Preview
Scott M. Pearson (SBN 173880)
pearsons@ballardspahr.com
Taylor Steinbacher (SBN 285335)
steinbachert@ballardspahr.com By E. Higgrnbotham. Deputy Clerk
BALLARD S P A H R LLP
3 2029 Centifry Park East, Suite 800
4 Los Angeles, CA 90067-2909
Telephone: 424.204.4400
5 Facsimile: 424.204.4350
6 Attomeys for Defendants and Real Parties in
Interest
7 ELK GROVE TOWN CENTER, LP AND
THE HOWARD HUGHES CORPORATION
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SACRAMENTO
11 PATTY JOHNSON; JOE TEIXEIRA; OMAR Case No. 34-2016-80002493
AHMED, JR.; XDi GUO; and CAROLYN
12 SOARES, »] ORDER SUSTAINING
WITHOUT LEAVE TO AMEND
13 Petitioners and DEMtnRipR OF^ELK GROVE TOWN
Plaintiff, GENITER, L S AND THE^ TO
14 HUGHES GdREORATlbN TO
V. VERIFIED AMENDED re FOR
15 WRIT OFVMANDATE AND
CITY OF ELK GROVE, COMPLAINT iFORDEGLARAT^^
16 RELIEF
Respondent ahd
17 Defendant Judge: Hon. Shellyanne W.L: Chang
Date:: June 23,2017
18 Tune: 10:00 a.m.
ELK GROVE TOWN CENTER, LP; THE Dept: Department 24
19 HOWARD HUGHES CORPORATION;
and DOES 1-20, Action Filed: November 23,2016
20 Real Parties ih
Interest and
21 Defendants.
22
23
24
25
26
27
28
DMWEST#168S477SV3
[PROPOSED] ORDER SUSTAINING Wrrnour LEAVE TO AMEND REAL PARTIES IN INTEREST
Ara>'l>iEFENDANTS^PEMUR^^ VilUnEI) AMET^
PETrnoN rdiRi WRinf OF MANDA-TE AND COMPLUNT FOR DEiaJutA-foRY RELIEF
Real Parties ui Interest and Defendants Elk Grove Town Center, LP and The Howard
Hughes Corporation's (together "EGTC") Demurrer to Petitioner and Plaintiffs' Verified
3 Amended Petition for Writ of Mandate and Complaint for Declaratory Relief came on for hearing
4 before this Court on June 23, 2017 at 10:00 a.m. in Department 24. The parties having been heard
5 and the matter having been submitted,
6 IT IS HEREBY ORDEREDtiiatEGTC's Demurrer is sustained mthout leave to amend
7 and Petitioners and Plaintiff' Verified Amended Petition for Writ of Mandate and Complaint for
8 Declaratory Relief is dismissed with prejudice and Petitioners' motion for relief pursuant to
9 Code of Civil Procedure section 473(b) is denied. Attached hereto and incorporated herein as
10 Exhibit A is a trae and conrect copy of the Court's nding.
11
12 DATED; 2017
13 Judge ofthe I
14
SHELLEYANNE W.L. CHANG
15
16
17 APPROVED AS TO FORM:
18 DATED: 2017 Brigit S. Barnes & Associates,
19
20
21
22 Attomeys forretitioners and Plaintiffs
23 PATTY JOHNSON; JOE TEIXEIRA;
OMAR AHMED, JR; XIN GUO and
24 CAROLYN SOARES
25
26
27
28
DMWEST #16854775 v3
[PROPOSED] ORDER SUSTAINING Wrruour LEAVE TO AMEND REAL PARUES IN INTEREST
AND DEFENDANTS' DEMURRER TO PErmoNERS AND PLAINTIFFS' VERIHED AMENDED
PETmoN FOR WIUT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
EXHIBIT A
SUPERIOR COURT OF CAUFORNIA
COUNTY OF SACRAMENTO
DATE: August 1,2017 DEPT, NO. 24
JUDGE: HON. SHELLEYANNE W, L. CHANG CLERK: E. HIGGINBOTHAM
PATTY JOHNSON; JOE TEDOERA; OMAR Case No.: 34-2016-80002493
AHMED JR.; XIN GUO; and CAROLYN
SOASES,
Petitioners and Plaintiffs,
v.
CITY OF ELK GROVE,
Respondent and Defendant
ELK GROVE TOWN CENTER, LP; HOWARD
HUGHES CORPORATION; and DOES 1-20,
inclusive,
Real Parties in Interest.
Nature of Proceedings: RULING ON SUBMnTED MATTER AND ORDER:
DEMURRERS TO AMENDED PETITION FOR
WRTT OF MANDATE AND COMPLAINT FOR
DECLARATORY RELIEF; MOTION FOR RELIEF
FROM DISMISSAL
The Court issued a tentative rulmg on June 22, 2017, in which it sustained without leave
to amend the demurrers of Respondent and Real Party in Interest, and denied Petitioners'
motion for relieffiromdismissal pmsuant to Code of Civil Procedure section 473. The
parties appeared for oral argument on June 23,2017, and were represented by counsel as
stated on the record. After taking the matter under submission, the Court affirms its
tentative mling.
I. BACKGROUND
This case concems land (Property) within the City of Elk Grove (City) that was once
proposed for development as a shopping mall. The United States Department of Interior,
Bureau of Indian Affairs (BIA) has taken the Property into trust for the benefit of the
Wilton Rancheria Tribe (Tribe). The Property is now proposed to be used for a hotel and
casino.
The Property is part of (approximately one-third) of the Lent Ranch Marketplace Special
Planning Area ("Lent Ranch SPA"). (Amended Petition (AP), ^13.) hi 2001,tiieCity
approved the Lent Ranch SPA and a Development Agreement and certified an
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Envkonmental Impact Report ("EIR") therefor, pursuant to the Califomia Environmental
Quality Act ("CEQA") (Pub. Resources Code, § 21000 etseq.) (Ibid.)
The Lent Ranch SPA was planned as a "traditional" retail shopping center, but mcluded
residential, commercial, and retail uses. (AP, TI13.) The EIR identified envkonmental
impacts of the proposed uses of the Property as a shopping center and proposed
mitigation measures to address those impacts. (Id. at ^14.)
The proposed shopping center was never built
After receiving federal status as a recognized Indiantiibe(Amended Petition, ^21), the
Tribe entered into an agreement with Boyd Gaming to develop a casino/hotel. (Id., 124.)
The Tribe then ^plied to the Department of Interior, Bureau of Indian Affaks (BIA) to
take land into trust (Id., 111[25, 27.) The Tribe also initiated environmental review
pursuant to the federal National Envkonmental Policy Act (NEPA), (42 U.S.C. §§4321,
et seq.) for the tmst decision and development of land as a casino/hotel. (Id., \25.) The
initial environmental review process identified an altemative site in Gait (the "Twin
Cities site") and not the Property, as the preferred site for the casino/hotel. (Id., ^26.)
In April 2014, Real Party in Interest Elk Grove Town Center and then-owner of the
Property (RPI) applied to the City to request an amendment to the Lent Ranch SPA to
convert Zone A of the Lent Ranch SPAfi-omtiaditionalretail mall to an "outiet mall
concept," referred to as the Outiet Collection at Elk Grove. (Amended Petition, ^[34.)
The City took steps tofiirtherthis concept, but an outlet mall was never built on tiie
Property.
Pertinent here, in October 2014, the City approved a Development Agreement with RPI
for the Outiet Collection at Elk Grove ("2014 DDA"). (Amended Petition, ^ 8 , Petition,
Exh. A.)
In May 2016, RPI entered into an option agreement with Boyd Gaming, Inc. and the
Tribe to sell part of tiie land (tiie Property) in tiie Lent Ranch SPA. (AP, ^51.) Boyd
Gaming, Inc. and the Tribe sought to acquire the Property for the possible development
of a casino/hotel/entertainment facility. (See Id., 1(53.)
On June 9,2016, the Tribe announced that the Property, and not the "Twin Cities site"
was the preferred location for a casino/hotel. (AP, \SZ.)
On September 28,2016, tiie City approved Resolution No. 2016-183, approving a
Memorandum of Understanding between the Tribe and the City ("MOU"). (AP *|I59.)
Under the MOU, the Tribe would make payments to the City to mitigate the expected
impacts of a potential casino/hotel/entertainment facility on the Property. (Id.; see also
City's Request for Judicial Notice in Support of Demurrer, Exh. 2.) On September 29,
2016, tiie City filed a Notice of Exemption ("NOE")tiiattiieCity's approval oftiie MOU
was exempt from CEQA. (City's Request for Judicial Notice in Support of Demurrer,
Exh. 2.)
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On October 26,2016, tiie City adopted Ordinance 23-2016 (Ordmance), allowing it to
amend the 2014 DDA to release the 2014 DDA as an encumbrance on the Property.
(Amended Petition, 162.) This was to allow the BIA to take the Property into trust for the
benefit oftileTribe. (Ibid.) The City recorded the amendment to the 2014 DDA on
November 9, 2016. (Id., T[ 63.) The City later repealed tiiis ordmance (Id. ^79.)
One month later, on November 21,2016, a referendum petition was filed, challenging the
City's Ordmance to amend the 2014 DDA. (Amended Petition, %65.)
On November 23,2016, this Petition was filed. The Petition uiitially alleged tiiat the City
violated CEQA, the Govemment Code, and the Califomia Constimtion by approving the
Ordinance and prematurely recording the 2014 DDA Amendment.
On December 22,2016, Petitioners unsuccessfiiUy sought an ex parte application
requiring the City to acknowledge the ineffectiveness of the Ordinance approving the
amendment to the 2014 DDA, and act to expunge the Amendment and not represent to
anyone that titie to the Property is &ee of encumbrances created by the 2014 DDA.
The Amended Petition alleges that the City and RPI took other actions with regard to the
Property. For example. Petitioners allege that on December 23,2016, RPI recorded a
series of lot line adjustments for the Property. (Amended Petition, ^[68.) For example, on
January 9,2017, the City recorded a Notice of Release of Recorded Notice of Conditional
Partial Release of Recorded Mitigation Monitoring Recording Program from the
Property's titie (Notice). (Amended Petition, ^69.) The Notice stated that it was
effective if and when the Property was taken into trust for the Tribe by the United States.
(See Petition, Exh. C, Notice of Conditional Partial Release of Recorded Mitigation
Monitoring and Reporting Program for Lent Ranch Marketplace.)
On January 11,2017, the City Clerk certified the referendum to repeal the Ordinance
releasing tiie 2014 DDA from the Property. (Id., ^[73). Accordingly, the effective date of
the Ordinance was suspended, effectively rescinding the amendment to the 2014 DDA.
(Elections Code, § 9237.)
On January 19,'2017, RPI recorded conveyance of the Property to Boyd Gaming and tiie
Tribe. (Amended Petition, ^75.)
Also tiiat same day, on Januaty 19,2017, the BIA issued a Record of Decision (ROD)
approving the taking of the Property into trust for the benefit of the Tribe. (Amended
Petition, 1174,) The parties assert in their briefs and do not dispute that this determmation
was made by Principal Deputy Assistant Secretary—^Indian Affairs of the Department of
Interior, BIA, Lany Roberts. (See, Ibid,) On Februaty 10,2017, tiie BLA accepted tiie
conveyance of the Property from Boyd Gaming and the Wilton Rancheria, placing the
property mto Trust. (Id. ^77.)
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On Febmaty 21,2017, Petitioners Stand up for California!, Patty Johnson, Joe Teixeira,
and others filed an administrative appeal of the BIA's determination with the Interior
Board of Indian Appeals. (Amended Petition, 1178.)
On February 22,2017, the City repealed the Ordinance allowmg the Amendment to the
2014 DDA. (Amended Petition, 1f79.)
On March 13,2017, Petitioners fded a "Verified Amended Petition for Writ of Mandate
and Complaint for Declaratoty Relief (Amended Petition) at issue here. The Amended
Petition no longer challenges the City's actions to remove the 2014 DDA from the
Property. Additionally, tiie Amended Petition removes petitioner Stand Up Califomia!
and adds other petitioners.
Now, the Amended Petition (1) seeks a writ of mandate directing the City or RPI to
"comply" vnth the City's zoning ordinance, as the Property's proposed use as a
hotel/casino is inconsistent with the Lent Ranch SPA (2) alleges that the City/RPI
"breached" the 2014 DDA by representmg that the Property's prospective use as a
hotel/casino was not known, (3) seeks a writ of mandate compelling the City to
"reinstate" the MMRP that was recorded on the Property, or hold a public hearing
explaining why compliance with the MMRP is unnecessaty, (4) alleges that the City
"breached" Govemment Code hearing and notice provisions and due processrightsby
not holding public hearings before the property could be taken into tmst, and (5) seeks a
judicial determination as to the effectiveness ofthe City's actions. The Amended Petition
seeks a Court order directing the City and RPI to "comply" with the 2014 SPA, the
MMRP, 2014 DDA, hold public hearings regarding the change in land use on tiie
Property, and conduct additional environmental review.
On June 20,2017, shortiy before the hearing for these matters. Petitionersfiledanother
case in this court, Case No. 34-2017-80002618. This case is premised on the same
general facts here, but seeks mandate relief based on the City's alleged violation ofthe
PubUc Records Act (Gov. Code, §§ 6250, et seq.) and Brown Act (Gov. Code, §§ 54950,
et seq.)
H. DISCUSSION
TTie rules goveming civil actions are generally applicable to writs. (Code Civ. Proc, §
1109; Rodriguez v. Municipal Court (1972) 25 Cal.App.3d 521, 526.) fri reviewing a
demurrer, the Court must accept all material facts properiy pled in the pleading as tme.
(Burtv County of Orange (2004) 120 Cal.App.4* 273,279.) However, a demurrer does
not admit contentions, deductiians, or conclusions of fact or law alleged in the complamt;
facts impossible in law, or allegations contraty to facts of which a court may take judicial
notice. (Blankv: Kirwan (1985) 39 Cal.3d 311,318; Martinez v. Socoma Companies,
Inc. (1974) 11 Cal.3d 394. 399.)
A demurrer may be sustained without leave to amend when the facts are not in dispute
and the nature of the piaintifPs claim is clear, but under substantive law, no liability
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exists. (Keyes v. Bowen (2010) 189 Cal.App.4* 647,655.) A demurrer is properly
sustained without leave to amend when there is no reasonable possibility that die defects
in the complaint may be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p.
318; Alliance for the Protec. ofthe Auburn Cmty. Envt v. County ofPlacer (2013) 215
Cal.App.4* 25,29.) The burden of proving such reasonable possibility of amendment
rests with the plaintiff. ((Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
The City and RPI demur to the entire Petition, and to the separate causes of action
thereui. The Court addresses each.
i. Request for Judicial Notice
The Court grants the City's xmopposed request for judicial notice in support ofthe
demiurer, and grants Petitioner's unopposed request for judicial notice in opposition to
the demurrer.
ii. Objection to Declaration of Odin Smith
The City's objection to Petitioner's declaration of Odin Smith (Declaration) is sustained.
The Declaration states that it is "[e]xecuted within the United States this 15* of May,
2017." However, it does not contain a statement that the declarant certifies under penalty
of perjury under the laws of the State of Califomia that the foregoing material in the
Declaration istiueand correct, as required by Code of Civil Procedure section 2015.5,
Accordingly, the City's objection to the Declaration is sustained.
iii. Amended Petition
As a preliminaty matter, the Court addresses the City's and RPI's arguments that
Petitioners improperly filed a supplemental petition without leave of Court, rather than an
amended petition. Supplemental petitions intioduce new causes of action in response to
new facts occurring after the petition was filed, and requfre the party to obtaui leave of
Court before filing. (Code Civ. Proc, § 464.) In contrast. Code of Civil Procedure
section 472 permits a party to amend its pleading once without leave of the Court at any
time before the answer or demurrer is filed. This is what Petitioners did here. Althou^
the Amended Petition asserts new causes of action in response to changed facts, like a
supplemental petition. Petitioners were not reqiured to obtain leave of Court before filing
it, as the Amended Petition was filed before the demurrers were filed.
iv. The City's Demurrer
The City demurs to the entire Amended Petition on the ground that it fails as a matter of
law because the Tribe is immune from suit, is a necessaty and indispensable party that
cannot be joined, and that the Court lacks subject matter jurisdiction. The Court does not
sustain the City's demurrer on these grounds, but, as explained below,findsthat the
Amended Petition fails to state facts constituting a cause of action against the City.
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The Amended Petition seeks to compel the City and/or RPI to take action in connection
with the Property that has been taken into tmst by the BIA for the benefit ofthe Tribe.
First, the Court declines to sustain the City's demurrer or dismiss the Amended Petition
pursuant to Code of Civil Procedure section 389(b), as urged by the City. Although the
Tribe is a necessaty party, tiie City has not shown that the Tribe is an indispensable party
pursuant to Code of Civil Procedure section 389(b).
Second, the parties have not established that the Court lacks subject matter jurisdiction at
this time. Once the Property is taken mto trust for the benefit of the Tribe, this Court will
lack jurisdiction to hear this matter. (Boisclair v. Superior Court (1990) 51 Cal.3d 1140,
1153-1154 [noting that 28 U.S.C, § 1360 "denpes] to statestiieability to botii legislate
concerning Indian property, and to adjudicate disputes mvolving that property."].)
Decisions made by the Secretaty of Interior and the Assistant Secretaty for Indian Affairs
on tribal applications to take land into trust are final administrative decisions, (25 C.F.R,,
§ 151.12 (c).) However, in other cases, the admiiustrative decision to take land into trust
is subject to appeal before the Bureau of Indian Affafrs or other agency official,
dependuig on the identity of the decision-maker. (25 C.F.R. 125.12.) A decision made
by any other BIA official "pursuant to delegated authority is not a fmal agency action of
the Department...until administrative remedies are exhausted... or until the time for filing
a notice of appeal has expfred and no administtative appeal has been filed." (25 C.F.R.
§ 151.12(d).)
In this case, the determination to take land into trust was not made by the Secretary of
Interior and the Assistant Secretaty for Indian Affairs. Rather, it is undisputed that BIA
Principal Deputy Assistant Secretaty Lany Roberts made the determination to take the
Property into tmst Petitioners have appealed that administrative decision.
The parties have declined to advise the Court as to the outcome of this administiative
appeal, or any other pertinent developments since the Court took the matter under
submission. In the absence of any appraisal from the parties on tiiis issue or other
developments, the Court does not reach the conclusion whether the adminisfrative
decision is final, and whether the Court now lacks subject matter jurisdiction, or whether
die matter is moot
Accordingly, the Court does not sustain the City's demurrer to the Amended Petition on
the ground that the Court lacks subject matter jurisdiction, and the Court does not dismiss
the Amended Petition on the grounds of mootaess. (See Crangle v. City Council of
Crescent City (1933) 219 Cal. 239,241-242.)
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v. The Amended Petition Fails to State Facts Constituting a
Cause of Action
The City altematively demurs to each cause of action in the Petition. As set forth below,
each of the causes of action in the Amended Petition fail to state facts constimting a cause
of action against tiie City. (Code Civ. Proc, § 430.10(e).)
1. First Cause Of Action
The first cause of action alleges that the City "breached" its zoning ordinance by not
rezoning the Property to permit a planned casino/hotel. This cause of action seeks a writ
of mandate compelling the City to "comply" with its zoning ordinance and planning
documents.
A petitioner may seek a writ of mandate to compel a public agency to perform acts
required by law. (Santa Clara County Counsel Attys Assn. v. Woodside (1994) 7 Cal.4*
525, 539.) 'The two requirements for mandamus thus are (1) a clear, present and usually
ministerial duty on flie part of the respondent, and (2) a clear, present and beneficial right
in the petitioner to performance of that duty." (Keyes v. Bowen, supra, 189 Cal.App.4*
at p. 657 [citation omitted].) In mandate actions the petitioner bears the burden of
pleading and proving the facts on which the claim for relief is based. (Cal. Corr. Peace
Officers Assoc v. State Pers Bd (1995) 10 Cal.4* 1133,1153-54.)
In this case. Petitioners have not alleged the existence of a duty on the part of the City.
Although Petitioners cite to Govemment Code 65860 and other legal provisions.
Petitioners do not describe howtiieselaws nonetheless impose a duty upon the City to
"comply" with its zoning ordinance, or take any other action, once the BIA has taken the
Property into tiust
Upon the BIA's trust decision becoming final, tiie City will lack authority to regulate tiie
Property. Federal law prohibits the City from applying local land use regulation to
property held m trust for tiie benefit of an Indian tribe. (25 C.F.R, § 1.4; UnitedStates v.
County of Humboldt (1980) 615 F.2d 12 60, \2(>\;Santa Rosa Band ofIndians v. Kings
County (9* Cfr. 1975) 532 F.2d 655, 688.) Thus, upon tiie Property being takrai into
tiust for die benefit oftiieTribe,tiieCity vnll lack the autiiority to apply its regulations to
the Property.
Petitioners are simply unable to allege any mandatoty duty on the part of the City.
Accordingly, they have not stated a cause of action for mandate relief.
Additionally, Petitioners have not suggested how they can amend the Amended Petition
in this regard, to allege that a mandatoty duty exists, and notably, they have failed to
advise the Court as to pertinent proceedings regarding the BIA's decision to take the
Property into trast. Petitioners bear the burden of demonstrating ui what manner they can
amend the Amended Petition, and how that amendment will change the legal effect of the
Amended Petition. (Goodman v. Kennedy (1976) 18 Cal.3d 335,349; see also Heritage
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Pacific Financial, LLCv Monroy (2013) 215 Cal.App.4* 972, 994.) They have not done
so.
Thus, the first cause of action fails to state facts constimting a cause of action against the
City, and there is no reasonable possibility that Petitioners can amend the Amended
Petition to cure this defect.
2. Second Cause of Action
The second cause of action alleges that the City "breached" the 2014 DDA in numerous
ways to permit the Property's change m use to a hotel/casmo, including by failing to hold
hearings to determine the viability of the Property's use as a hotel/casino, and "releasing"
the recording of the MMRP on the Property. The second cause of action seeks an order
"compelling" tiie City and/or RPI to comply with tiie 2014 DDA
Petitioners have again failed to identity a duty on the part of the City. The Property has
been taken into trust for the benefit of the Tribe. Petitioners do not argue, and there are
no provisions in the 2014 DDA that identify what duty, if any, by the City exists under
these cfrcumstances.
Petitioners also do not indicate that they can amend the Amended Petition to state a claim
for mandate against the City for "breach" of the 2014 DDA, or any other claim Notably,
Petitioners do not seek any damages for the purported "breach" or suggest that Petitioners
intended to state any other claim against the City. Again, Petitioners bear the burden of
demonstrating m what manner they can amend the Amended Petition, and how that
amendment will change the legal effect of the Amended Petition. (Goodman v. Kennedy,
supra, 18 Cal.3d at p. 349.) They have not done so.
Thus, the second cause of action fails to state facts constimting a cause of action against
tiie City.
3. Third Cause of Action
The thfrd cause of action seeks to compel the City to reinstate the MMRP that was
recorded against the property. The Amended Petition alleges that one month before the
BIA's determination to take the Property into trust, the City "removed" the MMRP,
which was required by the EIR, lhat the City previously recorded against the Property.
Petitioners have stated no violation of CEQA and no existence of any duty here.
Public Resources Code section 208016 govems the MMRP required for a CEQA project.
It provides in pertinent part:
"The public agency shall adopt a reporting or monitoring program for the
changes made to the project or conditions of project approval, adopted in
order to mitigate or avoid significant effects on the environment. The
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reporting or monitoring program shall be designed to ensure compliance
during project implementation." (Public Res. Code, § 21081.6 (a)(1).)
Although CEQA requfres a pubhc agency to adopt mitigation measures and a reporting
program for the changes made by a project, it does not requfre a public agency to record
such program against the affected property. Indeed, as many CEQA projects involve
actions other than those that affect a specific parcel of property, a public agency could not
comply with such a requirement. Accordingly, no duty upon the City exists in this
regard.
Additionally, the City has not "deleted" die MMRP. Rather, the City recorded a notice
against the Property indicatmg that (1) the City will conditionally release the MMRP
recorded against the Property, if the BIA takes the Property into trust, but (2) the release
will not be effective if the Property is not taken into trust. (Amended Petition, Exh. C.)
Petitioners have failed to allege any CEQA violation or other duty, and there is no
reasonable possibility that this defect can be cured.
Thus, the third cause of action fails to state facts constimting a cause of action against the
City.
The City also demurs the thfrd cause of action because (1) Petitioners filed the initial
petition more than 35 days after the City filed its Notice of Exemption (NOE) for the
Resolution approving the Memorandum of Understanding between the City and Tribe
(MOU) for mitigation payments, and (2) Petitioners failed to request a hearing on the
action wiflun 90 days of filing the Amended Petition, pursuant to Public Resources Code
section 21167.4(a).)
As to the City's ffrst argument, the City has not stated a basis for demurrer of the
Amended Petition. The thfrd cause of action challenges the City's recording of the
Notice, not the MOU with the Tribe.
As to the City's second argument. Public Resources Code section 21167.4(a) provides
that "[i]n any action or proceeding alleging noncompliance with this division, the
petitioner shall request a hearing withui 90 daysfromthe date of fding the petition or
shall be subject to dismissal on the court's own motion or on the motion of any party
interested in the action or proceeding."
Petitioners argue that this statute does not apply here, as they have filed an amended
petition pursuant to Code of Civil Procedure section 472, as a matter ofright,and have
requested a hearing within 90 days of the Amended Petition's filmg.
Here, the City moves to dismiss the third "CEQA" case of action only, rather than the
entfre Amended Petition. (See Memorandum of Points and Authorities in Support of
City's Demurrer, 21:14-15.) The City has cited no authority that mandates the dismissal
Page-9-of 12
of the entire Amended Petition in a case such as this, where a CEQA violation is only one
of the many causes of action pleaded.
Because the Court (I) sustains the City's and RPI's demurrers to the Amended Petition
without leave to amend, as the Amended Petition fails to state facts constituting a cause
of action, and (2) in particular, finds that the thfrd "CEQA" cause of action fails to state
facts constituting a cause of action, the Court does not address the City's claim that the
third cause of action should also be dismissed pursuant to Public Resources Code section
21167.4(a).)
4. Fourth Cause of Action
The fourth cause of action alleges that the City evaded holdmg public hearings regarding
the actual proposed use and design changes in permissible zoning and avoided providing
the public notice of its intent to permit the land to be used as a casino/hotel. Petitioners
seek a writ of mandate dfrecting the City to "comply" with its zoning ordinance or rezone
the property or take other regulatoty action, or hold hearings.
For the reasons set forth in Section ll(v.)(l), relating to thefirstcause of action.
Petitioners have not and cannot allege a duty of the City here. Thus, the fourth cause of
action fails to state facts constimting a cause of action against the City, and there is no
reasonable possibility that Petitioners can amend this cause of action to cure this defect
5. Fifth Cause of Action
The fifth cause of action desires a judicial determination as to the effectiveness and
validity ofthe City's actions: in failing to comply with the City's zoning ordinance and
plannmg documents, permitting the transfer of the property, removing the MMRP from
the property, and failing to provide Petitioners with adequate notice and opportunity to be
heard on these matters. This cause of action is wholly derivative of the other mandate
claims in the Petition. Thus, the fifth cause of action fails to statefectsconstimting a
cause of action against the City. (Ball v. FleetBoston Financial Corp., (2008) 164
Cal.App.4* 794, 800.)
The Amended Petition fails to plead facts constimting a cause of action against the City,
as to each cause of action. Accordingly, the demurrer to the Amended Petition is
sustained without leave to amend as to the City, as to all causes of action.
i. RPI
RPI joins the City in its demurrer to the Petition, and also demurs on the ground that the
Amended Petition fails to state a cause of action against it.
A writ of mandate lies to compel a public entity to perform a ministerial duly. (Santa
Clara County Counsel Attys. ASSTL V. Woodside, supra, 7 Cal.4* al p. 539.) A writ of
mandate is available to compel private entities to perform ministerial duties in vety
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limited instances, not present here. (See, e.g.. Eight Unnamed Physicians v Medical
Exec .Comm. ofthe Med. Staff of Washington Township Hosp. (2007) 150 Cal.App. 4*
503,510 [challenge to a hospital's refusal to consolidate disciplinary hearings for
individual doctors].) Additionally, RPI no longer owns the property, and can take no
action as to the Property, mooting the claims against it.
Petitioners do not suggest what duty exists to compel the RPI to take any action here
given these facts, beyond the contention that the RPI conspired vwth the City to evade
regulatoty action. Petitioners must do more than state conclusory allegations, but show
that there is a reasonable possibility that the Amended Petition can be amended to state a
claim against RPI, They have not. Additionally, as noted above. Petitioners allege only
writ causes of action against the City and RPI with the exception of the declaratory relief
cause of action; Petitioners do not allege a claim for damages against RPI, Petitioners
have not and cannot state a claim for writ relief. Accordingly, the RPI's demurrer to
the Amended Petition is sustained without leave to amend, in that it fails to state
facts constituting a cause of action.
ii. CCP § 473 Motion
Petitioners, without obtaining permission from the Court, have filed a motion to be
relieved from dismissal of the Amended Petition pursuant to Public Resources Code
section 21167.4. Petitioner moves the Court for relief pursuant to Code of Civil
Procedure section 473(b). Section 473(b) allows a party to seek relief from a mistake
resulting in an adverse proceeding against that party. TTie discretionary provisions of this
statate allow a Court to grant relief to "a party or his or her legal representative from a
judgment, dismissal, order, or other proceeding taken against him or her through his or
her mistake, inadvertence, surprise, or excusable neglect" (Code Civ. Proc, § 473(b).)
The instances in which a court must grant "mandatoty relief under this statute are
limited to circumstances where there has been a defauU, defauh judgment, or dismissal.
(Urban Wildlife Group v. City ofLos Angeles (2017) 10 Cal.App.5*993,1002.)
The Court has not dismissed the Amended Petition based on Public Resources Code
section 21167.4. The Court sustains without leave to amend the City's and RPI's
demurrers to each cause of action in the Amended Petition for failure to state facts
constimting a cause of action, which will result in dismissal of the Amended Petition.
Consequentiy, Petitioner's motion is denied.
HI. DISPOSITION
Petitioners have failed to plead facts stating a cause of action agamst the City or RPI.
The demurrers of the City and RPI are sustained without leave to amend. Petitioners'
motion for relief pursuant to Code of Civil Procedure section 473(b) is denied.
Counsel for the City and RPI are directed to each prepare: (1) a formal order sustaining
the demurrer without leave to amend and dismissmg the action, incorporating the Court's
raling as an exhibit; and (2) a separate judgment of dismissal, also incorporating the
e-11 - of 12
Court'sralingas an exhibit. Counsel for the City and RPI shall submit the orders and
judgments to opposing counsel for approval as to form, and thereafter submit them to the
Court for signature and entty of judgment, in accordance vnth California Rules of Court,
Rule 3.1312.
Date: August 1,2017
Shelleyanne'
Judge of the $up%rrof 'alifomia
County of Sacramento
Page-12-of 12
Declaration of Mailing
I hereby certify that I am not a party to the within action and that I deposited a copy of
this document in sealed envelopes withfirstclass postage prepaid, addressed to each
party or the attomey of record m the U.S. Mail at 720 Ninth Stieet, Sacramento,
California.
Dated: August 1,2017
Preview
Scott M. Pearson (SBN 173880) pearsons@ballardspahr.com Taylor Steinbacher (SBN 285335) steinbachert@ballardspahr.com By E. Higgrnbotham. Deputy Clerk BALLARD S P A H R LLP 3 2029 Centifry Park East, Suite 800 4 Los Angeles, CA 90067-2909 Telephone: 424.204.4400 5 Facsimile: 424.204.4350 6 Attomeys for Defendants and Real Parties in Interest 7 ELK GROVE TOWN CENTER, LP AND THE HOWARD HUGHES CORPORATION 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SACRAMENTO 11 PATTY JOHNSON; JOE TEIXEIRA; OMAR Case No. 34-2016-80002493 AHMED, JR.; XDi GUO; and CAROLYN 12 SOARES, »] ORDER SUSTAINING WITHOUT LEAVE TO AMEND 13 Petitioners and DEMtnRipR OF^ELK GROVE TOWN Plaintiff, GENITER, L S AND THE^ TO 14 HUGHES GdREORATlbN TO V. VERIFIED AMENDED re FOR 15 WRIT OFVMANDATE AND CITY OF ELK GROVE, COMPLAINT iFORDEGLARAT^^ 16 RELIEF Respondent ahd 17 Defendant Judge: Hon. Shellyanne W.L: Chang Date:: June 23,2017 18 Tune: 10:00 a.m. ELK GROVE TOWN CENTER, LP; THE Dept: Department 24 19 HOWARD HUGHES CORPORATION; and DOES 1-20, Action Filed: November 23,2016 20 Real Parties ih Interest and 21 Defendants. 22 23 24 25 26 27 28 DMWEST#168S477SV3 [PROPOSED] ORDER SUSTAINING Wrrnour LEAVE TO AMEND REAL PARTIES IN INTEREST Ara>'l>iEFENDANTS^PEMUR^^ VilUnEI) AMET^ PETrnoN rdiRi WRinf OF MANDA-TE AND COMPLUNT FOR DEiaJutA-foRY RELIEF Real Parties ui Interest and Defendants Elk Grove Town Center, LP and The Howard Hughes Corporation's (together "EGTC") Demurrer to Petitioner and Plaintiffs' Verified 3 Amended Petition for Writ of Mandate and Complaint for Declaratory Relief came on for hearing 4 before this Court on June 23, 2017 at 10:00 a.m. in Department 24. The parties having been heard 5 and the matter having been submitted, 6 IT IS HEREBY ORDEREDtiiatEGTC's Demurrer is sustained mthout leave to amend 7 and Petitioners and Plaintiff' Verified Amended Petition for Writ of Mandate and Complaint for 8 Declaratory Relief is dismissed with prejudice and Petitioners' motion for relief pursuant to 9 Code of Civil Procedure section 473(b) is denied. Attached hereto and incorporated herein as 10 Exhibit A is a trae and conrect copy of the Court's nding. 11 12 DATED; 2017 13 Judge ofthe I 14 SHELLEYANNE W.L. CHANG 15 16 17 APPROVED AS TO FORM: 18 DATED: 2017 Brigit S. Barnes & Associates, 19 20 21 22 Attomeys forretitioners and Plaintiffs 23 PATTY JOHNSON; JOE TEIXEIRA; OMAR AHMED, JR; XIN GUO and 24 CAROLYN SOARES 25 26 27 28 DMWEST #16854775 v3 [PROPOSED] ORDER SUSTAINING Wrruour LEAVE TO AMEND REAL PARUES IN INTEREST AND DEFENDANTS' DEMURRER TO PErmoNERS AND PLAINTIFFS' VERIHED AMENDED PETmoN FOR WIUT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF EXHIBIT A SUPERIOR COURT OF CAUFORNIA COUNTY OF SACRAMENTO DATE: August 1,2017 DEPT, NO. 24 JUDGE: HON. SHELLEYANNE W, L. CHANG CLERK: E. HIGGINBOTHAM PATTY JOHNSON; JOE TEDOERA; OMAR Case No.: 34-2016-80002493 AHMED JR.; XIN GUO; and CAROLYN SOASES, Petitioners and Plaintiffs, v. CITY OF ELK GROVE, Respondent and Defendant ELK GROVE TOWN CENTER, LP; HOWARD HUGHES CORPORATION; and DOES 1-20, inclusive, Real Parties in Interest. Nature of Proceedings: RULING ON SUBMnTED MATTER AND ORDER: DEMURRERS TO AMENDED PETITION FOR WRTT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF; MOTION FOR RELIEF FROM DISMISSAL The Court issued a tentative rulmg on June 22, 2017, in which it sustained without leave to amend the demurrers of Respondent and Real Party in Interest, and denied Petitioners' motion for relieffiromdismissal pmsuant to Code of Civil Procedure section 473. The parties appeared for oral argument on June 23,2017, and were represented by counsel as stated on the record. After taking the matter under submission, the Court affirms its tentative mling. I. BACKGROUND This case concems land (Property) within the City of Elk Grove (City) that was once proposed for development as a shopping mall. The United States Department of Interior, Bureau of Indian Affairs (BIA) has taken the Property into trust for the benefit of the Wilton Rancheria Tribe (Tribe). The Property is now proposed to be used for a hotel and casino. The Property is part of (approximately one-third) of the Lent Ranch Marketplace Special Planning Area ("Lent Ranch SPA"). (Amended Petition (AP), ^13.) hi 2001,tiieCity approved the Lent Ranch SPA and a Development Agreement and certified an Page -1 - of 12 Envkonmental Impact Report ("EIR") therefor, pursuant to the Califomia Environmental Quality Act ("CEQA") (Pub. Resources Code, § 21000 etseq.) (Ibid.) The Lent Ranch SPA was planned as a "traditional" retail shopping center, but mcluded residential, commercial, and retail uses. (AP, TI13.) The EIR identified envkonmental impacts of the proposed uses of the Property as a shopping center and proposed mitigation measures to address those impacts. (Id. at ^14.) The proposed shopping center was never built After receiving federal status as a recognized Indiantiibe(Amended Petition, ^21), the Tribe entered into an agreement with Boyd Gaming to develop a casino/hotel. (Id., 124.) The Tribe then ^plied to the Department of Interior, Bureau of Indian Affaks (BIA) to take land into trust (Id., 111[25, 27.) The Tribe also initiated environmental review pursuant to the federal National Envkonmental Policy Act (NEPA), (42 U.S.C. §§4321, et seq.) for the tmst decision and development of land as a casino/hotel. (Id., \25.) The initial environmental review process identified an altemative site in Gait (the "Twin Cities site") and not the Property, as the preferred site for the casino/hotel. (Id., ^26.) In April 2014, Real Party in Interest Elk Grove Town Center and then-owner of the Property (RPI) applied to the City to request an amendment to the Lent Ranch SPA to convert Zone A of the Lent Ranch SPAfi-omtiaditionalretail mall to an "outiet mall concept," referred to as the Outiet Collection at Elk Grove. (Amended Petition, ^[34.) The City took steps tofiirtherthis concept, but an outlet mall was never built on tiie Property. Pertinent here, in October 2014, the City approved a Development Agreement with RPI for the Outiet Collection at Elk Grove ("2014 DDA"). (Amended Petition, ^ 8 , Petition, Exh. A.) In May 2016, RPI entered into an option agreement with Boyd Gaming, Inc. and the Tribe to sell part of tiie land (tiie Property) in tiie Lent Ranch SPA. (AP, ^51.) Boyd Gaming, Inc. and the Tribe sought to acquire the Property for the possible development of a casino/hotel/entertainment facility. (See Id., 1(53.) On June 9,2016, the Tribe announced that the Property, and not the "Twin Cities site" was the preferred location for a casino/hotel. (AP, \SZ.) On September 28,2016, tiie City approved Resolution No. 2016-183, approving a Memorandum of Understanding between the Tribe and the City ("MOU"). (AP *|I59.) Under the MOU, the Tribe would make payments to the City to mitigate the expected impacts of a potential casino/hotel/entertainment facility on the Property. (Id.; see also City's Request for Judicial Notice in Support of Demurrer, Exh. 2.) On September 29, 2016, tiie City filed a Notice of Exemption ("NOE")tiiattiieCity's approval oftiie MOU was exempt from CEQA. (City's Request for Judicial Notice in Support of Demurrer, Exh. 2.) Page-2-of 12 On October 26,2016, tiie City adopted Ordinance 23-2016 (Ordmance), allowing it to amend the 2014 DDA to release the 2014 DDA as an encumbrance on the Property. (Amended Petition, 162.) This was to allow the BIA to take the Property into trust for the benefit oftileTribe. (Ibid.) The City recorded the amendment to the 2014 DDA on November 9, 2016. (Id., T[ 63.) The City later repealed tiiis ordmance (Id. ^79.) One month later, on November 21,2016, a referendum petition was filed, challenging the City's Ordmance to amend the 2014 DDA. (Amended Petition, %65.) On November 23,2016, this Petition was filed. The Petition uiitially alleged tiiat the City violated CEQA, the Govemment Code, and the Califomia Constimtion by approving the Ordinance and prematurely recording the 2014 DDA Amendment. On December 22,2016, Petitioners unsuccessfiiUy sought an ex parte application requiring the City to acknowledge the ineffectiveness of the Ordinance approving the amendment to the 2014 DDA, and act to expunge the Amendment and not represent to anyone that titie to the Property is &ee of encumbrances created by the 2014 DDA. The Amended Petition alleges that the City and RPI took other actions with regard to the Property. For example. Petitioners allege that on December 23,2016, RPI recorded a series of lot line adjustments for the Property. (Amended Petition, ^[68.) For example, on January 9,2017, the City recorded a Notice of Release of Recorded Notice of Conditional Partial Release of Recorded Mitigation Monitoring Recording Program from the Property's titie (Notice). (Amended Petition, ^69.) The Notice stated that it was effective if and when the Property was taken into trust for the Tribe by the United States. (See Petition, Exh. C, Notice of Conditional Partial Release of Recorded Mitigation Monitoring and Reporting Program for Lent Ranch Marketplace.) On January 11,2017, the City Clerk certified the referendum to repeal the Ordinance releasing tiie 2014 DDA from the Property. (Id., ^[73). Accordingly, the effective date of the Ordinance was suspended, effectively rescinding the amendment to the 2014 DDA. (Elections Code, § 9237.) On January 19,'2017, RPI recorded conveyance of the Property to Boyd Gaming and tiie Tribe. (Amended Petition, ^75.) Also tiiat same day, on Januaty 19,2017, the BIA issued a Record of Decision (ROD) approving the taking of the Property into trust for the benefit of the Tribe. (Amended Petition, 1174,) The parties assert in their briefs and do not dispute that this determmation was made by Principal Deputy Assistant Secretary—^Indian Affairs of the Department of Interior, BIA, Lany Roberts. (See, Ibid,) On Februaty 10,2017, tiie BLA accepted tiie conveyance of the Property from Boyd Gaming and the Wilton Rancheria, placing the property mto Trust. (Id. ^77.) Page-3-of 12 On Febmaty 21,2017, Petitioners Stand up for California!, Patty Johnson, Joe Teixeira, and others filed an administrative appeal of the BIA's determination with the Interior Board of Indian Appeals. (Amended Petition, 1178.) On February 22,2017, the City repealed the Ordinance allowmg the Amendment to the 2014 DDA. (Amended Petition, 1f79.) On March 13,2017, Petitioners fded a "Verified Amended Petition for Writ of Mandate and Complaint for Declaratoty Relief (Amended Petition) at issue here. The Amended Petition no longer challenges the City's actions to remove the 2014 DDA from the Property. Additionally, tiie Amended Petition removes petitioner Stand Up Califomia! and adds other petitioners. Now, the Amended Petition (1) seeks a writ of mandate directing the City or RPI to "comply" vnth the City's zoning ordinance, as the Property's proposed use as a hotel/casino is inconsistent with the Lent Ranch SPA (2) alleges that the City/RPI "breached" the 2014 DDA by representmg that the Property's prospective use as a hotel/casino was not known, (3) seeks a writ of mandate compelling the City to "reinstate" the MMRP that was recorded on the Property, or hold a public hearing explaining why compliance with the MMRP is unnecessaty, (4) alleges that the City "breached" Govemment Code hearing and notice provisions and due processrightsby not holding public hearings before the property could be taken into tmst, and (5) seeks a judicial determination as to the effectiveness ofthe City's actions. The Amended Petition seeks a Court order directing the City and RPI to "comply" with the 2014 SPA, the MMRP, 2014 DDA, hold public hearings regarding the change in land use on tiie Property, and conduct additional environmental review. On June 20,2017, shortiy before the hearing for these matters. Petitionersfiledanother case in this court, Case No. 34-2017-80002618. This case is premised on the same general facts here, but seeks mandate relief based on the City's alleged violation ofthe PubUc Records Act (Gov. Code, §§ 6250, et seq.) and Brown Act (Gov. Code, §§ 54950, et seq.) H. DISCUSSION TTie rules goveming civil actions are generally applicable to writs. (Code Civ. Proc, § 1109; Rodriguez v. Municipal Court (1972) 25 Cal.App.3d 521, 526.) fri reviewing a demurrer, the Court must accept all material facts properiy pled in the pleading as tme. (Burtv County of Orange (2004) 120 Cal.App.4* 273,279.) However, a demurrer does not admit contentions, deductiians, or conclusions of fact or law alleged in the complamt; facts impossible in law, or allegations contraty to facts of which a court may take judicial notice. (Blankv: Kirwan (1985) 39 Cal.3d 311,318; Martinez v. Socoma Companies, Inc. (1974) 11 Cal.3d 394. 399.) A demurrer may be sustained without leave to amend when the facts are not in dispute and the nature of the piaintifPs claim is clear, but under substantive law, no liability Page-4-of 12 exists. (Keyes v. Bowen (2010) 189 Cal.App.4* 647,655.) A demurrer is properly sustained without leave to amend when there is no reasonable possibility that die defects in the complaint may be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Alliance for the Protec. ofthe Auburn Cmty. Envt v. County ofPlacer (2013) 215 Cal.App.4* 25,29.) The burden of proving such reasonable possibility of amendment rests with the plaintiff. ((Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) The City and RPI demur to the entire Petition, and to the separate causes of action thereui. The Court addresses each. i. Request for Judicial Notice The Court grants the City's xmopposed request for judicial notice in support ofthe demiurer, and grants Petitioner's unopposed request for judicial notice in opposition to the demurrer. ii. Objection to Declaration of Odin Smith The City's objection to Petitioner's declaration of Odin Smith (Declaration) is sustained. The Declaration states that it is "[e]xecuted within the United States this 15* of May, 2017." However, it does not contain a statement that the declarant certifies under penalty of perjury under the laws of the State of Califomia that the foregoing material in the Declaration istiueand correct, as required by Code of Civil Procedure section 2015.5, Accordingly, the City's objection to the Declaration is sustained. iii. Amended Petition As a preliminaty matter, the Court addresses the City's and RPI's arguments that Petitioners improperly filed a supplemental petition without leave of Court, rather than an amended petition. Supplemental petitions intioduce new causes of action in response to new facts occurring after the petition was filed, and requfre the party to obtaui leave of Court before filing. (Code Civ. Proc, § 464.) In contrast. Code of Civil Procedure section 472 permits a party to amend its pleading once without leave of the Court at any time before the answer or demurrer is filed. This is what Petitioners did here. Althou^ the Amended Petition asserts new causes of action in response to changed facts, like a supplemental petition. Petitioners were not reqiured to obtain leave of Court before filing it, as the Amended Petition was filed before the demurrers were filed. iv. The City's Demurrer The City demurs to the entire Amended Petition on the ground that it fails as a matter of law because the Tribe is immune from suit, is a necessaty and indispensable party that cannot be joined, and that the Court lacks subject matter jurisdiction. The Court does not sustain the City's demurrer on these grounds, but, as explained below,findsthat the Amended Petition fails to state facts constituting a cause of action against the City. Page-5-of 12 The Amended Petition seeks to compel the City and/or RPI to take action in connection with the Property that has been taken into tmst by the BIA for the benefit ofthe Tribe. First, the Court declines to sustain the City's demurrer or dismiss the Amended Petition pursuant to Code of Civil Procedure section 389(b), as urged by the City. Although the Tribe is a necessaty party, tiie City has not shown that the Tribe is an indispensable party pursuant to Code of Civil Procedure section 389(b). Second, the parties have not established that the Court lacks subject matter jurisdiction at this time. Once the Property is taken mto trust for the benefit of the Tribe, this Court will lack jurisdiction to hear this matter. (Boisclair v. Superior Court (1990) 51 Cal.3d 1140, 1153-1154 [noting that 28 U.S.C, § 1360 "denpes] to statestiieability to botii legislate concerning Indian property, and to adjudicate disputes mvolving that property."].) Decisions made by the Secretaty of Interior and the Assistant Secretaty for Indian Affairs on tribal applications to take land into trust are final administrative decisions, (25 C.F.R,, § 151.12 (c).) However, in other cases, the admiiustrative decision to take land into trust is subject to appeal before the Bureau of Indian Affafrs or other agency official, dependuig on the identity of the decision-maker. (25 C.F.R. 125.12.) A decision made by any other BIA official "pursuant to delegated authority is not a fmal agency action of the Department...until administrative remedies are exhausted... or until the time for filing a notice of appeal has expfred and no administtative appeal has been filed." (25 C.F.R. § 151.12(d).) In this case, the determination to take land into trust was not made by the Secretary of Interior and the Assistant Secretaty for Indian Affairs. Rather, it is undisputed that BIA Principal Deputy Assistant Secretaty Lany Roberts made the determination to take the Property into tmst Petitioners have appealed that administrative decision. The parties have declined to advise the Court as to the outcome of this administiative appeal, or any other pertinent developments since the Court took the matter under submission. In the absence of any appraisal from the parties on tiiis issue or other developments, the Court does not reach the conclusion whether the adminisfrative decision is final, and whether the Court now lacks subject matter jurisdiction, or whether die matter is moot Accordingly, the Court does not sustain the City's demurrer to the Amended Petition on the ground that the Court lacks subject matter jurisdiction, and the Court does not dismiss the Amended Petition on the grounds of mootaess. (See Crangle v. City Council of Crescent City (1933) 219 Cal. 239,241-242.) Page-6-of 12 v. The Amended Petition Fails to State Facts Constituting a Cause of Action The City altematively demurs to each cause of action in the Petition. As set forth below, each of the causes of action in the Amended Petition fail to state facts constimting a cause of action against tiie City. (Code Civ. Proc, § 430.10(e).) 1. First Cause Of Action The first cause of action alleges that the City "breached" its zoning ordinance by not rezoning the Property to permit a planned casino/hotel. This cause of action seeks a writ of mandate compelling the City to "comply" with its zoning ordinance and planning documents. A petitioner may seek a writ of mandate to compel a public agency to perform acts required by law. (Santa Clara County Counsel Attys Assn. v. Woodside (1994) 7 Cal.4* 525, 539.) 'The two requirements for mandamus thus are (1) a clear, present and usually ministerial duty on flie part of the respondent, and (2) a clear, present and beneficial right in the petitioner to performance of that duty." (Keyes v. Bowen, supra, 189 Cal.App.4* at p. 657 [citation omitted].) In mandate actions the petitioner bears the burden of pleading and proving the facts on which the claim for relief is based. (Cal. Corr. Peace Officers Assoc v. State Pers Bd (1995) 10 Cal.4* 1133,1153-54.) In this case. Petitioners have not alleged the existence of a duty on the part of the City. Although Petitioners cite to Govemment Code 65860 and other legal provisions. Petitioners do not describe howtiieselaws nonetheless impose a duty upon the City to "comply" with its zoning ordinance, or take any other action, once the BIA has taken the Property into tiust Upon the BIA's trust decision becoming final, tiie City will lack authority to regulate tiie Property. Federal law prohibits the City from applying local land use regulation to property held m trust for tiie benefit of an Indian tribe. (25 C.F.R, § 1.4; UnitedStates v. County of Humboldt (1980) 615 F.2d 12 60, \2(>\;Santa Rosa Band ofIndians v. Kings County (9* Cfr. 1975) 532 F.2d 655, 688.) Thus, upon tiie Property being takrai into tiust for die benefit oftiieTribe,tiieCity vnll lack the autiiority to apply its regulations to the Property. Petitioners are simply unable to allege any mandatoty duty on the part of the City. Accordingly, they have not stated a cause of action for mandate relief. Additionally, Petitioners have not suggested how they can amend the Amended Petition in this regard, to allege that a mandatoty duty exists, and notably, they have failed to advise the Court as to pertinent proceedings regarding the BIA's decision to take the Property into trast. Petitioners bear the burden of demonstrating ui what manner they can amend the Amended Petition, and how that amendment will change the legal effect of the Amended Petition. (Goodman v. Kennedy (1976) 18 Cal.3d 335,349; see also Heritage Page-7-of 12 Pacific Financial, LLCv Monroy (2013) 215 Cal.App.4* 972, 994.) They have not done so. Thus, the first cause of action fails to state facts constimting a cause of action against the City, and there is no reasonable possibility that Petitioners can amend the Amended Petition to cure this defect. 2. Second Cause of Action The second cause of action alleges that the City "breached" the 2014 DDA in numerous ways to permit the Property's change m use to a hotel/casmo, including by failing to hold hearings to determine the viability of the Property's use as a hotel/casino, and "releasing" the recording of the MMRP on the Property. The second cause of action seeks an order "compelling" tiie City and/or RPI to comply with tiie 2014 DDA Petitioners have again failed to identity a duty on the part of the City. The Property has been taken into trust for the benefit of the Tribe. Petitioners do not argue, and there are no provisions in the 2014 DDA that identify what duty, if any, by the City exists under these cfrcumstances. Petitioners also do not indicate that they can amend the Amended Petition to state a claim for mandate against the City for "breach" of the 2014 DDA, or any other claim Notably, Petitioners do not seek any damages for the purported "breach" or suggest that Petitioners intended to state any other claim against the City. Again, Petitioners bear the burden of demonstrating m what manner they can amend the Amended Petition, and how that amendment will change the legal effect of the Amended Petition. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 349.) They have not done so. Thus, the second cause of action fails to state facts constimting a cause of action against tiie City. 3. Third Cause of Action The thfrd cause of action seeks to compel the City to reinstate the MMRP that was recorded against the property. The Amended Petition alleges that one month before the BIA's determination to take the Property into trust, the City "removed" the MMRP, which was required by the EIR, lhat the City previously recorded against the Property. Petitioners have stated no violation of CEQA and no existence of any duty here. Public Resources Code section 208016 govems the MMRP required for a CEQA project. It provides in pertinent part: "The public agency shall adopt a reporting or monitoring program for the changes made to the project or conditions of project approval, adopted in order to mitigate or avoid significant effects on the environment. The Page-8-of 12 reporting or monitoring program shall be designed to ensure compliance during project implementation." (Public Res. Code, § 21081.6 (a)(1).) Although CEQA requfres a pubhc agency to adopt mitigation measures and a reporting program for the changes made by a project, it does not requfre a public agency to record such program against the affected property. Indeed, as many CEQA projects involve actions other than those that affect a specific parcel of property, a public agency could not comply with such a requirement. Accordingly, no duty upon the City exists in this regard. Additionally, the City has not "deleted" die MMRP. Rather, the City recorded a notice against the Property indicatmg that (1) the City will conditionally release the MMRP recorded against the Property, if the BIA takes the Property into trust, but (2) the release will not be effective if the Property is not taken into trust. (Amended Petition, Exh. C.) Petitioners have failed to allege any CEQA violation or other duty, and there is no reasonable possibility that this defect can be cured. Thus, the third cause of action fails to state facts constimting a cause of action against the City. The City also demurs the thfrd cause of action because (1) Petitioners filed the initial petition more than 35 days after the City filed its Notice of Exemption (NOE) for the Resolution approving the Memorandum of Understanding between the City and Tribe (MOU) for mitigation payments, and (2) Petitioners failed to request a hearing on the action wiflun 90 days of filing the Amended Petition, pursuant to Public Resources Code section 21167.4(a).) As to the City's ffrst argument, the City has not stated a basis for demurrer of the Amended Petition. The thfrd cause of action challenges the City's recording of the Notice, not the MOU with the Tribe. As to the City's second argument. Public Resources Code section 21167.4(a) provides that "[i]n any action or proceeding alleging noncompliance with this division, the petitioner shall request a hearing withui 90 daysfromthe date of fding the petition or shall be subject to dismissal on the court's own motion or on the motion of any party interested in the action or proceeding." Petitioners argue that this statute does not apply here, as they have filed an amended petition pursuant to Code of Civil Procedure section 472, as a matter ofright,and have requested a hearing within 90 days of the Amended Petition's filmg. Here, the City moves to dismiss the third "CEQA" case of action only, rather than the entfre Amended Petition. (See Memorandum of Points and Authorities in Support of City's Demurrer, 21:14-15.) The City has cited no authority that mandates the dismissal Page-9-of 12 of the entire Amended Petition in a case such as this, where a CEQA violation is only one of the many causes of action pleaded. Because the Court (I) sustains the City's and RPI's demurrers to the Amended Petition without leave to amend, as the Amended Petition fails to state facts constituting a cause of action, and (2) in particular, finds that the thfrd "CEQA" cause of action fails to state facts constituting a cause of action, the Court does not address the City's claim that the third cause of action should also be dismissed pursuant to Public Resources Code section 21167.4(a).) 4. Fourth Cause of Action The fourth cause of action alleges that the City evaded holdmg public hearings regarding the actual proposed use and design changes in permissible zoning and avoided providing the public notice of its intent to permit the land to be used as a casino/hotel. Petitioners seek a writ of mandate dfrecting the City to "comply" with its zoning ordinance or rezone the property or take other regulatoty action, or hold hearings. For the reasons set forth in Section ll(v.)(l), relating to thefirstcause of action. Petitioners have not and cannot allege a duty of the City here. Thus, the fourth cause of action fails to state facts constimting a cause of action against the City, and there is no reasonable possibility that Petitioners can amend this cause of action to cure this defect 5. Fifth Cause of Action The fifth cause of action desires a judicial determination as to the effectiveness and validity ofthe City's actions: in failing to comply with the City's zoning ordinance and plannmg documents, permitting the transfer of the property, removing the MMRP from the property, and failing to provide Petitioners with adequate notice and opportunity to be heard on these matters. This cause of action is wholly derivative of the other mandate claims in the Petition. Thus, the fifth cause of action fails to statefectsconstimting a cause of action against the City. (Ball v. FleetBoston Financial Corp., (2008) 164 Cal.App.4* 794, 800.) The Amended Petition fails to plead facts constimting a cause of action against the City, as to each cause of action. Accordingly, the demurrer to the Amended Petition is sustained without leave to amend as to the City, as to all causes of action. i. RPI RPI joins the City in its demurrer to the Petition, and also demurs on the ground that the Amended Petition fails to state a cause of action against it. A writ of mandate lies to compel a public entity to perform a ministerial duly. (Santa Clara County Counsel Attys. ASSTL V. Woodside, supra, 7 Cal.4* al p. 539.) A writ of mandate is available to compel private entities to perform ministerial duties in vety Page-10-of 12 limited instances, not present here. (See, e.g.. Eight Unnamed Physicians v Medical Exec .Comm. ofthe Med. Staff of Washington Township Hosp. (2007) 150 Cal.App. 4* 503,510 [challenge to a hospital's refusal to consolidate disciplinary hearings for individual doctors].) Additionally, RPI no longer owns the property, and can take no action as to the Property, mooting the claims against it. Petitioners do not suggest what duty exists to compel the RPI to take any action here given these facts, beyond the contention that the RPI conspired vwth the City to evade regulatoty action. Petitioners must do more than state conclusory allegations, but show that there is a reasonable possibility that the Amended Petition can be amended to state a claim against RPI, They have not. Additionally, as noted above. Petitioners allege only writ causes of action against the City and RPI with the exception of the declaratory relief cause of action; Petitioners do not allege a claim for damages against RPI, Petitioners have not and cannot state a claim for writ relief. Accordingly, the RPI's demurrer to the Amended Petition is sustained without leave to amend, in that it fails to state facts constituting a cause of action. ii. CCP § 473 Motion Petitioners, without obtaining permission from the Court, have filed a motion to be relieved from dismissal of the Amended Petition pursuant to Public Resources Code section 21167.4. Petitioner moves the Court for relief pursuant to Code of Civil Procedure section 473(b). Section 473(b) allows a party to seek relief from a mistake resulting in an adverse proceeding against that party. TTie discretionary provisions of this statate allow a Court to grant relief to "a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect" (Code Civ. Proc, § 473(b).) The instances in which a court must grant "mandatoty relief under this statute are limited to circumstances where there has been a defauU, defauh judgment, or dismissal. (Urban Wildlife Group v. City ofLos Angeles (2017) 10 Cal.App.5*993,1002.) The Court has not dismissed the Amended Petition based on Public Resources Code section 21167.4. The Court sustains without leave to amend the City's and RPI's demurrers to each cause of action in the Amended Petition for failure to state facts constimting a cause of action, which will result in dismissal of the Amended Petition. Consequentiy, Petitioner's motion is denied. HI. DISPOSITION Petitioners have failed to plead facts stating a cause of action agamst the City or RPI. The demurrers of the City and RPI are sustained without leave to amend. Petitioners' motion for relief pursuant to Code of Civil Procedure section 473(b) is denied. Counsel for the City and RPI are directed to each prepare: (1) a formal order sustaining the demurrer without leave to amend and dismissmg the action, incorporating the Court's raling as an exhibit; and (2) a separate judgment of dismissal, also incorporating the e-11 - of 12 Court'sralingas an exhibit. Counsel for the City and RPI shall submit the orders and judgments to opposing counsel for approval as to form, and thereafter submit them to the Court for signature and entty of judgment, in accordance vnth California Rules of Court, Rule 3.1312. Date: August 1,2017 Shelleyanne' Judge of the $up%rrof 'alifomia County of Sacramento Page-12-of 12 Declaration of Mailing I hereby certify that I am not a party to the within action and that I deposited a copy of this document in sealed envelopes withfirstclass postage prepaid, addressed to each party or the attomey of record m the U.S. Mail at 720 Ninth Stieet, Sacramento, California. Dated: August 1,2017