MORGAN HILL, CITY OF v. BUSHEYRespondent, City of Morgan Hill, Reply Brief on the MeritsCal.December 12, 2017IN THE SUPREME COURTOF THESTATE OF CALIFORNIA CITY OF MORGANHILL, Plaintiff and Respondent, Case No. $243042 V. Sixth Dist. No. H043426 SHANNON BUSHEY, AS REGISTRAR] Santa Clara Super. Ct. No. 16- OF VOTERS,etc., et al., CV-292595 Defendants and Respondents; SUPREME COURT RIVER PARK HOSPITALITY, F | L E D Real Party in Interest and DEC 1 2 2017 Petitioner; Jorge Navarrete Clerk MORGANHILL HOTEL COALITION, Deputy oo, Real Party in Interest and —!\Respondent. che ,8.25('9) REPLY BRIEF OF PLAINTIFF AND RESPONDENT CITY OF MORGANHILL LOUIS A. LEONE(SBN:099874) *KATHERINEA. ALBERTS(SBN: 212825) LEONE & ALBERTS 2175 N. California Blvd., Suite 900 Walnut Creek, CA 94596 Tel: (925) 974-8600 Fax: (925) 974-8601 Email: Ileone@leonealberts.com kalberts@leonealberts.com Attorneysfor Plaintiff and Respondent CITY OF MORGAN HILL IN THE SUPREME COURTOF THE STATE OF CALIFORNIA CITY OF MORGAN HILL, Plaintiff and Respondent, V. SHANNON BUSHEY,AS REGISTRAR OF VOTERS,etc., et al., Defendants and Respondents; RIVER PARK HOSPITALITY, Real Party in Interest and Petitioner; MORGANHILL HOTEL COALITION, Real Party in Interest and Respondent. Case No. 8243042 Sixth Dist. No. H043426 Santa Clara Super. Ct. No. 16- CV-292595 REPLY BRIEF OF PLAINTIFF AND RESPONDENT CITY OF MORGANHILL LOUIS A. LEONE(SBN:099874) *KATHERINE A. ALBERTS(SBN: 212825) LEONE & ALBERTS 2175 N.California Blvd., Suite 900 Walnut Creek, CA 94596 Tel: (925) 974-8600 Fax: (925) 974-8601 Email: lleone@leonealberts.com kalberts@Jeonealberts.com Attorneys for Plaintiff and Respondent CITY OF MORGANHILL TABLE OF CONTENTS Page No, INTRODUCTION acicccccssscccerccsceesscuasnsstpenssetsssversscsscstaussresentensbeassenscusesoassaanen 4 ARGUMENTccccscccccccsssssrsssessasesasistivessssssasistansesasnyasgnansannuaveressanararenvensneseseen 5 I THE VOTERS LACK THE POWER TO REPEAL TITE EXISTIN ZONING ORDINANCE AND RESTORE ITS PREDECESSOR, WHICH NO LONGER COMPLIES WITH STATE LAW.........00.. 6 A. The Subject OfA Referendum Is An Ordinance That Has Already Become Law w.ccccccscssseseeiesstterersesnarrenraenttetearersen nen 6 B. A Successful Referendum Is A Voter Repeal That Restores The Predecessor Ordinance..cccesccssecrssveceesrerevpesccetntetsserseeecseecses 7 C. The Stay On The Effective Date Of The Referended Ordinance Merely Creates The Appearance Of Maintaining The Status Quo, When In Fact The Voters Are Using Their Repeal Power To Restore The Status Quo Ante... cccccescersresserereeneess pebneeaacurseananeaneeea ones 9 D. The People And The City Council Have The Same Legislative Discretion And Face The Same Limitations Onn Its Ex@riSe .cccccccscsseeieensesecsentecsueeesvressepeeceecunseseuscssseseenonnersue 9 Ul. THE REFERENDUMATISSUEIN THIS CASE WOULD MAKEIT IMPOSSIBLE TO ENACT A LAWFUL, OR EVEN JUST A FUNCTIONAL ZONING ORDINANCE WITHIN A “REASONABLETIME”vo ccscsecosssesssensscserseessterevesearsenesesssessteessreane LQ Ul. PERMITTING THIS REFERENDUM TO REMAIN ON THE BALLOT WOULD CONTRAVENE THE PUBLIC INTEREST.... 12 CONCLUSIONW..o.cccerestetsneeeereeene seat eoneneesreseneeenenearerssnenenianencensaenensvensenamncasens 13 TABLE OF AUTHORITIES Cases Page(s) AFL v. Eu (1984) 36 Cal3d 687 sessvsceccseseccscessssecesecsossssseccesesesvansessessssvesstsessusevenesetsressisetsesssssseesseese 12 Assembly v. Devlimejian(1982) 30 Cal.3d 638 .. deseccasecssnsnoeseaeeascarecsoecsasescssseissserensesascevsestssseisee Dy 8 County ofSacramentov. Superior ¢Court (1982) 137 Cal.App.3d 448.. cesaeesevsoevavdenvensesenceencecnenensnceansnasesssssanentsesssespacreeseratenes D Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d S31 cccccscscscsseseccesteccsescessscessceesersesansesseceeecasecseesuntcensncearsesegriasranseeeenssenaes 6 Midway Orchards v. County ofButte (1990) _ 220 Cal.App.3d 765 ..sccsessscisnccn ccc sensesisesersesentierenarnecscecsietescerisrnecmievesonenys 7 Resource Defense Fund v. County ofSanta Cruz (1982) 133 Cal.App.3d 800 wisccecesessuvesrsresesecessseessnecteesssssacenieserseerersearearscenseeserseeseeys 4 Rossi v. Brown (1995) Q Cal.4th 688 voecescsccsscesesssrsceeseecssecsssesseuesesaeesssnensversecesesscegaricansceaneeereeenes 10-11, 11 Rubalcava v. Martinez (2007) 158 CalApp.4th 563 issccsesssesececseetsenesercisecneaneesncsnserenscransneseereerenerasesees 1] Santa Clara CountyLocal Tiransportation Authority v. Guardino (1995) 11 Cal.4th 220 ww.senseseenagvonsucuseusspenssenh testcase prenenenstssuis tesseensssteseeuenenneseerenee 6, 8 Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029 occotnsecuasevauenensehscdtseeeseresesenessetecaseneciseceesveneenessenneneseenenees 7 Statutes Elec. Code, section 9237 ec isessccercesranssscrsersereneetecennarees seasansueeeacussenenevenscnseaceseee 7,8 Elec. Code, section 9238, Subd. (a) sressserrrerrcererestsnssetenerennnesertessrsereseseserseses wa 7 Elec. Code, section 9241 cuccsccssssersrtesssesressenecsnenes suaeguoveneeteessaten ata sesaserencenpereeys 7,10 Gov. Code, sectivn 65860 vrecsereseeesesasenaneeeseees seeseneeaansnensne eu cequescaetesseeevenseecsaeannee 6, 10 Gov, Code, section 65860(C) siccsccssesesieesseesesertenecersneerserinteensnereesseenienescssesanecaes 12 Gov. Code, section 65860, subd. (a) «1... cueadvegunsuseesstsseeesssevsrseeserstenereassencerssssseense 4 Other California Const., art. IT, section 9, subd. (@) ocsesssssercessensseeneteeetceneenaeeseee 8 U.S. Const, art. ID, Section 9 ceciccctiesserecsereesneeesrseeeneneenrerstenteneernsssertnensrerensennenceey 7 U.S. Const., art. I, section 11 ccscecsesscsesneesreerneenecusereanearansnesseceeceegeensarsinensenasens 7 INTRODUCTION This case is not about what Appellant Hotel Coalition thinks it is. It has nothing to do with the right to referendum writ large: whether zoning is subject to the referendum power(it is), or whether the voters havetheright to a referendum whenthe city council chooses one amonga seriesoflegislative possibilities (they do), or whether the People’s reserved legislative poweris co- extensive with that of the legislative body (it is). Rather, this case turns on a question ofstate-law preemptionthatarises on the facts present here: whether the voters can repealthe current, fully enacted zoning ordinancein favorofits predecessor, when the predecessor ordinance conflicts with state law. No,they cannot. An enacted ordinanceis the law, and it can only be changed by amendmentor repeal. Both the city council and thelocal electorate hold those legislative powers, but neither may use its powerto contravenestate law. Here, that is exactly the result that would flow from a successful referendum, whichis why it must be removed from the ballot. Were the voters to repeal Ordinance No. 2131, they would necessarily restore its predecessor ordinancein its place, and that ordinanceis no longer consistent with state law. For this reason, both the electorate and the city council can amendthe existing ordinance, butneither can simply repealit. Government Codesection 65860, subdivision (a) requires without exception that zoning be consistent with the governing general plan. Zoningthat is not consistent with the general plan is invalid as a legal matter, and ineffective as a practical matter: all subsequent decisions about the permitted use of the property require that the use also be consistent with the general plan andthe zoning designation. (Resource Defense Fund v. City ofSanta Cruz (1982) 133 Cal.App.3d 800, 806.) Wherethe zoningis itself inconsistent with the general plan, there is no proposeduse that can satisfy both requirements, and all possible developmentis stymied. Yet that is the precise effect that the proposed referendum would have. Andworse: this referendum would not only restore inconsistent zoning, but affirmatively prohibit the City from adopting lawful, consistent zoningfora full year thereafter. Appellant argues, and the lower court assumedthat disapprovingthe current ordinance by referendum would do no more than send the city council right back to the drawing board, where it would choosea different commercial zoning designation that wouldbring its zoning back into compliance with the general plan, just without allowing hotels. But that is not what would happen. For a full year after the election, the city council would be legally prohibited from enacting any zoning ordinance that meaningfully conflicted with the voters’ reasons for disapproving the initial ordinance. In this case, although the Hotel Coalition now deniesit, the record showsthat this referendum,as presentedto the voters, has the affirmative intent to preserve industrial zoning in addition to prohibiting hotel use. Accordingly, if the referendum succeeded,il would notonly restore invalid and ineffective zoning, but impose a year-long de facto moratorium on commercial zoning, which is the only zoning consistent with the general plan. Forcing the City to forego functional zoning for such a long period seemslike the very definition of “unreasonable” time. No matter which way the Court turnsit, this referendum shouldnotbe permitted to stand. ARGUMENT Just as a legislative body cannot repeal an ordinance and revive an unlawful predecessor ordinance without curingthelatter’s illegality, neither can the clectorate use its legislative power in that manner. Nothing Appellant has said in its brief, and nothing Appellant could say, changes that. 1. THE VOTERS LACK THE POWERTO REPEAL THE EXISTING ZONING ORDINANCE AND RESTOREITS PREDECESSOR, WHICH NO LONGER COMPLIES WITH STATE LAW. This Court has already held that the preemptive effect of state law precludesthe local electorate from exercisingits initiative power to enact a zoning ordinancethat conflicts with its general plan, in violation of Government Code section 65860. (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 547.) The same problem arises, and the sameresult obtains, when the electorate uses its referendum powerto repeal an amended zoning ordinance in favor of a predecessor ordinancethat conflicts with the generalplan. To try to avoid this conclusion, the Hotel Coalition argues that if the referendum proceeds andthe local electorate disapproves Ordinance No. 2131, the voters will not really be exercising a legislative power to change the law. Rather, they will just fail to approve a “proposed ordinance,”and it will not become law as aresult. (Appellant’s Br. at 38-39.) On this view, the industrial zoning remains undisturbed, but the voters’ referendum will not have caused the state law conflict. That is not how the referendum power works. A. The Subject Of A Referendum Is An Ordinance That Has Already Become Law. Despite Appellant’s assertion to the contrary, laws subject to the People’s referendum power have not merely been proposed, but adoptedas law. Asthis Court has made unmistakable, “the constitutional referendumis not part of the enactment process in the Legislature, but operates after that process has doneits work and has produceda statute enactedby bill passed by the Legislature. For the samereason such a statute requires no approval by the voters to becomelaw: it will automatically take effect unless a timely referendumpetitionis filed.” (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 241 [internal quotation marks omitted].) 6 Article II, section 11 of the Constitution extends the referendum powerto matters of local government, where the subject of a referendum is an enacted ordinancerather than a statute. Section 9237 of the Elections Code describes a local referendum petition as “protesting the adoption of an ordinance,” not “nroposed ordinance”still awaiting enactment. And should the Hotel Coalition have anylingering doubton this point, a referendum proponentis required to print “Referendum Against an Ordinance Passed by the City Council”at the top of cach page ofits referendum petition. (Elec. Code § 9238, subd. (a).) The Hotel Coalition’s ownpetition says exactly that. (Joint Appendix (“JA”), Vol.I, 119.) B. A Successful Referendum Is A Voter Repeal That Restores The Predecessor Ordinance. Where a law has already been enacted, it will remain the law unlessit is repealed. Accordingly, whenthe electorate disapproves an ordinance,it does not merely avoid its enactment, but instead exercises its power of repeal. (See,e.g., Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1035, fn. 3 [a referendum is a voter repeal].) A legislative body must likewise use its repeal power to unseat a law it has alrcady adopted, including whenit has a received a referendum petition but would rather not submitits ordinanceto the voters. (Elec. Code § 9241.) The Hotel Coalition relies on Midway Orchards v. County ofButte (1990) 220 Cal.App.3d 765 to support its claim that a successful referendum merely preventsa legislative act from becoming law,akin to exercising a veto, and is not a repeal. The relevant passage in that case provides: The powerofreferendum is simply not the powerto repeala legislative act. Under the 1911 amendment, the power wasto “‘adoptor reject any act, or section or part of any act, passed by the Legislature.’” [citation] Under currentarticle II, section 9, ‘‘The referendum is the power ofthe electors to approve orreject statutes... .’” The poweris the same asthe Legislature's approval ofa bill. (Assembly v. Deukmejian, supra, 30 299 7 Cal.3d at p. 656.) The poweris to determine whcthera legislative act should become law. (/bid.) It is not to determine whethera legislativeact, once effective, should be repealed. (Id. at pp. 780-781 [emphasis in original].) Assembly v. Deukmejian (1982) 30 Cal.3d 638, upon which the Midway Orchards courtrelied, provides this further explanation: The referendum is the powerof the electors to approveorreject statutes.. .." (Cal, Const., art. II, § 9, subd. (a).) As the Secretary of State has pointed out, "In a Referendum, Voters are asked to Approvethe Bill which the Legislature has enacted ('Yes' Vote) or to Disapprove ("No' Vote)... . The question whichis put to the voters is ‘Shall (thebill) Become Law? (Yesor No).'" (Memo.from Sect. of State's office to county clerks and registrars of voters (Sept. 24, 1981).) Approval of the referendumis approvalof the bill.” (Ibid. at 656.) These discussions are plainly contrary to the governing constitutional and statutory language, as well as this Court’s explanation of the referendum power in Guardino, supra, 11 Cal.4th at 241, but only because they are imprecise. In these cases, each court sought to make the point that the law underits consideration was stayed priorlo a referendumelection and therefore was not yet in effect, but each conveyed this correct conclusion with an incorrect formulation, mistaking the effect of a stay for incomplete enactment. Because of this error, and in light of the weight of contrary authority, neither can serve as persuasive authority for the Hotel Coalition’s argument that the voters,if they reject Ordinance No. 2131, are merely declining to change the law. They are doing the opposite: repealing the law asit already exists. C. The Stay On The Effective Date Of The Referended Ordinance Merely Creates The Appearance Of Maintaining The Status Quo, When In Fact The Voters Are Using Their Repeal Power To Restore The Status Quo Ante. The Hotel Coalition also argues that a voter repeal merely maintains the status quo, because the repealed ordinance was stayed whenthe referendum petition was filed and therefore never tookeffect. But staying the effective date of an ordinance subject to referendum, as required by Elections Code section 9237, does notalter the fact that a voter repeal is an affirmative exercise of legislative powerthat the voters cannot undertake when that changes the law. Staying an ordinance doesnotaffectits validity. Rather, a stay merely maintains the status quo as a practical matter while the underlyinglegal relationships get decided. (County ofSacramento v. Superior Court (1982) 137 Cal.App.3d 448, 455-56 [noting that stay of enforcement of an ordinance preservesthe status quo until the underlying merits can be adjudicated].) Thus; while the stay may give the appearance that nothing has changed,in fact the status quo changes markedly whenthe voters pass a referendum, because they thereby repeal the current law in favor ofits predecessor. D. ‘The People And The City Council Have The SameLegislative Discretion And Face The Same Limitations On Its Exercise. The Hotel Coalition complains throughoutits brief that removing the referendum from the ballot will unlawfully deprive the electorate of the full scopeof legislative power enjoyed by the city council. It argues that the city council’s discretionary ability to choose among various commercial zoning options leads inexorably to the conclusionthat the local electorate must have the samediscretion to reject the council’s “first choice of zoning”andreturn the issue to the council to make a different choice. This argument both depends upon a false equivalency and, more important, fails to engage the actualissue. The City agrees entirely that the local electorate enjoys the samefull sweepoflegislative poweras doesits representative body. Each could, and the council did, choose amongthe available zoning designationsthat are consistent with the general plan and enact the one they thought best.! The issue here has a finer point, because the power to make a choice and the powerto reject that choice are not the same. While both the Council and the electorate have co- extensive power to do the former, they also face the same restrictions on their powerto dothelatter. Neither body can reject the ordinance and reinvigorate the prior, unlawful ordinance, at least not without amendingit to conform to state law. If there is an actual disparity betweenthe legislative authority granted to the People andthe city council in this case, the Hotel Coalition has not identifiedit. Il. THE REFERENDUMATISSUE IN THIS CASE WOULD MAKE IT IMPOSSIBLE TO ENACT A LAWFUL, OR EVEN JUST A FUNCTIONAL ZONING ORDINANCE WITHIN A “REASONABLETIME.” The Hotel Coalition also seeks to support its referendum by arguing that a successful referendum would merely set the City back to zero, andthecity council could still—within the “reasonable time” contemplated by subdivision (c) of Government Code section 65860—provide for lawful, consistent zoning by enacting any of the remaining commercial zoning designationsthat do not permit hotel use. This is misleading. ! The Coalition’s claim that there were a “dozen” available zonings is incorrect, because a legally valid zoning designation must be consistent with all of the applicable legal requirements, and most of the commercial zoning choices are not available for the particular property under the Municipal Code. Appellant misconstrues the City’s pointas an assertion that a referendum is barred because the City had no choice but to enact the ordinanceit did, rendering the zoning choice an administrative rather than legislative act. That is incorrect. The City agrees that the zoning decision was an exercise oflegislative discretion that would normally be subject to referendum. 10 Election Code section 9241 prohibits a legislative body from re-enacting a disapproved ordinance, or any other ordinance inconsistent with the intent of the referendum,for one year after a referendum election. (Rubalcava v. Martinez (2007) 158 Cal. App. 4th 563, 573.) The Hotel Coalition is not candid whenit insists in its brief that the only purpose of the referendum is to prevent hotel use. (Appellant’s Br. at 32.) It has no evidencethatthis is so, and in fact cites onlyto its prior arguments, which assert that the referendum has twin purposes: to prevent development of another hotel, and to preserve industrial zoning in an effort to attract large employers. (E.g., JA, Vol. I, 383.) But the Hotel Coalition’s description of its own intent, even if it were fully candid, is not controlling in determining which ordinancesthe city council could enact following the referendum election. Rather, the intent of the voters would control. (Rossi v. Brown (1995) 9 Cal.4th 688, 700, fn. 7 [explaining that the proponent’s intent may be considered only in the absence of otherindicia of voter intent, such as the ballot arguments].) Accordingly, a court would determine voter intent with reference to the ballot measure argumentthat the Hotel Coalition submitted to the City to be included in the voter information materials for the referendum election. (JA, Vol. Il, 480.) The ballot argument begins: “VOTE NObecause industrial land is scarce in Morgan Hill.” (/d. at 482.) It urges that Morgan Hill needs industrial zoning to attract more technology and manufacturing jobs, and even claimsthat the desire to keep an industrial zoning designation is what motivated voters to sign the referendum petition. (/bid.) From the vantage point of the Hotel Coalition’s business interests, it makes sense that it would want to attract more large employersto fill its existing hotel rooms on weeknights as well as block developmentof a competitor’s hotel. As it wrote in its presentation to the city council when the council was considering Ordinance No. 2131, “Office or industrial complex 1] with Fortunate [sic] 500 tenantis ideal.” (Morgan Hill Hotel Coalition Presentation, dated March 18, 2015, attached as Exhibit A to Plaintiff And Respondent City Of Morgan Hill’s Motion For Judicial Notice In Support OfIts Reply Brief, filed herewith.) These twin interests likewise shed light on the Hotel Coalition’s preference for pursuingthis referendum, which wouldrestore industrial zoning, rather than an initiative, which it could pursue to amend the city council’s choice of zoning to a different commercial zoning designation preferred by the voters. Accordingly, the Hotel Coalition’s argument that this referendum would allow the city council to turn around and enact other commercial zoningis subterfuge. There is no commercial zoning that would be consistent with the electorate’s understanding that the referendum would preserve industrial zoning. Rather, this referendum would act as a one-year moratorium on consistent zoning, and prevent any possible development whatsoever. That does notfit the definition of “reasonable time” in Government Code section 65860(c), and the Court should not countenancethat result. I. PERMITTING THIS REFERENDUM TO REMAIN ON THE BALLOT WOULD CONTRAVENE THE PUBLIC INTEREST. Although it asks that the referendum be removedfrom theballot, the City itself has no stake in the ultimate zoning designation of the parcel. It is not before the Court seeking to “rezone the land for the benefit of a real estate speculator.” (Appellant’s Br. at 9) Whetherthe parcel is zoned commercial or industrial or somethingelse is for the policymakers—whetherthe electorate or their representatives on the city council—to decide. Rather, the City’s interest is in safeguarding its proper functions as a local government: giving effect to the lawful decisionsof its policymakers, performing its administrative duties efficiently, conserving public resources, acting within the scopeofits authority under state law, and honoringthe state constitution. All of those interests are 12 implicated in this case, and each of them counsels in favor of removingthis referendum from the ballot.’ Andas the Court has observed, an improperballot measure does not serve the electorate. “The presence of an invalid measure on the ballot... will confuse somevoters and frustrate others, and an ultimate decision that the measureis invalid, coming after the voters have voted in favor of the measure, tends to denigrate the legitimate use of the initiative procedure.” (American Federation ofLabor v. Eu (1984) 36 Cal.3d 687, 697.) The Hotel Coalition has other, lawful ways to use the initiative and referendum powers that do not injure these publicinterests. Should the Court removeits referendum fromthe ballot, all it loses is the right to pursue a simple repeal of Ordinance No. 2131, just like the city council, and for the same reasons. Althoughthe right to referendum must be protected from unjustified intrusion, here the limitation is justified. The People do not have the rightto use their local legislative power in a mannerthat conflicts with state law, and they are not injured by being deprived of a right they do not have. CONCLUSION For the foregoing reasons, this Court should reverse the judgmentofthe court of appealand order the referendum removedfrom theballot. Alternatively, should the Court conclude that further fact-finding regarding the intent of the referendum is required, the City requests that the Court remandthe case to the Superior Court with instructions that promote a swift and certain resolution of this controversy. 2 If the Court considers the issue, it should also deny the Hotel Coalition’s request for attorney’s fees as a “private attorney general.” Even if the Court were to agree with the Hotel Coalition’s position, the Coalition is acting in service of its members’ commercialinterests as the businesses that stand to gain, andis able to rely on their resourcesfor this litigation. 13 Dated: December 11, 2017 LEONE ALBERTS ‘(A THERINE A. ALBERTS Attorneys for Plaintiff and Respondent CITY OF MORGANHILL 14 RULE8.204(c) CERTIFICATION Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that the foregoing Respondent’s Reply Brief is proportionately spaced in Times New Roman 13-point type and contains 3,534 words as counted by Microsoft word-processing software. Dated: December 11, 2017 LEONE & ALBERTS Katherine A. Alberts, Esq. Attorneys for Respondent CITY OF MORGANHILL 15 STATEMENT OF RELATED CASES Respondent is not aware of any related cases pending before the Supreme Court. Dated: December 11, 2017 16 s, Esq. Attorneys for Respondent CITY OF MORGAN HILL Re: City of Morgan Hill v. Shannon Bushey,etal. California Supreme Court Case No.:S243042 Court of Appeal Case No.: H043426 PROOF OF SERVICE I, the undersigned, declare that | am employedin the City of Walnut Creek, State of California. | am over the age of 18 years and not a party to the within cause; my business address is 2175 N. California Blvd., Suite 900, Walnut Creek, California. On December 11, 2017, I served the following documents: REPLY BRIEF OF PLAINTIFF AND RESPONDENT CITY OF MORGANHILL COUNSEL FOR MORGANHILL HOTEL COALITION Asit S. Panwala Law Office of Asit Panwala 4 Embarcadero Center, Suite 1400 San Francisco, CA 94111 COUNSEL FOR DEFENDANT IRMA TORREZ Gary Baum, Esq. Scott Pinsky, Esq. Law Offices of Gary M. Baum 19925 Stevens Creek Bivd., Suite 100 Cupertino, CA 95014 Donald Larkin, Esq., City Attorney City of Morgan Hill 17575 Peak Avenue Morgan Hill, CA 95037-4128 Clerk of the Court Sixth District Court of Appeals 333 West Santa Clara Street, #1060 San Jose, CA 95113 COUNSEL FOR REAL PARTY IN INTEREST RIVER PARK HOSPITALITY Jolie Houston, Esq. Berliner Cohen LLP 10 Almaden Blvd., Eleventh Floor San Jose, CA 95113 COUNSEL FOR RESPONDENT/ DEFENDANT SHANNON BUSHEY Danielle L. Goldstein, Esq. Deputy County Counsel Office of the County Counsel County of Santa Clara 70 West Hedding Street 9 Floor, East Wing San Jose, CA 95110 Clerk of the Court Santa Clara County Superior Court The Honorable Theodore Zayner 191 N. First Street San Jose, CA 95113 VIA MAIL [ ] By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above and placing each for collection and mailing on that date following ordinary business practices. I am readily familiar with my firm's business practice of collection and processing of correspondence for mailing with the United States Postal Service and correspondence placed for collection and mailing would be deposited with the United States Postal Service at Walnut Creek, California, with postage thereon fully prepaid, that same day in the ordinary course ofbusiness. 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VIA FACSIMILE [ | By arranging for facsimile transmission from facsimile number 925-974- 8601 to the above listed facsimile number(s) prior to 5:00 p.m. I am readily familiar with my firm's business practice of collection and processing of correspondencevia facsimile transmission(s) and any such correspondence would be transmitted via facsimile to the designated numbers in the ordinary course of business. The facsimile transmission(s) was reported as complete and withouterror. VIA HAND-DELIVERY [ ] By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and causing each envelope(s) to be hand-served on that day by D&T SERVICESin the ordinary course of my firm's business practice. VIA ELECTRONIC SERVICE — California Rules of Court, Rule 8.212(c)(a) [ ] By electronically filing the document through TrueFiling, per California Rules of Court, Rule 8.212(c)(a), all requirementsare satisfied. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on December 11, 2017, at Walnut Creek, California. oe = ee Z | C : BERLY SUTTON
