Coronado, City of v. San Diego County Local Area Formation Commission et al

MOTION to Dismiss for Failure to State a Claim City of Imperial Beach's Cross-Complaint

S.D. Cal.December 21, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT John Bakker (SBN: 198563) jbakker@meyersnave.com Shaye Diveley (SBN: 215602) sdiveley@meyersnave.com MEYERS, NAVE, RIBACK, SILVER & WILSON 555 12th Street, Suite 1500 Oakland, California 94607 Telephone: (510) 808-2000 Facsimile: (510) 444-1108 Attorneys for CITY OF CORONADO UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CITY OF CORONADO, Plaintiff and Petitioner, v. SAN DIEGO COUNTY LOCAL AREA FORMATION COMMISSION, CITY OF IMPERIAL BEACH, Defendants. Case No. 3:16-cv-03020-CAB-WVG CITY OF CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS- COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF FED. R. CIV. PROC. 12(B)(6) PER CHAMBERS, NO ORAL ARGUMENT UNLESS ORDERED BY THE COURT Judge: Hon. Cathy Ann Bencivengo Date: January 25, 2017 Time: n/a Crtrm.: 4C Trial Date: None Set CITY OF IMPERIAL BEACH, Cross-Plaintiff and Petitioner, v. SAN DIEGO COUNTY LOCAL AREA FORMATION COMMISSION, CITY OF CORONADO, UNITED STATES OF AMERICA; UNITED STATES NAVY, and DOES 1 through xx, Inclusive, Cross-Defendants and Respondents. Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 1 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 25, 2017, in Courtroom 4C of the above-referenced Court, located at 221 West Broadway, San Diego, California, Cross-Defendant/Petitioner City of Coronado (“Coronado”) will and hereby does move this Court for an Order dismissing the Cross-Complainant/Real Party in Interest City of Imperial Beach’s Cross-Complaint with prejudice. Said motion will be based on Imperial Beach’s failure to plead facts sufficient to constitute a cause of action against Coronado. Specifically, Coronado moves to dismiss the Cross-Complaint filed by Imperial Beach on the following grounds: 1. The First Cause of Action in the Cross-Complaint fails to state facts sufficient to constitute a cause of action for interference with contract. 2. The Second Cause of Action in the Cross-Complaint fails to state facts sufficient to constitute a cause of action for declaratory relief. This Motion will be based upon this Notice of Motion, the supporting Memorandum of Points and Authorities, the Proposed Order, as well as the complete Court file on record herein, together with such other oral and documentary evidence as may be presented in support of this Motion. DATED: December 21, 2016 MEYERS, NAVE, RIBACK, SILVER & WILSON By: /s/Shaye Diveley Shaye Diveley Attorneys for CITY OF CORONADO email: sdiveley@meyersnave.com Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 2 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT TABLE OF CONTENTS Page I. INTRODUCTION AND SUMMARY OF ARGUMENT ............................... 1 II. FACTUAL AND PROCEDURAL BACKGROUND ...................................... 2 A. Coronado’s Petition for Writ of Mandate ............................................... 2 B. Imperial Beach’s Cross-Complaint ......................................................... 4 III. LEGAL ARGUMENT ...................................................................................... 5 A. Standard of Review ................................................................................. 5 B. The First Cause of Action Improperly Targets Constitutionally Protected and Privileged Activity and Must Be Dismissed .................... 6 C. The Second Cause of Action for Declaratory Relief Fails to State a Cause of Action and Cannot Stand as a Separate Claim ..................... 8 1. Imperial Beach Cannot Seek a Declaration of the Validity of Agency Decisions ..................................................................... 9 2. Imperial Beach Cannot Ask the Court to Declare that Coronado is Interfering with the 1967 Agreement ..................... 11 3. Imperial Beach Does Not Allege a Justiciable Controversy to Seek a Declaration Regarding Its Agreement with the Navy ............................................................................................ 11 IV. CONCLUSION ............................................................................................... 13 Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 3 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT TABLE OF AUTHORITIES Page(s) Cases Abagninin v. AMVAC Chem. Corp., 545 F.3d 733 (9th Cir. 2008) .................................................................................. 6 Am. Meat Inst. v. Leeman, 180 Cal.App.4th 728 (2009) ................................................................................. 12 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................... 6 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................................... 6 City & County of San Francisco v. Ang, 97 Cal.App.3d 673 (1979) ...................................................................................... 9 Community Water Coal. v. Santa Cruz County Local Agency Formation Comm’n, 200 Cal.App.4th 1317 (2011) ................................................................................. 3 Franchise Realty Interstate Corp. v. San Francisco Local Joint Exec. Bd. of Culinary Workers, 542 F.2d 1076 (9th Cir. 1976) ................................................................................ 6 Fresno Unified School Dist. v. K.U. ex rel. A.D.U., 980 F.Supp.2d 1160 (E.D. Cal. 2013) .................................................................. 13 People ex rel. Gallegos v. Pac. Lumber Co., 158 Cal.App. 4th 950 (2008) .................................................................................. 7 Guilbert v. Regents of Univ. of Cal., 93 Cal.App.3d 233. (1979) ............................................................................... 9, 10 Jenkins v. JPMorgan Chase Bank, N.A., 216 Cal.App.4th 497 (2013) ................................................................................. 11 Moss v. Moss, 20 Cal.2d 640 (1942) .............................................................................................. 9 Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 4 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT Ojavan Investors, Inc. v. Cal. Coastal Comm’n, 26 Cal.App.4th 516 (1994) ................................................................................. 6, 7 Pac. Bell Tel. Co. v. City of Walnut Creek, 428 F.Supp. 2d 1037 (N.D.Cal. 2006) .................................................................. 13 Pac. Gas & Elec. Co. v. Bear Stearns & Co., 50 Cal.3d 1118 (1990) ...................................................................................... 6, 11 Silberg v. Anderson, 50 Cal.3d 205 (1990) .......................................................................................... 6, 7 Wilson & Wilson v. City Council of Redwood City 191 Cal.App.4th 1559 (2011) .............................................................................. 11 Wilson v. Transit Auth., 199 Cal.App.2d 716 (1962) .............................................................................. 9, 12 Wilton v. Mountain Wood Homeowners Ass’n, 18 Cal.App.4th 565 (1993) ..................................................................................... 7 Federal Statutes and Rules 28 United States Code section 1442(a)(1) ............................................................................................. 5, 12 section 1447(c) ..................................................................................................... 12 Fed. R. Civ. Proc. 12(b)(6) .......................................................................................... 5 State Statutes Code of Civil Procedure section 47 ............................................................................................................ 6, 7 section 1060 ............................................................................................................ 8 section 1061 .......................................................................................................... 10 California Government Code section 56133 ................................................................................................. passim section 56375(p) ..................................................................................................... 3 Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 5 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND SUMMARY OF ARGUMENT Cross-Defendant and Petitioner City of Coronado moves to dismiss the Cross- Complaint for Declaratory Judgment; Damages, Attorney’s Fees & Costs (“Cross- Complaint”) filed by Cross Complainant and Real Party in Interest City of Imperial Beach. The Cross-Complaint does not just fail to state a cause of action against Coronado. It also a sham pleading designed to bring in the U.S. Navy after the state Superior Court rejected two prior attempts to make it a party, including one by Imperial Beach. Furthermore, the Cross-Complaint improperly attempts to use the courts to punish Coronado for exercising its absolutely privileged constitutional rights to participate in judicial and administrative proceedings. Coronado initiated this action to challenge the refusal of Respondent San Diego County Local Agency Formation Commission (“San Diego LAFCO”) to exercise the jurisdiction imposed on it by the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000. In particular, Coronado asserts that San Diego LAFCO must require the City of Imperial Beach (“Imperial Beach”) to obtain its approval before providing sewer services within the city limits of Coronado. LAFCOs are unique agencies created by the State of California to provide oversight over organization, jurisdiction and boundary issues involving cities and districts. This case is, thus, a matter of statutory construction of state law: the only issue in this lawsuit is whether San Diego LAFCO properly applied the requirements of California Government Code section 56133 in determining that Imperial Beach is permitted to provide services within Coronado’s city boundaries. Imperial Beach filed its Cross-Complaint after the San Diego County Superior Court overruled its demurrer asserting that the U.S. Navy is an indispensable party to Coronado’s petition for writ of mandate. The Cross- Complaint contains two causes of action. The First Cause of Action, for interference with contract relations against Coronado, asserts Coronado’s filing of Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 6 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT this lawsuit interfered with Imperial Beach’s agreement with the U.S. Navy to provide sewer services. The Second Cause of Action, for declaratory relief, seeks a declaration that San Diego LAFCO has not abused its discretion in allowing Imperial Beach to provide sewer services to the U.S. Navy and that Coronado is interfering with Imperial Beach’s contractual obligation to do so. Neither of these causes of action can stand. The First Cause of Action directly targets Coronado’s right to petition administrative agencies and the courts for redress of grievances and impermissibly attempts to hold Coronado in tort for engaging in privileged and protected activities. The Second Cause of Action improperly duplicates the relief sought by Coronado’s own Petition for Writ of Mandate and fails to assert grounds for a justiciable controversy that would warrant declaratory relief in this case. The vague and improper nature of the allegations in the Cross-Complaint are unsurprising because the true purpose of Imperial Beach’s pleading is to bring the U.S. Navy into the case, triggering its removal to federal court and delaying the consideration of the merits of Coronado’s state court action. However, the Cross- Complaint fails to state a cause of action against Imperial Beach or any party and cannot be amended to fix these fatal flaws. Accordingly, Coronado respectfully asks the Court to grant its Motion to Dismiss without leave to amend. II. FACTUAL AND PROCEDURAL BACKGROUND A. Coronado’s Petition for Writ of Mandate Coronado filed this instant lawsuit in San Diego County Superior Court to challenge San Diego LAFCO’s determination that Imperial Beach’s plans to provide sewer service to the United State Navy’s new Coastal Campus on the Naval Base Coronado Silver Strand Training Complex – South (“Coastal Campus Project”), which is located within Coronado’s boundaries, did not require LAFCO approval under Government Code section 56133 (“section 56133”), part of California’s Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 (“the Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 7 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT Act”). Sec. Am. Pet. ¶ 15. One power given to LAFCOs under the Act is “[t]o authorize a city or district to provide new or extended services outside its jurisdictional boundaries pursuant to section 56133.” Cal. Gov’t Code § 56375(p). Thus, section 56133 acts as “a limitation upon the power of cities and districts to expand urban services beyond their borders.” Community Water Coal. v. Santa Cruz County Local Agency Formation Comm’n, 200 Cal.App.4th 1317, 1327 (2011). The Coastal Campus Project site is located entirely within Coronado’s boundaries and is—necessarily—not within Imperial Beach’s boundaries or its sphere of influence as set by San Diego LAFCO. Sec. Am. Pet. ¶ 15. At no point has Coronado ever agreed that Imperial Beach could provide sewer services within Coronado’s boundaries for the Coastal Campus Project. Id. After Imperial Beach stated that it plans to provide sewer services to the Coastal Campus Project, Coronado notified San Diego LAFCO. Sec. Am. Pet. ¶ 16. After receiving Coronado’s notification, San Diego LAFCO considered the issue and ultimately determined, on December 7, 2015, that Imperial Beach’s plans were exempt under Government Code section 56133(e)(4), which grandfathers service to existing developments, based on a 1967 agreement between Imperial Beach and the U.S. Navy. Sec. Am. Pet. ¶¶ 16-20. Coronado was greatly surprised by this conclusion by San Diego LAFCO, as there appeared to be no basis for asserting an exemption to section § 56133. Sec. Am. Pet. ¶ 17. Accordingly, Coronado filed a petition for writ of mandate in San Diego County Superior Court against San Diego LAFCO and Imperial Beach on January 6, 2016, challenging San Diego LAFCO’s determination. See Pet. for Writ of Mandate and Compl. for Declaratory Relief, filed on Jan. 6, 2016. San Diego LAFCO filed a special demurrer on February 22, 2016; Imperial Beach filed a joinder in San Diego LAFCO’s demurrer to the Petition on the same day. Coronado’s original petition named Imperial Beach as a real party in interest. Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 8 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT After filing of the lawsuit, Imperial Beach informed Coronado that it did not desire to be a party to or otherwise participate in this litigation and took no position on whether LAFCO approval is required before it can serve the Coastal Campus Project. Am. Pet. ¶ 20; Sec. Am. Pet. ¶ 21. After reaching a settlement with Imperial Beach, Coronado filed an Amended Petition on June 20, 2016, in which it did not name Imperial Beach as a party, effectively dismissing Imperial Beach. See Am. Pet. ¶ 20. San Diego LAFCO demurred again to the Amended Petition, on the grounds that the U.S. Navy and Imperial Beach are necessary parties to the action. On August 26, Judge Lewis of the San Diego Superior Court overruled the demurrer’s assertion that the U.S. Navy was required to be party but sustained the demurrer with respect to Imperial Beach. Judge Lewis also set a hearing date on the merits for January 27, 2017. Coronado filed the Second Amended Petition on August 31, 2016, continuing to note Imperial Beach’s purported neutral position. See Sec. Am. Pet. ¶ 21. Imperial Beach also filed a demurrer, raising the same misjoinder claim regarding the U.S. Navy that the Superior Court previously denied. Judge Lewis overruled Imperial Beach’s demurrer on November 4, 2016. B. Imperial Beach’s Cross-Complaint On November 17, 2016, Imperial Beach filed a Cross-Complaint against Coronado, San Diego LAFCO and the U.S. Navy. See Cross-Compl. ¶¶ 3-5. The Cross-Complaint alleges that Imperial Beach and the Navy have “an amended agreement signed in 1967, which states that Imperial Beach will provide sewer services to the Navy as it requires based on its sewer needs.” Cross-Compl. ¶ 8. Imperial Beach further alleges that it and the Navy “agree that the contract contemplates different levels on service at different times consistent with the Navy’s needs.” Id. Based on these general allegations, Cross-Complaint asserts two causes of action. Cross-Compl. ¶¶ 13-18. The First Cause of Action, for Intentional Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 9 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT Interference with Contractual Relations, is directed only to Coronado and alleges that Coronado “is using administrative and judicial tools to interfere with the Navy and Imperial Beach’s contractual obligations under the 1967 sewer service agreement.” Cross-Compl. ¶ 14. Specifically, the Cross-Complaint alleges that Coronado interfered with the contract “when it filed a request with San Diego LAFCO” to review Imperial Beach’s plans and later “continued its interference” when it sought “intervention in State Court” for review of LAFCO’s decision. Cross-Compl. ¶ 11. Imperial Beach alleges “Coronado is causing damage to both Imperial Beach and the Navy” and requests that the Court order Coronado to pay damages and attorneys’ fees to Imperial Beach. Cross-Compl. ¶ 15; id. at p.6. The Second Cause of Action alleges a claim for declaratory relief against Coronado, San Diego LAFCO and the Navy. Cross-Compl. ¶¶ 16-18. The Cross- Complaint contends that there is a controversy between Imperial Beach and the other parties “because Plaintiffs contend that Defendants’ actions and inactions as described above will interfere with or prevent Plaintiff from complying with its contractual obligations.” Cross-Compl. ¶ 17. Based on this “controversy,” Imperial Beach asks for a declaration from the Court that “the 1967 agreement . . . is not subject to San Diego [LAFCO] review and Imperial Beach has a contractual obligation to provide sewer services to the Navy and Coronado cannot interfere with that obligation.” Cross-Compl. ¶ 18. On December 14, 2016, the U.S. Navy filed a Notice of Removal under 28 U.S.C. § 1442(a)(1), which allows a federal agency to remove a civil action “against or directed to” the agency. III. LEGAL ARGUMENT A. Standard of Review A complaint may be dismissed for failure to state a claim upon which relief can be granted. Fed. R. Civ. Proc. 12(b)(6). “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 10 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). In that vein, mere “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Furthermore, “[l]eave to amend may be denied if a court determines that allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008). While courts typically provide some latitude to a plaintiff or cross- complainant on demurrer, where a case implicates the right “to petition an administrative agency to take official action in the exercise of its powers [as] guaranteed by the First Amendment,” courts are cautioned to analyze the allegations with great care. Franchise Realty Interstate Corp. v. San Francisco Local Joint Exec. Bd. of Culinary Workers, 542 F.2d 1076, 1082 (9th Cir. 1976). The mere “pendency” of the case risks chilling the exercise of a party’s rights. Id. at 1083. B. The First Cause of Action Improperly Targets Constitutionally Protected and Privileged Activity and Must Be Dismissed Imperial Beach has asserted a state law cause of action against Coronado for intentional interference with contractual relations based solely on Coronado’s use “administrative and judicial tools to interfere with the Navy and Imperial Beach’s contractual obligations under the 1967 sewer service agreement.” Cross-Compl. ¶ 14. Coronado’s actions are protected, privileged activity and cannot be the basis of a tort claim by Imperial Beach. Under California law, the filing of a lawsuit or initiation of an administrative proceeding cannot be the basis for a cause of action for interference with contractual relations. Pac. Gas & Elec. Co. v. Bear Stearns & Co., 50 Cal.3d 1118, 1132 (1990). Such conduct is absolutely privileged under California Civil Code section 47. Ojavan Investors, Inc. v. Cal. Coastal Comm’n, 26 Cal.App.4th 516, 528–529 (1994). Section 47(b) renders absolutely privileged communications made as part of a “judicial or quasi-judicial proceeding.” Silberg v. Anderson, 50 Cal.3d 205, 212 Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 11 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT (1990). Specifically, the statute shields communications made in any: (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with section 1084) of Title 1 of Part 3 of the Code of Civil Procedure. Cal. Civ. Code § 47(b). The privilege afforded by section 47 is absolute, except for a single narrow exception inapplicable here.1 Silberg, 50 Cal.3d at 215. Courts broadly construe the section 47 privilege to assure free communication between citizens and public authorities without the fear of civil liability. Id. at 211, 213. As stated by the Supreme Court: [t]he policy of encouraging free access to the courts is so important that the litigation privilege extends beyond claims of defamation to claims of abuse of process, intentional infliction of emotional distress, negligent misrepresentation, invasion of privacy, fraud, and to the torts alleged here: interference with contract and prospective economic advantage. Pac. Gas & Elec. Co., 50 Cal.3d at 1132. “Or, as otherwise stated, it exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing.” People ex rel. Gallegos v. Pac. Lumber Co., 158 Cal.App. 4th 950, 957-958 (2008). Such immunity is properly raised by demurrer. Ojavan Investors, 26 Cal.App.4th at 528- 529; Wilton v. Mountain Wood Homeowners Ass’n, 18 Cal.App.4th 565, 569 (1993). Here, based on the facts alleged in the Cross-Complaint, Coronado’s alleged communications meet the requirements of section 47(b) and, thus, absolutely privileged, and the absolute privilege immunizes Coronado from liability for interference with contract. The Cross-Complaint alleges that Coronado interfered 1 The only recognized exception is for malicious prosecution actions. Silberg, supra, 50 Cal.3d at 216. Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 12 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT with the contract “when it filed a request with San Diego LAFCO” to review Imperial Beach’s plans and later “continued its interference” when it sought “intervention in State Court” for review of LAFCO’s decision. Cross-Compl. ¶ 11. These privileged activities—in front of an administrative agency and a state court— are the only actions by Coronado targeted by the Cross-Complaint and the sole basis for Imperial Beach’s claims. These clearly protected and absolutely privileged activities cannot form the basis of any claim asserted by Imperial Beach. No amendment can cure this fatal flaw. Accordingly, Coronado’s Motion to Dismiss the First Cause of Action should be granted without leave to amend. C. The Second Cause of Action for Declaratory Relief Fails to State a Cause of Action and Cannot Stand as a Separate Claim Imperial Beach’s second cause of action, a state law claim for declaratory relief, asks for a declaration from the Court that “the 1967 agreement . . . is not subject to San Diego [LAFCO] review and Imperial Beach has a contractual obligation to provide sewer services to the Navy and Coronado cannot interfere with that obligation.” Cross-Compl. ¶ 18. Such allegations impermissibly seek the same relief of Coronado’s Petition for Writ of Mandate and fail to assert a controversy between the parties and, thus, are also subject to a motion to dismiss California Code of Civil Procedure section 1060 specifies who can seek declaratory relief: Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross- complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. Cal. Civ. Proc. Code § 1060. A court may dismiss a complaint for declaratory relief Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 13 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT “[w]here facts appear from the face of the complaint which would justify a trial court in concluding that its determination is not necessary or proper.” Moss v. Moss, 20 Cal.2d 640, 642 (1942). The value of a claim for declaratory relief is “in disposing of controversies and in stabilizing doubtful or disputed jural relationships.” Wilson v. Transit Auth., 199 Cal.App.2d 716, 722 (1962). As a result, “where the complaint is devoid of essential facts showing the necessity or propriety of a declaration,” a court may properly sustain a demurrer without leave to amend. Id. at 721. Under its state law claim for declaratory relief, Imperial Beach requests the Court make four declarations, none of which can be maintained. 1. Imperial Beach Cannot Seek a Declaration of the Validity of Agency Decisions Imperial Beach asks the Court for a declaration that the “LAFCO did not abuse its discretion in determining that Imperial Beach shall provide sewer service to Navy.” Cross-Compl. at p.6. That type of relief is only appropriate2 through a petition for writ of mandate, not in an action for declaratory relief. Guilbert v. Regents of Univ. of Cal., 93 Cal.App.3d 233, 244. (1979) (“It is well settled that declaratory relief is not an appropriate method for review of an administrative order.”). “[W]here an administrative mandamus action provides an adequate remedy for resolving the issues raised,” an action for declaratory relief cannot stand. Id. Indeed, the declaration sought by Imperial Beach is the exact same form of relief (albeit with the opposite outcome) that Coronado seeks in its Petition for Writ 2 If such a request is appropriate at all. An agency decision is deemed valid unless set aside by a court on writ of mandate. See, e.g., City & County of San Francisco v. Ang, 97 Cal.App.3d 673, 680 (1979). Thus, it is wholly unnecessary for Imperial Beach to seek a court order that LAFCO’s administrative decision is valid. Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 14 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT of Mandate, which challenges San Diego LAFCO’s administrative decision. Coronado’s Second Amended Petition alleges, among other things, that San Diego LAFCO “prejudicially abused its discretion, requiring its decision to be set aside” and requests the Court “issue a writ of mandamus compelling San Diego LAFCO to comply with Government Code section 56133 before authorizing any sewer services within Petitioner’s boundaries.” Sec. Am. Pet. ¶¶ 4, 27. Were a court to decide that San Diego LAFCO’s decision, which determined that the 1967 agreement exempts the Imperial Beach’s plans from LAFCO review under Government Code section 56133, is correct and should be upheld, Imperial Beach would receive the relief for which it prays in the second cause of action. Accordingly, the Writ of Mandate Petition is the only method for the Court to make such a declaration and, thus, Imperial Beach’s declaratory relief claim should be dismissed without leave to amend. See Guilbert, 93 Cal.App.3d at 244. Imperial Beach also asks for a declaration that “San Diego LAFCO’s finding; and the March 2015 EIR, and February 13, 2015 California Coastal Commission finding all determine, found and require that the Navy’s Sewer Service shall be provided by the City of Imperial Beach.” Cross-Compl. at 6. Again, any request for declaration with respect to San Diego LAFCO’s findings is appropriately raised only in Coronado’s petition for writ of mandate and, thus, cannot be maintained as a separate declaratory relief claim. See Guilbert, 93 Cal.App.3d at 244. A similar reasoning applies to the EIR and California Coastal Commission’s findings. Imperial Beach does not allege any dispute or controversy with respect to those documents. Cross-Compl ¶ 9. However, if there were disputes over the agencies’ findings in those documents, it would have to be raised in a writ action directed at those agencies, not in a declaratory relief claim in this case. See Guilbert, 93 Cal.App.3d at 244. Even if an actual controversy did exist with respect to these findings (which it does not), California Code of Civil Procedure section 1061 gives the court the discretion to “refuse to exercise the power . . . in any case Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 15 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT where its declaration or determination is not necessary or proper at the time under all the circumstances.” Here, no purpose or utility would be served by Imperial Beach’s request, as there is no current dispute or relevant allegations about the meaning of the EIR for the Coastal Campus Project or the Coastal Commission’s findings. Accordingly, Coronado’s Motion to Dismiss should be granted. 2. Imperial Beach Cannot Ask the Court to Declare that Coronado is Interfering with the 1967 Agreement Imperial Beach also seeks a declaration that “Coronado cannot interfere” with the 1967 agreement between Imperial Beach and the U.S. Navy. Cross-Compl. ¶ 18. See also id. at 6 (seeking a declaration that “Coronado is interfering with Imperial Beach’s contractual obligation”). As stated above, Coronado’s filing of a lawsuit or initiation of an administrative proceeding cannot be the basis for a cause of action for interference with contractual relations. See Pac. Gas & Elec. Co., 50 Cal.3d at 1132. For the same reason, the Court cannot declare the same protected and privileged activities are “interference” and prohibit Coronado from participating in this lawsuit or LAFCO proceedings. See Jenkins v. JPMorgan Chase Bank, N.A., 216 Cal.App.4th 497, 517 (2013) (holding declaratory relief action cannot be “grounded on an unfeasible statutory claim”). Accordingly, Imperial Beach cannot maintain a cause of action for such declaratory relief. 3. Imperial Beach Does Not Allege a Justiciable Controversy to Seek a Declaration Regarding Its Agreement with the Navy Finally, Imperial Beach requests a declaration that “Imperial Beach has a contractual obligation to provide sewer services to the Navy.” Cross-Compl. ¶ 18; id. at 6. A declaration of the rights and obligations of Imperial Beach and the U.S. Navy under the 1967 Agreement would be a legitimate (and, indeed, useful) form of relief. To qualify for declaratory relief under California law, a party must plead that the action is “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions.” Wilson & Wilson v. City Council of Redwood City Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 16 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT (2011) 191 Cal.App.4th 1559, 1582. To maintain a cause of action for declaratory relief, “an actual, present controversy must be pleaded specifically and the facts of the respective claims concerning the underlying subject must be given.” Am. Meat Inst. v. Leeman, 180 Cal.App.4th 728, 741 (2009) (internal quotation marks omitted). “Facts and not conclusions of law must be pleaded which show a controversy of concrete actuality as opposed to one which is merely academic or hypothetical.” Wilson, 199 Cal.App.2d at 722. Here, though, the Cross-Complaint specifically alleges that Imperial Beach and the Navy agree upon the meaning of the contract. It alleges that they have “an amended agreement signed in 1967, which states that Imperial Beach will provide sewer services to the Navy as it requires based on its sewer needs.” Cross-Compl. ¶ 8. Imperial Beach further alleges that it and the Navy “agree that the contract contemplates different levels on service at different times consistent with the Navy’s needs.” Id. Thus, the express allegations in the Cross-Complaint indicate that there is no dispute between Imperial Beach and the U.S. Navy that would warrant declaratory relief. Indeed, Imperial Beach’s allegations appear to be carefully drafted to avoid any dispute with the U.S. Navy with respect to the 1967 agreement. This not only deprives Imperial Beach of any basis for seeking declaratory relief about the 1967 agreement but also of the grounds for suing the U.S. Navy. The parties are before this Court only because the U.S. Navy removed it under 28 U.S.C. § 1442(a)(1), which allows a federal agency to remove a civil action “against or directed to” the agency. If there is no claim “against or directed to” the U.S. Navy, there is no basis for removal. Without a cognizable claim against the U.S. Navy, this Court does not have jurisdiction over this case and the case must be remanded. See 28 U.S.C. § 1447(c). Finally, and perhaps most importantly, this case presents a particularly keen example of a state law matter that does not belong in federal court. Coronado’s Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 17 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 3:16-cv-03020-CAB-WVG CORONADO’S NOTICE AND MOTION TO DISMISS CITY OF IMPERIAL BEACH’S CROSS-COMPLAINT Petition for Writ of Mandate raises only the issue of whether San Diego LAFCO properly interpreted and discharged its obligations under California Government Code section 56133. Sec. Am. Pet. ¶¶ 4, 11-14. This inquiry involves the statutory construction of the Cortese-Knox-Hertzberg Act and the obligations and responsibilities of LAFCOs, issues very unique to California. Writs of mandate are exclusively state procedural remedies involving complex issues of state law. Fresno Unified School Dist. v. K.U. ex rel. A.D.U., 980 F.Supp.2d 1160, 1184 (E.D. Cal. 2013) (mandamus proceedings to compel a state administrative agency to act are actions that “are uniquely in the interest and domain of state courts.”). These principles are based on issues of comity and federalism, so that there is a preference against having federal courts interpret state law to determine whether to issue a writ to a state agency. In fact, federal courts routinely deny supplemental jurisdiction over California writ claims for these reasons. See, e.g., Pac. Bell Tel. Co. v. City of Walnut Creek, 428 F.Supp. 2d 1037, 1055 (N.D.Cal. 2006). Imperial Beach does not allege a valid claim for declaratory relief to maintain that cause of action and, accordingly, Coronado’s Motion to Dismiss should be granted and the case remanded back to the state court where it belongs. IV. CONCLUSION For the reasons set forth above, Coronado respectfully asks the Court to grant its Motion to Dismiss Imperial Beach’s Cross-Complaint in full, without leave to amend. DATED: December 21, 2016 MEYERS, NAVE, RIBACK, SILVER & WILSON By: /s/ Shaye Diveley Shaye Diveley Attorneys for CITY OF CORONADO email: sdiveley@meyersnave.com 2746997.2 Case 3:16-cv-03020-CAB-WVG Document 5 Filed 12/21/16 Page 18 of 18