Preview
1 Scott M. Pearson (SBN 173880)
pearsons(§ballardspahr. com
2 Taylor Steinbacher (SBN 285325)
steinbachert(^ballardspahr.com
3 BALLARD SPAHR LLP
2029 Century Park East, Suite 800
4 Los Angeles, CA 90067-2909 n r ^ : -''^ COURT
Telephone: 424.204.4400 ^-^^C.R.H^.^fcKiO COUNTY
5 Facsimile: 424.204.4350
6 Attomeys for Defendants and Real Parties in
Interest
7 ELK GROVE TOWN CENTER, LP AND
HOWARD HUGHES CORPORATION
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SACRAMENTO
11
STAND UP CALIFORNIA!; PATTY Case No. 34-2016-80002493
12 JOHNSON; AND JOE TEEXEIRA,
The Hon. Shellyaime W.L. Chang
13 Petitioners and
Plaintiffs, JOINDER BY REAL PARTIES IN
14 INTEREST IN CITY'S OPPOSITION TO
EX PARTE APPLICATION FOR ORDER
15 TO SHOW CAUSE RE PRELIMINARY
CITY OF ELK GROVE, INJUNCTION AND TEMPORARY
16 RESTRAINING ORDER; REQUEST
Respondent and FOR ORDER TO SHOW CAUSE RE:
17 Defendant SANCTIONS
18 [Declaration of Scott M. Pearson submitted
ELK GROVE TOWN CENTER, LP; conciurently herewith]
19 HOWARD HUGHES CORPORATION;
and DOES 1-20, Date: December 22, 2016
20 Real Parties in Time: 9:00 a.m.
Interest and Coiutroom: Department 24
21 Defendants.
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28 DMWEST #15286671 v4
JOINDER BY REAL PARTIES IN INTEREST IN CITY'S OPPOSITION TO EX PARTE APPLICATION FOR
ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER;
REQUEST FOR ORDER TO SHOW CAUSE RE: SANCTIONS
1 Real parties in interest and defendants Elk Grove Town Center, LP and Howard Hughes
2 Corporation (together "EGTC") hereby join in the Opposition filed by the City of Elk Grove (the
3 "City") to the Ex Parte Application (the "Application") brought by petitioners and plaintiffs Stand
4 Up California!, Patty Johnson, and Joe Teixeira (together, "Stand Up"). As the City has
5 established, this Application is completely moot because it requests relief that already has been
6 provided by the City.
7 EGTC writes separately to request that the Court consider issuing an Order to Show Cause
8 why Stand Up and its counsel should not have to pay the attorneys' fees and costs, including travel
9 time and expenses, incurred by EGTC due to Stand Up's refusal to withdraw this Application. As
10 detailed in the Declarations of Mona G. Ebrahimi and Scott M. Pearson, Stand Up and its counsel
11 knew that there was no factual basis for bringing this Application when it was filed. They had a
12 conformed copy of the Notice recorded by the City, and this notice is exactly what Stand Up is
13 asking this Court to order. EGTC and the City asked that the Application be withdrawn because it
14 is moot, but Stand Up refused without articulating any reason why the recorded notice does not
15 fiiUy address their concerns.
16 There is no justification for asking this Court and the responding parties to consider and
17 respond to more than 400 pages of materials on shortened time, only days before the Christmas
18 holiday, when the City already has done what Stand Up is asking this Court to order.' Moreover,
19 there is no emergency here, since the notice has been recorded. Furthermore, Stand Up concedes
20 that the BIA caimot take the subject property into tmst any earlier than January 13,2017 in any
21 event. See Stand Up's Memorandum in support ofthe Application, at 5:14-21 & n.2.
22 Ex parte applications are permitted only in limited circumstances. 6 Witkin, Cal.
23 Procedure (5th ed. 2008) Proceedings Without Trial, § 58, p. 484. One such circimistance is
24 "[wjhere there is pressing necessity for immediate relief...." Id. In order to obtain ex parte
25 relief, an applicant must "make an affinnative factual showing in a declaration containing
' Very little of Stand Up's 400+ page presentation is relevant to the relief it requests. Since that
^~ relief already has been provided, EGTC does not respond here to the many inaccurate factual and
' legal assertions made by Stand Up.
28
DMWEST #15286671 v4
JOINDER BY REAL PARTIES IN INTEREST IN CITY'S OPPOSITION TO EX PARTE APPLICATION FOR
ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER;
REQUEST FOR ORDER TO SHOW CAUSE RE: SANCTIONS
1 competent testimony based on personal knowledge of irreparable harm, immediate danger, or any
2 other statutory basis for granting relief ex parte." Cal. Rules of Court, Rule 3.1202(c). Ex parte
3 applications that fail to make such a showing are properly denied. Datig v. Dove Books, 73 Cal.
4 App. 4th 964, 977, 87 Cal. Rptr. 2d 719 (1999)
5 Pursuant to Califomia Code of Civil Procedure Section 128.5, the Court, on its own motion
6 and after notice and an opportvmity to be heard, "may order a party, the party's attomey, or both to
7 pay the reasonable expenses, including attomey's fees, incurred by another party as a result of
8 bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay." Cal.
9 Civ. Proc. Code § 128.5(a), (c). This includes filing of a motion that is "totally and completely
10 without merit or for the sole purpose of harassing an opposing party." Cal. Civ. Proc. Code §
11 128.5(b). Whether a party or counsel's conduct is frivolous or solely intended to cause
12 unnecessary delay is made using an objective standard. San Diegans for Open Gov 7 v. City of
13 San Diego, 247 Cal. App. 4th 1306, 1319, 203 Cal. Rptr. 3d 34 (2016). Here, Stand Up's
14 Application is wholly without merit as it asks the Court for relief the City already has provided
15 For the reasons stated above and in the City's Opposition, EGTC requests that the Court
16 deny the Application. Furthermore, given the frivolous nature of the Application and its
17 oppressive timing, EGTC requests that the Court set an Order to Show Cause re Sanctions, so that
18 EGTC and the City will not be harmed by Stand Up's blatant misconduct
19
20 DATED: December 20, 2016 Respectfiilly submitted,
21 SCOTT M. PEARSON
TAYLOR STEINBACHER
22 BALLARD SPAHR L L P
23
24
25
By:
4^
" V" Scdtf M. Pearson
Attomeys for Real Parties iri Interest and
Defendants
26 ELK GROVE TOWN CENTER, LP AND
HOWARD HUGHES CORPORATION
27
28
JOINDER BY REAL PARTIES IN INTEREST IN CITY'S OPPOSITION TO EX PARTE APPLICATION FOR
DMWEST #15286671 v4
ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER;
REQUEST FOR ORDER TO SHOW CAUSE RE: SANCTIONS
1 PROOF OF SERVICE
2 I am a resident of the State of California, over the age of eighteen years, and not a party to
the within action. My business address is BALLARD SPAHR LLP, 2029 Century Park East, Suite
3 800, Los Angeles, CA 90067-2909. On December 21,2016,1 served the within documents:
4 JOINDER BY REAL PARTIES IN INTEREST IN CITY'S OPPOSITION TO
EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE
5 PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING
ORDER; REQUEST FOR ORDER TO SHOW CAUSE RE: SANCTIONS
6
• BY FAX: by transmitting via facsimile the document(s) listed above to the
7 fax number(s) set forth below on this date before 5:00 p.m.
8 • BY HAND: by personally delivering the document(s) listed above to the
person(s) at the address(es) set forth below.
9 „
0 BY MAIL: by placing the document(s) listed above in a sealed envelope with
10 postage thereon fully prepaid, in the United States mail at Los Angeles,
Califomia addressed as set forth below.
EI BY E-MAIL: by attaching an electronic copy of the docvmient(s) listed above
12 to the e-mail address listed below.
13 • BY OVERNIGHT MAIL: by causing document(s) to be picked up by an
ovemight delivery service company for delivery to the addressee(s) on the
14 next business day.
15 • BY PERSONAL DELIVERY: by causing personal delivery by FIRST
LEGAL NETWORK of the document(s) listed above to the person(s) at the
16 address(es) set forth below.
17
JONATHAN P. HOBBS, State Bar No. 186045 Attomeys for Respondent and Defendant
18 City Attomey City of Elk Grove
jhobbs(^elkgrovecity.org
19 JENNIFER A. ALVES, State Bar No. 238723
Assistant City Attomey
20 jalves(@elkgrovecity.org
SUZANNE E. KENNEDY, State Bar No. 251339
21 Assistant City Attomey
skennedy(gelkgrovecity.org
22 CITY OF ELK GROVE
Office of the City Attomey
23 8401 Laguna Palms Way
Elk Grove, Califomia 95758
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DMWEST #15286671 v4
PROOF OF SERVICE
1
MONA G. EBRAHIMI, State Bar No. 236550 Attomeys for Respondent and Defendant
2 mebrahimi@kmtg.com City of Elk Grove
LESLIE Z. WALKER, State Bar No. 249310
3 lwalker@kmtg.com
KRONICK, MOSKOVITZ, TIEDEMANN &
4 GIRARD
A Professional Corporation
5 400 Capitol Mall, 27* Floor
Sacramento, Califomia 95814
6
7
8 BRIGIT BARNES, State Bar No. 122673 Attomeys for Petitioners and Plaintiffs
bsbames@landlawbybarnes.com Stand Up California!, Patty Johnson, and
9 3262 Penryn Road, Suite 200 Joe Teixeira
Loomis, CA 95650
10
11
I am readily familiar with the firm's practice of collection and processing correspondence
12 for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
day with postage thereon fully prepaid in the ordinary course of business. I am aware that on
13 motion ofthe party served, service is presumed invalid if postal cancellation date or postage meter
date is more than one day after date of deposit for mailing in affidavit.
14
I declare under penalty of perjury under the laws of the State of Califomia that the
15 foregoing is tme and correct.
16 Executed on December 21,2016, at Los An^es, Califomia.
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DMWEST #15286671 v4
PROOF OF SERVICE
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1 Scott M. Pearson (SBN 173880) pearsons(§ballardspahr. com 2 Taylor Steinbacher (SBN 285325) steinbachert(^ballardspahr.com 3 BALLARD SPAHR LLP 2029 Century Park East, Suite 800 4 Los Angeles, CA 90067-2909 n r ^ : -''^ COURT Telephone: 424.204.4400 ^-^^C.R.H^.^fcKiO COUNTY 5 Facsimile: 424.204.4350 6 Attomeys for Defendants and Real Parties in Interest 7 ELK GROVE TOWN CENTER, LP AND HOWARD HUGHES CORPORATION 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SACRAMENTO 11 STAND UP CALIFORNIA!; PATTY Case No. 34-2016-80002493 12 JOHNSON; AND JOE TEEXEIRA, The Hon. Shellyaime W.L. Chang 13 Petitioners and Plaintiffs, JOINDER BY REAL PARTIES IN 14 INTEREST IN CITY'S OPPOSITION TO EX PARTE APPLICATION FOR ORDER 15 TO SHOW CAUSE RE PRELIMINARY CITY OF ELK GROVE, INJUNCTION AND TEMPORARY 16 RESTRAINING ORDER; REQUEST Respondent and FOR ORDER TO SHOW CAUSE RE: 17 Defendant SANCTIONS 18 [Declaration of Scott M. Pearson submitted ELK GROVE TOWN CENTER, LP; conciurently herewith] 19 HOWARD HUGHES CORPORATION; and DOES 1-20, Date: December 22, 2016 20 Real Parties in Time: 9:00 a.m. Interest and Coiutroom: Department 24 21 Defendants. 22 23 24 25 26 27 28 DMWEST #15286671 v4 JOINDER BY REAL PARTIES IN INTEREST IN CITY'S OPPOSITION TO EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER; REQUEST FOR ORDER TO SHOW CAUSE RE: SANCTIONS 1 Real parties in interest and defendants Elk Grove Town Center, LP and Howard Hughes 2 Corporation (together "EGTC") hereby join in the Opposition filed by the City of Elk Grove (the 3 "City") to the Ex Parte Application (the "Application") brought by petitioners and plaintiffs Stand 4 Up California!, Patty Johnson, and Joe Teixeira (together, "Stand Up"). As the City has 5 established, this Application is completely moot because it requests relief that already has been 6 provided by the City. 7 EGTC writes separately to request that the Court consider issuing an Order to Show Cause 8 why Stand Up and its counsel should not have to pay the attorneys' fees and costs, including travel 9 time and expenses, incurred by EGTC due to Stand Up's refusal to withdraw this Application. As 10 detailed in the Declarations of Mona G. Ebrahimi and Scott M. Pearson, Stand Up and its counsel 11 knew that there was no factual basis for bringing this Application when it was filed. They had a 12 conformed copy of the Notice recorded by the City, and this notice is exactly what Stand Up is 13 asking this Court to order. EGTC and the City asked that the Application be withdrawn because it 14 is moot, but Stand Up refused without articulating any reason why the recorded notice does not 15 fiiUy address their concerns. 16 There is no justification for asking this Court and the responding parties to consider and 17 respond to more than 400 pages of materials on shortened time, only days before the Christmas 18 holiday, when the City already has done what Stand Up is asking this Court to order.' Moreover, 19 there is no emergency here, since the notice has been recorded. Furthermore, Stand Up concedes 20 that the BIA caimot take the subject property into tmst any earlier than January 13,2017 in any 21 event. See Stand Up's Memorandum in support ofthe Application, at 5:14-21 & n.2. 22 Ex parte applications are permitted only in limited circumstances. 6 Witkin, Cal. 23 Procedure (5th ed. 2008) Proceedings Without Trial, § 58, p. 484. One such circimistance is 24 "[wjhere there is pressing necessity for immediate relief...." Id. In order to obtain ex parte 25 relief, an applicant must "make an affinnative factual showing in a declaration containing ' Very little of Stand Up's 400+ page presentation is relevant to the relief it requests. Since that ^~ relief already has been provided, EGTC does not respond here to the many inaccurate factual and ' legal assertions made by Stand Up. 28 DMWEST #15286671 v4 JOINDER BY REAL PARTIES IN INTEREST IN CITY'S OPPOSITION TO EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER; REQUEST FOR ORDER TO SHOW CAUSE RE: SANCTIONS 1 competent testimony based on personal knowledge of irreparable harm, immediate danger, or any 2 other statutory basis for granting relief ex parte." Cal. Rules of Court, Rule 3.1202(c). Ex parte 3 applications that fail to make such a showing are properly denied. Datig v. Dove Books, 73 Cal. 4 App. 4th 964, 977, 87 Cal. Rptr. 2d 719 (1999) 5 Pursuant to Califomia Code of Civil Procedure Section 128.5, the Court, on its own motion 6 and after notice and an opportvmity to be heard, "may order a party, the party's attomey, or both to 7 pay the reasonable expenses, including attomey's fees, incurred by another party as a result of 8 bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay." Cal. 9 Civ. Proc. Code § 128.5(a), (c). This includes filing of a motion that is "totally and completely 10 without merit or for the sole purpose of harassing an opposing party." Cal. Civ. Proc. Code § 11 128.5(b). Whether a party or counsel's conduct is frivolous or solely intended to cause 12 unnecessary delay is made using an objective standard. San Diegans for Open Gov 7 v. City of 13 San Diego, 247 Cal. App. 4th 1306, 1319, 203 Cal. Rptr. 3d 34 (2016). Here, Stand Up's 14 Application is wholly without merit as it asks the Court for relief the City already has provided 15 For the reasons stated above and in the City's Opposition, EGTC requests that the Court 16 deny the Application. Furthermore, given the frivolous nature of the Application and its 17 oppressive timing, EGTC requests that the Court set an Order to Show Cause re Sanctions, so that 18 EGTC and the City will not be harmed by Stand Up's blatant misconduct 19 20 DATED: December 20, 2016 Respectfiilly submitted, 21 SCOTT M. PEARSON TAYLOR STEINBACHER 22 BALLARD SPAHR L L P 23 24 25 By: 4^ " V" Scdtf M. Pearson Attomeys for Real Parties iri Interest and Defendants 26 ELK GROVE TOWN CENTER, LP AND HOWARD HUGHES CORPORATION 27 28 JOINDER BY REAL PARTIES IN INTEREST IN CITY'S OPPOSITION TO EX PARTE APPLICATION FOR DMWEST #15286671 v4 ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER; REQUEST FOR ORDER TO SHOW CAUSE RE: SANCTIONS 1 PROOF OF SERVICE 2 I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is BALLARD SPAHR LLP, 2029 Century Park East, Suite 3 800, Los Angeles, CA 90067-2909. On December 21,2016,1 served the within documents: 4 JOINDER BY REAL PARTIES IN INTEREST IN CITY'S OPPOSITION TO EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE 5 PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER; REQUEST FOR ORDER TO SHOW CAUSE RE: SANCTIONS 6 • BY FAX: by transmitting via facsimile the document(s) listed above to the 7 fax number(s) set forth below on this date before 5:00 p.m. 8 • BY HAND: by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. 9 „ 0 BY MAIL: by placing the document(s) listed above in a sealed envelope with 10 postage thereon fully prepaid, in the United States mail at Los Angeles, Califomia addressed as set forth below. EI BY E-MAIL: by attaching an electronic copy of the docvmient(s) listed above 12 to the e-mail address listed below. 13 • BY OVERNIGHT MAIL: by causing document(s) to be picked up by an ovemight delivery service company for delivery to the addressee(s) on the 14 next business day. 15 • BY PERSONAL DELIVERY: by causing personal delivery by FIRST LEGAL NETWORK of the document(s) listed above to the person(s) at the 16 address(es) set forth below. 17 JONATHAN P. HOBBS, State Bar No. 186045 Attomeys for Respondent and Defendant 18 City Attomey City of Elk Grove jhobbs(^elkgrovecity.org 19 JENNIFER A. ALVES, State Bar No. 238723 Assistant City Attomey 20 jalves(@elkgrovecity.org SUZANNE E. KENNEDY, State Bar No. 251339 21 Assistant City Attomey skennedy(gelkgrovecity.org 22 CITY OF ELK GROVE Office of the City Attomey 23 8401 Laguna Palms Way Elk Grove, Califomia 95758 24 25 26 27 28 DMWEST #15286671 v4 PROOF OF SERVICE 1 MONA G. EBRAHIMI, State Bar No. 236550 Attomeys for Respondent and Defendant 2 mebrahimi@kmtg.com City of Elk Grove LESLIE Z. WALKER, State Bar No. 249310 3 lwalker@kmtg.com KRONICK, MOSKOVITZ, TIEDEMANN & 4 GIRARD A Professional Corporation 5 400 Capitol Mall, 27* Floor Sacramento, Califomia 95814 6 7 8 BRIGIT BARNES, State Bar No. 122673 Attomeys for Petitioners and Plaintiffs bsbames@landlawbybarnes.com Stand Up California!, Patty Johnson, and 9 3262 Penryn Road, Suite 200 Joe Teixeira Loomis, CA 95650 10 11 I am readily familiar with the firm's practice of collection and processing correspondence 12 for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on 13 motion ofthe party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 14 I declare under penalty of perjury under the laws of the State of Califomia that the 15 foregoing is tme and correct. 16 Executed on December 21,2016, at Los An^es, Califomia. 17 18 19 20 21 22 23 24 25 26 27 28 DMWEST #15286671 v4 PROOF OF SERVICE