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1 MONA G. EBRAHIMlrStatiis Bar No. 236550
mebrahimi(^knag. com
2 KRONICK, MOSKOVrrZ, TIEDEMANN & GIRARD
A Professional Coipoialion
3 400 Capitol Mall, 27* Floor
Sactamento, Califi>mia95814
4 Telephone: (916) 321-4500
Facsimile: (916) 321-4555
5
JONATHAN P. HOBBS, State Bar No. 186045
6 Oily Attomey
jhobbs^lkgravectty.org
7 JENNimi A. ALVES, State Bar No. 238723
Assistant City Attomey
8 jalves@e0^oveciiy.org
SUZANNE E. KENNEDY (SBN: 251339)
9 Assistant City Attomey '
skenne(fy@eli^ovec^y.org
10 Office of me (Stv Attomey
8401 Laguna Pauns Way
11 Elk Grove, Califomia 95758
Telephone: (916) 683-7111
12 Facsumle: (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
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STAND UP CALIFORNIAl; PATTY Case No. 34-2016-80002493
17 JOHNSON; and JOE TEDCEIRA,
[PROPOSED] ORDER SUSTAINING
18 Petitioners and Plaintiff, RESPONDENT AND DEFENDANT CITY
OF E L K GROVE'S DEMURRER TO
19 V. PETITIONERS AND PLAINTIEFS'
VERIFIED AMENDiBD PETITION FOR
20 CITY OF ELK GROVE, yVRSJ DF MANDATE AND COMPLAINT
FOR DECLARATORY R E L I E F
21 Respondent and Defendant
Judge: Hon. Shelleyanne W. L. Chang
22 Date: June 23,2017
ELK GROVE TOWN CENTER, LP; Time: 10:00 ajn.
23 HOWARD HUGHES CORPORATION; and Dept: 24
DOES 1-20,
24 Petition Filed: Novenjber 23,2016
Real Parties in Interest and
25
DftfenHtmfa.
26
Respondent and Defendant City of Elk Grove's Demurrer to Petitioners and Plaintiff'
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Verified Amended Petition for Writ of Mandate and Complaint for Declaratoiy Rjelief came on for
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hearing before this Court on Jime 23,2017 at 10:00 a.m. in Department 24. The parties having
15S2S3S.1 10784^6 ^
[PROPOSED] ORDER. SUSTAINING CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS* VERIFIED
AMENDED PETITION FOR. WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
been heard and the matter having been submitted,
rr IS HEREBY ORDERED that Respondent and Defendant's Demurrer is sustained
without leave to amend and Petitioners and Plaintifis* Verified Amended Petition for Writ of
Mandate and Complaint for Declaratoty relief is dismissed witii piejudice and Petitioners' motion
for relief putsuant to Code of Civil Procedure section 473(b) is denied. Attached hereto and
incorporated herein as Exhibit A is a tme and correct copy of the Court's ruling.
8 DATED: .2017
9
10
Shelleyanne W. L. Chang
11 Judge of the Superior Court
12
13 APPROVED AS TO FORM:
14 DatedO ^2017 Brigit S. Barnes & Associates, Inc.
15
16
igit SL Bo^es
17 Attomeya^ Petitioners and Plaintiffs
18
19
20
21
22
23
24
25
26
27
28
1582535.1 10784-236
[PROPOSED] ORDER SUSTAINING CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS* VERIFIED
AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
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,
V.
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
WHTT 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 demun-ers of Respondent and Real Party ui Interest, and denied Petitioners'
motion for relief from dismissal pursuant to Code of Civil Procedure section 473. The
parties appeared for oral argument on June 23,2017, and were represented by counsel as
stated on tlie record. After talcing thei matter under submission, the Court affirms its
tentative ruling.
I. BACICGROUND
This case concerns land (Property) within the City of Ellc Gi-ove (City) that was once
proposed for development as a shopping mall. The United States 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 Propeity is part of (approximately one-third) of the Lent Ranch Marlcetplace Special.
Planning Area ("Lent Ranch SPA"). (Amended Petition (AP), ^[13.) 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, pursuant to the Califomia Environmental
Quality Act ("CEQA") (Pub. Resources Code, § 21000 etseq.) (Ibid.)
The Lent Ranch SPA was plarmed as a "traditional" retail shopping'center, but included
residential, commercial, and retail uses. (AP, ^13.) 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 ^114.)
The proposed shopping center was nevei' biiilt.
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., TI24.)
The Tribe then applied to the Department of Interior, Bureau of Indian Affairs (BIA) to
take land into trust (Id., 1f1f25, 27.) The Tribe also initiated environmental review
pursuant to the federal National Environmental Policy Act (NEPA). (42 U.S.C. §§ 4321,
et seq.) for tlie trust decision and development of land as a casino/hotel. (Id., ^[25.) The
initial enviroimiental 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 SPAfi'omtraditional retail mall to an "outiet mall
concept," referred to as the Outlet Collection at EUc Grove.. (Amended Petition, TI34.)
The City took steps to further 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, ^38, Petition,
Exh. A.)
In May 2016, RPI entered into an option agreement with Boyd Gaming, Inc. and the
Tribe to sell part of the land (the Property) in the Lent Ranch SPA. (AP, ^[51.) Boyd
Gaming, Inc, and the Tribe sought lo acquire the Property for the possible development
of a casino/hotel/entertaimnent facility. (See Id., Tf53.)
On June 9,2016, the Tribe anno\mced 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 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 m Support of Demurrer, Exh. 2.) On September 29,
2016, the City filed a Notice of Exemption ("NOE") that the City's approval of the 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 releasetiie2014 DDA as an encumbrance on the Property,
(Amended Petition, ^ 62.) This was to allow the BIA to take the Property into h-ust for the
benefit of the Tribe. (Ibid.) The City recorded the amendment to the 2014 DDA on
November 9,2016. (Id., f 63.) The City later repealed this ordinance, (Id, ^79.)
One month later, on November 21,2016, a referendum petition was filed, ohallengmg the
City's Ordinance to amend the 2014 DDA. (Amended Petition, ^65.)
On November 23,2016, this Petition was fded. The Petition initially alleged that the City
violated CEQA, the Government Code, and the California Constitution by approving the
Ordinance and prematurely recording the 2014 DDA Amendment.
On December 22,2016, Petitioners unsuccessfully sought an ex parte application
requiring the City to acknowledge the ineffectiveness of the Ordinance approving the
aniendment 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
Property. For example. Petitioners allege that on December 23,2016, RPI recorded a
series of lot line adjustments for the Property. (Amended Petition, 1f68.) For example, on
Januaiy 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 titie (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 January 11, 2017, the City Cleric certified the referendum to repeal the Ordinance
releasing tiie 2014 DDA from tiie Propeity, (Id., ^[73), Accordingly, 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 Propeity to Boyd Gaining and the
Tribe. (Amended Petition, |75.)
Also that same day, on January 19,2017, the BIA issued a Record of Decision (ROD)
approving the talcing of the Property into trust for the benefit of the Tribe. (Amended
Petition, ^74.) 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 February 10,2017, the BIA accepted the
conveyance of the Property from Boyd Gaming and the Wilton Rancheria, placing the
property mto Trust. (Id. f/l.)
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On Febmary 21, 2017, Petitioners Stand up for California!, Patty Johnson, Joe Teixeira,
and others filed an administrative appeal of the BIA's determination with the Interior
Board of Indian Appeals. (Amended Petition, 1[78.)
On Febmary 22, 2017, the City repealed the Ordinance allowing the Amendment to the
2014 DDA. (Amended Petition, f79.)
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 the 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 dhecting 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
'Tsreached" the 2014 DDA by representing that the Property's prospective use as a
hotel/casino was not icnown, (3) seeks a wit of mandate compelling the City to
"reinstate" the MMRP that was recorded on the Property, or hold a public healing
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 trust, and (5) seeks a
judicial determination as to tiie effectiveness of the City's actions. The Amended Petition
seeks a Court- order directbg the City and RPI to "comply" witii the 2014 SPA, the
MMRP, 2014 DDA, hold public hearmgs regarding the change in land use on the
Property, and conduct additional environmental review.
On June 20, 2017, shortly before the hearkig 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, el seq.) and Brown Act (Gov. Code, §§ 54950,
et seq.)
U. 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 must accept all material facts properly pled in the pleading as true,
(Burtv. County of Orange (2004) 120 Cal.App.4'" 273, 279.) However, a demurrer does
not admit contentions, deductions, or conclusions of fact br law alleged in the complaint;
facts impossible in law, or allegations contrary to facts of which a court may take judicial
notice. (Blankv. Kirwan (1985) 39 Cal.3d 311, 318; Martinez v. Socoma Companies,
/nc. (1974)llCal.3d394,399.)
A demurrer may be sustained without leave to amend when thefectsare not in dispute
and the nature of the plaintiffs claim is clear, but imder substantive law, no liability
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exists. (Keyes v. Bowen (2010) 189 Cal.App.4''' 647,655.) A demun'er 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
Cal.App.4"' 25,-29.) The burden of proving such reasonable possibility of amendment
rests with 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. The Court addresses each
i. Request for Judicial Notice
The Court gi-ants 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 witiiin the United States this IS"" of May,
2017." However, it does not contain a statement that the declarant certifies under penalty
of peijury under the taws 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 addi'esses 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 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 filing
it, as the Amended Petition was filed before the demurrers 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 lacks subject matter jurisdiction. The Court does not
sustam 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 tmst by the BIA for the benefit of the Tribe.
First, the Court declines to sustain the City's demurrer or dismiss flie Amended Petition
piu'suant to Code of Civil Procedure section 389(b), as urged by tiie 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 3 89(b).
Second, the parties have not established that the Court lacks subject matter jurisdiction at
this time. Once the Property is taken into tnist for the benefit of the Tribe, tliis Court will
lack jurisdiction to hear this 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 botii 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 tmst ai-e final administrative decisions. (25 C.F.R.,
§ 151.12 (c).) However, in other cases, the administrative decision to take land mto 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.. .until administiative 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 take land into tmst was not made by the Secretary of
hiterior and the Assistant Secretary for Indian Affairs. Rather, it is undisputed that BIA
Principal Deputy Assistant Secretary Larry Roberts made the determination to take the
Propeity into trust. Petitioners have appealed that adminish-ative decision.
The parties have declined to advise the Comt as to tbe outcome ofthis 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 notreachthe conclusion whether the administrative
decision is final, and whether the Couit now lacks subject matter jurisdiction, or whether
the matter is moot.
Accorduigly, the Court does not sustain the City's demurrer to the Amended Petition on
the ground that the Court lacks subject matter jurisdiction, and the Court does not dismiss
the Amended Petition on the grounds of mootness. (See Crangle v, City Council of
Crescent City (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 demiurs to each cause of action in the Petition. As set fortii below,
each of the causes of action in tiie 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 first cause of action alleges that the City "breached" its zoning ordinance by not.
rezoning the Property to permit a plarmed casino/hotel. Tiiis cause of action seelcs a wi'it
of mandate compelling the City to "comply" witii 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 Atlys. Assn. y. Woodside (1994) 7 Cal.4"'
525,539.) "The two requirements for mandamustiiusare (1) a clear, present and usually
mmisterial duty on the part of the respondent, and (2) a clear, present and beneficial right
in the petitioner to performance ofttiatduty." (Keyes v. Bowen, supra, 189 Cal.App.4"'
at p. 657 [citation omitted].) In mandate actions the petitioner bears the bnrden 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.
Although Petitioners cite to Government Code 65860 and other legal provisions,
Petitioners do not describe how these laws lionetheless unpose 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 Cityfromapplying local land use regulation to
propeity held in trust for tiie benefit of an Indian tiibe. (25 C.F.R. § 1.4; United States 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 talcen into
trust for the benefit of the Tribe, the City will lack tiie 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 tiiey can amend the Amended Petition
in this regard, to allege that a mandatory duty exists, and liotably, they have failed to
advise the Court as to pertinent proceedings regarding the BIA's decision to take the
Property into trust Petitioners bear the burden of demonstratuig in what manner 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,tiiefirstcause of action fails to state facts constituting a cause of action against the
City, and there is no reasonable possibility that Pethioners can amend the Amended
Petition to cure tiiis defect.
2. Second Cause of Action
The second cause of action alleges that the City "breached"flie2014 DDA in nmnerous
ways to peiinit 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 oftiieMMRP on the Property. The second cause of action seelcs an order
"corapelUng" 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, and there are
no provisions m the 2014 DDA tiiat identify what duty, if any, by the City exists imder
these chcumstances.
Petitioners also do not indicate that they can amend the Amended Petition to state a claim
for mandate agamst the City for "breach" oftiie2014 DDA, or any other claim. Notably,
Petitioner 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 in what manner they can amend the Amended Petition, and how that
amendment wiU change the legal effect of the Amended Petition. (Goodman v. Kennedy,
supra, 18 Cal,3d at p. 349.) They have not done so.
Thus,tiiesecond cause of action fails to state facts constituting a cause of action against
the City,
3. Thu-d Cause of Action
The third cause of action seelcs to compel the City to reinstate tiie MMRP that was
recorded against tiie property. The Amended Petition allegestiiatone month before the •
BIA's determination to talce the Property mto trust, flie 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.
Tt provides in pertinent part;
"The public agency shall adopt a reportmg or monitoring program for the
ciianges 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 shall be designed to ensure compliance
during project implementation," (Public Res. Code, § 21081,6 (a)(1),)
Although CEQA requires 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 otiiertihanthose that affect a specific parcel of property, a public agency could not
comply with such a requirement. Accordingly, no duty upon the City exists in thig
regard.
Additionally, tiie Cily has not "deleted"flieMMRP. Rather, tiie City recorded a notice
againsttiieProperty indicating that (I) the City will conditionally release the MMRP
recorded against the Property, if the BIA takestiieProperty mto trust, but (2) the release
will not be effective if the Property is not talcen intoti-ust.(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 the tiiird cause of action because (1) Petitioners filed tiie initial
petition more than 35 days aftertiieCity 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 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 noncomphance with fliis division, the
petitioner shall request a hearing within 90 daysfi'omthe date of filing petition or
shall be subject to dismissal on the comf s own motion or on flie motion of any party
interested in the action or proceeding."
Petitioners 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
requestal a lieai-mg within 90 days of the Amended Petition's filing.
Here, the City moves to dismiss the-tiiird "CEQA" case of action only, rather than the
entire Amended Petition, (i^ee Memorandum of Points and Authorities, in. Support of
City's Demurrer, 21:14-15.) The City has cited no authoritytiiatmandates the dismissal
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oftiieentire Amended Petition in a-case such as this, where a CEQA violation is only one-
oftiiemany causes of action pleaded.
BecausetiieCourt (1) sustains the City's and RPI's demurrers to the Aniended Petition
witiiout leave to amend, as tiie Amended Petition fails to state facts constituting a cause
of action, and (2) in particular, fmds that the thud "CEQA" cause of action fails to state
facts constituting a cause of action, the Comt 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 regarding
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 take other regulatory action, or hold hearings.
For the reasons set forth 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 againstflieCity, and fliere is no
reasonable possibility that Petitioners can amend this cause of action to cure tills 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
plannmg documents, permitting the transfer of the property, removing the MMRP from
the property, and failing to provide Petitioners with adequate notice and opportunity to be
heard on these mattera. This cause of action is wholly derivative of the otiier 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 jouis the City in its demurrer to the Petition, and also demurs on the ground that tiie
Amended Petition fails to state a cause of action against it.
A writ of mandate lies to compel a public entity to perform a ministerial duly. (Santa
Clara County Counsel Attys. Assn. v. Woodside, supra, 7 Cal.4''' al p. 539.) A writ of
mandate is available to compel private entities to performramisterialduties in very
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limited instances, not present here. (See, e.g.. Eight Unnamed Physicians v Medical
Exec. Comm. of the Med Staff of 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, mooting the claims against it.
Petitioners do not suggest what duty exists to compel the RPI to take any action here
given these facts, beyond the contentionfliattheRPI conspired witii the City to evade
regulatory action. Petitioners must do more than state conclusory allegations, but show
thatfliereis a reasonable possibiUty 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 of the declaratory relief
cause of action; Petitioners do not allege a claun for damages against RPI. Petitioners
have not and caimot 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 obtaining permissionfromthe Court, have filed a motion to be
relievedfromdismissal of the Amended Petition pursuant to Public Resources 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 representative from a
judgment, dismissal, order, or other proceeding taken against him or her through his or
her mistake, inadvertence, surprise, or excusable neglect," (Code Civ. Proc, § 473(b),)
The instances in which a court must grant "mandatory relief under this statute are
limited lo circumstances where there has been a default, defanh judgment, or dismissal,
(Urban Wildlife Group v. City of Los Angeles (2017) 10 Ciil.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 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 of the Amended Petition.
Consequently, 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 the City and RPI are sustained without leave to amend. Petitioners'
motion for relief pursuant to Code of Civil Procedure section 473(b) is denied.
Counsel for the City and RPI are durected to each prepare: (1) a formal order sustaining
the demurrer without leave to amend and dismissing the action, incorporating the Court's
rulmg as an exhibit; and (2) a separate judgment of dismissal, also Incorporating the
Page-11-of 12
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Court's mling as an exhibit Coimsel for the City 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 with California Rules of Court,
Rule 3.1312.
Date: August 1,2017
)6J>
Shelleyanne 'Cvyi.^hang \
Judge of the SupcrTOi'-Gftm^_oi!jSaIiforiiia
County of Sacramento
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SACRAMENTO
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
Mall, 27th Floor, Sacramento, CA 95814.
On August 9, 2017,1 served true copies of the following document(s) described as
[PROPOSED] ORDER SUSTAINING RESPONDENT AND DEFENDANT CITY OF ELK
GROVE'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED
PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY
RELIEF on the interested parties in this action as follows:
SEE ATTACHED SERVICE LIST
BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
persons at the addresses listed in the Service List and placed the envelope for collection and
10 mailing, following our ordinary business practices. I am readily familiar with the practice of
Kronick, Moskovitz, Tiedemann & Girard for collecting and processing correspondence for
11 mailing. On the same day that correspondence is placed for collection and mailing, it is deposited
in the ordinary course of business with the United States Postal Service, in a sealed envelope with
12 postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The
envelope was placed in the mail at Sacramento, Califomia.
13
I declare under penalty of perjury under the laws of the State of Cedifomia that the
14 foregoing is true and correct.
15 Executed on August 9, 2017, at Sacramento, Califomia.
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Elizabeth (May
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1582535.1 10784-236
[PROPOSED] ORDER SUSTAINING CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED
AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
1
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 OfBce of the City Attomey
6 Telephone: (916) 660-9555 8401 Laguna Pahns Way
Facsimile: (916)660-9554 Elk Grove, CA 95758
7 Email: bsbames@landlawbvbames,com Telephone: (916) 683-7111
arembree(g).landlawbvbarnes,com Facsunile: (916)627-4100
8 Email: ihobbs@elkgrovecity.org
Attorneys for Petitioners and Plaintiffs ialves@elkgi'ovecity.org
9 skennedv@elkgrovecity.org
10 Attornevs for Resoondent and Defendant
11 Scott M, Pearson
Taylor R, Steinbacher
12 Zaven A. Sargsian
Ballard Spahr LLP
13 2029 Cenhiry Park East, Suite 800
Los Angeles, CA 90067-2909
14 Telephone: (424) 204-4323
Facsunile: (424)204-4350
15 Email: pearsons@ballardspahr.com
steinbachert@ballardspahr.com
16 sargsianz@ballardspahr. com
17 Attorneys for Real Parties in Interest and
Defendants
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1582535.1 10784-236 17
[PROPOSED] ORDER SUSTAINING CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS" VERIFIED
AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
Preview
[Exempt From Filing Fee Government Code § 6103] 1 MONA G. EBRAHIMlrStatiis Bar No. 236550 mebrahimi(^knag. com 2 KRONICK, MOSKOVrrZ, TIEDEMANN & GIRARD A Professional Coipoialion 3 400 Capitol Mall, 27* Floor Sactamento, Califi>mia95814 4 Telephone: (916) 321-4500 Facsimile: (916) 321-4555 5 JONATHAN P. HOBBS, State Bar No. 186045 6 Oily Attomey jhobbs^lkgravectty.org 7 JENNimi A. ALVES, State Bar No. 238723 Assistant City Attomey 8 jalves@e0^oveciiy.org SUZANNE E. KENNEDY (SBN: 251339) 9 Assistant City Attomey ' skenne(fy@eli^ovec^y.org 10 Office of me (Stv Attomey 8401 Laguna Pauns Way 11 Elk Grove, Califomia 95758 Telephone: (916) 683-7111 12 Facsumle: (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 CALIFORNIAl; PATTY Case No. 34-2016-80002493 17 JOHNSON; and JOE TEDCEIRA, [PROPOSED] ORDER SUSTAINING 18 Petitioners and Plaintiff, RESPONDENT AND DEFENDANT CITY OF E L K GROVE'S DEMURRER TO 19 V. PETITIONERS AND PLAINTIEFS' VERIFIED AMENDiBD PETITION FOR 20 CITY OF ELK GROVE, yVRSJ DF MANDATE AND COMPLAINT FOR DECLARATORY R E L I E F 21 Respondent and Defendant Judge: Hon. Shelleyanne W. L. Chang 22 Date: June 23,2017 ELK GROVE TOWN CENTER, LP; Time: 10:00 ajn. 23 HOWARD HUGHES CORPORATION; and Dept: 24 DOES 1-20, 24 Petition Filed: Novenjber 23,2016 Real Parties in Interest and 25 DftfenHtmfa. 26 Respondent and Defendant City of Elk Grove's Demurrer to Petitioners and Plaintiff' 27 Verified Amended Petition for Writ of Mandate and Complaint for Declaratoiy Rjelief came on for 28 hearing before this Court on Jime 23,2017 at 10:00 a.m. in Department 24. The parties having 15S2S3S.1 10784^6 ^ [PROPOSED] ORDER. SUSTAINING CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS* VERIFIED AMENDED PETITION FOR. WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF been heard and the matter having been submitted, rr IS HEREBY ORDERED that Respondent and Defendant's Demurrer is sustained without leave to amend and Petitioners and Plaintifis* Verified Amended Petition for Writ of Mandate and Complaint for Declaratoty relief is dismissed witii piejudice and Petitioners' motion for relief putsuant to Code of Civil Procedure section 473(b) is denied. Attached hereto and incorporated herein as Exhibit A is a tme and correct copy of the Court's ruling. 8 DATED: .2017 9 10 Shelleyanne W. L. Chang 11 Judge of the Superior Court 12 13 APPROVED AS TO FORM: 14 DatedO ^2017 Brigit S. Barnes & Associates, Inc. 15 16 igit SL Bo^es 17 Attomeya^ Petitioners and Plaintiffs 18 19 20 21 22 23 24 25 26 27 28 1582535.1 10784-236 [PROPOSED] ORDER SUSTAINING CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS* VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF 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, V. 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 WHTT 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 demun-ers of Respondent and Real Party ui Interest, and denied Petitioners' motion for relief from dismissal pursuant to Code of Civil Procedure section 473. The parties appeared for oral argument on June 23,2017, and were represented by counsel as stated on tlie record. After talcing thei matter under submission, the Court affirms its tentative ruling. I. BACICGROUND This case concerns land (Property) within the City of Ellc Gi-ove (City) that was once proposed for development as a shopping mall. The United States 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 Propeity is part of (approximately one-third) of the Lent Ranch Marlcetplace Special. Planning Area ("Lent Ranch SPA"). (Amended Petition (AP), ^[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 Califomia Environmental Quality Act ("CEQA") (Pub. Resources Code, § 21000 etseq.) (Ibid.) The Lent Ranch SPA was plarmed as a "traditional" retail shopping'center, but included residential, commercial, and retail uses. (AP, ^13.) 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 ^114.) The proposed shopping center was nevei' biiilt. 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., TI24.) The Tribe then applied to the Department of Interior, Bureau of Indian Affairs (BIA) to take land into trust (Id., 1f1f25, 27.) The Tribe also initiated environmental review pursuant to the federal National Environmental Policy Act (NEPA). (42 U.S.C. §§ 4321, et seq.) for tlie trust decision and development of land as a casino/hotel. (Id., ^[25.) The initial enviroimiental 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 SPAfi'omtraditional retail mall to an "outiet mall concept," referred to as the Outlet Collection at EUc Grove.. (Amended Petition, TI34.) The City took steps to further 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, ^38, Petition, Exh. A.) In May 2016, RPI entered into an option agreement with Boyd Gaming, Inc. and the Tribe to sell part of the land (the Property) in the Lent Ranch SPA. (AP, ^[51.) Boyd Gaming, Inc, and the Tribe sought lo acquire the Property for the possible development of a casino/hotel/entertaimnent facility. (See Id., Tf53.) On June 9,2016, the Tribe anno\mced 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 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 m Support of Demurrer, Exh. 2.) On September 29, 2016, the City filed a Notice of Exemption ("NOE") that the City's approval of the 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 releasetiie2014 DDA as an encumbrance on the Property, (Amended Petition, ^ 62.) This was to allow the BIA to take the Property into h-ust for the benefit of the Tribe. (Ibid.) The City recorded the amendment to the 2014 DDA on November 9,2016. (Id., f 63.) The City later repealed this ordinance, (Id, ^79.) One month later, on November 21,2016, a referendum petition was filed, ohallengmg the City's Ordinance to amend the 2014 DDA. (Amended Petition, ^65.) On November 23,2016, this Petition was fded. The Petition initially alleged that the City violated CEQA, the Government Code, and the California Constitution by approving the Ordinance and prematurely recording the 2014 DDA Amendment. On December 22,2016, Petitioners unsuccessfully sought an ex parte application requiring the City to acknowledge the ineffectiveness of the Ordinance approving the aniendment 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 Property. For example. Petitioners allege that on December 23,2016, RPI recorded a series of lot line adjustments for the Property. (Amended Petition, 1f68.) For example, on Januaiy 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 titie (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 January 11, 2017, the City Cleric certified the referendum to repeal the Ordinance releasing tiie 2014 DDA from tiie Propeity, (Id., ^[73), Accordingly, 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 Propeity to Boyd Gaining and the Tribe. (Amended Petition, |75.) Also that same day, on January 19,2017, the BIA issued a Record of Decision (ROD) approving the talcing of the Property into trust for the benefit of the Tribe. (Amended Petition, ^74.) 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 February 10,2017, the BIA accepted the conveyance of the Property from Boyd Gaming and the Wilton Rancheria, placing the property mto Trust. (Id. f/l.) Page-3-of 12 On Febmary 21, 2017, Petitioners Stand up for California!, Patty Johnson, Joe Teixeira, and others filed an administrative appeal of the BIA's determination with the Interior Board of Indian Appeals. (Amended Petition, 1[78.) On Febmary 22, 2017, the City repealed the Ordinance allowing the Amendment to the 2014 DDA. (Amended Petition, f79.) 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 the 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 dhecting 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 'Tsreached" the 2014 DDA by representing that the Property's prospective use as a hotel/casino was not icnown, (3) seeks a wit of mandate compelling the City to "reinstate" the MMRP that was recorded on the Property, or hold a public healing 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 trust, and (5) seeks a judicial determination as to tiie effectiveness of the City's actions. The Amended Petition seeks a Court- order directbg the City and RPI to "comply" witii the 2014 SPA, the MMRP, 2014 DDA, hold public hearmgs regarding the change in land use on the Property, and conduct additional environmental review. On June 20, 2017, shortly before the hearkig 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, el seq.) and Brown Act (Gov. Code, §§ 54950, et seq.) U. 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 must accept all material facts properly pled in the pleading as true, (Burtv. County of Orange (2004) 120 Cal.App.4'" 273, 279.) However, a demurrer does not admit contentions, deductions, or conclusions of fact br law alleged in the complaint; facts impossible in law, or allegations contrary to facts of which a court may take judicial notice. (Blankv. Kirwan (1985) 39 Cal.3d 311, 318; Martinez v. Socoma Companies, /nc. (1974)llCal.3d394,399.) A demurrer may be sustained without leave to amend when thefectsare not in dispute and the nature of the plaintiffs claim is clear, but imder substantive law, no liability Page-4-of 12 exists. (Keyes v. Bowen (2010) 189 Cal.App.4''' 647,655.) A demun'er 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 Cal.App.4"' 25,-29.) The burden of proving such reasonable possibility of amendment rests with 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. The Court addresses each i. Request for Judicial Notice The Court gi-ants 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 witiiin the United States this IS"" of May, 2017." However, it does not contain a statement that the declarant certifies under penalty of peijury under the taws 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 addi'esses 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 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 filing it, as the Amended Petition was filed before the demurrers 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 lacks subject matter jurisdiction. The Court does not sustam 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 tmst by the BIA for the benefit of the Tribe. First, the Court declines to sustain the City's demurrer or dismiss flie Amended Petition piu'suant to Code of Civil Procedure section 389(b), as urged by tiie 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 3 89(b). Second, the parties have not established that the Court lacks subject matter jurisdiction at this time. Once the Property is taken into tnist for the benefit of the Tribe, tliis Court will lack jurisdiction to hear this 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 botii 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 tmst ai-e final administrative decisions. (25 C.F.R., § 151.12 (c).) However, in other cases, the administrative decision to take land mto 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.. .until administiative 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 take land into tmst was not made by the Secretary of hiterior and the Assistant Secretary for Indian Affairs. Rather, it is undisputed that BIA Principal Deputy Assistant Secretary Larry Roberts made the determination to take the Propeity into trust. Petitioners have appealed that adminish-ative decision. The parties have declined to advise the Comt as to tbe outcome ofthis 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 notreachthe conclusion whether the administrative decision is final, and whether the Couit now lacks subject matter jurisdiction, or whether the matter is moot. Accorduigly, the Court does not sustain the City's demurrer to the Amended Petition on the ground that the Court lacks subject matter jurisdiction, and the Court does not dismiss the Amended Petition on the grounds of mootness. (See Crangle v, City Council of Crescent City (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 demiurs to each cause of action in the Petition. As set fortii below, each of the causes of action in tiie 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 first cause of action alleges that the City "breached" its zoning ordinance by not. rezoning the Property to permit a plarmed casino/hotel. Tiiis cause of action seelcs a wi'it of mandate compelling the City to "comply" witii 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 Atlys. Assn. y. Woodside (1994) 7 Cal.4"' 525,539.) "The two requirements for mandamustiiusare (1) a clear, present and usually mmisterial duty on the part of the respondent, and (2) a clear, present and beneficial right in the petitioner to performance ofttiatduty." (Keyes v. Bowen, supra, 189 Cal.App.4"' at p. 657 [citation omitted].) In mandate actions the petitioner bears the bnrden 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. Although Petitioners cite to Government Code 65860 and other legal provisions, Petitioners do not describe how these laws lionetheless unpose 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 Cityfromapplying local land use regulation to propeity held in trust for tiie benefit of an Indian tiibe. (25 C.F.R. § 1.4; United States 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 talcen into trust for the benefit of the Tribe, the City will lack tiie 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 tiiey can amend the Amended Petition in this regard, to allege that a mandatory duty exists, and liotably, they have failed to advise the Court as to pertinent proceedings regarding the BIA's decision to take the Property into trust Petitioners bear the burden of demonstratuig in what manner 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-ofl2 10 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, and there is no reasonable possibility that Pethioners can amend the Amended Petition to cure tiiis defect. 2. Second Cause of Action The second cause of action alleges that the City "breached"flie2014 DDA in nmnerous ways to peiinit 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 oftiieMMRP on the Property. The second cause of action seelcs an order "corapelUng" 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, and there are no provisions m the 2014 DDA tiiat identify what duty, if any, by the City exists imder these chcumstances. Petitioners also do not indicate that they can amend the Amended Petition to state a claim for mandate agamst the City for "breach" oftiie2014 DDA, or any other claim. Notably, Petitioner 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 in what manner they can amend the Amended Petition, and how that amendment wiU change the legal effect of the Amended Petition. (Goodman v. Kennedy, supra, 18 Cal,3d at p. 349.) They have not done so. Thus,tiiesecond cause of action fails to state facts constituting a cause of action against the City, 3. Thu-d Cause of Action The third cause of action seelcs to compel the City to reinstate tiie MMRP that was recorded against tiie property. The Amended Petition allegestiiatone month before the • BIA's determination to talce the Property mto trust, flie 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. Tt provides in pertinent part; "The public agency shall adopt a reportmg or monitoring program for the ciianges 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 shall be designed to ensure compliance during project implementation," (Public Res. Code, § 21081,6 (a)(1),) Although CEQA requires 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 otiiertihanthose that affect a specific parcel of property, a public agency could not comply with such a requirement. Accordingly, no duty upon the City exists in thig regard. Additionally, tiie Cily has not "deleted"flieMMRP. Rather, tiie City recorded a notice againsttiieProperty indicating that (I) the City will conditionally release the MMRP recorded against the Property, if the BIA takestiieProperty mto trust, but (2) the release will not be effective if the Property is not talcen intoti-ust.(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 the tiiird cause of action because (1) Petitioners filed tiie initial petition more than 35 days aftertiieCity 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 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 noncomphance with fliis division, the petitioner shall request a hearing within 90 daysfi'omthe date of filing petition or shall be subject to dismissal on the comf s own motion or on flie motion of any party interested in the action or proceeding." Petitioners 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 requestal a lieai-mg within 90 days of the Amended Petition's filing. Here, the City moves to dismiss the-tiiird "CEQA" case of action only, rather than the entire Amended Petition, (i^ee Memorandum of Points and Authorities, in. Support of City's Demurrer, 21:14-15.) The City has cited no authoritytiiatmandates the dismissal Page - 9 - of 12 12 oftiieentire Amended Petition in a-case such as this, where a CEQA violation is only one- oftiiemany causes of action pleaded. BecausetiieCourt (1) sustains the City's and RPI's demurrers to the Aniended Petition witiiout leave to amend, as tiie Amended Petition fails to state facts constituting a cause of action, and (2) in particular, fmds that the thud "CEQA" cause of action fails to state facts constituting a cause of action, the Comt 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 regarding 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 take other regulatory action, or hold hearings. For the reasons set forth 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 againstflieCity, and fliere is no reasonable possibility that Petitioners can amend this cause of action to cure tills 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 plannmg documents, permitting the transfer of the property, removing the MMRP from the property, and failing to provide Petitioners with adequate notice and opportunity to be heard on these mattera. This cause of action is wholly derivative of the otiier 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 jouis the City in its demurrer to the Petition, and also demurs on the ground that tiie Amended Petition fails to state a cause of action against it. A writ of mandate lies to compel a public entity to perform a ministerial duly. (Santa Clara County Counsel Attys. Assn. v. Woodside, supra, 7 Cal.4''' al p. 539.) A writ of mandate is available to compel private entities to performramisterialduties in very Page-10-of 12 13 limited instances, not present here. (See, e.g.. Eight Unnamed Physicians v Medical Exec. Comm. of the Med Staff of 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, mooting the claims against it. Petitioners do not suggest what duty exists to compel the RPI to take any action here given these facts, beyond the contentionfliattheRPI conspired witii the City to evade regulatory action. Petitioners must do more than state conclusory allegations, but show thatfliereis a reasonable possibiUty 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 of the declaratory relief cause of action; Petitioners do not allege a claun for damages against RPI. Petitioners have not and caimot 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 obtaining permissionfromthe Court, have filed a motion to be relievedfromdismissal of the Amended Petition pursuant to Public Resources 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 representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect," (Code Civ. Proc, § 473(b),) The instances in which a court must grant "mandatory relief under this statute are limited lo circumstances where there has been a default, defanh judgment, or dismissal, (Urban Wildlife Group v. City of Los Angeles (2017) 10 Ciil.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 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 of the Amended Petition. Consequently, 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 the City and RPI are sustained without leave to amend. Petitioners' motion for relief pursuant to Code of Civil Procedure section 473(b) is denied. Counsel for the City and RPI are durected to each prepare: (1) a formal order sustaining the demurrer without leave to amend and dismissing the action, incorporating the Court's rulmg as an exhibit; and (2) a separate judgment of dismissal, also Incorporating the Page-11-of 12 14 Court's mling as an exhibit Coimsel for the City 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 with California Rules of Court, Rule 3.1312. Date: August 1,2017 )6J> Shelleyanne 'Cvyi.^hang \ Judge of the SupcrTOi'-Gftm^_oi!jSaIiforiiia County of Sacramento Page -12 - of 12 15 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SACRAMENTO 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 Mall, 27th Floor, Sacramento, CA 95814. On August 9, 2017,1 served true copies of the following document(s) described as [PROPOSED] ORDER SUSTAINING RESPONDENT AND DEFENDANT CITY OF ELK GROVE'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and 10 mailing, following our ordinary business practices. I am readily familiar with the practice of Kronick, Moskovitz, Tiedemann & Girard for collecting and processing correspondence for 11 mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with 12 postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at Sacramento, Califomia. 13 I declare under penalty of perjury under the laws of the State of Cedifomia that the 14 foregoing is true and correct. 15 Executed on August 9, 2017, at Sacramento, Califomia. 16 17 Elizabeth (May 18 19 20 21 22 23 24 25 26 27 28 1582535.1 10784-236 [PROPOSED] ORDER SUSTAINING CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF 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 OfBce of the City Attomey 6 Telephone: (916) 660-9555 8401 Laguna Pahns Way Facsimile: (916)660-9554 Elk Grove, CA 95758 7 Email: bsbames@landlawbvbames,com Telephone: (916) 683-7111 arembree(g).landlawbvbarnes,com Facsunile: (916)627-4100 8 Email: ihobbs@elkgrovecity.org Attorneys for Petitioners and Plaintiffs ialves@elkgi'ovecity.org 9 skennedv@elkgrovecity.org 10 Attornevs for Resoondent and Defendant 11 Scott M, Pearson Taylor R, Steinbacher 12 Zaven A. Sargsian Ballard Spahr LLP 13 2029 Cenhiry Park East, Suite 800 Los Angeles, CA 90067-2909 14 Telephone: (424) 204-4323 Facsunile: (424)204-4350 15 Email: pearsons@ballardspahr.com steinbachert@ballardspahr.com 16 sargsianz@ballardspahr. com 17 Attorneys for Real Parties in Interest and Defendants 18 19 20 21 22 23 24 25 26 27 28 1582535.1 10784-236 17 [PROPOSED] ORDER SUSTAINING CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS" VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF