Preview
[Exempt From Filing ^'ee
Gove^|nent^Code § 6103]
1 MONA G. EBRAHIMI, State Bar No. 236550
mebrahimi@kmtg.com
2 LESLIE Z. WALKER, State Bar No. 249310 mimiis PH i: j |
lwalker@kmtg.com
3 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
4 400 Capitol Mall, 27^^ Floor
Sacramento, Califomia 95814
5 Telephone: (916) 321-4500
Facsimile: (916) 321-4555
6
JONATHAN P. HOBBS, State Bar No. 186045
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 CITY
15 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
Petitioners and Plaintiffs, RESPONDENT/DEFENDANT CITY OF
20 E L K GROVE'S OPPOSITION TO
PETITIONERS/PLAINTIFFS' MOTION
21 FOR R E L I E F FROM DISMISSAL
CITY OF ELK GROVE, [Code Civ. Proc., § 473]
22
Respondent and Defendant. Judge: Hon. Shelleyarme W.L. Chang
23 Date: June 2, 1027
ELK GROVE TOWN CENTER, LP; Time: 11:00 a.m.
24 HOWARD HUGHES CORPORATION; and Dept.: 24
DOES 1-20,
25 Petition Filed: November 23, 2016
Real Parties in Interest and
26 Defendants.
27 III
28 III
1566381.4 10784-236
1
RESPONDENT/DEFENDANT CITYOF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS'
MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]
1 I. INTRODUCTION
2 Respondent and Defendant City of Elk Grove ("City") hereby files this Opposition to
3 Petitioners and Plaintiffs Patty Johnson; Joe Teixeira; Omar Ahmed, Jr; Xin Guso; and Carolyn
4 Soares's (collectively, "Petitioners") Motion for Relief from Dismissal [Code Civ. Proc, § 473]
5 ("Motion").
6 The City and Elk Grove Town Center, LP and Howard Hughes Corporation ("Real Parties
7 in Interest")filedtheir demurrers to Petitioners' Verified Amended Petition for Writ of Mandate
8 and Complaint for Declaratory Relief ("Amended Complaint") on May 3, 2017 and May 8, 2017,
9 respectively. Presumably concemed about the City and Real Parties' request that this court
10 dismiss the Amended Complaint for failing to request a hearing. Petitioners prematurelyfiledtheir
11 Motion. Petitioners' Motion should be denied for both procedural and substantive reasons. First,
12 Petitioners' Motion is not yet ripe since there has been no judgment or dismissal from which
13 Petitioners may seek relief Second, failing to request a hearing as required by Public Resources
14 Code section 21167.4 mandates an automatic dismissal of the CEQA claims. Even if the Court
15 were to consider Petitioners' plea for relief under Section 473, Petitioners fail to show any
16 entitlement to such relief
17 IL STATEMENT OF FACTS
18 On November 23, 2016, Petitioners filed their original Petition for Writ of Mandate and
19 Complaint for Declaratory and Injiuictive Relief ("Original Complaint"). Public Resources Code
20 section 21167.4(a) states, "In any action or proceeding alleging noncompliance with this division,
21 the petitioner s/ifl// request a hearing within 90 days from the date of filing the petition or shall be
22 subject to dismissal on the court's own motion or on the motion of any party interested in the
23 action or proceeding." (Emphasis added.) Ninety daysfi-omNovember 23, 2016 is Febmary 21,
24 2017. Therefore, Petitioners' last day to request a hearing was on Febmary 21, 2017.
25 Petitioners did not file a request for hearing date within this time period. Instead, on
26 March 13, 2017, well after the deadline had passed to request a hearing. Petitioners filed their
27 Amended Complaint. (Motion at p. 6). During the parties' meet and confer teleconference.
28 Petitioners' counsel was advised that the City would be demurring to the Amended Complaint.
1566381.4 10784-236 2
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS'
MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]
1 (Motion at p. 1). Among other reasons, the City stated it would demur on the basis that Petitioners
2 failed to request a timely hearing. (Motion at p. 1). On April 25, 2017, Petitioners belatedly filed
3 two requests for hearing with this court, one based on thefilingof the Original Complaint (over
4 two months past the deadline), and another based on thefilingof the Amended Complaint.
5 (Motion at p. 1).
6 III. LAW AND ARGUMENT
7 A. Petitioners' Motion is premature because there is no dismissal for wliicli to seelt relief
under Code df Civii Procedure section 473
8
Under Section 473(b), "a court may, upon any terms as may be just^ relieve a party or his
9
or her legal representative from ajudgment, dismissal, order, or other proceeding taken against
10
him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (Code of Civ.
11
Proc. § 473(b).) Relief under Section 473 is limited to circxmistances where there has been a
12
"default, default judgment, or dismissal." (Urban Wildlife Group v. City of Los Angeles (2017) 10
13
Cal.App.5th 993, *3-*5; see Nacimiento Regional Water Management Advisory Committee v.
14
Monterey County Water Resources (2005) 122 Cal.App.4th 961, 966 (petitioner admitted
15
dismissal was mandatory under section 21167.4(a), accepted the dismissal, then moved for relief
16
under section 473).). To read Section 473 '"to apply whenever a party loses his or her day in court
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due to attomey error goes far beyond anything the Legislature has done.'" {Urban Wildlife Group,
18
supra (citing Yeap v. Leake (1997) 60 Cal.App.4th 591).)
19
Here, there has been no "default, default judgment, or dismissal" taken against Petitioners.
20
It would appear that, like the petitioner in Nacimiento, supra. Petitioners here are conceding that
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dismissal is mandated, and are preemptively seeking Section 473 relief If the Court chooses to
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dismiss the case, as requested by the City, and then consider the pending Motion post-dismissal,
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the City has rio objection to that process. (See Comunidad En Accion v. Los Angeles County
24
(2013) 219 Cal.App.4th 1116, 1124,1130-1131 (motion to dismiss and 473 motion pending
25
concurrently, with court dismissing case before considering 473 relief).) However, unless and
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until there is a dismissal of the case. Section 473 relief is improper, and the Motion should be
27
denied. And, if the case is dismissed and the Motion is subsequently considered, relief should be
28
1566381.4 10784-236 3
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONEIIS/PLAINTIFFS'
MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]
1 denied.
2 B. An amended pleading does not affect the statutory obligations in Public Resources
Code section 21167.4 and the 90 days run from the filing of the petition
3
Public Resources Code section 21167.4(a) states, in no uncertain terms, that "the petitioner
4
shall request a hearing within 90 days from the date offiling the petition or shall be subject to
5
dismissal on the court's own motion or on the motion of any party interested in the action or
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proceeding." (Emphasis added.)
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Petitioners improperly add non-existent words to the statue in claiming that the time to
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request a hearing runs from the time of the filing of an amended complaint. As one appellate court
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aptly puts it in finding that statute unambiguous, section 21167.4 "means what it plainly says—the
10
request for a hearing must be filed within 90 days from the date the petition was filed.''^
11
{Fiorentino v. City of Fresno (2007) 150 Cal.App.4th 596, 602-603 (upholding dismissal and
12
denial of 473 relief, emphasis added).) In an analogous setting. Guardians of Elk Creek Old
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Growth V. Dept. of Forestry and Fire Protection (2001) 89 Cal.App.4th 1431, held that a transfer
14
of venue, did not re-start the 90-day period to request a hearing, as it did not constitute a "refiling"
15
in the receiving court. {Id. at 1434-1435.) Without equivocation, the court held, consistent with
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the statutory language that the "date the petition was originally filed is the beginning of the 90-day
17
per/oi/for requesting a hearing." (/i., emphasis added.)
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Petitioners confuse their right to amend a complaint, pursuant to Code of Civil Procedure
19
section 472, with their obligations set forth in Public Resources Code section 21167.4(a). The two
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statues and principles are separate. Section 21167.4(a) expressly states that the hearing must be
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requested "within 90 daysfi-omthe date of filing the petition..." (Emphasis added.) Had the
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Legislature intended that this requirement he tied to the dates petitions are amended, it could have
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and would have so stated. It did not. Any such interpretation would vitiate the hearing request
24
deadline because a petitioner could file a complaint, miss the deadline, then amend the complaint,
25
effectively eVading the limitations periods.
26
Petitioners' reliance on Friends of Roeding Park v. City of Fresno is misplaced. There, the
27
City of Fresno sought to dismiss the Friends of Roeding Park's ("Friends of Roeding Park")
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1566381.4 10784-236 A
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS'
MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]
1 complaint because Friends of Roeding Park did not seek a hearing within 90 days of filing their
2 petifion. {Friends of Roeding Park v. City of Fresno (2012) 848 F.Supp.2d 1152, 1165). Friends
3 of Roeding Park filed their original pefifion on August 1, 2011 and their amended complaint on
4 August 15, 2015. The court there stated, "The 90-day window expired at the absolute latest on
5 December 15, 2011... . There is no evidence Plainfiff has complied with § 21167.4 here.
6 Accordingly, the CEQA claim is DISMISSED." {Ibid.) (Emphasis in the original.) The court did
7 not resolve the issue of which date triggered the 90-day requirement - whether it be the original
8 filing or the amended filing. But, it did not need to resolve the point in order to dismiss the case
9 because the petitioner there was untimely under either timeline. Cases are not authority for issues
10 not actually decided. {Advanced-Tech Security Services, Inc. v. Superior Court (2008) 163
11 Cal.App.4th 700, 710.) The controlling statute and Califomia case law, as discussed above,
12 address this point and provide that the time to request a hearing runs from the time of the original
13 filing, not an amended filing.
14 Petitioners' reliance on McCormick v. Board of Supervisors does not change this result, as
15 that case did not involve the missing of the 90-day window. There, the court considered what was
16 at that time, a novel issue: the question of what constituted a "request for a hearing" for purposes
17 ofthe Public Resources Code which was in effect at that time. {McCormick v. Board of
18 Supervisors (2004) 122 Cal.App.4th 961, 968 {^'McCormick").) In that case, counsel had made a
19 good faith effort to request a hearing. Eighty-four days after the filing of the petition, counsel in
20 that case filed a pleading entitled, "Request for Hearing," and asked for a hearing pursuant to
21 Public Resources Code section 21167.4. {Id.) Counsel did not know that in addition to the filing,
22 he was required to contain a notice which would have scheduled the matter for a hearing on a date
23 certain. {Id.) The court found that since counsel had made an honest and timely attempt to request
24 a hearing, and did not have the benefit of the court's guidance of later case law clarifying the point,
25 that Code of Civil Procedure section 473 relief was appropriate. {Id.).
26 The facts of McCormick and the facts in this case are inapposite. Unlike petitioners'
27 counsel in McCormick, counsel for Petitioners here made no effort to request a hearing within 90
28 days of filing the Original Complaint. Any such attempt was made over two months after the
1566381.4 10784-236 5
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS'
MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]
1 deadline had already passed. Moreover, case law not in place at the time of the underlying facts of
2 McCormick, now squarely informs this issue. {McCormick at p. 352 ("practicing attomeys were
3 not yet aware that the failure to timely request a hearing would result in outright mandatory
4 dismissal of the action.").) See, San Franciscans For Reasonable Growth v. City and County of
5 San Francisco (1987) 189 Cal.App.3d 498, 504 {''SFRG") (failure to timely request hearing under
6 section 21167.4 results in mandatory dismissal).)
7 Unlike in McCormick, Petitioners here had the benefit of the court's guidance in SFRG,
8 and knew or should have known that the failure to timely request a hearing would result in
9 automatic dismissal. Contrary to Petitioners' purported justification that they were otherwise
10 vigorously prosecuting this case by submitting multiple public records act requests. Petitioners'
11 counsel has admitted, "If the case is dismissed I will continue to represent these parties, who are
12 members of the public and entitled to these documents." (Ebrahimi Decl. T| 3). Therefore, any
13 public records act requests submitted to the City were independent of the prosecution of this case.
14 In any event, submitting public records act requests is not a substitute for Petitioners' statutory
15 obligation to timely request a hearing.
16 The facts of this case also stand in stark contrast with those-set forth in Communidad en
17 Accion V. Los Angeles City Council (2013) 219 Cal.App.3d 1116 {^'Communidad") There, the
18 Court of Appeal granted relief to petitioners who missed the 90-day hearing requirement by seven
19 days, based on excusable neglect. {Id.) In that case, petitioners' counsel experienced a one week
20 calendaring error, which mistake was compounded by a family illness that required counsel to
21 leave the state for two weeks, immediately preceding the deadline. {Id.) Unlike in Communidad,
22 where petitioners' counsel filed the request only bne week after the deadline while simultaneously
23 responding to a family emergency. Petitioners' counsel here was more than two months
24 delinquent. Petitioners' CEQA claims are subject to mandatory dismissal under Section 21167.4.
25 C. Petitioner fails to demonstrate any entitlement to relief under Code of Civil
Procedure section 473
26
Petitioners' Motion fails not only procedurally, but on the merits as well. It is undisputed
27
that that Petitioners failed to request a hearing within 90 days of filing the Petition. Petitioners
28
1566381.4 10784-236 A
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS'
MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]
1 now seek discretionary relief under Section 473(b), but fail to provide a factual basis for such
2 relief
3 . Under Section 473(b), "a court may, upon any terms as may be just, relieve a party or his
4 or her legal representative from ajudgment, dismissal, order, or other proceeding taken against
5 him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (Code of Civ.
6 Proc. § 473(b) (emphasis added).) Factors that inform whether an attomey's mistake of law was
7 reasonable, hence excusable, are: 1) the reasonableness of the attomeys' misconception; and 2) the
8 justifiability of the failure to determine the correct law. {Anderson v. Sherman (1981) 125
9 Cal.App.3d 228, 238.) An attomey's mistake of law is not a ground for relief where the "mistake"
10 is "simply the result of professional incompetence, general ignorance of the law, or unjustifiable
11 negligence in discovering the law." {Heam v. Howard(2009) X l l Cal.App.4th 1193, 1206
12 (intemal quotes omitted).)
13 Even if such relief under Section 473 was available here, such relief requires a showing not
14 only that the mistake is excusable, but also that a party's counsel was otherwise diligent in seeking
15 to remedy the mistake. (See Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d
16 270, 276 {"Bettencourt").) The test for the discretioneiry relief portion of Section 473 "of whether
17 neglect was excusable is whether 'a reasonably pmdent person under the same or similar
18 circumstances' might have made the same error." {Luri v. Greenwald (2003) 107 Cal.App.4th
19 1119, 1128, quoting Bettencourt, supra, 42 Cal.3d at p. 276.) "In other words, the discretionary
20 relief provision of Section 473 only permits relief from attomey error 'fairly imputable to the
21 client, i.e., mistakes anyone could have made.'" {Zamora v. Clayborn Contracting Group, Inc.
22 (2002) 28 Cal.4th 249, 258 ('Zamora"), quoting Garcia v. Hejmadi (1997) 58 Cal.App.4th 674,
23 682.)
24 Here, Petitioners, fail to present any evidence, by counsel declaration or otherwise, of any
25 mistake, inadvertence, surprise, or excusable neglect. The declaration is completely void of this.
26 Instead, counsel recites the procedural history of the case and her explanation of certain strategic
27 decisions in the case, but there is not a word of any mistake, inadvertence, surprise, or neglect. To
28 the contrary, the declaration of Petitioners' counsel explains her strategy in seeking an injunction
1566381.4 10784-236 7
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS'
MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]
1 (which failed), the process of gathering documents for the record, her attendance at City Gouncii
2 meetings, her delays in prosecution of the case, and her legal reasoning in pursing an amended
3 complaint. But, there is no explanation why Petitioners did not file a simple request for hearing
4 within 90-days, while concurrently continuing to build an administrative record, as Petitioners
5 have elected to do. Rather than relying on some sort of mistake. Petitioners paint a picture of
6 calculated and strategic decisions not to seek a hearing and comply with CEQA's mandatory
7 hearing requirements. This is not an excusable mistake or neglect. Strategic decisions gone wrong
8 do not support grounds for Section 473 relief (See, e.g., English v. Ikon Business Solutions
9 (2001) 94 Cal.App.4th 130, 133 (decision to seek a continuance, rather than oppose summary
10 judgment motion on the merits, did not justify section 473 relief).)
11 While Petitioners attempt to conjure claims of vigorous prosecution of the case, one caimot
12 help but observe the multiple references in Petitioners' counsel's declaration seeking a "delay,"
13 "postponement," or "tolling" or the proceedings. (Bames Decl. | 1 | 4, 8, 17, 18.) While Petitioners
14 have exhibited an interest in keeping this litigation pending, they have exhibited no interest in
15 bringing it to a conclusion. The Legislature "plainly intended that a CEQA challenge be heard
16 within 210 days of commencement, or roughly seven months, absent exceptional circumstances."
17 {Nacimiento, at 968). With a filing date of November 23, 2016, that 210 day period will run on
18 June 21, 2017. Petitioners have failed to take any reasonable steps to diligently proceed with the
19 case to ensure its resolution by that date. Compliance with the requirements of Public Resources
20 Code section 21167.4 and prosecution of the case are not mutually exclusive; one is not prevented
21 from one by doing the other.
22 Petitioners' counsel's error in this case was not an excusable mistake, but rather a
23 conscious strategic decision «or to request a hearing. Petitioners' counsel declares that ("On
24 Febmary 22,2017, (one day after the expiration of the 90-day hearing request deadline) the City
25 Council passed Ordinance 07-2017, repealing Ordinance 23-2016. (Bames Decl. H 12)
26 (Alterations added)).") (Motion at p. 5). Until Febmary 22, 2017, Petitioners' counsel had no
27 reason to believe the case was moot, and should have requested a hearing by Febmary 21, 2017.
28 Petitioners' counsel then compounded this inexcusable conduct through a motion requesting a
1566381.4 10784-236 g
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS'
MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]
1 hearing, months after the deadline had already passed. (Bames Decl. T| 20).
2 Petitioners claim in their brief (but not in any declaration) that Petitioners' counsel
3 "reasonably believed in good faith that the statutory deadlines under CEQA were postponed
4 because of the City's failure to review and comment on the Preliminary Record Transcript, had
5 been rendered moot as to the Original Writ, or were superseded by the filing of the Amended Writ,
6 which added a supplementary CEQA cause of action." (Petitioners' Points and Authorities at
'7 12:11-15.) The City is unsure what Petitioners' mean by "Preliminary Record Transcript," but
8 presume Petitioner is speaking of the administrative record, which Petitioners have elected to
9 prepare, but have not done. In any event, no authority or factual predicate is provided as to the
10 claimed "reasonable belief of counsel. In fact, the Nacimeinto court rejected a claim of mistake
11 and denied section 473 relief on similar grounds where the petitioner there incorrectly thought the
12 statutory hearing request time frames run from the completion of the record. {Nacimeinto, at 923.)
13 And, as explained above, Califomia statutory and case law provide that the time to request a
14 hearing runs from the original petition filing, not an amended petition. (See, discussion, supra.)
15 There has been no factual or legal showing by Petitioners to justify relief under Section
16 473. Petitioners' Motion should be denied.
17 D. Prejudice will Result Unless the Motion is Denied
18 Petitioners claim that the granting of Section 473 relief, and the continuation of the CEQA
19 litigation, will not prejudice the City. For instance, they contend that "the City can cite to no
20 evidence that.the late filing of the request for hearing has had any effect on the scheduling of this
21 case, or that Petitioners' litigation has caused delays or impeded the intended action challenged
22 under the Original Writ..." (Motion at p. 14). Petitioners have failed to even make an initial
23 showing of entitlement to relief under Section 473, and thus the City is not required to show
24 prejudice. (See Nacimeinto, at 924, 927 (noting that "financial prejudice and dismption") is
25 inherent in continued CEQA litigation, and upholding dismissal, and denial of 473 relief, without
26 a specific showing of prejudice to respondents).) Nevertheless, the City will be prejudiced if this
27 Motion is granted because the City will be required to further respond to a lawsuit it would
28 otherwise not have to defend. Prejudice would also occur to the Real Parties in Interest who have
1566381.4 10784-236 ' 9
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS'
MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]
1 sold the underlying Property, which is now held in tmst by the United States of America.
2 Petitioners' reliance on Section 473 is unexplained and inexcusable. Petitioners' counsel
3 does not, and carmot, offer any excuse or justification for the failure to request a hearing within the
i'
4
statute of limitations.
5
IV. CONCLUSION
6
Petitioners failed to comply with the mandatory hearing request requirements of CEQA
7
and provided no factual or legal basis for their failings. For all the reasons presented. Petitioners'
8
request for Section 473 relief should be denied.
9
Dated: May 19,2017 KRONICK, MOSKOVITZ, TIEDEMANN «fe GIRARD
10 A Professional Corporation
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gl
Mona p . Ebrahimi
Attomeys for Respondent and Defendant CITY
14 OF ELK GROVE
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1566381.4 10784-236 10
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS'
MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]
1 PROOF OF SERVICE
2 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 19, 2017,1 served tme copies of the following document(s) described as
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO
6 PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ.
Proc, § 473] on the interested parties in this action as follows:
7
SEE ATTACHED SERVICE LIST
8
BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an
9 agreement ofthe parties to accept service by e-mail or electronic transmission, I caused the
document(s) to be sent from e-mail address emay@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
transmission, 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 19, 2017, at Sacramento, Califomia.
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1566381.4 10784-236
11
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS'
MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]
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. Barnes & 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@landlawbvbames.com Telephone: (916) 683-7111
7 arembree@landlawbvbarnes.com Facsimile: (916) 627-4100
Email: ihobbs@,elkerovecitv.ore
8 Attorneys for Petitioners and Plaintiffs ialves@elkerovecitv.ore
skennedv@elkgrovecitv.org
9
Attorneys for Respondent and Defendant
10
Scott M. Pearson
11 Taylor R. Steinbacher
Zaven A. Sargsian
12 Ballard Spahr LLP
2029 Centtiry 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
saresianz@ballardspahr.com ^
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Attorneys for Real Parties in Interest and
17 Defendants
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1566381.4 10784-236
12
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS'
MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]
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 19, 2017,1 served tme copies of the following document(s) described as
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO
6 PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ.
Proc, § 473] on the interested parties in this action as follows:
7
SEE ATTACHED SERVICE LIST
8
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy ofthe
9 document(s) to be sent from e-mail address emay@kmtg.com to the persons at the e-mail
addresses listed in the Service List. I did not receive, within a reasonable time after the
10 transmission, 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
and addressed to the persons at the addresses listed in the Service List. I placed the envelope or
12 package for collection and ovemight delivery at an office or a regularly utilized drop box of FedEx
or delivered such document(s) to a courier or driver authorized by FedEx to receive documents.
13
I declare under penalty of perjury under the laws of the State of Califomia that the
14 foregoing is tme and correct.
15 Executed on May 19, 2017, at Sacramento, Califomia.
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1566381.4 10784-236 11
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS'
MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]
1 SERVICE LIST
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3 Brigit S. Bames Jonathan P. Hobbs, City Attomey
Armie R. Erhbree Jennifer A. Alves, Asst. City Attomey
4 Brigit S. Bames & Associates, Inc. Suzarme 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@landlawbybeimes.com Telephone: (916) 683-7111
7 arembree@landlawbvbames.com Facsimile: (916)627-4100
Email: ihobbs@elkgrovecitv.ore
8 Attorneys for Petitioners and Plaintiffs ialves@,elkerovecitv.ore
skennedv@elkgrovecity.org
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Attorneys for Respondent and Defendant
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Scott M. Pearson
11 Taylor R. Steinbacher
Zaven A. Sargsian
12 Ballard Spahr 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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Attorneys for Real Parties in Interest and
17 Defendants.
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1566381.4 10784-236 12
RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS'
MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]'
Preview
[Exempt From Filing ^'ee Gove^|nent^Code § 6103] 1 MONA G. EBRAHIMI, State Bar No. 236550 mebrahimi@kmtg.com 2 LESLIE Z. WALKER, State Bar No. 249310 mimiis PH i: j | lwalker@kmtg.com 3 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD A Professional Corporation 4 400 Capitol Mall, 27^^ Floor Sacramento, Califomia 95814 5 Telephone: (916) 321-4500 Facsimile: (916) 321-4555 6 JONATHAN P. HOBBS, State Bar No. 186045 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 CITY 15 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 Petitioners and Plaintiffs, RESPONDENT/DEFENDANT CITY OF 20 E L K GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS' MOTION 21 FOR R E L I E F FROM DISMISSAL CITY OF ELK GROVE, [Code Civ. Proc., § 473] 22 Respondent and Defendant. Judge: Hon. Shelleyarme W.L. Chang 23 Date: June 2, 1027 ELK GROVE TOWN CENTER, LP; Time: 11:00 a.m. 24 HOWARD HUGHES CORPORATION; and Dept.: 24 DOES 1-20, 25 Petition Filed: November 23, 2016 Real Parties in Interest and 26 Defendants. 27 III 28 III 1566381.4 10784-236 1 RESPONDENT/DEFENDANT CITYOF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] 1 I. INTRODUCTION 2 Respondent and Defendant City of Elk Grove ("City") hereby files this Opposition to 3 Petitioners and Plaintiffs Patty Johnson; Joe Teixeira; Omar Ahmed, Jr; Xin Guso; and Carolyn 4 Soares's (collectively, "Petitioners") Motion for Relief from Dismissal [Code Civ. Proc, § 473] 5 ("Motion"). 6 The City and Elk Grove Town Center, LP and Howard Hughes Corporation ("Real Parties 7 in Interest")filedtheir demurrers to Petitioners' Verified Amended Petition for Writ of Mandate 8 and Complaint for Declaratory Relief ("Amended Complaint") on May 3, 2017 and May 8, 2017, 9 respectively. Presumably concemed about the City and Real Parties' request that this court 10 dismiss the Amended Complaint for failing to request a hearing. Petitioners prematurelyfiledtheir 11 Motion. Petitioners' Motion should be denied for both procedural and substantive reasons. First, 12 Petitioners' Motion is not yet ripe since there has been no judgment or dismissal from which 13 Petitioners may seek relief Second, failing to request a hearing as required by Public Resources 14 Code section 21167.4 mandates an automatic dismissal of the CEQA claims. Even if the Court 15 were to consider Petitioners' plea for relief under Section 473, Petitioners fail to show any 16 entitlement to such relief 17 IL STATEMENT OF FACTS 18 On November 23, 2016, Petitioners filed their original Petition for Writ of Mandate and 19 Complaint for Declaratory and Injiuictive Relief ("Original Complaint"). Public Resources Code 20 section 21167.4(a) states, "In any action or proceeding alleging noncompliance with this division, 21 the petitioner s/ifl// request a hearing within 90 days from the date of filing the petition or shall be 22 subject to dismissal on the court's own motion or on the motion of any party interested in the 23 action or proceeding." (Emphasis added.) Ninety daysfi-omNovember 23, 2016 is Febmary 21, 24 2017. Therefore, Petitioners' last day to request a hearing was on Febmary 21, 2017. 25 Petitioners did not file a request for hearing date within this time period. Instead, on 26 March 13, 2017, well after the deadline had passed to request a hearing. Petitioners filed their 27 Amended Complaint. (Motion at p. 6). During the parties' meet and confer teleconference. 28 Petitioners' counsel was advised that the City would be demurring to the Amended Complaint. 1566381.4 10784-236 2 RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] 1 (Motion at p. 1). Among other reasons, the City stated it would demur on the basis that Petitioners 2 failed to request a timely hearing. (Motion at p. 1). On April 25, 2017, Petitioners belatedly filed 3 two requests for hearing with this court, one based on thefilingof the Original Complaint (over 4 two months past the deadline), and another based on thefilingof the Amended Complaint. 5 (Motion at p. 1). 6 III. LAW AND ARGUMENT 7 A. Petitioners' Motion is premature because there is no dismissal for wliicli to seelt relief under Code df Civii Procedure section 473 8 Under Section 473(b), "a court may, upon any terms as may be just^ relieve a party or his 9 or her legal representative from ajudgment, dismissal, order, or other proceeding taken against 10 him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (Code of Civ. 11 Proc. § 473(b).) Relief under Section 473 is limited to circxmistances where there has been a 12 "default, default judgment, or dismissal." (Urban Wildlife Group v. City of Los Angeles (2017) 10 13 Cal.App.5th 993, *3-*5; see Nacimiento Regional Water Management Advisory Committee v. 14 Monterey County Water Resources (2005) 122 Cal.App.4th 961, 966 (petitioner admitted 15 dismissal was mandatory under section 21167.4(a), accepted the dismissal, then moved for relief 16 under section 473).). To read Section 473 '"to apply whenever a party loses his or her day in court 17 due to attomey error goes far beyond anything the Legislature has done.'" {Urban Wildlife Group, 18 supra (citing Yeap v. Leake (1997) 60 Cal.App.4th 591).) 19 Here, there has been no "default, default judgment, or dismissal" taken against Petitioners. 20 It would appear that, like the petitioner in Nacimiento, supra. Petitioners here are conceding that 21 dismissal is mandated, and are preemptively seeking Section 473 relief If the Court chooses to 22 dismiss the case, as requested by the City, and then consider the pending Motion post-dismissal, 23 the City has rio objection to that process. (See Comunidad En Accion v. Los Angeles County 24 (2013) 219 Cal.App.4th 1116, 1124,1130-1131 (motion to dismiss and 473 motion pending 25 concurrently, with court dismissing case before considering 473 relief).) However, unless and 26 until there is a dismissal of the case. Section 473 relief is improper, and the Motion should be 27 denied. And, if the case is dismissed and the Motion is subsequently considered, relief should be 28 1566381.4 10784-236 3 RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONEIIS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] 1 denied. 2 B. An amended pleading does not affect the statutory obligations in Public Resources Code section 21167.4 and the 90 days run from the filing of the petition 3 Public Resources Code section 21167.4(a) states, in no uncertain terms, that "the petitioner 4 shall request a hearing within 90 days from the date offiling the petition or shall be subject to 5 dismissal on the court's own motion or on the motion of any party interested in the action or 6 proceeding." (Emphasis added.) 7 Petitioners improperly add non-existent words to the statue in claiming that the time to 8 request a hearing runs from the time of the filing of an amended complaint. As one appellate court 9 aptly puts it in finding that statute unambiguous, section 21167.4 "means what it plainly says—the 10 request for a hearing must be filed within 90 days from the date the petition was filed.''^ 11 {Fiorentino v. City of Fresno (2007) 150 Cal.App.4th 596, 602-603 (upholding dismissal and 12 denial of 473 relief, emphasis added).) In an analogous setting. Guardians of Elk Creek Old 13 Growth V. Dept. of Forestry and Fire Protection (2001) 89 Cal.App.4th 1431, held that a transfer 14 of venue, did not re-start the 90-day period to request a hearing, as it did not constitute a "refiling" 15 in the receiving court. {Id. at 1434-1435.) Without equivocation, the court held, consistent with 16 the statutory language that the "date the petition was originally filed is the beginning of the 90-day 17 per/oi/for requesting a hearing." (/i., emphasis added.) 18 Petitioners confuse their right to amend a complaint, pursuant to Code of Civil Procedure 19 section 472, with their obligations set forth in Public Resources Code section 21167.4(a). The two 20 statues and principles are separate. Section 21167.4(a) expressly states that the hearing must be 21 requested "within 90 daysfi-omthe date of filing the petition..." (Emphasis added.) Had the 22 Legislature intended that this requirement he tied to the dates petitions are amended, it could have 23 and would have so stated. It did not. Any such interpretation would vitiate the hearing request 24 deadline because a petitioner could file a complaint, miss the deadline, then amend the complaint, 25 effectively eVading the limitations periods. 26 Petitioners' reliance on Friends of Roeding Park v. City of Fresno is misplaced. There, the 27 City of Fresno sought to dismiss the Friends of Roeding Park's ("Friends of Roeding Park") 28 1566381.4 10784-236 A RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] 1 complaint because Friends of Roeding Park did not seek a hearing within 90 days of filing their 2 petifion. {Friends of Roeding Park v. City of Fresno (2012) 848 F.Supp.2d 1152, 1165). Friends 3 of Roeding Park filed their original pefifion on August 1, 2011 and their amended complaint on 4 August 15, 2015. The court there stated, "The 90-day window expired at the absolute latest on 5 December 15, 2011... . There is no evidence Plainfiff has complied with § 21167.4 here. 6 Accordingly, the CEQA claim is DISMISSED." {Ibid.) (Emphasis in the original.) The court did 7 not resolve the issue of which date triggered the 90-day requirement - whether it be the original 8 filing or the amended filing. But, it did not need to resolve the point in order to dismiss the case 9 because the petitioner there was untimely under either timeline. Cases are not authority for issues 10 not actually decided. {Advanced-Tech Security Services, Inc. v. Superior Court (2008) 163 11 Cal.App.4th 700, 710.) The controlling statute and Califomia case law, as discussed above, 12 address this point and provide that the time to request a hearing runs from the time of the original 13 filing, not an amended filing. 14 Petitioners' reliance on McCormick v. Board of Supervisors does not change this result, as 15 that case did not involve the missing of the 90-day window. There, the court considered what was 16 at that time, a novel issue: the question of what constituted a "request for a hearing" for purposes 17 ofthe Public Resources Code which was in effect at that time. {McCormick v. Board of 18 Supervisors (2004) 122 Cal.App.4th 961, 968 {^'McCormick").) In that case, counsel had made a 19 good faith effort to request a hearing. Eighty-four days after the filing of the petition, counsel in 20 that case filed a pleading entitled, "Request for Hearing," and asked for a hearing pursuant to 21 Public Resources Code section 21167.4. {Id.) Counsel did not know that in addition to the filing, 22 he was required to contain a notice which would have scheduled the matter for a hearing on a date 23 certain. {Id.) The court found that since counsel had made an honest and timely attempt to request 24 a hearing, and did not have the benefit of the court's guidance of later case law clarifying the point, 25 that Code of Civil Procedure section 473 relief was appropriate. {Id.). 26 The facts of McCormick and the facts in this case are inapposite. Unlike petitioners' 27 counsel in McCormick, counsel for Petitioners here made no effort to request a hearing within 90 28 days of filing the Original Complaint. Any such attempt was made over two months after the 1566381.4 10784-236 5 RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] 1 deadline had already passed. Moreover, case law not in place at the time of the underlying facts of 2 McCormick, now squarely informs this issue. {McCormick at p. 352 ("practicing attomeys were 3 not yet aware that the failure to timely request a hearing would result in outright mandatory 4 dismissal of the action.").) See, San Franciscans For Reasonable Growth v. City and County of 5 San Francisco (1987) 189 Cal.App.3d 498, 504 {''SFRG") (failure to timely request hearing under 6 section 21167.4 results in mandatory dismissal).) 7 Unlike in McCormick, Petitioners here had the benefit of the court's guidance in SFRG, 8 and knew or should have known that the failure to timely request a hearing would result in 9 automatic dismissal. Contrary to Petitioners' purported justification that they were otherwise 10 vigorously prosecuting this case by submitting multiple public records act requests. Petitioners' 11 counsel has admitted, "If the case is dismissed I will continue to represent these parties, who are 12 members of the public and entitled to these documents." (Ebrahimi Decl. T| 3). Therefore, any 13 public records act requests submitted to the City were independent of the prosecution of this case. 14 In any event, submitting public records act requests is not a substitute for Petitioners' statutory 15 obligation to timely request a hearing. 16 The facts of this case also stand in stark contrast with those-set forth in Communidad en 17 Accion V. Los Angeles City Council (2013) 219 Cal.App.3d 1116 {^'Communidad") There, the 18 Court of Appeal granted relief to petitioners who missed the 90-day hearing requirement by seven 19 days, based on excusable neglect. {Id.) In that case, petitioners' counsel experienced a one week 20 calendaring error, which mistake was compounded by a family illness that required counsel to 21 leave the state for two weeks, immediately preceding the deadline. {Id.) Unlike in Communidad, 22 where petitioners' counsel filed the request only bne week after the deadline while simultaneously 23 responding to a family emergency. Petitioners' counsel here was more than two months 24 delinquent. Petitioners' CEQA claims are subject to mandatory dismissal under Section 21167.4. 25 C. Petitioner fails to demonstrate any entitlement to relief under Code of Civil Procedure section 473 26 Petitioners' Motion fails not only procedurally, but on the merits as well. It is undisputed 27 that that Petitioners failed to request a hearing within 90 days of filing the Petition. Petitioners 28 1566381.4 10784-236 A RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] 1 now seek discretionary relief under Section 473(b), but fail to provide a factual basis for such 2 relief 3 . Under Section 473(b), "a court may, upon any terms as may be just, relieve a party or his 4 or her legal representative from ajudgment, dismissal, order, or other proceeding taken against 5 him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (Code of Civ. 6 Proc. § 473(b) (emphasis added).) Factors that inform whether an attomey's mistake of law was 7 reasonable, hence excusable, are: 1) the reasonableness of the attomeys' misconception; and 2) the 8 justifiability of the failure to determine the correct law. {Anderson v. Sherman (1981) 125 9 Cal.App.3d 228, 238.) An attomey's mistake of law is not a ground for relief where the "mistake" 10 is "simply the result of professional incompetence, general ignorance of the law, or unjustifiable 11 negligence in discovering the law." {Heam v. Howard(2009) X l l Cal.App.4th 1193, 1206 12 (intemal quotes omitted).) 13 Even if such relief under Section 473 was available here, such relief requires a showing not 14 only that the mistake is excusable, but also that a party's counsel was otherwise diligent in seeking 15 to remedy the mistake. (See Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 16 270, 276 {"Bettencourt").) The test for the discretioneiry relief portion of Section 473 "of whether 17 neglect was excusable is whether 'a reasonably pmdent person under the same or similar 18 circumstances' might have made the same error." {Luri v. Greenwald (2003) 107 Cal.App.4th 19 1119, 1128, quoting Bettencourt, supra, 42 Cal.3d at p. 276.) "In other words, the discretionary 20 relief provision of Section 473 only permits relief from attomey error 'fairly imputable to the 21 client, i.e., mistakes anyone could have made.'" {Zamora v. Clayborn Contracting Group, Inc. 22 (2002) 28 Cal.4th 249, 258 ('Zamora"), quoting Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 23 682.) 24 Here, Petitioners, fail to present any evidence, by counsel declaration or otherwise, of any 25 mistake, inadvertence, surprise, or excusable neglect. The declaration is completely void of this. 26 Instead, counsel recites the procedural history of the case and her explanation of certain strategic 27 decisions in the case, but there is not a word of any mistake, inadvertence, surprise, or neglect. To 28 the contrary, the declaration of Petitioners' counsel explains her strategy in seeking an injunction 1566381.4 10784-236 7 RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] 1 (which failed), the process of gathering documents for the record, her attendance at City Gouncii 2 meetings, her delays in prosecution of the case, and her legal reasoning in pursing an amended 3 complaint. But, there is no explanation why Petitioners did not file a simple request for hearing 4 within 90-days, while concurrently continuing to build an administrative record, as Petitioners 5 have elected to do. Rather than relying on some sort of mistake. Petitioners paint a picture of 6 calculated and strategic decisions not to seek a hearing and comply with CEQA's mandatory 7 hearing requirements. This is not an excusable mistake or neglect. Strategic decisions gone wrong 8 do not support grounds for Section 473 relief (See, e.g., English v. Ikon Business Solutions 9 (2001) 94 Cal.App.4th 130, 133 (decision to seek a continuance, rather than oppose summary 10 judgment motion on the merits, did not justify section 473 relief).) 11 While Petitioners attempt to conjure claims of vigorous prosecution of the case, one caimot 12 help but observe the multiple references in Petitioners' counsel's declaration seeking a "delay," 13 "postponement," or "tolling" or the proceedings. (Bames Decl. | 1 | 4, 8, 17, 18.) While Petitioners 14 have exhibited an interest in keeping this litigation pending, they have exhibited no interest in 15 bringing it to a conclusion. The Legislature "plainly intended that a CEQA challenge be heard 16 within 210 days of commencement, or roughly seven months, absent exceptional circumstances." 17 {Nacimiento, at 968). With a filing date of November 23, 2016, that 210 day period will run on 18 June 21, 2017. Petitioners have failed to take any reasonable steps to diligently proceed with the 19 case to ensure its resolution by that date. Compliance with the requirements of Public Resources 20 Code section 21167.4 and prosecution of the case are not mutually exclusive; one is not prevented 21 from one by doing the other. 22 Petitioners' counsel's error in this case was not an excusable mistake, but rather a 23 conscious strategic decision «or to request a hearing. Petitioners' counsel declares that ("On 24 Febmary 22,2017, (one day after the expiration of the 90-day hearing request deadline) the City 25 Council passed Ordinance 07-2017, repealing Ordinance 23-2016. (Bames Decl. H 12) 26 (Alterations added)).") (Motion at p. 5). Until Febmary 22, 2017, Petitioners' counsel had no 27 reason to believe the case was moot, and should have requested a hearing by Febmary 21, 2017. 28 Petitioners' counsel then compounded this inexcusable conduct through a motion requesting a 1566381.4 10784-236 g RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] 1 hearing, months after the deadline had already passed. (Bames Decl. T| 20). 2 Petitioners claim in their brief (but not in any declaration) that Petitioners' counsel 3 "reasonably believed in good faith that the statutory deadlines under CEQA were postponed 4 because of the City's failure to review and comment on the Preliminary Record Transcript, had 5 been rendered moot as to the Original Writ, or were superseded by the filing of the Amended Writ, 6 which added a supplementary CEQA cause of action." (Petitioners' Points and Authorities at '7 12:11-15.) The City is unsure what Petitioners' mean by "Preliminary Record Transcript," but 8 presume Petitioner is speaking of the administrative record, which Petitioners have elected to 9 prepare, but have not done. In any event, no authority or factual predicate is provided as to the 10 claimed "reasonable belief of counsel. In fact, the Nacimeinto court rejected a claim of mistake 11 and denied section 473 relief on similar grounds where the petitioner there incorrectly thought the 12 statutory hearing request time frames run from the completion of the record. {Nacimeinto, at 923.) 13 And, as explained above, Califomia statutory and case law provide that the time to request a 14 hearing runs from the original petition filing, not an amended petition. (See, discussion, supra.) 15 There has been no factual or legal showing by Petitioners to justify relief under Section 16 473. Petitioners' Motion should be denied. 17 D. Prejudice will Result Unless the Motion is Denied 18 Petitioners claim that the granting of Section 473 relief, and the continuation of the CEQA 19 litigation, will not prejudice the City. For instance, they contend that "the City can cite to no 20 evidence that.the late filing of the request for hearing has had any effect on the scheduling of this 21 case, or that Petitioners' litigation has caused delays or impeded the intended action challenged 22 under the Original Writ..." (Motion at p. 14). Petitioners have failed to even make an initial 23 showing of entitlement to relief under Section 473, and thus the City is not required to show 24 prejudice. (See Nacimeinto, at 924, 927 (noting that "financial prejudice and dismption") is 25 inherent in continued CEQA litigation, and upholding dismissal, and denial of 473 relief, without 26 a specific showing of prejudice to respondents).) Nevertheless, the City will be prejudiced if this 27 Motion is granted because the City will be required to further respond to a lawsuit it would 28 otherwise not have to defend. Prejudice would also occur to the Real Parties in Interest who have 1566381.4 10784-236 ' 9 RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] 1 sold the underlying Property, which is now held in tmst by the United States of America. 2 Petitioners' reliance on Section 473 is unexplained and inexcusable. Petitioners' counsel 3 does not, and carmot, offer any excuse or justification for the failure to request a hearing within the i' 4 statute of limitations. 5 IV. CONCLUSION 6 Petitioners failed to comply with the mandatory hearing request requirements of CEQA 7 and provided no factual or legal basis for their failings. For all the reasons presented. Petitioners' 8 request for Section 473 relief should be denied. 9 Dated: May 19,2017 KRONICK, MOSKOVITZ, TIEDEMANN «fe GIRARD 10 A Professional Corporation 11 12 13 gl Mona p . Ebrahimi Attomeys for Respondent and Defendant CITY 14 OF ELK GROVE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1566381.4 10784-236 10 RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] 1 PROOF OF SERVICE 2 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 19, 2017,1 served tme copies of the following document(s) described as RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO 6 PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] on the interested parties in this action as follows: 7 SEE ATTACHED SERVICE LIST 8 BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an 9 agreement ofthe parties to accept service by e-mail or electronic transmission, I caused the document(s) to be sent from e-mail address emay@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 transmission, 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 19, 2017, at Sacramento, Califomia. 16 17 18 Elizabe 19 20 21 22 23 24 25 26 27 28 1566381.4 10784-236 11 RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] 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. Barnes & 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@landlawbvbames.com Telephone: (916) 683-7111 7 arembree@landlawbvbarnes.com Facsimile: (916) 627-4100 Email: ihobbs@,elkerovecitv.ore 8 Attorneys for Petitioners and Plaintiffs ialves@elkerovecitv.ore skennedv@elkgrovecitv.org 9 Attorneys for Respondent and Defendant 10 Scott M. Pearson 11 Taylor R. Steinbacher Zaven A. Sargsian 12 Ballard Spahr LLP 2029 Centtiry 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 saresianz@ballardspahr.com ^ 16 Attorneys for Real Parties in Interest and 17 Defendants 18 19 20 21 22 23 24 25 26 27 28 1566381.4 10784-236 12 RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] 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 19, 2017,1 served tme copies of the following document(s) described as RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO 6 PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] on the interested parties in this action as follows: 7 SEE ATTACHED SERVICE LIST 8 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy ofthe 9 document(s) to be sent from e-mail address emay@kmtg.com to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the 10 transmission, 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 and addressed to the persons at the addresses listed in the Service List. I placed the envelope or 12 package for collection and ovemight delivery at an office or a regularly utilized drop box of FedEx or delivered such document(s) to a courier or driver authorized by FedEx to receive documents. 13 I declare under penalty of perjury under the laws of the State of Califomia that the 14 foregoing is tme and correct. 15 Executed on May 19, 2017, at Sacramento, Califomia. 16 17 18 19 20 21 22 23 24 25 26 27 28 1566381.4 10784-236 11 RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473] 1 SERVICE LIST 2 3 Brigit S. Bames Jonathan P. Hobbs, City Attomey Armie R. Erhbree Jennifer A. Alves, Asst. City Attomey 4 Brigit S. Bames & Associates, Inc. Suzarme 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@landlawbybeimes.com Telephone: (916) 683-7111 7 arembree@landlawbvbames.com Facsimile: (916)627-4100 Email: ihobbs@elkgrovecitv.ore 8 Attorneys for Petitioners and Plaintiffs ialves@,elkerovecitv.ore skennedv@elkgrovecity.org 9 Attorneys for Respondent and Defendant 10 Scott M. Pearson 11 Taylor R. Steinbacher Zaven A. Sargsian 12 Ballard Spahr 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 Attorneys for Real Parties in Interest and 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28 1566381.4 10784-236 12 RESPONDENT/DEFENDANT CITY OF ELK GROVE'S OPPOSITION TO PETITIONERS/PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL [Code Civ. Proc, § 473]'