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1 MONA G, EBRAHIMI, State Bar No. 23655^
mebrahimi(^kmtg. com.
2 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
3 400 Capitol MaU, 27* Floor
Sacramento, California 95814
4 Telephone: (916) 321-4500
Facsimile: (916) 321-4555
5
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 Jalvesi^lkgr ovecity.org
SUZANNE E, KENNEDY (SBN: 251339)
9 Assistant City Attomey
skenmdyt^lkgrovecity. org
10 Office of the City Attomey
8401 Laguna Pahns Way
11 Elk Grove, Califomia 95758
Telephone: (916) 683-7111
12 Facsunile: (916)627-4100
13 Attomeys for Respondent and Defendant CITY
OF ELK GROVE
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SACRAMENTO
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STAND UP CALIFORNIA!; PATTY Case No. 34-2016-80002493
5*
17 JOHNSON; and JOE TEIXEIRA,
[PROPOSED] JUDGMENT OF
18 Petitioners and Plaintiffs, DISMISSAL
19 V,
20 CITY OF ELK GROVE,
Petition Filed: November 23,2016
21 Respondent and Defendant
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23 ELK GROVE TOWN CENTER, LP;
HOWARD HUGHES CORPORATION; and
24 DOES 1-20,
25 Real Parties in Interest and
Defendants.
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Respondent and Defendant City of Elk Grove's Demurrer to Petitioners and PlaintifFs'
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Verified Amended Petition for Writ of Mandate and Complaint for Declaratory Relief having been
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sustained without leave to amend,
1582562.1 10784-236 1
[PROPOSED] JUDGMENT OF DISMISSAL
IT IS HEREBY ORDERED that jadgmeat is entered m fiivor of Respondent and
2 Defendant City of Elk Grove and against Petitioners and Plainti£& Stand Up Califomiat; Patty
3 Johnson and Joe Teixeira and the case is hereby dismissed. Attached hereto and incorporated
4 herein as Exhibit A is a true and correct copy of the Court's ruling.
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6 DATED: ^2017
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Shelleyanne W. L. Chang
9 Judge of the Superior Court
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11 APPROVia) AS TO FORM:
12 Dated: Q$/^W/1,2S17 it S. Bames-& Associates, Inc.
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1582562.1 10784-236
[PROPOSED] JUDGMENT OF DISMISSAL
EXHIBIT A
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SACRAMENTO
DATE: August 1,2017 DEPT. NO.: 24
JUDGE: HON. SHELLEYANNE W. L. CHANG CLERIC: 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 CORPORATION; and DOES 1-20,
Inclusive,
Real Parties in Interest.
Nature of Proceedings: RULING ON SUBmTTED MATTER AND ORDER:
DEMURRERS TO AMENDED PETITION FOR
WRIT OF MANDATE.AND COMPLAINT FOR
DECLARATORY RELIEF; MOTION FOR RELIEF
FROM DISMISSAL
Tlie Court issued a tentative mlliig on June 22,2017, in which it sustained without leave
to amend the demun'ers of Respondent and Real Party in Interest, and denied Petitioners'
motion for relief from dismissal piu'suant to Code of Civil Procedure section 473. The
pai-ties appeared for oral ai-gument on June 23,2017, and were represented by counsel as
stated on the record. After talcing the matter under submission, the Court affirms its
tentative ruling.
I. BACKGROUND
This case concerns lajid (Property) within the City of Ellc Grove (City) that was once
proposed for development as a shopping mall. The United Stales Department of Interior,
Bureau of Indian Affairs (BIA) has taken the Property into trust for the benefit of the
Wilton Rancheria Tribe (Tribe). The Property is now proposed to be used for a hotel and
casino.
The Property is part of (approxunately one-tliird) of the Lent Ranch Marketplace Special
Planning Area ("Lent Ranch SPA"). (Amended Petition (AP), 1|13.) 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, pursuant to the California Environmental
Quality Act ("CEQA") (Pub. Resources Code, § 21000 etseq.) (Ibid.)
The Lent Ranch SPA was planned as a "traditional" retail shopping'center, but included
residential, commercial, and retail uses. (AP, 1113.) The ETR 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., ^124.)
The Tribe then applied to the Department of Interior, Bureau of Indian Affairs (BIA) to
take land into trust. (Id., If125, 27.) The Tribe also initiated environmental review
pursuant to the federal National Environmental Policy Act (NEPA), (42 U.S.C. §§ 4321,
et seq.) fortiietrust decision and development of land as a casino/hotel. (Id,, 125.) The
initial environmental review process idendfied an alternative site in Gait (the "Twin
Cities site") and not the Property, as the preferred site for the casino/hotel. (Id., 1126.)
In April 2014, Real Party in Interest Elk Grove Town Center and then-owner of the
Property (RPI) applied to the City to request an amendment to the Lent Ranch SPA to
convert Zone A of the Lent Ranch SPAfi'omtraditional retail mall to an "outiet mall
concept," referred to as the Outlet Collection at Elk Grove.. (Amended Petition, K34.)
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 Oudet Collection at Ellc Grove ("2014 DDA"). (Amended Petition, ^[38. 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 Property) in the Lent Ranch SPA. (AP, 1.) Boyd
Gaming, Inc. and the Tribe sought to acquire the Property for the possible development
of acaslno/hotel/entertainment facility, (See Id., 1|53.)
On June 9, 2016, tlie Tribe announced thatfeeProperty, and not the "Twin Cities site"
was the prefeired location for a casino/hotel. (AP, T[53.)
On September 28, 2016, the City approved Resolution No. 2016-183, approving a
Memorandum of Understanding between the Tribe and the City ("MOU"). (AP 1159.)
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.; see also
City's Request for Judicial Notice in Support of Demurrer, Exh. 2.) On Septembei- 29,
2016, the City filed a Notice of Exemption ("NOE") that the City's approval of the MOU
was exempt from CEQA. (City's Reqpiest 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 Petirion, f 62.) This was to allow the BIA to take the Property into ti-ust for the
benefit of tlie Tribe, (Ibid,) The City recorded the amendment to the 2014 DDA on
November 9, 2016, (Id., If 63.) The City later repealed this ordinance, (Id, f79.)
One month later, on November 21,2016, a referendum petition vvas filed, challenging the
City's Ordinance to amend the 2014 DDA. (Amended Petition, ^65.)
On November 23, 2016, this Petition was filed. The Petition initially alleged that the City
violated CEQA, the Government Code, and the Califomia Constitution by approving the
Ordinance and prematurely recording the 2014 DDA Amendment.
On December 22,2016, Petitioners unsuccessfully sought an ex parte application
requiiing the City to acknowledge the inelfectiveness of the Ordinance approving the
amendment to the 2014 DDA, and act to expunge the Amendment and not represent to
anyone that title to the Property isfi*eeof encumbrances created by the 2014 DDA.
The Amended Petition alleges that the City and RPI look other actions with regard to the
Propeity. For example. Petitioners allege that on December 23,2016, RPI recorded a
.series of lot line adjustments for the Property. (Amended Petition, 1168.) 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
Property's title (Notice), (Amended Petition, 1[69.) 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 Partial Release of Recorded Mitigation
Monitoring and Reporting Program for Lent Ranch Marketplace.)
On Januaty 11, 2017, the City Clerk certified the referendum to repeal the Ordinance
releasing the 2014 DDA from tiie Propeity. (Id., 1(73). Accordingly, the effective date of
the Ordinance was suspended, effectively resomding the amendment to the 2014 DDA.
(Elections Code, § 9237.)
On Januaty 19,'2017, RPI recorded conveyance of the Property to Boyd Gaming and the
Tribe. (Amended Petition, 1)75.)
Also that same day, on January 19,2017, the BIA issued a Record of Decision (ROD)
approving the taking of the Property into trust for the benefit of the Tribe. (Amended
Petition, 1|74.) The parties assert in their briefs and do not dispute that this determination
was made by Principal Deputy Assistant Secretary—^Indian Affairs of the Department of
• Interior, BIA, Larry Roberts. (See, Ibid.) On Febmary 10,2017, the BIA accepted tiie
conveyance of the Property from Boyd Gaming and the Wilton Rancheria, placing the
propeity into Trust. (Id, Jll.)
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On Febinaty 21, 2017, Petitioners Stand up for Californial, Patty Johnson, Joe Teixeira,
and others filed an administrative appeal of the BIA's determination with the Interior
Board of Indian Appeals. (Amended Petition, 1f78,)
On Februaiy 22, 2017, the City repesaled the Ordinance allowing the Amendment to the
2014 DDA. (Amended Petition, 1f79.)
On March 13, 2017, Petitioners filed a "Verified Amended Petition for Writ of Mandate
and Complaint for Declaratoiy Relief" (Amended Petition) at issue here. The Amended .
Petition no longer challenges the City's actions to remove the 2014 DDA from the
Propeity, Additionally, the Amended Petition removes petitioner Stand Up Californial
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 Imown, (3) seelcs 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 hearing and notice provisions and due process rights by
not holding public hearings before the property could be talcen into tiiist, and (5) seeks a
judicial de.terraination as to the effectiveness of the City's actions. The Amended Petition
seeks a Court- order directing the 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 hearing for thisse matters, Petitioners filed another
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 reviewing a
demurrer, the Court miisl accept all material facts properly pled in the pleading as tme.
(Burtv. 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 contraiy to facts of which a court may take judicial
notice. (Blankv. Kirwan (1985) 39 Car.3d 311, 318; Martinez v, Socoma Companies,'
Inc. (1974) 11 Cal.3d 394, 399.)
A demurrer may be sustained without leave to amend -when the facts are not in dispute
and die nature of the plaintiffs claim is clear, but under substantive law, no liability
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exists, (Keyes v. Bowen (2010) 189 Cal.App.4"' 647, 655.) A demurrer is properly
sustained without leave to amend when there is no reasonable possibility that the defects
in the complaint may be cured by amendment, (Blank v, Kirwan, supra, 39 Cal.3d at p.
318; Alliance for the Protec, of the Auburn Cmty. Envt. v. County of Placer (2013) 215
Gal.App.4'" 25,-29.) The burden of proving such reasonable possibility of amendment
rests with the plamtiff. ((Blankv. Kirwan, supra, 39 Cal.3d at p. 318.)
The City and RPI demur to tiie entire Petition, and to the separate causes of action
therein. The Court addi-esses each.
1. Request for Judicial Notice
The Court grants tiie 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 Odhi Smith
The City's objection to Petitioner's declaration of Odin Smith (Declai-ation) is sustained.
The Declaration states that it is "[ejxecuted within the United States this 15* of May,
2017," However, it does not contain a statement that the declai'ant cei"tifies imder penalty
of peijury under the laws of the State of California that the foregoing material in the
Declaration 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 hitroduce new causes of action in response to
new facts occurring after the petition was filed, and require the paity 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 obtain leave of Court before fihng
it, as the Amended Petition was filed beforefliedemurrers were filed.
iv. The City's Demurrer
The City demurs to the entire Amended Petition on the ground 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 laclcs 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 seelcs to compel the City and/or RPI to take action in cormection
with the Property that has been talcen into trust by the BIA for the benefit of the Tribe.
First, the Court declines to sustain the City's demurrer or dismiss the Amended Petition
pursuant to Code of Civil Procedure section 389(b), as urged by the City. Although the
Tribe is a necessary party, the City has not shown that the Tribe Is an indispensable party
pui'suant to Code of Civil Procedure section 389(b).
Second, the parties have not established that the Court lacks subject matter jurisdiction at
thistime.Once the Property is talcen into bust for the benefit of the Tribe, this Court will
lack jurisdiction to hear tills matter. (Boisclair v. Superior Court (1990) 51 Cal,3d 1140,
1153-1154 [noting that 28 U.S.C, § 1360 "den[ies] to states the ability to both legislate
concerning Indian property, and to adjudicate disputes involving that property."].)
Decisions made by the Secretary of Interior and the Assistant Secretary for Indian Affairs
on tribal applications to take land into bust are final administrative decisions, (25 C,F,R,,
§ 151,12 (c).) However, in other cases, the administi'ative decision to take land into trust
is subject to appeal before the Bureau of Indian Affairs or other agency official,
depending on the identity of the decision-malcer. (25 C.F.R. 125.12.) A decision made
by any other BIA official "pursuant to delegated authority is not a final agency action of
the Department.,, imtil administrative remedies are exhausted,,,or until the time for filing
a notice of appeal has expired and no administrative appeal has been filed." (25 C.F.R.
§ 151.12(d).)
In this case, the determination to talce land into trust was not made by tiie Secretary of
Interior and the Assi.stant Secretary for Indian Affairs. Rather, it is undisputed that BIA
Principal Deputy Assistant Secretaiy Larry Roberts made tbe determination to take tiie
Property into trust. Petitioners have appealed that administi'ative decision.
The parties have declined to advisetiieCourt as to the outcome ofthis administrative
appeal, or any otiier pertineat developments since the Court took the matter under
submission. In the absence of any appraisal from the patties 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
tiie matter is moot.
Accordingly, the Court does not sustain the City's demurrer to the Amended Petition on
the ground that the Com-t Ificlcs subject matter jurisdiction, and the Court does not dismiss
die Amended Petition on the grounds of mootness. (See Crangle v. City Council of
Cz-ejcenr C/fv (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 tiie Petition. As set fortii below,
each of the causes of action in the Amended Petition fail to state facts constituting a cause
of action against tiie City. (Code Civ. Proc, § 430.10(e).)
1. Fh-st Cause Of Action
The first cause of action alleges that the City "breached" its zoning ordinance by not.
rezoning the Property to permit a planned casino/hotel. This cause of action seelcs a writ
of mandate compelling tiie City to "comply" with its zoning ordinance 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. Assru v. Woodside (1994) 7 Cal.4"'
525,539.) "The two requirements for mandamus thus are (1) a clear, present and usually
ministerial duty on tiie part of the respondent, and (2) a clear, present and beneficial right
in the petitioner to perfoimance offliatduty." (Keyes v. Bowen, supra, 189 Cal.App.4"'
at p. 657 [citation omitted].) In mandate actions the petitioner bears the burden of
pleading and proving the facts on which the claim for relief is based. (Cal. Corr. Peace
Officers Assoc. v. State Pers. Bd (1995) 10 Cal.4"' 1133, 1153-54.)
In this case. Petitioners have not alleged the existence of a duty on the part of the City.
Alfliough Petitioners cite to Government Code 65860 and otiier legal provisions.
Petitioners do not describe howtiieselaws 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 ti'ust.
Upon the BIA's trust decision becoming final, the City will lack authority to regulate the
Property. Federal law prohibits the Cityfi'omapplying local land use regulation to
propeity held in trust fortiiebenefit of an Indian tribe. (25 C.F.R § 1.4; United States v.
County ofHumboldt (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 talcen into
trust fortiiebenefit of the Tribe, the City will lack tiio autiiority 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 pertinent proceedings regarding the BIA's decision to talce the
Property into trust. Petitioners beai- the burden of demonstrating in what mannertiieycan
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,tiiefirstcause of action fails to state facts constituting a cause of action against the
City, Midtiiereis no reasonable possibility that Petitioners can amend the Amended
Petition to cure tiiis defect.
2. Second Cause of Action
The second cause of action allegestiiattiieCity "breached" the 2014 DDA in nmnerous
ways to permit the Property's change in use to a hotel/casino, including by failkig to hold
hearings to determine the viability of the Property's use as a hotel/casino, and "releasing"
the recorduig of the MMRP on the Property. The second cause of action seelcs an order
"compellmg" tiie City and/or RPI to comply witii tiie 2014 DDA
Petitioners have again failed to identify a duty on the part oftiieCity. The Property has
been taken Into trust for the benefit of the Tribe. Petitioners do not argue, andtiiereare
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 claim
for mandate against the City for "breach" offlie2014 DDA, or any other claim. Notably,
Petitioners do not seek any damages for the purported "breach" or suggest that Petitioners
intended to state any other claim against tiie City. Again, Petitioners beai* the burden of
demonstrating m what manner they can amend the Amended Petition, and how that
amendment will 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 constituting a cause of action against
the City.
3. Third Cause of Action
The third cause of action seeks 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 tiie Property into trust, the City "removed" the MMRP,
which was required by the EDR., that 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 pertinent part:
"The public agency shall adopt a reporting or monitoring program for the
clianges made totiieproject or conditions of project approval, adopted hi
order to mitigate or avoid significant effects on the environment. The
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reporting or monitoring program shall be designed to ensure compliance
during project implementation," (Public Res. Code, § 21081.6 (a)(1).)
Although CEQA requhes a public agency to adopt mitigation measures and a reporting
program 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 otiier than those that affect a specific parcel of property, a public agency could not
comply with such arequirement.Accordingly, no duty upon the City exists in tiiis
tegaid.
Additionally, the City has not "deleted"tiieMMRP. Rather, flie City recorded a notice
againsttiieIProperty indicating that (I) tiie City wall conditionally release the MMRP
recorded against the Property, if the BIA takes the Property into trust, but (2) tiie release
will not be eflfective if the Property is not talcen into tmst, (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,tiiethird cause of action fails to state facts constituting a cause of action against the
City,
The City also demurs tiie tiiird cause of action because (1) 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, and (2) Petitioners failed to request a hearing on the
action within 90 days of filuig the Amended Petition, pursuant to Publio 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, nottiieMOU with the Tribe.
As totiieCity's second argument. Public Resources Code section 21167.4(a) provides
.that "[i]n any action or proceeding alleging noncompliance with tliis division, the
petitioner shall request a hearing wifliin 90 daysfi'omthe date of filing the petition or
shall be subject to dismissal on the coujfs own motion or on the motion of any party
interested in tiie action or proceeding."
Petitionera argue 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 hearing within 90 days of the Aniended Petition's filhig.
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 authorityftiatmandates the dismissal
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of the entire Aniended Petition in a-case such as this, where a CEQA violation is only one-
of the many causes of action pleaded.
BecauseflieCourt (1) sustains tiie City's and RPI's demurrers to the Aniended Petition
without leave to amend, as the Amended Petition fails to state facts constituting a cause
of action, and (2) in paiticular, finds that tiie third "CEQA" cause of action fails to state
facts constituting a cause of action, the Com-t does not address the City's claim that the
third cause of action should also be dismissed pursuant to Public Resources Code section
21167.4(a).)
4. Fourth Cause of Action
The fourth cause of action alleges that the City evaded holding public hearings regai-ding
the actual proposed use and design changes in permissible zoning and avoided providing
the public notice of its intent to permit 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 property or talce 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 of the City here. Thus, the fourth cause of
action fails to state facts constituting a cause of action against the City, andfliereis no
reasonable possibility that Petitioners can amend tiiis 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 the City's zoning ordinance and
plaiming documents, permitting the transfer of the property, removing the MMRP from
tiie property, and failing to provide Petitioners with adequate notice and opportunity to be
heard ontiiesematters. This cause of action is wholly derivative of the other mandate
claims in tiie Petition. 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
Cal.App.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 ui its demurrer to the Petition, and also demurs on tiie ground that tiie
Amended Petition fells to state a cause of action agamst i t
A writ of mandate lies to compel a puhttc entity to perform a ministerial duly. (Santa
Clara County Cotinvel Attys. Assn. v, Woodside, supra, 7 Cai.4"' at p. 539.) A writ of
mandate is available to compel private entities to perform ministerial duties in very
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limiled instances, not present here, (See, e.g.. Eight Unnamed Physicians v Medical
Exec. Comm. of the Med Staff of Wa.ihinglon Township Hosp. (2007) 150 Cal.App. 4*
503,510 [challenge to a hospital's reftisal to consolidate-disciplinary hearings for
individual doctors].) Additionally, RPI no longer owns the property, and can take no
action as to the Property, mooting the claims against it.
Petitioners do not suggest what duty exists to compel the RPI to talce any action here
given these facts, beyond the contention that the RJPI conspired witii the City to evade
regulatory action. Petitioners must do more than state conclusory allegations, but show
thattiiereis a reasonable possibiUty tiiat 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 of the dcQlaratory 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 ivithont leave to amend, in that it fails to state
facts constltuttug a cause of action.
ii. CCP § 473 Motion
Petitioners, without obtaining permissionfromthe Court, have filed a motion to be
relievedfromdismissal of the Amended Petition pursuant to PubUc Resom-ces Code
section 21167,4. Petitioner moves the Court for relief pursuant to Code of Civil •
Procedui-e section 473(b). Section 473(b) allows a party to seek relief from a mistake
resultuig 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, ojr other proceeding talcen against him or her through his or
her mistalce, uiadvertence, 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 circumslances where there has been a default, default judgment, or dismissal,
(Urban Wildlife Group v. City oflj)s 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 without leave to amend the City's and RPI's
demurrers to each cause of action in the Amended Petition for failure to state facts
constituting a cause of action, which will result in dismissal oftiieAmended Petition.
Consequently, Petitioner's motion is denied.
in, DISPOSITION
Petitioners have failed to plead facts stating a cause of action against the City or RPI.
The demurrers of the City and RPI are sustained witiiout leave to amend. Petitioners'
motion for relief pm'suant 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 dismissing the action, incoiporating the Court's
ruling as an exhibit; and (2) a separate judgment of dismissal, also incorporating the
Page-11-of 12
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Court's mluig-as an exhibit, Counsel forflieCity and RPI shall submit the orders and
judgments to opposing counsel for approval as to form, and thereafter submit them to the
Court for signatiire and entiy of judgment, in accordance wifli California Rules of Court,
Rule 3.1312.
Date: August 1,2017 ""^>^
Shelleyanne '\IVJi..6luing \
Judge of the Sup-CTiW-^Gaui-XotiZalifor nia
County of Sacramento
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SACRAMENTO
3 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Sacramento, State of Califomia. My business address is 400 Capitol
4 Mall, 27th Floor, Sacramento, CA 95814.
5 • On August 9, 2017,1 served true copies of the following document(s) described as
[PROPOSED] JUDGMENT OF DISMISSAL on the interested parties in tiiis action as follows:
6
SEE ATTACHED SERVICE LIST
7
BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
8 persons at the addresses listed in the Service List and placed the envelope for collection and
mailing, following our ordinary business practices. I am readily familiar with the practice of
9 Kronick, Moskovitz, Tiedemarm & Girard for collecting and processing correspondence for
mailing. On the same day that correspondence is placed for collection and mailing, it is deposited
10 in the ordinary course of business with the United States Postal Service, in a sealed envelope with
postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The
11 envelope was placed in the mail at Sacramento, Califomia.
12 I declare under penalty of perjury under the laws of the State of Califomia that the
foregoing is true and correct.
13
Executed on August 9, 2017, at Sacramento, California.
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1582562.1 10784-236
[PROPOSED] JUDGMENT OF DISMISSAL
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SERVICE LIST
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Brigit S. Bames Jonathan P. Hobbs, City Attomey
4 Annie R. Embree Jennifer A. Alves, Asst. City Attomey
Brigit S. Bames & Associates, Inc. Suzanne Kennedy, Asst. City Attomey
5 3262 Penryn Road City of Elk Grove
Loomis, CA 95650 OfQce of the City Attomey
6 Telephone: (916) 660-9555 8401 Laguna Pakns Way
Facsimile: (916)660-9554 Elk Grove, CA 95758
7 Email: bsbanies@landlawbybames.com Telephone: (916)683-7111
arembree@landlawbvbarnes.com Facsimile: (916)627-4100
8 Email: ihobbs@elkgrovecitv.org
Attorneys for Petitioners and Plaintifiis ialves@elkgrovecity.org
9 skeimedv@elkgrovecity.org
10 Attorneys for ResDondent and Defendant
11 Scott M. Pearson
Taylor R. Steinbacher
12 Zaven A. Sargsian
Ballard Spahr LLP
13 2029 Century Park East, Suite 800
Los Angeles, CA 90067-2909
14 Telephone: (424) 204-4323
Facsimile: (424)204-4350
15 Email: pearsons@ballardspalir.com
steinbachert@ballardspahr.com
16 sar gsianz@ballardspahr. com
17 Attorneys for Real Parties in Interest and
Defendants
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1582562.1 10784-236 17
[PROPOSED] JUDGMENT OF DISMISSAL
Preview
[Exempt From FUing Fee 7 Government Code § 6103] 1 MONA G, EBRAHIMI, State Bar No. 23655^ mebrahimi(^kmtg. com. 2 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD A Professional Corporation 3 400 Capitol MaU, 27* Floor Sacramento, California 95814 4 Telephone: (916) 321-4500 Facsimile: (916) 321-4555 5 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 Jalvesi^lkgr ovecity.org SUZANNE E, KENNEDY (SBN: 251339) 9 Assistant City Attomey skenmdyt^lkgrovecity. org 10 Office of the City Attomey 8401 Laguna Pahns Way 11 Elk Grove, Califomia 95758 Telephone: (916) 683-7111 12 Facsunile: (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 STAND UP CALIFORNIA!; PATTY Case No. 34-2016-80002493 5* 17 JOHNSON; and JOE TEIXEIRA, [PROPOSED] JUDGMENT OF 18 Petitioners and Plaintiffs, DISMISSAL 19 V, 20 CITY OF ELK GROVE, Petition Filed: November 23,2016 21 Respondent and Defendant 22 23 ELK GROVE TOWN CENTER, LP; HOWARD HUGHES CORPORATION; and 24 DOES 1-20, 25 Real Parties in Interest and Defendants. 26 Respondent and Defendant City of Elk Grove's Demurrer to Petitioners and PlaintifFs' 27 Verified Amended Petition for Writ of Mandate and Complaint for Declaratory Relief having been 28 sustained without leave to amend, 1582562.1 10784-236 1 [PROPOSED] JUDGMENT OF DISMISSAL IT IS HEREBY ORDERED that jadgmeat is entered m fiivor of Respondent and 2 Defendant City of Elk Grove and against Petitioners and Plainti£& Stand Up Califomiat; Patty 3 Johnson and Joe Teixeira and the case is hereby dismissed. Attached hereto and incorporated 4 herein as Exhibit A is a true and correct copy of the Court's ruling. 5 6 DATED: ^2017 7 8 Shelleyanne W. L. Chang 9 Judge of the Superior Court 10 11 APPROVia) AS TO FORM: 12 Dated: Q$/^W/1,2S17 it S. Bames-& Associates, Inc. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1582562.1 10784-236 [PROPOSED] JUDGMENT OF DISMISSAL EXHIBIT A SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO DATE: August 1,2017 DEPT. NO.: 24 JUDGE: HON. SHELLEYANNE W. L. CHANG CLERIC: 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 CORPORATION; and DOES 1-20, Inclusive, Real Parties in Interest. Nature of Proceedings: RULING ON SUBmTTED MATTER AND ORDER: DEMURRERS TO AMENDED PETITION FOR WRIT OF MANDATE.AND COMPLAINT FOR DECLARATORY RELIEF; MOTION FOR RELIEF FROM DISMISSAL Tlie Court issued a tentative mlliig on June 22,2017, in which it sustained without leave to amend the demun'ers of Respondent and Real Party in Interest, and denied Petitioners' motion for relief from dismissal piu'suant to Code of Civil Procedure section 473. The pai-ties appeared for oral ai-gument on June 23,2017, and were represented by counsel as stated on the record. After talcing the matter under submission, the Court affirms its tentative ruling. I. BACKGROUND This case concerns lajid (Property) within the City of Ellc Grove (City) that was once proposed for development as a shopping mall. The United Stales Department of Interior, Bureau of Indian Affairs (BIA) has taken the Property into trust for the benefit of the Wilton Rancheria Tribe (Tribe). The Property is now proposed to be used for a hotel and casino. The Property is part of (approxunately one-tliird) of the Lent Ranch Marketplace Special Planning Area ("Lent Ranch SPA"). (Amended Petition (AP), 1|13.) 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, pursuant to the California Environmental Quality Act ("CEQA") (Pub. Resources Code, § 21000 etseq.) (Ibid.) The Lent Ranch SPA was planned as a "traditional" retail shopping'center, but included residential, commercial, and retail uses. (AP, 1113.) The ETR 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., ^124.) The Tribe then applied to the Department of Interior, Bureau of Indian Affairs (BIA) to take land into trust. (Id., If125, 27.) The Tribe also initiated environmental review pursuant to the federal National Environmental Policy Act (NEPA), (42 U.S.C. §§ 4321, et seq.) fortiietrust decision and development of land as a casino/hotel. (Id,, 125.) The initial environmental review process idendfied an alternative site in Gait (the "Twin Cities site") and not the Property, as the preferred site for the casino/hotel. (Id., 1126.) In April 2014, Real Party in Interest Elk Grove Town Center and then-owner of the Property (RPI) applied to the City to request an amendment to the Lent Ranch SPA to convert Zone A of the Lent Ranch SPAfi'omtraditional retail mall to an "outiet mall concept," referred to as the Outlet Collection at Elk Grove.. (Amended Petition, K34.) 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 Oudet Collection at Ellc Grove ("2014 DDA"). (Amended Petition, ^[38. 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 Property) in the Lent Ranch SPA. (AP, 1.) Boyd Gaming, Inc. and the Tribe sought to acquire the Property for the possible development of acaslno/hotel/entertainment facility, (See Id., 1|53.) On June 9, 2016, tlie Tribe announced thatfeeProperty, and not the "Twin Cities site" was the prefeired location for a casino/hotel. (AP, T[53.) On September 28, 2016, the City approved Resolution No. 2016-183, approving a Memorandum of Understanding between the Tribe and the City ("MOU"). (AP 1159.) 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.; see also City's Request for Judicial Notice in Support of Demurrer, Exh. 2.) On Septembei- 29, 2016, the City filed a Notice of Exemption ("NOE") that the City's approval of the MOU was exempt from CEQA. (City's Reqpiest 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 Petirion, f 62.) This was to allow the BIA to take the Property into ti-ust for the benefit of tlie Tribe, (Ibid,) The City recorded the amendment to the 2014 DDA on November 9, 2016, (Id., If 63.) The City later repealed this ordinance, (Id, f79.) One month later, on November 21,2016, a referendum petition vvas filed, challenging the City's Ordinance to amend the 2014 DDA. (Amended Petition, ^65.) On November 23, 2016, this Petition was filed. The Petition initially alleged that the City violated CEQA, the Government Code, and the Califomia Constitution by approving the Ordinance and prematurely recording the 2014 DDA Amendment. On December 22,2016, Petitioners unsuccessfully sought an ex parte application requiiing the City to acknowledge the inelfectiveness of the Ordinance approving the amendment to the 2014 DDA, and act to expunge the Amendment and not represent to anyone that title to the Property isfi*eeof encumbrances created by the 2014 DDA. The Amended Petition alleges that the City and RPI look other actions with regard to the Propeity. For example. Petitioners allege that on December 23,2016, RPI recorded a .series of lot line adjustments for the Property. (Amended Petition, 1168.) 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 Property's title (Notice), (Amended Petition, 1[69.) 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 Partial Release of Recorded Mitigation Monitoring and Reporting Program for Lent Ranch Marketplace.) On Januaty 11, 2017, the City Clerk certified the referendum to repeal the Ordinance releasing the 2014 DDA from tiie Propeity. (Id., 1(73). Accordingly, the effective date of the Ordinance was suspended, effectively resomding the amendment to the 2014 DDA. (Elections Code, § 9237.) On Januaty 19,'2017, RPI recorded conveyance of the Property to Boyd Gaming and the Tribe. (Amended Petition, 1)75.) Also that same day, on January 19,2017, the BIA issued a Record of Decision (ROD) approving the taking of the Property into trust for the benefit of the Tribe. (Amended Petition, 1|74.) The parties assert in their briefs and do not dispute that this determination was made by Principal Deputy Assistant Secretary—^Indian Affairs of the Department of • Interior, BIA, Larry Roberts. (See, Ibid.) On Febmary 10,2017, the BIA accepted tiie conveyance of the Property from Boyd Gaming and the Wilton Rancheria, placing the propeity into Trust. (Id, Jll.) Page-3-of 12 On Febinaty 21, 2017, Petitioners Stand up for Californial, Patty Johnson, Joe Teixeira, and others filed an administrative appeal of the BIA's determination with the Interior Board of Indian Appeals. (Amended Petition, 1f78,) On Februaiy 22, 2017, the City repesaled the Ordinance allowing the Amendment to the 2014 DDA. (Amended Petition, 1f79.) On March 13, 2017, Petitioners filed a "Verified Amended Petition for Writ of Mandate and Complaint for Declaratoiy Relief" (Amended Petition) at issue here. The Amended . Petition no longer challenges the City's actions to remove the 2014 DDA from the Propeity, Additionally, the Amended Petition removes petitioner Stand Up Californial 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 Imown, (3) seelcs 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 hearing and notice provisions and due process rights by not holding public hearings before the property could be talcen into tiiist, and (5) seeks a judicial de.terraination as to the effectiveness of the City's actions. The Amended Petition seeks a Court- order directing the 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 hearing for thisse matters, Petitioners filed another 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 reviewing a demurrer, the Court miisl accept all material facts properly pled in the pleading as tme. (Burtv. 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 contraiy to facts of which a court may take judicial notice. (Blankv. Kirwan (1985) 39 Car.3d 311, 318; Martinez v, Socoma Companies,' Inc. (1974) 11 Cal.3d 394, 399.) A demurrer may be sustained without leave to amend -when the facts are not in dispute and die nature of the plaintiffs claim is clear, but under substantive law, no liability Page-4-of 12 exists, (Keyes v. Bowen (2010) 189 Cal.App.4"' 647, 655.) A demurrer is properly sustained without leave to amend when there is no reasonable possibility that the defects in the complaint may be cured by amendment, (Blank v, Kirwan, supra, 39 Cal.3d at p. 318; Alliance for the Protec, of the Auburn Cmty. Envt. v. County of Placer (2013) 215 Gal.App.4'" 25,-29.) The burden of proving such reasonable possibility of amendment rests with the plamtiff. ((Blankv. Kirwan, supra, 39 Cal.3d at p. 318.) The City and RPI demur to tiie entire Petition, and to the separate causes of action therein. The Court addi-esses each. 1. Request for Judicial Notice The Court grants tiie 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 Odhi Smith The City's objection to Petitioner's declaration of Odin Smith (Declai-ation) is sustained. The Declaration states that it is "[ejxecuted within the United States this 15* of May, 2017," However, it does not contain a statement that the declai'ant cei"tifies imder penalty of peijury under the laws of the State of California that the foregoing material in the Declaration 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 hitroduce new causes of action in response to new facts occurring after the petition was filed, and require the paity 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 obtain leave of Court before fihng it, as the Amended Petition was filed beforefliedemurrers were filed. iv. The City's Demurrer The City demurs to the entire Amended Petition on the ground 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 laclcs 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 seelcs to compel the City and/or RPI to take action in cormection with the Property that has been talcen into trust by the BIA for the benefit of the Tribe. First, the Court declines to sustain the City's demurrer or dismiss the Amended Petition pursuant to Code of Civil Procedure section 389(b), as urged by the City. Although the Tribe is a necessary party, the City has not shown that the Tribe Is an indispensable party pui'suant to Code of Civil Procedure section 389(b). Second, the parties have not established that the Court lacks subject matter jurisdiction at thistime.Once the Property is talcen into bust for the benefit of the Tribe, this Court will lack jurisdiction to hear tills matter. (Boisclair v. Superior Court (1990) 51 Cal,3d 1140, 1153-1154 [noting that 28 U.S.C, § 1360 "den[ies] to states the ability to both legislate concerning Indian property, and to adjudicate disputes involving that property."].) Decisions made by the Secretary of Interior and the Assistant Secretary for Indian Affairs on tribal applications to take land into bust are final administrative decisions, (25 C,F,R,, § 151,12 (c).) However, in other cases, the administi'ative decision to take land into trust is subject to appeal before the Bureau of Indian Affairs or other agency official, depending on the identity of the decision-malcer. (25 C.F.R. 125.12.) A decision made by any other BIA official "pursuant to delegated authority is not a final agency action of the Department.,, imtil administrative remedies are exhausted,,,or until the time for filing a notice of appeal has expired and no administrative appeal has been filed." (25 C.F.R. § 151.12(d).) In this case, the determination to talce land into trust was not made by tiie Secretary of Interior and the Assi.stant Secretary for Indian Affairs. Rather, it is undisputed that BIA Principal Deputy Assistant Secretaiy Larry Roberts made tbe determination to take tiie Property into trust. Petitioners have appealed that administi'ative decision. The parties have declined to advisetiieCourt as to the outcome ofthis administrative appeal, or any otiier pertineat developments since the Court took the matter under submission. In the absence of any appraisal from the patties 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 tiie matter is moot. Accordingly, the Court does not sustain the City's demurrer to the Amended Petition on the ground that the Com-t Ificlcs subject matter jurisdiction, and the Court does not dismiss die Amended Petition on the grounds of mootness. (See Crangle v. City Council of Cz-ejcenr C/fv (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 tiie Petition. As set fortii below, each of the causes of action in the Amended Petition fail to state facts constituting a cause of action against tiie City. (Code Civ. Proc, § 430.10(e).) 1. Fh-st Cause Of Action The first cause of action alleges that the City "breached" its zoning ordinance by not. rezoning the Property to permit a planned casino/hotel. This cause of action seelcs a writ of mandate compelling tiie City to "comply" with its zoning ordinance 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. Assru v. Woodside (1994) 7 Cal.4"' 525,539.) "The two requirements for mandamus thus are (1) a clear, present and usually ministerial duty on tiie part of the respondent, and (2) a clear, present and beneficial right in the petitioner to perfoimance offliatduty." (Keyes v. Bowen, supra, 189 Cal.App.4"' at p. 657 [citation omitted].) In mandate actions the petitioner bears the burden of pleading and proving the facts on which the claim for relief is based. (Cal. Corr. Peace Officers Assoc. v. State Pers. Bd (1995) 10 Cal.4"' 1133, 1153-54.) In this case. Petitioners have not alleged the existence of a duty on the part of the City. Alfliough Petitioners cite to Government Code 65860 and otiier legal provisions. Petitioners do not describe howtiieselaws 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 ti'ust. Upon the BIA's trust decision becoming final, the City will lack authority to regulate the Property. Federal law prohibits the Cityfi'omapplying local land use regulation to propeity held in trust fortiiebenefit of an Indian tribe. (25 C.F.R § 1.4; United States v. County ofHumboldt (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 talcen into trust fortiiebenefit of the Tribe, the City will lack tiio autiiority 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 pertinent proceedings regarding the BIA's decision to talce the Property into trust. Petitioners beai- the burden of demonstrating in what mannertiieycan 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 Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4"' 972, 994.) They have not done so. Thus,tiiefirstcause of action fails to state facts constituting a cause of action against the City, Midtiiereis no reasonable possibility that Petitioners can amend the Amended Petition to cure tiiis defect. 2. Second Cause of Action The second cause of action allegestiiattiieCity "breached" the 2014 DDA in nmnerous ways to permit the Property's change in use to a hotel/casino, including by failkig to hold hearings to determine the viability of the Property's use as a hotel/casino, and "releasing" the recorduig of the MMRP on the Property. The second cause of action seelcs an order "compellmg" tiie City and/or RPI to comply witii tiie 2014 DDA Petitioners have again failed to identify a duty on the part oftiieCity. The Property has been taken Into trust for the benefit of the Tribe. Petitioners do not argue, andtiiereare 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 claim for mandate against the City for "breach" offlie2014 DDA, or any other claim. Notably, Petitioners do not seek any damages for the purported "breach" or suggest that Petitioners intended to state any other claim against tiie City. Again, Petitioners beai* the burden of demonstrating m what manner they can amend the Amended Petition, and how that amendment will 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 constituting a cause of action against the City. 3. Third Cause of Action The third cause of action seeks 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 tiie Property into trust, the City "removed" the MMRP, which was required by the EDR., that 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 pertinent part: "The public agency shall adopt a reporting or monitoring program for the clianges made totiieproject or conditions of project approval, adopted hi order to mitigate or avoid significant effects on the environment. The Page-8-ofl2 11 reporting or monitoring program shall be designed to ensure compliance during project implementation," (Public Res. Code, § 21081.6 (a)(1).) Although CEQA requhes a public agency to adopt mitigation measures and a reporting program 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 otiier than those that affect a specific parcel of property, a public agency could not comply with such arequirement.Accordingly, no duty upon the City exists in tiiis tegaid. Additionally, the City has not "deleted"tiieMMRP. Rather, flie City recorded a notice againsttiieIProperty indicating that (I) tiie City wall conditionally release the MMRP recorded against the Property, if the BIA takes the Property into trust, but (2) tiie release will not be eflfective if the Property is not talcen into tmst, (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,tiiethird cause of action fails to state facts constituting a cause of action against the City, The City also demurs tiie tiiird cause of action because (1) 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, and (2) Petitioners failed to request a hearing on the action within 90 days of filuig the Amended Petition, pursuant to Publio 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, nottiieMOU with the Tribe. As totiieCity's second argument. Public Resources Code section 21167.4(a) provides .that "[i]n any action or proceeding alleging noncompliance with tliis division, the petitioner shall request a hearing wifliin 90 daysfi'omthe date of filing the petition or shall be subject to dismissal on the coujfs own motion or on the motion of any party interested in tiie action or proceeding." Petitionera argue 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 hearing within 90 days of the Aniended Petition's filhig. 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 authorityftiatmandates the dismissal Page - 9 - of 12 12 of the entire Aniended Petition in a-case such as this, where a CEQA violation is only one- of the many causes of action pleaded. BecauseflieCourt (1) sustains tiie City's and RPI's demurrers to the Aniended Petition without leave to amend, as the Amended Petition fails to state facts constituting a cause of action, and (2) in paiticular, finds that tiie third "CEQA" cause of action fails to state facts constituting a cause of action, the Com-t does not address the City's claim that the third cause of action should also be dismissed pursuant to Public Resources Code section 21167.4(a).) 4. Fourth Cause of Action The fourth cause of action alleges that the City evaded holding public hearings regai-ding the actual proposed use and design changes in permissible zoning and avoided providing the public notice of its intent to permit 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 property or talce 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 of the City here. Thus, the fourth cause of action fails to state facts constituting a cause of action against the City, andfliereis no reasonable possibility that Petitioners can amend tiiis 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 the City's zoning ordinance and plaiming documents, permitting the transfer of the property, removing the MMRP from tiie property, and failing to provide Petitioners with adequate notice and opportunity to be heard ontiiesematters. This cause of action is wholly derivative of the other mandate claims in tiie Petition. 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 Cal.App.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 ui its demurrer to the Petition, and also demurs on tiie ground that tiie Amended Petition fells to state a cause of action agamst i t A writ of mandate lies to compel a puhttc entity to perform a ministerial duly. (Santa Clara County Cotinvel Attys. Assn. v, Woodside, supra, 7 Cai.4"' at p. 539.) A writ of mandate is available to compel private entities to perform ministerial duties in very Page-10-of 12 13 limiled instances, not present here, (See, e.g.. Eight Unnamed Physicians v Medical Exec. Comm. of the Med Staff of Wa.ihinglon Township Hosp. (2007) 150 Cal.App. 4* 503,510 [challenge to a hospital's reftisal to consolidate-disciplinary hearings for individual doctors].) Additionally, RPI no longer owns the property, and can take no action as to the Property, mooting the claims against it. Petitioners do not suggest what duty exists to compel the RPI to talce any action here given these facts, beyond the contention that the RJPI conspired witii the City to evade regulatory action. Petitioners must do more than state conclusory allegations, but show thattiiereis a reasonable possibiUty tiiat 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 of the dcQlaratory 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 ivithont leave to amend, in that it fails to state facts constltuttug a cause of action. ii. CCP § 473 Motion Petitioners, without obtaining permissionfromthe Court, have filed a motion to be relievedfromdismissal of the Amended Petition pursuant to PubUc Resom-ces Code section 21167,4. Petitioner moves the Court for relief pursuant to Code of Civil • Procedui-e section 473(b). Section 473(b) allows a party to seek relief from a mistake resultuig 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, ojr other proceeding talcen against him or her through his or her mistalce, uiadvertence, 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 circumslances where there has been a default, default judgment, or dismissal, (Urban Wildlife Group v. City oflj)s 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 without leave to amend the City's and RPI's demurrers to each cause of action in the Amended Petition for failure to state facts constituting a cause of action, which will result in dismissal oftiieAmended Petition. Consequently, Petitioner's motion is denied. in, DISPOSITION Petitioners have failed to plead facts stating a cause of action against the City or RPI. The demurrers of the City and RPI are sustained witiiout leave to amend. Petitioners' motion for relief pm'suant 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 dismissing the action, incoiporating the Court's ruling as an exhibit; and (2) a separate judgment of dismissal, also incorporating the Page-11-of 12 14 Court's mluig-as an exhibit, Counsel forflieCity and RPI shall submit the orders and judgments to opposing counsel for approval as to form, and thereafter submit them to the Court for signatiire and entiy of judgment, in accordance wifli California Rules of Court, Rule 3.1312. Date: August 1,2017 ""^>^ Shelleyanne '\IVJi..6luing \ Judge of the Sup-CTiW-^Gaui-XotiZalifor nia County of Sacramento Page-12-of 12 15 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SACRAMENTO 3 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Sacramento, State of Califomia. My business address is 400 Capitol 4 Mall, 27th Floor, Sacramento, CA 95814. 5 • On August 9, 2017,1 served true copies of the following document(s) described as [PROPOSED] JUDGMENT OF DISMISSAL on the interested parties in tiiis action as follows: 6 SEE ATTACHED SERVICE LIST 7 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the 8 persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of 9 Kronick, Moskovitz, Tiedemarm & Girard for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited 10 in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The 11 envelope was placed in the mail at Sacramento, Califomia. 12 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing is true and correct. 13 Executed on August 9, 2017, at Sacramento, California. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1582562.1 10784-236 [PROPOSED] JUDGMENT OF DISMISSAL 1 SERVICE LIST 2 3 Brigit S. Bames Jonathan P. Hobbs, City Attomey 4 Annie R. Embree Jennifer A. Alves, Asst. City Attomey Brigit S. Bames & Associates, Inc. Suzanne Kennedy, Asst. City Attomey 5 3262 Penryn Road City of Elk Grove Loomis, CA 95650 OfQce of the City Attomey 6 Telephone: (916) 660-9555 8401 Laguna Pakns Way Facsimile: (916)660-9554 Elk Grove, CA 95758 7 Email: bsbanies@landlawbybames.com Telephone: (916)683-7111 arembree@landlawbvbarnes.com Facsimile: (916)627-4100 8 Email: ihobbs@elkgrovecitv.org Attorneys for Petitioners and Plaintifiis ialves@elkgrovecity.org 9 skeimedv@elkgrovecity.org 10 Attorneys for ResDondent and Defendant 11 Scott M. Pearson Taylor R. Steinbacher 12 Zaven A. Sargsian Ballard Spahr LLP 13 2029 Century Park East, Suite 800 Los Angeles, CA 90067-2909 14 Telephone: (424) 204-4323 Facsimile: (424)204-4350 15 Email: pearsons@ballardspalir.com steinbachert@ballardspahr.com 16 sar gsianz@ballardspahr. com 17 Attorneys for Real Parties in Interest and Defendants 18 19 20 21 22 23 24 25 26 27 28 1582562.1 10784-236 17 [PROPOSED] JUDGMENT OF DISMISSAL