Preview
[Exempt From FUing Fee
Government Code § 6103]
1 MONA G. EBRAHIMI, State Bar No. 236550
mebrahimi@,kmtg. com
2 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD^
A Professional Corporation
3 400 Capitol Mall, 27* Floor
Sacramento, Califomia 95814 SEP - 5 2017
4 Telephone: (916) 321-4500
Facsimile: (916) 321-4555
5 By E. Higginbotham. Deputy Clerk
JONATHAN P. HOBBS, State Bar No. 186045
6 City Attomey
jhobbs(^elkgrovecity. org
7 JENNIFER A. ALVES, State Bar No. 238723
Assistant City Attomey
8 jalves(^elkgrovecity. org
SUZANNE E. KENNEDY (SBN: 251339)
9 Assistant City Attomey
skennedy(^elkgrovecity. org
10 OfBce of the City Attomey
8401 Laguna Palms Way
11 Elk Grove, Califomia 95758
Telephone: (916) 683-7111
12 Facsimile: (916)627-4100
13 Attomeys for Respondent and Defendant CITY
OF ELK GROVE
14
SUPERIOR COURT OF THE STATE OF CALIFORNIA
15
COUNTY OF SACRAMENTO
16
PATTY JOHNSON; JOE TEDCEIRA; OMAR Case No. 34-2016-80002493
17 AHMED, JR.; XIN GUO; and CAROLYN
SOARES, )] ORDER SUSTAINING
18 RESPONDENT AND DEFENDANT CITY
Petitioners and Plaintiffs, OF E L K GROVE'S DEMURRER TO
19 PETITIONERS AND PLAINTIFFS'
VERIFIED AMENDED PETITION FOR
20 WRIT OF MANDATE AND COMPLAINT
CITY OF ELK GROVE, FOR DECLARATORY RELIEF
21
Respondent and Defendant. Judge: Hon. Shelleyanne W. L. Chang
22 Date: • June 23,2017
Time: 10:00 a.m.
23 ELK GROVE TOWN CENTER, LP; Dept.: 24
HOWARD HUGHES CORPORATION; and
24 DOES 1-20, Petition Filed: November 23,2016
25 Real Parties in Interest and
Defendants.
26
Respondent and Defendant City of Elk Grove's Demurrer to Petitioners and PlaintiHs'
27
Verified Amended Petition for Writ of Mandate and Complaint for Declaratory Relief came on for
28
1582535.1 10784-236 1
[PROPOSED] ORDER SUSTAINING CITTS DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED
AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
hearing before Hiis Court on June 23,2017 at 10:00 a.m. in Department 24. The parties having
2 been heard and the matter having been submitted,
3 IT IS HEREBY ORDERED that Respondent and Defendant's Demurrer is sustained
4 without leave to amend and Petitioners and Pfainti£&' Verified Amended Petition for Writ of
5 Mandate and Complaint for Declaratory relief is dismissed with prejudice and Petitioners' motion
6 for relief pursuant to Code of Civil Procedure section 473(b) is denied. Attached hereto and
7 incorporated herein as Exhibit A is a tme and correct copy of the Court's ruling.
8
9 DATED .2017
10
11
"SteH^anne W. L.
12 Judge of the Superior
13
APPROVED AS TO FORM:
14
15 Dated: 2017 Brigit S. Bl sociates. Inc.
16
17
18 loners and PlaintifEs
19
20
21
22
23
24
25
26
27
28
1582S3&1 10784-236
[PROPOSED] ORDER SUSTAINING CirVS DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED
AMENDED PEHnON FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY R3SLIEF
EXHIBIT A
SUPERIOR GOURT OF CALIFORNIA
COUNTY OF SACRAMENTO
DATE: August 1,2017 DEPT. NO.: 24
JUDGE: HON. SHELLEYANNE W. L. CHANG CUSRIC: E. HIGGINBOTHAM
PATTY JOHNSON; JOE TEIXIERA; OMAR Case No.: 34-2016-80002493
AHMED JR.; XIN GUO; and CAROLYN
SOARES,
Petitioners and Plaintiffs,
CITY OF ELK GROVE,
Respondent and Defendant.
ELK GROVE TOWN CENTER, LP; HOWARD
HUGHES CORl'ORATtON; and DOES 1-20,
inclusive,
Real Parties in Interest.
Nature of Proceedings: RULING ON SUBMITTED MATTER AND ORDER:
DEMURRERS TO AMENDED PETITION FOR
WHIT OF MANDATE.AND COMPLAINT FOR
DECLARATORY RELIEF; MOTION FOR RELIEF
FROM DISMISSAL
The Court issued a tentative ruling on June 22,2017, in which it sustained without leave
to amend the demuners of Respondent and Real Party in Interest, and denied Petitioners'
motion for relief from dismissal pui'suant to Code of Civil Procedure section 473. The
parties appeared for oral ai'gument on June 23,2017, and were represented by counsel as
stated on tbe record. After taldng the matter under submission, the Court affirms its
tentative ruling.
1. BACKGROUND
This case concerns land (Property) within the City of EUc Grove (City) that was once
proposed for development as a shopping mall. The United States Department of Interior,
Bureau of Indian Affairs CBIA) has taken the Propeity into trust for the benefit ofthe
Wilton Rancheria Tribe (Tribe). The Property is now proposed to be used for a hotel and
casino.
The Property is part of (approximately one-third) ofthe Lent Ranch Marketplace Special.
Planning Area ("Lent Ranch SPA"), (Amended Petition (AP), 1113.) In 2001. the City
approved the Lent Ranch SPA and a Development Agreement and certified an
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Environmental Impact Report ("EIR") therefor, pm-suant to the Califomia Environmental
Quality Act ("CEQA") (Pub. Resources Code, § 21000 et seq.) (tbid.)
The Lent Ranch SPA was planned as a "traditional" retaU shopping'center, but included
residential, commercial, and retail uses. (AP, fll3.) The EIR identified environmental
impacts of the proposed uses of the Property as a shopping center and proposed
mitigation measures to address those impacts. (Id, at ^14.)
The proposed shopping center was never built.
After receiving federal status as a recognized Indian tribe (Amended Petition, ^21), the
Tribe entered into an agreement with Boyd Gaming to develop a casino/hotel. (Id., 1(24.)
The Tribe then applied to the Department of Interior, Bureau of Indian Affau-s (BIA) to
take land into trust (Id., ^^25, 27.) The Tribe also initiated environmental review
pursuant to the federal National Enviromnental Policy Act (NEPA), (42 U.S.C. §§ 4321,
et seq.) for the trast decision and development of land as a casulo^otel. (Id., 1f25.) The
initial environmental review process identified an alternative site in Gait (the "Twin
Cities site") and not the Property, as the preferred site for the casino/hotel. (Id., f26.)
In April 2014, Real Party in Interest Elk Grove Town Center and then-owner of the
Property (RPf) applied to the City to request an amendment to the Lent Ranch SPA to
convert Zone A of the Lent Ranch SPAfromtraditional retail mall to an "outlet mall
concept," referred to as the Outlet Collection at EUc Grove,. (Amended Petition, |34.)
The City took steps to furthei- this concept, but an outlet mall was never built on the
Property.
Pertinent here, in October 2014, the City approved a Development Agreement with RPI
for the Outlet Collection at Elk Grove ("2014 DDA"). (Amended Petition, ^ 8 , Petition,
Exh. A.)
In May 2016, RPI entered into an option agi'eement with Boyd Gaming, Inc. and the
Tribe to sell part of the land (the Propetty) in the Lent Ranch SPA. (AP, ^151,) Boyd
Gaming, Inc. and the Tribe sought to acquire the Property for the possible development
of a casino/hotel/entertainment facility. (See Id., 153.)
On June 9, 2016, the Tribe announced that the Property, and not the "Twin Cities site"
was the preferred location for a casino/hotel. (AP, Tf53.)
On September 28,2016, the City approved Resolution No, 2016-183, approving a
Memorandum of Understandmg between the Tribe and the City ("MOU"). (AP 1[59.)
Under the MOU, the Tribe would make payments to the City to mitigate the expected
impacts of a potential casino/hotel/entertainment facility on the Property. (Id.i see also
City's Request for Judicial Notice in Support of Demurrer, Exh. 2.) On September 29,
2016, the City filed a Notice of Exemption ("NOE") that the City's approval ofthe MOU
was exempt from CEQA. (City's Request for Judicial Notice in Support of Demurrer,
Exh. 2.)
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On October 26, 2016, the City adopted Ordinance 23-2016 (Ordinance), allowing it to
amend the 2014 DDA to release the 2014 DDA as an encumbrance on the Property.
(Amended Petition, f 62.) This was to allow the BIA to take the Property into trast for the
benefit of the Tribe. (Ibid.) The City recorded the amendment to the 2014 DDA on
November 9, 2016. (Id., 163.) The City later repealed this ordmance. (Id. 179.)
One month later, on November 21, 2016, a referendum petition was filed, challenging the
City's Ordinance to amend the 2014 DDA. (Amended Petition, 165.)
On November 23,2016, this Petition was filed. The Petition initially alleged thattibeCity
violated CEQA, the Government Code, and the Califomia Constitution by approving the
Ordinance and prematurely recordingtifie2014 DDA Amendment.
On December 22,2016, Petitioners unsuccessfiiUy sought an ex parte application
requiring the City to acJcnowledge the ineffectiveness of the Ordinance approving the
aniendment to the 2014 DDA, and act to expunge the Amenchnent and not represent to
anyone that title to the Propeity isfi-eeof encumbrances created by the 2014 DDA.
The Amended Petition alleges that the City and RPI took other actions with regard to the
Property. For example. Petitioners allege that on December 23,2016, RPI recorded a
series of lot line adjustments for the Property. (Amended Petition, 168.) For example, on
January 9,2017, the City recorded a Notice of Release of Recorded Notice of Conditional
Partial Release of Recorded Mitigation Monitoring Recording Program from the
Propeity's title (Notice), (Amended Petition, 169.) The Notice stated that it was
effective if and when the Property was taken into trust for the Tribe by the United States.
(See Petition, Exh, C, Notice of Conditional P.aitial Release of Recorded Mitigation
Monitoring and Repoiting Program for Lent Ranch Marketplace.)
On January 11, 2017, the City Cleric certified the referendum to repeal the Ordinance
releasing the 2014 DDA fi'om the Propeity. (Id., 173). Accoidingly, the effective date of
the Ordinance was suspended, effectively rescinding the amendment to the 2014 DDA,
(Elections Code, § 9237,)
On January 19,'2017, RPI recorded conveyance of the Property to Boyd Gaming and the
Tribe. (Amended Petition, 175.)
Also that same day, on January 19,2017, the BIA issued a Record of Decision (ROD)
approving the taking of the Propei-ty into bust for the benefit of the Tribe. (Amended
Petition, 174.) The parties assert in their briefs and do not dispute that this determination
was made by Principal Deputy Assistant Secretaiy—^Indian Affairs of the Department of
. Interior, BIA, Larry Roberts. (See, Ibid,) On Febmary 10,2017, the BIA accepted the
conveyance of the Property fi'om Boyd Gaming and the Wilton Rancheria, placing the
property into Trust. (Id, 177.)
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On Febmary 21, 2017, Petitioners Stand up for California!, Patty Johnson, Joe Teixeira,
and others filed an administrative appeal ofthe BIA's determination with the Interior
Board of Indian Appeals. (Amended Petition, 178.)
On Febmary 22, 2017, the City repealed the Ordinance allowing the Amendment to the
2014 DDA. (Amended Petition, 179.)
On March 13,2017, Petitioners filed a "Verified Amended Petition for Writ of Mandate
and Complaint for Declaratory Relief (Amended Petition) at issue here. The Amended .
Petition no longer challenges the City's actions to remove tbe 2014 DDA from the
Propeity, Additionally, the Amended Petition removes petitioner Stand Up California!
and adds other petitioners.
Now, the Amended Petition (1) seeks a writ of mandate directing the City or RPI to
"comply" with the City's zoning ordinance, as the Property's proposed use as a
hotel/casino is inconsistent with the Lent Ranch SPA, (2) alleges that the City/RPI
"breached" the 2014 DDA by representing that the Propeity's prospective use as a
hotel/casino was not known, (3) seeks a writ of mandate compelling the City to
"reinstate" the MMRP that was recorded on the Property, or hold a public hearing
explaining why compliance with the MMRP is unnecessary, (4) alleges that the City
"breached" Government Code hearmg and notice provisions and due process rights by
not holding public hearings before the property could be talcen into tmst, and (5) seeks a
judicial determination as totiieeffectiveness ofthe City's actions. The Amended Petition
seeks a Court- order directmg tiie City and RPI to "comply" with the 2014 SPA, the
MMRP, 2014 DDA, hold public hearings regarding the change in land use on the
Property, and conduct additional environmental review.
On June 20,2017, shortly before the hearbig for these matters, Petitionersfiledanother
case in this court. Case No. 34-2017-80002618. This case is premised on the same
general facts here, but seeks mandate relief based on the City's alleged violation of the
Public Records Act (Gov. Code, §§ 6250, etseq.) and Brown Act (Gov. Code, §§ 54950,
et seq.)
n, DISCUSSION
The mles governing civil actions are generally applicable to writs. (Code Civ, Proc, §
1109; Rodriguez v. Municipal Court (1972) 25 Cal.App.3d 521, 526.) In reviewuig a
demurrer,ti:eCourt must accept all material facts properly pled in the pleading as tme.
(Biirtv. County of Orange (2004) 120 Cal.App.4'" 273,279.) However, a demurrer does
not admit contentions, deductions, or conclusions of fact or law alleged in the complaint;
facts impossible in law, or allegations contrary to facts of which a court may take judicial
notice. (Blanlcv. Kirwan (1985) 39 Cal.3d 311,318; Martlnezv. Socoma Companies,
/nc. (1974) 11 Cal.3d 394, 399.)
A demurrer may be sustained without leave to amend when the facts are not in dispute
and the nature of the plaintiffs claim is clear, but under substantive law, no liability
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exists, {Keyes v. Bawen (2010) 189 Cal.App.4"' 647, 655.) A demun-er is propeirly
sustained without leave to amend when there is no reasonable possibility that the defects
in the complaint may be cured by amendment. (Blankv. Kirwan, supra, 39 Cal.3d atp,
318; Alliance for the Protec. ofthe Auburn Cmty. Envt. v. Comly of Placer (2013) 215
Cal,App.4''' 25, 29.) The burden of proving such reasonable possibility of amendment
rests witii the plaintiff. ((Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
The City and RPI demur to the entire Petition, and to the separate causes of action
therein. Tlie Court addresses each.
i. Request for Judicial Notice
The Court grants the City's unopposed request for judicial notice in support of the
demurrer, and grants Petitioner's unopposed request for judicial notice in opposition to
the demurrer.
ii. Objection to Declaration of Odin Smith
The City's objection to Petitioner's declaration of Odin Smith (Declaration) is sustained.
The Declaration states that it is "[ejxecuted within the United States tiiis 15"' of May,
2017." However, it does not contain a statement that the declarant certifies imder penalty
of perjury under the laws ofthe State of California that the foregoing material in the
Declai'ation is true and correct, as required by Code of Civil Procedure section 2015.5.
Accordingly, the City's objection to the Declaration is sustained.
iii. Amended Petition
As a preliminary matter, the Court addresses the City's and RPI's arguments that
Petitioners improperly filed a supplemental petition without leave of Court, rather than an
amended petition. Supplemental petitions introduce new causes of action in response to
new facts occurring after the petition was filed, and require the paiiy to obtain leave of
Court before filing. (Code Civ. Proc;, § 464.) In contrast. Code of Civil Procedure
section 472 permits a party to amend its pleading once without leave of the Court at any
time before the answer or demurrer is filed. This is what Petitioners did here. Although
the Amended Petition asserts new causes of action in response to changed facts, like a
supplemental petition, Petitioners were not required to obtam leave of Court before filing
it, as the Amended Petition was filed before the demureers were filed.
iv. The City's Demurrer
The City demurs to the entire Amended Petition on the gi-ound that it fails as. a matter of
law because the Tribe is immunefi-omsuit, is a necessary and indispensable party that
cannot be joined, and that the Court lacks subject matter jurisdiction. The Court does not
sustain the City's demurrer on these grounds, but, as explained below, finds that the
Amended Petition fails to state facts constituting a cause of action against the City.
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The Amended Petition seeks to compel the City and/or RPI to take action in connection
with the Property that has been taken into trust by the BIA for the benefit of the Tribe.
First, the Court declmes to sustain the City's demurrer or dismiss the Amended Petition
pui-suant to Code of Civil Procedure section 389(b), as urged bytiieCity. Although the
Tribe is a necessary party, the City has not shown that the Tribe is an kidispensable party
pui-suant to Code of Civil Procedure section 3 89(b).
Second, the parties have not established that the Court lacks subject matter jurisdiction at
this time, Once the Property is talcen intoti-ustfor the benefit of the Tribe, this Court will
lack jurisdiction to heartinsmatter. (Boisclair v. Superior Court (1990) 51 Cai.3d 1140,
1153-1154 [noting tiiat 28 U.S.C, § 1360 "den[ies] to states the ability to both legislate
conceming Indian property, and to adjudicate (Usputes involving that property."].)
Decisions made by the Secretary of Interior and the Assistant Secretary for Indian Affairs
on tribal applications to take land into tmst are final adminisbative decisions. (25 C.F.R.,
§ 151.12 (c).) However, in other cases, the administrative decision to take land into tmst
is subject to appeal before the Bureau of Indian Affairs or other agency official,
depending onthe identity ofthe decision-maker. (25 CF.R. 125.12.) A decision made
by any other BIA official "pui-suant to delegated authority is not a final agency action of
the Department,. .imtil admmistrative remedies are exhausted.. .or until the time for filing
a notice of appeal has exphed and no administirative appeal has been fded." (25 C.F.R.
§ 151.12(d).)
In this case, the determination to talce land into tmst was not made by the Secretary of
hiterior and the Assistant Secretai7 for Indian Affairs. Rather, it is undisputed that BLA
Principal Deputy Assistant Secretary Larry Roberts made tbe determination to take the
Property into trust Petitioners have appealed that administrative decision.
The parties have declined to advise the Com-t as to the outcome of this administrative
appeal, or any other pertinent developments since the Court took the matter under
submission. In the absence of any appraisal from the parties on this issue or other
developments, the Court does not reach the conclusion whether the administrative
decision is final, and whether the Comt now lacks subject matter jurisdiction, or whether
the matter is moot.
Accordbgly, tiie Court does not sustain the City's demurrer to the Amended Petition on
the ground that thp Court lacks subject matter jurisdiction, and the Court does not dismiss
the Amended Petition on the groimds of mootaess. (See Crangle v. City Council of
CmceB/C//^/(1933) 219 Cal. 239,241-242.)
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v. The Amended Petition Fails to State Facts Constituting a
Cause of Action
The City alternatively demurs to each cause of action in the Petition. As set forth below,
each of the causes of aotion in the Amended Petition fail to state facts constituting a cause
of action against tiie City. (Code Civ. Proc, § 430.10(e).)
1. First Cause Of Action
The &-st cause of action alleges that the City "breached" its zoning ordinance by not.
rezoniiig the Propetty to permit a planned casino/hotel. This cause of action seeks a wi-it
of mandate compellmg the City to "comply" v/ith its zoning ordmance and planning
documents.
A petitioner may seek a writ of mandate to compel a public agency to perform acts
required by law. (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4*
525,539.) "The two requirements for mandamustiiusare (1) a clear, present and usually
ministerial duty on the part ofthe respondent, and (2) a clear, present and beneficial right
in the petitioner to performance oftiiatduty." {Keyes v. Bowen, supra, 189 Cal.App.4"'
at p. 657 [citation omitted].) In mandate actions the petitioner bears the bm-den of
pleading and proving the facts on which the claim for relief is based. (Cal. Corr, Peace
Ojficers A.1S0C. v. State Pers. Bd (1995) 10 081.4* 1133, 1153-54.)
In this case. Petitioners have not alleged tiie existence of a duty on the part of the City.
Although Petitioners cite to Government Code 65860 and other legal provisions.
Petitioners do nol describe how these laws nonetheless hnpose a duty upon the City to
"comply" with its zoning ordinance, or take any other action, once the BIA has taken the
Property into trust.
Upon the BIA's trust decision becoming final, the City will lack authority to regulate the
Property. Federal law prohibits the City from applying local land use regulation to
property held in hnast for the benefit of an Indian tribe. (25 C.F.R. § 1,4; UnitedStates v.
County of Humboldt (1980) 615 F,2d 12 60,1261; Santa Rosa Band of Indians v. Kings
County (9'" Cir, 1975) 532 F,2d 655,688.) Thus, upon the Property being taken into
trust for the benefit of the Tribe, the City will lacktiieautiiority to apply its regulations to
the Property.
Petitioners are simply unable to allege any mandatory duty on the part of the City.
Accordingly, they have not stated a cause of action for mandate relief.
Additionally, Petitioners have not suggested how they can amend the Amended Petition
in this regard, to allege that a mandatory duty exists, and notably, they have failed to
advise the Court as to pertment proceedings regarding the BIA's decision to take the
Propeity into tmst Petitioners bear the burden of demonstrating in what mannet they can
amend the Amended Petition, and how that amendment will change the legal effect of the
Amended Petition. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; see also Heritage
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Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4*'' 972, 994.) They have not done
so.
Thus, thefirstcause of action fails to state facts constituting a cause of action against the
City, and there is no reasonable possibility that Petitioners can amend the Amended
Petition to cure tiiis defect.
2. Second Cause of Action
The second cause of action alleges that the City "breached" the 2014 D D A in numerous
ways to permit the Property's change in use to a hotel/casino, including by failing to hold
heai-ings to determine the viability of the Property's use as a hotel/casino, and "releasing"
the recording of the MMRP on the Property. The second cause of action seeks an order
"compelling" tiie City and/or RPI to comply witii tiie 2014 DDA
Petitioners have again failed to identily a duty on the part of the City. The Property has
been taken into trust for the benefit of the Tribe, Petitioners do not argue, and there are
no provisions in the 2014 DDA that identify what duty, if any, by the City exists under
these circumstances.
Petitioners also do not indicate that they can amend the Amended Petition to state a claun
for mandate agamst tiie City for "breach" oftiie 2014 DDA, or any other claim. Notably,
Petitioners do not seek any damages for the purported "breach" or suggest that Petitioners
mtended to state any other claim against the City. Again, Petitioners beai- the burden of
demonstratmg in what manner they can amend the Amended Petition, and how that
amendment vnll change the legal effect of the Amended Petition, (Goodman v. Kennedy,
supra, 18 Cal.3d at p. 349.) They have not done so.
Thus, the second cause of action fails to state facts constimting a cause of action against
the City.
3. Third Cause of Actioa
The third cause of action seelcs to compel the City to reinstate the MMRP that was
recorded against tiie property. The Amended Petition alleges that one month before the
BIA's determination to talce the Property into trust, the City "removed" the MMRP,
which was required by the EIR, tiiat the City previously recorded against the Property.
Petitioners have stated no violation of CEQA and no existence of any duty here.
Public Resources Code section 208016 governs the MMRP required for a CEQA project.
It provides in pertment part:
"The public agency shall adopt a reporting or monitoring program for the
changes made to the project or conditions of project approval, adopted in
order to mitigate or avoid significant effects on the environment. The
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reporting or monitoring program shalJ be designed Co ensure compliance
dm-ing project implementation," (Public Res. Code, § 21081.6 (a)(1).)
Although CEQA requires a public agency to adopt mitigation measures and a reporting
pragram for the changes made by a project, it does not require a public agency to record
such program against the affected property. Indeed, as many CEQA projects involve
actions otiiertiianthose that affect a specific parcel of property, a public agency could not
comply with such a requirement. Accordingly, no duty upon the City exisl-s in this
regard.
Additionally, the City has not "deleted"flieMMRP. Rather, ihe City recorded a notice
againsttiieProperty indicating that (1) the City will conditionally release the MMRP
recorded against the Property, i ftiieBIA takes the Propeity into trust, but (2) tiie release
will not be effective if the Property is not talcen into trust. (Amended Petition, Exh. C)
Petitioners have failed to allege any CEQA violation or other duty, and there is no
reasonable possibility that this defect can be cured.
Thus, the third cause of action fails to state facts constituting a cause of action against the
City.
The City also demurs the third cause of action because (I) Petitioners filed the initial
petition more than 35 days after the City filed its Notice of Exemption (NOE) for the
Resolution approving the Memorandum of Understanding between the City and Tribe
(MOU) for mitigation payments, £md (2) Petitioners failed to request a hearing on the
action within 90 days of filing the Amended Petition, pursuant to Public Resources Code
section 21167.4(a).)
As to the City's first argument, tiie City has not stated a basis for demurrer of the
Amended Petition, The third cause of action challenges the City's recording of the
Notice, not the MOU with the Tribe.
As to the City's second argument. Public Resources Code section 21167.4(a) provides
.tiiat "[i]n any action or proceeding alleging noncompUance with this division, the
petitioner shall request a hearing within 90 daysfromthe date of filing the petition or
shall be subject to dismissal on the com-t's own motion or on the motion of any party
interested in the action or proceeding."
Petitioners ai-gue that this statute does not apply here, as they have filed an amended
petition pursuant to Code of Civil Procedure section 472, as a matter of right, and have
requested a heai-ing vwthin 90 days ofthe Amended Petition's filing.
Here, the City moves to dismiss the-third "CEQA" case of action only, rather than the
entire Amended Petition. (See Memorandum of Points and Authorities.in. Support of
City's Demurrer, 21:14-15.) The City has cited no authority that mandates the dismissal
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of the entire Amended Petition in a -case such as this, where a CEQA violation is only one-
of the many causes of action pleaded.
Because the Court (1) sustains the City's and RPI's demurrers to the Atriended Petition
without leave to amend, as the Amended Petition fails to state facts constituting a cause
of action, and (2) m particular, finds that tiie thhd "CEQA" cause of action fails to state
facts constitutuig a cause of action, the Com-t does not address the City's claim that the
third cause of action should also be dismissed pm-suant to Public Resources Code section
21167.4(a).)
4. Fourth Cause of Action
The fouith cause of action alleges that the City evaded holding public hearings regarding
the actual proposed use and design changes in permissible zoning and avoided providing
the public notice of its intent to pemiit the land to be used as a casino/hotel. Petitioners
seek a writ of mandate directing the City to "comply" with its zoning ordinance or rezone
the propeity or take other regulatory action, or hold hearings.
For the reasons set fortii in.Section n(v,)(l), relating to the first cause of action.
Petitioners have not and cannot allege a duty ofthe City here. Thus, the fourth cause of
action fails to state facts constimting a cause of action against the City, and tiiere is no
reasonable possibility that Petitioners can amend this cause of action to cure this defect
5. Fifth Cause of Action
The fifth cause of action desires a judicial determination as to the effectiveness and
validity of the City's actions: in failing to comply with tiie City's zoning ordinance and
planning docmnents, permitting the ti-ansfer of the property, removing the MMRP from
the property, and failing to provide Petitioners with adequate notice and opportunity to be
heard on these matters. This cause of action is wholly derivative of the oilier mandate
claims intiiePetition. Thus, the fifth cause of action fails to state facts constituting a
cause of action against the City. (Ball v. FleetBoston Financial Corp., (2008) 164
CaIApp.4* 794, 800.)
The Amended Petition fails to plead facts constituting a cause of action against .the City,
as to each cause of action. Accordingly, the demurrer to the Amended Petition is
sustained without leave to amend as to the City, as to all causes of action.
i. RPI
RPI joins the City in its demm-rer to the Petition, and also demurs on the ground that the
Amended Petition fails to state a cause of action against i t
A writ of mandate lies to compel a public entity to perform a ministerial duty. (Santa
Clara County Coimsel Ailys. Assn. v. Woodside, supra, 7 Cal.4"' al p. 539.) A writ of
mandate is available to compel private entities to perform ministerial duties in very
Page -10 - of 12
13
limited instances, not present here. (See, e.g., Eiglit Unnamed Physicians v Medical
Exec. Comm. ofthe Med Staffof Washington Township Hosp. (2007) 150 Cal, App. 4""
503,510 [challenge to a hospital's refusal to consolidate-disciplinary hearings for
individual doctors].) Additionally, RPI no longer owns the property, and can take no
action as to the Property, mootingtiieclaims against i t
Petitioners do not suggest what duty exists to compel the RPI to talce any action here
given these facts, beyond the contention that the RPI conspired wifli the City to evade
regulatory action. Petitioners must do more than state conclusory allegations, but show
thattiiereis a reasonable possibility that the Amended Petition can be amended to state a
claim against RPI. They have not Additionally, as noted above. Petitioners allege only
writ causes of action against the City and RPI with the exception ofthe declaratory relief
cause of action; Petitioners do not allege a claim for damages against RPI. Petitioners
have not and cannot state a claim for writ relief. Accordingly, the RPI's demurrer to .
the Amended Petition is sustained without leave to amend, in that it fails to state
facts constituting a cause of action.
ii, CCP § 473 Motion
Petitioners, without obtauiing permissionfromthe Court, have filed a motion to be
relievedfromdismissal of the Amended Petition pursuant to Public Resom-ces Code
section 21167.4. Petitioner moves the Court for relief pursuant to Code of Civil •
Procedure section 473(b). Section 473(b) allows a party to seek relief from a mistake
resulting in an adverse proceeding against that party. The discretionary provisions of this
statute allow a Court to grant relief to "a party or his or her legal representativefi-oma
judgment, dismissal, order, or otiier proceeding talcen against him or her through his or
her mistake, madvertence, surprise, or excusable neglect" (Code Civ. Proc, § 473(b),)
The instances m which a court must grant "mandatory relief' under this statute are
limited lo circumstances where there has been a default, default judgment, or dismissal.
(Urban Wildlife Group v. City of Los Angeles (2017) 10 Cal.App,5'"^993, 1002.)
The Court has not dismissed tiie Amended Petition based on Public Resources Code
section 21167.4. The Court sustains witiiout leave to amend the City's and RPPs
demurrers to each cause of action in the Amended Petition for failure to state facts
constituting a cause of action, which v«U result in dismissal ofthe Amended Petition.
Consequentiy, Petitioner's motion is denied.
ra. DISPOSITION
Petitioners have failed to plead facts stating a cause of action against the City or RPI.
The demurrers "of tiie City and RPI are sustamed without leave to amend. Petitioners'
motion for relief pmsuant to Code of Civil Procedure section 473(b) is denied.
Counsel for the City and RPI are directed to each prepare: (1) a formal order sustaining
the demurrer without leave to amend and dismissuig the action, incorporating the Court's
mling as an exhibit; and (2) a separate judgment of dismissal, also incorporating the
Page-11-of 12
14
Court's ruling as an exhibit, Counsel fortiieCity and RPI shall submit the orders and
judgments to opposing counsel for approval as to form, and thereafter submit them to the
Court for signature and entry of judgment, in accordance mth California Rules of Court,
Rule 3.1312.
Date: August 1,2017 | '"^><;^
Shelleyanne "
Preview
[Exempt From FUing Fee Government Code § 6103] 1 MONA G. EBRAHIMI, State Bar No. 236550 mebrahimi@,kmtg. com 2 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD^ A Professional Corporation 3 400 Capitol Mall, 27* Floor Sacramento, Califomia 95814 SEP - 5 2017 4 Telephone: (916) 321-4500 Facsimile: (916) 321-4555 5 By E. Higginbotham. Deputy Clerk JONATHAN P. HOBBS, State Bar No. 186045 6 City Attomey jhobbs(^elkgrovecity. org 7 JENNIFER A. ALVES, State Bar No. 238723 Assistant City Attomey 8 jalves(^elkgrovecity. org SUZANNE E. KENNEDY (SBN: 251339) 9 Assistant City Attomey skennedy(^elkgrovecity. org 10 OfBce of the City Attomey 8401 Laguna Palms Way 11 Elk Grove, Califomia 95758 Telephone: (916) 683-7111 12 Facsimile: (916)627-4100 13 Attomeys for Respondent and Defendant CITY OF ELK GROVE 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF SACRAMENTO 16 PATTY JOHNSON; JOE TEDCEIRA; OMAR Case No. 34-2016-80002493 17 AHMED, JR.; XIN GUO; and CAROLYN SOARES, )] ORDER SUSTAINING 18 RESPONDENT AND DEFENDANT CITY Petitioners and Plaintiffs, OF E L K GROVE'S DEMURRER TO 19 PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR 20 WRIT OF MANDATE AND COMPLAINT CITY OF ELK GROVE, FOR DECLARATORY RELIEF 21 Respondent and Defendant. Judge: Hon. Shelleyanne W. L. Chang 22 Date: • June 23,2017 Time: 10:00 a.m. 23 ELK GROVE TOWN CENTER, LP; Dept.: 24 HOWARD HUGHES CORPORATION; and 24 DOES 1-20, Petition Filed: November 23,2016 25 Real Parties in Interest and Defendants. 26 Respondent and Defendant City of Elk Grove's Demurrer to Petitioners and PlaintiHs' 27 Verified Amended Petition for Writ of Mandate and Complaint for Declaratory Relief came on for 28 1582535.1 10784-236 1 [PROPOSED] ORDER SUSTAINING CITTS DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF hearing before Hiis Court on June 23,2017 at 10:00 a.m. in Department 24. The parties having 2 been heard and the matter having been submitted, 3 IT IS HEREBY ORDERED that Respondent and Defendant's Demurrer is sustained 4 without leave to amend and Petitioners and Pfainti£&' Verified Amended Petition for Writ of 5 Mandate and Complaint for Declaratory relief is dismissed with prejudice and Petitioners' motion 6 for relief pursuant to Code of Civil Procedure section 473(b) is denied. Attached hereto and 7 incorporated herein as Exhibit A is a tme and correct copy of the Court's ruling. 8 9 DATED .2017 10 11 "SteH^anne W. L. 12 Judge of the Superior 13 APPROVED AS TO FORM: 14 15 Dated: 2017 Brigit S. Bl sociates. Inc. 16 17 18 loners and PlaintifEs 19 20 21 22 23 24 25 26 27 28 1582S3&1 10784-236 [PROPOSED] ORDER SUSTAINING CirVS DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PEHnON FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY R3SLIEF EXHIBIT A SUPERIOR GOURT OF CALIFORNIA COUNTY OF SACRAMENTO DATE: August 1,2017 DEPT. NO.: 24 JUDGE: HON. SHELLEYANNE W. L. CHANG CUSRIC: E. HIGGINBOTHAM PATTY JOHNSON; JOE TEIXIERA; OMAR Case No.: 34-2016-80002493 AHMED JR.; XIN GUO; and CAROLYN SOARES, Petitioners and Plaintiffs, CITY OF ELK GROVE, Respondent and Defendant. ELK GROVE TOWN CENTER, LP; HOWARD HUGHES CORl'ORATtON; and DOES 1-20, inclusive, Real Parties in Interest. Nature of Proceedings: RULING ON SUBMITTED MATTER AND ORDER: DEMURRERS TO AMENDED PETITION FOR WHIT OF MANDATE.AND COMPLAINT FOR DECLARATORY RELIEF; MOTION FOR RELIEF FROM DISMISSAL The Court issued a tentative ruling on June 22,2017, in which it sustained without leave to amend the demuners of Respondent and Real Party in Interest, and denied Petitioners' motion for relief from dismissal pui'suant to Code of Civil Procedure section 473. The parties appeared for oral ai'gument on June 23,2017, and were represented by counsel as stated on tbe record. After taldng the matter under submission, the Court affirms its tentative ruling. 1. BACKGROUND This case concerns land (Property) within the City of EUc Grove (City) that was once proposed for development as a shopping mall. The United States Department of Interior, Bureau of Indian Affairs CBIA) has taken the Propeity into trust for the benefit ofthe Wilton Rancheria Tribe (Tribe). The Property is now proposed to be used for a hotel and casino. The Property is part of (approximately one-third) ofthe Lent Ranch Marketplace Special. Planning Area ("Lent Ranch SPA"), (Amended Petition (AP), 1113.) In 2001. the City approved the Lent Ranch SPA and a Development Agreement and certified an Page-1-of 12 Environmental Impact Report ("EIR") therefor, pm-suant to the Califomia Environmental Quality Act ("CEQA") (Pub. Resources Code, § 21000 et seq.) (tbid.) The Lent Ranch SPA was planned as a "traditional" retaU shopping'center, but included residential, commercial, and retail uses. (AP, fll3.) The EIR identified environmental impacts of the proposed uses of the Property as a shopping center and proposed mitigation measures to address those impacts. (Id, at ^14.) The proposed shopping center was never built. After receiving federal status as a recognized Indian tribe (Amended Petition, ^21), the Tribe entered into an agreement with Boyd Gaming to develop a casino/hotel. (Id., 1(24.) The Tribe then applied to the Department of Interior, Bureau of Indian Affau-s (BIA) to take land into trust (Id., ^^25, 27.) The Tribe also initiated environmental review pursuant to the federal National Enviromnental Policy Act (NEPA), (42 U.S.C. §§ 4321, et seq.) for the trast decision and development of land as a casulo^otel. (Id., 1f25.) The initial environmental review process identified an alternative site in Gait (the "Twin Cities site") and not the Property, as the preferred site for the casino/hotel. (Id., f26.) In April 2014, Real Party in Interest Elk Grove Town Center and then-owner of the Property (RPf) applied to the City to request an amendment to the Lent Ranch SPA to convert Zone A of the Lent Ranch SPAfromtraditional retail mall to an "outlet mall concept," referred to as the Outlet Collection at EUc Grove,. (Amended Petition, |34.) The City took steps to furthei- this concept, but an outlet mall was never built on the Property. Pertinent here, in October 2014, the City approved a Development Agreement with RPI for the Outlet Collection at Elk Grove ("2014 DDA"). (Amended Petition, ^ 8 , Petition, Exh. A.) In May 2016, RPI entered into an option agi'eement with Boyd Gaming, Inc. and the Tribe to sell part of the land (the Propetty) in the Lent Ranch SPA. (AP, ^151,) Boyd Gaming, Inc. and the Tribe sought to acquire the Property for the possible development of a casino/hotel/entertainment facility. (See Id., 153.) On June 9, 2016, the Tribe announced that the Property, and not the "Twin Cities site" was the preferred location for a casino/hotel. (AP, Tf53.) On September 28,2016, the City approved Resolution No, 2016-183, approving a Memorandum of Understandmg between the Tribe and the City ("MOU"). (AP 1[59.) Under the MOU, the Tribe would make payments to the City to mitigate the expected impacts of a potential casino/hotel/entertainment facility on the Property. (Id.i see also City's Request for Judicial Notice in Support of Demurrer, Exh. 2.) On September 29, 2016, the City filed a Notice of Exemption ("NOE") that the City's approval ofthe MOU was exempt from CEQA. (City's Request for Judicial Notice in Support of Demurrer, Exh. 2.) Page-2-of 12 On October 26, 2016, the City adopted Ordinance 23-2016 (Ordinance), allowing it to amend the 2014 DDA to release the 2014 DDA as an encumbrance on the Property. (Amended Petition, f 62.) This was to allow the BIA to take the Property into trast for the benefit of the Tribe. (Ibid.) The City recorded the amendment to the 2014 DDA on November 9, 2016. (Id., 163.) The City later repealed this ordmance. (Id. 179.) One month later, on November 21, 2016, a referendum petition was filed, challenging the City's Ordinance to amend the 2014 DDA. (Amended Petition, 165.) On November 23,2016, this Petition was filed. The Petition initially alleged thattibeCity violated CEQA, the Government Code, and the Califomia Constitution by approving the Ordinance and prematurely recordingtifie2014 DDA Amendment. On December 22,2016, Petitioners unsuccessfiiUy sought an ex parte application requiring the City to acJcnowledge the ineffectiveness of the Ordinance approving the aniendment to the 2014 DDA, and act to expunge the Amenchnent and not represent to anyone that title to the Propeity isfi-eeof encumbrances created by the 2014 DDA. The Amended Petition alleges that the City and RPI took other actions with regard to the Property. For example. Petitioners allege that on December 23,2016, RPI recorded a series of lot line adjustments for the Property. (Amended Petition, 168.) For example, on January 9,2017, the City recorded a Notice of Release of Recorded Notice of Conditional Partial Release of Recorded Mitigation Monitoring Recording Program from the Propeity's title (Notice), (Amended Petition, 169.) The Notice stated that it was effective if and when the Property was taken into trust for the Tribe by the United States. (See Petition, Exh, C, Notice of Conditional P.aitial Release of Recorded Mitigation Monitoring and Repoiting Program for Lent Ranch Marketplace.) On January 11, 2017, the City Cleric certified the referendum to repeal the Ordinance releasing the 2014 DDA fi'om the Propeity. (Id., 173). Accoidingly, the effective date of the Ordinance was suspended, effectively rescinding the amendment to the 2014 DDA, (Elections Code, § 9237,) On January 19,'2017, RPI recorded conveyance of the Property to Boyd Gaming and the Tribe. (Amended Petition, 175.) Also that same day, on January 19,2017, the BIA issued a Record of Decision (ROD) approving the taking of the Propei-ty into bust for the benefit of the Tribe. (Amended Petition, 174.) The parties assert in their briefs and do not dispute that this determination was made by Principal Deputy Assistant Secretaiy—^Indian Affairs of the Department of . Interior, BIA, Larry Roberts. (See, Ibid,) On Febmary 10,2017, the BIA accepted the conveyance of the Property fi'om Boyd Gaming and the Wilton Rancheria, placing the property into Trust. (Id, 177.) Page-3-of 12 On Febmary 21, 2017, Petitioners Stand up for California!, Patty Johnson, Joe Teixeira, and others filed an administrative appeal ofthe BIA's determination with the Interior Board of Indian Appeals. (Amended Petition, 178.) On Febmary 22, 2017, the City repealed the Ordinance allowing the Amendment to the 2014 DDA. (Amended Petition, 179.) On March 13,2017, Petitioners filed a "Verified Amended Petition for Writ of Mandate and Complaint for Declaratory Relief (Amended Petition) at issue here. The Amended . Petition no longer challenges the City's actions to remove tbe 2014 DDA from the Propeity, Additionally, the Amended Petition removes petitioner Stand Up California! and adds other petitioners. Now, the Amended Petition (1) seeks a writ of mandate directing the City or RPI to "comply" with the City's zoning ordinance, as the Property's proposed use as a hotel/casino is inconsistent with the Lent Ranch SPA, (2) alleges that the City/RPI "breached" the 2014 DDA by representing that the Propeity's prospective use as a hotel/casino was not known, (3) seeks a writ of mandate compelling the City to "reinstate" the MMRP that was recorded on the Property, or hold a public hearing explaining why compliance with the MMRP is unnecessary, (4) alleges that the City "breached" Government Code hearmg and notice provisions and due process rights by not holding public hearings before the property could be talcen into tmst, and (5) seeks a judicial determination as totiieeffectiveness ofthe City's actions. The Amended Petition seeks a Court- order directmg tiie City and RPI to "comply" with the 2014 SPA, the MMRP, 2014 DDA, hold public hearings regarding the change in land use on the Property, and conduct additional environmental review. On June 20,2017, shortly before the hearbig for these matters, Petitionersfiledanother case in this court. Case No. 34-2017-80002618. This case is premised on the same general facts here, but seeks mandate relief based on the City's alleged violation of the Public Records Act (Gov. Code, §§ 6250, etseq.) and Brown Act (Gov. Code, §§ 54950, et seq.) n, DISCUSSION The mles governing civil actions are generally applicable to writs. (Code Civ, Proc, § 1109; Rodriguez v. Municipal Court (1972) 25 Cal.App.3d 521, 526.) In reviewuig a demurrer,ti:eCourt must accept all material facts properly pled in the pleading as tme. (Biirtv. County of Orange (2004) 120 Cal.App.4'" 273,279.) However, a demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law, or allegations contrary to facts of which a court may take judicial notice. (Blanlcv. Kirwan (1985) 39 Cal.3d 311,318; Martlnezv. Socoma Companies, /nc. (1974) 11 Cal.3d 394, 399.) A demurrer may be sustained without leave to amend when the facts are not in dispute and the nature of the plaintiffs claim is clear, but under substantive law, no liability Page-4 - of 12 exists, {Keyes v. Bawen (2010) 189 Cal.App.4"' 647, 655.) A demun-er is propeirly sustained without leave to amend when there is no reasonable possibility that the defects in the complaint may be cured by amendment. (Blankv. Kirwan, supra, 39 Cal.3d atp, 318; Alliance for the Protec. ofthe Auburn Cmty. Envt. v. Comly of Placer (2013) 215 Cal,App.4''' 25, 29.) The burden of proving such reasonable possibility of amendment rests witii the plaintiff. ((Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) The City and RPI demur to the entire Petition, and to the separate causes of action therein. Tlie Court addresses each. i. Request for Judicial Notice The Court grants the City's unopposed request for judicial notice in support of the demurrer, and grants Petitioner's unopposed request for judicial notice in opposition to the demurrer. ii. Objection to Declaration of Odin Smith The City's objection to Petitioner's declaration of Odin Smith (Declaration) is sustained. The Declaration states that it is "[ejxecuted within the United States tiiis 15"' of May, 2017." However, it does not contain a statement that the declarant certifies imder penalty of perjury under the laws ofthe State of California that the foregoing material in the Declai'ation is true and correct, as required by Code of Civil Procedure section 2015.5. Accordingly, the City's objection to the Declaration is sustained. iii. Amended Petition As a preliminary matter, the Court addresses the City's and RPI's arguments that Petitioners improperly filed a supplemental petition without leave of Court, rather than an amended petition. Supplemental petitions introduce new causes of action in response to new facts occurring after the petition was filed, and require the paiiy to obtain leave of Court before filing. (Code Civ. Proc;, § 464.) In contrast. Code of Civil Procedure section 472 permits a party to amend its pleading once without leave of the Court at any time before the answer or demurrer is filed. This is what Petitioners did here. Although the Amended Petition asserts new causes of action in response to changed facts, like a supplemental petition, Petitioners were not required to obtam leave of Court before filing it, as the Amended Petition was filed before the demureers were filed. iv. The City's Demurrer The City demurs to the entire Amended Petition on the gi-ound that it fails as. a matter of law because the Tribe is immunefi-omsuit, is a necessary and indispensable party that cannot be joined, and that the Court lacks subject matter jurisdiction. The Court does not sustain the City's demurrer on these grounds, but, as explained below, finds that the Amended Petition fails to state facts constituting a cause of action against the City. Page-5-of 12 The Amended Petition seeks to compel the City and/or RPI to take action in connection with the Property that has been taken into trust by the BIA for the benefit of the Tribe. First, the Court declmes to sustain the City's demurrer or dismiss the Amended Petition pui-suant to Code of Civil Procedure section 389(b), as urged bytiieCity. Although the Tribe is a necessary party, the City has not shown that the Tribe is an kidispensable party pui-suant to Code of Civil Procedure section 3 89(b). Second, the parties have not established that the Court lacks subject matter jurisdiction at this time, Once the Property is talcen intoti-ustfor the benefit of the Tribe, this Court will lack jurisdiction to heartinsmatter. (Boisclair v. Superior Court (1990) 51 Cai.3d 1140, 1153-1154 [noting tiiat 28 U.S.C, § 1360 "den[ies] to states the ability to both legislate conceming Indian property, and to adjudicate (Usputes involving that property."].) Decisions made by the Secretary of Interior and the Assistant Secretary for Indian Affairs on tribal applications to take land into tmst are final adminisbative decisions. (25 C.F.R., § 151.12 (c).) However, in other cases, the administrative decision to take land into tmst is subject to appeal before the Bureau of Indian Affairs or other agency official, depending onthe identity ofthe decision-maker. (25 CF.R. 125.12.) A decision made by any other BIA official "pui-suant to delegated authority is not a final agency action of the Department,. .imtil admmistrative remedies are exhausted.. .or until the time for filing a notice of appeal has exphed and no administirative appeal has been fded." (25 C.F.R. § 151.12(d).) In this case, the determination to talce land into tmst was not made by the Secretary of hiterior and the Assistant Secretai7 for Indian Affairs. Rather, it is undisputed that BLA Principal Deputy Assistant Secretary Larry Roberts made tbe determination to take the Property into trust Petitioners have appealed that administrative decision. The parties have declined to advise the Com-t as to the outcome of this administrative appeal, or any other pertinent developments since the Court took the matter under submission. In the absence of any appraisal from the parties on this issue or other developments, the Court does not reach the conclusion whether the administrative decision is final, and whether the Comt now lacks subject matter jurisdiction, or whether the matter is moot. Accordbgly, tiie Court does not sustain the City's demurrer to the Amended Petition on the ground that thp Court lacks subject matter jurisdiction, and the Court does not dismiss the Amended Petition on the groimds of mootaess. (See Crangle v. City Council of CmceB/C//^/(1933) 219 Cal. 239,241-242.) Page-6-of 12 v. The Amended Petition Fails to State Facts Constituting a Cause of Action The City alternatively demurs to each cause of action in the Petition. As set forth below, each of the causes of aotion in the Amended Petition fail to state facts constituting a cause of action against tiie City. (Code Civ. Proc, § 430.10(e).) 1. First Cause Of Action The &-st cause of action alleges that the City "breached" its zoning ordinance by not. rezoniiig the Propetty to permit a planned casino/hotel. This cause of action seeks a wi-it of mandate compellmg the City to "comply" v/ith its zoning ordmance and planning documents. A petitioner may seek a writ of mandate to compel a public agency to perform acts required by law. (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4* 525,539.) "The two requirements for mandamustiiusare (1) a clear, present and usually ministerial duty on the part ofthe respondent, and (2) a clear, present and beneficial right in the petitioner to performance oftiiatduty." {Keyes v. Bowen, supra, 189 Cal.App.4"' at p. 657 [citation omitted].) In mandate actions the petitioner bears the bm-den of pleading and proving the facts on which the claim for relief is based. (Cal. Corr, Peace Ojficers A.1S0C. v. State Pers. Bd (1995) 10 081.4* 1133, 1153-54.) In this case. Petitioners have not alleged tiie existence of a duty on the part of the City. Although Petitioners cite to Government Code 65860 and other legal provisions. Petitioners do nol describe how these laws nonetheless hnpose a duty upon the City to "comply" with its zoning ordinance, or take any other action, once the BIA has taken the Property into trust. Upon the BIA's trust decision becoming final, the City will lack authority to regulate the Property. Federal law prohibits the City from applying local land use regulation to property held in hnast for the benefit of an Indian tribe. (25 C.F.R. § 1,4; UnitedStates v. County of Humboldt (1980) 615 F,2d 12 60,1261; Santa Rosa Band of Indians v. Kings County (9'" Cir, 1975) 532 F,2d 655,688.) Thus, upon the Property being taken into trust for the benefit of the Tribe, the City will lacktiieautiiority to apply its regulations to the Property. Petitioners are simply unable to allege any mandatory duty on the part of the City. Accordingly, they have not stated a cause of action for mandate relief. Additionally, Petitioners have not suggested how they can amend the Amended Petition in this regard, to allege that a mandatory duty exists, and notably, they have failed to advise the Court as to pertment proceedings regarding the BIA's decision to take the Propeity into tmst Petitioners bear the burden of demonstrating in what mannet they can amend the Amended Petition, and how that amendment will change the legal effect of the Amended Petition. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; see also Heritage Page-7-of 12 10 Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4*'' 972, 994.) They have not done so. Thus, thefirstcause of action fails to state facts constituting a cause of action against the City, and there is no reasonable possibility that Petitioners can amend the Amended Petition to cure tiiis defect. 2. Second Cause of Action The second cause of action alleges that the City "breached" the 2014 D D A in numerous ways to permit the Property's change in use to a hotel/casino, including by failing to hold heai-ings to determine the viability of the Property's use as a hotel/casino, and "releasing" the recording of the MMRP on the Property. The second cause of action seeks an order "compelling" tiie City and/or RPI to comply witii tiie 2014 DDA Petitioners have again failed to identily a duty on the part of the City. The Property has been taken into trust for the benefit of the Tribe, Petitioners do not argue, and there are no provisions in the 2014 DDA that identify what duty, if any, by the City exists under these circumstances. Petitioners also do not indicate that they can amend the Amended Petition to state a claun for mandate agamst tiie City for "breach" oftiie 2014 DDA, or any other claim. Notably, Petitioners do not seek any damages for the purported "breach" or suggest that Petitioners mtended to state any other claim against the City. Again, Petitioners beai- the burden of demonstratmg in what manner they can amend the Amended Petition, and how that amendment vnll change the legal effect of the Amended Petition, (Goodman v. Kennedy, supra, 18 Cal.3d at p. 349.) They have not done so. Thus, the second cause of action fails to state facts constimting a cause of action against the City. 3. Third Cause of Actioa The third cause of action seelcs to compel the City to reinstate the MMRP that was recorded against tiie property. The Amended Petition alleges that one month before the BIA's determination to talce the Property into trust, the City "removed" the MMRP, which was required by the EIR, tiiat the City previously recorded against the Property. Petitioners have stated no violation of CEQA and no existence of any duty here. Public Resources Code section 208016 governs the MMRP required for a CEQA project. It provides in pertment part: "The public agency shall adopt a reporting or monitoring program for the changes made to the project or conditions of project approval, adopted in order to mitigate or avoid significant effects on the environment. The Page-8-of 12 11 reporting or monitoring program shalJ be designed Co ensure compliance dm-ing project implementation," (Public Res. Code, § 21081.6 (a)(1).) Although CEQA requires a public agency to adopt mitigation measures and a reporting pragram for the changes made by a project, it does not require a public agency to record such program against the affected property. Indeed, as many CEQA projects involve actions otiiertiianthose that affect a specific parcel of property, a public agency could not comply with such a requirement. Accordingly, no duty upon the City exisl-s in this regard. Additionally, the City has not "deleted"flieMMRP. Rather, ihe City recorded a notice againsttiieProperty indicating that (1) the City will conditionally release the MMRP recorded against the Property, i ftiieBIA takes the Propeity into trust, but (2) tiie release will not be effective if the Property is not talcen into trust. (Amended Petition, Exh. C) Petitioners have failed to allege any CEQA violation or other duty, and there is no reasonable possibility that this defect can be cured. Thus, the third cause of action fails to state facts constituting a cause of action against the City. The City also demurs the third cause of action because (I) Petitioners filed the initial petition more than 35 days after the City filed its Notice of Exemption (NOE) for the Resolution approving the Memorandum of Understanding between the City and Tribe (MOU) for mitigation payments, £md (2) Petitioners failed to request a hearing on the action within 90 days of filing the Amended Petition, pursuant to Public Resources Code section 21167.4(a).) As to the City's first argument, tiie City has not stated a basis for demurrer of the Amended Petition, The third cause of action challenges the City's recording of the Notice, not the MOU with the Tribe. As to the City's second argument. Public Resources Code section 21167.4(a) provides .tiiat "[i]n any action or proceeding alleging noncompUance with this division, the petitioner shall request a hearing within 90 daysfromthe date of filing the petition or shall be subject to dismissal on the com-t's own motion or on the motion of any party interested in the action or proceeding." Petitioners ai-gue that this statute does not apply here, as they have filed an amended petition pursuant to Code of Civil Procedure section 472, as a matter of right, and have requested a heai-ing vwthin 90 days ofthe Amended Petition's filing. Here, the City moves to dismiss the-third "CEQA" case of action only, rather than the entire Amended Petition. (See Memorandum of Points and Authorities.in. Support of City's Demurrer, 21:14-15.) The City has cited no authority that mandates the dismissal Page-9-of 12 12 of the entire Amended Petition in a -case such as this, where a CEQA violation is only one- of the many causes of action pleaded. Because the Court (1) sustains the City's and RPI's demurrers to the Atriended Petition without leave to amend, as the Amended Petition fails to state facts constituting a cause of action, and (2) m particular, finds that tiie thhd "CEQA" cause of action fails to state facts constitutuig a cause of action, the Com-t does not address the City's claim that the third cause of action should also be dismissed pm-suant to Public Resources Code section 21167.4(a).) 4. Fourth Cause of Action The fouith cause of action alleges that the City evaded holding public hearings regarding the actual proposed use and design changes in permissible zoning and avoided providing the public notice of its intent to pemiit the land to be used as a casino/hotel. Petitioners seek a writ of mandate directing the City to "comply" with its zoning ordinance or rezone the propeity or take other regulatory action, or hold hearings. For the reasons set fortii in.Section n(v,)(l), relating to the first cause of action. Petitioners have not and cannot allege a duty ofthe City here. Thus, the fourth cause of action fails to state facts constimting a cause of action against the City, and tiiere is no reasonable possibility that Petitioners can amend this cause of action to cure this defect 5. Fifth Cause of Action The fifth cause of action desires a judicial determination as to the effectiveness and validity of the City's actions: in failing to comply with tiie City's zoning ordinance and planning docmnents, permitting the ti-ansfer of the property, removing the MMRP from the property, and failing to provide Petitioners with adequate notice and opportunity to be heard on these matters. This cause of action is wholly derivative of the oilier mandate claims intiiePetition. Thus, the fifth cause of action fails to state facts constituting a cause of action against the City. (Ball v. FleetBoston Financial Corp., (2008) 164 CaIApp.4* 794, 800.) The Amended Petition fails to plead facts constituting a cause of action against .the City, as to each cause of action. Accordingly, the demurrer to the Amended Petition is sustained without leave to amend as to the City, as to all causes of action. i. RPI RPI joins the City in its demm-rer to the Petition, and also demurs on the ground that the Amended Petition fails to state a cause of action against i t A writ of mandate lies to compel a public entity to perform a ministerial duty. (Santa Clara County Coimsel Ailys. Assn. v. Woodside, supra, 7 Cal.4"' al p. 539.) A writ of mandate is available to compel private entities to perform ministerial duties in very Page -10 - of 12 13 limited instances, not present here. (See, e.g., Eiglit Unnamed Physicians v Medical Exec. Comm. ofthe Med Staffof Washington Township Hosp. (2007) 150 Cal, App. 4"" 503,510 [challenge to a hospital's refusal to consolidate-disciplinary hearings for individual doctors].) Additionally, RPI no longer owns the property, and can take no action as to the Property, mootingtiieclaims against i t Petitioners do not suggest what duty exists to compel the RPI to talce any action here given these facts, beyond the contention that the RPI conspired wifli the City to evade regulatory action. Petitioners must do more than state conclusory allegations, but show thattiiereis a reasonable possibility that the Amended Petition can be amended to state a claim against RPI. They have not Additionally, as noted above. Petitioners allege only writ causes of action against the City and RPI with the exception ofthe declaratory relief cause of action; Petitioners do not allege a claim for damages against RPI. Petitioners have not and cannot state a claim for writ relief. Accordingly, the RPI's demurrer to . the Amended Petition is sustained without leave to amend, in that it fails to state facts constituting a cause of action. ii, CCP § 473 Motion Petitioners, without obtauiing permissionfromthe Court, have filed a motion to be relievedfromdismissal of the Amended Petition pursuant to Public Resom-ces Code section 21167.4. Petitioner moves the Court for relief pursuant to Code of Civil • Procedure section 473(b). Section 473(b) allows a party to seek relief from a mistake resulting in an adverse proceeding against that party. The discretionary provisions of this statute allow a Court to grant relief to "a party or his or her legal representativefi-oma judgment, dismissal, order, or otiier proceeding talcen against him or her through his or her mistake, madvertence, surprise, or excusable neglect" (Code Civ. Proc, § 473(b),) The instances m which a court must grant "mandatory relief' under this statute are limited lo circumstances where there has been a default, default judgment, or dismissal. (Urban Wildlife Group v. City of Los Angeles (2017) 10 Cal.App,5'"^993, 1002.) The Court has not dismissed tiie Amended Petition based on Public Resources Code section 21167.4. The Court sustains witiiout leave to amend the City's and RPPs demurrers to each cause of action in the Amended Petition for failure to state facts constituting a cause of action, which v«U result in dismissal ofthe Amended Petition. Consequentiy, Petitioner's motion is denied. ra. DISPOSITION Petitioners have failed to plead facts stating a cause of action against the City or RPI. The demurrers "of tiie City and RPI are sustamed without leave to amend. Petitioners' motion for relief pmsuant to Code of Civil Procedure section 473(b) is denied. Counsel for the City and RPI are directed to each prepare: (1) a formal order sustaining the demurrer without leave to amend and dismissuig the action, incorporating the Court's mling as an exhibit; and (2) a separate judgment of dismissal, also incorporating the Page-11-of 12 14 Court's ruling as an exhibit, Counsel fortiieCity and RPI shall submit the orders and judgments to opposing counsel for approval as to form, and thereafter submit them to the Court for signature and entry of judgment, in accordance mth California Rules of Court, Rule 3.1312. Date: August 1,2017 | '"^><;^ Shelleyanne "