of limitations was triggered when Nestlé first “published” the label and expired two years later unless accrual of Christoff’s action was delayed by the delayed discovery rule or the statute of limitations began anew because Nestlé “republished” the label. We agree that, in general, the single-publication rule as codified in section 3425.3 applies to causes of action for unauthorized commercial use of likeness, but in order to determine when the statute of limitations was triggered for Christoff’s action, we must decide whether Nestlé’s unauthorized use of Christoff’s image, including its production of the label, constituted a “single publication” within the meaning of the single publication rule. As explained below, the record on appeal is insufficient to permit this court to answer this question.

The Court of Appeal was correct that the single-publication rule as codified in section 3425.3 applies, in general, to a cause of action for unauthorized commercial use of likeness. The language of section 3425.3 is quite broad and applies by its terms to any action “for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture.” (Italics added.) “When the Legislature inserted the clause ‘or any other tort’ it is presumed to have meant exactly what it said.” (Strick v. Superior Court (1983) 143 Cal.App.3d 916, 924.) The rule announced in section 3425.3 is “ ‘not aimed at the particular tort alleged, but rather at the manner in which the tort is executed.’ ” (Ibid.; see Long v. Walt Disney Co. (2004) 116 Cal.App.4th 868, 871 [“courts in California and other jurisdictions have interpreted the uniform act expansively”].) We agree with the Court of Appeal, therefore, that the trial court erred in ruling that section 3425.3 did not apply to Christoff’s claims because they were not “based on defamation.”

The Court of Appeal then turned to our decision in Shively, which held that a cause of action that is governed by the single-publication rule accrues “from the date of the ‘ “first general distribution of the publication to the public.” ’ (Shively, supra, 31 Cal.4th at p. 1245.)” Christoff argues, inter alia, that the single-publication rule does not apply to Nestlé’s printing of its product label because it is not “a single ‘publication,’ a one-time occurrence,” such as a newspaper, book, magazine, or television broadcast. Nestlé counters that “the rule was intended to apply to multiple printings of the same publication.” The question is more subtle than either of these positions would suggest.

In order to apply the single-publication rule, a court first must identify what constitutes a “single integrated publication” (Belli v. Roberts Brothers Furs (1966) 240 Cal.App.2d 284, 289) within the meaning of the rule, such as the printing and distribution of a particular issue of a newspaper, magazine, or book. Whether the printing of a product label over a five-year period constitutes a single integrated publication within the meaning of the single-publication rule is an issue of first impression in this state. In addition to producing the product label, Nestlé also used Christoff’s likeness in other forms, including transit ads, coupons in newspapers, magazine advertisements, and Internet advertisements. This raises questions whether each of these activities constituted a “single integrated publication,” whether the entire advertising campaign should be considered a “single integrated publication,” or whether Nestlé’s first use of Christoff’s image triggered the running of the statute of limitations for all subsequent uses in whatever form. These are important questions, and there is little authority to turn to for guidance.

The single-publication rule was created to address the problem that arose with the advent of mass communication from the general rule in defamation cases that “each time the defamatory statement is communicated to a third person . . . the statement is said to have been ‘published,’ ” giving rise to a separate cause of action. (Shively, supra, 31 Cal.4th at p. 1242.) “[T]he principle that each communication of a defamatory remark to a new audience constitutes a separate ‘publication,’ giving rise to a separate cause of action, led to the conclusion that each sale or delivery of a copy of a newspaper or book containing a defamation also constitutes a separate publication of the defamation to a new audience, giving rise to a separate cause of action for defamation. [Citations.] This conclusion had the potential to subject the publishers of books and newspapers to lawsuits stating hundreds, thousands, or even millions of causes of action for a single issue of a periodical or edition of a book.” (Id. at pp. 1243-1244.) “As one commentator stated: ‘. . . Regardless of whether it was an appropriate rule in 1849 it is horrendous today when magazine readers and radio and TV audiences may total many millions.’ [Citation.]” (Hebrew Academy of San Francisco v. Goldman (2007) 42 Cal.4th 883, 891, fn. 2.)

The common law rule that each “publication” of a defamatory statement created a new cause of action “also had the potential to disturb the repose that the statute of limitations ordinarily would afford, because a new publication of the defamation could occur if a copy of the newspaper or book were preserved for many years and then came into the hands of a new reader . . . . The statute of limitations could be tolled indefinitely, perhaps forever, under this approach.” (Shively, supra, 31 Cal.4th 1230, 1244.) We cited as an example “a 19th-centruy English case that concluded a plaintiff could bring an action seeking redress for libel against a publisher based upon an allegedly defamatory remark contained in a newspaper issued 17 years prior to the plaintiff’s discovery of the defamation, on the theory that the sale to the plaintiff of the long-forgotten copy of the newspaper constituted a new publication, starting anew the running of the period of limitations. [Citation.]” (Ibid.) We observed “courts recognized that the advent of books and newspapers that were circulated among a mass readership threatened unending and potentially ruinous liability as well as overwhelming (and endless) litigation, as long as courts adhered to the rule that each sale of a copy of a newspaper or a book, regardless how long after original publication, constituted a new and separate publication.” (Ibid.)

To correct these problems, “courts fashioned what became known as the single-publication rule, holding that, for any single edition of a newspaper or book, there was but a single potential action for a defamatory statement contained in the newspaper or book, no matter how many copies of the newspaper or the book were distributed. [Citations.]” (Shively, supra, 31 Cal.4th at p. 1245.) The common law single-publication rule was codified in 1955 when California adopted the Uniform Single Publication Act by enacting section 3425.3, which states, in part: “No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication . . . .” The prefatory note to the uniform act states that under the single-publication rule “any single integrated publication, such as one edition of a newspaper or magazine, or one broadcast, is treated as a unit, giving rise to only one cause of action.” (U. Single Pub. Act (2005) 14 U. Laws Ann. 469.)

The decision in Gregoire v. G. P. Putnam’s Sons (N.Y. 1948) 81 N.E.2d 45, upon which we relied in Shively, recognized that the purpose of the single-publication rule was to give meaning to the statute of limitations as “a statute of repose ― designed ‘to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.’ [Citation.]” (Id. at p. 48.) The plaintiff in Gregoire filed a suit for defamation nearly five years after the book Total Espionage first was published. Although approximately 6,000 copies of the book had been sold in each of the first two years of its distribution, only 60 copies had been sold from stock in the year prior to the filing of the action. The plaintiff argued that these relatively few sales from stock caused the book to be “republished,” triggering a new limitations period. The court observed that accepting the plaintiff’s view would mean that “although a book containing libelous material may have been the product of but one edition or printing fifty years ago, if, by sale from stock or by display, the publisher continues to make unsold copies of the single publication available to the public today, such conduct would amount to a republication of any libel the book contains and thereby would become actionable. Under such a rule the Statute of Limitation would never expire so long as a copy of such book remained in stock and is made by the publisher the subject of a sale or inspection by the public.” (Id. at pp. 48-49.)

The court in Gregoire thus held that the publisher was entitled to repose following the initial process of printing and releasing the book to the public and that subsequent sales from the stock so produced would not begin the statute of limitations anew. The court stated “that the publication of a libelous book, involving styling, printing, binding and those other acts which enable a publisher on a given date to release to the public thousands of copies of a single printing or impression, affords the one libeled a legal basis for only one cause of action which arises when the finished product is released by the publisher for sale in accord with trade practice.” (Gregoire v. G. P. Putnam’s Sons, supra, 81 N.E.2d at p. 49.)

The New York high court later described its holding in Gregoire as follows: “[T]he Gregoire court furnishes its own illustrations of the kind of case in which the [single-publication] principle it articulated was to have its primary application. First, of course, was the case then at hand. It emanated from a publisher’s sale from stock of a copy of the book containing the libelous language. Since this transaction occurred two years after the book had last undergone a printing and general distribution, the issue was whether the last printing or the later sale from stock was to be the point of departure for the running of the statute. Qualitatively . . . , the sale from stock here was one of only a trickle of 60 to which dwindling demand for the book had reduced such sales in the 12 months preceding initiation of suit. Thus, on its facts, Gregoire merely held that . . . the Statute of Limitations is not to be reactivated by a late sale from the residue of a time-barred publishing event.” (Rinaldi v. Viking Penguin, Inc. (N.Y. 1981) 420 N.E.2d 377, 381.)

The first California case to apply the single-publication rule, Belli v. Roberts Brothers Furs, supra, 240 Cal.App.2d 284, held that the February 14, 1962, issue of the San Francisco Chronicle newspaper, which was composed of six editions that were issued over a two-day period was “a single, integrated publication.” (Id. at p. 289.) The court concluded that “the Legislature intended to abrogate the right to bring a separate action based upon defamatory matter appearing in several editions of a newspaper or magazine, where, as here, all of the editions comprise a single issue of a particular date.” (Id. at p. 289.)

The Court of Appeal therefore concluded that “[t]he various editions of the Chronicle for February 14, 1962, comprise a single integrated publication, namely the issue of the newspaper for that date. As we have seen, the allegedly defamatory matter appeared in the first edition and was repeated without change in each and every edition that followed. It has generally been held that, in the case of a single, integrated publication, the cause of action based upon objectionable matter appearing in the publication accrues upon the first general distribution of the publication to the public. [Citation.]” (Belli v. Roberts Brothers Furs, supra, 240 Cal.App.2d at p. 289; see Fleury v. Harper & Row, Publishers, Inc. (9th Cir. 1983) 698 F.2d 1022, 1027 [“In the case of a single, integrated publication, a cause of action accrues on the first general distribution of the publication to the public.”]; Rinaldi v. Viking Penguin, Inc., supra, 420 N.E.2d 377, 381 [“the activities reasonably related to the production and distribution of a newspaper or magazine were regarded as part of a single transaction against which the statute would run from the time that the original circulation of the periodical, no matter how large or widespread, had taken place”].)

The single-publication rule is intended to prevent a “single integrated publication” from resulting in numerous causes of action because the publication is received by a mass audience. (Rinaldi v. Viking Penguin, Inc., supra, 420 N.E.2d 377, 381 [“neither the time nor the circumstance in which a copy of a book or other publication finds its way to a particular consumer is, in and of itself, to militate against the operation of the unitary, integrated publication concept”].) As the Court of Appeal recognized in Miller v. Collectors Universe, Inc. (2008) 159 Cal.App.4th 988, 998: “The original purpose of the single-publication rule is apparent, both from its history and from the language of the California statute implementing it. The rule was originally directed at mass communications, such as communications in newspapers, books, magazines, radio and television broadcasts, and speeches to an audience. Where the offending language is read or heard by a large audience, the rule limits the plaintiff to a single cause of action for each mass communication. A separate cause of action for each member of the public audience is disallowed.”

The rule does not address the issue of repeated publications of the same libelous material over a substantial period of time. (See Kanarek v. Bugliosi (1980) 108 Cal.App.3d 327, 332 [“the Uniform Single Publication Act . . . was not designed to give unending immunity for repeated publications of libelous matter].) This distinction is clearly made in the Restatement Second of Torts, which adopts the single-publication rule that “[a]ny one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication.” (Rest. 2d Torts, § 577A, p. 208.) The comments explain: “An exceptional rule, sometimes called the ‘single publication rule,’ is applied in cases where the same communication is heard at the same time by two or more persons. In order to avoid multiplicity of actions and undue harassment of the defendant by repeated suits by new individuals, as well as excessive damages that might have been recovered in numerous separate suits, the communication to the entire group is treated as one publication, giving rise to only one cause of action.” (Id., com. b, p. 209.) The single publication rule applies also to the issue of any one edition of a newspaper, magazine or book; to any one broadcast over radio or television; to any one exhibition of a motion picture; to any one theatrical performance or other presentation to an audience; and to any similar aggregate communication that reaches a large number of persons at the same time. . . .” (Id., com. c, p. 209.)

It is not clear whether the production of a product label over a period of years is a “single integrated publication” that triggers the running of the statute of limitations when the first such label is distributed to the public. Publishing an issue of a newspaper or magazine or an edition of a book is a discrete publishing event. A publisher that prints and distributes an issue of a magazine or an edition of a book is entitled to repose from the threat that a copy of that magazine or book will surface years later and trigger a lawsuit. But as we stated earlier, there is little case law or academic commentary discussing whether a manufacturer that produces a product label for a period of years is entitled to the same repose, especially while that product label is still being produced. Christoff argues that Nestlé’s conduct qualified as a continuing wrong, in which “a cause of action accrues each time a wrongful act occurs, triggering a new limitations period.” (Holgar Dulce Hogar v. Community Development Commission (2003) 110 Cal.App.4th 1288, 1295.) Nestlé, by contrast, argues that its use of Christoff’s image on its product label was a “single overt act” with “a continual effect that is relevant to damages, but does not denote a continuing course of conduct for which the limitations period can be tolled.” (Blair v. Nevada Landing Partnership (Ill.App.Ct. 2006) 859 N.E.2d 1188, 1193; accord, Cuccioli v. Jekyll & Hyde Neue Metropol Bremen Theater (S.D.N.Y. 2001) 150 F.Supp.2d 566.)

We decline to resolve this important issue without the benefit of a sufficient factual record that reveals the manner in which the labels were produced and distributed, including when production of the labels began and ceased. (Lahr v. Adell Chemical Co. (1st Cir. 1962) 300 F.2d 256, 260 [“Whether the single publication rule should be applied to the circumstances of this case had best be decided when we know what they were.”].) The parties did not have a reason or an opportunity to present such evidence in light of the trial court’s erroneous ruling that the single-publication rule did not apply to claims for misappropriation of likeness. The parties will have that opportunity on remand to the superior court. If on remand it is established that all or some portion of the production of the label constituted a single integrated publication, then the superior court should further consider whether the statute of limitation began anew because the label was “republished” within the meaning of the single-publication rule.

Whether producing the product labels was a “single integrated publication” is not the only issue that the trial court will face on remand. Evidence was introduced at trial that Christoff’s image also was used without his consent in various forms of advertising, including transit ads, coupons in newspapers, magazine advertisements, and Internet advertisements. Nestlé may be able to show that the production of some or all of these items were single integrated publications and that the statute of limitations was triggered as to that item when it first was distributed to the public.

The Court of Appeal further held that the trial court erred in instructing the jury to apply the delayed discovery rule if it found that “prior to his discovery of the facts [Christoff] did not previously suspect, or should have suspected, that his photograph was on the Taster’s Choice label.” We agree. “[C]ourts uniformly have rejected the application of the discovery rule to libels published in books, magazines, and newspapers, pointing out that application of the discovery rule would undermine the protection provided by the single-publication rule.” (Shively, supra, 31 Cal.4th at p. 1250.) The same logic applies to a product label such as the one in the present case that is “not published in an inherently secretive manner” (Hebrew Academy of San Francisco v. Goldman, supra, 42 Cal.4th 883, 894), but is distributed widely to the public.

Disposition

The judgment of the Court of Appeal is reversed to the extent that it holds that, for purposes of the statute of limitations, Christoff’s cause of action necessarily accrued when Nestlé first “published” the label under the rule we announced in Shively v. Bozanich, supra, 31 Cal.4th 1230. In all other respects, the judgment of the Court of Appeal is affirmed and the matter is remanded to the Court of Appeal for further proceedings consistent with our opinion.

MORENO, J.

WE CONCUR: GEORGE, C. J.

KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

CONCURRING OPINION BY WERDEGAR, J.

I concur fully in the majority opinion. In particular, I agree that without a better factual record we cannot determine how California’s single publication rule (Civ. Code, § 3425.3 (hereafter section 3425.3)) should apply here and hence whether, or to what extent, plaintiff’s action is barred by the statute of limitations. Nonetheless, I believe some general principles relevant to that question may be discerned from the language of section 3425.3.

Leaving aside any Taster’s Choice labels on which plaintiff’s image was significantly altered, and further disregarding advertisements that employed photographs of a label, the broadest question posed here is whether all distribution of labels employing the original misappropriated image, whenever they occurred, should be deemed to constitute a single publication for purposes of section 3425.3. Phrased more generally, should a series of temporally distinct publications be treated as a single publication because each consisted of substantially the same text or images?

On this question, California courts have not spoken, and courts from other jurisdictions have reached diverse results. Some have held that multiple broadcasts, distributions or displays of identical material constitute a single publication for purposes of the statute of limitations, and not a series of republications. (See, e.g., Blair v. Nevada Landing Partnership (Ill.App.Ct. 2006) 859 N.E.2d 1188, 1193-1194 [use of the plaintiff’s image in various advertisements within a casino and on the casino’s Web site over a nine-year period treated as a single publication]; Auscape Intern. v. National Geographic Soc., supra, 461 F.Supp.2d at pp. 185-187 [the defendant, which each year distributed a digital compilation of past magazine issues, including in each year’s compilation all the prior years’ contents, did not thereby republish the prior years’ issues]; Zoll v. Jordache Enterprises, Inc. (S.D.N.Y. 2002) 2002 WL 31873461, pp. *9-*11 [rebroadcast of 1978 television commercial in 2000 was not a republication of the original 1978 broadcast].)

Other courts have looked on each broadcast or display as a separate publication, or republication, each of which, if it violates the plaintiff’s rights, begins a new limitations period. (See, e.g., Wells v. Talk Radio Network-FM, Inc. (N.D.Ill. 2008) 2008 WL 4888992, pp. *1-*3 [each unauthorized use of the plaintiff’s voice in radio advertisements broadcast repeatedly for two years was a rebroadcast triggering a new statute of limitations period]; Lehman v. Discovery Communications, Inc. (E.D.N.Y. 2004) 332 F.Supp.2d 534, 535-536 [where the defendant broadcast a program 17 times over more than two years, each broadcast was a republication of the allegedly defamatory material]; Baucom v. Haverty (Fla.Dist.Ct.App. 2001) 805 So.2d 959, 960-961 [where, over several years, the defendant repeatedly used the plaintiff’s name and image in marketing presentations to potential clients, each such presentation was a new publication].)

In my view, the latter approach is more consistent with our statutory language. As illustrative of a single publication, section 3425.3 refers to “any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture.” The statute thus dictates we treat as a separate publication any reissue, rebroadcast or reexhibition, even though the publication’s contents or the manner of its distribution or display has not been changed. Section 3425.3’s reference to “any one broadcast,” for example, appears to preclude a result like that in Zoll v. Jordache Enterprises, Inc., supra, 2002 WL 31873461, where two broadcasts of the same advertisement, separated by 22 years, were deemed to be a single publication.

Granted, determining what is a single “issue” of printed material presents special difficulties. When large numbers of a book are printed and distributed at one time, the later distribution of smaller numbers from stock is considered part of the original publication. (Gregoire v. G. P. Putnam’s Sons (N.Y. 1948) 81 N.E.2d 45, 46, 49.) The same rule has been applied to additional printings of a single book edition, at least within a short time of its original publication. (See Fleury v. Harper & Row, Publishers, Inc. (9th Cir. 1983) 698 F.2d 1022, 1028 [where a book was published in November 1978, “continued printing of the book into 1979” was part of the same publication].) Would the same rule apply if there were no initial mass printing, but individual copies or small batches of copies were printed and sent out to readers on demand? Arguably it should, for each instance of access to text on the Internet is not considered a separate publication (Firth v. State (N.Y.Ct.Cl. 2000) 706 N.Y.S.2d 835, 841-843), nor presumably would be each download of text in digital form to an electronic reader or audio device; the use of printed paper as a distribution medium should not lead to a different result.

A useful distinction lies in earlier cases’ criterion of a republication decision that is “ ‘ “conscious [and] independent” ’ ” (Barres v. Holt, Rinehart & Winston, Inc. (N.J.Super.Ct. Law Div. 1974) 330 A.2d 38, 46, italics omitted, affd. (N.J. 1977) 378 A.2d 1148) or “conscious and deliberate” (Rinaldi v. Viking Penguin, Inc. (N.Y. 1981) 420 N.E.2d 377, 382). Where the publisher has set up a more or less automated system for printing and distributing an item or for downloading it in digital form and does not make a separate publishing decision as to each copy or small batch of copies, to call each such distribution a new “issue” of the material would defeat the purposes of the single publication rule. (See Firth v. State, supra, 706 N.Y.S.2d at p. 843.) Conversely, where a publication has been out of print or unavailable in digital form for some time and the publisher makes a conscious decision to reissue it or again make it available for download, no reason appears in the text or purposes of section 3425.3 why the publisher should not be separately responsible for any tort committed in republishing.

For these reasons, I doubt defendant’s entire five-year course of printing and distributing labels may be deemed a single publication simply because the labels were not substantially altered during that time. The trial court should consider as well whether the production and distribution of labels was predetermined by a single initial decision or whether defendant (that is, the officers or managing agents of defendant corporation) made at any relevant time a conscious, deliberate choice to continue, renew or expand the use of labels bearing plaintiff’s misappropriated image. If any such decisions occurred during the period defined by the statute of limitations, plaintiff should be able to recover damages caused by publication pursuant to those decisions.

WERDEGAR, J.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Christoff v. Nestlé USA, Inc.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 152 Cal.App.4th 1439

Rehearing Granted

__________________________________________________________________________________

Opinion No. S155242

Date Filed: August 17, 2009

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Charles W. Stoll

__________________________________________________________________________________

Attorneys for Appellant:

Horvitz & Levy, David M. Axelrad, Jeremy B. Rosen, John A. Taylor, Jr.; Heller & Edwards, Lawrence E. Heller and Shula R. Barash for Defendant and Appellant.

Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox, Kevin L. Vick; Karlene Goller; Jonathan Donellan; Hallie Michelena; David Tomlin, Laura Malone; Thomas W. Newton; Peter Scheer; Lucy Dalglish and Gregg Leslie for Los Angeles Times Communications LLC, The Hearst Corporation, Viacom, Inc., The Associated Press, The California Newspaper Publishers Association, The California First Amendment Coalition, The Reporters Committee for Freedom of the Press and The Association of Alternative Newsweeklies as Amici Curiae on behalf of Defendant and Appellant.

Loeb & Loeb, Douglas E. Mirell and W. Allan Edmiston for Motion Picture Association of America, Inc., as Amicus Curiae on behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Law Offices of Colin C. Claxon, Colin C. Claxon; Mayer & Glassman Law Corporation, Robert David Mayer; Kibre & Horwitz, Eric G. Stockel; and David J. Franklyn for Plaintiff and Respondent.

Duncan W. Crabtree-Ireland and Danielle S. Van Lier for Screen Actors Guild, Inc., as Amicus Curiae on behalf of Plaintiff and Respondent.

Reich, Adell & Cvitan, Laurence S. Zakson and William Y. Sheh for American Federation of Television and Radio Artists, AFL-CIO, as Amicus Curiae on behalf of Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

John A. Taylor, Jr.

Horvitz & Levy

15760 Ventura Boulevard, 18th Floor

Encino, CA 91436-3000

(818) 995-0800

Kelli L. Sager

Davis Wright Tremaine

865 South Figueroa Street, Suite 2400

Los Angeles, CA 90017-2566

(213) 633-6800

Colin C. Claxon

Law Offices of Colin C. Claxon

790 Mission Avenue

San Rafael, CA 94901

(415) 485-2200

Filed 8/17/09

IN THE SUPREME COURT OF CALIFORNIA

In re Julian R., a Person Coming )

Under the Juvenile Court Law. )

___________________________________ )

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S159282

v. )

) Ct.App. 6 H031292

JULIAN R., )

) Monterey County

Defendant and Appellant. ) Super. Ct. No. J38483

)

When a minor within the jurisdiction of the juvenile court is committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice, the juvenile court is required to indicate the maximum period of physical confinement. (Welf. & Inst. Code, § 726, subd. (c).) In setting that confinement period, which may be less than, but not more than, the prison sentence that could be imposed on an adult convicted of the same crime, the court must consider the “facts and circumstances” of the crime. (§ 731, subd. (c).)

This case presents two issues: First, must the juvenile court orally pronounce the juvenile’s maximum period of confinement, or will a written statement of that period suffice? Our answer: The latter is sufficient. Second, must the record show that the court complied with section 731, subdivision (c), by considering imposition of a confinement period — shorter than the adult maximum — that might be justified by the “facts and circumstances” of the crime or crimes committed by the juvenile? Our answer: On a silent record, as is the case here, we will presume that the juvenile court performed its statutory duty.

I

The probation report describes the incident leading to Julian R.’s wardship as follows: On June 11, 2006, police officers, responding to a reported carjacking in the parking lot of a fast food restaurant in the City of Salinas, in Monterey County, found two male victims who said they had been assaulted by the occupants of another car. The victims’ car had been taken, and was later found abandoned nearby.

An hour later, during a routine traffic stop, police officers detained a car near the fast food restaurant. In the car were 17-year-old Julian and five other persons, some of whom fit the description of the carjackers. Radio speakers from, and keys to, the victims’ stolen car were found inside the detained car. The officers brought the six suspects to the restaurant’s parking lot. There, the suspects were shown to witnesses of the carjacking. Julian was identified as the one who had kicked and punched both victims.

On July 20, 2006, in return for dismissal of the carjacking count, Julian admitted committing two counts of assault against separate victims by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)); each count was subject to a criminal street gang sentence enhancement (Pen. Code, § 186.22, subd. (b)(1)).

By a dispositional order of August 7, 2006, the juvenile court declared Julian to be a ward of the court under section 602 and, rejecting the probation officer’s recommendation for a commitment to the Division of Juvenile Justice (formerly the California Youth Authority), the court ordered Julian committed to the Monterey Youth Center. On February 5, 2007, after Julian tested positive for cocaine use in violation of his probation, he was expelled from the Monterey Youth Center. This led to the filing of a supplemental petition on February 7, 2007, alleging two probation violations — cocaine use and failure to satisfactorily complete the youth center program. The next day, at a detention hearing on that supplemental petition, Julian admitted the probation violations.

On February 26, 2007, at a dispositional hearing on the supplemental petition, the juvenile court concluded that Julian was “too far entrenched in gangs and the criminal lifestyle to be rehabilitated” through locally available services. It then committed him to the Division of Juvenile Justice. The court did not state the maximum confinement that Julian would face, did not mention the maximum term that an adult would face for the same offenses, and did not indicate its consideration of the crimes’ facts and circumstances that might justify a shorter confinement. But on a preprinted form (Judicial Council Forms, form JV-665, as rev. Jan. 1, 2007) the court checked a box beside this printed text: “The child is committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice, and form JV-732, Commitment to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice, will be completed and transmitted.”

Two days later, on February 28, 2007, the juvenile court signed the required (Cal. Rules of Court, rule 5.805) preprinted commitment form (Judicial Council Forms, form JV-732, as rev. Jan. 1, 2006). As “sustained petitions” the form listed the two felony assault offenses (Pen. Code, § 245, subd. (a)(1)) plus applicable gang enhancements, resulting in a maximum confinement period of ten years. To that were added two months for a prior offense of fighting in a public place (Pen. Code, § 415, subd. (1)), a misdemeanor. Following the form’s printed text “maximum period of confinement,” the court inserted “10 years 2 months, which the probation officer had indicated was the maximum period of confinement for an adult convicted of the same offenses.

Julian appealed, asserting that the juvenile court erred in its disposition. He contended: (1) The court should have orally pronounced the maximum period of confinement he would face, and (2) the court should have determined whether the facts and circumstances of his crimes warranted a maximum confinement period shorter than the adult maximum prison term for the same offenses. The Court of Appeal rejected these claims. It held that the juvenile court was not required to orally pronounce the maximum period of confinement that Julian would face. It also held that, although the record did not expressly indicate the juvenile court was aware of its discretionary power to impose a maximum confinement period shorter than the adult maximum, its awareness of that power must be presumed, thus compelling the conclusion that the juvenile court had considered a lesser confinement period. This conclusion was contrary to the one reached by the Court of Appeal in In re Jacob J. (2005) 130 Cal.App.4th 429, which had held that if the record was silent as to a juvenile court’s consideration of a facts and circumstances confinement period, the reviewing court would presume that the juvenile court had failed to consider such a period.

In this case, the Attorney General advised the Court of Appeal that Julian’s prior misdemeanor charge of fighting in a public place had been dismissed, reducing the maximum adult term for his offenses to 10 years, and that the principal and subordinate terms for the current two assault offenses had been incorrectly stated on the commitment form. Although a maximum adult term of 10 years for the two assaults was correct, the Attorney General noted that Julian’s 10-year confinement period had been incorrectly apportioned between the principal and the subordinate terms for those assaults, each carrying a gang enhancement; correctly calculated, the adult maximum term of imprisonment for the first assault and gang enhancement was eight years, and the maximum term of imprisonment for the second assault and gang enhancement was two years. Given those errors, the Court of Appeal remanded the matter to the juvenile court so it could complete an amended commitment form.

Recognizing the conflict between this case and In re Jacob. J., supra, 130 Cal.App.4th 429 concerning the sufficiency of a juvenile court record that is silent as to the appropriate confinement period based on the facts and circumstances of the crime, we granted review to resolve that conflict.

II

We begin our analysis with a brief overview of the statutory scheme governing commitments to the Division of Juvenile Justice.

The jurisdiction of the juvenile court extends to persons who are under 18 years of age when they violate any law defining a crime. (§ 602, subd. (a).) After conducting an investigation, a probation officer may refer a juvenile matter to the prosecuting attorney (§§ 650, 653.5), but no wardship action can commence until the prosecutor has filed a petition on the People’s behalf (§§ 650, subd. (c), 681, subd. (a)). The petition states what penal laws were violated and describes the offenses as either felonies or misdemeanors. (§§ 656, subd. (f), 656.1.)

A bifurcated hearing is then held. At the first phase — the jurisdictional hearing — “the juvenile court decides whether the petition concerns a person described in section 602.” (In re Eddie M. (2003) 31 Cal.4th 480, 487.) The alleged offense or offenses must be proven “beyond a reasonable doubt supported by evidence[] legally admissible in the trial of criminal cases . . . .” (§ 701.)

At the second phase — the dispositional hearing — the juvenile court hears “evidence on the question of the proper disposition to be made of the minor.” (§ 706.) A wardship determination must be made before the minor can be removed from the physical custody of a parent or guardian. (In re Eddie M., supra, 31 Cal.4th at p. 488.)

At the dispositional hearing, the juvenile court must consider the social study submitted by the probation officer. (§ 706.) Wards may be committed to a county home, to a ranch or camp, or to a county juvenile hall. (§ 730, subd. (a).) Wards requiring more secure facilities may be committed to the Division of Juvenile Facilities. (§§ 731, subd. (a)(4), 734.) In the latter instance, the ward “may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section.” (§ 731, subd. (c), italics added.) Succinctly put, the juvenile court must consider the crime’s relevant “facts and circumstances” in determining whether the minor’s maximum commitment period should be equal to or less than the maximum confinement term for an adult. At issue here is whether such a consideration did occur.

III

A. Oral Pronouncement of Maximum Confinement

Section 731 does not direct the juvenile court to orally pronounce the juvenile’s maximum period of confinement. Julian acknowledges this. He contends, however, that because the juvenile offender scheme now favors punishment over rehabilitation, it is now more like the adult criminal justice system. Therefore, Julian argues, the commitment procedure for a juvenile ward should parallel the statutory formalities required at an adult felony sentencing hearing by, as relevant here, providing for an oral pronouncement of the period of confinement, accompanied by a statement of reasons. (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.406(a), (b)(2), (b)(4).) We disagree.

We begin with an examination of section 202. In that statute, enacted in 1984, the Legislature has expressed its concern for “the protection and safety of the public and each minor under the jurisdiction of the juvenile court.” (§ 202, subd. (a), added by Stats. 1984, ch. 756, § 2, p. 2726.) The statute requires, as it has since 1984, that juvenile offenders “receive care, treatment and guidance consistent with their best interest,” and it states that such “guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.” (§ 202, subd. (b).) In 1999, although the Legislature deleted from the statute a list of punitive sanctions available to the juvenile court (Stats. 1999, ch. 997, § 1.1) it retained language, which still appears, that “ ‘punishment’ means the imposition of sanctions,” and that punishment “does not include retribution” (§ 202, subd. (e)). Contrary to Julian’s contention, the Legislature has not abandoned the traditional purpose of rehabilitation for juvenile offenders and replaced it with punishment as a form of retribution. Juvenile proceedings continue to be primarily rehabilitative, disallowing punishment in the form of retribution. (In re Eddie M., supra, 31 Cal.4th at p. 507.)

Significant differences between the juvenile and adult offender laws underscore their different goals: The former seeks to rehabilitate, while the latter seeks to punish. The determinate sentencing law, which governs sentencing of adult offenders who have committed a crime for which a “statute specifies three possible terms,” requires the trial court to choose a set term (Pen. Code, § 1170, subd. (b)) — a lower, middle, or upper term — from the adult triad sentencing scheme. The determinate sentencing law “provides for fixed terms designed to punish.” (In re Christian G. (2007) 153 Cal.App.4th 708, 715, italics added.) In contrast, juveniles are committed “for indeterminate terms designed to rehabilitate.” (Ibid., italics added.) And unlike an adult offender who commits a felony and serves a set term, a juvenile offender who commits a felony and is committed to the Division of Juvenile Justice is ordinarily not held beyond the age of 25. (§ 1771.)

In light of these significant differences between juvenile offender laws and adult offender laws, we reject Julian’s contention that, as in adult criminal sentencing proceedings, in juvenile offender proceedings there needs to be an oral pronouncement of the juvenile’s maximum period of confinement, accompanied by a statement of reasons.

Insisting that the juvenile court must at the dispositional hearing make an oral pronouncement of the confinement period, Julian points to certain language in section 726’s subdivision (c) and in rule 5.795(b) of the California Rules of Court as indicative of an intent to require such an oral pronouncement. The statute provides that the court’s “order shall specify” the maximum length of physical confinement (§726, subd. (c)); the rule directs the juvenile court to “specify and note in the minutes the maximum period of confinement under section 726” (Cal. Rules of Court, rule 5.795(b)). In Julian’s view, “specify” means to orally pronounce. That is only one of the word’s meanings, however. The dictionary defines “specify” as “name or state explicitly or in detail.” (Webster’s 7th New Collegiate Dict. (1970) p. 839.) That definition would encompass an oral pronouncement. But it is not the only definition. According to the same dictionary, “specify” also means “to include as an item in a specification.” (Ibid.) A “specification,” which is “a plan or proposal for something” (ibid.), is frequently a written document. Under that definition, a juvenile court’s written commitment order would comply with the court’s statutory duty to “specify” (§ 726, subd. (c)) the minor’s maximum confinement period.

Finally, Julian argues that even though the statutory scheme (§§ 726, subd. (c), 731, subd. (c)) does not compel an oral pronouncement of the juvenile’s maximum period of confinement, nonetheless we should impose such a requirement “pursuant to our supervisory authority over state [court] procedure.” (In re Podesto (1976) 15 Cal.3d 921, 938; see People v. Galland (2008) 45 Cal.4th 354, 368.) He contends that unless the juvenile court is required to make such an oral pronouncement, with a statement of reasons, it will be difficult for a reviewing court to determine whether the juvenile court has indeed considered a period of confinement based on the crime’s facts and circumstances. That concern is overstated, especially in light of the recent revision of the Judicial Council’s commitment form. As of January 1, 2009, that form requires the juvenile court both to state the duration of the maximum period of confinement and to acknowledge that it has “considered the individual facts and circumstances of the case in determining the maximum period of confinement.” (Judicial Council Forms, form JV-732, [as rev. Jan. 1, 2009,] Commitment to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice, item 8, p. 2.)

B. Juvenile Court’s Consideration of Crime’s “Facts and
Circumstances”

Section 731 sets two ceilings on the period of physical confinement to be imposed. The statute permits the juvenile court in its discretion to impose either the equivalent of the “maximum period of imprisonment that could be imposed upon an adult for the offense or offenses” committed by the juvenile (§ 731, subd. (c)) or some lesser period based on the “facts and circumstances of the matter or matters that brought or continued” the juvenile under the court’s jurisdiction (ibid.).

Here, the juvenile court determined that the maximum adult sentence for Julian’s offenses — two counts of assault — was imprisonment for 10 years. But it did not state on the record that it had considered the crimes’ “facts and circumstances” that might justify a confinement period below the maximum adult prison term for the same offenses. Julian interprets the record’s silence on this point as an indication that the juvenile court never considered imposing a confinement period shorter than the maximum adult term. Therefore, according to Julian, a reviewing court must presume from the record’s silence that the juvenile court was either unaware of, or failed to perform, its statutory duty to consider that the “facts and circumstances” might warrant a confinement period shorter than the adult maximum term.

But such a presumption would, as the Court of Appeal here concluded, require the reviewing court “to ignore a cardinal principle of appellate review”: A “ ‘ “judgment or order of the lower court is presumed correct[, and a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” ’ [Citation.]” As this court has stated, “we apply the general rule ‘that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]’ ” (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) “This rule derives in part from the presumption of Evidence Code section 664 ‘that official duty has been regularly performed,’ ” and thus when “a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order.” (Ibid.)

Here, the juvenile court did set a maximum confinement period by completing the appropriate Judicial Council commitment form. In the circumstances of this case, we presume, as the Court of Appeal did, that: (1) the court exercised its discretion in setting a maximum period of physical confinement that was measured against both the ceiling set by the maximum adult prison term and a possibly lower ceiling set by the relevant “facts and circumstances” (§ 731, subd. (c)), and (2) the court determined that Julian’s appropriate confinement period was a period equal to the maximum adult term.

As we noted at the outset, this case presents a conflict with the decision by the Court of Appeal in In re Jacob J., supra, 130 Cal.App.4th 429. There, as here, the record did not indicate that the juvenile court had considered whether, based on the facts and circumstances of the juvenile’s offense, a confinement period shorter than the maximum adult sentence imposed for the same crime was called for. The court acknowledged that section 731 does not require the juvenile court to recite “the facts and circumstances” on which it relies or to discuss “their relative weight.” (In re Jacob J. at p. 438.) Because the record did not reflect the juvenile court’s consideration of the crimes’ “facts and circumstances” that might justify a confinement period shorter than the adult maximum term, the Court of Appeal reversed the judgment and remanded the matter to the juvenile court. (Ibid.) Unlike the Court of Appeal in this case, the Court of Appeal in In re Jacob J. failed to apply the general rule that “ ‘a trial court is presumed to have been aware of and followed the applicable law [Citations.]’ ” (People v. Stowell, supra, 31 Cal.4th at p. 1114.) That was error. To the extent that In re Jacob J., supra, 130 Cal.App.4th 429, 438 is inconsistent with this opinion, we disapprove it.

IV. Conclusion and Disposition

The Court of Appeal here remanded the matter to the juvenile court so it could correct certain errors. (See pp. 4-5, ante.) We agree that a remand is appropriate. On remand, the juvenile court is to complete Judicial Council form JV-732, as revised January 1, 2009, acknowledging that the court has considered the facts and circumstances of the offenses in determining the maximum period of Julian’s physical confinement.

The judgment of the Court of Appeal is affirmed.

KENNARD, J.

WE CONCUR:

GEORGE, C. J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

MORENO, J.

CORRIGAN, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Julian R.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 156 Cal.App.4th 1404

Rehearing Granted

__________________________________________________________________________________

Opinion No. S159282

Date Filed: August 17, 2009

__________________________________________________________________________________

Court: Superior

County: Monterey

Judge: Stephen A. Sillman

__________________________________________________________________________________

Attorneys for Appellant:

Lori A. Quick, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Martin S. Kaye, Laurence K. Sullivan and Jeffrey M. Bryant, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Lori A. Quick

100 N. Winchester Boulevard, Suite 310

Santa Clara, CA 95050

(408) 241-6171

Jeffrey M. Bryant

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 703-5852

Filed 8/3/09

IN THE SUPREME COURT OF CALIFORNIA

ABIGAIL HERNANDEZ et al., )

)

Plaintiffs and Appellants, )

) S147552

v. )

) Ct.App. 2/3 B183713

HILLSIDES, INC. et al., )

) Los Angeles County

Defendants and Respondents. ) Super. Ct. No. GC032633

)

Defendants Hillsides, Inc., and Hillsides Children Center, Inc. (Hillsides) operated a private nonprofit residential facility for neglected and abused children, including the victims of sexual abuse. Plaintiffs Abigail Hernandez (Hernandez) and Maria-Jose Lopez (Lopez) were employed by Hillsides. They shared an enclosed office and performed clerical work during daytime business hours. Defendant John M. Hitchcock (Hitchcock), the director of the facility, learned that late at night, after plaintiffs had left the premises, an unknown person had repeatedly used a computer in plaintiffs’ office to access the Internet and view pornographic Web sites. Such use conflicted with company policy and with Hillsides’ aim of providing a safe haven for the children.

Concerned that the culprit might be a staff member who worked with the children, and without notifying plaintiffs, Hitchcock set up a hidden camera in their office. The camera could be made operable from a remote location, at any time of day or night, to permit either live viewing or videotaping of activities around the targeted workstation. It is undisputed that the camera was not operated for either of these purposes during business hours, and, as a consequence, that plaintiffs’ activities in the office were not viewed or recorded by means of the surveillance system. Hitchcock did not expect or intend to catch plaintiffs on tape.

Nonetheless, after discovering the hidden camera in their office, plaintiffs filed this tort action alleging, among other things, that defendants intruded into a protected place, interest, or matter, and violated their right to privacy under both the common law and the state Constitution. The trial court granted defendants’ motion for summary judgment and dismissed the case. The Court of Appeal reversed, finding triable issues that plaintiffs had suffered (1) an intrusion into a protected zone of privacy that (2) was so unjustified and offensive as to constitute a privacy violation.

Defendants argue here, as below, that, absent evidence they targeted and either viewed or recorded plaintiffs as part of the surveillance scheme, there could be, as a matter of law, no actionable invasion of privacy on an intrusion theory. Hence, they insist, the Court of Appeal erred in reinstating that claim.

We agree with defendants that the trial court properly granted their motion for summary judgment. However, we reach this conclusion for reasons more varied and nuanced than those offered by defendants.

On the one hand, the Court of Appeal did not err in determining that a jury could find the requisite intrusion. While plaintiffs’ privacy interests in a shared office at work were far from absolute, they had a reasonable expectation under widely held social norms that their employer would not install video equipment capable of monitoring and recording their activities — personal and work related — behind closed doors without their knowledge or consent.

On the other hand, the Court of Appeal erroneously found a triable issue as to whether such intrusion was highly offensive and sufficiently serious to constitute a privacy violation. Any actual surveillance was drastically limited in nature and scope, exempting plaintiffs from its reach. Defendants also were motivated by strong countervailing concerns. We therefore will reverse the Court of Appeal’s judgment insofar as it allowed the privacy claim to proceed to trial.

FACTS

In September 2003, plaintiffs Hernandez and Lopez filed this suit against defendants Hillsides and Hitchcock over the use of video surveillance equipment in plaintiffs’ office. The complaint set forth three related causes of action in tort, and sought compensatory and punitive damages. The first cause of action alleged an invasion of privacy, alluding to principles and authorities under both the common law (see Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200 (Shulman)) and the state Constitution (see Cal. Const., art 1, § 1; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (Hill)). The other two claims alleged intentional and negligent infliction of emotional distress.

In December 2004, after the parties engaged in discovery, defendants moved for summary judgment. The motion attached numerous supporting documents. They included the declarations of both defendant Hitchcock and Tom Foster (Foster), the computer specialist at Hillsides, and excerpts from the depositions of Hitchcock and plaintiffs Hernandez and Lopez. In opposing summary judgment, plaintiffs submitted additional excerpts from the same depositions, as well as declarations each of them had prepared. Based on these submissions, the following facts appear to be essentially undisputed.

Hillsides was established in 1913, and is affiliated with the Episcopal Church. First operated as an orphanage, Hillsides later became a residential treatment center for children, ranging in age from six to 18. At the time of the events herein, 66 boys and girls lived at its facility in Pasadena.

Typically, before entering Hillsides, the children had lived in foster homes and had been the victims of emotional, physical, and sexual abuse. Such abuse included exposure to and participation in pornography. Working in conjunction with child welfare authorities, Hillsides offered programs to assist residents with academic, psychological, and behavioral problems.

The campus consisted of 12 buildings — five that housed the children, and seven that were used for administrative, academic, and other purposes. The grounds were open to the public, but certain security measures were in place. For instance, Hillsides required employees to carry photo identification at work, and issued temporary badges to all visitors. Any visitor caught wandering on the grounds without a badge was directed or escorted to the receptionist at the main entrance of the facility. The residence halls were locked at all times. Other buildings were unlocked only during regular daytime business hours. Alarms sounded for any unauthorized entry.

In addition, security personnel, or “program directors,” patrolled the premises. They worked every day, around the clock, with more of them on duty during the day than at night. The program directors also monitored televised images transmitted from four cameras stationed outside some of the buildings. These exterior cameras captured and recorded certain views of the parking lot, the administration building, and the main entrance of the facility, where visitors entered. No similar camera system was permanently installed inside any building.

Plaintiffs Hernandez and Lopez performed clerical work during daytime business hours at Hillsides. When they were hired in 1996 and 1999, respectively, they signed disclosure statements and underwent background screening procedures required by law of persons working at licensed child care facilities. This process included fingerprint and criminal record checks, and an agreement to report any child abuse witnessed or suspected while working at Hillsides.

Beginning in 2001, plaintiffs shared an office in the administrative building at Hillsides. Each woman had her own desk and computer workstation. The office had three windows on exterior walls. Blinds on the windows could be opened and closed. The office also had a door that could be closed and locked. A “doggie” door near the bottom of the office door was missing its flap, creating a small, low opening into the office. Several people, besides plaintiffs, had keys to their office: five administrators, including Hitchcock, and all of the program directors. Hernandez estimated that there were five program directors. Hitchcock counted eight of them.

According to plaintiffs, they occasionally used their office to change or adjust their clothing. Hernandez replaced her work clothes with athletic wear before leaving Hillsides to exercise at the end of the day. Two or three times, Lopez raised her shirt to show Hernandez her postpregnancy figure. Both women stated in their declarations that the blinds were drawn and the door was closed when this activity occurred. Hernandez also recalled the door being locked when she changed clothes.

On or before August 22, 2002, Hillsides circulated an “E-Mail, Voicemail and Computer Systems Policy.” This document stated that it was intended to prevent employees from using Hillsides’ electronic communications systems in a manner that defamed, harassed, or harmed others, or that subjected the company to “significant legal exposure.” Illegal and inappropriate activity was prohibited, such as accessing sexually offensive Web sites or displaying, downloading, or distributing sexually explicit material. The policy further contemplated the use of electronic “[p]ersonal passwords.” However, it warned employees that they had “no reasonable expectation of privacy in any . . . use of Company computers, network and system.” Along the same lines, the policy advised that all data created, transmitted, downloaded, or stored on the system was Hillsides’ property, and that the company could “monitor and record employee activity on its computers, network . . . and e-mail systems,” including “e-mail messages[,] . . . files stored or transmitted[,] and . . . web sites accessed.”

Plaintiffs acknowledged the existence of the foregoing policy in their depositions. Indeed, both testified that, as employees of Hillsides, they were not allowed to access pornographic Web sites from their computers at work. They indicated that such conduct would conflict with Hillsides’ mission to provide a safe environment for the abused and vulnerable children in its care. Hernandez described such conduct as “wrong,” “illegal,” and “unethical.” Lopez agreed with this assessment.

In order to ensure compliance with Hillsides’ computer policy and restrictions, Foster, the computer specialist, could retrieve and print a list of all Internet Web sites accessed from every computer on the premises. The network server that recorded and stored such information could pinpoint exactly when and where such Web access had occurred. In July 2002, Foster determined that numerous pornographic Web sites had been viewed in the late-night and early-morning hours from at least two different computers. One of them was located in the computer laboratory, or classroom. The other one sat on the desk Lopez used in the office she shared with Hernandez.

The evidence indicated that Lopez’s computer could have been accessed after hours by someone other than her, because she did not always log off before going home at night. Hitchcock explained in his deposition that employees were expected to turn off their computers when leaving work at the end of the day, that a personal password was required to log onto the computer again after it had been turned off, and that this policy was communicated orally to employees when their computers were first assigned. He admitted that he did not remind plaintiffs of this procedure before taking the surveillance steps at issue here. Nonetheless, Lopez noted in her declaration that “[o]nce [her] computer at Hillsides was turned off, it required the input of a secret password in order to be accessed again.”

Foster told defendant Hitchcock about the inappropriate Internet use, and showed him printouts listing the pornographic Web sites that had been accessed. Given the odd hours at which such activity had occurred, Hitchcock surmised that the perpetrator was a program director or other staff person who had unfettered access to Hillsides in the middle of the night. Hitchcock did not blame any of the children, because they would have been under supervision and asleep in the residence halls at the time. Nor did he suspect plaintiffs. They typically were gone from the premises when the impermissible nighttime computer use occurred.

In light of these circumstances, Hitchcock decided to use video equipment Hillsides already had in its possession to record the perpetrator in the act of using the computers at night. He told other administrators about the problem and his surveillance plan. Hitchcock explained in both his deposition and declaration that he sought to protect the children from any staff person who might expose them to pornography, emphasizing the harm they had endured before entering Hillsides.

With Foster’s assistance, Hitchcock initially installed the video equipment in the computer laboratory from which some of the pornographic Web sites had been accessed. However, because so many people used the laboratory for legitimate reasons during and after business hours, Hitchcock decided instead to conduct surveillance in the office that plaintiffs shared. He did not inform plaintiffs of this decision. He reasoned that the more people who knew and “gossiped” about the plan, the greater the chance the culprit would hear about it and never be identified or stopped.

Hence, at some point during the first week of October 2002, Hitchcock and Foster installed video recording equipment in plaintiffs’ office and in a storage room nearby. First, in plaintiffs’ office, they positioned a camera on the top shelf of a bookcase, among some plants, where it apparently was obscured from view. They also tucked a motion detector into the lap of a stuffed animal or toy sitting on a lower shelf of the same bookcase. Second, these devices connected remotely to a television that Hitchcock and Foster moved into the storage room. A videocassette recorder was built into the unit. The television had a 19-inch monitor on which images could be viewed.

Hitchcock explained the system’s operation in his deposition as follows: Through wireless technology, the camera broadcast images to the television monitor, and the motion detector operated the videocassette recorder. The recorder would “run as long as there [was] motion in that room to keep it activated.” Once installed in plaintiffs’ office, both the camera and the motion detector were always plugged into the electrical system, and therefore were capable of operating “all the time.” However, in order for the camera to display an image on the monitor, and for the motion detector to trigger a recording of that image, a wireless “receptive device” in the storage room needed to be plugged into — i.e., “connected” and “engaged” to — the television set. Hitchcock further testified that if these wireless receptors were unplugged, disconnected, or disengaged, then the camera and motion detector were not “activated,” and nothing was displayed or recorded on the television equipment.

Hitchcock was not the only person with access to the storage room and the video surveillance equipment inside. Plaintiffs each stated in their declarations that “several supervisory employees and program directors had keys and access to that storage room.” Hitchcock stated in his deposition that he knew of only two employees with keys to the storage room, Susanne Crummey and Ramona McGee, and that the location was locked and “secure.” Crummey and another administrator, Stacey Brake, were the only people other than Hitchcock and Foster who knew that the video equipment in the storage room was specifically set up to monitor plaintiffs’ office.

Hitchcock rarely activated the camera and motion detector in plaintiffs’ office, and never did so while they were there. His deposition testimony addressed these circumstances as follows: On three occasions, Hitchcock connected the wireless receptors to the television in the storage room after plaintiffs left work for the day, and then disconnected the receptors the next morning, before plaintiffs returned to work. On one such morning, he also removed the camera from the office, and returned it later, when plaintiffs were gone for the night. In short, the camera and motion detector were always disabled during the workday, such that “there was no picture showing” and “no recording going on” while plaintiffs were in their office. Hitchcock further stated that between installation of the equipment in early October 2002, and his decision to remove it three weeks later, no one was videotaped or caught using the computer in plaintiffs’ office. He assumed that the culprit had learned about the camera and stopped engaging in unauthorized activity.

Meanwhile, about 4:30 p.m. on Friday, October 25, 2002, plaintiffs discovered the video equipment in their office. A red light on the motion detector flashed at the time. The cord attached to the camera was plugged into the wall and was hot to the touch.

Shocked by the discovery, plaintiffs immediately reported it to two supervisors, Sylvia Levitan and Toni Aikins. Levitan called Hitchcock, who was at home. A program director helped remove the camera from plaintiffs’ office and lock it in Levitan’s office for safekeeping.

A short time later, Hitchcock called Hernandez in her office. He apologized for installing the camera, and said the surveillance was not aimed at plaintiffs, but at an intruder who had used Lopez’s computer to access inappropriate Web sites. Hernandez expressed concern that she was videotaped while changing her clothes or that “personal stuff” in her office was somehow disturbed. Hitchcock replied by assuring Hernandez that “the only time we activated that camera and the video recorder was after you left at night and [we] deactivated the two devices before you came to work in the morning. [] . . . [A]t no time did [we] ever capture [you] or [Lopez] on the tape.” During this conversation, Hitchcock asked to speak with Lopez, but learned she had left the office for the day. Hitchcock twice tried contacting Lopez over the next two days, which fell on a weekend, but did not reach her.

Plaintiffs did not return to work until Wednesday, October 30, 2002. That morning, they met for 30 minutes with both defendant Hitchcock and Aikins, their supervisor. Hitchcock essentially repeated the substance of his prior conversation with Hernandez. He apologized and explained the reason for installing the camera in plaintiffs’ office, and assured them that they were not the target of the surveillance and had not been videotaped.

During this meeting, Lopez asked to see the surveillance videotape. Hitchcock agreed. The group went to Hitchcock’s office and watched the tape on his television set. According to the depositions of both plaintiffs, there was not much to see. No one appeared on the tape except for Hitchcock, who was briefly seen setting up the camera and moving around inside plaintiffs’ office. The only other recorded images were of Lopez’s empty desk and computer, the surrounding work area, some closets, and the entrance to the office. No sound accompanied the playing of the tape. Hitchcock never indicated to plaintiffs that any audio recording was made, or that the camera could record sound.

Based on the foregoing facts, the trial court found no triable issue as to any cause of action stated in the complaint, granted summary judgment in defendants’ favor, and dismissed the action. The court agreed with defendants that there had been no intrusion on plaintiffs’ reasonable expectations of privacy. In this regard, the court emphasized the lack of evidence that plaintiffs “were secretly observed or recorded by way of a hidden camera located in their office. . . . [I]t is undisputed that the camera was only connected to a video monitor and to recording equipment on three occasions, all of which occurred after working hours when Plaintiffs were not present.” Alternatively, the trial court concluded that any privacy expectations plaintiffs had in their joint office were “diminished,” and were “overcome by Defendants’ right to a safe environment for its children.”

The Court of Appeal reversed as to the invasion-of-privacy count. Critical to the court’s analysis on appeal was the placement in plaintiffs’ office of a functioning hidden camera, capable of transmitting images that could be viewed or recorded by anyone who had access to the storage room and who activated the wireless remote controls. According to the appellate court, plaintiffs had a reasonable expectation to be free from this kind of intrusion in the workplace, notwithstanding evidence that they were never viewed or recorded and that they worked in a shared office to which others had access. For similar reasons, and even assuming defendants were merely trying to stop an intruder’s inappropriate use of the computers at night, the Court of Appeal concluded that defendants’ conduct was highly offensive. However, for reasons not challenged or relevant here, the Court of Appeal agreed with the trial court that plaintiffs had not presented triable claims for intentional and negligent infliction of emotional distress, and that such counts should be dismissed.

Defendants petitioned for review on the ground the Court of Appeal erred in not affirming the judgment in its entirety and reversing the trial court’s dismissal of the invasion-of-privacy count. We granted review.

DISCUSSION

A. Summary Judgment Rules

A grant of summary judgment is proper where it appears no triable issues of material fact exist, and judgment is warranted as a matter of law. (Code of Civ. Proc., § 437c, subd. (c); Miller v. Department of Corrections, supra, 36 Cal.4th 446, 460.) As the moving party, the defendant must show that the plaintiff “has not established, and cannot reasonably expect to establish, a prima facie case” on one or more elements of the cause of action. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; accord, Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720.) The reviewing court independently examines the record and considers all of the evidence set forth in the moving and opposing papers except that as to which objections have been made and sustained. (Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th 264, 274; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; see id. at p. 335, fn. 7.)

B. General Privacy Principles

Defendants (joined by their amici curiae) argue here, as below, that they did nothing wrong in attempting to videotape a nighttime intruder using the computer in plaintiffs’ office, because no private information about plaintiffs was obtained. Defendants insist that plaintiffs, not being the intended targets of the surveillance plan, were never viewed or recorded, and thereby suffered no serious or actionable intrusion into their private domain. Plaintiffs disagree and urge us to adopt the Court of Appeal’s approach in the present case. They insist that defendants were able to view and record plaintiffs at will, without their knowledge or consent, and unjustifiably deprived them of the privacy they reasonably expected to have while working behind closed doors in their shared office.

The foregoing arguments have been framed throughout this action in terms of both the common law and the state Constitution. These two sources of privacy protection “are not unrelated” under California law. (Shulman, supra, 18 Cal.4th 200, 227; accord, Hill, supra, 7 Cal.4th 1, 27; but see Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 313, fn. 13 [suggesting it is an open question whether the state constitutional privacy provision, which is otherwise self-executing and serves as the basis for injunctive relief, can also provide direct and sole support for a damages claim].) Such privacy principles provide the framework for our analysis, as follows.

A privacy violation based on the common law tort of intrusion has two elements. First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly offensive to a reasonable person. (Shulman, supra, 18 Cal.4th 200, 231, approving and following Rest.2d Torts, § 652B; Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1482 (Miller); accord, Taus v. Loftus (2007) 40 Cal.4th 683, 724-725, 731 (Taus).) These limitations on the right to privacy are not insignificant. (Miller, supra, at p. 1482.) Nonetheless, the cause of action recognizes a measure of personal control over the individual’s autonomy, dignity, and serenity. (Shulman, supra, at p. 231.) The gravamen is the mental anguish sustained when both conditions of liability exist. (Miller, supra, pp. 1484-1485.)

As to the first element of the common law tort, the defendant must have “penetrated some zone of physical or sensory privacy . . . or obtained unwanted access to data” by electronic or other covert means, in violation of the law or social norms. (Shulman, supra, 18 Cal.4th 200, 232; see id. at pp. 230-231.) In either instance, the expectation of privacy must be “objectively reasonable.” (Id. at p. 232.) In Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907 (Sanders), a leading case on workplace privacy that we discuss further below, this court linked the reasonableness of privacy expectations to such factors as (1) the identity of the intruder, (2) the extent to which other persons had access to the subject place, and could see or hear the plaintiff, and (3) the means by which the intrusion occurred. (Id. at p. 923; see Shulman, supra, 18 Cal.4th 200, 233-235.)

The second common law element essentially involves a “policy” determination as to whether the alleged intrusion is “highly offensive” under the particular circumstances. (Taus, supra, 40 Cal.4th 683, 737.) Relevant factors include the degree and setting of the intrusion, and the intruder’s motives and objectives. (Shulman, supra, 18 Cal.4th 200, 236; Miller, supra, 187 Cal.App.3d 1463, 1483-1484.) Even in cases involving the use of photographic and electronic recording devices, which can raise difficult questions about covert surveillance, “California tort law provides no bright line on [‘offensiveness’]; each case must be taken on its facts.” (Shulman, supra, at p. 237.)

The right to privacy in the California Constitution sets standards similar to the common law tort of intrusion. (Hill, supra, 7 Cal.4th 1, 27.) Under this provision, which creates at least a limited right of action against both private and government entities (id. at p. 20), the plaintiff must meet several requirements.

First, he must possess a legally protected privacy interest. (Hill, supra, 7 Cal.4th 1, 35.) These interests include “conducting personal activities without observation, intrusion, or interference” (ibid.), as determined by “established social norms” derived from such sources as the “common law” and “statutory enactment.” (Id. at p. 36.) Second, the plaintiff’s expectations of privacy must be reasonable. This element rests on an examination of “customs, practices, and physical settings surrounding particular activities” (ibid.), as well as the opportunity to be notified in advance and consent to the intrusion. (Id. at pp. 36-37.) Third, the plaintiff must show that the intrusion is so serious in “nature, scope, and actual or potential impact as to constitute an egregious breach of the social norms.” (Id. at p. 37; accord, Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 (Sheehan); Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370-371 (Pioneer).)

Hill and its progeny further provide that no constitutional violation occurs, i.e., a “defense” exists, if the intrusion on privacy is justified by one or more competing interests. (Hill, supra, 7 Cal.4th 1, 38.) For purposes of this balancing function — and except in the rare case in which a “fundamental” right of personal autonomy is involved — the defendant need not present a “ ‘compelling’ ” countervailing interest; only “general balancing tests are employed.” (Id. at p. 34.) To the extent the plaintiff raises the issue in response to a claim or defense of competing interests, the defendant may show that less intrusive alternative means were not reasonably available. (Id. at p. 38.) A relevant inquiry in this regard is whether the intrusion was limited, such that no confidential information was gathered or disclosed. (Ibid.; accord, Sheehan, supra, 45 Cal.4th 992, 998-999; Pioneer, supra, 40 Cal.4th 360, 371.)

In light of the foregoing, we will assess the parties’ claims and the undisputed evidence under the rubric of both the common law and constitutional tests for establishing a privacy violation. Borrowing certain shorthand language from Hill, supra, 7 Cal.4th 1, which distilled the largely parallel elements of these two causes of action, we consider (1) the nature of any intrusion upon reasonable expectations of privacy, and (2) the offensiveness or seriousness of the intrusion, including any justification and other relevant interests. (Id. at pp. 27, 34.)

C. Intrusion upon Reasonable Privacy Expectations

For reasons we now explain, we cannot conclude as a matter of law that the Court of Appeal erred in finding a prima facie case on the threshold question whether defendants’ video surveillance measures intruded upon plaintiffs’ reasonable expectations of privacy. Plaintiffs plausibly maintain that defendants cannot prevail on this element of the cause of action simply because they “never intended to view or record” plaintiffs, or because defendants did not “capture [plaintiffs’] images at all.” Other significant factors not considered by defendants point favorably in plaintiffs’ direction on this issue.

Our analysis starts from the premise that, while privacy expectations may be significantly diminished in the workplace, they are not lacking altogether. In Sanders, supra, 20 Cal.4th 907, a reporter working undercover for a national broadcasting company obtained employment alongside the plaintiff as a telepsychic, giving “readings” to customers over the phone. The reporter then secretly videotaped and recorded interactions with the plaintiff and other psychics using a small camera hidden in her hat and a microphone attached to her brassiere. The taping occurred in a large room containing 100 cubicles that were open on one side and on top, and from which coworkers could be seen and heard nearby. Visitors could not enter this area without permission from the front desk. Ultimately, the plaintiff sued the reporter and the broadcasting company for violating his privacy after one of his secretly taped conversations aired on television. A jury verdict in the plaintiff’s favor was reversed on appeal. The appellate court concluded that the plaintiff could not reasonably expect that actions and statements witnessed by coworkers would remain private and not be disclosed to third parties. (Id. at pp. 911-913 & fn. 1.)

Relying on the elements of the intrusion tort set forth in Shulman, supra, 18 Cal.4th 200, we disagreed with the Court of Appeal in Sanders, and reversed the judgment. This court emphasized that privacy expectations can be reasonable even if they are not absolute. “[P]rivacy, for purposes of the intrusion tort, is not a binary, all-or-nothing characteristic. There are degrees and nuances to societal recognition of our expectations of privacy: the fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law.” (Sanders, supra, 20 Cal.4th 907, 916.)

In adopting this refined approach, Sanders highlighted various factors which, either singly or in combination, affect societal expectations of privacy. One factor was the identity of the intruder. (Sanders, supra, 20 Cal.4th 907, 918, 923.) We noted that the plaintiff in that case, and other employees, were deliberately misled into believing that the defendant reporter was a colleague, and had no reason to suspect she worked undercover to secretly tape their interactions for use in a national television program. (Id. at p. 921.)

Also relevant in Sanders, supra, 20 Cal.4th 907, was the nature of the intrusion (id. at p. 918), meaning, both the extent to which the subject interaction could be “seen and overheard” and the “means of intrusion.” (Id. at p. 923.) These factors weighed heavily in the plaintiff’s favor: “[T]he possibility of being overheard by coworkers does not, as a matter of law, render unreasonable an employee’s expectation that his or her interactions within a nonpublic workplace will not be videotaped in secret by a journalist.” (Ibid.) We distinguished the situation in which “the workplace is regularly open to entry or observation by the public or press,” or the subject interaction occurred between either the proprietor or employee of a business and a “customer” who walks in from the street. (Ibid.)

The present case, of course, does not involve an imposter or “stranger to the workplace” who surreptitiously recorded and videotaped conversations that were later published without the speaker’s consent. (Sanders, supra, 20 Cal.4th 907, 918.) Nor does it involve commercial interactions between the representatives of a business and its customers or other members of the public. Rather, defendants represent a private employer accused of installing electronic equipment that gave it the capacity to secretly watch and record employee activities behind closed doors in an office to which the general public had limited access. As we discuss later with respect to the “offensiveness” element of plaintiffs’ claim, an employer may have sound reasons for monitoring the workplace, and an intrusion upon the employee’s reasonable privacy expectations may not be egregious or actionable under the particular circumstances. However, on the threshold question whether such expectations were infringed, decisional law suggests that is the case here.

Consistent with Sanders, supra, 20 Cal.4th 907, 922, which asks whether the employee could be “overheard or observed” by others when the tortious act allegedly occurred, courts have examined the physical layout of the area intruded upon, its relationship to the workplace as a whole, and the nature of the activities commonly performed in such places. At one end of the spectrum are settings in which work or business is conducted in an open and accessible space, within the sight and hearing not only of coworkers and supervisors, but also of customers, visitors, and the general public. (See Wilkins v. National Broadcasting Co. (1999) 71 Cal.App.4th 1066, 1072-1073, 1078 [holding for purpose of common law intrusion tort that businessmen lacked privacy in lunch meeting secretly videotaped on crowded outdoor patio of public restaurant]; see also Acosta v. Scott Labor LLC (N.D.Ill. 2005) 377 F.Supp.2d 647, 649, 652 [similar conclusion as to employer secretly videotaped by disgruntled employee in common, open, and exposed area of workplace]; Melder v. Sears, Roebuck and Co. (La.Ct.App. 1999) 731 So.2d 991, 994, 1001 [similar conclusion as to department store employee captured on video cameras used to monitor customers as they shopped].)

At the other end of the spectrum are areas in the workplace subject to restricted access and limited view, and reserved exclusively for performing bodily functions or other inherently personal acts. (See Trujillo v. City of Ontario (C.D.Cal. 2006) 428 F.Supp.2d 1094, 1099-1100, 1103, 1119-1122 (Trujillo) [recognizing that employees have common law and constitutional privacy interests while using locker room in basement of police station, and can reasonably expect that employer will not intrude by secretly videotaping them as they undress]; see also Doe by Doe v. B.P.S. Guard Services, Inc. (8th Cir. 1991) 945 F.2d 1422, 1424, 1427 (Doe) [similar conclusion as to models who were secretly viewed and videotaped while changing clothes behind curtained area at fashion show]; Liberti v. Walt Disney World Co. (M.D.Fla. 1995) 912 F.Supp. 1494, 1499, 1506 (Liberti) [similar conclusion as to dancers who were secretly viewed and videotaped while changing clothes and using restroom in dressing room at work].)

The present scenario falls between these extremes. (Cf. Sacramento County Deputy Sheriffs’ Assn. v. County of Sacramento (1996) 51 Cal.App.4th 1468, 1482, 1487 [rejecting common law intrusion claim of jail employee secretly videotaped while handling inmate property based on accessibility of his office to others and heightened security concerns inherent in custodial setting]; see also Marrs v. Marriott Corp. (D.Md. 1992) 830 F.Supp. 274, 283 [similar conclusion as to security guard secretly videotaped while breaking into colleague’s locked desk in open office used as common area by entire staff].)

Plaintiffs plausibly claim that Hillsides provided an enclosed office with a door that could be shut and locked, and window blinds that could be drawn, to allow the occupants to obtain some measure of refuge, to focus on their work, and to escape visual and aural interruptions from other sources, including their employer. Such a protective setting generates legitimate expectations that not all activities performed behind closed doors would be clerical and work related. As suggested by the evidence here, employees who share an office, and who have four walls that shield them from outside view (albeit, with a broken “doggie” flap on the door), may perform grooming or hygiene activities, or conduct personal conversations, during the workday. Privacy is not wholly lacking because the occupants of an office can see one another, or because colleagues, supervisors, visitors, and security and maintenance personnel have varying degrees of access. (See Sanders, supra, 20 Cal.4th 907, 917 [“ ‘visibility to some people does not strip [away] the right to remain secluded from others’ ”]; id. at pp. 918-919 [“ ‘business office need not be sealed to offer its occupant a reasonable degree of privacy’ ”].)

Regarding another relevant factor in Sanders, supra, 20 Cal.4th 907, 923, the “means of intrusion,” employees who retreat into a shared or solo office, and who perform work and personal activities in relative seclusion there, would not reasonably expect to be the subject of televised spying and secret filming by their employer. As noted, in assessing social norms in this regard, we may look at both the “common law” and “statutory enactment.” (Hill, supra, 7 Cal.4th 1, 36.)

Courts have acknowledged the intrusive effect for tort purposes of hidden cameras and video recorders in settings that otherwise seem private. It has been said that the “unblinking lens” can be more penetrating than the naked eye with respect to “duration, proximity, focus, and vantage point.” (Cowles v. State (Alaska 2001) 23 P.3d 1168, 1182 (dis. opn. of Fabe, J.).) Such monitoring and recording denies the actor a key feature of privacy — the right to control the dissemination of his image and actions. (See Shulman, supra, 18 Cal.4th 200, 235.) We have made clear that the “ ‘mere fact that a person can be seen by someone does not automatically mean that he or she can legally be forced to be subject to being seen by everyone.’ ” (Sanders, supra, 20 Cal.4th 907, 916.)

Not surprisingly, we discern a similar legislative policy against covert monitoring and recording that intrudes — or threatens to intrude — upon visual privacy. Some statutes criminalize the use of camcorders, motion picture cameras, or photographic cameras to violate reasonable expectations of privacy in specified areas in which persons commonly undress or perform other intimate acts. Liability exists, under certain circumstances, where the lens allows the intruder to “look[ ]” into or “view[ ]” the protected area. (Pen. Code, § 647, subd. (j)(1).) Of course, the intruder also cannot “secretly videotape, film, photograph, or record” anyone in that private place where various conditions exist. (Id., subd. (j)(3)(A); see Trujillo, supra, 428 F.Supp.2d 1094, 1119 [statute intended to protect visual privacy of persons in various states of undress].)

Other statutes authorize civil damages for certain invasions of privacy that involve either a physical trespass or other offensive conduct for the purpose of capturing a picture of someone engaged in personal or familial activities. The focus of such provisions is on the “intent to capture” a “visual image” (Civ. Code, § 1708.8, subd. (a)), or on the “attempt” to do so. (Id., subd. (b).) Failure to capture or record the subject image is no defense to a statutory violation in this context. (Id., subd. (j); see Richardson-Tunnell v. Schools Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1063 [statute protects against aggressive, paparazzi-like, behavior of tabloid journalists].)

As emphasized by defendants, the evidence shows that Hitchcock never viewed or recorded plaintiffs inside their office by means of the equipment he installed both there and in the storage room. He also did not intend or attempt to do so, and took steps to avoid capturing them on camera and videotape. While such factors bear on the offensiveness of the challenged conduct, as discussed below, we reject the defense suggestion that they preclude us from finding the requisite intrusion in the first place. (See Shulman, supra, 18 Cal.4th 200, 232 [requiring either a physical or sensory penetration into a private place or matter, or the gaining of unwanted access to private information].)

In particular, Hitchcock hid the video equipment in plaintiffs’ office from view in an apparent attempt to prevent anyone from discovering, avoiding, or dismantling it. He used a camera and motion detector small enough to tuck inside and around decorative items perched on different bookshelves, both high and low. Plaintiffs presumably would have been caught in the camera’s sights if they had returned to work after hours, or if Hitchcock had been mistaken about them having left the office when he activated the system. Additionally, except for the one day in which Hitchcock removed the camera from plaintiffs’ office, the means to activate the monitoring and recording functions were available around the clock, for three weeks, to anyone who had access to the storage room. Assuming the storage room was locked, as many as eight to 11 employees had keys under plaintiffs’ version of the facts (depending upon the total number of program directors at Hillsides).

In a related vein, plaintiffs cannot plausibly be found to have received warning that they would be subjected to the risk of such surveillance, or to have agreed to it in advance. We have said that notice of and consent to an impending intrusion can “inhibit reasonable expectations of privacy.” (Hill, supra, 7 Cal.4th 1, 36; accord, Sheehan, supra, 45 Cal.4th 992, 1000-1001.) Such factors also can “ ‘ “limit [an] intrusion upon personal dignity” ’ ” by providing an opportunity for persons to regulate their conduct while being monitored. (Hill, supra, at p. 36.) Here, however, the evidence shows that no one at Hillsides told plaintiffs that someone had used Lopez’s computer to access pornographic Web sites. Nor were they told that Hitchcock planned to install surveillance equipment inside their office to catch the perpetrator on television and videotape.

Moreover, nothing in Hillsides’ written computer policy mentioned or even alluded to the latter scenario. As noted earlier, the version in effect at the relevant time made clear that any monitoring and recording of employee activity, and any resulting diminution in reasonable privacy expectations, were limited to “use of Company computers” in the form of “e-mail” messages, electronic “files,” and “web site” data. Foster performed this administrative function when he used the network server to produce the list of pornographic Web sites accessed in both the computer laboratory and Lopez’s office, and showed such computer-generated data to Hitchcock. There is no evidence that employees like plaintiffs had any indication that Hillsides would take the next drastic step and use cameras and recording devices to view and videotape employees sitting at their desks and computer workstations, or moving around their offices within camera range.

In sum, the undisputed evidence seems clearly to support the first of two basic elements we have identified as necessary to establish a violation of privacy as alleged in plaintiffs’ complaint. Defendants secretly installed a hidden video camera that was both operable and operating (electricity-wise), and that could be made to monitor and record activities inside plaintiffs’ office, at will, by anyone who plugged in the receptors, and who had access to the remote location in which both the receptors and recording equipment were located. The workplace policy, that by means within the computer system itself, plaintiffs would be monitored about the pattern and use of Web sites visited, to prevent abuse of Hillsides’ computer system, is distinguishable from and does not necessarily create a social norm that in order to advance that same interest, a camera would be placed inside their office, and would be aimed toward a computer workstation to capture all human activity occurring there. Plaintiffs had no reasonable expectation that their employer would intrude so tangibly into their semi-private office.

D. Offensiveness/Seriousness of the Privacy Intrusion

Plaintiffs must show more than an intrusion upon reasonable privacy expectations. Actionable invasions of privacy also must be “highly offensive” to a reasonable person (Shulman, supra, 18 Cal.4th 200, 231; see id. at p. 236), and “sufficiently serious” and unwarranted as to constitute an “egregious breach of the social norms.” (Hill, supra, 7 Cal.4th 1, 37.) Defendants claim that, in finding a triable issue in this regard, the Court of Appeal focused too narrowly on the mere presence of a functioning camera in plaintiffs’ office during the workday, and on the inchoate risk that someone would sneak into the locked storage room and activate the monitoring and recording devices. Defendants imply that under a broader view of the relevant circumstances, no reasonable jury could find in plaintiffs’ favor and impose liability on this evidentiary record. We agree.

For guidance, we note that this court has previously characterized the “offensiveness” element as an indispensible part of the privacy analysis. It reflects the reality that “[n]o community could function if every intrusion into the realm of private action” gave rise to a viable claim. (Hill, supra, 7 Cal.4th 1, 37.) Hence, no cause of action will lie for accidental, misguided, or excusable acts of overstepping upon legitimate privacy rights. (Miller, supra, 187 Cal.App.3d 1463, 1483-1484.) In light of such pragmatic policy concerns (see Taus, supra, 40 Cal.4th 683, 737), a court determining whether this requirement has been met as a matter of law examines all of the surrounding circumstances, including the “degree and setting” of the intrusion and “the intruder’s ‘motives and objectives.’ ” (Shulman, supra, 18 Cal.3d 200, 236, quoting and following Miller, supra, 187 Cal.App.3d at pp. 1483-1484.) Courts also may be asked to decide whether the plaintiff, in attempting to defeat a claim of competing interests, has shown that the defendant could have minimized the privacy intrusion through other reasonably available, less intrusive means. (Hill, supra, 7 Cal.4th at p. 38.)

1. Degree and Setting of Intrusion. This set of factors logically encompasses the place, time, and scope of defendants’ video surveillance efforts. In this case, they weigh heavily against a finding that the intrusion upon plaintiffs’ privacy interests was highly offensive or sufficiently serious to warrant liability.

In context, defendants took a measured approach in choosing the location to videotape the person who was misusing the computer system. Evidently, plaintiffs’ office was not the preferred spot. Hitchcock initially tried to capture the culprit in the computer laboratory. Based on the consistently high level of human traffic he described there, the laboratory apparently was far more accessible and less secluded than plaintiffs’ office. The surveillance equipment was moved to the latter location only after Hitchcock determined it was too difficult to pinpoint who was using computers inappropriately in the open, more public laboratory setting.

Defendants’ surveillance efforts also were largely confined to the area in which the unauthorized computer activity had occurred. Once the camera was placed in plaintiffs’ office, it was aimed towards Lopez’s desk and computer workstation. There is no evidence that Hitchcock intended or attempted to include Hernandez’s desk in camera range. We can reasonably infer he avoided doing so, because no improper computer use had been detected there.

Likewise, access to the storage room and knowledge of the surveillance equipment inside were limited. A total of two people other than Hitchcock and Foster (Susanne Crummey and Stacey Brake) knew that the television/recorder was set up to monitor plaintiffs’ office. Only one of them (Crummey) had a key to the lock on the storage room door. The spot was relatively remote and secure.

Timing considerations favor defendants as well. After being moved to plaintiffs’ office and the storage room, the surveillance equipment was operational during a fairly limited window of time. Hitchcock decided to remove the equipment (and plaintiffs coincidentally discovered it) a mere 21 days later, during which time no one had accessed Lopez’s computer for pornographic purposes. We can infer from the undisputed evidence that Hitchcock kept abreast of his own monitoring activities, and did not expose plaintiffs to the risk of covert visual monitoring or video recording any longer than was necessary to determine that his plan would not work, and that the culprit probably had been scared away.

Defendants’ actual surveillance activities also were quite limited in scope. On the one hand, the camera and motion detector in plaintiffs’ office were always plugged into the electrical circuit and capable of operating the entire time they were in place. On the other hand, Hitchcock took the critical step of connecting the wireless receptors and activating the system only three times. At most, he was responsible for monitoring and recording inside of plaintiffs’ office an average of only once a week for three weeks. Such measures were hardly excessive or egregious. (Cf. Wolfson v. Lewis (E.D.Pa. 1996) 924 F.Supp. 1413, 1420 [electronic surveillance that is persistent and pervasive may constitute a tortious intrusion on privacy even when conducted in a public or semi-public place].)

Moreover, on each of these three occasions, Hitchcock connected the wireless devices and allowed the system to remotely monitor and record events inside plaintiffs’ office only after their shifts ended, and after they normally left Hillsides’ property. He never activated the system during regular business hours when plaintiffs were scheduled to work. The evidence shows they were not secretly viewed or taped while engaged in personal or clerical activities.

On the latter point, we agree with defendants that their successful effort to avoid capturing plaintiffs on camera is inconsistent with an egregious breach of social norms. For example, in a case closely on point, one court has held that even where an employer placed a camera in an area reserved for the most personal functions at work, such that heightened privacy expectations applied, the lack of any viewing or recording defeated the employee’s invasion of privacy claim. (E.g., Meche v. Wal-Mart, Stores, Inc. (La.Ct.App. 1997) 692 So.2d 544, 547 [camera concealed in ceiling of restroom to prevent theft].) This circumstance also distinguishes plaintiffs’ case from those we have discussed above, in which covert visual monitoring and video recording in an employment setting supported a viable intrusion claim. (E.g., Doe, supra, 945 F.2d 1422, 1424, 1427 [models’ changing area]; Trujillo, supra, 428 F.Supp.2d 1094, 1100, 1119-1122 [police locker room]; Liberti, supra, 912 F.Supp. 1494, 1499 [dancers’ dressing room].)

2. Defendants’ motives, justifications, and related issues. This case does not involve surveillance measures conducted for socially repugnant or unprotected reasons. (See, e.g., Shulman, supra, 18 Cal.4th 200, 237 [harassment, blackmail, or prurient curiosity].) Nor, contrary to what plaintiffs imply, does the record reveal the absence of any reasonable justification or beneficial motivation. The undisputed evidence is that defendants installed video surveillance equipment in plaintiffs’ office, and activated it three times after they left work, in order to confirm a strong suspicion — triggered by publicized network tracking measures — that an unknown staff person was engaged in unauthorized and inappropriate computer use at night. Given the apparent risks under existing law of doing nothing to avert the problem, and the limited range of available solutions, defendants’ conduct was not highly offensive for purposes of establishing a tortious intrusion into private matters. Our reasoning is as follows.

For legitimate business reasons, employers commonly link their network servers to the Internet, and provide employees with computers that have direct access to the network and the Internet. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 805-806 (Delfino) [noting trend over previous decade].) As this phenomenon has grown, employers have adopted formal policies regulating the scope of appropriate computer and Internet use. Such policies contemplate reasonable monitoring efforts by employers, and authorize employee discipline for noncompliance. (E.g., Delfino, supra, at p. 800, fn. 13 [authorizing discharge for transmitting any threatening, sexually explicit, or harassing item on company computers]; TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 446 (TBG) [similar policy as to derogatory, defamatory, or obscene material, coupled with notice that company would monitor employee computer use]; id. at p. 451 [discussing American Management Association report stating that most large firms regulate and monitor employee Internet use]; cf. Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2007) 5:782.5 et seq. [exploring limits on computer monitoring in workplace].)

Despite efforts to control the problem, the potential for abuse of computer systems and Internet access in the workplace is wide-ranging. (See, e.g., Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1347 [holding that employee did not commit tort of trespass to chattels by sending mass emails on employer’s electronic system, but otherwise declining to exempt Internet messages from general rules of tort liability]; TBG, supra, 96 Cal.App.4th 443, 446-447 [employee terminated after repeatedly accessing pornographic Web sites on computer at work].) The consequences to employers may be serious. (E.g., Delfino, supra, 145 Cal.App.4th 790, 795-796, 800 [third parties sued employer on various counts after receiving vile threats that employee sent over Internet from work computer]; Monge v. Superior Court (1986) 176 Cal.App.3d 503, 506-507, 509 [employee stated claims for discrimination, harassment, and punitive damages against employer who failed to investigate her complaints about receiving sexually offensive message from supervisors on her work computer].)

Here, Hitchcock learned that the computer in plaintiffs’ office was being used to access the Internet late at night, long after their shifts ended, by someone not authorized to use that equipment or office. Data recorded and stored inside the computer system itself convinced Hitchcock and the computer specialist, Foster, that the unauthorized user was viewing sexually explicit Web sites. Given the hour at which this unauthorized Internet activity occurred, Hitchcock strongly suspected that the responsible party was a program director or other staff person with keys and access to the administration building, which was otherwise locked at that hour.

Such use of Hillsides’ computer equipment by an employee violated written workplace policies circulated both before and after the challenged surveillance activities occurred. As those policies warned, and case law confirms, the offending conduct posed a risk that the perpetrator might expose Hillsides to legal liability from various quarters. At the very least, parties on both sides confirmed that accessing pornography on company computers was inconsistent with Hillsides’ goal to provide a wholesome environment for the abused children in its care, and to avoid any exposure that might aggravate their vulnerable state.

We also note that Hitchcock’s repeated assurances that he installed the surveillance equipment solely to serve the foregoing purposes and not to invade plaintiffs’ privacy are corroborated by his actions afterwards. When confronted by plaintiffs about the camera in their office, he explained its presence, and tried to assuage their concerns about being suspected of wrongdoing and secretly videotaped. To this end, he showed them the actual surveillance tape on demand and without delay. Against this backdrop, a reasonable jury could find it difficult to conclude that defendants’ conduct was utterly unjustified and highly offensive.

Plaintiffs argue that even assuming defendants acted to prevent a rogue employee from accessing pornography on Hillsides’ computers, and to minimize a genuine risk of liability and harm, no claim or defense of justification has been established as a matter of law. Plaintiffs insist triable issues exist as to whether defendants could have employed means less offensive than installing the camera in their office and connecting it to the monitor and recorder nearby. Examples include better enforcement of Hillsides’ log-off/password-protection policy, installation of software filtering programs, closer nighttime monitoring of the camera outside the administration building, increased security patrols at night, and receipt of plaintiffs’ informed consent to video surveillance.

Contrary to what plaintiffs imply, it appears defendants are not required to prove that there were no less intrusive means of accomplishing the legitimate objectives we have identified above in order to defeat the instant privacy claim. In the past, we have specifically declined to “impos[e] on a private organization, acting in a situation involving decreased expectations of privacy, the burden of justifying its conduct as the ‘least offensive alternative’ possible under the circumstances.” (Hill, supra, 7 Cal.4th 1, 50 [invoking language and history of state constitutional privacy provision and relevant case authority]; accord, Sheehan, supra, 45 Cal.4th 992, 1002.)

The argument lacks merit in any event. First, the alternatives that plaintiffs propose would not necessarily have achieved at least one of defendants’ aims — determining whether a program director was accessing pornographic Web sites in plaintiffs’ office. Rather, it is the same suspect group of program directors on whom plaintiffs would have had defendants more heavily rely to monitor exterior cameras and perform office patrols. Obtaining plaintiffs’ consent also might have risked disclosing the surveillance plan to other employees, including the program directors. With respect to stricter regulation of employee computer use (software filters and log-off enforcement), such steps might have stopped the improper use of Lopez’s computer. However, they would not have helped defendants identify the employee who performed such activity and who posed a risk of liability and harm in the workplace. (See Hill, supra, 7 Cal.4th 1, 50 [rejecting proposed alternatives as “different in kind and character” than challenged acts].)

Second, for reasons suggested above, this is not a case in which “sensitive information [was] gathered and feasible safeguards [were] slipshod or nonexistent.” (Hill, supra, 7 Cal.4th 1, 38.) Rather, privacy concerns are alleviated because the intrusion was “limited” and no information about plaintiffs was accessed, gathered, or disclosed. (Ibid.) As we have seen, defendants did not suspect plaintiffs of using their computers improperly, and sought to ensure that they were not present when any monitoring or recording in their office occurred. The video equipment was rarely activated and then only at night, when plaintiffs were gone. There was no covert surveillance of them behind closed doors.

CONCLUSION

We appreciate plaintiffs’ dismay over the discovery of video equipment — small, blinking, and hot to the touch — that their employer had hidden among their personal effects in an office that was reasonably secluded from public access and view. Nothing we say here is meant to encourage such surveillance measures, particularly in the absence of adequate notice to persons within camera range that their actions may be viewed and taped.

Nevertheless, considering all the relevant circumstances, plaintiffs have not established, and cannot reasonably expect to establish, that the particular conduct of defendants that is challenged in this case was highly offensive and constituted an egregious violation of prevailing social norms. We reach this conclusion from the standpoint of a reasonable person based on defendants’ vigorous efforts to avoid intruding on plaintiffs’ visual privacy altogether. Activation of the surveillance system was narrowly tailored in place, time, and scope, and was prompted by legitimate business concerns. Plaintiffs were not at risk of being monitored or recorded during regular work hours and were never actually caught on camera or videotape.

We therefore reverse the judgment of the Court of Appeal insofar as it reversed and vacated the trial court’s order granting defendants’ motion for summary judgment on all counts alleged in the complaint.

BAXTER, J.

WE CONCUR:

GEORGE, C. J.

KENNARD, J.

WERDEGAR, J.

CHIN, J.

MORENO, J.

CORRIGAN, J.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Hernandez v. Hillsides, Inc.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 142 Cal.App.4th 1377

Rehearing Granted

__________________________________________________________________________________

Opinion No. S147552

Date Filed: August 3, 2009

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: C. Edward Simpson

__________________________________________________________________________________

Attorneys for Appellant:

Eisenberg & Associates, Arnold Kessler and Mark S. Eisenberg for Plaintiffs and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Seyfarth Shaw, Laura Wilson Shelby, Holger G. Besch, Candice Zee and Amy C. Chang for Defendants and Respondents.

Paul, Hastings, Janofsky & Walker, Paul W. Cane, Jr., and Teresa J. Hutson for Employers Group and California Employment Law Council as Amici Curiae on behalf of Defendants and Respondents.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark S. Eisenberg

Eisenberg & Associates

12121 Wilshire Boulevard, Suite 600

Los Angeles, CA 90025

(310) 444-1100

Holger G. Besch

Seyfarth Shaw

2029 Century Park East, 33d Floor

Los Angeles, CA 90067-3063

(310) 277-7200

Paul W. Cane, Jr.

Paul, Hastings, Janofsky & Walker

55 Second Street, Twenty-Fourth Floor

San Francisco, CA 94105

(415) 856-7000

Filed 8/3/09

IN THE SUPREME COURT OF CALIFORNIA

JONATHAN DELGADO, )

)

Plaintiff and Appellant, )

) S155129

v. )

) Ct.App. 2/3 B191272

INTERINSURANCE EXCHANGE OF )

THE AUTOMOBILE CLUB OF )

SOUTHERN CALIFORNIA, )

) Los Angeles County

Defendant and Respondent. ) Super. Ct. No. VC045588

)

This case involves an insurance policy that covers injury resulting from “an accident.” After an assault and battery by the insured, the injured party sued the insured, alleging that the insured had acted under the unreasonable belief of having to defend himself, an act that according to the injured party fell within the policy’s coverage of “an accident.” Does the insurance company have a duty to defend that action? The answer is “no.” We therefore reverse the judgment of the Court of Appeal, which had reversed the trial court.

I

Interinsurance Exchange of the Automobile Club of Southern California (ACSC) issued to Craig Reid a homeowner’s insurance policy providing liability coverage for up to $100,000. On November 7, 2003, while the policy was in effect, insured Reid hit and kicked 17-year-old Jonathan Delgado.

In March 2004, Delgado sued Reid. The complaint alleged two causes of action. The first alleged an intentional tort in that Reid “in an unprovoked fashion and without any justification physically struck, battered and kicked” Delgado. The second cause of action alleged that Reid “negligently and unreasonably believed” he was engaging in self-defense “and unreasonably acted in self defense when [Reid] negligently and unreasonably physically and violently struck and kicked minor Jonathan Delgado repeatedly causing serious and permanent injuries.”

Reid tendered to ACSC the defense of Delgado’s lawsuit. ACSC denied coverage and refused to provide Reid a defense. ACSC asserted that the assault was not covered because it was not an “occurrence,” which was defined in the policy as an “accident,” and that the complaint’s allegations arose out of Reid’s intentional acts, which came within the policy’s intentional acts exclusion.

In January 2005, the trial court, at Delgado’s request, dismissed the intentional tort claim. Delgado and Reid then settled the action by stipulating that Reid’s use of force occurred because he negligently believed he was acting in self-defense, and by stipulating to entry of a $150,000 judgment against Reid. Later, Reid agreed to pay Delgado $25,000 and he assigned to Delgado Reid’s claims against his insurer, ACSC; Delgado in turn agreed to give Reid a partial satisfaction of judgment and a covenant not to execute on the remainder of the judgment.

Delgado then brought this action against ACSC. The trial court sustained ACSC’s demurrer on the ground that no facts were pled to establish coverage under the policy, but the court allowed Delgado leave to amend the complaint. Delgado then filed a first amended complaint alleging, on information and belief, that at the time of the incident the insured, Reid, acted “without intent to injure” Delgado “but with intent to defend himself and his family . . . from what [Reid] perceived was an imminent threat of harm . . . .” It further alleged that Reid’s “reaction to what he perceived was an imminent threat of harm was an overreaction, [was] not willful or malicious, and was an accident . . . within the meaning of Reid’s insurance policy.”

The first amended complaint alleged two causes of action seeking declarations from the trial court that ACSC had a duty to defend and indemnify its insured, Reid, in the underlying lawsuit brought by Delgado; one cause of action brought under Insurance Code section 11580, subdivision (b)(2), in which Delgado sought to recover from ACSC as a judgment creditor of ACSC’s insured, Reid; and three causes of action alleging bad faith — one for failure to defend, one for refusal to indemnify, and one for failure to pay medical benefits.

ACSC demurred to the first amended complaint. At the hearing on the demurrer, the trial court asked Delgado’s counsel what facts were alleged regarding the events that led insured Reid to think he was acting in self-defense. Counsel responded: “We can’t allege facts leading up to what happened when my client was ultimately struck. We can’t allege those facts.”

The trial court sustained ACSC’s demurrer without leave to amend, finding that the settlement and stipulated judgment between Reid and Delgado were “contrived” to expose ACSC to liability, that it was “disingenuous at best” to characterize insured Reid’s assault and battery as an “accident,” and that there were no facts alleged to support Delgado’s claim that Reid believed he was acting in self-defense.

The Court of Appeal reversed. After stating that allegations of harmful acts done with an unreasonable belief in self-defense describe conduct that is “properly characterized as nonintentional tortious conduct,” the Court of Appeal concluded that Delgado’s first amended complaint alleged acts by insured Reid that potentially were an “accident” covered by the policy.

We granted ACSC’s petition for review.

II

As mentioned earlier, in this case the trial court sustained ACSC’s demurrer to Delgado’s complaint without leave to amend. In reviewing the ensuing judgment of dismissal, “we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law.” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)

At issue here is whether the insurer had a duty to defend its insured in an action brought by a third party. To prevail in an action seeking declaratory relief on the question of the duty to defend, “the insured must prove the existence of a potential for coverage, while the insurer must establish the absence of any such potential. In other words, the insured need only show that the underlying claim may fall within policy coverage; the insurer must prove it cannot.” (Montrose Chemical Corp. v. Superior Court, supra, 6 Cal.4th at p. 300.) The duty to defend exists if the insurer “becomes aware of, or if the third party lawsuit pleads, facts giving rise to the potential for coverage under the insuring agreement.” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 19.) We look first to the terms of the policy. (Ibid.)

ACSC’s policy provides liability coverage for bodily injury caused by an “occurrence,” which the policy defines as “an accident . . . which, during the policy period, results in bodily injury . . . .” In the context of liability insurance, an accident is “ ‘an unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause.’ ” (Geddes & Smith, Inc. v. St. Paul Mercury Indemnity Co. (1959) 51 Cal.2d 558, 563-564 (Geddes); accord, Hogan v. Midland National Ins. Co. (1970) 3 Cal.3d 553, 559.) “This common law construction of the term ‘accident’ becomes part of the policy and precludes any assertion that the term is ambiguous.” (Collin v. American Empire Ins. Co. (1994) 21 Cal.App.4th 787, 810; see Bartlome v. State Farm Fire & Casualty Co. (1989) 208 Cal.App.3d 1235, 1239.)

Here, injured party Delgado contends that because insured Reid’s assault and battery was motivated by an unreasonable belief in the need for self-defense, the act fell within the policy’s definition of “an accident,” because from the perspective of the injured party the assault was “unexpected, unforeseen, and undesigned.” We disagree that whether there was an “accident” within the policy language must be determined from the injured party’s perspective.

In support of his contention, Delgado points to certain language by this court in Geddes, supra, 51 Cal.2d at page 563. This court there stated: “No all-inclusive definition of the word ‘accident’ can be given. It has been defined ‘as “a casualty — something out of the usual course of events and which happens suddenly and unexpectedly and without design of the person injured.” ’ ” Geddes went on to state that the term “accident” “ ‘ “includes any event which takes place without the foresight or expectation of the person acted upon or affected by the event.” ’ ” (Ibid.) It is this italicized sentence on which Delgado relies. But that language should be read in context, not in isolation, as Delgado does. Geddes quoted several sources that had defined “accident.” The italicized sentence on which Delgado relies is only one of those definitions. Immediately after the sentence in question, Geddes quoted this definition of “accident”: “ ‘Accident, as a source and cause of damage to property, within the terms of an accident policy, is an unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause.’ ” (Id. at pp. 563-564.) Notably, this quoted definition lacks any mention of the need to consider the perspective of the injured party. And it was this definition of “accident” that this court in Geddes applied to the case before it. As Geddes pointed out, it is the “unexpected, undesigned, and unforeseen” nature of the injury-causing event that determines whether there is an “accident” within the policy’s coverage. (Id. at p. 564.)

Similarly misplaced is Delgado’s reliance on this court’s later decision in Hogan v. Midland National Ins. Co., supra, 3 Cal.3d 553. Hogan held that to the extent the property damage that the injured party incurred there was the result of the injured party’s deliberate acts, “no accident occurred within the Geddes [] definition.” (Id. at p. 560.) Hogan did not hold that whether an event is an “accident” is, as Delgado would have us conclude, to be determined from the perspective of the injured party independent of the insured’s intention. Indeed, Hogan concluded that a deliberate act causing an injury is not an accident. (Ibid.)

Delgado’s contention does find support in some language from Maxon v. Security Ins. Co. (1963) 214 Cal.App.2d 603 (Maxon). The Court of Appeal there held that an insurance company was not obligated to defend its insured against a claim of malicious prosecution by a third party. (Id. at p. 617.) Although unnecessary to its decision, Maxon nevertheless discussed whether malicious prosecution was an “accident” within the coverage of the insurance policy there in issue. In the course of that discussion, Maxon quoted the same language from this court’s decision in Geddes, supra, 51 Cal.2d at page 563, on which Delgado relies: “ ‘ “[Accident] includes any event which takes place without the foresight or expectation of the person acted upon or affected by the event.” ’ ” Based on that language from Geddes, Maxon stated that the third party’s claim against the insured for malicious prosecution was based on an accident, reasoning that the arrest and prosecution of a person who is innocent and has no reason to expect an arrest “is, as to such person, an accident.” (Maxon, supra, at p. 612.) Maxon’s reliance on the Geddes language was wrong. As we explained earlier, that language played no role in the holding that Geddes ultimately reached: that the injury there was caused by an accident because it was “unexpected, undesigned, and unforeseen” (Geddes, supra, 51 Cal.2d at p. 564), and not because the injury was unexpected by the injured party.

Were we to accept Delgado’s argument that any interpretation of the policy term “accident” should be based solely on whether the injury-causing event was expected, foreseen, or designed by the injured party, then intentional acts that by no stretch could be considered accidental nevertheless would fall within the policy’s coverage of an “accident.” Under Delgado’s reasoning, even child molestation could be considered an “accident” within the policy’s coverage, because presumably the child neither expected nor intended the molestation to occur. (See J. C. Penney Casualty Ins. Co. v. M. K. (1991) 52 Cal.3d 1009, 1028, fn. 17 [“[T]he very notion of ‘accidental’ child molestation is implausible”].) Other examples that come to mind are arson, robbery, and premeditated murder, which are acts that do not fit the common understanding of the word “accident” because they involve acts intentionally done with the intent to cause harm.

Delgado contends that ACSC could have included in the policy’s coverage of an “accident” the phrase “from the standpoint of the insured,” if the insurer’s intent was to have the word “accident” defined from the perspective of the insured as opposed to that of the injured party. In support, he points out that earlier standard comprehensive general liability policies defined the word “occurrence” as “ ‘an accident . . . which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.’ ” (2 Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2008) 7:42.1, p. 7A-13.)

We are not persuaded that because the coverage clause of ACSC’s policy does not use the words “neither expected nor intended from the standpoint of the insured,” the word “accident” as used in the policy means that whether an event is an accident must be determined from the injured party’s viewpoint. The phrase “neither expected nor intended from the standpoint of the insured” in earlier comprehensive general liability policies has been construed as modifying the policy term “injury and damages,” not “accident.” (See City of South El Monte v. Southern Cal. Joint Powers Ins. Authority (1995) 38 Cal.App.4th 1629, 1646; United Pacific Ins. Co. v. McGuire Co. (1991) 229 Cal.App.3d 1560, 1566; Commercial Union Ins. Co. v. Superior Court (1987) 196 Cal.App.3d 1205, 1209.) We note that in 1985 that phrase was deleted from the standard comprehensive general liability policy coverage clauses because of conflicting judicial interpretations of the phrase. Some courts had conflated the concept of “an accident” with the phrase “neither expected nor intended from the standpoint of the insured.” This led those courts to “conclud[e] that an ‘accident’ refers to an unexpected or unintended injury.” (3 New Appleman, Insurance Law: Practice Guide (2008) 30.07[4], pp. 30-48.) Other courts, however, “concluding that the terms are different and have their own meanings, held that the ‘occurrence’ definition is limited to events that are accidental in nature, and the rest of the definition merely confirms that expected or intended injuries are not ‘accidental.’ ” (Ibid.)

Under California law, the word “accident” in the coverage clause of a liability policy refers to the conduct of the insured for which liability is sought to be imposed on the insured. (Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 583, 596; Collin v. American Empire Ins. Co., supra, 21 Cal.App.4th at p. 804.) This view is consistent with the purpose of liability insurance. Generally, liability insurance is a contract between the insured and the insurance company to provide the insured, in return for the payment of premiums, protection against liability for risks that are within the scope of the policy’s coverage. Insurance policies are read in light of the parties’ reasonable expectations and, when ambiguous, are interpreted to protect the reasonable expectations of the insured. (State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1018, 1026.) Therefore, the appropriate inquiry here is not, as Delgado would have it, confined to viewing the pertinent event from the perspective of the injured party.

Delgado insists that an insured’s unreasonable, subjective belief in the need for self-defense converts into “an accident” an act that is purposeful and intended to inflict injury. We disagree.

We begin by noting that an injury-producing event is not an “accident” within the policy’s coverage language when all of the acts, the manner in which they were done, and the objective accomplished occurred as intended by the actor. (Hogan v. Midland National Ins. Co., supra, 3 Cal.3d at p. 560; Stellar v. State Farm General Ins. Co. (2007) 157 Cal.App.4th 1498, 1505; Merced Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 50.) Here, insured Reid’s assault and battery on Delgado were acts done with the intent to cause injury; there is no allegation in the complaint that the acts themselves were merely shielding or the result of a reflex action. Therefore, the injuries were not as a matter of law accidental, and consequently there is no potential for coverage under the policy. (Scottsdale Ins. Co. v. MV Transportation (2005) 36 Cal.4th 643, 655.)

We also note that in a number of contexts other than those involving claims pertaining to assault and battery, which is the conduct at issue here, courts have in insurance cases rejected the notion that an insured’s mistake of fact or law transforms a knowingly and purposefully inflicted harm into an accidental injury. (E.g., Merced Mutual Ins. Co. v. Mendez, supra, 213 Cal.App.3d 41 [oral copulation and attempted oral copulation not an accident notwithstanding insured’s mistaken belief that victim consented]; Collin v. American Empire Ins. Co., supra, 21 Cal.App.4th 787 [misunderstanding of legal rights did not turn conversion of property into an accident]; Quan v. Truck Ins. Exchange, supra, 67 Cal.App.4th 583 [rape not transformed into an accident notwithstanding insured’s mistaken belief that victim consented]; Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1 [mistaken belief that acts were lawful did not render wrongful eviction of tenant an accident]; Lyons v. Fire Ins. Exchange (2008) 161 Cal.App.4th 880 [insured’s subjective miscalculation of victim’s state of mind did not make sexual attack an accident]; see J. C. Penney Casualty Ins. Co. v. M. K., supra, 52 Cal.3d 1009 [homeowner’s policy as a matter of law did not provide coverage for child molestation regardless of lack of intent to harm].)

Here, injured party Delgado advances two different arguments to support his claim that, unlike the above-cited decisions pertaining to oral copulation, conversion, rape, wrongful eviction, and child molestation, an actor’s unreasonable belief in the need for self-defense converts an assault and battery into an unintentional act and therefore is “an accident” within the policy’s coverage. We reject these contentions.

Delgado’s first argument relies on a statement by this court in Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263 (Gray). The issue there was whether an insurance company had a duty to defend an action alleging that the insured had “ ‘willfully, maliciously, brutally and intentionally assaulted’ ” the plaintiff. (Id. at p. 267.) Unlike the case now before us, the policy’s coverage clause in Gray did not define coverage in terms of injuries resulting from “an accident.” It stated that the insurer would defend its insured against “ ‘any suit’ ” alleging “ ‘bodily injury or property damage . . . even if any of the allegations are groundless, false or fraudulent.’ ” (Ibid.) In discussing the scope of the policy’s exclusion for intentional injury and the rules allowing liberal amendments to pleadings, Gray remarked that the insured “might have been able to show that in physically defending himself, even if he exceeded the reasonable bounds of self-defense, he did not commit wilful and intended injury, but engaged only in nonintentional tortious conduct.” (Gray, supra, 65 Cal.2d at p. 277, italics added.) Delgado relies on that statement from Gray and on several cases that have cited Gray for the proposition that acts done in self-defense are unintentional and therefore accidental.

That reliance is misplaced. Gray and the cases that have cited it pertained to the question of unreasonable use of force or unreasonable self-defense in the context of an insurance policy’s exclusionary clauses, not as here in the context of a policy’s coverage clause. (Gray, supra, 65 Cal.2d at p. 266; Quan v. Truck Ins. Exchange, supra, 67 Cal.App.4th at pp. 595-596; David Kleis, Inc. v. Superior Court (1995) 37 Cal.App.4th 1035, 1048; Merced Mutual Ins. Co. v. Mendez, supra, 213 Cal.App.3d at p. 47; Royal Globe Ins. Co. v. Whitaker (1986) 181 Cal.App.3d 532, 537; Mullen v. Glens Falls Ins. Co. (1977) 73 Cal.App.3d 163, 170.) At issue here is whether unreasonable self-defense comes within the policy’s coverage for “an accident,” not whether it falls within a particular policy exclusion.

Moreover, Gray did not say that an unreasonable belief in self-defense will convert into unintentional acts any purposeful acts that were done with intent to harm. The insurance company in Gray contended that it was not obligated to defend its insured against a claim of assault because the policy excluded coverage for “ ‘bodily injury or property damages caused intentionally by or at the direction of the insured.’ ” (Gray, supra, 65 Cal.2d at p. 267.) “ ‘[A]lthough exclusions are construed narrowly and must be proven by the insurer, the burden is on the insured to bring the claim within the basic scope of coverage, and (unlike exclusions) courts will not indulge in a forced construction of the policy’s insuring clause to bring a claim within the policy’s coverage.’ ” (Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 16, quoting Collin v. American Empire Ins. Co., supra, 21 Cal.App.4th at p. 803.) A policy clause excluding intentional injury, such as the one in Gray, is treated as having the same meaning as the language in Insurance Code section 533, which provides that an insurance company is not liable for a loss caused by a willful act of the insured. (Allstate Ins. Co. v. Overton (1984) 160 Cal.App.3d 843.)

Gray, supra, 65 Cal.2d at page 277, stated that an unreasonable belief in the need for self-defense could remove the resulting act from the reach of the policy’s exclusion clause for intentional acts (that is, makes the act “nonintentional”). Gray did not say, however, that such a belief would convert an intentional act into an unintentional act, as Delgado here asserts. Acceptance of Delgado’s argument would render Gray’s statement nonsensical, because a purposeful and intentional act remains purposeful and intentional regardless of the reason or motivation for the act. (Hogan v. Midland National Ins. Co., supra, 3 Cal.3d at p. 560 [whatever the motivation, a deliberate and calculated act is not an accident]; Lyons v. Fire Ins. Exchange, supra, 161 Cal.App.4th at p. 889 [mental miscalculation of victim’s state of mind does not transform intentional conduct done with knowledge of objective facts into an accident]; Swain v. California Casualty Ins. Co., supra, 99 Cal.App.4th at p. 10 [“We know of no case from this or any other jurisdiction where a harm knowingly and purposefully inflicted was held ‘accidental’ merely because the person inflicting it erroneously believed himself entitled to do so”].)

Delgado’s second argument — that an insured’s mistaken and unreasonable belief in the need for self-defense converts the assault into an accidental act — is based on the notion that a provocative act by the injured party turns the insured’s physical response into an accidental act. Under this view, the injured party’s provocative acts are unforeseen and unexpected from the perspective of the insured, making the insured’s responsive acts unplanned and therefore accidental, triggering the policy’s coverage for “an accident.”

The source of that argument is a statement by the Court of Appeal in Merced Mutual Ins. Co. v. Mendez, supra, 213 Cal.App.3d 41. There the court, in rejecting the argument that an “accident” may have occurred because the insured mistakenly believed the victim consented to a sexual battery and assault, stated that “an ‘accident’ exists when any aspect in the causal series of events leading to the injury or damage was unintended by the insured and a matter of fortuity.” (Id. at p. 50, italics added.) The premise of Delgado’s argument is that whenever a provocative act by the injured person is part of the causal chain of events that ultimately led to the insured’s injury-causing conduct — here an assault and battery — the insured’s conduct should be considered accidental.

Delgado overlooks the context in which the Court of Appeal in Merced Mutual Ins. Co. v. Mendez, supra, 213 Cal.App.3d at page 50, made the statement in question. In the same paragraph, the court also observed: “An accident, however, is never present when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage. [Citation.] Clearly, where the insured acted deliberately with the intent to cause injury, the conduct would not be deemed an accident.” (Ibid.) Thus, the statement upon which Delgado relies — that an accident exists whenever any part of the causal events leading to the injury was unintended — referred to events in the causal chain after the acts of the insured, not to events preceding the acts of the insured.

Here, Delgado’s complaint alleges acts of wrongdoing by the insured against him. Those are the acts that must be considered the starting point of the causal series of events, not the injured party’s acts that purportedly provoked the insured into committing assault and battery on Delgado. The term “accident” in the policy’s coverage clause refers to the injury-producing acts of the insured, not those of the injured party. (Quan v. Truck Ins. Exchange, supra, 67 Cal.App.4th at p. 596; Collin v. American Empire Ins. Co., supra, 21 Cal.App.4th at p. 804.) In determining whether the injury is a result of an accident, taking into consideration acts or events before the insured’s acts would be illogical and contrary to California case law.

“Any given event, including an injury, is always the result of many causes.” (1 Dobbs, The Law of Torts (2001) § 171, p. 414.) For that reason, the law looks for purposes of causation analysis “to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.” (Prosser and Keeton on Torts (5th ed. 1984) § 41, p. 264.) In a case of assault and battery, it is the use of force on another that is closely connected to the resulting injury. To look to acts within the causal chain that are antecedent to and more remote from the assaultive conduct would render legal responsibilities too uncertain. “When a driver intentionally speeds and, as a result, negligently hits another car, the speeding would be an intentional act. However, the act directly responsible for the injury—hitting the other car—was not intended by the driver and was fortuitous. Accordingly, the occurrence resulting in injury would be deemed an accident.” (Merced Mutual Ins. Co. v. Mendez, supra, 213 Cal.App.3d at p. 50; see Quan v. Truck Ins. Exchange, supra, 67 Cal.App.4th at p. 600, fn. 16; see generally Maples v. Aetna Cas. & Surety Co. (1978) 83 Cal.App.3d 641, 647-648 [“the term ‘accident’ unambiguously refers to the event causing damage, not to the earlier event creating the potential for future injury”].)

Delgado’s argument that the insured’s assault was an accidental act because a provocative act by the injured party was unforeseen and unexpected would also be inconsistent with California case law. In Quan v. Truck Ins. Exchange, supra, 67 Cal.App.4th 583, the insured was sued for assault and battery based upon the insured’s act of forcibly raping the victim. (Id. at pp. 587, 588, fn. 5.) In his action against his insurance company for breach of the duty to defend, the insured argued that there was a potential for coverage under a policy insuring against bodily injury caused by an accident (id. at p. 592) because he could simply be found negligent or “found to have mistakenly believed the claimant had ‘consented’ ” (id. at p. 596). Quan rejected the argument that the victim’s antecedent act that induced the insured’s mistaken belief in consent converted the forcible rape into an “accident.” Quan first observed that to determine whether an injury resulted from an accident, and thus falls within the policy’s coverage, one needs to consider the nature of the insured’s act. Quan then concluded that the insured’s conduct could not have been accidental because it was intentional, and that an unreasonable belief in the victim’s consent could not alter the nature of the act of forcible rape itself. (Id. at pp. 596-598.) Other courts have come to similar conclusions. (E.g., Lyons v. Fire Ins. Exchange, supra, 161 Cal.App.4th 880 [false imprisonment relating to alleged sexual attack not an accident even when insured may have acted under mistaken belief victim would not rebuff advances]; Modern Development Co. v. Navigators Ins. Co. (2003) 111 Cal.App.4th 932, 942 [“A mistake of fact in an employment termination does not transform the intentional act of terminating an employee into an accident”]; Swain v. California Casualty Ins. Co., supra, 99 Cal.App.4th 1 [insured’s belief that he was entitled to inflict harm does not transform wrongful eviction into an accident]; Merced Mutual Ins. Co. v. Mendez, supra, 213 Cal.App.3d 41 [unreasonable belief in victim’s consent did not make oral copulation and attempted oral copulation an accident].)

We conclude here that an insured’s unreasonable belief in the need for self-defense does not turn the resulting purposeful and intentional act of assault and battery into “an accident” within the policy’s coverage clause. Therefore, the insurance company had no duty to defend its insured in the lawsuit brought against him by the injured party.

The judgment of the Court of Appeal is reversed.

KENNARD, J.

WE CONCUR:

GEORGE, C. J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

MORENO, J.

CORRIGAN, J.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Delgado v. Interinsurance Exchange of the Automobile Club

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 152 Cal.App.4th 671

Rehearing Granted

__________________________________________________________________________________

Opinion No. S155129

Date Filed: August 3, 2009

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Raul A. Sahagun

__________________________________________________________________________________

Attorneys for Appellant:

Glaser & Damone, Glaser, Damone & Schroeder and Robert P. Damone for Plaintiff and Appellant

Dickstein Shapiro, Kirk A. Pasich, Cassandra S. Franklin and Stephanie A. Sullins for United Policyholders as Amicus Curiae on behalf of Plaintiff and Appellant.

Steven W. Murray as Amicus Curiae on behalf of Plaintiff and Appellant.

Law Office of Daniel U. Smith, Daniel U. Smith; Law Office of Gary L. Simms and Gary L. Simms for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Reed Smith, Margaret Grignon, Judith E. Posner; Ford, Walker, Haggerty & Behar, Timothy L. Walker, Donna Rogers Kirby, Maxine J. Lebowitz and K. Michele Williams for Defendant and Respondent.

Sonnenschein Nath & Rosenthal, Paul E. B. Glad, Michael A. Barnes and David R. Simonton for Association of California Insurance Companies as Amicus Curiae on behalf of Defendant and Respondent.

Summers & Shives, Robert V. Closson and Ian G. Williamson for Employers Mutual Casualty Company as Amicus Curiae on behalf of Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert P. Damone

Glaser, Damone & Schroeder

400 Oceangate, Suite 800

Long Beach, CA 90802

(562) 983-3130

Kirk A. Pasich

Dickstein Shapiro

2049 Century Park East, Suite 700

Los Angeles, CA 90067-3109

(310) 772-8300

Daniel U. Smith

Law Office of Daniel U. Smith

21 Rancheria Road

Kentfield, CA 94904-2833

(415) 461-5630

Margaret Grignon

Reed Smith

355 South Grand Avenue, Suite 2900

Los Angeles, CA 90071-1514

(213) 457-8000

Filed 7/28/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Appellant,

v.

DEREK HIRATA,

Defendant and Respondent.

2d Crim. No. B212061

(Super. Ct. Nos. F407913, F408359)

(San Luis Obispo County)

“September Song” laments, “Oh, it’s a long, long while from May to December.” June 14 to September 5 is a shorter while. But here it is too long a while.

In an affidavit in support of a search warrant, June 14 is the date that criminal activity is alleged to have occurred. September 5 is the date the search warrant issued. Here we conclude the warrant fails the test of time, and the good faith exception to the exclusionary rule does not apply.

The trial court quashed the search warrant because the information contained in the supporting affidavit was stale. It dismissed the case when the People were unable to proceed. The People now appeal. We affirm.

FACTS

On September 4, 2007, police obtained a warrant to search 13 homes and businesses for methamphetamine, cocaine, other controlled substances, drug paraphernalia, cash, and financial records. Derek Hirata’s home was one of the 13 buildings that police were authorized to search. The warrant also authorized police to search nine vehicles and 13 individuals.

In a 53-page supporting affidavit, Police Officer Chad Pfarr stated that he conducted a nine-month investigation of a drug trafficking organization run by Raymond Carper, Ruben Jimenez and Jesus Del Rio. In the affidavit, he described numerous sales of illegal controlled substances the organization made to many buyers.

During the investigation, police monitored phone calls between Carper, Jimenez and others. Between May 28 and June 14, 2007, Carper and Jimenez discussed a transaction involving the sale of $7,000 worth of drugs. In a call on May 28, Jimenez asked Carper to have Hirata “deposit $7,000 in cash into JIMENEZ['s] bank account in exchange for ‘a half libra’ (1/2 pound).” Jimenez said that “he’ll ‘work a deal with [Hirata]‘ and that ‘[t]he parts (cocaine) are two hours away.’” In a later call that day, Jimenez said that for $7,000 he would deliver a half-pound of methamphetamine and “it’ll be the bomb, I’ll give his money back if not good stuff.” In a subsequent conversation, Carper told Jimenez that he had spoken with Hirata who said that “he’ll shoot by the bank and do it.”

On June 12, 2007, Hirata called Jimenez to find out when Jimenez would arrive in San Luis Obispo County. In a June 14 call, Jimenez asked Hirata to come to Jimenez’s home so “‘[t]hat way we can take care of it right there.’” Pfarr believed that Hirata and Jimenez met to complete the sale on that date. Thereafter, Hirata is not mentioned in the warrant affidavit.

The affidavit discusses numerous drug transactions, arrests, and communications involving Carper, Jimenez, Del Rio and others in July and August of 2007. In July, police began a surveillance of Carper’s house. On July 10, police arrested Johnny Odom after he went there to purchase methamphetamine. In August, police conducted a surveillance of Del Rio’s home and learned that he was dissatisfied with drugs he bought from a supplier known as “Cunado.” On August 17, police arrested Del Rio’s supplier for possession of 466 grams of cocaine. The affidavit contains no facts that show after June 14 there was surveillance directed at Hirata or his house, or any evidence of drug trafficking there.

On September 6, the police executed a search warrant at Hirata’s home and seized, among other things, methamphetamine and other controlled substances.

The prosecutor filed a criminal complaint alleging that Hirata and 10 others had conspired to: possess methamphetamine for sale (Health & Saf. Code, § 11378); transport or sell methamphetamine (id., § 11379); possess cocaine for sale (id., § 11351); and transport or sell cocaine (id., § 11352).

Hirata filed a motion to quash the search warrant and suppress the evidence seized from his home. He claimed the search warrant is based on stale information about a drug sale that occurred on June 14, 2007, and that Pfarr did not show that “anything would still be located at [his] residence . . . on September 4, 2007.” Hirata did not contest the evidence that he made numerous phone calls to Carper between 2006 and February of 2007, and did not challenge evidence of many drug sales by Carper’s organization to others. But he claimed the nine-month investigation documented his involvement in only one transaction, the June 14 purchase at Jimenez’s house.

The prosecutor responded that the warrant authorized the search of 13 individuals, including Hirata, who were involved in a conspiracy to sell and transport drugs. She claimed the June 14 information about Hirata was not stale because there was an “ongoing criminal conspiracy from June 15 to September 4,” but, if it were stale, the case fell within the good faith exception to the exclusionary rule.

The trial court granted the motion to quash and to suppress the evidence. The trial judge, who was also the magistrate who issued the warrant, said, “[T]he warrant, as to Mr. Hirata, was improperly granted. I think that the information would certainly have been stale by the time the warrant was executed. I considered the People’s theory of on-going criminal conspiracy. But, as it relates to Mr. Hirata, I don’t believe there’s any evidence of that from June 15th through September 4th . . . .”

On August 8, 2008, the court dismissed the case after finding that the prosecution was “unable to proceed.” The People appeal.

DISCUSSION

1. Stale Information

“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)

“Probable cause exists when ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” (United States v. Grubbs (2006) 547 U.S. 90, 95.) “[T]he probable cause-cause requirement looks to whether evidence will be found when the search is conducted . . . .” (Ibid.)

Stale information in a search warrant affidavit does not establish present probable cause for a search. (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.) “Although there is no bright line rule indicating when information becomes stale . . . delays of more than four weeks are generally considered insufficient to demonstrate present probable cause.” (Ibid.) In Hulland, we stated that “a delay of 34 days between a controlled sale of heroin and the officer’s affidavit for the search warrant has been held insufficient to establish present probable cause.” (Ibid.)

Here the trial court reasonably found that the affidavit information was stale. Pfarr said that on June 14, Hirata completed a drug transaction. But the police did not seek a warrant to search Hirata’s home until September 4, 2007. The delay between the June 14 transaction and the issuance of the warrant is 82 days. Consequently, there was no current information to establish present probable cause. (People v. Hulland, supra, 110 Cal.App.4th at p. 1652.)

The People contend the trial court ignored exceptions to the staleness doctrine. Delays beyond four weeks may be justified where there is a reasonable inference that the defendant’s actions “will continue until the time of the search.” (People v. Hulland, supra, 110 Cal.App.4th at p. 1652.) But here the affidavit contains no facts showing that between June 15 and September 4, there were any drug sales at Hirata’s house or that he engaged in such transactions.

Moreover, the affidavit does not indicate whether the drugs involved in the June 14 transaction were at Hirata’s home or remained there. “The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” (Zurcher v. Stanford Daily (1978) 436 U.S. 547, 556.) But even had the affidavit stated that the drugs were at Hirata’s home on June 14, the “affidavit in support of a search warrant must provide probable cause to believe the material to be seized is still on the premises to be searched when the warrant is sought.” (Italics added.) (People v. Mesa (1975) 14 Cal.3d 466, 470.) The affidavit here does not comply with Mesa.

The People contend there was a continuing conspiracy involving Hirata to sell drugs during the period leading up to the search. The trial judge perceptively noted, “I considered the People’s theory of on-going criminal conspiracy, but, as it relates to Mr. Hirata, I don’t believe there’s any evidence of that from June 15th through September 4th . . . .” (Italics added.) The affidavit’s description of drug transactions in July and August involve suspects other than Hirata.

The People suggest that Hirata was a major part of the organization responsible for ongoing drug transactions. That may be true, but where the facts yield conflicting inferences, we defer to the implied findings of the trial court. (People v. Glaser, supra, 11 Cal.4th at p. 362.) The affidavit describes the group responsible for the continuing drug sales as “JIMENEZ/CARPER/DELRIO Drug Trafficking Organization,” without reference to Hirata. The affidavit primarily recounts the continuing activities of these three individuals. A small portion of the affidavit concerns Hirata. Hirata obviously knew Carper and had made numerous phone calls to him from 2006 to February of 2007. But the court could draw more than one inference from this. (United States v. Algie (6th Cir. 1983) 721 F.2d 1039, 1042-1043 [number of daily phone calls from a gambling operation to a business was suspicious but not probable cause for a search warrant].) The phone calls involving Hirata ended six months before the search. The subject matter of these calls is not described in the portion of the affidavit that mentions “high volume of calls.” Moreover, deference to the trial court’s reasonable inferences is appropriate because the trial judge knew about these phone calls. She issued the orders authorizing certain wiretaps during Pfarr’s investigation.

The nine-month investigation yielded detailed information about many drug transactions. The People suggest that the trial court may not adopt Hirata’s claim that he was only involved in one transaction given the multiple contacts he had with Carper. The affidavit does not specify the number of drug transactions involving Hirata. And the People have not shown why the trial judge, who was also the magistrate who issued the warrant, could not reasonably infer that only the June 14 drug transaction is sufficiently described.

No evidence links Hirata to the transactions involved in Odom’s or Cunado’s arrests. The affidavit describes arrests of persons who bought drugs from the organization at homes and documents movement of drugs to a commercial establishment. But the affidavit reflects that the business entity mentioned was connected to Del Rio and the homes belonged to Jimenez and Carper. In February and March, police used a confidential informant to make drug purchases. But the affidavit reflects that those transactions involved Carper, not Hirata. Pfarr often relies on his expert opinion to link suspects to transactions. The experienced officer’s opinions are entitled to great deference, but the magistrate must determine whether the factual links are adequately connected to each defendant. (People v. Nadell (1972) 23 Cal.App.3d 746, 752.)

The affiant’s opinion that the defendant is a criminal, or that he or she previously bought drugs elsewhere, does not require the magistrate to infer that the remaining factual prerequisites for a current search of defendant’s home are established. (People v. Hulland, supra, 110 Cal.App.4th at pp. 1652-1653; United States v. Frazier (6th Cir. 2005) 423 F.3d 526, 533; United States v. Freeman (5th Cir. 1982) 685 F.2d 942, 951; United States v. Gramlich (5th Cir. 1977) 551 F.2d 1359; United States v. Bailey (9th Cir. 1972) 458 F.2d 408, 412.) “‘[S]imply from the existence of probable cause to believe a suspect guilty, [it does not follow in all cases] that there is also probable cause to search his residence.’” (Bailey, at p. 412.) Even had Pfarr sought a search warrant on June 14, a magistrate could reasonably infer that the most relevant fresh link would still be to the place where Pfarr said the drugs were stored, sold, and where the transaction with Hirata took place, namely Jimenez’s home. (United States v. Freeman, supra, 685 F.2d at p. 951; United States v. Gramlich, supra, 551 F.2d at p. 1362.)

Relying on People v. Mikesell (1996) 46 Cal.App.4th 1711, People v. Medina (1985) 165 Cal.App.3d 11, and People v. Cletcher (1982) 132 Cal.App.3d 878, the People argue that evidence of past drug activity is not stale if there is an ongoing criminal investigation. But these cases are distinguishable.

In Mikesell, there were facts about past drug dealing by the defendants. But, unlike here, the affiant also stated facts about “recent heavy traffic” at the residence to update the older information and justify the search. (People v. Mikesell, supra, 46 Cal.App.4th at p. 1717.)

In Medina, the defendant claimed a search of a home was based on stale information because the affiant mentioned some drug transactions that had occurred one or two months earlier. The Court of Appeal rejected this claim. It noted that the police overcame staleness by documenting 20 to 30 drug transactions at that house within the prior two-month period and stating facts showing that these transactions continued at that residence “up to the time of the issuance of the warrant.” (People v. Medina, supra, 165 Cal.App.3d at p. 20.) Pfarr made no such showing.

In Cletcher, police conducted a lengthy investigation of a defendant about a theft of art that had occurred two years earlier. But when they sought a search warrant, they obtained fresh information from a witness, one day before the search, that pinpointed the exact location of the stolen item in the place to be searched.

In opposing the suppression motion, the prosecutor said the investigation was successful and led to the arrests of other defendants and the search of other residences. But the issue here is probable cause to search Hirata’s home. “This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another . . . .” (Ybarra v. Illinois (1979) 444 U.S. 85, 91.) “‘[A] search warrant designating more than one person or place to be searched, must contain sufficient probable cause to justify its issuance as to each person or place named therein.’” (People v. Nadell, supra, 23 Cal.App.3d at p. 752.) Consequently, “[I]n the case of multi-location search warrants [as here], the magistrate must be careful to evaluate each location separately.” (Greenstreet v. County of San Bernardino (9th Cir. 1994) 41 F.3d 1306, 1309.)

The trial court reasonably found that Pfarr did not set forth facts linking the June 14 incident to the September 6 search. (Zurcher v. Stanford Daily, supra, 436 U.S. at p. 556; People v. Mesa, supra, 14 Cal.3d at p. 470; see also United States v. Frazier, supra, 423 F.3d at p. 533; United States v. McNeal (S.D. Ind. 2000) 82 F.Supp.2d 945, 960.) Pfarr’s information was insufficient because there was an absence of “‘facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.’” (Alexander v. Superior Court (1973) 9 Cal.3d 387, 393, italics added.)

2. The Good Faith Exception Not Here

The People claim the trial court erred by not ruling that this case falls within the good faith exception to the exclusionary rule. We disagree.

“This exception provides that evidence obtained in violation of the Fourth Amendment need not be suppressed where the officer executing the warrant did so in objectively reasonable reliance on the warrant’s authority. The test for determining whether the exception applies is ‘whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.’” (People v. Hulland, supra, 110 Cal.App.4th at p. 1653.) A better way to explain the test for the exception is to simply say it does not apply if the reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization. (United States v. Leon (1984) 468 U.S. 897.)

But it is not objectively reasonable for officers to believe that a search is legal where there are long, unexplained delays between the search and the drug incident mentioned in the affidavit. (People v. Hulland, supra, 110 Cal.App.4th at p. 1655.) Here no facts show there had been drug transactions committed by Hirata, or others at his house, during the period between June 15 and September 4. “[T]he prosecution has the burden of proving that the officer’s reliance on the warrant was objectively reasonable.” (Id. at pp. 1654-1655.) This burden is not satisfied in a case involving a long delay by simply showing that the police had a “hunch” that drugs might be at a defendant’s residence several months after a transaction involving the defendant. (Id. at p. 1655.)

The trial court implicitly and correctly determined that the good faith exception did not apply. “‘Good faith is not a magic lamp for police officers to rub whenever they find themselves in trouble.’” (People v. Hulland, supra, 110 Cal.App.4th at p. 1656.) “A reasonably well-trained officer would have recognized that probable cause in this case had grown stale by the time the warrant was sought and executed. To prevent the exception from swallowing the rule, application of the good faith exception must be limited in this context to those cases in which the staleness determination is a close one. This is not such a case.” (Id. at p. 1657.)

We have reviewed the People’s remaining contentions and conclude that they have not shown reversible error.

The judgment is affirmed.

CERTIFIED FOR PUBLICATION.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Michael L. Duffy, Ginger E. Garrett Judges

Superior Court County of San Luis Obispo

______________________________

Gerald T. Shea, District Attorney, Cheryll Manley, Deputy District Attorney, for Plaintiff and Appellant.

Sanger & Swysen, Robert M. Sanger, Stephen K. Dunkle for Defendant and Respondent.

Filed 7/28/09

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SAM H. FARAHANI,

Plaintiff and Respondent,

v.

SAN DIEGO COMMUNITY COLLEGE DISTRICT et al.,

Defendants and Appellants.

D054087

(Super. Ct. No. GIC881390)

APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Affirmed.

Stutz Artiano Shinoff & Holtz, Ray J. Artiano and Richard E. Romero for Defendants and Appellants.

Grady and Associates, Dennis M. Grady, Kenneth W. Baisch, and Bradley K. Moores for Plaintiff and Respondent.

In this case we hold that Education Code section 87485 (undesignated statutory references are to the Education Code) renders “null and void” the “last chance agreement” (Agreement) under which community college faculty member Sam H. Farahani waived his statutory due process rights relating to faculty discipline. The San Diego Community College District (District) terminated Farahani after he allegedly violated his Agreement with the District. The trial court granted Farahani’s petition for writ of mandate (Code Civ. Proc., § 1085), ruling that the Agreement violated the Education Code and Farahani’s due process rights. The court issued a peremptory writ of mandate under Code of Civil Procedure section 1085 directing the District to: (1) reinstate Farahani with full back pay, interest and benefits and (2) require its governing board to determine whether Farahani should be terminated, “all in compliance with the requirements of the Education Code, including appropriate notice and opportunity to be heard.” The District appeals.

In addition to concluding that Farahani’s purported waiver of the right to a hearing in the Agreement and attached General and Special Release and Settlement Agreement (Release) were unenforceable under section 87485, we also reject the District’s claim that Farahani’s petition was barred by laches, unclean hands, and the failure to exhaust administrative remedies. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Farahani was a tenured professor of international relations and public policy at Mesa College. He had worked for the District for 18 years prior to his termination in June 2006.

Beginning in 1994, the District received complaints from female students and staff about what they described as unwanted sexual and social advances. In October 2000, after investigating some of these complaints, the District gave Farahani a written reprimand advising him that continued misconduct would result in discipline up to and including termination.

On September 20, 2004, the District sent Farahani written “Notice of Pre-Disciplinary Hearing: Suspension.” The notice cited the basis for the recommended one-year suspension without pay as “a continuing pattern of inappropriate behavior toward students and employees over several years.” The notice informed Farahani that he had “the right to respond to the proposed discipline either orally or in writing or both.”

The matter did not proceed to the hearing stage. In November 2004, the attorney for the American Federation of Teachers Guild, California Federation of Teachers Local 1931 (Union) presented Farahani with the Agreement, and told him that the District would suspend him for a year without pay unless he signed it. Among other things, the Agreement and Release provided that Farahani: (1) accept a reduction of pay equivalent to one month’s salary and (2) for a period of 18 months agree to refrain from conduct that constituted sexual harassment, “including any verbal, physical or visual conduct” on campus, and from “personal contacts and/or communications” with students off campus. The Agreement stated that if Farahani failed to comply with its provisions, he could be “terminated at the Chancellor’s discretion, without the issuance of charges under the Education Code or District policies and without right of appeal . . . .” The Release included the following provision: “Farahani waives any and all appeal rights he may otherwise have to challenge the discipline or otherwise pursue any appeal relating to the pre-disciplinary notice.”

District faculty members are covered by the collective bargaining agreement between the District’s trustees and the Union. Article XIV, section 14.2 of the collective bargaining agreement provides that “All faculty are eligible for a hearing prior to any disciplinary action involving loss of pay.” When encouraging Farahani to sign the Agreement, the Union attorney told Farahani that although the Agreement was “probably . . . not legal,” it would be best to “[g]ive your 18 months and get it over with.” Although Farahani believed that the charges were baseless, he stated he was “compelled” to sign “by two bad options.”

While the Agreement was in effect, the District received new complaints about Farahani from female employees. Constance M. Carroll, the chancellor, concluded that Farahani’s conduct towards these women “constituted unwanted social advances which could create an uncomfortable work environment and/or conduct which could be considered sexual harassment.” She terminated Farahani effective June 9, 2006, pursuant to the Agreement. The termination letter stated, “Since you are being terminated from employment because of a violation of the [Agreement], you do not have a right of appeal.”

Farahani wrote members of the District’s governing board, requesting reinstatement and an opportunity to meet. He received no response. Farahani’s attorney wrote Carroll on July 14, 2006, demanding Farahani’s reinstatement plus backpay and benefits. The District’s response reiterated that “Mr. Farahani was not entitled to the issuance of formal charges or right to appeal his termination under the provisions of the [Agreement].”

Farahani filed his petition for writ of mandate on March 7, 2007.

DISCUSSION

I. Standard of Review

Under Code of Civil Procedure section 1085, subdivision (a), the trial court may issue a writ of mandate “to any . . . board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such . . . board, or person.” In reviewing a judgment granting a peremptory writ of traditional mandate under this section, we apply the substantial evidence test to the court’s factual findings, but independently review its findings on legal issues. (Stryker v. Antelope Valley Community College Dist. (2002) 100 Cal.App.4th 324, 329 (Stryker).) The interpretation of a statute is a legal issue subject to de novo review. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)

II. The Agreement

The District argues that the Agreement and Release included all the elements of a valid contract, Farahani signed them voluntarily on advice of counsel, and neither document was unlawful or against public policy. We begin with the dispositive question whether the Agreement and Release were invalid and unenforceable, as found by the trial court.

The Education Code sets forth due process rights granted to community college faculty members in disciplinary matters, including the right to notice, opportunity to object, a hearing before an arbitrator or administrative law judge, and a decision by the governing board. (§§ 87669, 87672-87674, & 87678-87680.) The first paragraph of section 87485 expressly provides: “Except as provided in Section 87744, any contract or agreement, express or implied, made by any employee to waive the benefits of this chapter or any part thereof is null and void.” The District contends that section 87485 is inapplicable to the Agreement and Release signed by Farahani, which it describes as a waiver in response to discipline. We conclude that the District interprets section 87485 too narrowly and there was no error in the trial court’s ruling.

The rules of statutory construction are well established. Its aim is to ascertain legislative intent in order to effectuate the purpose of the law. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) Courts generally adopt a literal interpretation of the words of a statute unless the words are ambiguous or the language is inconsistent with the statute’s purpose. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) “If the plain language of a statute is unambiguous, no court need, or should, go beyond that pure expression of legislative intent.” (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 861.) Moreover, courts should not read the statutory language in isolation, “but rather in context, keeping in mind the nature and obvious purpose of the statute.” (Covino v. Governing Board (1977) 76 Cal.App.3d 314, 318 (Covino).) “A corollary to this rule is that the various parts of the statutory enactment must be harmonized by considering the particular phrase, clause or section in the context of the statutory framework as a whole [citations].” (Ibid.) We apply these rules to determine the scope of section 87485.

Title 3, Division 7, Part 51, Chapter 3 of the Education Code governs the employment rights of community college faculty. (Stryker, supra, 100 Cal.App.4th 329; § 87400 et seq.) It is significant that section 87485 appears under Article 1, “General Provisions.” By its terms, section 87485 renders null and void any agreement to waive the benefits of Chapter 3, “Employment.” (§ 87485, italics added.) The only exception is an agreement pertaining to reductions in force under section 87744, which appears in the more specific Article 6.5, “Reduction in Services.” Courts have applied section 87485 and its predecessor, section 13338.1, to bar waiver of statutory classification and tenure rights. (See Stryker, supra, 100 Cal.App.4th 324; Kalina v. San Mateo Community College Dist. (1982) 132 Cal.App.3d 48; Covino, supra, 76 Cal.App.3d 314.) The common denominator in these cases, and the case before us, is the faculty member’s waiver of a statutory right set forth in Chapter 3 of the Education Code. We therefore reject the District’s attempt to distinguish Stryker on grounds it did not involve discipline.

Citing Campbell v. Graham-Armstrong (1973) 9 Cal.3d 482, 486-487 (Campbell), the District maintains that the purpose of section 87485 (former section 13338.1) is “to ensure that part-time employment is not outlawed . . . .” It argues that the Legislature took action to enact former section 13338.1 following an earlier Supreme Court decision, because of its concern that school or community college districts “would circumvent the classification system and deprive public employees of the salary that accompanies a proper classification.” The District misreads Campbell. The court’s reference to part-time employment was directed to the second paragraph of former section 13338.1, repeated in substance in the second paragraph of section 87485 as: “Notwithstanding provisions of this or any other section of this code, governing boards of community college districts may employ persons in positions requiring certification qualifications on less than a full-time basis.” (Campbell, supra, 9 Cal.3d at p. 487.) Nothing in Campbell defines or limits the purpose of the first paragraph of former section 13338.1 in the manner the District suggests.

Next, the District cites Civil Code section 3513 and suggests that Farahani could lawfully waive the statutory due process protections because they were solely for his private benefit. In Covino, supra, 76 Cal.App.3d at page 322, the court expressly rejected the same argument and articulated the relevant public policy concerns: “[W]hile as a general rule anyone may waive the advantage of law intended solely for his benefit, a law established for a public reason cannot be waived or circumvented by a private act or agreement (Civ. Code § 3513 . . . ). Teachers are public employees and their tenure rights elaborately regulated by the Education Code reflect the public policy of the state. . . . ‘Legislation which is enacted with the object of promoting the welfare of large classes of workers whose personal services constitute their means of livelihood and which is calculated to confer direct or indirect benefits upon the people as a whole must be presumed to have been enacted for a public reason and as an expression of public policy in the field to which the legislation relates.’” The statutory due process rights afforded community college faculty reflect the same public policy, which, in our view, outweighs the competing policies cited by the District. Here, the Agreement and Release required Farahani to waive the benefit of those statutory rights in connection with the 2004 complaints as well as in the future, rendering it impossible for Farahani to challenge the substance of the new complaints against him. Civil Code section 3513 does not render lawful Farahani’s waiver of due process rights.

In concluding that the Agreement and Release were “null and void” under section 87485, we reject two additional points raised in opposition to Farahani’s petition. First, the District argues that the unfairness of the relief sought by Farahani is “strikingly similar” to the unfairness discussed in Leithliter v. Board of Trustees (1970) 12 Cal.App.3d 1095. That case is readily distinguishable. The petitioners in Leithliter did not claim they were terminated without due process. Because they had voluntarily resigned from their teaching position, the court did not apply former section 13338.1 and dismissed the appeals as moot. (Leithliter, supra, at pp. 1097, 1099-1100, 1101.) Second, the District argues without citation to authority that even if the Agreement was void as against public policy, Farahani’s petition was barred by the covenant not to sue contained in the Release. The District fails to explain how the waivers contained in the Release were outside the scope of section 87485.

III. Defenses to Farahani’s Petition

The court rejected the District’s three affirmative defenses to Farahani’s petition. We address each in turn.

A. Laches:

“‘The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ [Citation.]” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68.) Prejudice is not presumed from the simple fact of delay; it must be affirmatively shown. (Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1049.) In determining whether a defendant has sustained its burden of proving laches, the court may consider the extent to which the defendant is partially responsible for the delay. (Ibid.) “Laches is an equitable defense, the existence of which is a matter commended to the discretion of the trial court, ‘and in the absence of manifest injustice or lack of substantial support in the evidence, the trial court’s determination will be sustained.’ [Citation.]” (In re Marriage of Powers (1990) 218 Cal.App.3d 626, 643.)

The District contends that Farahani’s petition is barred by laches because he filed it nine months after his termination and the District was prejudiced by the delay. The court rejected the District’s arguments and found that the delay was not unreasonable. It noted that Farahani advised the District one month after his termination that he was challenging the summary action which denied him the right to a hearing. Citing Carroll’s declaration, the court also found that the District failed to demonstrate prejudice. The court stated that “any prejudice incurred by [the District] was of [its] choosing inasmuch as Petitioner’s position was not filled until months after this writ petition was filed.”

On appeal, the District argues for the first time that the delay giving rise to the defense of laches includes Farahani’s failure to challenge the Agreement at the time he signed it, in addition to his delay in filing the petition. The District maintains that the unreasonable delay prejudiced the District in three ways. First, Farahani has been replaced and it “cannot simply terminate the replacement employee at-will.” Second, if Farahani is awarded backpay, “the District will essentially be paying twice for the same position due [to] Mr. Farahani’s conduct . . . .” Third, if the District is required to conduct a hearing regarding its intent to suspend Farahani for one year without pay, it “would have great difficulty tracking down [those] witnesses.” The District also argues that the court’s findings “create[] an inefficient and impractical policy that would require a public entity . . . to stop its hiring process . . . any time a terminated employee challenges their dismissal.”

The record supports the court’s factual findings on the questions of unreasonableness and prejudice. The question whether Farahani’s failure to challenge the Agreement itself constitutes laches is not properly before us. (Cinnamon Square Shopping Center v. Meadowlark Enterprises (1994) 24 Cal.App.4th 1837, 1844 [an appellate court will consider only issues raised below].) We agree with the trial court that the prejudice claimed by the District was the result of the District’s own illegal actions terminating Farahani without a hearing and expressly informing him that he had no right to an appeal. The Education Code provides safeguards for both the District and the faculty in the hiring and firing process. (See § 87400 et seq.) In our view, compliance with statutory due process guarantees is consistent with public policy. (See Covino, supra, 76 Cal.App.3d at p. 322.) For these reasons we conclude that the court did not abuse its discretion in rejecting the District’s laches defense.

B. Unclean Hands:

The doctrine of unclean hands rests on the maxim that “‘he who comes into equity must come with clean hands.’ [Citation.]” (Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 638.) “‘”It . . . closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant.”‘ [Citation.]” (Ibid.) The decision whether to apply the unclean hands defense is a matter within the trial court’s discretion. (Dickson, Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 447.) In exercising this discretion, the court “must consider the material facts affecting the equities between the parties . . . .” (Ibid.)

The District argues that because Farahani was advised by the Union attorney that the Agreement was unenforceable, he signed it with no intention of performing. The District therefore contends that “it is inherently inequitable to allow Mr. Farahani to be reinstated and to receive backpay on the basis that he was terminated without a hearing, given that the sole reason he was not provided a hearing is because he agreed to waive such rights and the District believed him.” The trial court found that the doctrine of unclean hands was inapplicable to the facts of this case.

We conclude there was no abuse of discretion. The difficulty with the District’s argument is that the Agreement itself was contrary to the express language of section 87485 and unenforceable as a matter of law. Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833 and Camp, supra, 35 Cal.App.4th 620, the cases cited by the District in support of applying unclean hands in the employment context, are distinguishable. The District presented Farahani with a Hobson’s choice between two “bad,” indeed illegal, options. Contrary to the District’s argument, there is nothing in the record to suggest that Farahani signed the Agreement with the intent of not performing. The record supports a conclusion that Farahani followed the Union attorney’s advice to take the pragmatic course and sign the Agreement.

C. Exhaustion of Remedies:

Under the exhaustion of remedies doctrine, “where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1148.) The same rule applies to a party to a collective bargaining agreement that provides grievance and arbitration machinery for the settlement of disputes. (Cone v. Union Oil Co. of Cal. (1954) 129 Cal.App.2d 558, 563-564.) Failure to exhaust administrative remedies is a procedural prerequisite to judicial action. (Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 219-222; but see Lopez v. Civil Service Com. (1991) 232 Cal.App.3d 307, 311 [exhaustion of administrative remedies jurisdictional].)

The trial court rejected the District’s claim that Farahani failed to exhaust administrative remedies, stating that the District was “precluded from arguing this defense when by [their] own conduct they advised Petitioner he had no rights of appeal.” The District contends that the court’s erroneous ruling “appears to stem from confusion between the appeal procedure provided by statute and the grievance procedure provided by the collective bargaining agreement Farahani was subject to.” It suggests that the word “appeal” in the chancellor’s termination letter referred only to the statutory hearing and appeal rights which were “separate and distinct from the grievance procedures set out in the collective bargaining agreement.”

There is no merit in the District’s contention. The same exception applies to either type of “appeal.” Plaintiff need not exhaust administrative remedies provided by statute if the agency has already rejected the claim, announced its position on the claim or made clear it would not consider the plaintiff’s evidence. (Doster v. County of San Diego (1988) 203 Cal.App.3d 257, 260-261; Huntington Beach Police Officers’ Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 498-499.) An employee need not exhaust collective bargaining grievance procedures if the employer repudiates those procedures. (Sidhu v. Flecto Co., Inc. (2002) 279 F.3d 896, 898.) Where that occurs, the employer is “‘estopped by his own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee’s cause of action.’ [Citation.]” (Ibid.)

Here, the record supports the trial court finding that the District was estopped by its own conduct from relying on the exhaustion doctrine. The chancellor’s termination letter and the District’s subsequent response to the July 14, 2006, letter from Farahani’s attorney demonstrate that the District’s denial of “appeal rights” was unequivocal and encompassed all avenues of appeal. The trial court could reasonably assume that the chancellor was aware of the two means of challenging the termination. Moreover, the Union president’s approval of the Agreement supports a conclusion that the participants were aware of the collective bargaining rights Farahani was signing away. Indeed, the District’s trial brief refers to the grievance procedure under the collective bargaining agreement as an “appeal of discipline.” We conclude that the court was correct in finding that the exhaustion of remedies doctrine did not apply.

IV. The Back Pay Award

Farahani states in his brief on appeal that because the trial court was correct on the merits of his petition, it was also correct in awarding him reinstatement with back pay and benefits. The District’s reply brief appears to challenge the merits of the back pay award for the first time. That issue is not properly before us. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765.)

DISPOSITION

The judgment is affirmed. Farahani is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

McINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.