Preview
[Exempt From Filing Fee
Government Code § 6103]
1 F. GALE CONNOR (Bar No. 131994)
ANGELA J. YU (Bar No. 263212)
MILLER STARR REGALIA
A Professional Law Corporation
351 California Street, Suite 1110
San Francisco, California 94104
Telephone: 415 638 4800
Facsimile: 415 371 1012
Email: gale.connor@msrlegal.com
angela.yu@msrlegal.com
Attorneys for CITY OF SANTA CLARA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SANTA CLARA
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12 CITY OF SANTA CLARA, a California Case No. 19CV340508
Charter City,
13 APN: 104-30-36
Plaintiff,
14 CITY OF SANTA CLARA’S MOTION TO
v. QUASH NOTICE TO APPEAR AT TRIAL;
15 OR IN THE ALTERNATIVE, FOR
D.E. II RESTAURANTS, INC., a California PROTECTIVE ORDER
16 corporation, and DOES 1-50,
[Code of Civil Procedure §§ 1987(b), 1987.1]
17 Defendants.
[Filed concurrently with Declaration of Angela
18 J. Yul
D.E. Il RESTAURANTS, INC., a California
19 corporation, Judge: Hon. Cynthia C. Lie
Date: January 6, 2020
20 Cross-Complainant, Time: 9:00 a.m.
Dept.: 12
21 Vv
Action Filed: January 2, 2019
22 CITY OF SANTA CLARA, a California
Charter City, and DOES 1-50, Right to Take
23 Trial Date: January 6, 2020
Cross-Defendants.
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SCLA\5S2374\2210701,2 -l-
CITY OF SANTA CLARA’S MOTION TO QUASH NOTICE TO APPEAR AT TRIAL; OR IN THE
ALTERNATIVE, FOR PROTECTIVE ORDER
Pursuant to Code of Civil Procedure Sections 1987(b) and 1987.1, the City of Santa
Clara (the “City”) hereby moves to quash defendant D.E. II Restaurants, Inc.’s (“D.E. II”) Notice
to Appear at Trial (the “Notice to Appear”) to the extent that it demands that Mr. Craig Mobeck
appear at the trial on D.E. II’s objections to the City’s right to take property for public use, set for
January 6, 2020 (the “Right to Take Trial”).
I BACKGROUND
The City seeks to acquire D.E. II’s interest in a lease (the “Subject Property”) of a
City-owned building, in order to make infrastructure improvements (the “Project”) crucial to and
necessary for a mixed-use development known as City Place (the “Development”). On June 29,
10 2016, in compliance with the California Environmental Quality Act (“CEQA”), the City filed a
ll notice of determination indicating that the Development will have a significant effect on the
12 environment and that an environmental impact report was prepared for the Project pursuant to
13 CEQA. (Administrative Record at AR 000655657.)
14 On December 11, 2018, after notice given pursuant to Code of Civil Procedure
15 Section 1245.235, the City’s City Council adopted Resolution No. 18-8641 declaring that the
16 public interest and necessity require acquisition of the Subject Property for the Project (the
17 “Resolution of Necessity”). (Administrative Record at AR 000001-7.)
18 On January 2, 2019, the City commenced this eminent domain action. On or about
19 April 10, 2019, D.E. I filed an Answer in this action, attacking the City’s right to acquire the
20 Subject Property on the alleged grounds that: (1) the findings in the Resolution of Necessity do
21 not meet Code of Civil Procedure Section 1240.030’s requirements, such that the Resolution of
22 Necessity is invalid; (2) the Project is not in final design, rendering the Resolution of Necessity
23 vague and therefore invalid; (3) because it does not state that the City will use the Property within
24 seven years, the Resolution of Necessity is invalid; (4) the Resolution of Necessity is invalid
25 because the Project that it describes is not consistent with environmental documents, has not
26 undergone environmental review, and fails a CEQA analysis; (5) likewise, environmental
27 documents do not address, analyze, or permit exercise of the City’s eminent domain power; and
28 (6) the City has not satisfied Government Code Section 7267.2’s requirements, such that the
SCLA\S2374\2210701.2 235
CITY OF SANTA CLARA’S MOTION TO QUASH NOTICE TO APPEAR AT TRIAL; OR IN THE
ALTERNATIVE, FOR PROTECTIVE ORDER
Resolution of Necessity is invalid (collectively, the “Right to Take Objections”). (Answer at 3:9—
13:22.)
On December 18, 2019, D.E. II convened the deposition of Mr. Mobeck, the City’s
Director of Public Works. (Declaration of Angela J. Yu (“Yu Decl.”) at 4 2; Yu Decl., Ex. A
[Transcript of Deposition of Craig Mobeck (“Mobeck Dep.”)] at 10:10-12.) That deposition
wrapped in less than one hour’s time. (Yu Decl. at J 3.)
I. DISCUSSION
Code of Civil Procedure Section 1987.1 empowers this Court to issue an order
quashing a notice to appear at trial in its entirety or “any other order as may be appropriate to
10 protect [a] person from unreasonable or oppressive demands.”! As directed to Mr. Mobeck, D.E.
ll II’s Notice to Appear at the Right to Take Trial constitutes just that: an unreasonable and
12 oppressive demand that compels the Court to quash it.
13 D.E. Il commenced and completed a deposition of Mr. Mobeck two-and-a-half
14 weeks ago in this case. During that deposition, Mr. Mobeck testified that his tenure with the City
15 has spanned less than two years’ time (Mobeck Dep. at 5:1—2, 10:5~6); that he has no knowledge
16 of the “specifics on the status” of the Project (Mobeck Dep. at 14:14—18); that he is “not involved
17 {in] the day-to-day aspects of that [P]roject” (Mobeck Dep, at 17:1-6); that he has no involvement
18 in “any direct reviews” of the Project (Mobeck Dep. at 17:7—10); that he has no involvement “with
19 the environmental review component” of the Project (Mobeck Dep. at 20:18-21:16); that he
20 likewise has no involvement in preparation of environmental documents for the Development
21 (Mobeck Dep. at 21:24~22:11); that he has no involvement in setting the construction schedule for
22 the Project and no knowledge of construction schedules for the Project or for the Development
23 (Mobeck Dep. at 24:2-19, 25:4-16, 26:24-27:1, 28:25-29:2, 32:2-4, 36:23-25, 41:4-6, 42:7-10,
24 42:19-24); that he has no involvement in analyzing the “risks of not moving forward” with the
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' Because service of a notice to appear at trial has the “same effect as service of a subpoena,”
where a notice to appear at trial issues, the parties “have those rights and the court may make those
27 orders .. . as in the case of a subpoena for attendance before the court.” (Code Civ, Proc. § 1987.)
The law governing motion: iS to uash a subpoena thus ° eea Bess to the equivalent notice to appear”
28 at trial. (Garcia v. Myllyla (ot 9) 40 Cal.App.5th 990,
SCLA\S2374\2210701,2 Ba
CITY OF SANTA CLARA'S MOTION TO QUASH NOTICE TO APPEAR AT TRIAL; OR IN THE
ALTERNATIVE, FOR PROTECTIVE ORDER
Project or the Development (Mobeck Dep. at 29:12-19, 30:2-8); and that he has no knowledge of
the “details on the contract” for construction of the Project (Mobeck Dep. at 39:22-40:9).
In a nutshell, in sworn testimony that D.E. II itself elicited, Mr. Mobeck
demonstrated that he has no personal knowledge of the matters underlying D.E. II’s Right to Take
Objections and thus cannot offer relevant testimony at the Right to Take Trial. These realities are
indeed evident from the fact that—from start to finish—D.E. II’s deposition of Mr. Mobeck ran
for less than an hour. (Yu Decl. at 43.) And given that D.E, II opened and closed its deposition
of Mr, Mobeck little more than two weeks ago, the odds that Mr. Mobeck has since acquired
knowledge pertinent to the Right to Take Trial are slim to none.
10 No demand is more oppressive or unreasonable than forcing Mr. Mobeck to appear
11 at a multi-day trial centered on matters for which he has no personal involvement and no personal
12 knowledge. This Court therefore can and should quash D.E. II’s Notice to Appear at the Right to
13 Take Trial as to Mr. Mobeck. (See People v. Rhone (1968) 267 Cal.App.2d 652, 657 [the trial
14 court did not err in quashing trial subpoenas where the defendant “failed to show that the persons
15 he subpoenaed could offer relevant testimony in his behalf” or that “they had personal knowledge
16 of the matters” to be tried].)
17 mi. CONCLUSION
18 For the foregoing reasons, the City respectfully requests that this Court protect
19 Mr. Mobeck from the unreasonable and oppressive demand that he appear at the Right to Take
20 Trial and quash D.E. II’s Notice to Appear in its entirety as to Mr. Mobeck or otherwise make and
21 issue a protective order shielding Mr. Mobeck from the burdens of the Notice to Appear.
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23 Dated: January 3, 2020 MILLER STARR REGALIA
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26 ” eee —__—
Attorneys for CITY OF SANTA CLARA
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SCLA\S2374\2210701.2 4.
CITY OF SANTA CLARA’S MOTION TO QUASH NOTICE TO APPEAR AT TRIAL; OR IN THE
ALTERNATIVE, FOR PROTECTIVE ORDER
PROOF OF SERVICE
City of Santa Clara v. D.E. If Restaurants, Inc., et al.
19CV340508
At the time of service, I was over 18 years of age and not a party to this action. [am
employed in the County of San Francisco, State of California. My business address is 351
California St, Suite 1110, San Francisco, CA 94104.
On January 3, 2020, I served true copies of the following document(s) described as CITY
OF SANTA CLARA’S MOTION TO QUASH NOTICE TO APPEAR AT TRIAL; OR IN
THE ALTERNATIVE, FOR PROTECTIVE ORDER on the interested parties in this action as
follows
Scott E. Jenny Attorneys for Defendant
Jenny & Jenny D.E. II RESTAURANTS, INC.
736 Ferry Street
Martinez, CA 94553
10 Ph: 925-228-1265
Fax: 925-228-2841
11 Email: seilawoffice@cs.com
12 BY ELECTRONIC SERVICE: I served the document(s) on the person listed in the
Service List by submitting an electronic version of the document(s) to One Legal, LLC, through
13 the user interface at www.onelegal.com
14 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
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Executed on January 3, 2020, at San Francisco, California
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Preview
[Exempt From Filing Fee Government Code § 6103] 1 F. GALE CONNOR (Bar No. 131994) ANGELA J. YU (Bar No. 263212) MILLER STARR REGALIA A Professional Law Corporation 351 California Street, Suite 1110 San Francisco, California 94104 Telephone: 415 638 4800 Facsimile: 415 371 1012 Email: gale.connor@msrlegal.com angela.yu@msrlegal.com Attorneys for CITY OF SANTA CLARA SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SANTA CLARA 11 12 CITY OF SANTA CLARA, a California Case No. 19CV340508 Charter City, 13 APN: 104-30-36 Plaintiff, 14 CITY OF SANTA CLARA’S MOTION TO v. QUASH NOTICE TO APPEAR AT TRIAL; 15 OR IN THE ALTERNATIVE, FOR D.E. II RESTAURANTS, INC., a California PROTECTIVE ORDER 16 corporation, and DOES 1-50, [Code of Civil Procedure §§ 1987(b), 1987.1] 17 Defendants. [Filed concurrently with Declaration of Angela 18 J. Yul D.E. Il RESTAURANTS, INC., a California 19 corporation, Judge: Hon. Cynthia C. Lie Date: January 6, 2020 20 Cross-Complainant, Time: 9:00 a.m. Dept.: 12 21 Vv Action Filed: January 2, 2019 22 CITY OF SANTA CLARA, a California Charter City, and DOES 1-50, Right to Take 23 Trial Date: January 6, 2020 Cross-Defendants. 24 25 26 27 28 SCLA\5S2374\2210701,2 -l- CITY OF SANTA CLARA’S MOTION TO QUASH NOTICE TO APPEAR AT TRIAL; OR IN THE ALTERNATIVE, FOR PROTECTIVE ORDER Pursuant to Code of Civil Procedure Sections 1987(b) and 1987.1, the City of Santa Clara (the “City”) hereby moves to quash defendant D.E. II Restaurants, Inc.’s (“D.E. II”) Notice to Appear at Trial (the “Notice to Appear”) to the extent that it demands that Mr. Craig Mobeck appear at the trial on D.E. II’s objections to the City’s right to take property for public use, set for January 6, 2020 (the “Right to Take Trial”). I BACKGROUND The City seeks to acquire D.E. II’s interest in a lease (the “Subject Property”) of a City-owned building, in order to make infrastructure improvements (the “Project”) crucial to and necessary for a mixed-use development known as City Place (the “Development”). On June 29, 10 2016, in compliance with the California Environmental Quality Act (“CEQA”), the City filed a ll notice of determination indicating that the Development will have a significant effect on the 12 environment and that an environmental impact report was prepared for the Project pursuant to 13 CEQA. (Administrative Record at AR 000655657.) 14 On December 11, 2018, after notice given pursuant to Code of Civil Procedure 15 Section 1245.235, the City’s City Council adopted Resolution No. 18-8641 declaring that the 16 public interest and necessity require acquisition of the Subject Property for the Project (the 17 “Resolution of Necessity”). (Administrative Record at AR 000001-7.) 18 On January 2, 2019, the City commenced this eminent domain action. On or about 19 April 10, 2019, D.E. I filed an Answer in this action, attacking the City’s right to acquire the 20 Subject Property on the alleged grounds that: (1) the findings in the Resolution of Necessity do 21 not meet Code of Civil Procedure Section 1240.030’s requirements, such that the Resolution of 22 Necessity is invalid; (2) the Project is not in final design, rendering the Resolution of Necessity 23 vague and therefore invalid; (3) because it does not state that the City will use the Property within 24 seven years, the Resolution of Necessity is invalid; (4) the Resolution of Necessity is invalid 25 because the Project that it describes is not consistent with environmental documents, has not 26 undergone environmental review, and fails a CEQA analysis; (5) likewise, environmental 27 documents do not address, analyze, or permit exercise of the City’s eminent domain power; and 28 (6) the City has not satisfied Government Code Section 7267.2’s requirements, such that the SCLA\S2374\2210701.2 235 CITY OF SANTA CLARA’S MOTION TO QUASH NOTICE TO APPEAR AT TRIAL; OR IN THE ALTERNATIVE, FOR PROTECTIVE ORDER Resolution of Necessity is invalid (collectively, the “Right to Take Objections”). (Answer at 3:9— 13:22.) On December 18, 2019, D.E. II convened the deposition of Mr. Mobeck, the City’s Director of Public Works. (Declaration of Angela J. Yu (“Yu Decl.”) at 4 2; Yu Decl., Ex. A [Transcript of Deposition of Craig Mobeck (“Mobeck Dep.”)] at 10:10-12.) That deposition wrapped in less than one hour’s time. (Yu Decl. at J 3.) I. DISCUSSION Code of Civil Procedure Section 1987.1 empowers this Court to issue an order quashing a notice to appear at trial in its entirety or “any other order as may be appropriate to 10 protect [a] person from unreasonable or oppressive demands.”! As directed to Mr. Mobeck, D.E. ll II’s Notice to Appear at the Right to Take Trial constitutes just that: an unreasonable and 12 oppressive demand that compels the Court to quash it. 13 D.E. Il commenced and completed a deposition of Mr. Mobeck two-and-a-half 14 weeks ago in this case. During that deposition, Mr. Mobeck testified that his tenure with the City 15 has spanned less than two years’ time (Mobeck Dep. at 5:1—2, 10:5~6); that he has no knowledge 16 of the “specifics on the status” of the Project (Mobeck Dep. at 14:14—18); that he is “not involved 17 {in] the day-to-day aspects of that [P]roject” (Mobeck Dep, at 17:1-6); that he has no involvement 18 in “any direct reviews” of the Project (Mobeck Dep. at 17:7—10); that he has no involvement “with 19 the environmental review component” of the Project (Mobeck Dep. at 20:18-21:16); that he 20 likewise has no involvement in preparation of environmental documents for the Development 21 (Mobeck Dep. at 21:24~22:11); that he has no involvement in setting the construction schedule for 22 the Project and no knowledge of construction schedules for the Project or for the Development 23 (Mobeck Dep. at 24:2-19, 25:4-16, 26:24-27:1, 28:25-29:2, 32:2-4, 36:23-25, 41:4-6, 42:7-10, 24 42:19-24); that he has no involvement in analyzing the “risks of not moving forward” with the 25 26 ' Because service of a notice to appear at trial has the “same effect as service of a subpoena,” where a notice to appear at trial issues, the parties “have those rights and the court may make those 27 orders .. . as in the case of a subpoena for attendance before the court.” (Code Civ, Proc. § 1987.) The law governing motion: iS to uash a subpoena thus ° eea Bess to the equivalent notice to appear” 28 at trial. (Garcia v. Myllyla (ot 9) 40 Cal.App.5th 990, SCLA\S2374\2210701,2 Ba CITY OF SANTA CLARA'S MOTION TO QUASH NOTICE TO APPEAR AT TRIAL; OR IN THE ALTERNATIVE, FOR PROTECTIVE ORDER Project or the Development (Mobeck Dep. at 29:12-19, 30:2-8); and that he has no knowledge of the “details on the contract” for construction of the Project (Mobeck Dep. at 39:22-40:9). In a nutshell, in sworn testimony that D.E. II itself elicited, Mr. Mobeck demonstrated that he has no personal knowledge of the matters underlying D.E. II’s Right to Take Objections and thus cannot offer relevant testimony at the Right to Take Trial. These realities are indeed evident from the fact that—from start to finish—D.E. II’s deposition of Mr. Mobeck ran for less than an hour. (Yu Decl. at 43.) And given that D.E, II opened and closed its deposition of Mr, Mobeck little more than two weeks ago, the odds that Mr. Mobeck has since acquired knowledge pertinent to the Right to Take Trial are slim to none. 10 No demand is more oppressive or unreasonable than forcing Mr. Mobeck to appear 11 at a multi-day trial centered on matters for which he has no personal involvement and no personal 12 knowledge. This Court therefore can and should quash D.E. II’s Notice to Appear at the Right to 13 Take Trial as to Mr. Mobeck. (See People v. Rhone (1968) 267 Cal.App.2d 652, 657 [the trial 14 court did not err in quashing trial subpoenas where the defendant “failed to show that the persons 15 he subpoenaed could offer relevant testimony in his behalf” or that “they had personal knowledge 16 of the matters” to be tried].) 17 mi. CONCLUSION 18 For the foregoing reasons, the City respectfully requests that this Court protect 19 Mr. Mobeck from the unreasonable and oppressive demand that he appear at the Right to Take 20 Trial and quash D.E. II’s Notice to Appear in its entirety as to Mr. Mobeck or otherwise make and 21 issue a protective order shielding Mr. Mobeck from the burdens of the Notice to Appear. 22 23 Dated: January 3, 2020 MILLER STARR REGALIA 24 25 26 ” eee —__— Attorneys for CITY OF SANTA CLARA 27 28 SCLA\S2374\2210701.2 4. CITY OF SANTA CLARA’S MOTION TO QUASH NOTICE TO APPEAR AT TRIAL; OR IN THE ALTERNATIVE, FOR PROTECTIVE ORDER PROOF OF SERVICE City of Santa Clara v. D.E. If Restaurants, Inc., et al. 19CV340508 At the time of service, I was over 18 years of age and not a party to this action. [am employed in the County of San Francisco, State of California. My business address is 351 California St, Suite 1110, San Francisco, CA 94104. On January 3, 2020, I served true copies of the following document(s) described as CITY OF SANTA CLARA’S MOTION TO QUASH NOTICE TO APPEAR AT TRIAL; OR IN THE ALTERNATIVE, FOR PROTECTIVE ORDER on the interested parties in this action as follows Scott E. Jenny Attorneys for Defendant Jenny & Jenny D.E. II RESTAURANTS, INC. 736 Ferry Street Martinez, CA 94553 10 Ph: 925-228-1265 Fax: 925-228-2841 11 Email: seilawoffice@cs.com 12 BY ELECTRONIC SERVICE: I served the document(s) on the person listed in the Service List by submitting an electronic version of the document(s) to One Legal, LLC, through 13 the user interface at www.onelegal.com 14 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 15 Executed on January 3, 2020, at San Francisco, California 16 17 18 Nidow te Anderson | 19 20 21 22 23 24 25 26 27 28