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1 JOHN G. McCLENDON (State Bar No. A Professional Corporation Mill Creek Drive Suite Laguna Hills, California Telephone: ( -00 Facsimile: ( -0 john@ceqa.com Attorneys for Petitioner FOOTHILL COMMUNITIES COALITION SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE COMPLEX CIVIL COURTROOM FOOTHILL COMMUNITIES COALITION, an unincorporated association Petitioner, v. COUNTY OF ORANGE, ORANGE COUNTY BOARD OF SUPERVISORS, DOES 1 through, inclusive, Respondents, ROMAN CATHOLIC DIOCESE OF ORANGE, KISCO SENIOR LIVING, LLC, and DOES through, inclusive, Real Parties in Interest. Case No CU-WM-CXC Reassigned to the Honorable Judge Gail A. Andler Department CX 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITIONER S MOTION FOR NEW TRIAL AND/OR ALTERNATIVE RELIEF; DECLARATION OF JOHN G. McCLENDON [CCP & ] Date: August, 1 Time: 1:0 p.m. Dept: CX1 [ACTION FILED: April 1, ]

2 1 I. INTRODUCTION AND REASON FOR BRINGING THIS MOTION By Minute Order dated March, 1 (the March MO, this Court issued its ruling on the Petition for Writ of Mandate brought by Petitioner Foothill Communities Coalition ( FCC. The Court s March MO stated that FCC s Petition for Writ of Mandate is granted. The passing of the new zoning ordinance for SRH and applying it to the one property was improper spot zoning. In light of this ruling, the Court finds it unnecessary to rule on the CEQA issues. (Emphasis added. Thereafter, FCC served and filed a proposed Judgment and Writ of Mandate, and Respondents County of Orange and Orange County Board of Supervisors (collectively, Respondent and Real Parties in Interest Roman Catholic Diocese of Orange and Kisco Senior Living, LLC (collectively, RPI objected to FCC s version of these documents, proffering their own versions. On May, 1, the Court issued a second Minute Order (the May MO, sustaining RPI s and Respondent s objection that FCC s form of the Judgment and Writ exceeded the scope of the Court s March MO, and directing FCC to prepare a Judgment and Writ conforming to the Court s interlineation of FCC s proposed version. Late last month FCC began hearing that RPI s representatives were stating publicly that the Court had ruled to certify the environmental impact report ( EIR for RPI s senior housing project (the Project and therefore RPI s pending appeal of the Court s judgment was going to be limited solely to the spot zoning issue. (See Declaration of John G. McClendon [ McC Decl. ] infra,. Consequently, on Friday, June, 1, FCC s counsel wrote the following to RPI s and Respondents counsel: Dear Counsel: We have learned that Kisco and the Diocese (and perhaps the County are taking the position that Judge Andler has effectively upheld the County s certification of the EIR through her judgment. We don t think that Judge Andler intended to uphold the EIR. In fact, her March, 1 minute order indicates ruling on the -1-

3 1 CEQA issues raised by petitioner is unnecessary given the ruling on the zoning issue. We are very concerned, however, that Kisco and the Diocese appear to be taking a different position. Are you willing to stipulate that Judge Andler s judgment did not expressly or implicitly uphold the County s certification of the EIR? Please inform me by Monday morning, July. I would prefer not to have to request clarification from the Court if there is no need to do so, hence the request for the simple stipulation. Given what appears to be the position of Kisco and the Diocese, absent the requested stipulation, such clarification will be necessary to avoid much greater controversy and expense in the future for everyone concerned. (Id., and Exhibit A. On Monday, July, 1, FCC s counsel received an response from RPI s counsel rejecting FCC s proposal to stipulate that the Court s March MO says what it says, e.g., that in light of the Court finding that the Project constituted illegal spot zoning, the Court found it unnecessary to rule on the CEQA issues. (Id.,. Instead, RPI s counsel claimed that the record could not be more clear that the Court s May MO modified the Court s March, 1 Minute Order; specifically, that the May MO expressly declared and clarified that "[t]he court did not vacate CEQA findings or approvals in the ordinance or resolutions." (Emphasis added.... Judge Andler therefore specifically ruled that those legislative acts are still in effect. (Id. Given that RPI has announced its intention to appeal the Court s Judgment, FCC brings this motion seeking alternative relief under Code of Civil Procedure section. FCC does not want to find itself in a position where RPI (i obtains a reversal of the Judgment; (ii on remand files a peremptory challenge to Judge Andler; and then (iii argues to the new judge that FCC (or, for that matter, anyone else is estopped from challenging any defects in the Project s EIR because the May MO had the effect of implicitly changing the March MO to implicitly affirm and vindicate Respondent s CEQA findings and approvals for the Project s EIR. (Id.,. --

4 1 II. SUMMARY OF THE LEGAL PRINCIPLES GOVERNING THIS COURT S AUTHORITY TO GRANT A NEW TRIAL AND/OR ALTERNATIVE RELIEF Code of Civil Procedure section authorizes this Court to grant a new trial on any of several grounds, including: 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.. Accident or surprise, which ordinary prudence could not have guarded against.. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law[;] [and]. (Code Civ. Proc. (1, ( & (. Because this was a bench trial, Code of Civil Procedure section gives this Court broad powers in ruling on a motion for a new trial: In ruling on such motion, in a cause tried without a jury, the Court may, on such terms as may be just, change or add to the statement of decision, modify the judgment, in whole or in part, vacate the judgment, in whole or in part, and grant a new trial on all or part of the issues, or, in lieu of granting a new trial, may vacate and set aside the statement of decision and judgment and reopen the case for further proceedings and the introduction of additional evidence with the same effect as if the case had been reopened after the submission thereof and before a decision had been filed or judgment rendered. (Code Civ. Proc.. See also Mayer v. C. W Driver (0 Cal.App.th, [ Code of Civil Procedure, Section... authorizes the Court to change its statement of decision after either party moves for a new trial. [Citations.] The statute was enacted to give a trial Court, in --

5 1 an action tried without a jury, "the broad power to change its findings and to modify its judgment and thus avoid the necessity of a new trial." (citations omitted]. Moreover, [w]hile one of the statutory grounds for a new trial must exist for the trial Court to grant a new trial motion, such a ground does not have to exist for the Court to grant alternative relief under Section. (Concerned Citizens Coalition of Stockton v. City of Stockton (0 1 Cal.App.th 0, [ Concerned Citizens ]. As the Concerned Citizens court summarized: [R]eopening of the case for further proceedings under section is 'in lieu of granting a new trial' and therefore an alternate procedure available to the trial court. '[P]roper practice is to deny the motion for new trial and, in conjunction with such ruling, to grant the alternative relief provided in such section.' (Concerned Citizens, 1 Cal.App.th at - (quoting Howard A. Deason & Co. v. Costa Tierra Ltd. ( Cal.App.d,. III. ALTERNATIVE RELIEF IS WARRANTED TO AVOID FUTURE CONFUSION REGARDING THE STATUS OF THE PROJECT S EIR AND CEQA APPROVALS Given the March MO s clear statement that [i]n light of this ruling [re. spot zoning], the Court finds it unnecessary to rule on the CEQA issues, FCC assumed that the Court was perhaps following a line of cases where courts declined to reach other contested issues. (For example, see Building Industry Assn. v. City of Oceanside ( Cal.App.th, [ The court went on to find that it was premature to speculate on whether the City might comply with the density bonus law, when no developer proposal was yet before the City planning authorities. ]; Citizens for Jobs and the Economy v. County of Orange (0 Cal.App.,th 1, 1 [ We deem it unnecessary to reach certain other issues that have been exhaustively argued here.... ]; Communities for a Better Environment v. City of Richmond ( Cal.App.th 0, [ The [trial] court then concluded that it was not necessary to reach the other issues... because the above violations require revision of the EIR. Accordingly, the trial --

6 1 court entered judgment granting the writ and setting aside the Project's EIR, invalidating all of the Project permits, and suspending all Project-related construction activities. ]. However, FCC was surprised to learn that RPI was claiming that the May MO effectively voided the Court s earlier statement that it was not ruling on FCC s CEQA issues and instead constituted an implicit endorsement of the Project s EIR and Respondent s findings and approvals certifying it. Given RPI s intent to appeal the Judgment, alternative relief is warranted in the form of a clarification from this Court that, in granting FCC s Petition for Writ of Mandate, the Court did not in any way rule on FCC s CEQA issues and therefore that those issues remain vulnerable to future legal challenge and judicial scrutiny. IV. A NEW TRIAL MAY BE NEEDED TO ADDRESS THE PROJECT S EIR AND CEQA APPROVALS On the other hand, if RPI s counsel is in fact correct that the Court intended for its May MO to change the March MO and implicitly affirm the Project s EIR and Respondent s findings and approvals certifying it, then a new trial on the contested CEQA issues FCC raised in this action is necessary given that RPI has made no secret if its intent to appeal the Judgment. However, FCC submits that such a new trial is not necessary; all that is needed is for the Court to clarify that its rulings and Judgment expressed no opinion on FCC s CEQA claims and whether or not Respondent s CEQA findings and approvals regarding the Project s EIR were legally sufficient and valid. V. CONCLUSION FCC believes that a good faith disagreement exists among the parties as to the current judicial status of FCC s CEQA claims and that alternative relief is urgently needed in order to clarify for the parties the status of those claims. Therefore, FCC respectfully requests that the Court follow the guidance of the Concerned Citizens court by denying a motion for new trial and, in conjunction with that ruling, grant the above-requested alternative relief as allowed by Code of Civil Procedure section. (Concerned Citizens, 1 Cal.App.th at -. --

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8 1 DECLARATION OF JOHN G. McCLENDON (Code Civ. Proc. 1. I, John G. McClendon, declare: 1. I am an attorney licensed to practice law in the State of California and am a shareholder in the law firm of Leibold McClendon & Mann. I serve as counsel in this matter on behalf of my client, Foothill Communities Coalition ( FCC.. Late last month I was informed that representatives of real parties in interest Roman Catholic Diocese of Orange and Kisco Senior Living, LLC (collectively, RPI were stating publicly that this Court had ruled to certify the environmental impact report ( EIR for RPI s senior housing project (the Project and therefore RPI s pending appeal of the Court s judgment was going to be limited solely to the spot zoning issue. Consequently, on Friday, June , 1, I wrote the following to RPI s and Respondents counsel: Dear Counsel: We have learned that Kisco and the Diocese (and perhaps the County are taking the position that Judge Andler has effectively upheld the County s certification of the EIR through her judgment. We don t think that Judge Andler intended to uphold the EIR. In fact, her March, 1 minute order indicates ruling on the CEQA issues raised by petitioner is unnecessary given the ruling on the zoning issue. We are very concerned, however, that Kisco and the Diocese appear to be taking a different position. Are you willing to stipulate that Judge Andler s judgment did not expressly or implicitly uphold the County s certification of the EIR? Please inform me by Monday morning, July. I would prefer not to have to request clarification from the Court if there is no need to do so, hence the request for the simple stipulation. Given what appears to be the position of Kisco and the Diocese, absent the requested stipulation, such clarification will be necessary to avoid much greater controversy and expense in the future for everyone concerned. (A true and correct copy of the is attached hereto as Exhibit A. --

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10 EXHIBIT A

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