Filed 12/3/18 Collin v. City of South Lake Tahoe CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

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Appellants Bruce Grego and Laurel Ames (collectively proponents) appeal following the trial court’s order finding unconstitutional a measure they proposed (Measure T) after it was passed by the voters of South Lake Tahoe. Plaintiff Jason Collin (plaintiff) and defendant the City of South Lake Tahoe (the city) (collectively respondents) argue proponents lack standing to appeal because the trial court denied them intervention. We conclude proponents do have standing to appeal, but only to challenge the court’s rulings in relation to their proposed motion to intervene. To this extent, proponents argue the trial court erred in denying their motion to continue and their oral motion to intervene. They also argue they were denied notice and the opportunity to be heard. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Proponents proposed Measure T to appear on the November 2016 ballot. Measure T provided in relevant part: “The People of the City of South Lake Tahoe do ordain that the City of South Lake Tahoe shall be prohibited from taking any action, adopting ordinance, making any resolution that approves or supports the Tahoe Transportation District Project known as ‘The US 50/South Shore Community Revitalization Project’ (also known as the Loop Road project) that includes realigning US Hwy. 50 unless a specific proposal for re-alignment is first approved by the voters within the City of South Lake Tahoe in an election held for such purpose.”

In July 2016, plaintiff filed a petition for writ of mandate against the City and its city council and the County of El Dorado and its registrar of voters (collectively the county) seeking to prevent Measure T from appearing on the ballot. Plaintiff named proponents as real parties in interest. The parties stipulated to a briefing schedule so the trial court could rule on the petition before the election. In that stipulation, proponents all agreed to have their interests in the matter represented by Grego.

Plaintiff argued Measure T was unconstitutionally vague and impermissibly stripped the city of authority. The city agreed and did not oppose plaintiff’s petition. Proponents argued Measure T was not vague but specific in its mandate that “no action” be taken on the Loop Road project. They further argued the voters would be irreparably harmed if Measure T were removed from the ballot. The county expressed no opinion on the merits of plaintiff’s petition but urged the trial court to rule before August 26, 2016, so it could have sufficient time to prepare ballot materials.

Before August 26, the trial court ruled on plaintiff’s petition. It balanced various interests including the power of the ballot box and the ability of the court to conduct a subsequent review of Measure T if it passed. Ultimately, the court determined Measure T would appear on the November 2016 ballot and dismissed the matter without prejudice.

In November 2016, voters in South Lake Tahoe passed Measure T. At a hearing on December 5, 2016 (the December 5 hearing), the trial court set a briefing schedule for plaintiff to file a motion for a preliminary injunction and complaint for declaratory relief. Both the motion and complaint named the city as defendant. Also at the December 5 hearing, the court permitted proponents to file a motion to intervene and set a hearing on proponents’ proposed motion for January 27, 2017 (the January 27 hearing) -- the day after briefing was to be completed by respondents and the day the court set for a substantive ruling on the merits. The trial court also permitted proponents to file a brief regarding the constitutionality of Measure T. Grego was present at this hearing.[1]

Plaintiff timely filed his motion and complaint arguing the same grounds he raised before the election. The city agreed with plaintiff and did not oppose his requested relief. Proponents never filed a motion to intervene with the court nor served plaintiff or the city with a motion to intervene.[2]

Two days before proponents’ motion should have been heard had it been filed, proponents’ purported counsel wrote the court via fax. In the letter, counsel requested a continuance on behalf of “the prospective intervenors” because of the “unusual weather conditions.” Counsel continued, “[i]t is in this context that I respectfully request this Court to reschedule the present hearing set for the day after tomorrow, January 27, 2017. We had hoped to resolve, before filing any papers, the representation of my clients, their position in this litigation, our opponents and the City of South Lake Tahoe’s position, and our own arguments supporting the validity of Measure T. Adverse weather has prevented any of this.”

At the January 27 hearing, proponents’ counsel was not present at the start of the hearing. The trial court denied proponents’ motion to continue, ruling: “The court received a letter from [proponents’ counsel] yesterday or the day before, the day before yesterday, requesting to continue this matter. [¶] . . . [¶] I received your response to that request, [plaintiff’s counsel], and I am going to respectfully deny that request to continue this matter. [¶] But seeing no appearance by anyone -- I will also note for the record that the Court gave a very specific timeline for filing of the motion to intervene, and I have not been provided with the information showing that the motion to intervene was properly served on [plaintiff]. Has not -- the notice requirements and the requirements have not been complied with, so I will respectfully deny the request to intervene at this time.” After the city stated it also had not been served with proponents’ proposed motion to intervene, the court affirmed its ruling to deny proponents’ proposed motion.

Proponents’ counsel then came on the record via telephone and was permitted to argue for a continuance and for intervention. The court acknowledged South Lake Tahoe had experienced much snow recently, resulting in the city declaring a state of emergency and the court declaring two snow days. Regardless of the weather conditions, the court reasoned, proponents had not even settled their legal representation let alone attempted to intervene in the litigation. Further, the briefing schedule was set weeks before snow was a problem. “[T]he Court gave very specific timelines. The briefing was to be done and in all candor it was before the snow hit and everything. And I received nothing. I received no briefing. I received no request for an extension of time, nothing until the letter [the] day before yesterday requesting that this matter be continued. [¶] So I will respectfully deny the request to intervene and so we will go forward from there.” The trial court also denied proponents’ motion to continue.

The trial court then found Measure T “vague to the point of being unenforceable” and granted plaintiff’s motion for a preliminary injunction and declaratory relief. This judgment was entered on February 8, 2017, and proponents appealed that order.

DISCUSSION

Proponents attack the judgment and the rulings regarding their proposed and oral motions to intervene. As explained below, proponents have standing on appeal only to challenge the latter. Because we find no error, we affirm the court’s rulings regarding proponents’ intervention and dismiss the remainder of their appeal.

I

Proponents Have Standing To Appeal The Denial Of

Their Motions But Not The Court’s Judgment

At the threshold of our inquiry, we examine the extent to which proponents have appellate standing to challenge the judgment regarding Measure T and the rulings regarding their proposed and oral motions to intervene. “[O]nly an ‘aggrieved party’ has a right to appeal.” (Winter v. Gnaizda (1979) 90 Cal.App.3d 750, 754.) Standing to appeal is jurisdictional. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295.)

Generally, only parties of record to an action have standing to appeal. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736.) “A party of record is a person named as a party to the proceedings or one who takes appropriate steps to become a party of record in the proceedings.” (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) Under these principles, one who becomes a party to an action through a successful motion to intervene acquires standing to challenge the judgment in the action. (Corridan v. Rose (1955) 137 Cal.App.2d 524, 528.) Further, “one who is denied the right to intervene in an action ordinarily may not appeal from a judgment subsequently entered in the case. [Citations.] Instead, he may appeal from the order denying intervention.” (County of Alameda v. Carleson, supra, 5 Cal.3d at p. 736.) The trial court denied proponents’ oral motion to intervene and proponents may appeal that denial.

Similarly, when a ruling “in essence” denies leave to intervene in an action, the aggrieved party may challenge it on appeal, provided that it constitutes a final determination of the party’s entitlement to participate in the action. (In re Veterans’ Industries, Inc. (1970) 8 Cal.App.3d 902, 916; see Jun v. Myers (2001) 88 Cal.App.4th 117, 122-123.) That requirement is satisfied here by the court’s denial of proponents’ motion to continue, which prevented the filing of a written motion to intervene and terminated proponents’ ability to participate in the litigation. Proponents thus have standing on appeal to challenge the court’s rulings regarding their oral motion to intervene and their motion to continue, despite having not filed a written motion to intervene.[3] Accordingly, we dismiss proponents’ appeal to the extent it is taken from the judgment, and limit our inquiry to their challenges to the rulings regarding the continuance and the oral motion to intervene. (Braun v. Brown (1939) 13 Cal.2d 130, 133.)

II

The Trial Court Did Not Abuse Its Discretion

By Denying Proponents’ Motion To Continue

Proponents contend they were denied an opportunity to bring their proposed motion to intervene because the trial court “inexplicably denied” their motion to continue. We disagree.

“ ‘The decision to grant or deny a continuance is committed to the sound discretion of the trial court. [Citation.] The trial court’s exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. [Citation.] A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record.’ [Citation.] California Rules of Court, rule 3.1332(d), provides that in ruling on a request for a continuance ‘the court must consider all the facts and circumstances that are relevant to the determination.’ Among other facts and circumstances, the trial court properly considers the proximity of the trial date, whether there were previous trial continuances, the length of the requested continuance, and the prejudice that parties or witnesses would suffer as a result of the continuance.” (Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1126, fn. omitted.) A court may deny a continuance if the moving party did not act promptly. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638.)

Proponents have not established an abuse of discretion. They requested a continuance via letter two days before plaintiff’s motion and declaratory relief action were to be heard. This was 51 days after the court set the briefing schedule. Proponents did not state how long the requested continuance would be for but stated it was for the purpose of obtaining counsel, resolving their position in the litigation along with that of the other parties, and figuring out their arguments in support of Measure T. From this proffer, it appears proponents did nothing between the December 5 and January 27 hearings to comply with the court’s order to file a motion to intervene or a proposed opposition to plaintiff’s requested relief. Proponents claimed the inclement weather prevented them from proceeding with their plan to intervene but, as the trial court stated, the briefing schedule and hearing were set weeks before severe snow descended on South Lake Tahoe. Only two snow days were declared for the court because of the storm, thus proponents’ 50-day delay in preparing for the hearing could not be attributed to that.

Further, proponents did not specify how they were prevented from intervening or otherwise preparing for the hearing due to the snow. After the December 5 hearing, proponents obviously contacted prospective counsel in some fashion who had access to a computer to write a letter to request a continuance, in addition to access to a fax machine that he used to communicate with the court. Proponents’ purported counsel also had access to a phone he used to make an appearance at the January 27 hearing because he could not leave his home to attend. Even if proponents and their purported counsel were homebound during the 53 days between the December 5 and January 27 hearings, they were still capable of timely intervening or otherwise preparing for the hearing and communicating with the court. Proponents fail to convince us otherwise.

Proponents appear to argue the trial court should have granted their motion to continue because plaintiff and the city would not have been prejudiced by a delay. The problem with proponents’ argument is any resulting prejudice is difficult to discern because they have never stated how long of a continuance was necessary. Considering proponents needed a continuance because they failed to accomplish any of the tasks the court told them needed to be complete by the January 27 hearing, it was reasonable for the court to conclude any continuance was for the purpose of delay.

Proponents failed to act, let alone act promptly regarding their wish to participate in the action. Accordingly, the trial court did not abuse its discretion in denying proponents’ motion to continue.

III

The Court Did Not Abuse Its Discretion By Denying

Proponents’ Oral Motion To Intervene

Proponents attack the court’s ruling on their oral motion to intervene. We disagree.

“[G]enerally a motion for leave to intervene before any substantive hearing on the merits has taken place is timely.” (Marken v. Santa Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250, 1277.) As an initial matter, we note that proponents were late to appear at the January 27 hearing and the substantive hearing on the merits had already taken place by the time they orally requested leave to intervene. The trial court, however, permitted proponents to make an oral motion, which it denied. The court reasoned that because proponents knew of the litigation since the December 5 hearing, 53 days earlier, and did not first file a motion with the court or serve it on the parties before orally moving to intervene at the hearing on the merits, the motion was untimely. Indeed, the court commented that proponents failed to communicate with it, whether that be by filing a motion to intervene or requesting an extension of time to do so. Because proponents never petitioned the court by noticed motion or through an ex parte application before the hearing on the merits as required, the trial court did not abuse its discretion in denying proponents’ untimely oral motion to intervene. (Code Civ. Proc., § 387, subds. (c), (d)(2).)

IV

Proponents Were Given Adequate Notice And An Opportunity To Intervene

The thrust of proponents’ argument regarding the trial court’s refusal to allow intervention is that they were denied proper notice from the court and from plaintiff of the need to intervene and as a result never had an opportunity to request intervention. They further argue they had standing to participate in the litigation and that equity demands they be permitted to participate. We disagree.

We initially observe that we do not have a reporter’s transcript of the December 5 hearing wherein the trial court adopted a briefing schedule and permitted proponents to file a motion to intervene and a proposed opposition in the event they were granted intervention. We, however, are in possession of the minute order from that hearing which provides that Grego was present and represented himself in pro. per. The minute order establishes Grego had actual notice as of the December 5 hearing that he had to file a motion to intervene so that it could be heard at the January 27 hearing with plaintiff’s motion and declaratory relief action. Proponents argue, however, that even if Grego could be held to the court’s briefing schedule, Ames could not be held to that same order because she did not know about it. The problem with proponents’ argument is that Ames, along with the other proponents of Measure T who are not parties to this appeal, stipulated to Grego representing their interests in the matter. Moreover, when asking for a continuance, proponents’ purported counsel represented both Grego and Ames, indicating Ames had similar knowledge of the briefing schedule as Grego. Accordingly, we conclude proponents had notice of the trial court’s briefing schedule.

We further conclude proponents were afforded an adequate opportunity to move for intervention. The trial court permitted proponents to file a motion to intervene and a proposed opposition to plaintiff’s motion and declaratory relief action. It further permitted proponents to argue an oral motion to intervene after they failed to file and serve a written motion as required. (See Code Civ. Proc, § 387, subd. (c).) In sum, proponents not only had notice they needed to file a motion to intervene but had the opportunity to do so even after failing to comply with the statutory procedures. Proponents were not denied a fair opportunity to intervene or otherwise argue against plaintiff’s requested relief.

Proponents’ argument that equity demands they be permitted to participate in the litigation also lacks merit. Proponents are under the mistaken belief they have participated in a single legal action regarding Measure T and plaintiff engaged in unfair litigation tactics to dismiss them from the case to prevail without opposition. In fact, proponents have been involved in two legal actions -- one preelection and one postelection. In the preelection litigation, proponents were joined in the action from the outset as real parties in interest. This was because they were the proponents of Measure T and it had not yet been adopted by the voters, making them necessary parties whose substantial right to place a local initiative measure on the ballot would have been affected by an adverse judgment. (See Code Civ. Proc., § 389, subd. (a); see also Cal. Const., art II, § 11, subd. (a).) As described, that action was dismissed without prejudice. The postelection action did not name proponents as a party because, after the measure was passed by the voters, proponents’ substantial right was no longer implicated. Assuming they had standing to participate in the litigation (see Perry v. Brown (2011) 52 Cal.4th 1116, 1152), plaintiff was not required to join them in the action, but for proponents to seek timely intervention if they wished to participate. The briefing schedule aside, neither Grego nor Ames explained why they were prevented from moving to intervene before judgment on the merits. Accordingly, we reject proponents’ claim that equity demands they be allowed to participate in the litigation of Measure T’s constitutionality.

DISPOSITION

The order denying proponents’ motion to intervene is affirmed; the remainder of their appeal is dismissed. Respondents are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

/s/

Robie, J.

We concur:

/s/

Blease, Acting P. J.

/s/

Butz, J.