Preview
[Exempt From Filing Fee
Government Code § 6103]
1 MONA G. EBRAHIMI, State Bar No. 236550
mebrahimi@kmtg. com
2 LESLIE Z. WALKER, State Bar No. 249310
lwalker(^kmtg.com
3 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
4 400 Capitol Mall, 27* Floor
m t i P DORSE
Sacramento, Califomia 95814
5 Telephone: (916) 321-4500 •^AY ^6 2017
Facsimile: (916) 321-4555
6
JONATHAN P. HOBBS, State Bar No. 186045 Bv E. Fines, Deputy Clerk
7 City Attomey
jhobbs@elkgrovecity. org
8 JENNIFER A. ALVES, State Bar No. 238723
Assistant City Attomey
9 jalves(^elkgrovecity.org
SUZANNE E. KENNEDY, State Bar No. 251339
10 Assistant City Attomey
skennedy(^elkgrovecity. org
11 CITY OF ELK GROVE
Office of the City Attomey
12 8401 Laguna Palms Way
Elk Grove, Califomia 95758
13 Telephone: (916) 683-7111
Facsimile: (916)627-4100
14
Attomeys for Respondent and Defendant
15 CITY OF ELK GROVE
16 SUPERIOR COURT OF THE STATE OF CALIFORNIA
17 COUNTY OF SACRAMENTO
18 STAND UP CALIFORNIA!; PATTY Case No. 34-2016-80002493
JOHNSON; and JOE TEIXEIRA,
19 REPLY TO PETITIONERS AND
, Petitioners and Plaintiffs, PLAINTIFFS' OPPOSITION TO CITY OF
20 E L K GROVE'S DEMURRER TO
PETITIONERS AND PLAINTIFFS'
21 VERIFIED AMENDED PETITION FOR
CITY OF ELK GROVE, WRIT OF MANDATE AND COMPLAINT
22 FOR DECLARATORY R E L I E F
Respondent and Defendant.
23 Judge: Hon. Shelleyanne W. L. Chang
ELK GROVE TOWN CENTER, LP; Date: June 23, 2017
24 HOWARD HUGHES CORPORATION; and Time: 10:00 a.m.
DOES 1-20, Dept.: 24
25
Real Parties in Interest and Petition Filed: November 23,2016
26 Defendants. '
27 III
i28 III
1564347.5 10784-236
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REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND
PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 I. INTRODUCTION
2 The City of Elk Grove ("City") files this Reply to Petitioners and Plaintiffs' Opposition to
•3 the City's Demurrer ("Opposition"). Petitioners' Opposition fails to establish any reason why this
4 case should survive demurrer and improperly asks this Court to decide issues of federal law
5 outside of this Court's jurisdiction, demonstrating that even if the case should be heard, it should
6 be heard in a federal fomm. The Opposition fiirther fails to overcome the principles of sovereign
7 immunity, jurisdiction, laches, and mandatory statutory time frames. For the reasons set forth in
8 the City's Demurrer and this Reply, the City requests this Court to sustain the Demurrer without
I
9 leave to amend and that this case be dismissed.
10 II. L E G A L ARGUMENT
11 A. This case should be dismissed because the Property is held in Federal trust, therefore,
this Court lacks subject matter jurisdiction and the Property is not subject to local
12 land use authority
13 1. Subject Matter Jurisdiction
14 The Property is held by the United States govemment in tmst for the Tribe. (Amended
15 Petition, t t 56, 77; Demurrer, p. 8,11. 12-14, Request for Judicial Notice in Support of Demurrer
16 ("RJN"), Exh. 1.) The grant deed executed on January 17, 2017 grants "to the United States of
17 America in Tiaist for the Wilton Rahcheria" the Property. (RJN, Exh. 1.) The deed was accepted
18 by the Acting Regional Director of the Secretary of the Interior, as the authorized representative.
19 (RJN, Exh. 1.) The Acting Regional Director's acceptance is presumably valid. (Evid. Code,
20 § 664 (official duties are presumed to be regularly performed); Le Baron v. Kern County Farm
21 Labor Union (1948) 80 F.Supp. 151,155 (presumption of regularity attaches to the acts of all
22 officers of the Govemment of the United States).) As a result of this action and principles of tribal
23 sovereign immunity, the Property is not subject to the City's land use regulations and the Court
24 does not have subject matter jurisdiction. {Lawrence v. Barona Valley Ranch Resort & Casino
25 (2007) 153 Cal.App.4th 1364, 1368; see also Demurrer, p. 12,1. 1 through p. 13,1. 20 and p. 15,1.
26 7 through p. 17,1. 8.) ,
27 Petitioners question the validity of the Federal government's action and assert that this
28 Court should adjudicate this case because the Interior Board of Indian Appeals ("IBIA") or the
1564347.5 10784-236 2
REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND
PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 Federal District Court might find that the United States government's acceptance of the land into
2 tmst was unlawfiil. (Opposition, p. 7,11. 11-15; p. 9,11. 13-24.j Petitioners' citation to no less
3 than 29 federal authorities and four pages of argument related to the propriety of the United States
4 government's action, is an improper attempt to bundle the Federal case into this one, and have this
5 Court make federal judicial decisions. (Opposition, pp. 7-10.) I f and when Petitioners receive a
6 determination from the IBIA or the Federal District Court that the Property must fall out of tmst,
7 and ifthe Property reverts to a private party, then, and only then, might the City and ultimately the
8 Court be in a position to consider whether the Property is subject to the 2014 Development
9 Agreement ("2014 DA"), Special Planning Area ("SPA"), and the CEQA Mitigation Monitoring
10 and Reporting Program ("MMRP"). At present, that factual scenario is not before the City or this
11 Court. (Wilson & Wilson v. City Council of Redwood City (20\\) 191 Cal.App.4th 1559, 1573
12 ("courts will not entertain an action which is not founded on an actual controversy").)
13 Petitioners attempt to support their assertion that this Court should adjudicate this case by
14 trying to distihguish Bosclair v. Superior Court of San Diego (1990) 51 Cal.3d 1140 and
15 Ameriloan v. Superior Court (2008) 169 Cal.App.4th 81 cited in the Demurrer in support of the
16 principle of tribal sovereign immunity. Petitioners are wrong. In those cases, the State court
17 retained jurisdiction to adjudicate claims of damages against Indians for action on non-Trust land.
18 First, the issue of whether this Court may adjudicate claims related to non-Tmst land is not before
19 this Court. Second, in Bosclair, the court explicitly found that, unlike the case before this Court,
20 the determination of whether the Indian defendant acted tortuously "does not require a
21 determination of Indian property rights." (Bosclair y. Superior Court of San Diego (1990)
22 51 Cal.3d 1140, 1157.) In other words, the court there distinguished jurisdiction with respect to
23 tort liability and Indian property rights, holding that it was expressly not making a determination
24 on the latter. Petitioners allege that Ameriloan holds that the State retains authority to tax or
25 regulate tribal actives occurring within the state, but outside Indian Country. (Opposition, p. 14,
26 1. 26 through p. 15,1. 1.) The court there actually found that while tribes may be subject to some
27 substantive state laws, the tribe still enjoys sovereign immunity from state enforcement actions.
28 (Ameriloan v. Superior Court, supra, 169 Cal.App.4th 81, 90-91.)
1564347.5 10784-236 3
REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND
PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 Petitioners additionally assert that this Court has jurisdiction to decide this matter because
2 the Property at issue is located in Califomia. (Opposition, p. 22,11. 5 through 21.) However, none
3 ofthe cases cited by Petitioners support this position. Petitioners cite Eldee-K Rental Properties,
4 LLC V. DirectTV, Inc. (2014) 748 F.3d 943 for the proposition that "the Court's jurisdiction is not
5 in question." (Opposition, p. 22,11. 7-8.) The case involves the question of whether a federal court
6 in Califomia has jurisdiction over an action that took place in Connecticut - the "local action
7 doctrine." (Eldee-K Rental Properties, LLC v. DirectTV, Inc. (2014) 748 F.3d 943, 945.) It does
8 not hold that a state court has jurisdiction to decide an otherwise federal issue simply because the
9 case took place in Califomia.
(
10
2. Land Use Regulation
11
Petitioners admit local land use regulations do not apply to land held in tmst. (Opposition,
12
p. 12,11. 3-4.) Yet, Petitioners persist in asserting that tiie 2014 DA, SPA, and MMRP should
13
apply to the Property because the Property has only recently been placed into Federal Tmst.
14
(Opposition, p. 11,1. 16 through p. 16,1. 10.) Petitioners' suggestion that the temporal nature of
15
the decision overrides the principles of sovereign immunity is without any legal support and is
16
unreasonable.' Petitioners rely on Crest-Dehesa-Granite Hills-Harbison Canyon Subregional
17
Planning Group, et al. v. BIA (2015) 61 IBIA 208, an opinion of the IBIA not binding on this
18
Court, which states that the Tribe can only convey its ownership interests, not the interests of a
19
third party, to the United States. (Opposition, p. 12,11. 16-18; see Pac. Shore Funding v. Lozo
20
(2006) 138 Cal.App.4th 1342,1352.) Crest-Dehesa is not relevant and, i f anything, supports the
21
demurrer. In that case, two appellants, the regional planning group and community council, were
22
dismissed because unlike other appellants who presented evidence that they owned property
23
affected by the challenged action, the planning group and commvmity covmcil failed to
24
demonstrate standing by submitting evidence of a legally protected interest. (Dehesa-Granite
25
Hills-Harbison Canyon Subregional Planning Group, et al v. BIA, supra, at p. 212.)
26
Petitioners attempt to distinguish Lawrence v. Barona Valley Ranch & Casino (2007)
27
153 Cal.App.4th 1364, cited for principles of sovereign immunity and Santa Rosa Band of Indians
28
V. Kings County (9th Cir. 1975) 532 F.2d 655 cited in support of the prohibition of the application
1564347.5 10784-236 4
REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND
PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 of local land use regulation to property held in tmst for the Indians, on the grounds that the
2 property in those cases had been in tmst for some time. (Opposition, p. 13,1. 23 through p. 14,1.
3 14.) Nothing in those cases makes a distinction as to the timing of the placement of the properties
4 in tmst.
5 In addition to relying on a fabricated temporal distinction. Petitioners improperly rely on
6 Mescalero Apache Tribe v. Jones (1973) 411 U.S. 145, 148-149. (Opposition, p. 16,11. 5-9, p. 21,
7 11. 5-9.) While that case generally identifies a broader authority to impose state law on non-tribe
8 land in the absence of express federal law on point, the case only deals with the narrow issue of
9 whether the State of New Mexico could impose sales and use taxes on a ski resort owned by the
10 Mescalero Apache Tribe. (Id. at p. 147.) In the case before this Court, express federal law states
11 that the state and local land use regulations do not apply to land in tmst. (25 C.F.R. § 1.4; Santa
12 Rosa Band of Indians v. Kings County (9th Cir. 1975) 532 F.2d 655, 658; United States v. County
13 of Humboldt (19S0) 615 F.2d 1260, 1261; see Demurrer, pp. 15-17.)
14 B. This case should be dismissed because the 2014 DA does not apply to the Property
15 Petitioners' specific allegations that the 2014 DA applies to the Property fails because
16 Petitioners do not have standing to enforce the 2014 DA, the 2014 DA is a valuable land use
17 entitlement rather than a title encumbrance, and the 2014 DA was not assigned to the Tribe.
18 As a preliminary matter. Petitioners do not have standing to enforce the 2014 DA.
19 Petitioners are neither parties to the DA, nor intended beneficiaries. (Amended Petition, Exh. A,
20 § 12.7; Demurrer, p. 17,1. 9 through p. 18,1. 2; see also Gov. Code, § 65856.4.) Although the
21 2014 DA explicitly states that no one other than the parties to the agreement "shall have any cause
22 of action or standing to assert anyrightsunder the agreement," Petitioners assert that the general
23 findings adopted with the 2014 DA confer third party beneficiary status on Petitioners.
24 (Opposition, pp. 27-28.) Thefindingsthat the project will not injure the general welfare of the
25 residents of the City and that it will provide services to the residents of the City, does not convert
26 all residents of the City into third party beneficiaries. (H.N. & Frances C. Berger Found, v. Perez
27 (2013) 218 Cal.App.4th 37,43.)
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1564347.5 10784-236 < ,
REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND
PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 Petitioners rely on Friends of East Willits Valley v. County of Mendocino (2002)
2 101 Cal.App.4th 191, a case where the tribe at issue waived its sovereign immunity, to conclude
3 that the 2014 DA still encumbers the Property. In Friends of East Willits Valley, the court
4 explicitly identified that the Tribe would otherwise be immune from suit, but had waived its
5 sovereign immunity by appearing in the case and entering into a Tribal/County enforcement
6 agreement wherein it expressly waived its immimity. (Id. at p. 197.) The 2014 DA is not subject
7 to the same interpretation for two reasons. First, a development agreement increases certainty in
8 the land development process and thus holds value; it is not a limiting encumbrance as Petitioners
9 allude. (See Gov. Code, § 65864(b); City of W. Hollywood v. Beverly Towers, Inc. (1991)
10 52 Cal.3d 1184, 1193.) Second, the DA was not transferred to the Tribe and, unlike Friends of
11 East Willits Valley, the Tribe is not a party to the 2014 DA and it did not voluntarily enter into the
12 2014 DA.
13 A development agreement is a contract between the developer and the city which provides
14 a developer with greater certainty in the development process by limiting the city's ability to apply
15 newly enacted ordinances to ongoing developments. (City ofW, Hollywood v. Beverly Towers,
16 Inc., supra, 52 Cal.3d 1184, 1193.) Therefore, unlike a Williamson Act contractual restriction on
17 the development of property, a development agreement enhances the value of the property.
18 Importantly, at all times, the owner of the development agreement retains the discretion to build
19 under the terms of the development agreement or not. Ifthe owner accepts the obligations, it also
20 retains the rights thereby secured.
21 The development agreement at issue in this case, the 2014 DA, provides that the developer
22 may assign its "rights, interest and obligations under this Agreement to a third party," using an
23 Assumption and Assignment agreement. (Amended Complaint, Exh. A, § 10.1.) The 2014 DA
24 requires that if such transfer of rights is to occur, it must occur concurrent with the sale of the
25 Property, but, the opposite is not tme nor required by the DA. If the property is sold without the
26 transfer ofrights,there is no requirement to use an Assignment and Assumption agreement or hold
27 a hearing. (Amended Complaint, Exh. A, § 10.1.) Here, the Property was sold with no transfer of
28 /// ' , .
1564347.5 10784-236
REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND
PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 the underlying benefits and burdens of the 2014 DA. (Amended Complaint, Exh. A, § 10.1.) As a
2 result, the 2014 DA no longer applies to the Property.
3 C. The case should be dismissed because the Petitioners cannot join an indispensable
party
4
5 The Property is in Federal Tmst. (Amended Petition, t t 56, 77; Demurrer, p. 8,11. 12-14,
6 RJN, Exh. 1.) An affirmative order by this Court may impair the Tribe's ability to develop the
7 Property. (Amended Petition, t t 68-75; Demurrer, p. 14,11. 14-17.) As such, the Tribe is an
8 indispensable party. (Sierra Club, Inc. v. California Coastal Commission (1979) 95 Cal.App.3d
9 495,501.)
10 Petitioners rely on Citizens Association for Sensible Development of Bishop Area v. County
11 of Inyo (1985) 172 Cal.App.3d 151 and Deltakeeper v. Oakdale Irrigation District (2001)
12 94 Cal.App.4th 1092 to support the position that the Tribe is not an indispensable party because it
13 purchased the Property knowing that the 2014 DA, SPA, and MMRP applied to the Property.
14 (Opposition, p. 19,1. 3 through p. 20,1. 18.) In both the cited cases, the unnamed party's interests
15 were represented by a named party to the action. The Tribe's interests are not represented by
16 either the City or the Real Parties in Interest.
17 In Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985)
18 172 Cal.App.3d 151, the property owner was not a necessary party to the dispute because a
19 commercial real estate company with an option to purchase the property was a party to the dispute
20 and "its interests were essentially the same as if it had been the owner for the purposes of the
21 litigation." Thus, the property owner's interests were "adequately represented" and the property
22 owner was not a necessary party. (Id. at pp. 161-162.) In Deltakeeper v. Oakdale Irrigation
23 District, supra, 94 Cal.App.4th 1092, the court found that a number of parties to a contract were
24 not indispensable parties to a lawsuit challenging the contract on CEQA grounds because the
25 unnamed parties' interests were adequately represented by a named party. The unnamed parties
26 had a separate contract with a named party giving the unnamed parties a voice in the litigation
27 decisions related to the action. (Id. at pp. 1105-1110.) Further, the parties presented the same
28 evidence because the case was litigated based on the administrative record. (Id.) Here, the Tribe's
1564347.5 10784-236 . 7
REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND
PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 interests are not represented by any party and the Tribe should have been named as an
2 indispensable party. Petitioners' self-serving statement that the Tribe's interests will not be
3 affected are not supported by law or fact.
4 D. The Third Cause of Action for Violation of CEQA fails because it is barred by the
statute of limitations and the City was not required to hold a hearing prior to filing
5 the conditional release
6 Petitioners' third cause of action is barred by the statute of limitations because Petitioners
7 filed the initial complaint more than 35 days after the City filed its Notice of Exemption for
8 Resolution 2016-182 approving the Memorandum of Understanding between the City and the
9 Tribe for mitigation payments ("MOU"). (Demurrer, p. 18,11. 22-25; Amended Petition, 159;
10 RJN Exh. 1; Pub. Resources Code, § 21167(d); Stockton Citizens for Sensible Planning and City
11 of Stockton (2010) 48 Cal.4th 481, 489.) Petitioners attempt to overcome this defect by suggesting
12 that the 2016 MOU is unrelated to the CEQA challenge pled by Petitioners. (Opposition, p. 25,11.
13 6-11.) However, the MOU put the Petitioners on notice as to the extent of the entire project.
14 Despite this notice. Petitioners took no action. Petitioners premise their entire CEQA cause bf
15 action on the grounds that they had no actual or constmctive knowledge that the casino/hotel was
16 being considered. (Amended Petition, p. 6,11. 20-24; p. 9,11. 18-19, p. 10,11. 16-17.) Their actiial
17 knowledge of the MOU is in direct contradiction to that argument.
18 Petitioners,allege that their case is not subject to dismissal under Public Resources Code
19 section 21167.4(a) for failure to file a request for hearing by Febmary 21, 2017 because the
20 statutory timeframeshould run from the date of the Amended Writ, filed on March 13,2017.
21 Petitioners rely on Friends of Roeding Park v. City of Fresno (2012) 848 F.Supp.2d 1152
22 ("Friends of Roeding Parle"). As set forth in the City's Opposition to Petitioners and Plaintiffs'
23 Motion for Relief from Dismissal, the court in Friends of Roeding Park did not resolve the issue
24 of which date triggered the 90-day requirement - whether it be the original filing or the amended
25 filing. (Respondent/Defendant's Opposition to Petitioners' Motion for Relief from Dismissal,
26 pp. 4-5.) Cases are not authority for issues not actually decided. (Advanced-Tech Security
27 Services, Inc. v. Superior Court (2008) 163 Cal.App.4th 700, 710.) The controlling statute and
28 Califomia case law, as discussed in the City's Opposition to Petitioners and Plaintiffs' Motion for
1564347.5 10784-236 g
REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND
PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 Relief from Dismissal filed in this matter on May 4, 2016, address this point and provide that the
2 time to request a hearing runs from the time of the original filing, not an amended filing.
3 (Demurrer, pp. 20-21.)
4 The third cause of action should be dismissed for reasons beyond the failure to comply
5 with the statutory time frames. The Amended Complaint fails to state facts sufficient to constitute
6 a cause of action. Petitioners challenge the City's action on January 9, 2017 "removing the
7 MMRP from the Phase 2 property without notice and without makingfindingsas required under
8 CEQA, showing the removal is in the best interest of the public." (Opposition, p. 25,11. 9-11.)
9 First, the City did not remove the MMRP from the Property, but rather recorded a release
10 identifying the fact that if and when the Property is transferred into Tmst, the "City of Elk Grove
11 shall no longer have land use approval authority over the Fee-tO-Tmst Property, and the BIA
12 would be the govemment agency with responsibility and authority to impose environmental
13 mitigation measures consistent with the EIS." (Amended Petition, Exh. C.) Based on these and
14 otherfindings,the City "release[d] the recorded Mitigation Monitoring and Reporting Program . . .
15 as to the Fee-to-Tmst Property; provided however, should the BIA not take the Fee-to Tmst
16 Property into tmst, this release shall not be effective." (Amended Petition, Exh. C.) Importantly,
17 the mitigation measures and Environmental Impact Statement prepared pursuant to the National
18 Environmental Policy Act for the Property would continue to apply under this scenario.
19 (Demurrer, p. 23, pp. 2-5.)
20 Second, Petitioners' Opposition misapprehends the City's Demurrer. There is no
21 requirement in CEQA for the City to record an MMRP, or to hold a hearing when it determines
22 that the Property may no longer be subject to the City's jurisdiction or the MMRP. The Demurrer
23 explained that the authority Petitioners cited, CEQA Guidelines section 15074.1, applies only to
24 the amendment of mitigation measures prior to approving a project based on a mitigated negative
25 declaration. As set forth in the Demurrer, that requirement is not applicable here. (Demurrer,
26 p. 22,11. 12-21.) Petitioners read the Demurrer to state that the City believes Public Resources
27 Code section 21081.6(c) only applies to a Negative Declaration. (Opposition, p. 25,11. 13-20.)
28 The requirement in Section 21081.6(c) that responsible agencies adopt an MMRP in conjunction
1564347.5 10784-236 9
REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND
PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 with an EIR or MMRP does not support the conclusion that a City cannot remove a recorded
2 MMRP from title when the recordation itself is not required by law. Petitioners state that the City
3 "remove[d] mandatory mitigation measures without public notice, a hearing, and appropriate
4 findings," but cite no facts to support the removal, and no law to show that the acts taken were
5 unlawfiil. (Opposition, p. 25, \. 26-27.) Despite Petitioners' complaints of the City's alleged
6 failures to provide public notice or hold public hearings. Petitioners never identify the precise
7 hearings they would have the City hold, the notice required to be given, or the statutory mandate
8 requiring such noticed hearings. (Opposition, p. 25,1. 22 through p. 26,1. 7.)
9 Petitioners additionally allege that the City should have provided public notice of the lot
10 line adjustment or a parking access agreement. Petitioners have not, and cannot, point to authority
11 imposing such notice requirements. As such, the cause of action should be dismissed.
12 I I I . CONCLUSION
13 The defects in the Amended Petition, including jurisdiction, standing, and missed statutory
14 timeframes cannot be cured by an additional amendment and Petitioners' lengthy Opposition fails
15 to carry the burden to demonstrate that such cure is possible. (Cal. Emerg. Physicians Med
16 Group V. PacificCare (2003) 111 Cal.App.4th 1127, 1130 citing Blank v. Kirwan (1985) 39 Cal.3d
17 311,318.).) For these reasons, and based on all the papers submitted by the City, the demurrer
18 should be sustained in whole without leave to amend.
19
20 Dated: May 26, 2017 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
21
22
23 By:
Mona G. Ebrahimi
24 Attomeys for Respondent and Defendant
25 CITY OF ELK GROVE
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REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND
PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SACRAMENTO
3 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Sacramento, State of Califomia. My business address is 400 Capitol
4 Mall, 27th Floor, Sacramento, CA 95814.
5 On May 26, 2017,1 served tme copies of the following document(s) described as REPLY
TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY OF ELK GROVE'S
6 DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION
FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF on the
7 interested parties in this action as follows:
8 SEE ATTACHED SERVICE LIST
9 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of tiie
document(s) to be sent from e-mail address dclark@kmtg.com to the persons at the e-mail
10 addresses listed in the Service List. I did not receive, within a reasonable time after the
fransmission, any electronic message or other indication that the transmission was unsuccessful.
11
BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx
12 and addressed to the persons at the addresses listed in the Service List. I placed the envelope or
package for collection and ovemight delivery at an office or a regularly utilized drop box of FedEx
13 or delivered such document(s) to a courier or driver authorized by FedEx to receive documents.
14 I declare under penalty of perjury under the laws of the State of Califomia that the
foregoing is tme and correct.
15
Executed on May 26, 2017, at Sacramento, Califomia.
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18 Deborah Clark
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1564347.5 10784-236 11
REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND
PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT,
1 SERVICE LIST
2
3 Brigit S. Bames Jonathan P. Hobbs, City Attomey
Annie R. Embree Jennifer A. Alves, Asst. City Attomey,
4 Brigit S. Bames & Associates, Inc. Suzanne Kennedy, Asst. City Attomey
3262 Penryn Road City of Elk Grove
5 Loomis, CA 95650 Office of the City Attomey
Telephone: (916) 660-9555 8401 Laguna Palms Way
6 Facsimile: (916)660-9554 Elk Grove, CA 95758
Email: bsbames@landlawbybames.com Telephone: (916) 683-7111
7 arembree@landlawbybames.com Facsimile: (916)627-4100
Email: jhobbs@elkgrovecity.org
8 Attomeys for Petitioners and Plaintiffs jalves@elkgrovecity.org
skennedy@elkgrovecity.org
9
Attorneys for Respondent and Defendant
10
Scott M. Pearson
11 Taylor R. Steinbacher
Zaven A. Sargsian
12 Ballard Spahi" LLP
2029 Century Park East, Suite 800
13 Los Angeles, CA 90067-2909
Telephone: (424) 204-4323
14 Facsimile: (424)204-4350
Email: pearsons@ballardspahr.com
15 steinbachert@ballardspahr.com
sargsianz@ballardspahr.com
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Attomeys for Real Parties in Interest and
17 Defendants
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1564347.5 10784-236 12
REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND
PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT
Preview
[Exempt From Filing Fee Government Code § 6103] 1 MONA G. EBRAHIMI, State Bar No. 236550 mebrahimi@kmtg. com 2 LESLIE Z. WALKER, State Bar No. 249310 lwalker(^kmtg.com 3 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD A Professional Corporation 4 400 Capitol Mall, 27* Floor m t i P DORSE Sacramento, Califomia 95814 5 Telephone: (916) 321-4500 •^AY ^6 2017 Facsimile: (916) 321-4555 6 JONATHAN P. HOBBS, State Bar No. 186045 Bv E. Fines, Deputy Clerk 7 City Attomey jhobbs@elkgrovecity. org 8 JENNIFER A. ALVES, State Bar No. 238723 Assistant City Attomey 9 jalves(^elkgrovecity.org SUZANNE E. KENNEDY, State Bar No. 251339 10 Assistant City Attomey skennedy(^elkgrovecity. org 11 CITY OF ELK GROVE Office of the City Attomey 12 8401 Laguna Palms Way Elk Grove, Califomia 95758 13 Telephone: (916) 683-7111 Facsimile: (916)627-4100 14 Attomeys for Respondent and Defendant 15 CITY OF ELK GROVE 16 SUPERIOR COURT OF THE STATE OF CALIFORNIA 17 COUNTY OF SACRAMENTO 18 STAND UP CALIFORNIA!; PATTY Case No. 34-2016-80002493 JOHNSON; and JOE TEIXEIRA, 19 REPLY TO PETITIONERS AND , Petitioners and Plaintiffs, PLAINTIFFS' OPPOSITION TO CITY OF 20 E L K GROVE'S DEMURRER TO PETITIONERS AND PLAINTIFFS' 21 VERIFIED AMENDED PETITION FOR CITY OF ELK GROVE, WRIT OF MANDATE AND COMPLAINT 22 FOR DECLARATORY R E L I E F Respondent and Defendant. 23 Judge: Hon. Shelleyanne W. L. Chang ELK GROVE TOWN CENTER, LP; Date: June 23, 2017 24 HOWARD HUGHES CORPORATION; and Time: 10:00 a.m. DOES 1-20, Dept.: 24 25 Real Parties in Interest and Petition Filed: November 23,2016 26 Defendants. ' 27 III i28 III 1564347.5 10784-236 1 REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 I. INTRODUCTION 2 The City of Elk Grove ("City") files this Reply to Petitioners and Plaintiffs' Opposition to •3 the City's Demurrer ("Opposition"). Petitioners' Opposition fails to establish any reason why this 4 case should survive demurrer and improperly asks this Court to decide issues of federal law 5 outside of this Court's jurisdiction, demonstrating that even if the case should be heard, it should 6 be heard in a federal fomm. The Opposition fiirther fails to overcome the principles of sovereign 7 immunity, jurisdiction, laches, and mandatory statutory time frames. For the reasons set forth in 8 the City's Demurrer and this Reply, the City requests this Court to sustain the Demurrer without I 9 leave to amend and that this case be dismissed. 10 II. L E G A L ARGUMENT 11 A. This case should be dismissed because the Property is held in Federal trust, therefore, this Court lacks subject matter jurisdiction and the Property is not subject to local 12 land use authority 13 1. Subject Matter Jurisdiction 14 The Property is held by the United States govemment in tmst for the Tribe. (Amended 15 Petition, t t 56, 77; Demurrer, p. 8,11. 12-14, Request for Judicial Notice in Support of Demurrer 16 ("RJN"), Exh. 1.) The grant deed executed on January 17, 2017 grants "to the United States of 17 America in Tiaist for the Wilton Rahcheria" the Property. (RJN, Exh. 1.) The deed was accepted 18 by the Acting Regional Director of the Secretary of the Interior, as the authorized representative. 19 (RJN, Exh. 1.) The Acting Regional Director's acceptance is presumably valid. (Evid. Code, 20 § 664 (official duties are presumed to be regularly performed); Le Baron v. Kern County Farm 21 Labor Union (1948) 80 F.Supp. 151,155 (presumption of regularity attaches to the acts of all 22 officers of the Govemment of the United States).) As a result of this action and principles of tribal 23 sovereign immunity, the Property is not subject to the City's land use regulations and the Court 24 does not have subject matter jurisdiction. {Lawrence v. Barona Valley Ranch Resort & Casino 25 (2007) 153 Cal.App.4th 1364, 1368; see also Demurrer, p. 12,1. 1 through p. 13,1. 20 and p. 15,1. 26 7 through p. 17,1. 8.) , 27 Petitioners question the validity of the Federal government's action and assert that this 28 Court should adjudicate this case because the Interior Board of Indian Appeals ("IBIA") or the 1564347.5 10784-236 2 REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 Federal District Court might find that the United States government's acceptance of the land into 2 tmst was unlawfiil. (Opposition, p. 7,11. 11-15; p. 9,11. 13-24.j Petitioners' citation to no less 3 than 29 federal authorities and four pages of argument related to the propriety of the United States 4 government's action, is an improper attempt to bundle the Federal case into this one, and have this 5 Court make federal judicial decisions. (Opposition, pp. 7-10.) I f and when Petitioners receive a 6 determination from the IBIA or the Federal District Court that the Property must fall out of tmst, 7 and ifthe Property reverts to a private party, then, and only then, might the City and ultimately the 8 Court be in a position to consider whether the Property is subject to the 2014 Development 9 Agreement ("2014 DA"), Special Planning Area ("SPA"), and the CEQA Mitigation Monitoring 10 and Reporting Program ("MMRP"). At present, that factual scenario is not before the City or this 11 Court. (Wilson & Wilson v. City Council of Redwood City (20\\) 191 Cal.App.4th 1559, 1573 12 ("courts will not entertain an action which is not founded on an actual controversy").) 13 Petitioners attempt to support their assertion that this Court should adjudicate this case by 14 trying to distihguish Bosclair v. Superior Court of San Diego (1990) 51 Cal.3d 1140 and 15 Ameriloan v. Superior Court (2008) 169 Cal.App.4th 81 cited in the Demurrer in support of the 16 principle of tribal sovereign immunity. Petitioners are wrong. In those cases, the State court 17 retained jurisdiction to adjudicate claims of damages against Indians for action on non-Trust land. 18 First, the issue of whether this Court may adjudicate claims related to non-Tmst land is not before 19 this Court. Second, in Bosclair, the court explicitly found that, unlike the case before this Court, 20 the determination of whether the Indian defendant acted tortuously "does not require a 21 determination of Indian property rights." (Bosclair y. Superior Court of San Diego (1990) 22 51 Cal.3d 1140, 1157.) In other words, the court there distinguished jurisdiction with respect to 23 tort liability and Indian property rights, holding that it was expressly not making a determination 24 on the latter. Petitioners allege that Ameriloan holds that the State retains authority to tax or 25 regulate tribal actives occurring within the state, but outside Indian Country. (Opposition, p. 14, 26 1. 26 through p. 15,1. 1.) The court there actually found that while tribes may be subject to some 27 substantive state laws, the tribe still enjoys sovereign immunity from state enforcement actions. 28 (Ameriloan v. Superior Court, supra, 169 Cal.App.4th 81, 90-91.) 1564347.5 10784-236 3 REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 Petitioners additionally assert that this Court has jurisdiction to decide this matter because 2 the Property at issue is located in Califomia. (Opposition, p. 22,11. 5 through 21.) However, none 3 ofthe cases cited by Petitioners support this position. Petitioners cite Eldee-K Rental Properties, 4 LLC V. DirectTV, Inc. (2014) 748 F.3d 943 for the proposition that "the Court's jurisdiction is not 5 in question." (Opposition, p. 22,11. 7-8.) The case involves the question of whether a federal court 6 in Califomia has jurisdiction over an action that took place in Connecticut - the "local action 7 doctrine." (Eldee-K Rental Properties, LLC v. DirectTV, Inc. (2014) 748 F.3d 943, 945.) It does 8 not hold that a state court has jurisdiction to decide an otherwise federal issue simply because the 9 case took place in Califomia. ( 10 2. Land Use Regulation 11 Petitioners admit local land use regulations do not apply to land held in tmst. (Opposition, 12 p. 12,11. 3-4.) Yet, Petitioners persist in asserting that tiie 2014 DA, SPA, and MMRP should 13 apply to the Property because the Property has only recently been placed into Federal Tmst. 14 (Opposition, p. 11,1. 16 through p. 16,1. 10.) Petitioners' suggestion that the temporal nature of 15 the decision overrides the principles of sovereign immunity is without any legal support and is 16 unreasonable.' Petitioners rely on Crest-Dehesa-Granite Hills-Harbison Canyon Subregional 17 Planning Group, et al. v. BIA (2015) 61 IBIA 208, an opinion of the IBIA not binding on this 18 Court, which states that the Tribe can only convey its ownership interests, not the interests of a 19 third party, to the United States. (Opposition, p. 12,11. 16-18; see Pac. Shore Funding v. Lozo 20 (2006) 138 Cal.App.4th 1342,1352.) Crest-Dehesa is not relevant and, i f anything, supports the 21 demurrer. In that case, two appellants, the regional planning group and community council, were 22 dismissed because unlike other appellants who presented evidence that they owned property 23 affected by the challenged action, the planning group and commvmity covmcil failed to 24 demonstrate standing by submitting evidence of a legally protected interest. (Dehesa-Granite 25 Hills-Harbison Canyon Subregional Planning Group, et al v. BIA, supra, at p. 212.) 26 Petitioners attempt to distinguish Lawrence v. Barona Valley Ranch & Casino (2007) 27 153 Cal.App.4th 1364, cited for principles of sovereign immunity and Santa Rosa Band of Indians 28 V. Kings County (9th Cir. 1975) 532 F.2d 655 cited in support of the prohibition of the application 1564347.5 10784-236 4 REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 of local land use regulation to property held in tmst for the Indians, on the grounds that the 2 property in those cases had been in tmst for some time. (Opposition, p. 13,1. 23 through p. 14,1. 3 14.) Nothing in those cases makes a distinction as to the timing of the placement of the properties 4 in tmst. 5 In addition to relying on a fabricated temporal distinction. Petitioners improperly rely on 6 Mescalero Apache Tribe v. Jones (1973) 411 U.S. 145, 148-149. (Opposition, p. 16,11. 5-9, p. 21, 7 11. 5-9.) While that case generally identifies a broader authority to impose state law on non-tribe 8 land in the absence of express federal law on point, the case only deals with the narrow issue of 9 whether the State of New Mexico could impose sales and use taxes on a ski resort owned by the 10 Mescalero Apache Tribe. (Id. at p. 147.) In the case before this Court, express federal law states 11 that the state and local land use regulations do not apply to land in tmst. (25 C.F.R. § 1.4; Santa 12 Rosa Band of Indians v. Kings County (9th Cir. 1975) 532 F.2d 655, 658; United States v. County 13 of Humboldt (19S0) 615 F.2d 1260, 1261; see Demurrer, pp. 15-17.) 14 B. This case should be dismissed because the 2014 DA does not apply to the Property 15 Petitioners' specific allegations that the 2014 DA applies to the Property fails because 16 Petitioners do not have standing to enforce the 2014 DA, the 2014 DA is a valuable land use 17 entitlement rather than a title encumbrance, and the 2014 DA was not assigned to the Tribe. 18 As a preliminary matter. Petitioners do not have standing to enforce the 2014 DA. 19 Petitioners are neither parties to the DA, nor intended beneficiaries. (Amended Petition, Exh. A, 20 § 12.7; Demurrer, p. 17,1. 9 through p. 18,1. 2; see also Gov. Code, § 65856.4.) Although the 21 2014 DA explicitly states that no one other than the parties to the agreement "shall have any cause 22 of action or standing to assert anyrightsunder the agreement," Petitioners assert that the general 23 findings adopted with the 2014 DA confer third party beneficiary status on Petitioners. 24 (Opposition, pp. 27-28.) Thefindingsthat the project will not injure the general welfare of the 25 residents of the City and that it will provide services to the residents of the City, does not convert 26 all residents of the City into third party beneficiaries. (H.N. & Frances C. Berger Found, v. Perez 27 (2013) 218 Cal.App.4th 37,43.) 28 /// 1564347.5 10784-236 < , REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 Petitioners rely on Friends of East Willits Valley v. County of Mendocino (2002) 2 101 Cal.App.4th 191, a case where the tribe at issue waived its sovereign immunity, to conclude 3 that the 2014 DA still encumbers the Property. In Friends of East Willits Valley, the court 4 explicitly identified that the Tribe would otherwise be immune from suit, but had waived its 5 sovereign immunity by appearing in the case and entering into a Tribal/County enforcement 6 agreement wherein it expressly waived its immimity. (Id. at p. 197.) The 2014 DA is not subject 7 to the same interpretation for two reasons. First, a development agreement increases certainty in 8 the land development process and thus holds value; it is not a limiting encumbrance as Petitioners 9 allude. (See Gov. Code, § 65864(b); City of W. Hollywood v. Beverly Towers, Inc. (1991) 10 52 Cal.3d 1184, 1193.) Second, the DA was not transferred to the Tribe and, unlike Friends of 11 East Willits Valley, the Tribe is not a party to the 2014 DA and it did not voluntarily enter into the 12 2014 DA. 13 A development agreement is a contract between the developer and the city which provides 14 a developer with greater certainty in the development process by limiting the city's ability to apply 15 newly enacted ordinances to ongoing developments. (City ofW, Hollywood v. Beverly Towers, 16 Inc., supra, 52 Cal.3d 1184, 1193.) Therefore, unlike a Williamson Act contractual restriction on 17 the development of property, a development agreement enhances the value of the property. 18 Importantly, at all times, the owner of the development agreement retains the discretion to build 19 under the terms of the development agreement or not. Ifthe owner accepts the obligations, it also 20 retains the rights thereby secured. 21 The development agreement at issue in this case, the 2014 DA, provides that the developer 22 may assign its "rights, interest and obligations under this Agreement to a third party," using an 23 Assumption and Assignment agreement. (Amended Complaint, Exh. A, § 10.1.) The 2014 DA 24 requires that if such transfer of rights is to occur, it must occur concurrent with the sale of the 25 Property, but, the opposite is not tme nor required by the DA. If the property is sold without the 26 transfer ofrights,there is no requirement to use an Assignment and Assumption agreement or hold 27 a hearing. (Amended Complaint, Exh. A, § 10.1.) Here, the Property was sold with no transfer of 28 /// ' , . 1564347.5 10784-236 REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 the underlying benefits and burdens of the 2014 DA. (Amended Complaint, Exh. A, § 10.1.) As a 2 result, the 2014 DA no longer applies to the Property. 3 C. The case should be dismissed because the Petitioners cannot join an indispensable party 4 5 The Property is in Federal Tmst. (Amended Petition, t t 56, 77; Demurrer, p. 8,11. 12-14, 6 RJN, Exh. 1.) An affirmative order by this Court may impair the Tribe's ability to develop the 7 Property. (Amended Petition, t t 68-75; Demurrer, p. 14,11. 14-17.) As such, the Tribe is an 8 indispensable party. (Sierra Club, Inc. v. California Coastal Commission (1979) 95 Cal.App.3d 9 495,501.) 10 Petitioners rely on Citizens Association for Sensible Development of Bishop Area v. County 11 of Inyo (1985) 172 Cal.App.3d 151 and Deltakeeper v. Oakdale Irrigation District (2001) 12 94 Cal.App.4th 1092 to support the position that the Tribe is not an indispensable party because it 13 purchased the Property knowing that the 2014 DA, SPA, and MMRP applied to the Property. 14 (Opposition, p. 19,1. 3 through p. 20,1. 18.) In both the cited cases, the unnamed party's interests 15 were represented by a named party to the action. The Tribe's interests are not represented by 16 either the City or the Real Parties in Interest. 17 In Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985) 18 172 Cal.App.3d 151, the property owner was not a necessary party to the dispute because a 19 commercial real estate company with an option to purchase the property was a party to the dispute 20 and "its interests were essentially the same as if it had been the owner for the purposes of the 21 litigation." Thus, the property owner's interests were "adequately represented" and the property 22 owner was not a necessary party. (Id. at pp. 161-162.) In Deltakeeper v. Oakdale Irrigation 23 District, supra, 94 Cal.App.4th 1092, the court found that a number of parties to a contract were 24 not indispensable parties to a lawsuit challenging the contract on CEQA grounds because the 25 unnamed parties' interests were adequately represented by a named party. The unnamed parties 26 had a separate contract with a named party giving the unnamed parties a voice in the litigation 27 decisions related to the action. (Id. at pp. 1105-1110.) Further, the parties presented the same 28 evidence because the case was litigated based on the administrative record. (Id.) Here, the Tribe's 1564347.5 10784-236 . 7 REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 interests are not represented by any party and the Tribe should have been named as an 2 indispensable party. Petitioners' self-serving statement that the Tribe's interests will not be 3 affected are not supported by law or fact. 4 D. The Third Cause of Action for Violation of CEQA fails because it is barred by the statute of limitations and the City was not required to hold a hearing prior to filing 5 the conditional release 6 Petitioners' third cause of action is barred by the statute of limitations because Petitioners 7 filed the initial complaint more than 35 days after the City filed its Notice of Exemption for 8 Resolution 2016-182 approving the Memorandum of Understanding between the City and the 9 Tribe for mitigation payments ("MOU"). (Demurrer, p. 18,11. 22-25; Amended Petition, 159; 10 RJN Exh. 1; Pub. Resources Code, § 21167(d); Stockton Citizens for Sensible Planning and City 11 of Stockton (2010) 48 Cal.4th 481, 489.) Petitioners attempt to overcome this defect by suggesting 12 that the 2016 MOU is unrelated to the CEQA challenge pled by Petitioners. (Opposition, p. 25,11. 13 6-11.) However, the MOU put the Petitioners on notice as to the extent of the entire project. 14 Despite this notice. Petitioners took no action. Petitioners premise their entire CEQA cause bf 15 action on the grounds that they had no actual or constmctive knowledge that the casino/hotel was 16 being considered. (Amended Petition, p. 6,11. 20-24; p. 9,11. 18-19, p. 10,11. 16-17.) Their actiial 17 knowledge of the MOU is in direct contradiction to that argument. 18 Petitioners,allege that their case is not subject to dismissal under Public Resources Code 19 section 21167.4(a) for failure to file a request for hearing by Febmary 21, 2017 because the 20 statutory timeframeshould run from the date of the Amended Writ, filed on March 13,2017. 21 Petitioners rely on Friends of Roeding Park v. City of Fresno (2012) 848 F.Supp.2d 1152 22 ("Friends of Roeding Parle"). As set forth in the City's Opposition to Petitioners and Plaintiffs' 23 Motion for Relief from Dismissal, the court in Friends of Roeding Park did not resolve the issue 24 of which date triggered the 90-day requirement - whether it be the original filing or the amended 25 filing. (Respondent/Defendant's Opposition to Petitioners' Motion for Relief from Dismissal, 26 pp. 4-5.) Cases are not authority for issues not actually decided. (Advanced-Tech Security 27 Services, Inc. v. Superior Court (2008) 163 Cal.App.4th 700, 710.) The controlling statute and 28 Califomia case law, as discussed in the City's Opposition to Petitioners and Plaintiffs' Motion for 1564347.5 10784-236 g REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 Relief from Dismissal filed in this matter on May 4, 2016, address this point and provide that the 2 time to request a hearing runs from the time of the original filing, not an amended filing. 3 (Demurrer, pp. 20-21.) 4 The third cause of action should be dismissed for reasons beyond the failure to comply 5 with the statutory time frames. The Amended Complaint fails to state facts sufficient to constitute 6 a cause of action. Petitioners challenge the City's action on January 9, 2017 "removing the 7 MMRP from the Phase 2 property without notice and without makingfindingsas required under 8 CEQA, showing the removal is in the best interest of the public." (Opposition, p. 25,11. 9-11.) 9 First, the City did not remove the MMRP from the Property, but rather recorded a release 10 identifying the fact that if and when the Property is transferred into Tmst, the "City of Elk Grove 11 shall no longer have land use approval authority over the Fee-tO-Tmst Property, and the BIA 12 would be the govemment agency with responsibility and authority to impose environmental 13 mitigation measures consistent with the EIS." (Amended Petition, Exh. C.) Based on these and 14 otherfindings,the City "release[d] the recorded Mitigation Monitoring and Reporting Program . . . 15 as to the Fee-to-Tmst Property; provided however, should the BIA not take the Fee-to Tmst 16 Property into tmst, this release shall not be effective." (Amended Petition, Exh. C.) Importantly, 17 the mitigation measures and Environmental Impact Statement prepared pursuant to the National 18 Environmental Policy Act for the Property would continue to apply under this scenario. 19 (Demurrer, p. 23, pp. 2-5.) 20 Second, Petitioners' Opposition misapprehends the City's Demurrer. There is no 21 requirement in CEQA for the City to record an MMRP, or to hold a hearing when it determines 22 that the Property may no longer be subject to the City's jurisdiction or the MMRP. The Demurrer 23 explained that the authority Petitioners cited, CEQA Guidelines section 15074.1, applies only to 24 the amendment of mitigation measures prior to approving a project based on a mitigated negative 25 declaration. As set forth in the Demurrer, that requirement is not applicable here. (Demurrer, 26 p. 22,11. 12-21.) Petitioners read the Demurrer to state that the City believes Public Resources 27 Code section 21081.6(c) only applies to a Negative Declaration. (Opposition, p. 25,11. 13-20.) 28 The requirement in Section 21081.6(c) that responsible agencies adopt an MMRP in conjunction 1564347.5 10784-236 9 REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 with an EIR or MMRP does not support the conclusion that a City cannot remove a recorded 2 MMRP from title when the recordation itself is not required by law. Petitioners state that the City 3 "remove[d] mandatory mitigation measures without public notice, a hearing, and appropriate 4 findings," but cite no facts to support the removal, and no law to show that the acts taken were 5 unlawfiil. (Opposition, p. 25, \. 26-27.) Despite Petitioners' complaints of the City's alleged 6 failures to provide public notice or hold public hearings. Petitioners never identify the precise 7 hearings they would have the City hold, the notice required to be given, or the statutory mandate 8 requiring such noticed hearings. (Opposition, p. 25,1. 22 through p. 26,1. 7.) 9 Petitioners additionally allege that the City should have provided public notice of the lot 10 line adjustment or a parking access agreement. Petitioners have not, and cannot, point to authority 11 imposing such notice requirements. As such, the cause of action should be dismissed. 12 I I I . CONCLUSION 13 The defects in the Amended Petition, including jurisdiction, standing, and missed statutory 14 timeframes cannot be cured by an additional amendment and Petitioners' lengthy Opposition fails 15 to carry the burden to demonstrate that such cure is possible. (Cal. Emerg. Physicians Med 16 Group V. PacificCare (2003) 111 Cal.App.4th 1127, 1130 citing Blank v. Kirwan (1985) 39 Cal.3d 17 311,318.).) For these reasons, and based on all the papers submitted by the City, the demurrer 18 should be sustained in whole without leave to amend. 19 20 Dated: May 26, 2017 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD A Professional Corporation 21 22 23 By: Mona G. Ebrahimi 24 Attomeys for Respondent and Defendant 25 CITY OF ELK GROVE 26 27 28 1564347.5 10784-236 10 REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SACRAMENTO 3 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Sacramento, State of Califomia. My business address is 400 Capitol 4 Mall, 27th Floor, Sacramento, CA 95814. 5 On May 26, 2017,1 served tme copies of the following document(s) described as REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY OF ELK GROVE'S 6 DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF on the 7 interested parties in this action as follows: 8 SEE ATTACHED SERVICE LIST 9 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of tiie document(s) to be sent from e-mail address dclark@kmtg.com to the persons at the e-mail 10 addresses listed in the Service List. I did not receive, within a reasonable time after the fransmission, any electronic message or other indication that the transmission was unsuccessful. 11 BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx 12 and addressed to the persons at the addresses listed in the Service List. I placed the envelope or package for collection and ovemight delivery at an office or a regularly utilized drop box of FedEx 13 or delivered such document(s) to a courier or driver authorized by FedEx to receive documents. 14 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing is tme and correct. 15 Executed on May 26, 2017, at Sacramento, Califomia. 16 17 18 Deborah Clark 19 20 21 22 23 24 25 26 27 28 1564347.5 10784-236 11 REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT, 1 SERVICE LIST 2 3 Brigit S. Bames Jonathan P. Hobbs, City Attomey Annie R. Embree Jennifer A. Alves, Asst. City Attomey, 4 Brigit S. Bames & Associates, Inc. Suzanne Kennedy, Asst. City Attomey 3262 Penryn Road City of Elk Grove 5 Loomis, CA 95650 Office of the City Attomey Telephone: (916) 660-9555 8401 Laguna Palms Way 6 Facsimile: (916)660-9554 Elk Grove, CA 95758 Email: bsbames@landlawbybames.com Telephone: (916) 683-7111 7 arembree@landlawbybames.com Facsimile: (916)627-4100 Email: jhobbs@elkgrovecity.org 8 Attomeys for Petitioners and Plaintiffs jalves@elkgrovecity.org skennedy@elkgrovecity.org 9 Attorneys for Respondent and Defendant 10 Scott M. Pearson 11 Taylor R. Steinbacher Zaven A. Sargsian 12 Ballard Spahi" LLP 2029 Century Park East, Suite 800 13 Los Angeles, CA 90067-2909 Telephone: (424) 204-4323 14 Facsimile: (424)204-4350 Email: pearsons@ballardspahr.com 15 steinbachert@ballardspahr.com sargsianz@ballardspahr.com 16 Attomeys for Real Parties in Interest and 17 Defendants 18 19 20 21 22 23 24 25 26 27 28 1564347.5 10784-236 12 REPLY TO PETITIONERS AND PLAINTIFFS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT