SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO CENTRAL MINUTE ORDER DATE: 09/14/2018 TIME: 01:30:00 PM JUDICIAL OFFICER PRESIDING: Timothy Taylor CLERK: Kelly Breckenridge REPORTER/ERM: Not Reported BAILIFF/COURT ATTENDANT: O. Godoy DEPT: C-72 CASE NO: 37-2018-00013324-CU-TT-CTL CASE INIT.DATE: 03/15/2018 CASE TITLE: Golden Door Properties LLC vs County of San Diego [E-FILE] CASE TYPE: Toxic Tort/Environmental CASE CATEGORY: Civil - Unlimited EVENT TYPE: Motion Hearing (Civil) APPEARANCES Christopher W Garrett, counsel, present for Petitioner,Plaintiff(s). Taiga Takahashi, counsel, present for Petitioner,Plaintiff(s). JOSHUA M HEINLEIN, counsel, present for Defendant,Respondent(s). Claudia Silva, counsel, is present for Defendant County of San Diego. The Court hears argument by counsel on Petitioners' Motions for Stay or Preliminary Injunction. The Court takes this matter under submission. _____________________________________________________________________________ The Court, having taken the above-entitled matter under submission on this date and having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows: Rulings on Petitioners' Motions for Stay or Preliminary Injunction Sierra Club v. County of San Diego, Case No. 2012-101054 Sierra Club v. County of San Diego, Case No. 2018-14081 Golden Door Properties v. County of San Diego, Case No. 2018-13324 September 14, 2018, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture. In late 2012 and early 2013, the court was required to address, in two CEQA cases, the controversial topics of greenhouse gases and global climate change. The first was Cleveland Nat'l. Forest Foundation DATE: 09/14/2018 DEPT: C-72 MINUTE ORDER Page 1 Calendar No. 33 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] v. SANDAG, SDSC Case No. 2011-00101593; that case was the ultimately the subject of three appellate opinions: 180 Cal.Rptr.3d 548 (2014); 3 Cal.5th 497 (2017); and 17 Cal.App.5th 413 (2017). The second 2012 case is the current lead case. The Sierra Club contended that the County of San Diego's June 20, 2012 "Climate Action Plan" (CAP), was insufficient and violated CEQA in several respects: it did not comply with mitigation measures spelled out in the County's 2011 Program EIR (PEIR), adopted in connection with the 2011 General Plan Update (GPU) (AR 0441 ff); it failed to satisfy the requirements for adopting thresholds of significance for greenhouse gas emissions (GHG); and it should have been set forth in a stand-alone environmental document rather than in an addendum to the PEIR. The County denied these claims, and asserted that the CEQA challenge was time-barred, the CAP complied with all legal requirements, the use of an addendum was appropriate, and that all relief was barred by the Sierra Club's failure to notify the AG as required by Pub. Res. Code section 21167.7. More than five years ago, the court ruled in favor of the Sierra Club on the original petition. ROA 33. The County appealed. ROA 44. The parties thereafter stipulated to stay the case while it was on appeal. ROA 60. But before they did, the Sierra Club had filed a supplemental petition. ROA 54. The stipulated stay prevented consideration of that document. Subsequently, the parties filed a stipulation regarding the disposition of the supplemental petition, depending on the disposition of the appeal. ROA 64. In October of 2014, the 4th DCA, Div. 1 issued its learned opinion affirming this court, ultimately published at 231 Cal.App.4th 1152 (2014). On March 11, 2015, the Supreme Court denied review. A remittitur thereafter issued. ROA 105. The parties were before the court on April 15, 2015. Petitioner asked that the stay be lifted, and that the case be restored to the civil active list. These requests were granted without objection. The Sierra Club also wanted the court to sign an order, while the County wanted the court to sign a different order. There were two problems: first, the court had not received petitioner's version of the proposed order, nor had a chance to review the County's proposed order; and second, the parties were before the court while it was in the middle of a lengthy trial with jurors arriving shortly. The court continued the matter to the regular law and motion calendar of May 1, 2015. ROA 73. The court thereafter reviewed the parties' competing submissions. The central problem was that a dispute had arisen regarding the intent, import and meaning of the December 11, 2014 stipulation (ROA 64). The court, following several submissions and argument, resolved the dispute in May of 2015. ROA 91-92. The Sierra Club's counsel thereafter sought an award of attorneys' fees. ROA 95-104. The amended moving papers (ROA 116, 117) made clear that the County agreed petitioner was entitled to fees; the only question was how much. Petitioner sought a lodestar of over $661,000.00 with a multiplier of two, for a total of over $1.3 million, plus fees necessary for the fee motion. The County filed opposition. ROA 122-125. After presenting very focused argument, the County ended by making several specific "suggestions" for reducing the fee award: a combination of cutting hours, reducing rates, and denial of any multiplier. Petitioner filed reply. ROA 126-130. The court, after it had reviewed all the briefing and heard argument, granted a fee award in the amount of over $961,000.00. ROA 133. Judgment was thereafter entered in this amount, plus additional costs not challenged by the County. ROA 135. This occurred in September of 2015; at this point, the court (perhaps naively) considered the case to have been essentially concluded. Neither side sought further appellate review of the attorneys' fee ruling or the May 2015 ruling. In early 2016 and again the following summer, the County filed returns on the supplemental writ. ROA DATE: 09/14/2018 DEPT: C-72 MINUTE ORDER Page 2 Calendar No. 33 CASE TITLE: Golden Door Properties LLC vs County of San Diego [E-FILE] 137, 138. Both sides changed counsel. ROA 136, 147. CASE NO: 37-2018-00013324-CU-TT-CTL The Sierra Club filed its second amended petition on September 26, 2016. ROA 140. The County demurred to it on two grounds, including non-justiciability (ripeness). ROA 142. Following briefing and argument, the court overruled the demurrer on January 6, 2017. ROA 160. The County thereafter answered. ROA 161-162. Also at the January 6, 2017 hearing, the court allowed the parties' stipulation whereby a more recently filed case, Golden Door Properties LLC v. County of San Diego, Case No. 2016-0037402, would be transferred to Dept. 72 and heard with the Sierra Club 2012 case. ROA 160. Both the then-current iteration of the Sierra Club 2012 case and the Golden Door 2016 case challenged the County's 2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis Reports in Support of CEQA Documents (2016 Guidance Document or 2016 Significance Document) prepared by the County's Department of Planning & Development Services. Following extensive briefing (ROA 169-190) and the publication of a tentative ruling (ROA 191), the court rendered its decision on April 28, 2017. ROA 193. A judgment on the second supplemental petition was thereafter entered. ROA 194. The County appealed (ROA 198-199), and that appeal remains pending (Case No. D072433, argued and submitted on September 10, 2018; a decision is due on or before December 10, 2018). In early 2018, with the appeal pending, the County filed a sixth and seventh return on the supplemental writ. ROA 220, 221. The latter came as the result of the Board of Supervisors certifying the EIR for the 2018 CAP, and was the subject of objections by the Sierra Club. ROA 224. Sierra Club filed a new petition (Case No. 2018-14081) challenging the 2018 CAP. In addition, the Sierra Club filed its third supplemental petition for writ of mandate in the 2012 case. ROA 226, 231. In a nutshell, the County contends that certification of the EIR for the 2018 CAP, and the related actions, comply with the requirements of the second paragraph of the supplemental writ in the 2012 case, and demonstrate compliance with CEQA as required by the third paragraph of the supplemental writ. The County wants the court to discharge the supplemental writ and deny the new petition. The Sierra Club contends that the County's 2018 actions violate "CEQA as an informational document, as a substantive document of environmental protection, and as a document of public accountability." Golden Door, which filed its own case challenging the 2018 CAP (No. 2018-13324), also sought leave to intervene in the 2012 case pursuant to Code of Civil Procedure section 387, subdivisions (a) (permissive intervention) or (b) (mandatory intervention). Following full briefing, the court granted the motion (ROA 276, 285), and the complaint in intervention was filed. ROA 277. The County filed a motion to discharge the May 4, 2015 Supplemental Writ of Mandate. ROA 271-274. The Sierra Club and Golden Door filed separate opposition. ROA 282-284, 286. The court reviewed the papers, and on July 20, 2018, granted the County's motion in part and denied it in part in light of the pending appeal and Code of Civil Procedure section 916. ROA 297. At the continued CMC, the court ordered the administrative record for the ongoing challenges to the 2018 CAP filed by August 3, and set a merits hearing for November 30, 2018. ROA 25. Golden Door lodged the proposed administrative record on August 3. ROA 48. The County challenged the adequacy of the proposed record and sought a substantial delay in the merits hearing (in a motion misleadingly phrased as one merely seeking "clarification"). ROA 50-54. The County contends the proposed record DATE: 09/14/2018 DEPT: C-72 MINUTE ORDER Page 3 Calendar No. 33 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] does not "comply with Rule of Court 3.2205 or Public Resources Code § 21167.6." Golden Door filed opposition. ROA 59-63. The County filed reply. ROA 64-66. The court reviewed the papers, published a tentative ruling (ROA 67), and on August 31, 2018, made its ruling. ROA 75. The merits hearing was continued to December 21, 2018 at the County's insistence and over petitioners' objections. Golden Door lodged the administrative record on a 500 GB portable drive on September 7, 2018. Presently, petitioners seek a stay or preliminary injunction whereby the County will be precluded, during the pendency of these proceedings, from utilizing Mitigation Measure M-GHG-1 in connection with any pending project approvals requiring a General Plan amendment. ROA 84-91. Golden Door's motion submits the M-GHG-1's utilization violates the General Plan's requirements to reduce GHG emissions within the County and violates CEQA because M-GHG-1 would allow in-process and future General Plan amendment projects to increase GHG emissions within the County, in exchange for the purchase of carbon offset credits applicable to another location in California, the United States, or the world, without considering the requirements of the General Plan, even as amended, or undertaking the appropriate analysis to understand the effect of this program. Sierra Club filed its own, similar motion, that also requests that the County's 2018 Threshold of Significance should be stayed or enjoined. ROA 303-304. The County filed opposition to Golden Door's motion (ROA 78-83) and filed similar opposition to the Sierra Club's motion. ROA 305-310. In essence, that opposition asserts: (1) Code of Civil Procedure section 1094.5, which applies to administrative mandamus actions to review an agency's quasi-judicial decisions, does not support a stay; (2) petitioners cannot show that they are likely to succeed on the merits or will suffer irreparable harm to support a preliminary injunction; and (3) if a preliminary injunction is issued, petitioners should post "a substantial bond". Golden Door filed reply. ROA 92-97. The Sierra Club filed reply. ROA 311-313. The court has reviewed the papers, which exceed 12 inches just for this one set of motions. Included with the reply papers are new matters (Golden Door's Exhibits O-T and the Sierra Club's Exhibits Q-Z), which were not included in the moving papers. Golden Door's new matters are also the subject of a judicial notice request. ROA 94. The new matters are disregarded. See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 (due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail); Zamani v. Carnes (9th Cir. 2007) 491 F.3d 990, 997 ("[t]he district court need not consider arguments raised for the first time in a reply brief"); American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 ("[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument"); Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 ("'the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.'") The court published an early tentative ruling on Sept. 12. ROA 316. The County somehow interpreted this as an invitation to file a surreply, which responds to the tentative ruling and arrived in Dept. 72 the morning of the Sept. 14 hearing. The Rules of Court contemplate moving, opposition and reply papers. CRC 3.1113(d). Surreplies are not contemplated by the rules. For these reasons, and for the reasons stated in the court reporter's transcript, the court did not consider the surreply. The court heard lengthy thoughtful argument on Sept. 14, and then took the motions under submission. The court now decides the submitted matters. DATE: 09/14/2018 DEPT: C-72 MINUTE ORDER Page 4 Calendar No. 33 CASE TITLE: Golden Door Properties LLC vs County of San Diego [E-FILE] 2. Applicable Standards. CASE NO: 37-2018-00013324-CU-TT-CTL A. The decision whether to grant a pendente lite injunction is within the trial court's discretion. IT Corp v. County of Imperial (1983) 35 Cal.3d 63, 69. The trial court must evaluate two interrelated factors when deciding whether to issue a preliminary injunction: (1) the likelihood the plaintiff will prevail on the merits at trial; and (2) the interim harm that will occur if the injunction is denied as compared with the harm that the defendant would be likely to suffer if the preliminary injunction were issued. Department of Fish & Game v. Anderson-Cottonwood Irrig. Dist. (1992) 8 Cal.App.4th 1554, 1560. In considering preliminary injunctive relief, the court may consider the public interest. See City of San Diego v. SCTC (1954) 42 Cal.2d 110, 120 (Traynor, J)(court has power to protect the interests of parties). B. The general rule in CEQA cases is that the respondent proceeds with project approvals and project work at its own risk while a CEQA challenge is being litigated. See Kreibel v. City of San Diego (1980) 112 Cal.App.3d 693, 704; see also Woodward Park HOA v. Garreks (2000) 77 Cal.App.4th 880, 889 (CEQA case not mooted by decision to proceed with project). C. Code of Civil Procedure section 1094.5(g), under which the Sierra Club and Golden Door seek a stay, provides: "Except as provided in subdivision (h), the court in which proceedings under this section are instituted may stay the operation of the administrative order or decision pending the judgment of the court, or until the filing of a notice of appeal from the judgment or until the expiration of the time for filing the notice, whichever occurs first. However, no such stay shall be imposed or continued if the court is satisfied that it is against the public interest. The application for the stay shall be accompanied by proof of service of a copy of the application on the respondent. Service shall be made in the manner provided by Title 4.5 (commencing with Section 405) of Part 2 or Chapter 5 (commencing with Section 1010) of Title 14 of Part 2. If an appeal is taken from a denial of the writ, the order or decision of the agency shall not be stayed except upon the order of the court to which the appeal is taken. However, in cases where a stay is in effect at the time of filing the notice of appeal, the stay shall be continued by operation of law for a period of 20 days from the filing of the notice. If an appeal is taken from the granting of the writ, the order or decision of the agency is stayed pending the determination of the appeal unless the court to which the appeal is taken shall otherwise order. Where any final administrative order or decision is the subject of proceedings under this section, if the petition shall have been filed while the penalty imposed is in full force and effect, the determination shall not be considered to have become moot in cases where the penalty imposed by the administrative agency has been completed or complied with during the pendency of the proceedings." Sierra Club states, without citation to even secondary authority, that such stays are "commonly issued in land use litigation." ROA 303, supporting memorandum, p. 10:19. Regardless of how frequently such stays are issued, the standard seems to circle back to the public interest. "Subdivision (g) of section 1094.5 requires only that before the issuance of a stay order 'the court (be) satisfied that it is (not) against the public interest.'" Bd. of Med. Quality Assurance v. Superior Court (1980) 114 Cal.App.3d 272, 276 (distinguishing subsection (h), which contains a different, more rigorous standard for medical license revocation). 3. Requests for Judicial Notice. DATE: 09/14/2018 DEPT: C-72 MINUTE ORDER Page 5 Calendar No. 33 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] The parties filed requests for judicial notice seeking judicial notice of environmental documents, pleadings, public comments, and factual propositions: (1) ROA 308 in Case No. 2012-101054; and (2) ROA 81, 90, and 94 in Case No. 2018-13324. In People v. Harbolt (1997) 61 Cal.App.4th 123, 126-127, the court discussed the limited purposes for which a court may take judicial notice of a court record: "Evidence Code sections 452 and 453 permit the trial court to 'take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached-in the documents such as orders, statements of decision, and judgmentsbut cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.' [Citations.]" Judicial notice of matters will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed. Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134; accord, Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364-365. Judicial notice is a substitute for formal proof. Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564. Its consequence is to establish a fact as indisputably true, eliminating the need for further proof. Ibid; see Post v. Prati (1979) 90 Cal.App.3d 626, 633; Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 578 (purpose of judicial notice is to expedite production and introduction of otherwise admissible evidence). Hence, the general rule dictates that a matter is subject to judicial notice only if it is reasonably beyond dispute. Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 (matter being judicially noticed must "not [be] reasonably subject to dispute"); Post v. Prati, supra, 90 Cal.App.3d at 633 (" 'The fundamental theory of judicial notice is that the matter that is judicially noticed is one of law or fact that cannot reasonably be disputed' "); see City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1719; Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265. Judicial notice is granted in accordance with the foregoing precepts; judicial notice is not granted on the new matters in the Golden Door reply request, ROA 94. See Part 1 above. 4. Evidentiary Objections. Evidentiary objections were filed: (1) ROA 309 in Case No. 2012-101054 (objections to Chatten-Brown and Fox declarations and exhibits attached thereto); (2) ROA 82 in Case No. 2018-13324 (objections to Takahashi and Fox declarations and exhibits attached thereto); and (3) ROA 96 in Case No. 2018-13324 (objections to Neufeld declaration and Exhibit 8 to Heinlein declaration). Proposed orders are not provided for ruling on the objections. See CRC 3.1354(c) (proposed order requirement in summary judgment context). The evidentiary objections are largely overruled. See ROA 313 (reasons why objections in ROA 309 are overruled); see also ROA 95 (reasons why objections in ROA 96 are overruled). In addition, the objections are mainly boilerplate and unwarranted. They are precisely what the Supreme Court had in mind when it wrote, again in the summary judgment context: DATE: 09/14/2018 DEPT: C-72 MINUTE ORDER Page 6 Calendar No. 33 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] "We recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objections, without focusing on those that are critical. Trial courts are often faced with innumerable objections commonly thrown up by the parties as part of the all-out artillery exchange that summary judgment has become. (Memo v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 711-712.) Indeed, the Balzac procedure itself was designed to ease the extreme burden on trial courts when all too often litigants file blunderbuss objections to virtually every item of evidence submitted. (Damps, supra, 149 Cal.App.4th at pp. 578-579, fn. 6; Balzac, supra, 218 Cal.App.3d at p. 1419, fn. 3) ... To counter that disturbing trend, we encourage parties to raise only meritorious objections to items of evidence that are legitimately in dispute and pertinent to the disposition of the summary judgment motion." Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532. In line with the Supreme Court's view, the court encourages counsel to raise only meritorious and important objections in the future. 5. Discussion and Ruling. The motions for a stay and alternative preliminary injunction are granted. The County is prohibited from using its new offset proposal for approvals of pending General Plan amendments until the court's final judgment in these proceedings or further order of the Court of Appeal. A stay is granted to ensure that the carbon offset program in M-GHG-1 is consistent with the County's General Plan that requires GHG reductions to occur within the County. A stay is not "against the public interest." Rather, a stay is in the public interest to ensure that the County's promised GHG emission reductions are achieved. A stay is in the public interest to ensure that thousands of metric tons of GHG emissions are not released in the County (see ROA 89, Fox declaration, paragraph 3, Exhibit B) until the merits hearing occurs. A stay does not enjoin the County from considering projects; only use of the CAP offset program provided in M-GHG-1 is stayed. The stay does not preclude projects currently in process, if the projects do not utilize the offset program provided in M-GHG-1. In its opposition, the County contends the Sierra Club and Golden Door may not seek a stay under Code of Civil Procedure section 1094.5(g) since M-GHG-1 is a legislative act, subject to review under Code of Civil Procedure section 1085 traditional mandamus. However, "when an agency's decision is charged with failure to comply with CEQA [as argued by petitioners], CEQA itself indicates a section 1094.5 review." See Williams S. Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1626. And here, Golden Door presents viable arguments that a stay is appropriate in this CEQA action where a hearing was required and held, evidence was taken, and discretion regarding facts was vested in the County. See ROA 92, Golden Door reply memorandum, pp. 4-5; see also ROA 89, Golden Door, RJN, Exhibits E-H (hearing, evidence, and discretion); see also Pub. Res. Code § 21168 ("action ... to attack, review, set aside, void or annul a determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with the provisions of this division shall be in accordance with the provisions of Section 1094.5 of the Code of Civil Procedure.") To the extent the County is correct and a stay is inappropriate because M-GHG-1 is a legislative act subject to review under Code of Civil Procedure section 1085, a preliminary injunction is alternatively issued. The moving parties have demonstrated a likelihood of success on the General Plan consistency argument, and irreparable injury is likely if a preliminary injunction is not issued. Also, a substantial DATE: 09/14/2018 DEPT: C-72 MINUTE ORDER Page 7 Calendar No. 33 CASE TITLE: Golden Door Properties LLC vs County of CASE NO: 37-2018-00013324-CU-TT-CTL San Diego [E-FILE] public interest is involved. In these respects, there may be irreparable harm to the environment if the County is not barred from relying on the offset program in M-GHG-1 to approve General Plan amendments. For instance, approving projects utilizing the offset program in M-GHG-1 may result in 139,485 MTCO2e of construction-related GHG emissions for the recently approved/pending General Plan amendment projects being released into the atmosphere. See ROA 89, Fox declaration, paragraph 3, Exhibit 2 (regarding Harmony Grove, Vailiano, Otay 250, Newland, and Warner Ranch projects). Also, it is in the public interest to ensure that the carbon offset program in M-GHG-1 is consistent with the County's General Plan that requires GHG reductions to occur within the County before allowing reliance on the new program. In addition, the public interest is thwarted if the project proponents have to vacate, undo or redo the development of their projects if M-GHG-1 is found to be unlawful at the merits hearing. In other words, project proponents who proceed based on development approvals granted between now and final judgment may be faced with restoration/remediation expense, as well as the expense of starting the approval process over again. In addition, greenhouse gases released into the environment can never be recovered. The stay/injunctive relief does not prohibit all projects, only those reliant on the use of the program set forth in M-GHG-1. The stay/injunctive relief does not enjoin the use of the CAP in its entirety for all potential development. While the stay or injunctive is in place, the County may consider any project that does not depend on the use of the M-GHG-1 program. The preliminary injunction is not a final order. It is subject to modification or dissolution at any time upon a showing of either: (1) a material change in the facts upon which the preliminary injunction was granted; (2) the law upon which the preliminary injunction was granted has changed; or (3) "the ends of justice would be served" by the modification or dissolution of the injunction." Code of Civil Procedure § 533. Evidently, there is no bond or undertaking requirement with respect to a stay under Code of Civil Procedure section 1094.5(g). As for a preliminary injunction, it is the trial court's function "to estimate the harmful effect which the injunction is likely to have on the restrained party, and to set the undertaking at that sum." Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 14. The likelihood of plaintiff prevailing on the merits is an irrelevant consideration in fixing the bond amount, "The undertaking is designed to compensate the defendants in the event, however unlikely, that the preliminary injunction is finally determined to have been unjustified." Abba Rubber Co. v. Seaquist, supra, at 16, fn. 8. The Sierra Club must post a $5000.00 bond for a preliminary injunction to issue. It is a non-profit petitioner that purports to act in the public interest to prevent harm to the environment. Golden Door must post a bond in the amount of $50,000.00, no later than September 21, 2018 for a preliminary injunction to issue. The County seeks a bond of at least $5 million against Golden Door, reflecting the amount paid by about five General Plan amendment project applicants. See ROA 78, opposition memorandum, p. 19:3-7; see also ROA 79, Neufeld opposition declaration, paragraph 12. However, the County, which is the restrained party, fails to provide justification for the requested bond amount. A stay and/or preliminary injunction does not preclude the project proponents from pursing their projects. Also, the projects may proceed, if the projects do not rely on the M-GHG-1 offset program. The court determines that these modest bond requirements are sufficient to protect the County in connection with internal costs it may incur in the event the injunctive relief is later held to have been improvidently granted. The court has prepared and signed an order consistent with the foregoing. DATE: 09/14/2018 DEPT: C-72 MINUTE ORDER Page 8 Calendar No. 33 CASE TITLE: Golden Door Properties LLC vs County of San Diego [E-FILE] IT IS SO ORDERED. CASE NO: 37-2018-00013324-CU-TT-CTL Judge Timothy Taylor DATE: 09/14/2018 DEPT: C-72 MINUTE ORDER Page 9 Calendar No. 33