Opinion
G056122
01-07-2020
EL-YORBA LINDA, LLC, Appellant, v. CITY OF YORBA LINDA et al., Respondents.
Newmeyer & Dillion, Charles S. Krolikowski, Michael W. Shonafelt and Jason Moberly Caruso for Appellant. Rutan & Tucker, Todd O. Litfin and Alan B. Fenstermacher for Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00844452) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregory H. Lewis, Judge. Dismissed as moot. Appellant's request for judicial notice. Granted. Respondents' request for judicial notice. Denied. Newmeyer & Dillion, Charles S. Krolikowski, Michael W. Shonafelt and Jason Moberly Caruso for Appellant. Rutan & Tucker, Todd O. Litfin and Alan B. Fenstermacher for Respondents.
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INTRODUCTION
El-Yorba Linda, LLC (El-Yorba Linda) proposed to build a multi-unit housing development on property it owned in the City of Yorba Linda, California (the City). The City's Planning Commission (planning commission) denied El-Yorba Linda's request for approval of the project. El-Yorba Linda appealed to the Yorba Linda City Council (City Council), and that body upheld the planning commission's decision. El-Yorba Linda filed a combined petition for writ of mandate and complaint against the City in the trial court. The trial court denied the petition for writ of mandate. El-Yorba Linda then voluntarily dismissed the remaining causes of action. The trial court entered judgment for the City on the petition for writ of mandate, and El-Yorba Linda appealed from the judgment.
During the pendency of this appeal, El-Yorba Linda proposed another multi-unit housing project to be built on the same property. The planning commission approved the new project, and that decision was not appealed.
We asked the parties for supplemental briefing on the issue of whether the approval of a different project by El-Yorba Linda on the same site mooted its appeal from the denial of the original project. El-Yorba Linda argues there remains a live controversy because this court's determination of the propriety of the City's failure to approve the original project would affect El-Yorba Linda's ability to recover damages for inverse condemnation. But there is no longer a cause of action pending for inverse condemnation; in order to appeal from the denial of the petition for writ of mandate, El-Yorba Linda dismissed all of its remaining claims, including its claim for damages. Therefore, any decision by this court would constitute an improper and potentially imprudent advisory opinion.
Because events subsequent to the issuance of the judgment have made it impossible for this court to grant El-Yorba Linda any effective relief, this appeal must be dismissed.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
El-Yorba Linda owns a 4.99 acre parcel of real property at the southeast corner of the intersection of Mariposa Avenue and Lakeview Avenue in Yorba Linda (the Property). In 2012, the City rezoned the Property to allow 30 dwelling units per acre.
El-Yorba Linda proposed to develop a 139-unit apartment complex on the Property (the Project), reserving 10 units for rental as affordable housing units. The Project fell within the City's density allowances and included various outdoor amenities. As part of the approval process, El-Yorba Linda submitted to the planning commission a proposed land use application and requested (1) approval of a tentative tract map that would consolidate five existing parcels on the Property into a single lot on which the Project would be built; (2) approval of a design review for the planning, grading, and architectural design of the Project; and (3) certification of a subsequent environmental impact report (SEIR) addressing potential environmental impacts of the Project.
An environmental impact report was prepared when the City changed the zoning of properties in the City, including the Property in question here.
In a resolution that included factual findings, the planning commission denied the tentative tract map, design review, and final SEIR. El-Yorba Linda appealed the planning commission's decision to the City Council.
On January 19, 2016, the City Council upheld the planning commission's decision to deny the tentative tract map, design review, and SEIR, without prejudice, by a vote of 4-1. Like the planning commission, the City Council issued a resolution that included specific findings regarding each of the three elements of El-Yorba Linda's request.
El-Yorba Linda filed a combined petition for writ of mandate and complaint on April 5, 2016 to challenge the City's adverse decision. The complaint asserted three causes of action: declaratory relief, injunctive relief, and damages for inverse condemnation.
On July 7, 2017, the trial court denied the petition for writ of mandate. On January 9, 2018, El-Yorba Linda voluntarily dismissed without prejudice the causes of action for injunctive and declaratory relief and damages based on inverse condemnation. Judgment in favor of the City and against El-Yorba Linda on the petition for writ of mandate was entered on January 26, 2018. El-Yorba Linda filed a timely notice of appeal from the judgment.
Shortly thereafter, El-Yorba Linda submitted a different proposal to the planning commission for the development of the Property. On July 25, 2018, pursuant to a series of resolutions, the planning commission approved the new project. No one challenged the planning commission's approval, and it is now final.
El-Yorba Linda filed a request asking this court to take judicial notice of three resolutions of the planning commission, each dated July 25, 2018. These resolutions (1) certify a final, subsequent environmental impact report to construct a lower density project on the Property; (2) approve a tentative tract map for the revised project on the Property; and (3) approve a conditional use permit for the revised project on the Property. These three documents are proper matters for judicial notice. (Evid. Code, § 452, subd. (b).) In the absence of any objection by the City, we grant El-Yorba Linda's request for judicial notice.
The City also filed a request for judicial notice of various legislative enactments by the California Legislature for the purpose of demonstrating that certain statutes referenced by El-Yorba Linda in its opening brief were citations to statutes that were not in effect at the relevant times. Although these are proper matters for judicial notice (Evid. Code, § 452, subd. (b)), and despite the fact that El-Yorba Linda did not oppose the request, in light of the disposition of this appeal, we deny the City's request as moot.
DISCUSSION
Before addressing the merits of the appeal, we must first determine whether the appeal has been mooted by subsequent events and, if so, whether the appeal should be dismissed.
The City did not file a motion to dismiss the appeal for mootness. El-Yorba Linda raised the issue of mootness in its opening brief and argued the appeal was not moot. In its respondent's brief, the City argued that while the appeal was not moot, we should dismiss El-Yorba Linda's claim for damages with prejudice. (As noted ante, however, there is no pending claim for damages; El-Yorba Linda dismissed its causes of action without prejudice after the trial court denied its petition for writ of mandate.) An appellate court may examine the issue of mootness on its own motion. (City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 479.)
In order to assure the parties had an opportunity to address the issue of mootness (Gov. Code, § 68081), we requested supplemental briefing limited to that issue. Both parties submitted supplemental letter briefs in response to our order.
"'"It is well settled that an appellate court will decide only actual controversies and that a live appeal may be rendered moot by events occurring after the notice of appeal was filed. We will not render opinions on moot questions or abstract propositions, or declare principles of law which cannot affect the matter at issue on appeal."'" (Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1205; see Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)
"'[A]n appeal is moot if "'the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief.'"'" (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2016) 2 Cal.App.5th 586, 590.) When the event that moots the underlying controversy is initiated by the appellant, as opposed to legislative or administrative action or simply by happenstance, the appropriate remedy is to dismiss the appeal, not to vacate or affirm the trial court's ruling. Appellate authority on this point—both state and federal—is consistent and plentiful. (See, e.g., id. at p. 591, and cases cited therein.)
El-Yorba Linda is asking this court to direct the trial court to grant its petition for writ of mandate. That writ in turn would direct the City "to take any and all actions necessary to promptly set aside and rescind its actions of January 19, 2016, and to promptly schedule the Project for review and approval by the City Council." But the documents El-Yorba Linda asked us to judicially notice establish it initiated the approval process for a different project, the project was approved, and no legal challenges to that approval were raised. There is, quite simply, no relief El-Yorba Linda can obtain in connection with the Project, as it was originally proposed.
As El-Yorba Linda argues, even when events subsequent to the judgment deprive an appellate court of the ability to grant effective relief, it may nevertheless exercise its inherent discretion and address the merits where (1) material questions for the court's determination remain, (2) where the "'pending case poses an issue of broad public interest that is likely to recur,'" or (3) where "'there is a likelihood of recurrence of the controversy between the same parties or others.'" (In re N.S. (2016) 245 Cal.App.4th 53, 59.) None of these criteria is present here.
First, no material questions remain for our determination. The planning commission approved El-Yorba Linda's proposal for a different project on the Property, and that decision is now final. (See In re David B. (2017) 12 Cal.App.5th 633, 653-654 & fn. 12; Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1180-1181.)
In Eye Dog Foundation v. State Board of Guide Dogs for the Blind, supra, 67 Cal.2d at page 541, the California Supreme Court held the remaining material questions exception to dismissal may apply "to actions for declaratory relief upon the ground that the court must do complete justice once jurisdiction has been assumed [citation], and the relief thus granted may encompass future and contingent legal rights." In the present case, El-Yorba Linda voluntarily dismissed the cause of action for declaratory relief. Even if this court were to consider the merits of El-Yorba Linda's appeal, El-Yorba Linda could not obtain "complete justice" because it no longer has the right to develop the Project (since another project proposed by El-Yorba Linda has been approved for development of the Property).
Eye Dog Foundation v. State Board of Guide Dogs for the Blind, supra, 67 Cal.2d at page 540 is significantly distinguishable from this case. There, the appellant challenged a trial court decision that declared certain statutory provisions unconstitutional on their face and as applied to the plaintiff. Had the appeal been dismissed as moot, the determination as to the unconstitutionality of the statute would have stood. There is no argument here that the trial court's judgment declares any law unconstitutional or affects the public or any other party in any way.
Second, while environmental protection and the housing shortage are unquestionably issues that affect the public at large, cases involving findings regarding environmental impact reports are by their nature highly fact specific. A decision on the merits of this case would have little or no applicability in other cases. (See MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 215.)
Third, there is no likelihood of a recurrence of the controversy between these parties. El-Yorba Linda initiated a different project for the Property and the planning commission approved that new project. The dispute involving the tentative tract map, design review, and SEIR for the Project is over.
In its opening brief, El-Yorba Linda explains why it pursued a new project while the appeal of the denial of the Project was pending: "The City's years-long obstruction and unlawful conduct that is the subject of this action forced ETCO to choose between no development of the Property at all, or applying for a project with a smaller footprint. (Compare RJN, Exh.1, with 1 AR 38-85, 12 AR 3234, 21 AR 6012.) [El-Yorba Linda] reasonably chose the latter, in order to mitigate its damages. [El-Yorba Linda] should therefore be permitted to present evidence on remand of the smaller footprint and necessarily smaller gain associated with the Revised Project, in support of an affirmative claim for damages against the City." El-Yorba Linda had a third option—to pursue this appeal and win the right to develop the Property based on the Project as originally proposed.
In the respondent's brief, the City takes the position that while "the City's approval of the Revised Project does in fact moot [El-Yorba Linda]'s Inverse [Condemnation] claim, it does not appear to affect the Writ Claim, which is the only subject of this appeal." The City adds, however, that if this court "upholds the trial court's ruling and dismisses this appeal," this court should direct the trial court to dismiss the entire action with prejudice, citing Everly Enterprises, Inc. v. Altman (1960) 54 Cal.2d 761, 765, and American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 217. The City made this request to assure that El-Yorba Linda cannot resurrect the cause of action for inverse condemnation that it voluntarily dismissed without prejudice.
In its supplemental letter brief, the City changed course and now asks that this court "deny the appeal in its entirety and affirm the trial court's [decision] in all respects." The City cites no authority for the notion that we can dismiss an appeal as moot and still affirm the judgment on the merits. At oral argument, the City's counsel indicated his preference for an affirmance on the merits over a dismissal based on mootness. As explained ante, however, the proper remedy when the relief sought has been rendered moot is not to affirm or vacate the underlying judgment, but to dismiss the appeal, leaving the judgment untouched, as if it had never been appealed in the first place.
DISPOSITION
The appeal is dismissed. In the interests of justice, all parties shall bear their own costs on appeal.
DUNNING, J. WE CONCUR: O'LEARY, P. J. MOORE, J.
Retired Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.