Plaintiffs Fire Back that Expert Opinion Is Sufficient to Show Substantial Evidence

Richards TunnelThe plaintiffs in the lawsuit against the Hotel Conference Center have now fired back against the city, who in a response argued that they had fully complied with CEQA (California Environmental Quality Act) when they approved the Initial Study/Mitigated Negative Declaration for the Embassy Suites Hotel and Conference Center.  The city argued that the evidence relied upon does not rise to the level of substantial evidence and they attacked the work done by Dan Smith, the expert that the plaintiffs rely on.

Now the plaintiffs, attorneys Michael Harrington and Don Mooney, fire back, “The City has no other argument other than to assert that Dan Smith’s expert opinion does not constitute substantial evidence and/or that Alan Pryor’s comments do not constitute substantial evidence. To acknowledge otherwise would be to acknowledge that a fair argument exists that the Project may have significant impacts regarding traffic and circulation, thus requiring the preparation of an environmental impact report.”

They continue, “The City argues that unless a traffic consultant conducts an independent traffic study including traffic counts and modeling, any opinion would lack foundation and be mere speculation and conjecture.”

However, the plaintiffs argue that this is not what CEQA requires.  They argue, “Mr. Smith’s expert opinion constitutes substantial evidence as it is supported by facts and does not amount to speculation or conjecture.”

The city council unanimously approved the construction and operation of a hotel, conference facility and parking structure at 1111 Richards Boulevard, the site that currently houses the 43-room, two-story University Inn & Suites Hotel, and a 4,000 square foot Caffé Italia (Dancing Tomato Caffé) restaurant.

The proposed project that has been stalled by litigation from the plaintiffs in this matter, consists of a six-story, 132-room hotel, a breakfast room and restaurant and a 13,772 square foot conference center that is expected to draw 225 attendees per event.

The plaintiffs cite the case law here on the need for “substantial evidence.”  “In reviewing an agency’s decision to adopt a negative declaration, a trial court applies the ‘fair argument’ test,” which requires that an agency “prepare an EIR whenever substantial evidence in the record supports a fair argument that a proposed project may have a significant effect on the environment.”

“If there is substantial evidence in light of the whole record before the lead agency that the project may have a significant effect on the environment, an environmental impact report shall be prepared.”

“’Substantial evidence’ means enough relevant information and reasonable inferences … that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.”

Mr. Harrington and Mr. Mooney argue, “Contrary to Respondents’ assertions, Mr. Smith, as well as other evidence in the record, constitutes substantial evidence that supports a fair argument that the Project may have a significant impact.”  They note that the substantial evidence consists of “fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.”

They argue that “there can be no dispute that Mr. Smith is a qualified traffic engineer with decades of experience.”  The question, therefore, is whether “his expert opinion is supported by fact.”

They argue, “The City attempts to disparage Mr. Smith’s opinion and comments because they were based in part on his personal observations over a period of 15 years. Contrary to the City’s assertions, such personal observations can serve as the factual basis to support an expert opinion. In addition to Mr. Smith’s personal observations, Mr. Smith has performed numerous traffic studies in the Davis and UC Davis area.”

They argue that “personal and first hand observations by an expert” would “constitute a factual basis to support an opinion.”

They continue, “This is not a case where Mr. Smith indicated that he simply visited the site or drove by the site as part of his review of this matter. Mr. Smith indicated that he had visited the site over 15 years and many occasions viewed this site based upon his experience and expertise as a traffic engineer.”

The plaintiffs add, “The City’s own consultant, Fehrs & Peers, previously confirmed that Mr. Smith’s observations [were] made over a period of 15 years. Fehrs & Peers stated that actual conditions are much worse than the theoretical calculations at the intersection and documents the fact that professional observations can be more relevant than theoretical calculations.”

“The City argues that Mr. Smith’s expert opinion does not rise to substantial evidence because he did not conduct a traffic study or conduct his own modeling. The fact that Mr. Smith did not perform separate counts or modeling does not mean that his personal observations, the observations of others, and his expert opinion do not rise to the level of substantial evidence.”

The plaintiffs cite case law where the courts conclude “that opponents that challenge a negative declaration often have no expert studies to rely on and that such absence of expert studies is not an obstacle because personal observations concerning nontechnical matters may constitute substantial evidence under CEQA.”

From the city’s perspective, they argue, “the two opinions Petitioner relies on to challenge the expert findings contained in the Fehr & Peers Traffic Study are not supported by facts and thus do not meet the standard set forth in CEQA Guidelines.”

“The opinion letters offered by Petitioner, and the limited context on which they are based, are not adequate ‘expert opinion’ and, even if considered as such, cannot be given the weight of substantial evidence simply on the basis that they conflict with conclusions in the Traffic Study,” they argue.

The city attacks one of the letters, arguing that it is “rife with conjecture and unsubstantiated claims that do not qualify as proper expert opinion.” They continue that traffic engineer Daniel Smith “belies his own credibility as an expert by asserting that his opinion is based on ‘personal observations’ from ‘his more than occasional visits to [the] intersection [of Richards Boulevard and Olive Drive] over the past 15 year[s].’”

They argue that the phrase “more than occasional” “appears to be little more than thinly-veiled code for ‘I haven’t visited the site much.’ Smith’s concession that he has never conducted a formal traffic study of this intersection further undermines his credibility as an expert.”

The city counters, “Professionally-licensed traffic engineers perform detailed site assessments to support their calculations and conclusions.”

Mr. Smith “attempts to contradict the Fehr & Peers determination that the Richards Boulevard/Olive Drive intersection operates at LOS B by asserting that the intersection actually functions at ‘LOS E or F.’ But, Smith fails to provide any foundation for his allegation.”

The plaintiffs counter that Mr. Smith’s observations are supported by comments from Councilmember Brett Lee who offers “the traffic could be extremely problematic for little blocks of periods.”

Mayor Pro Tem Rob Davis added, “There’s a lot of anxiety about this spot because the terrible section, it’s a terrible street segment. It’s just not good but the marginal impact is not huge and that’s what the traffic study shows and at a certain points, but I’m asking us also to recognize that a fairly well-developed methodology was used to assess the fact that the marginal impact is not huge.”

–David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. hpierce

    Hope the judge isn’t stupid… the plaintiff’s paid “consultant” (some, who unfortunately, will ask a client what they want the ‘professional’ opinion to be) “analysis” was not really timely submitted… the consultant’s main office is in Union City… it was a “second opinion” without its own “data set”…

    I believe the City’s contention that an opinion of a possible “ambulance chaser” engineer, and Alan Pryor do not rise to the level of ‘substantial evidence’… unless you accept rhetoric and conjecture as “evidence”.  This “response” from plaintiffs is bogus/unreliable on its face.  I say this as someone who is licensed to, and has practiced, traffic engineering.

    1. David Greenwald

      There is another point here – the argument as I read is that Fehr and Peers underestimate the traffic, existing traffic flowing through, but the point they need to be able to make is that the impact of the Hotel Conference Center is substantial and will impact existing conditions. To me and I work across the hall from a traffic consultant, a hotel is not going to generate the kind of peak hour traffic that would make the impacts significant.

      1. Jim Frame

        I work across the hall from a traffic consultant

        I think you’ll need to expand upon this considerably if you want to impart any authority to your traffic analysis.

  2. Tia Will


     a hotel is not going to generate the kind of peak hour traffic that would make the impacts significant.”

    My comment is purely observational and should be accepted as such. While I agree that a “hotel” would likely not affect peak hour traffic, I am not so sure about a “conference center”. Large conference frequently begin around 8-9 o’clock and end around 5 pm.  These conferences  frequently involve people not only staying at the affiliated hotel, but also from the surrounding areas who often drive to the conference.

    My observation while attending conferences ( 10-15) over a five year period at the Claremont in Berkeley is that there is significant impact on Tunnel Road during these hours. The main difference that I can see is that there is no analogous and already strongly affected intersection in close proximity.

    1. hpierce

      You have it somewhat correct, Tia… as to traffic generated by a conference center, the technically correct answer is…  “it depends”

      That’s why trip generation rate assumptions used in traffic models have “ranges”, average in data over time, etc. (day of week, time of day, sometimes “seasons”) and the assumptions used are, in effect an “art”, based on scientific data. [informed judgment]

      A multi-day conference, or single day ones drawing heavily from areas of the state (outside ~ 1 hour driving distance), drawing from other states, do indeed have a high number of folk staying either at the site, or within convenient walking/biking/transit access.

      Have been to many out of state conferences, or ones in San Diego, etc., where it never occurred to me to rent a car… used shuttles and/or public transit… generally cheaper to spend the night before or after, than renting a car, including parking charges, etc.

  3. skeptical

    1.  The duty to the City was to perform an appropriate traffic analysis.  The plaintiff in this case has only to show that the duty was not performed, that the traffic study was inadequate for its purpose.  The plaintiff does not have to prove an alternative traffic analysis.

    2.  To answer a prior post, generally speaking, judges are not stupid (though there seems to be a exponentially growing number of exceptions).  Again, generally speaking, judges tend to rule based on their own preferences… and the exception is to follow logic and the law.  That’s why this case will likely find a preference in favor of the City, and be appealed.  It will be years in litigation.


    1. nameless

      It should be remembered the BURDEN is on the plaintiff  to prove their case.  It is the PLAINTIFF that has the uphill battle right from the start.  Judges rule based on the law, and the law requires the PLAINTIFF to prove their case.  Here, we have dueling traffic engineers, the city’s with a data set and computer modeling, the plaintiff’s with his own “observations”.  Remember, the burden is on the plaintiff to prove it is more likely than not the city’s traffic engineers with the data set and computer modeling are somehow incorrect in their prediction of less than significant traffic impact.  Good luck with that!

        1. nameless

          “In Citizens for Responsible Equitable Environmental Development (CREED) v. City of San Diego, the Court upheld the use of an Addendum to a 1994 environmental impact report (EIR) to approve a revised Project.  The Court rejected two challenges: (1) that the Addendum failed to include an analysis of the impacts of greenhouse gases which was not addressed in the 1994 EIR; and (2) that the City improperly incorporated and approved a water supply assessment (WSA) as part of the Addendum.  The challenges were rejected on the merits as well as for the failure to exhaust administrative remedies.  The Court ruled that once an EIR is certified, the standards for requiring supplemental environmental review under CEQA are narrow and the challenger has the burden of proof to show additional review is required.

        2. Matt Williams

          My understanding is that under CEQA the burden is on the plaintiffs in an EIR lawsuit, but that the burden is on the defendants in a Mitigated Negative Declaration lawsuit.


        3. hpierce

          Matt… you are only partially correct… burden of proof on TECHNICAL issues is almost always on the plaintiff… burden of proof on PROCESS issues varies, but if a strong administrative record of the process has been documented, and if it is sound, plaintiffs seldom prevail.  The only time the burden of proof falls to the agency is if they lack the admin. record, or if it (the record) is patently flawed.

          The advantage of a focused EIR as opposed to a MND is not in the technical aspects, but the fact that it usually generates a superior administrative record.

          The most likely outcomes of the current suit, assuming an actual judgment (no dismissal/withdrawal/settlement) is either finding that the City acted correctly (and prevails), or they have to do a “re-do” on the procedural part.  In the latter, the City could easily choose to use the original traffic study, doing some additional/supplemental analysis if there is changed conditions, new information, or to enhance the “kevlar-ness” of the original study… I see no (barring the ‘stupid judge thing’) outcome that would require the City to do a “start-over” of the data gathering/analysis… that would be “one for the books” if that occurs…

    1. nameless

      Yes we shall see.  Kinda reminds me of the judge’s tentative ruling against you on the water rate issue and how the case ended up costing taxpayers.  From the Davis Enterprise: “Yolo Superior Court Judge Dan Maguire ruled in the city’s favor in January on major aspects of the case…the continuing legal action could have jeopardized the city’s ability to obtain bond funding for the surface water project at the best possible rates. Better rates would mean less onerous monthly bills for city ratepayers...”

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