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RUTAN & TUCKER, LLP ~_l
Fl l- E
David P. Lanferman (State Bar N0. 71593)
' ’
dlanferman@rutan.com
Alyssa B. Roy (Stale Bar No. 300859)
ar0y@rutan.com DEC 2 0 2018
Five Palo Alto Square
3000 El Camino Real, Suite 200 - . .... .
Palo Alto, CA 94306—9814 mmmofi'fi' '
a...
Telephone: 650-320-1500 37 0mm
Facsimile: 650-320-9905 '
Attorneys for Plaintiff and Petitioner
EDGEWOOD SC LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
JOHN TZE. an individual; and EDGEWOOD Case No. l7 CV309030
SC, LLC. a Delaware limited liability company,
Plaintiffs and Petitioners, STIPULATION FOR ENTRY
OF JUDGMENT
VS.
CITY OF PALO ALTO. a California municipal
corporation; CITY COUNCIL OF THE CITY
OF PALO ALTO; PLANNING AND
COMMUNITY ENVIRONMENT
DEPARTMENT OF THE CITY OF PALO
ALTO: LANCE BAYER in his capacity as
Administrative Hearing Officer; and
DOES l-IOO. inclusive. A
Defendants and Respondents.
RECITALS
WHEREAS. Petitioner Edgewood SC. LLC, filed the “Petition for Writ ofMandate and
Complaint for Declaratory and lnjunctive Reliefand for Enforcement 0fConstitutional Rights” 0n
April 4. 20] 7. seekingjudicial review and relief from certain penalties imposed by the Respondent
City of Palo Alto based 0n alleged violation ofthe City’s Planned Community Zoning Ordinances
5 l50 and 5224;
AND WHEREAS, upon Petitioner’s application, 0n June 27, 2018, the Court (by Judge
28 James L. Stoclker. Dept. l3) granted Petitioner's motion for issuance ofa Preliminary Injunction
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against respondent City based on the Court’s finding “that the application ofPalo Alto Municipal
Code section |.12.060 to require that Petitioner first pay all ofthe accrued and growing penalty
amounts assessed by the City as a precondition to pursuing administrative and court remedies
from administrative citations would impose an unreasonable and extreme financial hardship and
prevent Petitioner from effectively exercising itsdue process rights" and enjoining the City,
inter alia.from requiring Petitioner to pre-pay penalties under any administrative citation arising
from the vacancy Ofthe grocery store building as a condition of pursuing 0r obtaining
administrative or court relief.pendingjudgment on the merits;
AND WHEREAS. 0n August 21, 2017, the parties filed a Stipulation Staying
l0 Administrative Proceedings Pending Trial and Judgment, pursuant t0 which the Parties agreed that
ll the City would issue n0 further citations until afterjudgment, and that the City would not schedule
an administrative hearing on Citations 73-78 until afterjudgment, with the City reserving the right
after entry ofjudgment to issue further citations afterjudgment to the extent not inconsistent with
the Court‘s ruling following trial;
AND WHEREAS. 0n December l5. 2017, the Court (by Judge Peter H. Kirwan, Dept. 9)
issued itsDecision 0n the Second Cause of Action (petition for writ administrative mandate under
CCP§ 1094.5);
AND WHEREAS. 0n September 20. 2018. the Court (by Judge Peter H. Kirwan, Dept. 9)
issued itsDecision on the First Cause ofAction (petition for writ oftraditional mandate under
CCP § 1085);
AND WHEREAS during the Case Management Conference 0n September 21, 201 8, the
Court indicated it would revise its September 20, 2018 Decision so as t0 clarify the extent ofits
applicability t0 Citations 71 or 72, as t0 which Petitioner did timely appeal for administrative
review;
AND WHEREAS. the parties now seek t0 stipulate to entry ofa final and appealable
judgment incorporating (without prejudice to the right ofeither or both parties to appeal) the
Court‘s prior rulings as set forth above.
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liN’l‘RY
STIPULATION FOR ENTRY OF JUDGMENT
THEREFORE, the parties, and each ofthem, by and through their respective counsel,
hereby stipulate thatjudgment may be entered in this action based on the foregoing rulings by the
Court and resolving all issues raised by the pleadings, as follows:
l. Judgment be entered in favor 0f Petitioner on the issues raised by the Second Cause
ofAction (petition for writ administrative mandate under CCP § 1094.5) as stated in the Court’s
Decision issued on December 15, 2017, including the Court‘s determination thatPC Zoning
Ordinance Nos. PC 5l 50 and PC 5224 do not require Petitioner to assure the “continuous
operation” ofa grocery store on an uninterrupted basis, and therefore did notjustify or support the
IO City's issuance ot‘administrative citations 0r assessment ofpenalties against Petitioner, and the
ll Court‘s determination to grant the issuance ofa writ ofmandate directing the City to refund the
penalties paid by Petitioner under protest as to Citations 57
~ 70. including interest as provided by
the Palo Alto Municipal Code.
2. Judgment be entered in favor of respondent City 0n the issues raised by the First
Cause ofAction (petition for writ of‘traditional mandate under CCP § 1085) as stated in the
Court‘s Decision issued on September 20. 2018. on the basis that Petitioner failed to timely
exhaust administrative remedies as to Citation Nos. l
— 56, and thus is not entitled to refund or
relief‘as t0 penalties paid by Petitioner under those Citations.
3. The parties stipulate and agree that Petitioner has timely invoked itsadministrative
remedies as t0 Citations 57 -78. The parties further stipulate that this Judgment and the Court’s
Decision ofDecember 15, 2017, ifnot reversed 0n appeal, will preclude the assessment of any
penalties as to Citations 73-78. and will be deemed to mandate refunds ofany penalties paid or
deposited by Petitioner under Citations 7| and 72, plus interest. ln the event that Decision is
reversed on appeal, Petitioner reserves the right t0 seek relief 0r refunds under Citations 71 and 72
0n the basis that the respondent City failed to provide an administrative appeal hearing as t0 those
Citations within the time specified by the Municipal Code (inaddition t0 any other grounds for
relief).and this Stipulation and Judgment is without prejudice to Petitioner’s right to seek reliefas
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to Citations 7| and 72, and all later-issued citations. after exhausting its remedies as to those
citations.
4. Judgment shall be entered granting a permanent injunction, and making permanent
the preliminary injunctive relief issued pursuant to the Order entered on June 28, 20l7 by the
Hon. James L. Stoelker. to permanently enjoin the City from the following:
(a) Enforcing Administrative Citations 74. 75, and 76 against Petitioner, or requiring
payment ofthe penalties assessed in such administrative citations as a pre-condition to
obtaining administrative review or relief from the City;
(b) Requiring Petitioner t0 pre-pay penalties under any administrative citation arising
from the vacancy 0fthe grocery store building as a condition t0 obtain administrative
or court relief; or
(c) Issuing, 0r enforcing, any additional administrative citations against Petitioner
based on the facts alleged in the writ petition in this action or for the same alleged
violation ofzoning laws, for alleged “noncompliance with site’sPlanned Community
Zoning” under code section PAMC 18.38.020. PC 5224, Section 3(f)(3), or PC 5150.
The City isonly stipulating to the granting ofthis injunction for purposes 0fthis stipulated
disposition, and subject t0 the City’s right to appeal from thatjudgment (including this injunction).
But, in the event that the City is successful inwhole or in part 0n appeal, Judge Stoelker’s June 28,
2017 order granting a preliminary injunction shall remain in effect until after finaljudgment is
entered in this case following remittitur and any further proceedings held in response t0 such
remittitur, unless the Court hereafter expressly orders otherwise.
5. Notwithstanding the Court‘s Decision 0f December 15, 2017, mandating that the
respondent City make refunds ofall penalties paid by Petitioner under Citations 57-70, including
interest as provided by the Municipal Code, itis stipulated that the City may defer such refund
payments (without bond) pending the City‘s timely filing and resolution ofits anticipated appeal
from that Decision; provided. however, that this stipulated deferral of monetary reliefto Petitioner
iswithout prejudice to any 0f Petitioner‘s rights or claims, and provided that (unless that Decision
28 isreversed 0n appeal) refunds shall be paid within 30 days ofthe earlier of (a) the City’s failure to
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file a timely appeal. (b) the City’s withdrawal 0f any timely filed appeal, 0r (c) issuance ofthe
appellate court’s remittitur, and interest shall continue t0 accrue on the unpaid balance ofany
penalties as provided by the Municipal Code until refunded t0 Petitioner.
6. It isstipulated that the Court‘s Decisions as to the First and Second Causes of
Action. and Stipulations (including injunctive relief) as set forth above, have rendered it
unnecessary for the Court to resolve the remaining claims asserted in the Third and Fourth Causes
ofAction, and judgment may be entered dismissing those remaining claims (without prejudice, as
provided hereafter). Should Judgment be reversed 0n appeal, Petitioner reserves all rights to
further pursue its claims as to those Causes ofAction.
7. Costs are awarded t0 Petitioner. Pursuant to Rule 3.l702, subdivision (b)(2), 0fthe
California Rules ofCourt, the parties stipulate that the time for Petitioner to file a motion for
attorney's fees shall be extended until 60 days after the expiration 0f the time for filing a notice 0f
appeal or, ifa notice of appeal is filed, until the time within which amemorandum of costs must
be served and filed following resolution of said appeal under Rule 8.278(c), whichever is later.
8. The parties further stipulate that the terms oftheir stipulation filed August 21,
20] 7. shall remain in effect pending the anticipated appeal ofthis Judgment. Thus, the City shall
continue t0 refrain from issuing any further citations to Petitioner for its alleged violations 0f
Ordinance Nos. 5 l50 and 5224. and the City shall continue to delay scheduling an administrative
hearing on any pending citations numbered 73 and higher, until after the Court 0f Appeal issues a
remittitur on any such appeal. lfthe City fails totimely appeal or withdraws a timely filed appeal,
Citations 73 — 78 shall be null and void. The City continues to reserve the right t0 issue one or
more citations for alleged violations that occurred after June 18, 2017, but only if itis successful
on appeal and only to the extent not inconsistent with any future court ruling following said
appeal: and
9. Notwithstanding the parties" stipulation and request for entry ofa final judgment as
set forth herein, the parties reserve and d0 not waive their respective rights to timely seek appellate
review ofthe Court‘s previous rulings incorporated in this Stipulated Judgment.
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10. The parties stipulate and join in requesting that the Court make an order approving
this stipulation and enter judgment thereon.
SO STIPULATED:
Dated: December 11, 201 8 RUTAN & TU ER, LLP
1 v/J
\OOONON
By:
-'
m///at§4w\
David P. Lanferman’
Alyssa B. Roy
Attorneys for Plaintiff and Petitioner
10 EDGEWOOD SC LLC
11 Dated: December fl, 20 18 JARVIS, FAY, DOPORTO & GIBSON, LLP
12
13
Rick W. Jarvis
14 Attorneys for Defendants and Respondents
CITY OF PALO ALTO, CITY COUNCIL
15 OF THE CITY OF PALO ALTO, and
PLANNING AND COMMUNITY
16 ENVIRONMENT DEPARTMENT OF THE
CITY OF PALO ALTO
17
18
19
20
21
22
23
24
25
26
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RUTAN & TUCKER, LLP ~_l Fl l- E David P. Lanferman (State Bar N0. 71593) ' ’ dlanferman@rutan.com Alyssa B. Roy (Stale Bar No. 300859) ar0y@rutan.com DEC 2 0 2018 Five Palo Alto Square 3000 El Camino Real, Suite 200 - . .... . Palo Alto, CA 94306—9814 mmmofi'fi' ' a... Telephone: 650-320-1500 37 0mm Facsimile: 650-320-9905 ' Attorneys for Plaintiff and Petitioner EDGEWOOD SC LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA JOHN TZE. an individual; and EDGEWOOD Case No. l7 CV309030 SC, LLC. a Delaware limited liability company, Plaintiffs and Petitioners, STIPULATION FOR ENTRY OF JUDGMENT VS. CITY OF PALO ALTO. a California municipal corporation; CITY COUNCIL OF THE CITY OF PALO ALTO; PLANNING AND COMMUNITY ENVIRONMENT DEPARTMENT OF THE CITY OF PALO ALTO: LANCE BAYER in his capacity as Administrative Hearing Officer; and DOES l-IOO. inclusive. A Defendants and Respondents. RECITALS WHEREAS. Petitioner Edgewood SC. LLC, filed the “Petition for Writ ofMandate and Complaint for Declaratory and lnjunctive Reliefand for Enforcement 0fConstitutional Rights” 0n April 4. 20] 7. seekingjudicial review and relief from certain penalties imposed by the Respondent City of Palo Alto based 0n alleged violation ofthe City’s Planned Community Zoning Ordinances 5 l50 and 5224; AND WHEREAS, upon Petitioner’s application, 0n June 27, 2018, the Court (by Judge 28 James L. Stoclker. Dept. l3) granted Petitioner's motion for issuance ofa Preliminary Injunction Rulan 8 Tucker, LLP altomeysa!law ‘1 — 2786 033563-0002 130nm 4a1: I7 Ix FOR ENTRY OF JUDGMENT S'I‘IPUIA’I‘ION against respondent City based on the Court’s finding “that the application ofPalo Alto Municipal Code section |.12.060 to require that Petitioner first pay all ofthe accrued and growing penalty amounts assessed by the City as a precondition to pursuing administrative and court remedies from administrative citations would impose an unreasonable and extreme financial hardship and prevent Petitioner from effectively exercising itsdue process rights" and enjoining the City, inter alia.from requiring Petitioner to pre-pay penalties under any administrative citation arising from the vacancy Ofthe grocery store building as a condition of pursuing 0r obtaining administrative or court relief.pendingjudgment on the merits; AND WHEREAS. 0n August 21, 2017, the parties filed a Stipulation Staying l0 Administrative Proceedings Pending Trial and Judgment, pursuant t0 which the Parties agreed that ll the City would issue n0 further citations until afterjudgment, and that the City would not schedule an administrative hearing on Citations 73-78 until afterjudgment, with the City reserving the right after entry ofjudgment to issue further citations afterjudgment to the extent not inconsistent with the Court‘s ruling following trial; AND WHEREAS. 0n December l5. 2017, the Court (by Judge Peter H. Kirwan, Dept. 9) issued itsDecision 0n the Second Cause of Action (petition for writ administrative mandate under CCP§ 1094.5); AND WHEREAS. 0n September 20. 2018. the Court (by Judge Peter H. Kirwan, Dept. 9) issued itsDecision on the First Cause ofAction (petition for writ oftraditional mandate under CCP § 1085); AND WHEREAS during the Case Management Conference 0n September 21, 201 8, the Court indicated it would revise its September 20, 2018 Decision so as t0 clarify the extent ofits applicability t0 Citations 71 or 72, as t0 which Petitioner did timely appeal for administrative review; AND WHEREAS. the parties now seek t0 stipulate to entry ofa final and appealable judgment incorporating (without prejudice to the right ofeither or both parties to appeal) the Court‘s prior rulings as set forth above. 28 Rutan s Tucker, LLP attorneys a! law ‘2- 2786 033563.0002 1}0l75‘)6 J 4112 l7 IX FOR S'l‘ll’UlA'l‘lON OF JUDGMENT liN’l‘RY STIPULATION FOR ENTRY OF JUDGMENT THEREFORE, the parties, and each ofthem, by and through their respective counsel, hereby stipulate thatjudgment may be entered in this action based on the foregoing rulings by the Court and resolving all issues raised by the pleadings, as follows: l. Judgment be entered in favor 0f Petitioner on the issues raised by the Second Cause ofAction (petition for writ administrative mandate under CCP § 1094.5) as stated in the Court’s Decision issued on December 15, 2017, including the Court‘s determination thatPC Zoning Ordinance Nos. PC 5l 50 and PC 5224 do not require Petitioner to assure the “continuous operation” ofa grocery store on an uninterrupted basis, and therefore did notjustify or support the IO City's issuance ot‘administrative citations 0r assessment ofpenalties against Petitioner, and the ll Court‘s determination to grant the issuance ofa writ ofmandate directing the City to refund the penalties paid by Petitioner under protest as to Citations 57 ~ 70. including interest as provided by the Palo Alto Municipal Code. 2. Judgment be entered in favor of respondent City 0n the issues raised by the First Cause ofAction (petition for writ of‘traditional mandate under CCP § 1085) as stated in the Court‘s Decision issued on September 20. 2018. on the basis that Petitioner failed to timely exhaust administrative remedies as to Citation Nos. l — 56, and thus is not entitled to refund or relief‘as t0 penalties paid by Petitioner under those Citations. 3. The parties stipulate and agree that Petitioner has timely invoked itsadministrative remedies as t0 Citations 57 -78. The parties further stipulate that this Judgment and the Court’s Decision ofDecember 15, 2017, ifnot reversed 0n appeal, will preclude the assessment of any penalties as to Citations 73-78. and will be deemed to mandate refunds ofany penalties paid or deposited by Petitioner under Citations 7| and 72, plus interest. ln the event that Decision is reversed on appeal, Petitioner reserves the right t0 seek relief 0r refunds under Citations 71 and 72 0n the basis that the respondent City failed to provide an administrative appeal hearing as t0 those Citations within the time specified by the Municipal Code (inaddition t0 any other grounds for relief).and this Stipulation and Judgment is without prejudice to Petitioner’s right to seek reliefas 28 /// Ruun 8 LLP Tucker. ailomeysatlaw ‘3- 2786 033503-0002 13017596 4 a|2 l7 18 FOR ENTRY S'l‘ll’UliATlON Ol:JUDGMENT to Citations 7| and 72, and all later-issued citations. after exhausting its remedies as to those citations. 4. Judgment shall be entered granting a permanent injunction, and making permanent the preliminary injunctive relief issued pursuant to the Order entered on June 28, 20l7 by the Hon. James L. Stoelker. to permanently enjoin the City from the following: (a) Enforcing Administrative Citations 74. 75, and 76 against Petitioner, or requiring payment ofthe penalties assessed in such administrative citations as a pre-condition to obtaining administrative review or relief from the City; (b) Requiring Petitioner t0 pre-pay penalties under any administrative citation arising from the vacancy 0fthe grocery store building as a condition t0 obtain administrative or court relief; or (c) Issuing, 0r enforcing, any additional administrative citations against Petitioner based on the facts alleged in the writ petition in this action or for the same alleged violation ofzoning laws, for alleged “noncompliance with site’sPlanned Community Zoning” under code section PAMC 18.38.020. PC 5224, Section 3(f)(3), or PC 5150. The City isonly stipulating to the granting ofthis injunction for purposes 0fthis stipulated disposition, and subject t0 the City’s right to appeal from thatjudgment (including this injunction). But, in the event that the City is successful inwhole or in part 0n appeal, Judge Stoelker’s June 28, 2017 order granting a preliminary injunction shall remain in effect until after finaljudgment is entered in this case following remittitur and any further proceedings held in response t0 such remittitur, unless the Court hereafter expressly orders otherwise. 5. Notwithstanding the Court‘s Decision 0f December 15, 2017, mandating that the respondent City make refunds ofall penalties paid by Petitioner under Citations 57-70, including interest as provided by the Municipal Code, itis stipulated that the City may defer such refund payments (without bond) pending the City‘s timely filing and resolution ofits anticipated appeal from that Decision; provided. however, that this stipulated deferral of monetary reliefto Petitioner iswithout prejudice to any 0f Petitioner‘s rights or claims, and provided that (unless that Decision 28 isreversed 0n appeal) refunds shall be paid within 30 days ofthe earlier of (a) the City’s failure to Rulan 8 Tuckor. LLP atlorneys a! law '4' 033563-0002 2781) 13017596 J uIZ l7 l8 STIPULATION FOR ENTRY OF JUDGMENT file a timely appeal. (b) the City’s withdrawal 0f any timely filed appeal, 0r (c) issuance ofthe appellate court’s remittitur, and interest shall continue t0 accrue on the unpaid balance ofany penalties as provided by the Municipal Code until refunded t0 Petitioner. 6. It isstipulated that the Court‘s Decisions as to the First and Second Causes of Action. and Stipulations (including injunctive relief) as set forth above, have rendered it unnecessary for the Court to resolve the remaining claims asserted in the Third and Fourth Causes ofAction, and judgment may be entered dismissing those remaining claims (without prejudice, as provided hereafter). Should Judgment be reversed 0n appeal, Petitioner reserves all rights to further pursue its claims as to those Causes ofAction. 7. Costs are awarded t0 Petitioner. Pursuant to Rule 3.l702, subdivision (b)(2), 0fthe California Rules ofCourt, the parties stipulate that the time for Petitioner to file a motion for attorney's fees shall be extended until 60 days after the expiration 0f the time for filing a notice 0f appeal or, ifa notice of appeal is filed, until the time within which amemorandum of costs must be served and filed following resolution of said appeal under Rule 8.278(c), whichever is later. 8. The parties further stipulate that the terms oftheir stipulation filed August 21, 20] 7. shall remain in effect pending the anticipated appeal ofthis Judgment. Thus, the City shall continue t0 refrain from issuing any further citations to Petitioner for its alleged violations 0f Ordinance Nos. 5 l50 and 5224. and the City shall continue to delay scheduling an administrative hearing on any pending citations numbered 73 and higher, until after the Court 0f Appeal issues a remittitur on any such appeal. lfthe City fails totimely appeal or withdraws a timely filed appeal, Citations 73 — 78 shall be null and void. The City continues to reserve the right t0 issue one or more citations for alleged violations that occurred after June 18, 2017, but only if itis successful on appeal and only to the extent not inconsistent with any future court ruling following said appeal: and 9. Notwithstanding the parties" stipulation and request for entry ofa final judgment as set forth herein, the parties reserve and d0 not waive their respective rights to timely seek appellate review ofthe Court‘s previous rulings incorporated in this Stipulated Judgment. 28 /// Rulan 8 Tucker. LLP allorneys a! law -5- 2786 033563-0002 |30I7596 4 a12 I7 I8 STll’UliATIONFOR ENTRY JUDGMENT ()l" 10. The parties stipulate and join in requesting that the Court make an order approving this stipulation and enter judgment thereon. SO STIPULATED: Dated: December 11, 201 8 RUTAN & TU ER, LLP 1 v/J \OOONON By: -' m///at§4w\ David P. Lanferman’ Alyssa B. Roy Attorneys for Plaintiff and Petitioner 10 EDGEWOOD SC LLC 11 Dated: December fl, 20 18 JARVIS, FAY, DOPORTO & GIBSON, LLP 12 13 Rick W. Jarvis 14 Attorneys for Defendants and Respondents CITY OF PALO ALTO, CITY COUNCIL 15 OF THE CITY OF PALO ALTO, and PLANNING AND COMMUNITY 16 ENVIRONMENT DEPARTMENT OF THE CITY OF PALO ALTO 17 18 19 20 21 22 23 24 25 26 27 28 Rutan a Tucker, LLP law attorneys at -6- 2786/033563—0002 13017596,4alZ/17/l8 STIPULATION FOR ENTRY OF JUDGMENT