WILSON & WILSON v. CITY COUNCIL OF REDWOOD
CITY








Filed 1/25/11






CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

WILSON & WILSON, Plaintiff and Respondent, v. CITY COUNCIL OF REDWOOD CITY et al., Defendants and Appellants.

A123480 (San Mateo County Super. Ct. No. CIV 429131)

In February 2003, the law firm of Wilson & Wilson (Wilson) brought an action against the City Council of Redwood City (City Council), the City of Redwood City (Redwood City), and the Redwood City Redevelopment Agency (Redevelopment Agency) (hereafter collectively the City) to challenge the approval and construction of a retail-cinema redevelopment project in Redwood City’s downtown. Wilson asked the court to invalidate resolutions enacted by the City Council and the Redevelopment Agency and to void agreements entered into by the City to carry out the redevelopment. The action did not come to trial until 2004, and final arguments were not held until 2007, by which time the retail-cinema project had been substantially completed. Although the City urged the trial court to dismiss the action as moot, the trial court found for Wilson and entered judgment against the City in 2008.
The City appeals from that judgment, arguing that the trial court should have dismissed Wilson’s action because it did not present a justiciable controversy. We agree that Wilson’s action was not justiciable, and we reverse the judgment and instruct the trial court to dismiss Wilson’s action.
FACTUAL AND PROCEDURAL BACKGROUND
The Original Redevelopment Project
In 1982, the City adopted a redevelopment plan to combat the economic stagnation of its downtown area. Initially, the City planned to redevelop two downtown blocks into a retail-cinema, office, and parking project. “Block 1,” bounded by Middlefield Road, Broadway Street, and Jefferson Avenue, was to be the site of a retail-cinema development containing ground-floor retail and restaurant space and a 20-screen, 4,200 seat movie theater on the second floor. The area designated “Block 2” is located across Middlefield Road from Block 1 and is bounded by Winslow Street, Middlefield Road, Jefferson Avenue, and the Caltrain railroad tracks. Under the City’s original plan, Block 2 would have been developed with a 108,400 square-foot office building and public parking garage.
To implement the original plan, the City entered into a disposition and development agreement (DDA) with Western Innisfree Ventures, LLC (the Developer), on January 29, 2001.[1] The following day, the City issued a notice of determination under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21100 et seq.) certifying the environmental impact report (EIR) for the original project. (See Pub. Resources Code, § 21152, subd. (a).) Wilson, which owns property located on Block 2 that would have been directly affected by the original project, did not challenge the EIR.
Due to a decline in the market for office space following approval of the original project, it became impracticable to construct the office building that had been planned for Block 2. The City and the Developer therefore agreed to eliminate the office-parking structure previously planned for that block and instead to construct the retail-cinema component above a two-level underground parking garage on Block 1. As modified, the new project consisted of approximately 85,000 square feet of ground-floor retail and restaurant space, the movie theater, and an underground parking garage with some 590 spaces (the Project).
The Amended Disposition and Development Agreement
On January 8, 2003, the City and the Developer entered into an amended and restated DDA (the ADDA), which superseded the DDA. The ADDA provided that the Developer would pay $7.5 million for acquisition of the air rights parcel needed to construct the retail-cinema portion of the Project, with the City contributing the remaining cost of site acquisition.
The ADDA included a number of provisions concerning parking. In addition to the underground parking spaces located beneath the retail-cinema building, the City contemplated creating approximately 300 off-site parking spaces, with as many as possible on Block 2. To that end, the City agreed that it would “use its best efforts and legally available means to provide additional parking as more particularly described in the Parking Facilities Agreement.” The terms of the latter agreement were to be negotiated later in accordance with the “Retail/Cinema Parking Business Points” document (the Business Points) incorporated as Attachment 7 to the ADDA. The Business Points declared that “[t]he purpose of the final Parking Facility Agreement is to ensure that sufficient parking is available in the downtown . . . .” The parties agreed, however, that “the Parking Agreement is one, but certainly not the only tool for assuming this common goal.” By their terms, the Business Points were nonbinding, and stated in their first paragraph that “execution of this document will not bind or obligate the signatories until all the signatories execute the final Parking Facilities Agreement.”
Regarding the Block 2 parking lot, the Business Points, echoing the language of the ADDA itself, stated, the “City will use its best efforts and legally available means to acquire the remaining parcels and, if the acquisition is successful, will restripe it to create a total of approximately 300 parking spaces.” (Fns. omitted.) A footnote to the foregoing sentence cautioned that the “City cannot, however, commit to making the acquisition before a legally required eminent domain public hearing is held.” Another footnote explained that the number of spaces might vary by plus or minus 10 percent, depending upon the City’s determination of the number of spaces that could fit on the site.
Planning and Approval of the Project
In November 2002, the City and its environmental consultant completed an addendum to the original EIR (the EIR Addendum). The EIR Addendum found that the changes made from the original redevelopment project, including the elimination of the office building on Block 2, made the Project smaller in scale than the project evaluated in the previously certified EIR. The City concluded that an EIR Addendum was the required CEQA compliance document for the Project because the scope of the Project had narrowed, and the changes tended to reduce the severity of previously identified environmental impacts.
On November 23 and 30, 2002, a notice was published in the Redwood City Tribune announcing that the City Council and the Redevelopment Agency would hold a joint public hearing on December 9, 2002, to review both the ADDA and a revised summary report for the Project. (See Health & Saf. Code, § 33433, subd. (a)(1) & (2).) The City also made the ADDA, the Summary Report, and the EIR Addendum available for public review. The City sent between 550 and 600 official meeting notices to owners and tenants in the downtown area. Both the notice published in the Redwood City Tribune and the notices sent to downtown area owners and tenants stated that the joint public hearing would be held on December 9, 2002. In addition, the City sent 51 courtesy notices to individuals who had spoken at prior public meetings, whether or not they resided in the vicinity of the Project. The courtesy notices stated that public hearings would be held on December 9 and December 16, 2002. Wilson’s principal, Donald Wilson, received the notice specifying only the December 9 hearing date and did not receive one of the 51 courtesy notices that included a second hearing date. He later testified that he “was aware of the two meetings by the time of the hearing on [December 9].”
The City Council and the Redevelopment Agency held a joint public hearing on December 9, 2002, to consider approving the EIR Addendum, approving the summary report, and authorizing execution of the ADDA. According to the minutes of the meeting, several members of the public spoke, including Donald Wilson. The minutes reflect that he urged the City Council to consider whether it should “endorse the expenditure of $26 million . . . to fund a parking structure primarily for the exclusive use of the theatre project.” Neither Donald Wilson nor any other speaker raised any environmental issues, and Wilson made no objections concerning the EIR Addendum. He also submitted nothing in writing at the December 9 hearing.
After hearing the comments from the public, members of the City Council responded to the issues that had been raised. At the conclusion of the hearing, the City Council and the Redevelopment Agency adopted resolutions approving the ADDA, the EIR Addendum, and the summary report (the Resolutions).
On February 24, 2003, the City Council and the Redevelopment Agency held a joint meeting at which they agreed to authorize Redwood City, rather than the Redevelopment Agency, to acquire the properties on Block 1 by eminent domain.[2] The City Council and the Redevelopment Agency therefore approved the First Implementation Agreement to the ADDA. In adopting this agreement, the parties “determined that [Redwood] City, rather than the [Redevelopment] Agency should be responsible for acquiring the Acquisition Parcels, as defined in the [ADDA].”
Wilson’s Action
Meanwhile, on February 7, 2003, Wilson had filed a complaint against the City. The original complaint contained three causes of action. It sought invalidation of the ADDA, a writ of mandate, and declaratory relief. On February 26, 2003, Wilson filed a first amended complaint (FAC), which is the operative pleading in this case. The action was brought as a “reverse validation action.”[3] The FAC abandoned the writ of mandate cause of action, but like Wilson’s original complaint, the FAC’s first cause of action sought to have the court invalidate the ADDA on various grounds. The second cause of action requested declaratory relief.
For the most part the FAC challenged the Project as too costly to the taxpayers and improperly beneficial to the Developer. The FAC also attacked the Resolutions on certain procedural grounds. Among other things, the FAC claimed the ADDA should be invalidated because the Project had been substantially modified after its initial conception, and therefore a new EIR should have been prepared rather than an EIR Addendum. It also claimed the Resolutions were not preceded by appropriate public input because the public meeting allegedly scheduled for December 16, 2002, had been cancelled and the members of the City Council and the Redevelopment Agency had “plainly predetermined” that the Project would be approved. Finally, Wilson asserted that its property was not required for the Project.
In its prayer for relief, Wilson asked the court to determine that the approvals of the EIR Addendum and the ADDA were “invalid, illegal, void and of no effect.” It also requested that the court direct the City Council and the Redevelopment Agency to seek reimbursement “for all monies illegally and improperly spent on the Project.” The FAC further asked for a declaration that the Resolutions were not “proper and lawful” and did not “authorize the actions therein stated.” Finally, Wilson requested an award of attorney fees and costs.
Proceedings Prior to Trial
Between the filing of the FAC and the scheduled date for commencement of trial, Wilson sought no discovery from the City. Although Wilson claimed in its mandatory settlement conference statement that it wanted to “[s]top the . . . Project until a new DDA is negotiated and the total cost is accurately known,” at no time did Wilson ask the court for a stay or injunction to halt construction of the Project.
The City filed a motion for summary judgment in the action in August 2003. Among other arguments, the City contended that Wilson had failed to exhaust its administrative remedies with respect to the claimed CEQA violations and that Wilson’s second cause of action for declaratory judgment did not present an “actual controversy” between the parties. (See Code Civ. Proc., § 1060.) The City claimed no actual controversy existed because Wilson’s property “is not included within the . . . Project.”
In its opposition to the City’s motion, Wilson did not claim it had raised any CEQA issues at the December 9, 2002 public hearing, but asserted that an unidentified “local businessman” had raised concerns about the depth of the excavation.[4] The opposition did not directly address the City’s contention that Wilson’s second cause of action presented no actual controversy. It did note, however, that under the ADDA, “[Wilson’s] block would be reserved for future development.” (Italics added.)
The City’s reply to Wilson’s opposition pointed out the opposition raised issues regarding the City’s eminent domain power that were not included in the pleadings. The City objected that Wilson had not sought leave to amend its complaint and contended that allowing Wilson to do so would result in unwarranted delay in resolving the validity of the City’s actions.
The trial court denied the City’s motion for summary judgment, and trial was then set to begin on April 26, 2004.
The Trial
Trial in this matter consumed six days. The parties were unable to agree on the issues to be tried, and the City objected that many of the issues Wilson raised were outside the scope of the FAC. Over the City’s objection, the trial court permitted Wilson to call several witnesses.[5]
Wilson examined a number of City officials who testified that construction of the Project was proceeding during the trial, a fact acknowledged by both Donald Wilson and Wilson’s counsel. Indeed, during his testimony, Donald Wilson acknowledged that one of the parking structures had already been built. In fact, during the course of the trial, Wilson requested that the court take judicial notice of the ongoing excavation at the Project site. The City did not object, and the trial court appears to have granted the request.
In support of his claim for declaratory relief, Donald Wilson testified that he objected to the City’s “contracting to condemn” Wilson’s property. Counsel for the City objected that there was no evidence the City had taken any action to take Wilson’s property, and the trial court noted, “That’s a little premature here I think. It hasn’t happened.” Later in the proceedings, the trial court again questioned whether the timing of Wilson’s challenge to the City’s eminent domain power was appropriate.[6] Counsel for the City argued that Wilson’s claim was not ripe because the City had not initiated any kind of condemnation proceedings against Wilson’s property, and she explained that the ADDA imposed no legal obligation on the City to do so. In response, Donald Wilson argued that “this is the only time the court can rule in advance on whether or not I get to keep my property.” (Italics added.) Counsel for the City replied that Wilson would have an opportunity to challenge any possible future condemnation proceeding should such a proceeding be filed, and she reiterated the City’s position that Wilson’s challenge was not ripe. She explained that Wilson’s property was not the subject of the ADDA, save with respect to the Business Points, which were “not an agreement but simply points upon which an agreement is hoped to be negotiated.” In the end, the trial court announced it would rule in Wilson’s favor on the eminent domain issue.
Posttrial Proceedings
After the trial, the parties exchanged briefs. A hearing was set for August 2005, but was continued several times and did not occur until June 15, 2007. At that hearing, the City’s counsel argued that the Project had been completed and thus the case was moot. She noted that Wilson had not sought to stop construction and that the Project had been completed without any need to take Wilson’s property.
The trial court ruled from the bench on Wilson’s CEQA challenge and announced that it would dispose of “the other eight or nine issues” by adopting “the positions put forth by [Wilson] as to each of those issues.” Without further specifying what the issues were, the court directed Wilson to prepare a proposed statement of decision.
On July 30, 2007, Wilson served a proposed statement of decision, to which the City later filed extensive written objections. The City objected that the proposed statement of decision included decisions on issues that were not raised in either the pleadings or during trial. In addition, the City argued declaratory relief was not appropriate because the Project had been completed without the City having any need to acquire Wilson’s property. The City also contended the court lacked jurisdiction because the case had been mooted since “all of the various components of the project contemplated in the ADDA were completed.”
On October 19, 2007, Wilson filed general responses to the City’s objections. Regarding the City’s objection that the proposed decision included unpled claims, Wilson asserted it had made a motion to conform its pleadings to proof at the close of the case. It further asserted the case was not mooted by completion of construction because there was no evidence that “all the performances required under the ADDA are complete.” Alluding to its challenge to the City’s eminent domain authority, Wilson argued that more parking might still be needed on Block 2 and the City “may still be required to attempt to acquire [Wilson’s] property.”
With its general responses, Wilson filed a “(Proposed) Revised Statement of Decision.” In it, Wilson repeated the claim that it had made a motion to conform its pleadings to proof at the close of trial.[7] Addressing the City’s claims regarding justiciability, the proposed revised statement of decision argued that the challenge to the City’s eminent domain authority was ripe “in that the ADDA requires [the City] to try to acquire [Wilson’s] property.” It also rejected the City’s mootness claim, stating: “Despite [the City’s] assertions at the [June] 15, 2007 hearing that the project is complete and that [the City] has no intention to acquire [Wilson’s] property via eminent domain, [the City] refused to stipulate at trial that they would not acquire [Wilson’s] property via eminent domain, (cite transcript) no such stipulation was offered at the [June] 15, 2007 hearing, and there is no limitation in the ADDA that would prevent [the City] from being required to acquire the property at a future time absent a grant of the [d]eclaratory [r]elief sought.” (Italics added.)
The City filed its objections to the proposed revised statement of decision on December 3, 2007. Once again, the City objected that Wilson’s action was not justiciable. It contended declaratory relief was inappropriate because Wilson was not presently under any threat of losing its property. It also noted that the proposed revised statement of decision failed to specify what specific relief it would award to Wilson and what practical effect the decision would have. Finally, it asserted the case was moot because the Project had been built and suggested that the court take judicial notice of that fact.
On April 25, 2008, the trial court filed the statement of decision proposed by Wilson. It found for Wilson on a number of claims, including Wilson’s CEQA challenge, and invalidated the Resolutions. On May 7, 2008, the trial court entered judgment declaring that (1) the Resolutions were invalidated, (2) the City was not authorized to enter into the ADDA, (3) Wilson’s property was not needed for the Project, and (4) there was no limitation in the ADDA that would prevent the City from being required to acquire Wilson’s property in the future absent a grant of declaratory relief. The judgment did not order the City to take any corrective action.[8]
Proceedings in This Court
The City filed a timely notice of appeal. In its opening brief, the City asserted Wilson’s case had been mooted prior to judgment by the completion of the Project and that Wilson’s claim regarding the condemnation of its property presented no actual and justiciable controversy. Wilson did not deny that the Project had been completed but asserted only that the trial court had received no evidence to demonstrate completion.
In light of the City’s arguments, on June 4, 2010, we informed the parties that we intended to take judicial notice of the fact that the Project had been completed prior to issuance of the statement of decision and entry of judgment below. We therefore asked the parties to submit supplemental letter briefs addressing the propriety of judicial notice of this fact. We requested that counsel for the City inform us whether the City had adopted any resolution, ordinance, or other official act certifying completion of the Project.
The City filed a supplemental letter brief and request for judicial notice on June 15, 2010. It attached verified notices of completion for the downtown public parking facility and the “downtown retail-cinema streetscape improvements,” both of which predated entry of judgment below. In addition, it attached certified copies of inspection reports showing final inspection and approval of various interior improvements at the Project site, including the completion of the 20-screen theatre buildout. These showed that most of the improvements were completed and finally approved prior to entry of judgment.
In its supplemental letter brief, Wilson did not contest the propriety of taking judicial notice of these documents. It argued only that these documents do not demonstrate that the Project is complete. We will therefore grant the City’s June 15, 2010 request for judicial notice of these documents. (Evid. Code, §§ 452, subd. (c), 455, subd. (a), 459, subds. (a), (c), (d); see Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 907, fn. 2.)
DISCUSSION
The City argues first that Wilson’s action was not justiciable, and thus the trial court erred by adjudicating it. The City’s argument invokes two different facets of the doctrine of justiciability—mootness and ripeness. First, the City contends Wilson’s claims regarding the validity of the Resolutions were rendered moot by the completion of the Project. The City asserts the trial court erred by ruling on claims for which it could grant Wilson no effective relief. Second, the City contends Wilson’s request for declaratory relief is not ripe. It argues the trial court improperly ruled on the propriety of the City’s power to condemn Wilson’s property because it is undisputed that no condemnation has been attempted.[9]
We agree with the City. Under the rules of justiciability developed by the California courts, it is clear that the action below was nonjusticiable, and the trial court therefore abused its discretion in adjudicating it. We reverse the trial court’s judgment and remand the matter to the superior court with instructions to dismiss the action.
I. General Principles of Justiciability
California courts will decide only justiciable controversies. (County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 813; see 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 21, pp. 84-86.) The concept of justiciability is a tenet of common law jurisprudence and embodies “[t]he principle that courts will not entertain an action which is not founded on an actual controversy . . . .” (California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22 (California Water); see also Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 540 (Stonehouse Homes).) Justiciability thus “involves the intertwined criteria of ripeness and standing. A controversy is ‘ripe’ when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.” (California Water, at p. 22, fn. omitted.) But “ripeness is not a static state” (Consumer Cause, Inc. v. Johnson & Johnson (2005) 132 Cal.App.4th 1175, 1183), and a case that presents a true controversy at its inception becomes moot “ ‘if before decision it has, through act of the parties or other cause, occurring after the commencement of the action, lost that essential character’ ” (Wilson v. L. A. County Civil Service Com. (1952) 112 Cal.App.2d 450, 453).
Witkin provides a succinct summary of these two categories of cases. Unripe cases are “[t]hose in which parties seek a judicial declaration on a question of law, though no actual dispute or controversy ever existed between them requiring the declaration for its determination.” (3 Witkin, Cal. Procedure, supra, Actions, § 21, p. 85.) Moot cases, in contrast, are “[t]hose in which an actual controversy did exist but, by the passage of time or a change in circumstances, ceased to exist.” (Id. at p. 86.) Because the case before us raises problems of both ripeness and mootness, we will lay out some of the basic principles underlying these doctrines.
The ripeness element of the doctrine of justiciability is intended to prevent courts from issuing purely advisory opinions. (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 (Pacific Legal Foundation).) It is “primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy.” (Ibid.) In an action for declaratory relief under Code of Civil Procedure section 1060, an “ ‘actual controversy’ . . . is one which admits of definitive and conclusive relief by judgment within the field of judicial administration, as distinguished from an advisory opinion upon a particular or hypothetical state of facts. The judgment must decree, not suggest, what the parties may or may not do. [Citations.]” (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 117 (Selby).)
A case is considered moot when “the question addressed was at one time a live issue in the case,” but has been deprived of life “because of events occurring after the judicial process was initiated.” (Younger v. Superior Court (1978) 21 Cal.3d 102, 120.) Because “ ‘the duty of . . . every . . . judicial tribunal is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or . . . to declare principles or rules of law which cannot affect the matter in issue in the case before it[,] [i]t necessarily follows that when . . . an event occurs which renders it impossible for [the] court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to formal judgment . . . .’ [Citation.]” (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.) The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief. (Giles v. Horn (2002) 100 Cal.App.4th 206, 227; see also Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1557 [case moot where contract with county had expired and court could not award it to disappointed bidder].) If events have made such relief impracticable, the controversy has become “overripe” and is therefore moot. (California Water, supra, 253 Cal.App.2d at pp. 23-23, fn. 9; see Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132.)
Thus, “ ‘[m]ootness has been described as “ ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ ” [Citations.]’ ” (Medical Board v. Superior Court (2001) 88 Cal.App.4th 1001, 1008, quoting Arizonans for Official English v. Arizona (1997) 520 U.S. 43, 68, fn. 22.) When events render a case moot, the court, whether trial or appellate, should generally dismiss it. (See Lillbask ex rel. Mauclaire v. Conn. Dept. of Educ. (2d Cir. 2005) 397 F.3d 77, 84; see also Consumer Cause, Inc. v. Johnson & Johnson, supra, 132 Cal.App.4th at p. 1183 [trial court should have refused to decide case upon plaintiff’s discovery that allegations of complaint were wrong and defendant was not violating statute at issue].)
II. Wilson’s Challenges to the Validity of the Resolutions Became Moot Before Entry of Judgment
The City contends Wilson’s claims regarding the validity of the Resolutions were moot at the time the trial court decided them. It asserts that completion of the Project deprived the controversy of life and that the trial court’s ruling invalidating the Resolutions gave Wilson no meaningful relief. The City notes the trial court’s ruling did not and could not halt the Project, which had been completed by the time of judgment. Nor did the trial court order preparation of a subsequent EIR or the renegotiation of the ADDA. Thus, the City argues that we must reverse the judgment for lack of jurisdiction. We agree with the City that reversal is required.[10]

To Be Continue As Part II………


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