SAN DIEGO, CITY OF v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY

Respondent’s Opposition to the Request for Judicial Notice of the Motion to Augment the Record on Appeal that was

Cal.October 23, 2012

SUPREME COURT COPY FILED OCT 2 3 20129$199557 Frank A. McGuire Clerk IN THE Deputy SUPREME COURT OF CALIFORNIA CITY OF SAN DIEGOetal., Plaintiffs and Appellants, UV. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Respondent. AFTER A DECISION BY THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE CASE No. D057446 OPPOSITION TO REQUEST FOR JUDICIAL NOTICE OF THE MOTION TO AUGMENT THE RECORD ON APPEALFILED IN THE FOURTH DISTRICT COURT OF APPEAL; DECLARATION OF MARKA. KRESSEL HORVITZ & LEVY LLP GATZKE DILLON & BALLANCE LLP BRADLEYS. PAULEY(BAR No. 187298) MARK J. DILLON (BAR No.108329) JEREMY B. ROSEN (BAR No.192473) MICHAEL S. HABERKORN(BaR No. 159266) MARKA. KRESSEL(BAR NO.254933) DANIELLE K. MORONE(Bar NO.246831) 15760 VENTURA BOULEVARD, 18TH FLOOR 2762 GATEWAY ROAD ENCINO, CALIFORNIA 91436-3000 CARLSBAD, CALIFORNIA 92009 (818) 995-0800 * FAX: (818) 995-3157 (760) 431-9501° FAX: (760) 431-9512 bpauley@horvitzlevy.com mdillon@gdandb.com jrosen@horvitzlevy.com mhaberkorn@gdandb.com mkressel@horvitzlevy.com dmorone@gdandb.com ATTORNEYS FOR DEFENDANT AND RESPONDENT BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY TABLE OF CONTENTS Page TABLE OF AUTHORITIES -cccccsccccccssssssssssssssssssssssscessessessececeeeeeeee ii INTRODUCTION. vscsscsssssssscccccssssssececsssssessessuseesssssesescesseceeseseeeeeseeee 1 ARGUMENTvosccccccccscccscccccsssssssssssssssssssscesssseecseesssseceensssssnsenssesssesseees 2 THIS COURT SHOULD NOT TAKE JUDICIAL NOTICE OR AUGMENT THE RECORD WITH DOCUMENTS THAT WERE NOT PART OF THE ADMINISTRATIVE RECORD BELOW. 1.0...cecescenesceceteseeesesneeenceeeceseeseseseseesesseeeesgaesensetenengs 2 A. The documents are part of the record on appeal, but the Court ofAppealproperly declined to take judicial notice of them. ...........ccccccsccceseeceeceeeeeeeseesseeees 2 B. The City—not CSU—waivedits claim regarding JUACICIA] MOCICE........ cece eeeecccessseecceccccneueeacuseeseceeceaeuauenseeeess 5 C. This Court should not take judicial notice because the documents were not part of the ‘administrative record and are therefore not LOLOVANL..occ.cccicccccessessscccesssssesccececauecececeeecessausaaereceeaessees 6 D. The documents are already part of the record on APPEAL. 00... eeeecccssssseseesecececeececeeeeeeneeseueeecesaeeneeesteeees1 8 CONCLUSION........cccccccccccccccecssssseecesscneeaesseeeeeaenseeuaeeesstesessssnsenessees 9 DECLARATION OF MARKA. KRESSEL......eee 10 TABLE OF AUTHORITIES Page(s) Cases Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471 oo.cccccccccssssssssspeessssseeessensanes 8 City of Marina v. Board of Trustees ofCalifornia State University | (2006) 39 Cal.4th 841occcccccccseccccccsssseecsstesssssssecesenress 5 Health First v. March Joint Powers Authority (2009) 174 Cal.App.4th 1135 wo... ccccccccccesssssssecsessseseeersessees 6 Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal4th 665occccccccsscssssssscssssssesssescceeseseesteerees 5 Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885 0...ccccccccsssssssscsscesssssesceeeseesaes 6 RiverWatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186 oo... ccccccsessssssssssevesesseeeers 6, 7 Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84.0... ccccsscceescssccsscesessecesssscnsseeecerseecececeans 5 Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559 oo.ccecccceeceseeseeeseeeens bececaueeeeeceneeenenes 6, 7 Statutes Evidence Code § 452, subds. (C), (A) .......eccccescccssesscessecesesssssseseesececssnececeesensscaeens 8 il Rules of Court Cal. Rules of Court PUle 8.500(a)(2) ...cceeccccccccceecccceeeceeeeseseeeeeceeeececneneesaaaeeereeensanees 5 PUle B.50O(C)(1)....eccccccccccecccesssseetesssesseeeeeeseeeeeeaaeeuaaeeeeesenanaees 5 YUlC 8.504(D)-(C) ....cccccccccceessecceceseneeeeecseeeueneeeeeaeesaneeeaeaaeaenereeees 5 LUle 8.51Qa) ccccccccccccccccccceccceeescssaeasececeeececceeseecusseseeseeseeaeaenaes 8 LUle B.516(D)(1) oo. cccccssesneeeeceeseeseeceeeceeseaeneaeaceeeeeeeeeenees 5 U1 IN THE SUPREME COURT OF CALIFORNIA CITY OF SAN DIEGOetal., Plaintiffs and Appellants, Vv. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Respondent. OPPOSITION TO REQUEST FOR JUDICIAL NOTICE OF THE MOTION TO AUGMENT THE RECORD ON APPEAL FILED IN THE FOURTH DISTRICT COURT OF APPEAL INTRODUCTION The City of San Diego and Redevelopment Agency of the City of San Diego (the City) seeks judicial notice of documents it filed concurrently with its motion to augmentthe record in the Court of Appeal. These documents include various state budget and finance documents. Both thetrial court and the Court ofAppeal declined to take judicial notice of the documents because they were notpart of the administrative record and were not considered by the Boardof Trustees of the California State University (CSU) when preparing its Environmental Impact Report (EIR). The Court of Appeal granted the City’s motion to augment the appellate record to include these documentsaspartofthe record. However, permitting the documents to be included in the appellate record (as attachments to the City’s denied request for judicial notice in the superior court) is in no way the sameas this Court takingjudicial notice of these same documents and thus giving them weight to which they are not entitled. This Court should deny the City’s request for judicial notice for the same reasonsthetrial court and Court of Appeal did. ARGUMENT THIS COURT SHOULD NOT TAKE JUDICIAL NOTICE ORAUGMENT THE RECORD WITH DOCUMENTS THAT WERE NOT PART OF THE ADMINISTRATIVE RECORD BELOW. A. The documents are part of the record on appeal, but the Court ofAppeal properly declined to take judicial notice of them. The City claims this Court should take judicial notice of the documents in question because the Court ofAppeal previously took judicial notice of them. (RJN 4.)! The City’s description of the proceduralhistory and current status of the documentsisincorrect. The City first tried to introduce these documentsbyfiling a request for judicial notice in the superior court. (CT-3:823-828; CT- 7:1625.) CSU opposed the request for judicial notice and filed a motion to strike the documents on the basis that CSU did not consider the documents as part of the administrative process and they were, therefore, not part of the administrative record. (CT- 4:1103; CT-7:1625.) The court denied the City’s request and granted CSU’s motionto strike, ruling “[t]hese documents were not part of the administrative record and were never considered by CSU whencertifying the [FEIR] and approving the 2007 Project.”? (CT- 7:1626; see also typed opn., 47-48.) On appeal, the Cityfiled a motion to augmentthe record with these same documents that had been lodged with the City’s request for judicial notice filed in the trial court. The Court of Appeal granted the motion, and the trial court motion and attached documents becamepart of the record on appeal. (Typed opn., 48; Declaration of Mark A. Kressel, exh. A.) In its merits briefing before the Court of Appeal, the City claimed that the trial court erred by denying the City’s request for 1 This opposition uses the following citation formats: “CT- [volume]:[page]” (Clerk's Transcript), “RJN” (City’s request for judicial notice), “OBOM” (CSU’s Opening Briefon the Merits), “City ABOM”(City’s AnswerBrief on the Merits). 2 Thetrial court also observed that it had previously ruled that two of the documents (exhibits L and T) were not part of the certified administrative record. (CT-7:1625.) judicial notice. (Typed opn., 4, 47.) The Court ofAppeal declined to rule on the City’s claim. (Typed opn., 49 [“we do not address the merits of City’s contention that the trial court erred by granting CSU’s motionto strike City’s RJN documents and thereby implicitly denying the RJN”].) To provide guidance on remand, the court explained thatin light of its holding that “an extensive discussion considering other possible feasible sources for funding off-site mitigation is required” underthe California Environmental Quality Act (CEQA), documentsof the type the City sought to be judicially noticed might be relevant to the administrative proceedings on remand. (Ibid.) Accordingly, the court explamed, documentsofthis type might becomepartofthe administrative record for the revised EIR or, if necessary, could be the subject of a future request for judicial notice in a future trial court proceeding. (Typed opn., 49- 50.) The Court of Appeal clarified that the court had not even reviewed the documents muchlessjudicially noticed them. (Typed opn. 50, fn. 12.) Therefore, the City is simply wrong whenit asserts that while the superior court “denied the RJN, the Court of Appeal reversed that finding and granted City’s request.”? (RJN 6.) 3 The Court ofAppeal’s introductory summary did not state that it took judicial notice of the documents. (Typed opn., 4.) The City may have come to the contrary conclusion by misreading the introduction to the Court of Appeal’s opinion, which stated: “we conclude the trial court erred in denying the petitions and the request for judicial notice... .” (Ibid.) In light of the Court of Appeal’s subsequent statement that it “[would] not address the merits” of the request for judicial notice or review the documentsat issue (typed opn., 49-50), the introductory statement can only mean (continued...) B. The City—not CSU—waived its claim regarding judicial notice. The City also argues in its answerbrief that CSU “has not challenged the Court of Appeal’s ruling granting City’s Requestfor Judicial Notice, thus, the issue is waived.” (City ABOM 27,fn. 6.) However, as explained above, the Court ofAppeal did not grant the City’s request for judicial notice. (Typed opn., 49-50.) Therefore, there was no ruling for CSU to challenge and, as a result, no waiver by CSU. On the other hand, because the Court of Appeal declined to grant the City’s request for judicial notice, the City had to seek review of that ruling from this Courtin orderto preserve the City’s right to challenge it. (See Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 682, fn. 5 [this Court generally will not decide issues not raised in the petition for review or answer]; Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 98-99 [declining to considerissue that party did not raise in its answerto petition for review]; Cal. Rules of Court, rules 8.500(a)(2), 8.500(c)(1), 8.504(b)-(c), 8.516(b)(1).) | (...continued) that the Court ofAppeal determinedthetrial court’s refusal to take judicial notice was premised on anincorrect interpretation of City of Marinav. Boardof Trustees of California State University (2006) 39 Cal.4th 341, but that its reversal of the decision to approve the EIR and remand for further proceedings rendered the propriety of judicial notice moot. The City did not seek review of the Court of Appeal’s ruling declining to take judicial notice of the documents . (RJN 6.) Therefore, it is the City who has waivedits rights with respect to this issue. C. This Court should not take judicial notic e because the documentswerenotpart ofthe administrative record and are therefore not relevant. It is not “proper to take judicial notice of evidence tha t (1) is absent from the administrative record, and (2) was n ot before the agencyat the time it madeits decision.” (Western Stat es Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 573, fn. 4 (Western States Petroleum).) This is because a court may only take judicial notice of relevant evidence, and evidence that was not before the agency at the time it made its decision is irr elevant to the determination whether substantial evidence sup ports a lead agency’s factual determinations or whether th e agency has proceeded in a manner required by CEQA. (Id. at pp . 565, 571-573 & fn. 4; RiverWatch v. Olivenhain Municipal Water D ist. (2009) 170 Cal.App.4th 1186, 1218-1219 (RiverWatch) [denyi ng request for judicial notice of documents not part of admini strative record because irrelevant to CEQA review]; Health First v. March Joint Powers Authority (2009) 174 Cal.App.4th 1135, 1137 , fn. 1 [same]; Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 890, 894 [“Extrajudicial evidence may not be used to challenge the substant iality of the evidence supporting the City’s adoption of the [CEQAreport] or to prove that the City failed to proceed in a mannerrequired by law pursuant to [Pub. Resources Code, section] 21168.6”].) Here, the trial court ruled that the documents “were not part of the administrative record and were never considered by CSU when certifying the EIR.” (CT-7:1626.) The City does not contend otherwise. Because CSU never considered the documents, they are irrelevant to deciding this appeal. (Western States Petroleum, supra, 9 Cal.4th at pp. 565, 571-573 & fn. 4; RiverWatch, supra, 170 Cal.App.4th at p. 1218-1219.) The purpose of this appealis to determine whether CSU must submit its budget for an ad hoc public review to determine whetherit is “feasible” to reallocate its funds from otherusesto pay for off-campus transportation improvements and not to undertake the contemplated budget review at this time. (OBOM 2-5.) The documents are merely evidence of recent state and university budgeting activity that were not part of the administrative record in CSU’s EIR review process, and are therefore not relevant to the issues on appeal. Indeed, although the superior court and the Court ofAppeal reached opposite holdings on the merits, neither took judicial notice of these documentsfor the very reason that they were irrelevant to the issues presented. (Typed opn., 49; CT:7-1626.) The existence of CSU’s budgeting process is not disputed. The City seeks judicial notice of the documents at issue solely as a means to establish the truth of their contents. Because that is an improperreasonto seek judicial notice, the City’s request should be denied. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482 [“[W]hile [a court] may take judicial notice of court records andofficial acts of state agencies (Evid. Code, § 452, subds.(c), (d)), the truth of matters asserted in such documentsis not subject to judicial notice”].) D. The documents are already part of the record on appeal. Finally, this Court should not construe the City’s motion for judicial notice in the alternative as a motion to augmenttherecord. The Court of Appeal granted the City’s motion to augment the appellate record, and the documents becamepartof the record at that time. (Typed opn., 48; Kressel Decl., exh. A.) Uponreceiving a copy of CSU’spetition for review, the Court ofAppeal promptly sent the record to the Supreme Court. (Cal. Rules of Court, rule 8.512(a).) There is no needfor the City to file a redundant motion to augment the record in this Court with the same documents. CONCLUSION For the foregoing reasons, this Court should deny the City’s request for judicial notice. October 22, 2012 HORVITZ & LEVY LLP BRADLEY 8S. PAULEY JEREMY B. ROSEN MARK A. KRESSEL GATZKE DILLON & BALLANCE LLP MARK J. DILLON MICHAEL S. HABERKORN DANIELLE K. MORONE we Meal ‘Mark A. Kressél Attorneys for Defendant and Respondent BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY DECLARATION OF MARK A. KRESSEL I, Mark A. Kressel, declare as follows: 1. I am an attorney duly admitted to practice before this Court. I am an associate with Horvitz & Levy LLP, attorneysof record for Board of Trustees of the California State University. I have personal knowledge of the facts set forth herein, except as to those stated on information and belief and, as to those, I am informed andbelieve them to be true. If called as a witness, I could and would competently testify to the matters stated herein. 2. Attached as Exhibit A to this declaration is a true and correct copy of the Court of Appeal’s order of October 27, 2010. I declare under penalty ofperjury underthelawsofthe State of California that the foregoing is true and correct. Executed October 22, 2012, at Encino, California. Met(of Mark A. Kressel 10 Exhibit A — Y~ COURTOF APPEAL -STATE OF CALIFORNIA FOURTHAPPELLATE DISTRICT DIVISION ONE oe Otroy CITY OF SAN DIEGOet al., Plaintiffs and Appellants, BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Respondent. D057446 oF San Diego County No. GIC855643 . San Diego County No. 37-2007-00083692-CU-WM-CTL San Diego County No. 37-2007-00083773-CU-MC-CTL San Diego County No. GIC855701 San Diego County No. 37-2007-00083768-CU-TT-CTL THE COURT: Appellants’ unopposed request to augment the record on appeal is GRANTED. IT IS ORDEREDthat the documents attached to the motion to augment filed on October 7, 2010, aré deemeda part of the record on appeal. Dralomaact Presiding Justice ce: All Parties AFFIDAVIT OF TRANSMITTAL I am a citizen of the United States, over 18 years of age, andnota party to the within action; that my business address is 750 B Street, Suite 300, San Diego, CA 92101; that I served a copyofthe attached material in envelopes addressed to those persons noted below. Thatsaid envelopes were sealed and shipping fees fully paid thereon, and thereafter were sent as indicated via the U.S. Postal System from San Diego, CA 92101. I certify under penalty of perjury that the foregoing is true and correct. Stephen M. Lamey, Clerk of the Court LO/Z 1/70 Deputykis Da CASE NUMBER: D057446 Office of the Clerk San Diego County Superior Court - Main P.O. Box 120128 San Diego, CA 92112 Christine Marie Leone ‘Office of the City Attorney 1200 3rd Ave Ste 1100 San Diego, CA 92101 Margaret Moore Sohagi The Sohagi Law Group, LLP 11999 San Vicente Blvd., Ste. 150 Los Angeles, CA 90049 John F, Kirk Deputy General Counsel, San Diego Association of Governments 401 "B"Street Suite 800 San Diego, CA 92101 MarkJ. Dillon ' Gatzke, Dillon & Ballance 1525 Faraday Ave, Suite 150 Carlsbad, CA 92008 serv Material SentYES: Material Sent YES: Material Sent YES: Material Sent YES: Material Sent YES: a a a ae PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a partyto this action. I am employed in the County ofLos Angeles, State of California. My business addressiis | 15760 Ventura Boulevard, 18th Floor, Encino, California 91436-3000. On October22, 2012, I served true copies of the following document(s) described as OPPOSITION TO MOTION BY APPELLANTS CITY OF SAN DIEGO AND REDEVELOPMENT AGENCYOFTHE CITY OF SAN DIEGO FOR REQUEST FOR JUDICIAL NOTICE OF THE MOTION TO AUGMENT THE RECORD ON APPEAL THAT WAS FILED IN THE FOURTH DISTRICT COURT OF APPEAL on the interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresseslisted in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Horvitz & Levy LLP’s practice for collecting and processing correspondence for mailing. On the same day that the correspondenceis placed for. collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty ofperjury underthe lawsofthe State of California that the foregoing is true andcorrect. Executed on October 22, 2012, at Encino, California. Robin Steiner SERVICE LIST San Diego v. CSU Christine Marie Leone (SBN 208803) Office of the City Attorney 1200 8rd Avenue, Suite 1100 San Diego, CA 92101 Phone: (619) 533-6392 Fax: (619) 533-5856 Email: leonec@sandiego.gov Margaret M. Sohagi (SBN 126336) Philip A. Seymour (SBN 116606) Nicole H. Gordon (SBN 240056) The Sohagi Law Group, LLP 11999 San Vicente Blvd., Suite 150 Los Angeles, CA 90049 Phone: (310) 475-5700 Fax: (310) 475-5707 Email: msohagi@sohagi.com pseymour@silcom.com ngordon@sohagi.com John F. Kirk (SBN 149667) Deputy General Counsel San Diego Association of Governments 401 “B”Street, Suite 800 San Diego, CA 92101 Phone: (619) 699-1997 Fax: (619) 699-1995 Email: jki@sandag.org MarkJ. Dillon (SBN 108329) Michael S. Haberkorn (SBN 159266) Danielle K. Morone (SBN 246831) Gatzke Dillon & Balance LLP 1525 Faraday Ave., Suite 150 Carlsbad, CA 92008 Phone: (760) 431-9501 Fax: (760) 431-9512 Email: mdillon@gdandb.com mhaberkorn@gdandb.com dmorone@gdandb.com S199557 (Counselfor Plaintiffs and Appellants City of San Diego and Redevelopment Agencyof the City of San Diego) (Counsel for Plaintiffs and Appellants San Diego Association of Governments and San Diego Metropolitan Transit System) (Counsel for Plaintiffs and Appellants San Diego Association of Governments and San Diego Metropolitan Transit System) (Counsel for Defendant and Respondent Board of Trustees of the California State University) Brandon S. Walker (SBN 254581) State of California Department of Transportation 1120 N Street (MS 57) Sacramento, CA 95812 Phone: (916) 654-2630 Fax: n/a Email: brandon.walker@dot.ca.gov Sabrina V. Teller (SBN 215759) Remy, Thomas Moose and Manley 455 Capitol Mall, Suite 210 Sacramento, CA 95814 Phone: (916) 443-2745 Fax: (916) 443-9017 Email: steller@rmmenvirolaw.com Clerk Court of Appeal Fourth Appellate District Division One 750 “B” Street, Suite 300 San Diego, CA 92101 Hon. Thomas P. Nugent San Diego Superior Court North County Division Vista Regional Center 325 S. Melrose Dr., Dept. 30 Vista, CA 92081 (Counsel for Amicus Curiae Department of Transportation) (Counsel for Amicus Curiae League of California Cities and California State Association)