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[Exempt From Filing Fee
Government Code § 6103]
toil.* feifjSW
1 MONA G. EBRAHIMI, State Bar No. 236550 ENDORSED
mebrahimi@kmtg.com
2. LESLIE Z. WALKER, State Bar No. 249310
lwalker@kmtg.com 20!5DEC2I PMi2:37
3 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation .GDSSC COURTHOUSE
SUPERtOR COURT
4 400 Capitol Mall, 27'*' Floor OF CAUFORNIA
Sacramento, Caiifomia 95814 SACRAMENTO COUNTY
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, Caiifomia 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
19 STAND UP CALIFORNIA!; PATTY Case No. 34-2016-80002493
JOHNSON; and JOE TEIXEIRA,
20 RESPONDENT'S OPPOSITION TO
Petitioners and Plaintiffs, PETITIONERS' E X PARTE
21 APPLICATION FOR ORDER TO SHOW
v. CAUSE R E PRELIMINARY
22 INJUNCTION AND TEMPORARY
CITY OF ELK GROVE, RESTRAINING ORDER
23
Respondent and Defendant. Date: December 22, 2016
24 Time: 9:00 a.m.
Dept.: 24
25 ELK GROVE TOWN CENTER, LP;
HOWARD HUGHES CORPORATION; and
26 DOES 1-20,
27 Real Parties in Interest and
Defendants.
28
1522524.2 10784-236 1
RESPONDENT'S OPPOSITION TO PETITIONERS' EX PARTE APPLICATION FOR ORDER TO SHOW
CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER
1 I. INTRODUCTION
2 Respondent/Defendant City of Elk Grove ("City") hereby files this Opposition to
3 Petitioners' Stand Up California!, Patty Johnson, and Joe Teixeira's (collectively, "Petitioners")
4 Ex Parte Application for Order to Show Cause Re Preliminary Injunction and Temporary
5 Restraining Order ("Application").
6 The City recorded a "Notice Re First Amendment to Development Agreement" ("Notice"),
7 providing notice of the suspension of the ordinance and development agreement, which documents
8 are the subject of Petitioners' Application. Because such recording moots Petitioners' complaint,
9 the Application should be denied in its entirety.
10 IL STATEMENT OF FACTS
11 On October 26, 2016, the City adopted Ordinance No. 23-2016 (the "Ordinance")
12 approving a First Amendment to the Development Agreement between the City of Elk Grove and
13 Elk Grove Town Center ("Development Agreement Amendment"). (See Petitioners' Ex Parte
14 Application at 2:19-20.)
15 The City then recorded the Ordinance and Development Agreement Amendment
16 (collectively, the "Approvals") with the Sacramento County Recorder. (See Application at 2:22-
17 23.) On November 21, 2016, the City received a referendum petition (the "Referendum"), seeking
18 to set aside the Approvals. (See Application at 2:23-24.) Pursuant to Elections Code section 9237,
19 which states in part that "the effective date of the ordinance shall be suspended and the legislative
20 body shall reconsider the ordinance" upon the filing of a referendum, the City filed the Notice,
21 providing notice of the suspension of the Approvals.
22 III. LEGAL STANDARD
23 "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
24 the merits, that he is likely to suffer ineparable harm in the absence of preliminary relief, that the
25 balance of equities tips in his favor, and that an injunction is in the public interest." (Winter v.
26 Natural Resources Defense Council (2008) 555 U.S. 7, 20; see also IT Corp. v. County of Imperial
27 (1983) 35 Cal.3d 63, 69-70.) These standards are codified in Code of Civil Procedure section 526,
28
1522524.2 10784-236 9
RESPONDENT'S OPPOSITION TO PETITIONERS' EX PARTE APPLICATION FOR ORDER TO SHOW
CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER
I which also requires that the situation must be such that "pecuniary compensation would not afford
2 adequate relief." (Code Civ. Proc. § 526(a)(4).)
3 "A preliminary injunction is an extraordinary remedy never awarded as ofright."{Winter
4 V. Natural Resources Defense Counsel, supra, 129 S. Ct. at 376.) It is Petitioners' burden to
5 establish these elements and they have failed to do so.
6 IV. LAW AND ARGUMENT
7 In order to prevail on their Application, Petitioners must prove that they are likely to
8 succeed in this action on its merits, namely that Petitioners will likely prevail in obtaining a
9 permanent injunction against the City. Petitioners must also demonstrate that they will suffer
10 ineparable harm if the injunction does not issue, specifically, that Petitioners will suffer imminent
ll harm and that there is no adequate remedy at law that could compensate Petitioners for any
12 resulting injury. In addition, Petitioners must demonstrate that the balance of equities tips in
13 Petitioners' favor, and that issuance of the injunction is in the public's interest. As explained
14 below, Petitioners have failed to establish any of the elements required to wanant the issuance of a
15 preliminary injunction against the City, and therefore Petitioners' Application should be denied.
16 "To issue an injunction is the exercise of a delicate power, requiring great caution and
17 sound discretion, and rarely, if ever, should it be exercised in a doubtful case." {Fleishman v.
18 Superior Court (2002) 102 Cal.App.4th 350, 355 [intemal quotes, brackets omitted]; San
19 Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442.) This
20 holding rings particularly true in cases involving the govemment. "[W]here govemmental action
21 is involved, courts should not intervene unless the need for equitable relief is clear, not remote or
22 speculative." {Dawson v. East Side Union H.S Dist. (1994) 28 Cal.App.4th 998, 1040 [intemal
23 quotations and citation omitted]. If there is little possibility that the Petitioners will be successful
24 on the merits of the claim, then a preliminary injunction "must not issue" regardless ofthe
25 Petitioners' showing of harm. {San Francisco Newspaper Printing Co., 170 Cal.App.3d at 442.)
26 ///
27 ///
28 ///
1522524,2 10784-236 T
RESPONDENT'S OPPOSITION TO PETITIONERS' EX PARTE APPLICATION FOR ORDER TO SHOW
CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER
1 A. Petitioners are Not Likely to Succeed on the Merits of the Case Because the City
Suspended the Effectiveness of the Approvals, Pending Disposition of the
2 Referendum and Mooted Petitioners' Claims
3 Petitioners assert that "By virtue of the premature filing of the Ordinance, Plaintiffs have
4 been denied their statutory and Caiifomia Constitutionalrightsto referend the Ordinance."
5 (Application at 3:6-7.) Petitioners then ask that this Court order the City to (I) "take all necessary
6 actions immediately in order to restore Plaintiffs' guaranteed rights by rescinding/repealing said
7 Ordinance and or expunging recording of the First Amendment, and (2) notify BIA/Department of
8 the Interior that the First Amendment is suspended." (Application at 3:10-13).
9 With respect to the first request, the City has already suspended the effectiveness of the
10 Approvals. Therefore, this issue is moot. With respect to the second request. Petitioners have
ll cited no authority, and the City is aware of none, which places any duty or obligation on it to
12 inform the Bureau of Indian Affairs of the Department of Interior ("BIA") that the Approvals have
13 been suspended. No notice was provided by the City to the BIA when the Development
14 Agreement Amendment was recorded. And, in any event, such an order would be considered a
15 mandatory injunction; Mandatory injunctions are injunctions that require the party against whom
16 it is issued to do some affirmative act in order to comply with the terms of the injunction.
17 {Teachers Ins. & Annuity Ass 'n v. Furlotti {1999) 70 Cal.App.4th 1487,1493.) Mandatory
18 preliminary injunctions are rarely granted. "The granting of a mandatory injunction pending trial is
19 not permitted except in extreme cases where the right thereto is clearly established." {Id.) In this
20 case. Petitioners have not presented any facts indicating that the circumstances ofthis matter are
21 extraordinary.
22 Consequently, even if this Application was proper, the filing of the Notice by the City
23 moots any claims made by the Petitioners and Petitioners have not met the burden to compel a
24 mandatory injunction.
25 B. The Application Should be Denied Because Petitioners Have Not Demonstrated That
They Will Suffer Irreparable Harm if the Injunction Does Not Issue
26
27 Petitioners have failed to demonstrate that they will suffer ineparable injury if the
28 requested relief is not granted. Ineparable harm cannot be conjectural or hypothetical, but must be
1522524.2 10784-236 4
RESPONDENT'S OPPOSITION TO PETITIONERS' EX PARTE APPLICATION FOR ORDER TO SHOW
CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER
1 imminent harm, for which there is no adequate remedy at law. (See People ex rel. Gow v. Mitchell
2 Brothers' Santa Ana Theater (1981) 118 Cal.App.3d 863, 870-871.) Injunctions are a form of
3 equitable relief, applied only to situations where there are otherwise inadequate remedies at law.
4 (Code Civ. Proc. § 526(a)(4) ("An injunction may be granted in the following cases: (4) When
. 5 pecuniary compensation would not afford adequate relief').) It follows that, if damages can be
6 compensated monetarily, then there is no threat of ineparable harm.
7 Petitioners clairn that ineparable harm will ensure by "the City's refusal to expunge the
8 Notice of First Amendment ofthe Development Agreement, unless reversed by this Court, y/ill
9 permit the BIA/DOI to take the Mall property into tmst in mid-January, long before a referendum
10 election can be held." (MPI at 6:15-18.) The City has not refused to suspend the Approvals. On
11 December 16, 2016, the City recorded the Notice with the Sacramento County Recorder's Office.
12 None ofthe bases proffered by Petitioners would be considered situations that present the
13 potential for ineparable harm and, in fact, the public is best served when the City is permitted to
14 continue to exercise its discretion and introduce traffic measures, such as waming signs, to alert
15 the public to potential safety hazards.
16 V. CONCLUSION
17 Following the filing of the referendum petition, the City recorded a Notice with the
18 County, providing notice of the suspension of the Approvals and mooting any claim that
19 Petitioners would be denied an opportunity to "referend the Ordinance." For the reasons stated
20 herein, this Application should be denied in its entirety.
21
22 Dated: December 21, 2016 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
23
24
25 By:
M(WaG.
Mdna I
G. Ebrahimi
26 Attomeys for Respondent and Defendant CITY
27 OF ELK GROVE
28
1522524.2 10784-236
RESPONDENT'S OPPOSITION TO PETITIONERS' EX PARTE APPLICATION FOR ORDER TO SHOW
CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER
Preview
[Exempt From Filing Fee Government Code § 6103] toil.* feifjSW 1 MONA G. EBRAHIMI, State Bar No. 236550 ENDORSED mebrahimi@kmtg.com 2. LESLIE Z. WALKER, State Bar No. 249310 lwalker@kmtg.com 20!5DEC2I PMi2:37 3 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD A Professional Corporation .GDSSC COURTHOUSE SUPERtOR COURT 4 400 Capitol Mall, 27'*' Floor OF CAUFORNIA Sacramento, Caiifomia 95814 SACRAMENTO COUNTY 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, Caiifomia 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 19 STAND UP CALIFORNIA!; PATTY Case No. 34-2016-80002493 JOHNSON; and JOE TEIXEIRA, 20 RESPONDENT'S OPPOSITION TO Petitioners and Plaintiffs, PETITIONERS' E X PARTE 21 APPLICATION FOR ORDER TO SHOW v. CAUSE R E PRELIMINARY 22 INJUNCTION AND TEMPORARY CITY OF ELK GROVE, RESTRAINING ORDER 23 Respondent and Defendant. Date: December 22, 2016 24 Time: 9:00 a.m. Dept.: 24 25 ELK GROVE TOWN CENTER, LP; HOWARD HUGHES CORPORATION; and 26 DOES 1-20, 27 Real Parties in Interest and Defendants. 28 1522524.2 10784-236 1 RESPONDENT'S OPPOSITION TO PETITIONERS' EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER 1 I. INTRODUCTION 2 Respondent/Defendant City of Elk Grove ("City") hereby files this Opposition to 3 Petitioners' Stand Up California!, Patty Johnson, and Joe Teixeira's (collectively, "Petitioners") 4 Ex Parte Application for Order to Show Cause Re Preliminary Injunction and Temporary 5 Restraining Order ("Application"). 6 The City recorded a "Notice Re First Amendment to Development Agreement" ("Notice"), 7 providing notice of the suspension of the ordinance and development agreement, which documents 8 are the subject of Petitioners' Application. Because such recording moots Petitioners' complaint, 9 the Application should be denied in its entirety. 10 IL STATEMENT OF FACTS 11 On October 26, 2016, the City adopted Ordinance No. 23-2016 (the "Ordinance") 12 approving a First Amendment to the Development Agreement between the City of Elk Grove and 13 Elk Grove Town Center ("Development Agreement Amendment"). (See Petitioners' Ex Parte 14 Application at 2:19-20.) 15 The City then recorded the Ordinance and Development Agreement Amendment 16 (collectively, the "Approvals") with the Sacramento County Recorder. (See Application at 2:22- 17 23.) On November 21, 2016, the City received a referendum petition (the "Referendum"), seeking 18 to set aside the Approvals. (See Application at 2:23-24.) Pursuant to Elections Code section 9237, 19 which states in part that "the effective date of the ordinance shall be suspended and the legislative 20 body shall reconsider the ordinance" upon the filing of a referendum, the City filed the Notice, 21 providing notice of the suspension of the Approvals. 22 III. LEGAL STANDARD 23 "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on 24 the merits, that he is likely to suffer ineparable harm in the absence of preliminary relief, that the 25 balance of equities tips in his favor, and that an injunction is in the public interest." (Winter v. 26 Natural Resources Defense Council (2008) 555 U.S. 7, 20; see also IT Corp. v. County of Imperial 27 (1983) 35 Cal.3d 63, 69-70.) These standards are codified in Code of Civil Procedure section 526, 28 1522524.2 10784-236 9 RESPONDENT'S OPPOSITION TO PETITIONERS' EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER I which also requires that the situation must be such that "pecuniary compensation would not afford 2 adequate relief." (Code Civ. Proc. § 526(a)(4).) 3 "A preliminary injunction is an extraordinary remedy never awarded as ofright."{Winter 4 V. Natural Resources Defense Counsel, supra, 129 S. Ct. at 376.) It is Petitioners' burden to 5 establish these elements and they have failed to do so. 6 IV. LAW AND ARGUMENT 7 In order to prevail on their Application, Petitioners must prove that they are likely to 8 succeed in this action on its merits, namely that Petitioners will likely prevail in obtaining a 9 permanent injunction against the City. Petitioners must also demonstrate that they will suffer 10 ineparable harm if the injunction does not issue, specifically, that Petitioners will suffer imminent ll harm and that there is no adequate remedy at law that could compensate Petitioners for any 12 resulting injury. In addition, Petitioners must demonstrate that the balance of equities tips in 13 Petitioners' favor, and that issuance of the injunction is in the public's interest. As explained 14 below, Petitioners have failed to establish any of the elements required to wanant the issuance of a 15 preliminary injunction against the City, and therefore Petitioners' Application should be denied. 16 "To issue an injunction is the exercise of a delicate power, requiring great caution and 17 sound discretion, and rarely, if ever, should it be exercised in a doubtful case." {Fleishman v. 18 Superior Court (2002) 102 Cal.App.4th 350, 355 [intemal quotes, brackets omitted]; San 19 Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442.) This 20 holding rings particularly true in cases involving the govemment. "[W]here govemmental action 21 is involved, courts should not intervene unless the need for equitable relief is clear, not remote or 22 speculative." {Dawson v. East Side Union H.S Dist. (1994) 28 Cal.App.4th 998, 1040 [intemal 23 quotations and citation omitted]. If there is little possibility that the Petitioners will be successful 24 on the merits of the claim, then a preliminary injunction "must not issue" regardless ofthe 25 Petitioners' showing of harm. {San Francisco Newspaper Printing Co., 170 Cal.App.3d at 442.) 26 /// 27 /// 28 /// 1522524,2 10784-236 T RESPONDENT'S OPPOSITION TO PETITIONERS' EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER 1 A. Petitioners are Not Likely to Succeed on the Merits of the Case Because the City Suspended the Effectiveness of the Approvals, Pending Disposition of the 2 Referendum and Mooted Petitioners' Claims 3 Petitioners assert that "By virtue of the premature filing of the Ordinance, Plaintiffs have 4 been denied their statutory and Caiifomia Constitutionalrightsto referend the Ordinance." 5 (Application at 3:6-7.) Petitioners then ask that this Court order the City to (I) "take all necessary 6 actions immediately in order to restore Plaintiffs' guaranteed rights by rescinding/repealing said 7 Ordinance and or expunging recording of the First Amendment, and (2) notify BIA/Department of 8 the Interior that the First Amendment is suspended." (Application at 3:10-13). 9 With respect to the first request, the City has already suspended the effectiveness of the 10 Approvals. Therefore, this issue is moot. With respect to the second request. Petitioners have ll cited no authority, and the City is aware of none, which places any duty or obligation on it to 12 inform the Bureau of Indian Affairs of the Department of Interior ("BIA") that the Approvals have 13 been suspended. No notice was provided by the City to the BIA when the Development 14 Agreement Amendment was recorded. And, in any event, such an order would be considered a 15 mandatory injunction; Mandatory injunctions are injunctions that require the party against whom 16 it is issued to do some affirmative act in order to comply with the terms of the injunction. 17 {Teachers Ins. & Annuity Ass 'n v. Furlotti {1999) 70 Cal.App.4th 1487,1493.) Mandatory 18 preliminary injunctions are rarely granted. "The granting of a mandatory injunction pending trial is 19 not permitted except in extreme cases where the right thereto is clearly established." {Id.) In this 20 case. Petitioners have not presented any facts indicating that the circumstances ofthis matter are 21 extraordinary. 22 Consequently, even if this Application was proper, the filing of the Notice by the City 23 moots any claims made by the Petitioners and Petitioners have not met the burden to compel a 24 mandatory injunction. 25 B. The Application Should be Denied Because Petitioners Have Not Demonstrated That They Will Suffer Irreparable Harm if the Injunction Does Not Issue 26 27 Petitioners have failed to demonstrate that they will suffer ineparable injury if the 28 requested relief is not granted. Ineparable harm cannot be conjectural or hypothetical, but must be 1522524.2 10784-236 4 RESPONDENT'S OPPOSITION TO PETITIONERS' EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER 1 imminent harm, for which there is no adequate remedy at law. (See People ex rel. Gow v. Mitchell 2 Brothers' Santa Ana Theater (1981) 118 Cal.App.3d 863, 870-871.) Injunctions are a form of 3 equitable relief, applied only to situations where there are otherwise inadequate remedies at law. 4 (Code Civ. Proc. § 526(a)(4) ("An injunction may be granted in the following cases: (4) When . 5 pecuniary compensation would not afford adequate relief').) It follows that, if damages can be 6 compensated monetarily, then there is no threat of ineparable harm. 7 Petitioners clairn that ineparable harm will ensure by "the City's refusal to expunge the 8 Notice of First Amendment ofthe Development Agreement, unless reversed by this Court, y/ill 9 permit the BIA/DOI to take the Mall property into tmst in mid-January, long before a referendum 10 election can be held." (MPI at 6:15-18.) The City has not refused to suspend the Approvals. On 11 December 16, 2016, the City recorded the Notice with the Sacramento County Recorder's Office. 12 None ofthe bases proffered by Petitioners would be considered situations that present the 13 potential for ineparable harm and, in fact, the public is best served when the City is permitted to 14 continue to exercise its discretion and introduce traffic measures, such as waming signs, to alert 15 the public to potential safety hazards. 16 V. CONCLUSION 17 Following the filing of the referendum petition, the City recorded a Notice with the 18 County, providing notice of the suspension of the Approvals and mooting any claim that 19 Petitioners would be denied an opportunity to "referend the Ordinance." For the reasons stated 20 herein, this Application should be denied in its entirety. 21 22 Dated: December 21, 2016 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD A Professional Corporation 23 24 25 By: M(WaG. Mdna I G. Ebrahimi 26 Attomeys for Respondent and Defendant CITY 27 OF ELK GROVE 28 1522524.2 10784-236 RESPONDENT'S OPPOSITION TO PETITIONERS' EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER