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JOHN G. McCLENDON (State Bar No. 145077)LEIBOLD McCLENDON & MANNA Professional Corporation23422 Mill Creek DriveSuite 105Laguna Hills, California 92653Telephone: (949) 457-6300Facsimile: (949) 457-6305eMail: [email protected]
Attorneys for PetitionerFOOTHILL COMMUNITIES COALITION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE COMPLEX CIVIL COURTROOM
FOOTHILL COMMUNITIESCOALITION, an unincorporatedassociation
Petitioner,
v.
COUNTY OF ORANGE, ORANGECOUNTY BOARD OF SUPERVISORS,DOES 1 through 10, inclusive,
Respondents,
ROMAN CATHOLIC DIOCESE OFORANGE, KISCO SENIOR LIVING,LLC, and DOES 11 through 25, inclusive,
Real Parties in Interest.
))))))))))))))))))))
Case No. 30-2011-00467132-CU-WM-CXC
Reassigned to the HonorableJudge Gail A. Andler
Department CX 101
MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFPETITIONERS MOTION FOR NEWTRIAL AND/OR ALTERNATIVERELIEF; DECLARATION OF JOHNG. McCLENDON[CCP 657 & 662]
Date: August 2, 2012Time: 1:30 p.m.Dept: CX101
[ACTION FILED: April 14, 2011]
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITIONERS MOTION FORNEW TRIAL AND/OR ALTERNATIVE RELIEF; DECLARATION OF JOHN G. MCCLENDON
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I.
INTRODUCTION AND REASON FOR BRINGING THIS MOTION
By Minute Order dated March 8, 2012 (the March MO), this Court issued its ruling on
the Petition for Writ of Mandate brought by Petitioner Foothill Communities Coalition (FCC).
The Courts March MO stated that FCCs Petition for Writ of Mandate is granted. The passing
of the new zoning ordinance for SRH and applying it to the one property was improper spot
zoning. In light of this ruling, the Court finds it unnecessary to rule on the CEQA issues.
(Emphasis added.)
Thereafter, FCC served and filed a proposed Judgment and Writ of Mandate, and
Respondents County of Orange and Orange County Board of Supervisors (collectively,
Respondent) and Real Parties in Interest Roman Catholic Diocese of Orange and Kisco Senior
Living, LLC (collectively, RPI) objected to FCCs version of these documents, proffering their
own versions. On May 10, 2012, the Court issued a second Minute Order (the May MO),
sustaining RPIs and Respondents objection that FCCs form of the Judgment and Writ
exceeded the scope of the Courts March MO, and directing FCC to prepare a Judgment and
Writ conforming to the Courts interlineation of FCCs proposed version.
Late last month FCC began hearing that RPIs representatives were stating publicly that
the Court had ruled to certify the environmental impact report (EIR) for RPIs senior housing
project (the Project) and therefore RPIs pending appeal of the Courts judgment was going
to be limited solely to the spot zoning issue. (See Declaration of John G. McClendon [McC
Decl.] infra, 2.) Consequently, on Friday, June 29, 2012, FCCs counsel wrote the following
email to RPIs and Respondents counsel:
Dear Counsel:
We have learned that Kisco and the Diocese (and perhaps the
County) are taking the position that Judge Andler has effectively
upheld the Countys certification of the EIR through her judgment.
We dont think that Judge Andler intended to uphold the EIR. In
fact, her March 8, 2012 minute order indicates ruling on the
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CEQA issues raised by petitioner is unnecessary given the ruling on
the zoning issue. We are very concerned, however, that Kisco and
the Diocese appear to be taking a different position. Are you
willing to stipulate that Judge Andlers judgment did not expressly
or implicitly uphold the Countys certification of the EIR? Please
inform me by Monday morning, July 2.
I would prefer not to have to request clarification from the Court if
there is no need to do so, hence the request for the simple
stipulation. Given what appears to be the position of Kisco and the
Diocese, absent the requested stipulation, such clarification will be
necessary to avoid much greater controversy and expense in the
future for everyone concerned.
(Id., and Exhibit A.)
On Monday, July 2, 2012, FCCs counsel received an email response from RPIs counsel
rejecting FCCs proposal to stipulate that the Courts March MO says what it says, e.g., that in
light of the Court finding that the Project constituted illegal spot zoning, the Court found it
unnecessary to rule on the CEQA issues. (Id., 3.) Instead, RPIs counsel claimed that the
record could not be more clear that the Courts May MO modified the Courts March 8, 2012
Minute Order; specifically, that the May MO expressly declared and clarified that "[t]he court
did not vacate CEQA findings or approvals in the ordinance or resolutions." (Emphasis added.)
. . . Judge Andler therefore specifically ruled that those legislative acts are still in effect. (Id.)
Given that RPI has announced its intention to appeal the Courts Judgment, FCC brings
this motion seeking alternative relief under Code of Civil Procedure section 662. FCC does not
want to find itself in a position where RPI (i) obtains a reversal of the Judgment; (ii) on remand
files a peremptory challenge to Judge Andler; and then (iii) argues to the new judge that FCC
(or, for that matter, anyone else) is estopped from challenging any defects in the Projects EIR
because the May MO had the effect of implicitly changing the March MO to implicitly affirm
and vindicate Respondents CEQA findings and approvals for the Projects EIR. (Id., 4.)
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II.
SUMMARY OF THE LEGAL PRINCIPLES GOVERNING THIS COURTS
AUTHORITY TO GRANT A NEW TRIAL AND/OR ALTERNATIVE RELIEF
Code of Civil Procedure section 657 authorizes this Court to grant a new trial on any of
several grounds, including:
1. Irregularity in the proceedings of the court, jury or adverse party, or
any order of the court or abuse of discretion by which either party
was prevented from having a fair trial.
3. Accident or surprise, which ordinary prudence could not have
guarded against.
6. Insufficiency of the evidence to justify the verdict or other decision,
or the verdict or other decision is against law[;] [and] .
(Code Civ. Proc. 657 (1), (3) & (6).)
Because this was a bench trial, Code of Civil Procedure section 662 gives this Court
broad powers in ruling on a motion for a new trial:
In ruling on such motion, in a cause tried without a jury, the Court
may, on such terms as may be just, change or add to the statement
of decision, modify the judgment, in whole or in part, vacate the
judgment, in whole or in part, and grant a new trial on all or part of
the issues, or, in lieu of granting a new trial, may vacate and set
aside the statement of decision and judgment and reopen the case
for further proceedings and the introduction of additional evidence
with the same effect as if the case had been reopened after the
submission thereof and before a decision had been filed or
judgment rendered.
(Code Civ. Proc. 662. See also Mayer v. C. W Driver (2002) 98 Cal.App.4th 48, 63 [Code
of Civil Procedure, Section 662 ... authorizes the Court to change its statement of decision after
either party moves for a new trial. [Citations.] The statute was enacted to give a trial Court, in
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