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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SACRAMENTO
DATE: June 23, 2017 10:00 a.m. DEPT. NO. 24
JUDGE: HON. SHELLEYANNE W. L. CHANG CLERK: E. HIGGEVBOTHAM
PATTY JOHNSON; JOE TEDOERA; OMAR Case No.: 34-2016-80002493
AHMED JR.; XEV 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: DEMURRERS TO AMENDED PETITION FOR
WRIT OF MANDATE AND COMPLAINT FOR
DECLARATORY RELIEF; MOTION FOR RELIEF
FROM DISMISSAL
The following shall constitute the Court's tentative mling on the above matters, set for
hearing in Department 24, on Friday, June 23, 2017, at 10:00 a.m. The tentative mling
shall become the final mling ofthe Court unless a party wishing to be heard so advises
the clerk of this Department no later than 4:00 p.m. on the court day preceding the
hearing, and further advises the clerk that such party has notified the other side of its
intention to appear.
I. BACKGROUND
This case concems land (Property) within the City of Elk Grove (City) that was once
proposed for development as a shopping mall. The United States Department of Interior,
Bureau of Indian Affairs (BIA) has begun to take the Property into tmst for the benefit of
the Wilton Rancheria Tribe (Tribe), and Petitioners have administratively appealed that
tmst determination. The Property is now proposed to be used for a hotel and casino.
The Property is part of (approximately one-third) 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
Environmental Impact Report ("EIR") therefor, pursuant to the Califomia Environmental
Quality Act ("CEQA") (Pub. Resources Code, § 21000 et seq) (Ibid.)
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The Lent Ranch SPA was planned as a "traditional" retail shopping center, but included
residential, commercial, and retail uses. (AP, T|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 ^[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., ^24.)
The Tribe then applied to the Department of Interior, Bureau of Indian Affairs (BIA) to
take land into tmst. (Id., TIt25, 27.) The Tribe also initiated environmental review
pursuant to the federal National Environmental Policy Act (NEPA), (42 U.S.C. §§ 4321,
et seq) for the tmst decision and development of land as a casino/hotel. (Id., T|25.) The
initial environmental review process identified an altemative site in Gait (the "Twin
Cities site") and not the Property, as the preferred site for the casino/hotel. (Id., T|26.)
In April 2014, Real Party in Interest Elk Grove Town Center and then-ovmer 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 SPA from traditional retail mall to an "outlet mall
concept," referred to as the Outlet Collection at Elk Grove. (Amended Petition, T|34.)
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 Outiet Collection at Elk Grove ("2014 DDA"). (Amended Petition, T|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, 1|51.) Boyd
Gaming, Inc. and the Tribe sought to acquire the Property for the possible development
of a casino/hotel/entertainment facility. (See Id., T|53.)
On June 9, 2016, the Tribe announced that the Property, and not the "Twin Cities site"
was the preferred location for a casino/hotel. (AP, ^(53.)
On September 28, 2016, the City approved Resolution No. 2016-183, approving a
Memorandum of Understanding between the Tribe and the City ("MOU"). (Amended
Petition, T|59.) Under the MOU, the Tribe would make payments to the City to mitigate
the expected impacts of a potential casino/hotel/entertainment facility on the Property.
(Amended Petition, ^59; see also City's Request for Judicial Notice in Support of
Demurrer, Exh. 2.) On September 29, 2016, the City filed a Notice of Exemption
("NOE") that the City's approval ofthe MOU was exempt from CEQA. (City's Request
for Judicial Notice in Support of Demurrer, Exh. 2.)
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On October 26,2016, the City adopted Ordinance 23-2016 (Ordinance), allowing it to
amend the 2014 DDA to release the 2014 DDA as an encumbrance on the Property.
(Amended Petition, ^ 62.) This was to allow the BIA to take the Property into tmst for the
benefit of the Tribe. (Ibid.) The City recorded the amendment to the DDA on November
9,2016. (Id., 1163.) The City later repealed this ordinance (Id. ^79.)
One month later, on November 21, 2016, a referendum petition was 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 unsuccessfiilly sought an ex parte application
requiring the City to acknowledge the ineffectiveness of the Ordinance approving the
amendment to the DDA, and act to expunge the Amendment and not represent to anyone
that title to the Property is free of encumbrances created by the DDA.
The Amended Petition alleges that the City and RPI took other actions with regard to the
Property. For example. Petitioners allege that on December 23, 2016, RPI recorded a
series of lot line adjustments for the Property. (Amended Petition, ^68.) Additionally, 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, ^69.) The Notice stated that it was
effective if and when the Property was taken into tmst 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 Clerk certified the referendum to repeal the Ordinance
releasing the 2015 DDA from the Property. (Id., T|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 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 tmst for the benefit of the Tribe. (Amended
Petition, 1174.) 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 the
conveyance of the Property from Boyd Gaming and the Wilton Rancheria, placing the
property into Tmst. (Id. \77)
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On Febmary 21, 2017, Petitioners Stand up for Califomia!, Patty Johnson, Joe Teixeira,
and others filed an adminisfrative 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, 1|79.)
On March 13, 2017, Petitioners filed the Amended Petition at issue. The petition no
longer challenges the City's actions to remove the 2014 DDA from the Property.
Additionally, the Amended Petition removes petitioner Stand Up Califomia! 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 Property's prospective use as a
hotel/casino was not known, (3) seeks a writ of mandate compelling the City to
"reinstate" the MMRP that was recorded on the Property, or hold a public hearing
explaining why compliance with the MMRP is unnecessary, (4) alleges that the City
"breached" Government Code hearing and notice provisions and due process rights by
not holding public hearings before the property could be taken into tmst, and (5) seeks a
judicial determination 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.
II. DISCUSSION
The mles goveming 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 tme.
(Burt V. County of Orange (2004) 120 Cal.App.4"' 273, 279.) However, a demurrer does
not admit contentions, deductions, or conclusions of fact or law alleged in the complaint;
facts impossible in law, or allegations contrary to facts of which a court may take judicial
notice. (Blank v. Kirwan (1985) 39 Cal.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 the nature of the plaintiffs claim is clear, but under
substantive law, no liability exists. (Keyes v. Bowen (2010) 189 Cal.App.4"' 647, 655.)
The City and RPI demur to the entire Petition, and to the separate causes of action
therein. The Court addresses each separately.
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i. Request for Judicial Notice
The Court grants the City's unopposed request for judicial notice in support of the
demurrer, and grants Petitioner's unopposed request for judicial notice in opposition to
the demurrer.
ii. Objection to Declaration of Odin Smith
The City's objection to Petitioner's declaration of Odin Smith (Declaration) is sustained.
The Declaration states that it is "[e]xecuted within the United States this 15"' of May,
2017." However, it does not contain a statement that the declarant certifies under penalty
of perjury under the laws of the State of Califomia that the foregoing material in the
Declaration is tme 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
aimended petition. Supplemental petitions introduce new causes of action in response to
new facts occurring after the petition was filed, and require the party to obtain leave of
Court before filing. (Code of Civ. Proc, § 464.) In contrast. Code of Civil Procedure
section 472 permits a party to amend its pleading once without leave ofthe 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 Petition on the ground that it fails as a matter of law
because the Tribe is immune from suit, is a necessary and indispensable party that cannot
be joined, and that the Court lacks subject matter jurisdiction. These allegations are not a
basis for demurrer, but, as explained below, the Amended Petition fails to state facts
constituting a cause of action against the City.
The Petition seeks to compel the City and/or RPI to take action in connection with the
Property that is being taken into tmst by the BIA for the benefit of the Tribe.
First, the Court declines to sustain the City's demurrer or dismiss the Petition pursuant to
Code of Civil Procedure section 389(b). Although the Tribe is a necessary party, the City
has not shown that the Tribe is an indispensable party pursuant to Code of Civil
Procedure section 389(b).
Second, although the Court may lack subject matter jurisdiction in the future, it does not
at this time. Once the Property is taken into tmst for the benefit of the tribe, this Court
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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 both
legislate conceming Indian property, and to adjudicate disputes involving that
property."].) The Property is the subject of the Amended Petition, which seeks to compel
the City and RPI to take actions regarding the property. Because the BIA's tmst
determination is not yet final, lack of jurisdiction is not a ground for demurrer or
dismissal.
Decisions made by the Secretary of Interior and the Assistant Secretary for Indian Affairs
on tribal applications to take land into tmst are final administrative decisions. (25 C.F.R.,
§ 151.12 (c).) However, in other cases, the administrative decision to take land into tmst
is subject to appeal before the Bureau of Indian Affairs or other agency official,
depending on the identity of the decision-maker. (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 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 take land into tmst was not made by the Secretary of
Interior 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
Property into tmst. Additionally, Petitioners have appealed that administrative decision.
Accordingly, the administrative decision is not final. Because the decision is not yet
final, the state does not lack jurisdiction.
v. The Petition Fails to State Facts Constituting a Cause of Action
The City altematively demurs to each cause of action in the Petition. As set forth below,
each ofthe causes of action in the Amended Petition fail to state facts constituting a cause
of action against the City.
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 planned casino/hotel. This cause of action seeks to
compel the 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. Assn. v. Woodside (1994) 7 Cal.4"'
525, 539.) "There are two essential requirements to the issuance of afraditionalwrit of
mandate: (1) a clear, present and usually ministerial duty on the part of the respondent,
and (2) a clear, present and beneficial right on the part of the petitioner to the
performance of that duty." (Cal. Assoc. for Health Servs. v. State Dept. of Health Servs.
(2007) 148 Cal.App.4"' 696, 704 [citing Loder v. Mun. Ct. (1976) 17 Cal.3d 859, 863].)
In mandate actions the petitioner bears the burden of pleading and proving the facts on
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which the claim for relief is based. (Cal. Carr. 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 nonetheless impose a duty upon the City to
"comply" with its zoning ordinance, once the BIA has begun to take the Property into
tmst.
If and when BIA's tmst decision becomes final, the City will lack authority to regulate
the Property. Federal law prohibits the City from applying local land use regulation to
property held in tmst for the benefit of an Indian tribe. (25 C.F.R. § 1.4; United States v.
County of Humboldt (1980) 615 F.2d 12 60, \26\; Santa Rosa Band of Indians v. Kings
County (9"^ Cir. 1975) 532 F.2d 655, 688.) Thus, if the Property is taken into tmst for
the benefit of the Tribe, the City will lack the authority to apply its regulations to the
Property and "comply" with its zoning ordinance.
If the BIA's decision does not become final, and the Property is not taken into tmst.
Petitioners do not assert that a casino/hotel will nonetheless be built. Pertinent here, the
Property is still encumbered by the DDA. Additionally, Petitioners do not suggest that
they can amend the Amended Petition in this regard, e.g., how a duty would nonetheless
exist if the BIA decision does not become final.
Petitioners bear the burden of demonstrating 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 Pacific
Financial, LLC v. Monroy (2013) 215 Cal.App.4"' 972, 994.) They have not done so.
Thus, the first cause of action fails to state facts constituting a cause of action against the
City, and there is no reasonable possibility that Petitioners can amend the Amended
Petition to cure this defect.
2. Second Cause of Action
The second cause of action alleges that the City "breached" the DDA in numerous ways
to permit the Property's change in use to a hotel/casino, including by failing to hold
hearings to determine the viability ofthe Property's use as a hotel/casino, and "releasing"
the recording of the MMRP on the Property.
Petitioners have again failed to identify a duty on the part of the City. The Property is
being taken into tmst for the benefit of the Tribe. Petitioners do not argue, and there are
no provisions in the 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
against the City for "breach" of the DDA. Petitioners do not seek any damages for the
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purported "breach" or suggest that Petitioners intended to state any other claim against
the City, besides that for writ of mandate. Petitioners bear the burden of demonsfrating in
what manner they can amend the Amended Petition, and how that amendment will
change the legal effect ofthe 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 the property. The Petition alleges that one month before the BIA's
determination to take the Property into tmst, the City "removed" the MMRP, which was
required by the EIR, that the City previously recorded against the Property.
Public Resources Code section 208016 governs the MMRP required for a CEQA project
and provides in pertinent part:
"The public agency shall adopt a reporting or monitoring program for the
changes made to the project or conditions of project approval, adopted in
order to mitigate or avoid significant effects on the environment. The
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 other than those that affect a specific parcel of property, a public agency could not
comply with such a requirement. Accordingly, Petitioners have pleaded no violation of
CEQA.
Additionally, the City has not "deleted" the MMRP. Rather, the City recorded a notice
against the Property indicating that (I) the City will conditionally release the MMRP
recorded against the Property, if the BIA takes the Property into tmst, but (2) the release
will not be effective if the Property is not taken into tmst. (Amended Petition, Exh. C.)
Petitioners have stated no CEQA violation, and there is no reasonable possibility that this
defect can be cured.
Thus, the third cause of action fails to state facts constituting a cause of action against the
City.
The City also moves to dismiss the third 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
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(MOU) for mitigation payments, and (2) Petitioners failed to request a hearing on the
action within 90 days of filing the Petition, pursuant to Public Resources Code section
21167.4(a).)
As to the City's first argument, the City has not stated a basis for dismissal of the
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, the City has not shown that dismissal of the entire
Petition is warranted. Public Resources Code section 21167.4(a) provides that "[i]n any
action or proceeding alleging noncompliance with this division, the petitioner shall
request a hearing within 90 days from the date of filing the petition or shall be subject to
dismissal on the court's own motiori or on the 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
requested a hearing within 90 days of the amended petition's filing.
Here, the City moves to dismiss the third "CEQA" case of action only, rather than the
entire Amended Petition. (See Memorandum of Points and Authorities in Support of
City's Demurrer, 21:14-15.) The City has cited no authority that mandates the dismissal
of the entire Petition in a case such as this, where a CEQA violation is only one of the
many causes of action pleaded. The Court thusfindsthat Public Resources Code section
21167.4(a) does not mandate dismissal of the entire Petition.
Because the Court (1) sustains both demurrers to the amended Petition without leave to
amend, as they fail to state facts constituting a cause of action, and (2) in particular, finds
that the third "CEQA" cause of action fails to state facts constituting a cause of action,
the Court 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 ll(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.
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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
planning 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 matters. This cause of action is derivative of the other claims in the
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.)
As detailed above, 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.
i. RPI
RPI joins the City in its demurrer to the Petition, and also demurs on the ground that the
Petition fails to state a cause of action against it.
A writ of mandate lies to compel a public entity to perform a ministerial duty. (Santa
Clara County Counsel Attys. Assn. v. Woodside, supra, 7 Cal.4'*' at p. 539.) A writ of
mandate is available to compel private entities to perform ministerial duties in very
limited instances, not present here. (See, e.g.. Eight Unnamed Physicians v Medical
Exec. Comm. ofthe Med. Staff of Washington Township Hosp. (2007) 150 Cal.App. 4*
503, 510 [challenge to a hospital's refiisal 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 contention that the RPI conspired with the City to evade
regulatory action. Petitioners must do more than state conclusory allegations, but show
that there is a reasonable possibility that the 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 claim for damages against RPI. Petitioners
have not and cannot state a claim for writ relief Accordingly, the RPI's demurrer to
the 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 permission from the Court, have filed a motion to be
relieved from dismissal 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 peirty. The discretionary provisions of this
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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 to circumstances where there has been a default, default judgment, or dismissal.
(Urban Wildlife Group v. City of Los Angeles (2017) 10 Cal.App.5"' 993, 1002.)
The Court has not dismissed the Amended Petition based on Public Resources Code
section 21167.4. Consequently, Petitioner's motion is denied.
III. 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.
If this tentative mling becomes the final mling of the Court, counsel for the City and RPI
are directed to each prepare: (I) a formal order sustaining the demurrer without leave to
amend and dismissing the action, incorporating the Court's mling as an exhibit; and (2) a
separate judgment of dismissal. Counsel 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 ofjudgment, in accordance with Califomia Rules of Court,
Rule 3.1312.
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Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO DATE: June 23, 2017 10:00 a.m. DEPT. NO. 24 JUDGE: HON. SHELLEYANNE W. L. CHANG CLERK: E. HIGGEVBOTHAM PATTY JOHNSON; JOE TEDOERA; OMAR Case No.: 34-2016-80002493 AHMED JR.; XEV 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: DEMURRERS TO AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF; MOTION FOR RELIEF FROM DISMISSAL The following shall constitute the Court's tentative mling on the above matters, set for hearing in Department 24, on Friday, June 23, 2017, at 10:00 a.m. The tentative mling shall become the final mling ofthe Court unless a party wishing to be heard so advises the clerk of this Department no later than 4:00 p.m. on the court day preceding the hearing, and further advises the clerk that such party has notified the other side of its intention to appear. I. BACKGROUND This case concems land (Property) within the City of Elk Grove (City) that was once proposed for development as a shopping mall. The United States Department of Interior, Bureau of Indian Affairs (BIA) has begun to take the Property into tmst for the benefit of the Wilton Rancheria Tribe (Tribe), and Petitioners have administratively appealed that tmst determination. The Property is now proposed to be used for a hotel and casino. The Property is part of (approximately one-third) 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 Environmental Impact Report ("EIR") therefor, pursuant to the Califomia Environmental Quality Act ("CEQA") (Pub. Resources Code, § 21000 et seq) (Ibid.) Page -1 - of 11 The Lent Ranch SPA was planned as a "traditional" retail shopping center, but included residential, commercial, and retail uses. (AP, T|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 ^[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., ^24.) The Tribe then applied to the Department of Interior, Bureau of Indian Affairs (BIA) to take land into tmst. (Id., TIt25, 27.) The Tribe also initiated environmental review pursuant to the federal National Environmental Policy Act (NEPA), (42 U.S.C. §§ 4321, et seq) for the tmst decision and development of land as a casino/hotel. (Id., T|25.) The initial environmental review process identified an altemative site in Gait (the "Twin Cities site") and not the Property, as the preferred site for the casino/hotel. (Id., T|26.) In April 2014, Real Party in Interest Elk Grove Town Center and then-ovmer 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 SPA from traditional retail mall to an "outlet mall concept," referred to as the Outlet Collection at Elk Grove. (Amended Petition, T|34.) 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 Outiet Collection at Elk Grove ("2014 DDA"). (Amended Petition, T|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, 1|51.) Boyd Gaming, Inc. and the Tribe sought to acquire the Property for the possible development of a casino/hotel/entertainment facility. (See Id., T|53.) On June 9, 2016, the Tribe announced that the Property, and not the "Twin Cities site" was the preferred location for a casino/hotel. (AP, ^(53.) On September 28, 2016, the City approved Resolution No. 2016-183, approving a Memorandum of Understanding between the Tribe and the City ("MOU"). (Amended Petition, T|59.) Under the MOU, the Tribe would make payments to the City to mitigate the expected impacts of a potential casino/hotel/entertainment facility on the Property. (Amended Petition, ^59; see also City's Request for Judicial Notice in Support of Demurrer, Exh. 2.) On September 29, 2016, the City filed a Notice of Exemption ("NOE") that the City's approval ofthe MOU was exempt from CEQA. (City's Request for Judicial Notice in Support of Demurrer, Exh. 2.) Page-2-of 11 On October 26,2016, the City adopted Ordinance 23-2016 (Ordinance), allowing it to amend the 2014 DDA to release the 2014 DDA as an encumbrance on the Property. (Amended Petition, ^ 62.) This was to allow the BIA to take the Property into tmst for the benefit of the Tribe. (Ibid.) The City recorded the amendment to the DDA on November 9,2016. (Id., 1163.) The City later repealed this ordinance (Id. ^79.) One month later, on November 21, 2016, a referendum petition was 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 unsuccessfiilly sought an ex parte application requiring the City to acknowledge the ineffectiveness of the Ordinance approving the amendment to the DDA, and act to expunge the Amendment and not represent to anyone that title to the Property is free of encumbrances created by the DDA. The Amended Petition alleges that the City and RPI took other actions with regard to the Property. For example. Petitioners allege that on December 23, 2016, RPI recorded a series of lot line adjustments for the Property. (Amended Petition, ^68.) Additionally, 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, ^69.) The Notice stated that it was effective if and when the Property was taken into tmst 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 Clerk certified the referendum to repeal the Ordinance releasing the 2015 DDA from the Property. (Id., T|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 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 tmst for the benefit of the Tribe. (Amended Petition, 1174.) 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 the conveyance of the Property from Boyd Gaming and the Wilton Rancheria, placing the property into Tmst. (Id. \77) Page-3-of 11 On Febmary 21, 2017, Petitioners Stand up for Califomia!, Patty Johnson, Joe Teixeira, and others filed an adminisfrative 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, 1|79.) On March 13, 2017, Petitioners filed the Amended Petition at issue. The petition no longer challenges the City's actions to remove the 2014 DDA from the Property. Additionally, the Amended Petition removes petitioner Stand Up Califomia! 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 Property's prospective use as a hotel/casino was not known, (3) seeks a writ of mandate compelling the City to "reinstate" the MMRP that was recorded on the Property, or hold a public hearing explaining why compliance with the MMRP is unnecessary, (4) alleges that the City "breached" Government Code hearing and notice provisions and due process rights by not holding public hearings before the property could be taken into tmst, and (5) seeks a judicial determination 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. II. DISCUSSION The mles goveming 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 tme. (Burt V. County of Orange (2004) 120 Cal.App.4"' 273, 279.) However, a demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law, or allegations contrary to facts of which a court may take judicial notice. (Blank v. Kirwan (1985) 39 Cal.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 the nature of the plaintiffs claim is clear, but under substantive law, no liability exists. (Keyes v. Bowen (2010) 189 Cal.App.4"' 647, 655.) The City and RPI demur to the entire Petition, and to the separate causes of action therein. The Court addresses each separately. Page - 4 - of 11 i. Request for Judicial Notice The Court grants the City's unopposed request for judicial notice in support of the demurrer, and grants Petitioner's unopposed request for judicial notice in opposition to the demurrer. ii. Objection to Declaration of Odin Smith The City's objection to Petitioner's declaration of Odin Smith (Declaration) is sustained. The Declaration states that it is "[e]xecuted within the United States this 15"' of May, 2017." However, it does not contain a statement that the declarant certifies under penalty of perjury under the laws of the State of Califomia that the foregoing material in the Declaration is tme 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 aimended petition. Supplemental petitions introduce new causes of action in response to new facts occurring after the petition was filed, and require the party to obtain leave of Court before filing. (Code of Civ. Proc, § 464.) In contrast. Code of Civil Procedure section 472 permits a party to amend its pleading once without leave ofthe 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 Petition on the ground that it fails as a matter of law because the Tribe is immune from suit, is a necessary and indispensable party that cannot be joined, and that the Court lacks subject matter jurisdiction. These allegations are not a basis for demurrer, but, as explained below, the Amended Petition fails to state facts constituting a cause of action against the City. The Petition seeks to compel the City and/or RPI to take action in connection with the Property that is being taken into tmst by the BIA for the benefit of the Tribe. First, the Court declines to sustain the City's demurrer or dismiss the Petition pursuant to Code of Civil Procedure section 389(b). Although the Tribe is a necessary party, the City has not shown that the Tribe is an indispensable party pursuant to Code of Civil Procedure section 389(b). Second, although the Court may lack subject matter jurisdiction in the future, it does not at this time. Once the Property is taken into tmst for the benefit of the tribe, this Court Page-5-ofll 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 both legislate conceming Indian property, and to adjudicate disputes involving that property."].) The Property is the subject of the Amended Petition, which seeks to compel the City and RPI to take actions regarding the property. Because the BIA's tmst determination is not yet final, lack of jurisdiction is not a ground for demurrer or dismissal. Decisions made by the Secretary of Interior and the Assistant Secretary for Indian Affairs on tribal applications to take land into tmst are final administrative decisions. (25 C.F.R., § 151.12 (c).) However, in other cases, the administrative decision to take land into tmst is subject to appeal before the Bureau of Indian Affairs or other agency official, depending on the identity of the decision-maker. (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 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 take land into tmst was not made by the Secretary of Interior 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 Property into tmst. Additionally, Petitioners have appealed that administrative decision. Accordingly, the administrative decision is not final. Because the decision is not yet final, the state does not lack jurisdiction. v. The Petition Fails to State Facts Constituting a Cause of Action The City altematively demurs to each cause of action in the Petition. As set forth below, each ofthe causes of action in the Amended Petition fail to state facts constituting a cause of action against the City. 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 planned casino/hotel. This cause of action seeks to compel the 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. Assn. v. Woodside (1994) 7 Cal.4"' 525, 539.) "There are two essential requirements to the issuance of afraditionalwrit of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty." (Cal. Assoc. for Health Servs. v. State Dept. of Health Servs. (2007) 148 Cal.App.4"' 696, 704 [citing Loder v. Mun. Ct. (1976) 17 Cal.3d 859, 863].) In mandate actions the petitioner bears the burden of pleading and proving the facts on Page-6-of 11 which the claim for relief is based. (Cal. Carr. 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 nonetheless impose a duty upon the City to "comply" with its zoning ordinance, once the BIA has begun to take the Property into tmst. If and when BIA's tmst decision becomes final, the City will lack authority to regulate the Property. Federal law prohibits the City from applying local land use regulation to property held in tmst for the benefit of an Indian tribe. (25 C.F.R. § 1.4; United States v. County of Humboldt (1980) 615 F.2d 12 60, \26\; Santa Rosa Band of Indians v. Kings County (9"^ Cir. 1975) 532 F.2d 655, 688.) Thus, if the Property is taken into tmst for the benefit of the Tribe, the City will lack the authority to apply its regulations to the Property and "comply" with its zoning ordinance. If the BIA's decision does not become final, and the Property is not taken into tmst. Petitioners do not assert that a casino/hotel will nonetheless be built. Pertinent here, the Property is still encumbered by the DDA. Additionally, Petitioners do not suggest that they can amend the Amended Petition in this regard, e.g., how a duty would nonetheless exist if the BIA decision does not become final. Petitioners bear the burden of demonstrating 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 Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4"' 972, 994.) They have not done so. Thus, the first cause of action fails to state facts constituting a cause of action against the City, and there is no reasonable possibility that Petitioners can amend the Amended Petition to cure this defect. 2. Second Cause of Action The second cause of action alleges that the City "breached" the DDA in numerous ways to permit the Property's change in use to a hotel/casino, including by failing to hold hearings to determine the viability ofthe Property's use as a hotel/casino, and "releasing" the recording of the MMRP on the Property. Petitioners have again failed to identify a duty on the part of the City. The Property is being taken into tmst for the benefit of the Tribe. Petitioners do not argue, and there are no provisions in the 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 against the City for "breach" of the DDA. Petitioners do not seek any damages for the Page-7-of 11 purported "breach" or suggest that Petitioners intended to state any other claim against the City, besides that for writ of mandate. Petitioners bear the burden of demonsfrating in what manner they can amend the Amended Petition, and how that amendment will change the legal effect ofthe 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 the property. The Petition alleges that one month before the BIA's determination to take the Property into tmst, the City "removed" the MMRP, which was required by the EIR, that the City previously recorded against the Property. Public Resources Code section 208016 governs the MMRP required for a CEQA project and provides in pertinent part: "The public agency shall adopt a reporting or monitoring program for the changes made to the project or conditions of project approval, adopted in order to mitigate or avoid significant effects on the environment. The 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 other than those that affect a specific parcel of property, a public agency could not comply with such a requirement. Accordingly, Petitioners have pleaded no violation of CEQA. Additionally, the City has not "deleted" the MMRP. Rather, the City recorded a notice against the Property indicating that (I) the City will conditionally release the MMRP recorded against the Property, if the BIA takes the Property into tmst, but (2) the release will not be effective if the Property is not taken into tmst. (Amended Petition, Exh. C.) Petitioners have stated no CEQA violation, and there is no reasonable possibility that this defect can be cured. Thus, the third cause of action fails to state facts constituting a cause of action against the City. The City also moves to dismiss the third 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 Page-8-of 11 (MOU) for mitigation payments, and (2) Petitioners failed to request a hearing on the action within 90 days of filing the Petition, pursuant to Public Resources Code section 21167.4(a).) As to the City's first argument, the City has not stated a basis for dismissal of the 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, the City has not shown that dismissal of the entire Petition is warranted. Public Resources Code section 21167.4(a) provides that "[i]n any action or proceeding alleging noncompliance with this division, the petitioner shall request a hearing within 90 days from the date of filing the petition or shall be subject to dismissal on the court's own motiori or on the 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 requested a hearing within 90 days of the amended petition's filing. Here, the City moves to dismiss the third "CEQA" case of action only, rather than the entire Amended Petition. (See Memorandum of Points and Authorities in Support of City's Demurrer, 21:14-15.) The City has cited no authority that mandates the dismissal of the entire Petition in a case such as this, where a CEQA violation is only one of the many causes of action pleaded. The Court thusfindsthat Public Resources Code section 21167.4(a) does not mandate dismissal of the entire Petition. Because the Court (1) sustains both demurrers to the amended Petition without leave to amend, as they fail to state facts constituting a cause of action, and (2) in particular, finds that the third "CEQA" cause of action fails to state facts constituting a cause of action, the Court 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 ll(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. Page-9-of 11 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 planning 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 matters. This cause of action is derivative of the other claims in the 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.) As detailed above, 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. i. RPI RPI joins the City in its demurrer to the Petition, and also demurs on the ground that the Petition fails to state a cause of action against it. A writ of mandate lies to compel a public entity to perform a ministerial duty. (Santa Clara County Counsel Attys. Assn. v. Woodside, supra, 7 Cal.4'*' at p. 539.) A writ of mandate is available to compel private entities to perform ministerial duties in very limited instances, not present here. (See, e.g.. Eight Unnamed Physicians v Medical Exec. Comm. ofthe Med. Staff of Washington Township Hosp. (2007) 150 Cal.App. 4* 503, 510 [challenge to a hospital's refiisal 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 contention that the RPI conspired with the City to evade regulatory action. Petitioners must do more than state conclusory allegations, but show that there is a reasonable possibility that the 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 claim for damages against RPI. Petitioners have not and cannot state a claim for writ relief Accordingly, the RPI's demurrer to the 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 permission from the Court, have filed a motion to be relieved from dismissal 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 peirty. The discretionary provisions of this Page-10-of 11 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 to circumstances where there has been a default, default judgment, or dismissal. (Urban Wildlife Group v. City of Los Angeles (2017) 10 Cal.App.5"' 993, 1002.) The Court has not dismissed the Amended Petition based on Public Resources Code section 21167.4. Consequently, Petitioner's motion is denied. III. 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. If this tentative mling becomes the final mling of the Court, counsel for the City and RPI are directed to each prepare: (I) a formal order sustaining the demurrer without leave to amend and dismissing the action, incorporating the Court's mling as an exhibit; and (2) a separate judgment of dismissal. Counsel 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 ofjudgment, in accordance with Califomia Rules of Court, Rule 3.1312. Page -11 - of 11