Ruling
Danaher vs Loe
Jul 19, 2024 |
SCV-273372
SCV-273372, Danaher v. Loe
The motion is GRANTED. The Court awards Respondent $34,440 in attorney’s fees, and
$306.35 in costs. Respondent’s counsel shall prepare a written order consistent with this ruling and
complaint with California Rules of Court, Rule 3.1312.
I. Background
Respondent, Petitioner’s next-door neighbor, maintains a legal private shooting range on his
property. (Sonoma County Code § 19.A-5.) On May 30, 2023, Petitioner filed a request for a restraining
order pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code
§§ 15600 et seq.). The petition alleged that “Respondent shoots, entirely on his property, but the bullets
often fly through the neighborhood.” Petitioner sought an order enjoining Respondent from physically
abusing her, a no-contact order, and a 100-yard stay-away order, with exceptions allowing Respondent to
occupy, enter, and exit his property.
A court trial was held over nine non-consecutive days, beginning on October 26, 2023 and ending
on March 19, 2024. On May 20, 2024, the Court issued a final Statement of Decision (“SOD”). The
Court found that Petitioner’s evidence did not meet the preponderance standard when weighed against the
testimony of Respondent’s expert witness John Carbiener. (SOD at p. 14.) The Court’s decision was
informed, in part, by the lack of physical evidence of bullets intruding on Petitioner’s property. (SOD at
p. 13.) Therefore, the Court denied the petition. (Ibid.)
The Court denied Respondent’s request for attorney’s fees and costs without prejudice, noting that
“the Court has not received a motion with authority requesting attorney fees, a memorandum of costs or a
motion to tax attorney fees and costs.” (SOD at pp. 2, 14, original emphasis.) Respondent has now filed
such a motion.
II. Governing law
A. Attorney’s fees in the context of elder abuse restraining order petitions
“The prevailing party in an action brought under [the Elder Abuse and Dependent Adult Civil
Protection Act] may be awarded court costs and attorney’s fees, if any.” (Welf. & Inst. Code §
15657.03(t); see also Newman v. Casey (2024) 99 Cal.App.5th 359, 381.) “’Prevailing party’ includes the
party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where
neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not
recover any relief against that defendant..” (CCP § 1032.)
B. Computation of attorney’s fees
The standard for calculating attorney fee awards under California law “ordinarily begins with the
‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . .
The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to
fix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchors
the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that
the amount awarded is not arbitrary.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
In calculating the lodestar, “The reasonable hourly rate is that prevailing in the community for
similar work.” (PLCM Group, supra, 22 Cal.4th at p. 1095.) “The general rule is ‘[t]he relevant
“community” is that where the court is located,’ unless the party claiming fees demonstrates that hiring
local counsel was impracticable or local counsel was not available.” (Marshall v. Webster (2020) 54
Cal.App.5th 275, 285-286; see also Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226
Cal.App.4th 26,72 [“fee awards generally should be based on reasonable local hourly rates”]; Horsford v.
Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 398-399 [different rule
where ‘Petitioner demonstrated inability to hire local counsel].)
“[T]he trial court has broad authority to determine the amount of a reasonable fee.” (PLCM
Group, supra, 22 Cal.4th at p. 1095.) “The determination of what constitutes reasonable attorney fees is
committed to the discretion of the trial court. [Citation.] The experienced trial judge is the best judge of
the value of professional services rendered in his or her court.” (Rey v. Madera Unified School Dist.
(2012) 203 Cal.App.4th 1223, 1240.)
III. Analysis
A. Petitioner’s opposition is unpersuasive.
1. Attorney’s fees are discretionary.
Respondent says, twice, that he “is entitled to attorney fees and costs” under Welf. & Inst. Code §
15657.03(t). (MPA at pp. 3, 4.) Petitioner takes issue with the word “entitled.” (Oppo at p. 4.) The Court
agrees that “entitled” is overstated, since the statute says only that a prevailing party “may be awarded
court costs and attorney’s fees.” Respondent would have been closer to the mark if he had said that he
“qualifies for attorney fees.”
However, the fact is that he does qualify. Petitioner protests that the petition was not frivolous
(Oppo at pp. 1, 4, 6), but while Respondent has cited a number of cases holding that attorney’s fees may
be imposed as sanctions for frivolous motions in contexts other than the Elder Abuse Act, Petitioner
provides no authority for the proposition that attorney’s fees under Welf. & Inst. Code § 15657.03(t) may
be awarded to a prevailing respondent only when the petition was frivolous. Nothing in the language of
the statute suggests that the fee award is anything but purely discretionary.
The billing records provided by Respondent’s counsel indicate that Respondent has spent upwards
of $30,000 defending himself against a petition that was ultimately denied. That is equally true regardless
of whether the petition was filed frivolously or in good faith. Welf. & Inst. Code § 15657.03(t) invests
the Court with discretion to relieve Respondent of that financial burden, and the Court will do so.
2. Petitioner’s attempt to introduce expert testimony at this juncture is
inappropriate.
In his memorandum of points and authorities, Respondent asserts that “perhaps petitioner’s
greatest offense was her attempt to utilize fabricated evidence.” (MPA at p. 6; see also p. 7 “The answer
is simple. They were fabrications”].) That is Respondent’s opinion, and Respondent is entitled to it as
long as it appears in a memorandum rather than a declaration. However, it was not and is not the Court’s
opinion. The Court’s Statement of Decision does not use the word “fabricated,” or any synonym. The
Court considered Petitioner’s evidence, consisting of witness testimony and cell phone videos, and the
Respondent’s evidence, consisting in large part of the opinion of firearms expert John Carbiener, and
concluded that Petitioner’s evidence did not rise to the required preponderance. “Fabricated evidence” is
a bit of hyperbole on Respondent’s part.
In an apparent attempt to refute the allegation of fabrication, Petitioner has engaged a purported
expert, Keith Rosenthal. Mr. Rosenthal declares that he is a Certified Evidence Photographer. (Rosenthal
Dec., ¶ 3; however, see the comment on his CV that the certifying organization ceased to exist in 2012).
Mr. Rosenthal further declares that he analyzed one of the video clips submitted into evidence at trial
using a software program called iZotope RX, and he concluded that the “distinct ‘zing’ sound” heard in
that video is consistent with a bullet passing the camera’s position at high speed, and that his “expert
opinion is that Mr. Danaher’s opining that the bullet ‘just flew by’ is consistent with the audio analysis
and most likely what in fact occurred rather than the bullet remaining on the Loe property.” (Rosenthal
Dec., ¶¶ 9(a), (c), and (m).) In summary, Mr. Rosenthal disagrees with the conclusions of Respondent’s
expert witness, Mr. Carbiener.
Petitioner recognizes that “it is too late now [for this evidence] to be considered and get the
restraining order issued.” (Oppo at p. 5.) That is accurate, as far as it goes; the appropriate time to rebut
Respondent’s expert’s testimony would have been at trial. But it would be even more accurate to say that
is too late now for the evidence to be considered at all. The Court declines Petitioner’s invitation to
resolve the instant motion on the basis of purported expert testimony offered in a context where it is
impossible to depose or cross-examine the purported expert regarding the basis of either his expertise or
his conclusions. There is a complex procedure for disclosing and deposing experts. (CCP §§ 2034.010 –
2034.730; see Rutter Group, Civil Procedure Before Trial §§ 8:1624 – 8:1754.) The Evidence Code
governs the qualification of expert witnesses (§§ 720 – 733) and regulates their testimony (§§ 800 – 805).
Opposing parties are entitled to conduct voir dire examinations of proposed experts to assure that their
backgrounds are rigorously vetted and their testimony is relevant to the case. (People v. King (1968) 266
Cal.App.2d 437, 466.) None of these procedures can be circumvented by a post-trial declaration
accompanied by a CV.
The Court will not consider Mr. Rosenthal’s declaration, or Petitioner’s arguments based on it.
B. Hourly rate
Respondent’s attorneys Tadd Aiona (“Aiona”) and Andrew Martinez (“Martinez”) both declare
that they customarily bill $400/hour. (Aiona Dec., ¶ 2; Martinez Dec., ¶ 2.) Those declarations are borne
out by billing records attached to both declarations that reflect a $400/hour billing rate. Both attorneys are
senior and experienced. The $400/hour rate is in line with the rate “prevailing in the [Sonoma County]
community for similar work.” (PLCM Group, supra, 22 Cal.4th at p. 1095.)
Moreover, Aiona and Martinez agreed to split the hourly rate on occasions when they appeared in
court together; that is, to charge only $200/hour each on such occasions. The Court regards that as
reasonable as well.
C. Time spent
Aiona and Martinez request a total of $34,940 in fees for a total of 133.6 hours’ work. 133.6
hours – more than three weeks’ full-time work – is on the high side of reasonable. However, due to the
attorneys’ fee-splitting arrangement under which they jointly charged the billing rate for just one of them
when they appeared in court together, that is functionally equivalent to a claim for 87.35 hours ($34,940
divided by 400) of a single lawyer’s time at $400/hour. That figure, slightly over two weeks of full-time
work, would be entirely reasonable for a single lawyer for a nine-day trial, the necessary trial preparation,
and preparation of the instant fee motion. The fact that some of the work was divided between two
lawyers, who also divided the fee, does not make it any less reasonable.
Aiona’s claim is for 33.6 $400 hours (that is, hours billed at $400/hour), and 47.5 $200 hours
(hours billed at $200/hour). However, Aiona’s invoice dated December 21, 2023 contains two entries for
October 25, 2023, both labeled “Court Trial” and both for 1.5 $200 hours. The first such entry is out of
sequence: the other entries on that invoice appear in chronological order, but the first October 25 entry is
between one for October 12 and one for October 18. Also, the $200/hour rate applies to occasions when
Aiona and Martinez appeared in court together, but Martinez’s invoices list only one entry for 1.5 hours
on October 25. For those reasons, the Court infers that the first “10/25/23 Court Trial” entry on Aiona’s
December 21 invoice results from a clerical error, and will therefore deduct 1.5 $200 hours from Aiona’s
request.
(The Court also notes that Aiona’s December 21 invoice totals are wrong. The total number of
$400 hours is given as 13.2, but the individual entries reflect 13.6 $400 hours. The total number of $200
hours, 14.5, matches the number of $200 hours reflected by the individual entries, but the amount
claimed, $3,100, is incorrect: 14.5 times $200 is $2,900. Because the Court is basing its fee award on the
individual entries rather than the totals, these errors do not affect the outcome.)
After the correction noted above, Aiona’s claim is for 46 $200 hours and 33.6 $400 hours.
Martinez’s claim is for 7.5 $400 hours and 45 $200 hours. The Court observes that, since the $200 hours
represent time when both attorneys were in court together, one would expect each attorney to claim the
same number of $200 hours. In fact, the claims differ by one hour. The Court will use the lower number,
and award fees for 45 $200 hours to each attorney.
Thus, the award will be $22,440 for Aiona’s time (45 times $200 plus 33.6 times $400), and
$12,000 for Martinez’s time (45 times $200 plus 7.5 times $400), for a total of $34,440.
D. Costs
Respondent’s Memorandum of Costs indicates total costs of $306.35, consisting of $275 for
service of process and $31.35 for “Models, enlargements, and photocopies of exhibits.” These are
reasonable and the Court will award costs in that amount.
IV. Conclusion
The motion is granted. Respondent is awarded $34,440 in attorney’s fees and $306.35 in costs.
Ruling
ROP WMCC LLC vs TOWN OF WINDSOR
Jul 17, 2024 |
SCV-273272
SCV-273272, ROP WMCC LLC v. Town of Windsor
TENTATIVE RULING (AS TO CEQA):
The Petition is DENIED with respect to the claims based on a violation of the California
Environmental Quality Act.
Facts
Petitioners, ROP WMCC LLC and Resident Owned Parks, Inc. (“Petitioners”) challenge
the decision of Respondents Town of Windsor (“Town”) and Town Council of the Town of
Windsor (“Council”) to adopt Ordinance No. 2023-373 (the “Ordinance”), which caps the rent
for mobile home parks within the Town’s jurisdiction. They seek a writ of mandate directing
Respondents to set aside the Ordinance due to the failure to comply with the California
Environmental Quality Act (“CEQA”); inquire into the validity of the Ordinance for lack of
jurisdiction, acting in excess of jurisdiction, and abuse of discretion; set aside the Ordinance
based on a deprivation of fundamental vested rights pursuant to the United States Constitution
and California Constitution; set aside the Ordinance based on equitable estoppel; set aside the
Ordinance based on lack of fair hearing; and related claims. They also seek a monetary award,
injunctive and declaratory relief, and an award of attorneys’ fees and costs.
The History and Adoption of the Ordinance
Prior to Respondents enacting the Ordinance, the Town originally adopted a mobile home
rent stabilization ordinance, Ordinance No. 92-25 (the “1992 Ordinance”) on October 28, 1992.
AR 92.
Eventually, on February 1, 2023, the Council held the second reading of the Ordinance
and adopted it. AR 550.
CEQA Claims
In the portion of Petitioners’ allegations and arguments relating to CEQA, they contend
that Respondents improperly adopted the Ordinance on February 1, 2023, with a determination
that it was exempt from CEQA pursuant to Guideline 15061(b)(3).
Overall Application of CEQA
An EIR is required for a project which substantial evidence indicates may have a
significant effect on the environment. Guidelines for the Implementation of CEQA
(“Guidelines”), 14 California Code of Regulations (“CCR”) section 15063(b) (hereinafter, the
court shall cite to Guidelines simply by stating “Guideline” and the section number); Public
Resources Code (“PRC”) sections 21100, 21151. EIRs are, in the words of the California
Supreme Court, “the heart of CEQA.” Laurel Heights Improvement Assn. v. Regents of the
University of California (1988) 47 Cal.3d 376, 392 (Laurel Heights I).
An agency must prepare, cause to be prepared, or certify completion of, an EIR when for
a project which “may have a significant effect on the environment.” See, e.g., PRC sections
PRC section 21068, 21100(a), 21151(a); Guideline 15382. As a result, CEQA requires review of
a project’s impacts on the environment, not the reverse, and in other words, CEQA is generally
not concerned with impacts on the project. California Building Industry Assn. v. Bay Area Air
Quality Management Dist. (2015) 62 Cal.4th 369, at 386 (CBAI).
CEQA is accordingly concerned with whether an agency action may cause physical
effects on the environment, whether direct or indirect. PRC 21080, setting forth the basic
standards for determining whether an action implicates CEQA, explains that where an agency is
not exempt from CEQA, an agency must prepare an EIR where there is “substantial evidence” in
the record “that the project may have a significant effect on the environment.” PRC 21080(c). It
also provides the definition of “substantial evidence” at subdivision (e), stating at (e)(2) that
“substantial evidence” does not include “argument, speculation, unsubstantiated opinion or
narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic
impacts that do not contribute to or are not caused by, physical impacts on the environment.”
Emphasis added. Guideline 15064 also sets forth the basic standards for determining whether an
action implicates CEQA, stating that this depends on whether an action may lead to significant
effects on the environment. Subdivision (e) also states, with emphasis added,
Economic and social changes resulting from a project shall not be treated as significant
effects on the environment. Economic or social changes may be used, however, to
determine that a physical change shall be regarded as a significant effect on the
environment. Where a physical change is caused by economic or social effects of a
project, the physical change may be regarded as a significant effect in the same manner as
any other physical change resulting from the project. Alternatively, economic and social
effects of a physical change may be used to determine that the physical change is a
significant effect on the environment. If the physical change causes adverse economic or
social effects on people, those adverse effects may be used as a factor in determining
whether the physical change is significant. For example, if a project would cause
overcrowding of a public facility and the overcrowding causes an adverse effect on
people, the overcrowding would be regarded as a significant effect.
Guideline 15384 likewise states that “evidence of social or economic impacts which do
not contribute to or are not caused by physical impacts on the environment does not constitute
substantial evidence.” Emphasis added. Guideline 15358 further defines “effect” and states, in
full and with emphasis added,
“Effects” and “impacts” as used in these guidelines are synonymous.
(a) Effects include:
(1) Direct or primary effects which are caused by the project and occur at the same time
and place.
(2) Indirect or secondary effects which are caused by the project and are later in time or
farther removed in distance, but are still reasonably foreseeable. Indirect or secondary
effects may include growth-inducing effects and other effects related to induced changes
in the pattern of land use, population density, or growth rate, and related effects on air
and water and other natural systems, including ecosystems.
(b) Effects analyzed under CEQA must be related to a physical change.
Guideline 15131 discusses social and economic impacts and it notes that while an EIR
may include discussion of economic or social information, “[e]conomic or social effects of a
project shall not be treated as significant effects on the environment,” unless there is a
demonstrated “chain of cause and effect from a proposed decision on a project through
anticipated economic or social changes resulting from the project to physical changes caused in
turn by the economic or social changes.” In that case, the “intermediate economic or social
changes need not be analyzed in any detail greater than necessary to trace the chain of cause and
effect. The focus of the analysis shall be on the physical changes.”
The court in Hecton v. People of the State of California (1976) 58 Cal.App.3d 653, at
656, stated that CEQA is “not designed to protect against the particular risk of loss claimed
here—decline in commercial value of property adjacent to a public project. Rather the acts are
intended to ensure consideration of qualitative environmental factors as well as quantitative
economics in proposed actions affecting the environment.”
Accordingly, the court in Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004,
at 1019-1022, rejected petitioners’ argument that allowing a large chain bookstore in an
approved shopping center would result in economic and social impacts by threatening the
business of local bookstores, causing related problems. The court explained,
Plaintiff's argument is based solely upon speculation and unsubstantiated opinion. If
accepted, plaintiff's position would stand CEQA on its head. CEQA and its implementing
guidelines make it clear that social and economic effects are not to be considered a
significant environment effect and need be considered only to the extent they are relevant
to an anticipated physical change in the environment or, on the basis of substantial
evidence, are reasonably likely to result in physical change to the environment. Plaintiff's
argument is that, because it is arguably possible that in some instances the establishment
of a retail business may have social or economic effects, and because it is arguably
possible that in some instances social or economic effects can cause physical changes in
the environment, social and economic effects must be addressed in an EIR as a matter of
law. We reject such an argument as flatly inconsistent with CEQA and its implementing
guidelines.
Basic Principles Applicable to Review of Agency Decisions Under CEQA
The burden of investigation rests with the government and not the public. Gentry v. City
of Murrieta (1995) 36 Cal.App.4th 1359, 1378-1379. The court in Lighthouse Field Beach
Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, at 1202, finding that a city failed to
consider an issue, ruled that the city could not rely on information to make good the gap in its
analysis where the record did not show that the information had ever been available to the public.
Similarly, as the court explained in Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d
296, at 311, an “agency should not be allowed to hide behind its own failure to gather relevant
data.... CEQA places the burden of environmental investigation on government rather than the
public.” See also Gentry, supra (quoting Sundstrom).
At the same time, in judicial review agency actions are presumed to comply with
applicable law unless the petitioner presents proof to the contrary. Evid. Code section 664;
Foster v. Civil Service Commission of Los Angeles County (1983) 142 Cal.App.3d 444, 453. The
petitioner in a CEQA action thus has the burden of demonstrating that there was a violation of
CEQA. Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th
729, 740.
Under CEQA, a court may only issue a writ for any abuse of discretion, including making
a finding without substantial evidence, if the error was prejudicial. PRC section 21005;
Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1143. When substantial
evidence does support a decision, but there is no prejudicial abuse of discretion, the court must
defer to the agency’s substantive conclusions an uphold the determination. Chaparral Greens,
supra; see PRC 21168, 21168.5, Laurel Heights I, supra 47 Cal.3d 392, fn.5.
An “error is prejudicial ‘if the failure to include relevant information precludes informed
decisionmaking and informed public participation, thereby thwarting the statutory goals of the
EIR process.’” San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27
Cal.App.4th 713, at 721-722, quoting Kings County Farm Bureau v. City of Hanford (1990) 221
Cal.App.3d 692, at 712.
Exhaustion of Administrative Remedies
Respondents argue that Petitioners failed to exhaust administrative remedies with respect
to the claim that Respondents violated CEQA by finding the Ordinance to be exempt. Brief in
Opposition (“Oppo”) 20-23. Petitioners acknowledge that they did not raise any specific CEQA
violations, never expressly discussed CEQA or claimed a violation of CEQA in any way, and
never presented any challenge to the decision that the action was exempt from CEQA, but
counter with two basic arguments. Trial Brief (“TB”) 14:28-15:4, 15:10-15, 16:3-6; Reply Brief
(“Reply”) 5:5-28. First, in their opening Trial Brief, Petitioners claim that they are excused from
compliance. TB 14:28-15:4, 15:10-15, 16:3-6; Reply 5:27-28. They assert that they are
excused from complying with the exhaustion requirement because Respondents did not give
prior notice of the grounds for the CEQA exemption and, upon approving the Ordinance, did not
publish a Notice of Exemption (“NOE”). TB 14:28-15:4, 15:10-16:6. Second, in their Reply,
they also contend that although they never mentioned CEQA or expressly challenged the
exemption determination in any way, they nevertheless raised objections implicating CEQA by
asserting that the Ordinance would result in reduced services and facility maintenance, and that
these are environmental impacts. Reply 5: 9-26.
According to PRC section 21177, “[a] person shall not maintain an action or proceeding
unless that person objected to the approval of the project orally or in writing during the public
comment period provided by this division or prior to the close of the public hearing on the
project before the filing of the notice of determination.” This does not, however, bar an
association or organization formed after approval from raising a challenge which one of its
constituent members had raised, directly or by agreeing with or supporting another’s comments.
PRC section 21177(c). Moreover, someone may file a legal challenge based on an issue as long
as “any person” raised that issue during the review process. PRC section 21177(a); see Friends
of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 267-268. It also does not apply to any
grounds of which the agency did not give required notice and for which there was no hearing or
opportunity to be heard. PRC section 21177(e).
PRC section 21177(e) states, in full, “[t]his section does not apply to any alleged grounds
for noncompliance with this division for which there was no public hearing or other opportunity
for members of the public to raise those objections orally or in writing before the approval of the
project, or if the public agency failed to give the notice required by law.”
Accordingly, while a petitioner challenging an administrative decision ordinarily must
exhaust administrative remedies in the underlying proceedings and may only raise an argument
in court which had been raised in the underlying proceedings, this does not apply where the issue
was unknown prior to the final determination so that no member of the public had notice and an
opportunity to raise the issue. Attard v. Board of Supervisors of Contra Costa County (2017) 14
Cal.App.5th 1066, 1083. As explained in Attard, “[w]hen a litigant suspects bias on the part of a
member of an administrative hearing body, the issue must be raised in the first instance at the
hearing.”
A party challenging decision under CEQA cannot, to exhaust administrative remedies,
rely merely on “general objections” or “unelaborated comments.” Sierra Club v. City of Orange
(2008) 163 Cal.App.4th 523, 535; Coalition for Student Action v. City of Fullerton (1984) 153
Cal.App.3d 1194, 1197. However, “[l]ess specificity is required to preserve an issue for appeal
in an administrative proceeding than in a judicial proceeding….” Citizens Association for
Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 163.
However, section 21177 does not require exhaustion of administrative remedies in the
absence of CEQA comment period or notice of a CEQA determination, or a public hearing
before a notice of determination. It states that the issues need to be raised “during the public
comment period provided by this division or prior to the close of the public hearing on the
project before the filing of the notice of determination.” Emphasis added.
The Supreme Court in Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, held that
the petitioner needed to exhaust administrative remedies prior to raising its challenge to a
determination that a project was exempt from CEQA, clarifying a prior dispute over this
requirement. It found that in the case before it, the agency had held public hearings and allowed
for public comment and objections prior to making the exemption determination, giving the
public a chance to be heard on, and raise objections to, such a decision. The court added,
however, that in instances where the agency has not given notice of, and allowed for public
hearings and comments regarding, an exemption determination, then exhaustion of
administrative remedies is not required. It explained that the case before it was distinguishable
from Azusa Land Reclamation Co., Inc. v. Main San Gabriel Basin Watermaster (1997) 52
Cal.App.4th 1165 on this very basis because in Azusa, the agency adopted an order finding the
project exempt after having conducted a “regularly scheduled public meeting,” but without ever
disclosing prior to, or at, a public hearing that it was contemplating finding the project to be
exempt. Azusa, 1187-1188. Accordingly, in Azusa, the issue of CEQA exemption was never
itself raised in the context of a public hearing where the public had an opportunity to comment,
object, and be heard on the issue.
In support of their argument that Petitioners failed to exhaust administrative remedies,
Respondents provide several citations to the record which they claim reflect the notice to the
public regarding the Ordinance meetings and CEQA determination, as well as comments from
the public which fail to address CEQA or the exemption determination. Oppo 22:3-12, 23:9-18.
Respondents cite to AR 113, 157, 248-249, and 537, among others, for the Council meetings on
the Ordinance. They also cite to AR 149 and 240 as showing Petitioners attending and speaking
at two of the meetings, and AR 297-301 and 599-600 for Petitioners’ two letters to the Council
outlining their objections. They cite specifically to AR 162, 253, and 542 for notice of the
reliance on the common-sense exemption from CEQA. Petitioners provide no citations to the
record whatsoever regarding the CEQA discussion, with respect to either the exhaustion issue or
the substantive analysis. See, e.g., TB 6-8, 14-19; Reply 1-3, 5-6.
The agenda for the Council meeting of November 2, 2022, is at AR 110-114, the report
on the Ordinance for that meeting is at AR 115-117, written correspondence is at AR 118-140,
additional information and correspondence for the meeting are at AR 141-146, and the minutes
are at AR 147. The report states, at AR 117, that they determined that the Ordinance “is not
subject to review under… (CEQA).”
AR 153-237 is the agenda for the Council meeting of December 7, 2022, plus the report
on the Ordinance, correspondence, and other documents, followed by the minutes. The report on
the Ordinance states at AR 162 that the action “is exempt from…[CEQA] under CEQA
Guidelines Section 15061(b)(3) and 15378 in that there is no possibility that the implementation
of this action will have significant effects on the environment, and no further environmental
review is required.”
The agenda, report on the Ordinance, correspondence, attachments, and minutes for the
Council meeting of December 21, 2022, are found at AR 244-534. The report, at AR 253,
repeats the full exemption statement from the meeting of December 7, 2022, as quoted above.
The agenda, report on the Ordinance, and minutes for the Council meeting of February
1, 2023, are found at AR 535-556. At AR 542, the report once again repeats the full statement
from the December 7, 2022, meeting that the decision is exempt from CEQA.
All four of the above Council meetings were regular meetings, noticed and open to the
public, with the Ordinance presented, discussed, and considered, and with members of the public
submitting written comments and also appearing and orally submitting comments on the
Ordinance at the meetings. AR 110-111, 113, 118-149 (November 2, 2022, meeting); AR 153,
155-157, 173-228, 237, 239-240 (December 7, 2022 meeting); 244-245, 248-249, 250-251 528,
532 (December 21, 2022 meeting); AR 535-537, 549-550 (February 1, 2023 meeting).
The Ordinance itself states that the Council expressly finds that it is exempt from CEQA.
AR 166, 258, 546. In this regard, it states,
WHEREAS, The Town Council hereby finds the approval of this Ordinance is exempt
from the California Environmental Quality Act (Public Resources Code §§2100 et seq.,
“CEQA,” and 14 Cal.Code Reg. §§ 15000 et seq., “CEQA Guidelines”) under Section
15061(b)(3) of the CEQA Guidelines. This is an emergency response measure aimed at
capping rent increases in mobile home parks. No new development will result from the
proposed action. No impact on the physical environment will result.
It included this language in each version presented in the record for each of the meetings
starting with the meeting of December 7, 2022. AR 166, 258, 546. The Ordinance as adopted,
and set forth in the record at AR 10-15, likewise includes the same language. AR 13.
The report on the Ordinance for the meeting of December 21, 2022, notes that at the prior
meeting, the staff had made recommendations based in part on public requests but then
recommended a continuance of the decision in order to allow time to consider the most recent,
late, public correspondence on the Ordinance which had been received that day. The Council
thus continued the decision in order to consider that last correspondence. AR 250-251. The
minutes for the meeting of December 7, 2022, state that the Council decided at the hearing to
continue the decision on the Ordinance to December 21, 2022, based on the additional
correspondence received late that afternoon. AR 240.
Petitioners sent two letters to the Council outlining their objections to the Ordinance at
the Council. AR 297-301, 599-600. The first one Petitioners sent, and Respondents received, in
the afternoon of December 7, 2022, and is among the correspondence which had been received
late that day and which lead Respondents to continue the decision to December 21, 2022, in
order to consider the correspondence. It was included with the items for, and considered at, the
meeting of December 21, 2022. The second was sent on December 21, 2022, and was included
with the items for, and considered at, the meeting of February 1, 2023.
The first letter, at AR 297-301, discusses Petitioners’ rental rates and increases pursuant
to a 2008 Settlement Agreement (the “Agreement”). See also AR 582-586 (duplicate copy in the
record). Petitioners in this letter claim that the Agreement has “significantly curtailed” the ability
to implement rent increases, they have complied with the Agreement, and “[f]ailing to
acknowledge the history of the Park and its tradition of minor rent increases over its history flies
in the face of public policy.” AR 298-299. They object to the Ordinance on the following bases:
the Agreement is sufficient regulation of rent increases; the Ordinance will interfere with their
vested property rights; the Ordinance creates a “risk [of] smothering the life out of the Park”
because Petitioner have relied on the Agreement and thus lost the ability to obtain higher profits
already; the Ordinance conflicts with the Agreement, which requires the owners to perform
various tasks such as maintenance, beautification, and assistance of very low-income residents
which they will be less likely to be able to do with the Ordinance’s restrictions; and they have
been behind the fair market value for 14 years. AR 300-301. With respect to the claim that the
Ordinance will impair their ability to perform tasks, they assert that this may result in dilapidated
conditions in their mobile home park and underfunding for senior low-income units. At no point
does it, in any manner, mention CEQA, environmental impacts, the need for environmental
review, or the exemption determination.
In their second letter, at AR 599-600, Petitioners state that they “are again writing to
request… that appropriate consideration be granted for the unique legal constraints presented to
the Park. Specifically, that the Park is bound by a longstanding arbitration order which governs
the Park’s rental conditions.” AR 599. They state that “we would like to reiterate our letter dated
December 7, 2022,” they do not support the Ordinance, they object to the change in the cap, they
want Respondents to acknowledge their circumstances, and they request an “explicit exception”
to the rent components which will allow the residents to continue to enjoy the benefits of the
[Agreement] which was negotiated in good faith more than fourteen years ago.” AR 599-600. It
says nothing more and therefore again does not in any manner mention CEQA, environmental
impacts, the need for environmental review, or the exemption determination.
As Respondents note, the record contains, at AR 149 and 240, that Petitioners attended
and spoke at two of the meetings. The record includes no indication of what they said.
The court has found one additional e-mail from Petitioners in the record at AR 731-733.
This is merely a brief statement that Petitioners are interested in cooperating with the Town in
providing affordable housing and setting forth their reluctance to provide financial or proprietary
information. It otherwise includes only an effort to set up a telephone call.
As Respondents argue, the record clearly demonstrates that the public was notified, at the
latest by the meeting of December 7, 2022, that Respondents were expressly finding the
Ordinance to be exempt based on the common-sense exemption. This was repeated at both of
the two subsequent meetings, including the final meeting where Respondents actually made the
final decision adopting the Ordinance. For all three of these meetings, the exemption finding
was made expressly clear in both the published report on the Ordinance for each meeting and in
the very language of the Ordinance itself, as detailed above. Moreover, before this, at the
meeting of November 2022, Respondents already at least gave some indication that they were
finding that CEQA did not apply. Although that statement was vague and insufficient, it
demonstrates that Respondents had already given some notice then that they were considering
the Ordinance exempt from CEQA. They simply made it expressly clear starting with the
subsequent meeting. At no point do Petitioners claim, much less demonstrate, that this
information and these documents were not disclosed to the public and the record clearly
demonstrates that they were, and that the public was, aware of the documents, the Ordinance
terms, and the meetings. The facts that members of the public, including Petitioners, submitted
written comments, and appeared at the meetings to make oral comments, regarding the substance
of the Ordinance demonstrates this. Moreover, at no point in the record as far as the court has
been able to ascertain is there any comment indicating a lack of disclosure or notice to the public,
or any other indicia of such lack of notice. Accordingly, Petitioners are unequivocally incorrect
in their assertion that there was no sufficient notice of the exemption determination which would
relieve them of the obligation to exhaust administrative remedies on this point. However, at no
point did Petitioners, or anyone else as far as this court can determine ever discuss CEQA, claim
that CEQA applied, claim that Respondents violated CEQA, or in any way mention, much less
challenge, the exemption determination.
Petitioners now claim that they did in effect raise CEQA issues in the underlying
proceedings. They base this on their statements to Respondents that adopting the Ordinance
would impair their ability to perform tasks, they assert that this may result in dilapidated
conditions in their mobile home park and underfunding for senior low-income units. As noted
above, the record demonstrates that they did, at last in the first letter discussed above, mention
this complaint. However, at no point do Petitioners, in any manner, mention CEQA,
environmental impacts, the need for environmental review, or the exemption determination.
They never mention any of these issues or challenge the CEQA determination in any way,
expressly or otherwise. Their claim that reducing their rent revenue may lead to a decline in the
services or maintenance they provide does not implicate the effects on the physical environment
with which CEQA is concerned. At most they only implicate social and economic impacts.
Moreover, they are based solely on speculation, without evidence, and a possible statement of
their own choices, not actual impacts of the Ordinance. Finally, the statements in the record
about this are so vague, speculative, and facially unrelated to CEQA in any way that there is no
hint in the record that they were in any way raising a CEQA concern by these statements.
Petitioners also note that Respondents never issued a Notice of Exemption (“NOE”) from
CEQA, but this is immaterial. The NOE would have been at the end when Respondents made
their decision, after public comment was concluded, so it would have had no impact in giving the
public notice that Respondents were finding the adoption of the Ordinance to be exempt.
Moreover, Guideline 15062 makes it clear that the failure to publish an NOE is not itself a
violation of CEQA and instead it triggers the statute of limitations for bringing an action
challenging the decision. Guideline 15062(a) states, in pertinent part and with emphasis added,
“When a public agency decides that a project is exempt from CEQA… and the public agency
approves or determines to carry out the project, the agency may, file a notice of exemption. The
notice shall be filed, if at all, after approval of the project.” Accordingly, Respondents were not
required to file the NOE. Subdivision (d) adds, again with emphasis added, “The filing of a
Notice of Exemption and the posting on the list of notices start a 35-day statute of limitations
period on legal challenges to the agency's decision that the project is exempt from CEQA. If a
Notice of Exemption is not filed, a 180-day statute of limitations will apply.”
Accordingly, the court finds that Petitioners failed to exhaust their administrative
remedies pursuant to the requirements of CEQA and thus may not raise the CEQA challenge
here. The court DENIES the petition as to the claim that the decision to adopt the Ordinance
violated CEQA.
Substantive Discussion
PRC section 21084 is the statutory authority for exemptions from CEQA and exceptions
to those exemptions, which forbid an agency to rely on an exemption if an exception applies.
Guideline 15061 governs “Review for Exemption” from CEQA. Guideline 15061(a)
states that a lead agency, upon finding that a project is subject to CEQA, “shall determine
whether the project is exempt from CEQA” and subdivision (b) sets forth the types of
exemptions. These exemptions set forth in subdivision (b) are (1) by statute; (2) pursuant to a
categorical exemption found in Guidelines 15300, et seq.; (3) the “common sense exemption” for
projects with a potential for causing a significant effect and which applies “[w]here it can be seen
with certainty that there is no possibility that the activity in question may have a significant
effect on the environment”; (4) if a public agency will reject it; and (5) pursuant to Article 12.5
of the Guidelines, which governs agricultural and affordable housing and residential infill.
Guideline 15061 states, in pertinent part,
(a) Once a lead agency has determined that an activity is a project subject to CEQA, a
lead agency shall determine whether the project is exempt from CEQA.
(b) A project is exempt from CEQA if:
…
(3) The activity is covered by the common-sense exemption that CEQA applies only to
projects which have the potential for causing a significant effect on the environment.
Where it can be seen with certainty that there is no possibility that the activity in question
may have a significant effect on the environment, the activity is not subject to CEQA.
Subdivision (b)(3) is the “common-sense” exemption. See Apartment Association of
Greater Los Angeles v. City of Los Angeles (2001) 90 Cal.App.4th 1162, 1171; Davidon Homes
v. City of San Jose (1997) 54 Cal.App.4th 106, 116-117. The Discussion following the Guideline
states that this “provides a short way for agencies to deal with discretionary activities which
could arguably be subject to the CEQA process, but which common sense provides should not be
subject to the act.”
The common-sense exemption may be used “only in those situations where its absolute
and precise language clearly applies.” Myers v. Board of Supervisors (1st Dist. 1976) 58
Cal.App.3d 413, 425. Where one can raise a legitimate question of a possible significant impact,
the exemption does not apply and, because it requires a finding that such impacts are impossible,
it requires a factual evaluation based on evidence which shows that it could have no possible
significant impact. Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 116-117.
The agency thus bears the burden of basing its decision on substantial evidence that shows no
such possibility. Ibid.
Respondents note that they expressly determined that the Ordinance approval is exempt
from CEQA because “No new development will result from the proposed action. No impact on
the physical environment will result.” AR 13, 166, 258, 546 (findings as set forth in the
Ordinance).
Respondents also correctly note that nothing refers to the Ordinance as a zoning
regulation. The Ordinance itself states, “the California Constitution, Article XI, section 7,
provides cities with authority to enact ordinances to protect the health, safety, welfare, and
morals of the citizens, and zoning regulations are a permissible exercise of this authority. AR
12; see also, e.g., AR 18, 545. Nothing indicates that the Ordinance regulates or changes the use
of land in any way; instead, it simply limits the rent which owners of mobile home parks may
charge. See, e.g., AR 12-15, 19-21, 159-162, 250-254, 541-542, 546-548.
Petitioners claim that Respondents failed to investigate whether the decision was in fact
exempt under the common-sense exemption. This argument is wholly unpersuasive.
First, Petitioners provide no citation to the record, and they offer no explanation for this
argument. As noted above, although the agency has the burden of conducting an investigation
and analysis into the possible environmental impacts of a project, in judicial review the petitioner
bears the burden of demonstrating that the agency’s action does not comply with CEQA.
Petitioners have provided neither evidence nor analysis explaining how the adoption of this
Ordinance was not exempt from CEQA as Respondents determined, or how the record lacks
substantial evidence to support the determination.
Second, Petitioners’ reliance on their claims that capping the rent they can charge may
cause them to cut back on services are, as explained above, insufficient for demonstrating that
adopting the Ordinance was not exempt, or that Respondent’s actions violated CEQA.
Petitioners’ assertions regarding the possible impacts of the rent restrictions are entirely
speculative, vague, and unclear. They are also limited to tenuous and vague social or economic
impacts with no physical change in the environment. In fact, in the court’s view, the statements
appear to be nothing more than veiled threat that if their ability to raise rents is curtailed, they
will respond by simply providing fewer services in order to protect their profits. This is hardly
the sort of impact with which CEQA could possibly be concerned.
Third, as Respondents argue, the Ordinance on its face involves no indication of a
possible direct or indirect physical change in the environment. It is not a land-use decision, it
makes no change whatsoever to land use, nothing indicates that it will affect development or
promote or alter development, growth, activities on the land, or any other similar land-use
change. It merely imposes a cap on rent which may be charged at mobile home parks.
Petitioners argue that it necessarily implicates CEQA because it is a zoning regulation, but
Respondents correctly note that it is not the type of regulation which implicates CEQA merely
because it may be a zoning regulation. As the Supreme Court explained in Union of Medical
Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, at 1190, 1193 (“UMMP”),
PRC 21080 does not make a zoning ordinance necessarily a project subject to CEQA as a matter
of law.
Fourth, Respondents correctly note that they provided an explanation and analysis,
however brief, supporting the exemption determination. This states, as noted above, that “No
new development will result from the proposed action. No impact on the physical environment
will result.” AR 13, 166, 258, 546. It is indeed brief, but it demonstrates an analysis based on
the evidence consisting of the nature of the Ordinance itself and given that it is based on the
inherent language of the Ordinance and its effects, it is facially sufficient. Petitioners point to
nothing in the record indicating the contrary.
Finally, as noted above, Respondents were not required to file an NOE. Their failure to
do so therefore does not constitute a violation of CEQA.
The court finds that, even if Petitioner had exhausted their administrative remedies,
substantively they present no violation of CEQA. The court therefore DENIES the petition as to
the CEQA claims on this basis as well.
TENTATIVE RULING (AS TO ALL OTHER CAUSES):
Petitioners, ROP WMCC LLC and Resident Owned Parks, Inc. (“Petitioners”) amended
petition for writ of administrative mandate and request declaratory and injunctive relief is
DENIED, as to the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Causes of
Action. The Second Cause of Action is addressed in a separate tentative ruling focused only on
the CEQA issues raised in the amended petition.
PROCEDURAL HISTORY
Petitioners challenge the Ordinance No. 2023-373 (the “Ordinance”) adopted by
Respondents Town of Windsor (“Town”) and Town Council of the Town of Windsor (“Town
Council”) on February 1, 2023, after several public Town Council meetings. (AR 550.). The
Ordinance caps the rent for mobile home parks within the Town’s jurisdiction and its purposed is
to stabilize excessive rent in consideration of mobile home park residents. The predecessor to
the Ordinance was adopted on October 28, 1992, for rent control. (Administrative Record
[“AR”] 92.) In 2008, the parties participated in an arbitration regarding proposed rent increases
at the park after which the parties entered into a settlement agreement. (Amended Petition, ¶¶ 35-
39.) Petitioners allege that according to the agreement, they are bound by its terms which detail
precisely how rental rates and increases are to be calculated under Paragraph 5 to Exhibit 1 of the
agreement. (Ibid.)
The Petition seeks a writ of mandate directing Respondents to: (1) rescind, repeal, or set
aside the Ordinance; (2) to set aside the Ordinance due to the failure to comply with the
California Environmental Quality Act (“CEQA”); (3) inquire into the validity of the Ordinance
for lack of jurisdiction, acting in excess of jurisdiction, and abuse of discretion; (4) set aside the
Ordinance based on a deprivation of fundamental vested rights pursuant to the United States
Constitution and California Constitution; (5) set aside the Ordinance based on equitable estoppel;
and (6) set aside the Ordinance based on lack of fair hearing; and related claims.
Petitioners also seek a monetary award, injunctive and declaratory relief, and an award of
attorneys’ fees and costs.
ANALYSIS
1. First, Third, Fourth, and Fifth Causes of Action
a. Traditional or Administrative Writ of Mandate
Code of Civil Procedure (“C.C.P.”) section 1094.5 provides for the review by a court
sitting without a jury where the writ is issued “for the purpose of inquiring into the validity of
any final administrative order or decision made as the 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 the inferior tribunal, corporation, board, or officer.” The
inquiry into the validity of a final administration order extends to “whether the respondent has
proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there
was any prejudicial abuse of discretion.” (C.C.P. § 1094.5(b).)
A writ of traditional mandamus pursuant to C.C.P. section 1085(a) may be issued 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.”
“Abuse of discretion” is established against the respondent if they did not proceed in the
manner required by law, if the order or decision is not supported by the findings, or if the
findings are not supported by the evidence. (Ibid.) “Where it is claimed that the findings are not
supported by the evidence, in cases in which the court is authorized by law to exercise its
independent judgment on the evidence, abuse of discretion is established if the court determines
that the findings are not supported by the weight of the evidence.” (CCP § 1094.5(c).) “In all
other cases, abuse of discretion is established if the court determines that the findings are not
supported by substantial evidence in the light of the whole record.” (Ibid.)
b. First Cause of Action to Rescind, Repeal, or Set Aside the Ordinance (C.C.P. § 1085)
The Petition seeks to rescind, repeal, or set aside the Ordinance per C.C.P. section 1085 claiming
that counsel failed to responsibly research and determine an appropriate restriction on rental
increases within mobile home parks. Petitioners argue that the Ordinance are “arbitrary,
capricious, or entirely lacking in evidentiary support.”
The Town opposes and argues that that California Courts have consistently upheld the
power of municipalities to establish rent control as a valid police power, per Birkenfeld v. City of
Berkeley (1976) 17 Cal.3d 129, 165 as well as other cases. The Town’s position is that as long as
the rent control ordinance enacted serves a legitimate government purpose, permits a landlord to
earn a just and reasonable return, and provides for some rental adjustment mechanism, then it is
allowable, per Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 962-963.
Here, as the Town argues, the Ordinance prevents excessive rents and does not prevent
landlords from obtaining a just and reasonable return on their property. The Town argues that
Petitioners have not shown that they cannot obtain a just and reasonable return with the
Ordinance in place. The Town also points out that there is no requirement that “year long
studies” need to be conducted before justifying a modification of its mobile home rent
stabilization ordinance. The Town points to the administrative record, which contains evidence
of the Town’s extensive fact-finding and research efforts, detailed staff reports, and presentations
to the Town Council regarding the Ordinance before it was adopted. (AR 0115-0117, 0159-0162,
0250-0254.) During several Town Council meetings, the Town heard testimony from mobile
home park owners, including from Petitioners, and from mobile home residents. (AR 0149,
0240, 0532.) Furthermore, the Town communicated with other municipalities and compiled
information on their various mobile home rent control ordinances in order to support and form
the Ordinance. (AR 0116.)
Based on the foregoing, the Court finds that the Ordinance was supported by a legitimate
public purpose as well as extensive evidence and findings prior to its adoption. Petitioners have
not provided any authority that supports their argument that the Town was required to conduct
years’ long studies by experts prior to the Ordinance being adopted.
The Petition is DENIED as to the First Cause of Action.
c. Third Cause of Action Regarding Validity of Ordinance (C.C.P § 1094.5)
Petitioners argue that the Ordinance is a decision that requires a fair hearing, evidence to
be considered, and discretion in the determination of facts that was vested in an inferior tribunal
(namely the Town Council). Petitioners request the Court to inquire into the validity of the
Ordinance to determine if there was a fair hearing and whether there was any prejudicial abuse of
discretion, because Petitioners are of the position that the Ordinance is lacking in each category
required under C.C.P. section 1094.5(b).
As described above, the Town argues that the Ordinance has a legitimate public purpose
to prevent excessive rents and does not prevent landlords from obtaining a just and reasonable
return on their property. Furthermore, before the Ordinance was adopted, the Town relied on
extensive fact-finding and research efforts, detailed staff reports, presentations to the Town
Council, several public Town Council meetings during which the Town Council heard testimony
from mobile home park owners, including from Petitioners, and from mobile home residents.
The Town also considered a compilation of information regarding other similar municipalities
and various mobile home rent control ordinances in adopting the Ordinance.
The Town also argues that only governmental decisions which are adjudicative in nature
are subject to procedural due process principles, per San Francisco Tomorrow v. City and
County of San Francisco (2014) 229 Cal.App.4th 498, 526. The Town also distinguishes this
matter from the case cited by Petitioners, Harris v. County of Riverside (9th Cir. 1990) 904 F.2d
497, by arguing that in Harris, an individual property owner might have procedural due process
rights when a public agency specifically targets their property as part of a rezoning change and
might eliminate that property altogether.
The Court does not find that “abuse of discretion” has been established here against the
Town. The Town had a legitimate purpose to adopt the Ordinance and relied on extensive
evidence, including several public Town Council meetings at which Petitioners were heard as
well as mobile home residents, prior to the adoption of the Ordinance.
As such, the Petition is DENIED as to the Third Cause of Action.
d. Fourth Cause of Action for Deprivation of Rights (42 U.S.C. § 1983)
The Petition argues that the Ordinance deprives them of their due process rights under the
United States and California constitutions. Petitioners argue that their vested rights have been
deprived without just compensation and without a valid purpose.
The Town makes the same arguments as described above under subsections 1b. and 1c.
The Court does not find Petitioners’ arguments persuasive that they were deprived of their due
process rights and that the alleged deprivation was without a valid purpose. The Ordinance is
meant to stabilize mobile home rent in protection of the mobile home residents that reside there,
which is a legitimate public purpose as well as within the Town’s legal authority. Furthermore,
the Town Council had four public meetings during which Petitioners as well as other mobile
home park owners and residents were heard.
For these reasons, the Petition is DENIED as to the Fourth Cause of Action.
e. Fifth Cause of Action for Equitable Estoppel
Petitioners cites to Congregation Etz Chaim v. City of Los Angeles (2004) 371 F.3d 1122
in support of their fifth cause of action to set aside the Ordinance based on equitable estoppel.
Petitioners argue that when a property owner incurs substantial expense in reasonable reliance
upon some governmental act, the principle of equitable estoppel prohibits a government entity
from exercising its regulatory power to prohibit the land use. Petitioners allege that they were
induced to rely on the 2008 arbitration that they sustained substantial economic and personal
harm by the “sudden, unwarranted adoption of the Ordinance” because they made substantial
changes, investments, and long-term financial and other commitments.
The Town argues that Petitioners have failed to allege facts sufficient to support a claim
for equitable estoppel. As described by both parties, an equitable estoppel claim has the
following elements: (1) the party to be estopped must be apprised of the facts; (2) the party to be
estopped must intend that their conduct shall be acted upon, or must so act that the party
asserting the estoppel had a right to believe it was so intended; (3) the other party must be
ignorant of the truth state of facts; and (4) the other party must rely on the conduct to its injury.
(City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 489.) The Town contends that Petitioners’
participation in the 2008 arbitration cannot form the basis of any equitable estoppel claim
because no assurance was made by the Town in that process that could be interpreted as a
restriction on the Town’s future exercise of tis legislative power. Additionally, the Town makes
note that Petitioners cannot and have not claimed injury from the Town’s adoption of the
Ordinance, because Petitioners maintain the ability to seek a rent higher than allowed by going
through the arbitration process outlined in the Windsor Municipal Code.
Based on the above, the Court does not find that Petitioners’ participation in the 2008
arbitration in compliance of the Ordinance sufficiently establishes a basis for Petitioners’
equitable estoppel claim because no assurance was made by the Town during the arbitration that
it would not seek to exercise its own legislative authority regarding rent control in the future.
Thus, the Petition is DENIED as to the Fifth Cause of Action.
2. Declaratory Relief and Judicial Declaration
a. Declaratory Relief
Code of Civil Procedure (“C.C.P.”) section 1060 allows an interest person under a written
instrument, not including a will or a trust, to seek a declaration of his or her rights or duties in
cases of actual controversy relating to the legal rights and duties of the respective parties.
In order for a party to seek declaratory relief, there must be: 1) an actual controversy
about justiciable questions regarding the rights or obligations of a party which 2) involves a
proper subject of declaratory relief. (C.C.P. § 1060; City of Cotati v. Cashman (2002) 29 Cal.4th
69, 80.) The court may refuse to exercise the power to provide declaratory relief where its
declaration or determination is not necessary or proper at the time under all circumstances.
(C.C.P. § 1061.)
b. Interference with a Valid Contract
Petitioners allege that the Town is in violation of the Contracts Clause, under Article I,
Section 10 of the U.S. Constitution, because the Ordinance “was not targeted at remedying a
broad or pervasive social problem.” Petitioners argue that the plain language of the Ordinance is
targeted to interfere with private contracts and so is void on its face.
The Town argues that the ordinance does not substantially impair the 2008 agreement. A
contractual relationship exists between the Petitioners and mobile home park residents, so the
Town argues that the proper test is to determine whether the impairment to this contractual
relationship is substantial in that it impairs the contractual bargain, interferes with a party’s
reasonable expectations, and prevents the party from safeguarding or reinstating their rights.
(Sveen v. Melin (2018) 584 U.S. 811, 819.) The Town argues that as it is within its power to take
rent-control measures and that it has adopted the Ordinance and its predecessors to stabilize rent,
that it is foreseeable to both the mobile home park residents and Petitioners that further
regulation may be adopted to modify the restrictions. For that reason, the Town claims that the
Ordinance neither interferes with the parties’ reasonable expectations nor prevents the parties
from safeguarding or reinstating their rights. According to the Town, Petitioners are still able to
follow the rental adjustment process to seek a higher rent.
The Court finds that the Ordinance does not substantially impair the contracts between
Petitioners and the mobile home park residents as it does not impair or eliminate the contractual
bargain and because the history of regulation by the Town to stabilize and control rent made it
foreseeable to Petitioners and the mobile home park residents that further measures could be
taken to regulate rent in the future. Thus, the parties’ reasonable expectations were not interfered
with and the parties were not prevented from safeguarding or reinstating their rights as they still
have an avenue to seek higher rent.
The Petition is DENIED as to the Sixth Cause of Action.
c. Violation of Due Process Rights
The Petition alleges that the Town is in violation of Petitioners’ right to due process of
law under the 14th amendment to the U.S. Constitution and under 41 U.S.C. section 1983.
Petitioners argue that there was a notice and opportunity to be heard needed before the
deprivation of their rights.
In opposition, the Town makes similar arguments as described above in subsections 1b.-
1d. For the same reasons as stated above, the Court does not find that the Ordinance deprived
Petitioners of their due process rights or that the alleged deprivation was without a valid public
purpose.
The Petition is DENIED as to the Seventh and Eight Causes of Action.
3. Injunctive Relief to Prevent Enforcement of Ordinance
Injunctive Relief
Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action
must exist before injunctive relief may be granted. (Shell Oil Co. v. Richter (1942) 52
Cal.App.2d 164, 168.) Injunctive relief is an equitable remedy available to protect the party
seeking it or prevent the invasion of a legal right. (Meridian, Ltd., v. San Francisco (1939) 13
Cal.2d 424, 447.)
The circumstances in which an injunction may be granted are listed under C.C.P. section
526(a)(1)-(7) lists when an injunction may be granted by the court. For granting injunctive relief,
trial courts consider two questions: “1) are the plaintiffs likely to suffer greater injury from a
denial of the injunction than the defendants are likely to suffer from its grant; and 2) is there a
reasonable probability that the plaintiffs will prevail on the merits.” (Robbins v. Superior Court
(1985) 38 Cal.3d 199, 206.)
Petitioner’s Request for Injunction to Prevent Enforcement of Ordinance
Petitioner requests injunctive relief as a separate cause of action and the bases is the
violation of CEQA, other state law, and the U.S. and California constitutions.
The Court finds that the cause of action for injunctive relief cannot stand independently
per Shell Oil referenced above, and also that the relief requested should not be granted based on
the rulings made on all other causes of actions above and based on the Court’s separate ruling
denying the Petition based on the unwarranted CEQA claims.
The Petition is DENIED as to the Ninth Cause of Action.
CONCLUSION
The Petition is DENIED as to the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and
Ninth causes of action numbers. The Town shall submit a written order to the Court consistent
with this tentative ruling and in compliance with Rule 3.1312.
