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1 JONES MAYER Exempt from filing fees pursuant toKimberly Hall Barlow SBN 149902 GovtCode 6103

2 James RTouchstone SBN 184584Denise L Rocawich SBNSBN O IGI11A FILED

3 3777 North Harbor BoulevardFullerton California 92835 MAY 1 6 2011

4 714 4461400 Fax 714 4461448emailskhb@jonesmayercom jrt@jonesmayercom d edWaoiS

5 TPFP TOP6 Attorneys forDefendantsRespondents

CITY OF WHITTIER CITY COUNCIL OF THE7 CITY OF WHITTIER COMMUNITY CONSERVATION

SOLUTIONS ESTHER FELDMAN8

9SUPERIOR COURT OF CALIFORNIA

10COUNTY OF LOS ANGELES CENTRAL DISTRICT

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12 OPEN SPACE LEGAL DEFENSE FUND CaseNo BS128995a nonprofit organization HERIBERTO

13 DIAZ and DANIEL DURAN CITY OF WHITTIER CITY COUNCIL OFTHE CITY OF WHITTIER ESTHISR

14 PetitionersPlaintiffs FELDMAN AND COMMUNITYCONSERVATION SOLUTION S NOTICE

15 v OF DEMURRER AND DEMURRER TOPLAINTIFF AND PETITIONERSFIRST

16 CITY OF WHITTIER etal AMENDED PETITION FOR WRIT OF

RespondentsDefendants MANDATE AND COMPLAINTFOR17 INJUNCTIVE AND DECLARATORY

RELIEF UNDER CCP 526 526A 108518 MATRIX OIL CORPORATION 1086 AND 10945MEMORANDUM OF

CLAYTON WILLIAMS ENERGY INC POINTS AND AUTHORITIES IN SUPPORT19 PUENTE HILLS LANDFILL NATIVE THEREOF

HABITAT AND PRESERVATION P20 AUTHORITY

21 RealPartiesinInterestDATE July 8 2011

22 TIME 930amDEPT 86

23TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD

24PLEASE TAKE NOTICE that on July 8 2011 at930amor as soon thereafter as

25counsel may be heard in Department 86 of the above entitled Court located at 111 North Hill

26Street Los Angeles CA 90012 Defendants and Respondents City ofWhittier City Council of

27the City of Whittier Community Conservation Solutions CCS incorrectly sued as Community

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I

WHITTIER DEFENDANTS DEMURRER TO FIRST AMENDED PETITION AND COMPLAINT

1 Conservancy International and Esther Feldman hereafter collectively the Whittier2 Defendants will demur to Plaintiffs and Petitioners Verified First Amended Petition for Writ

3 of Mandate and Complaint for Injunctive and Declaratory Reliefunder Code of Civil Procedure4 sections 526 526a 1085 1086 and 10945 FAC

5 The Demurrer is based upon this Notice of Hearing on Demurrer and Demurrer the

6 attached Memorandum of Points and Authorities in support thereof the Request for Judicial

7 Notice filed concurrently herewith and upon the records and documents on file in this action and

8 any other evidence and argument that may be presented to and considered by the Court at the

9 hearing

10 DEMURRER TO PLAINTIFFS AND PETITIONERS FIRST AMENDED COMPLAINT

11 AND PETITION

12 The Whittier Defendants demur to Plaintiffs and Petitioners First Amended Complaint

13 and Petition on each of the following grounds

14 First Cause of Action

15 1 The First Cause ofAction fails as to the Whittier Defendants because the action is

16 time barred and the alleged facts do not sufficiently state a cause of action against them Code

17 Civ Proc 43010 e and 863 864

18 Second Cause of Action

19 1 The Second Cause ofAction fails as to the Whittier Defendants because the

20 California Environmental Quality Act does not apply to a preliminary agreement contingent

21 upon later discretionary approvals and CEQA review and such action is time barred Cal Code22 Civ Proc 43010a ande Cal Pub Res Code 21167 d

23 Third Cause of Action

24 1 The Third Cause of Action fails as to the Whittier Defendants as the County

25 determined that there was no violation of the Countys Lobbyist Ordinance and there is no valid

26 basis for the issuance ofawrit ofmandate Code Civ Proc 43010a and e 10945

27 Fourth Cause of Action

28 1 The Fourth Cause of Action fails as to the Whittier Defendants as the County2


1 determined that there was no violation ofthe Countys Lobbyist Ordinance and there is no valid2 basis for the issuance ofawrit ofmandate Code Civ Proc 43010 a and e 10945

3 Fifth Cause of Action

4 1 The Fifth Cause of Action fails as to the Whittier Defendants as Real Parties in

5 Interest as the County determined that there was no violation of the CountysLobbyist6 Ordinance and there is no valid basis for the issuance ofa writ ofmandate Code Civ Proc

7 43010 a ande 10945

8 Sixth Cause of Action

9 1 The Sixth Cause ofAction fails as to the Whittier Defendants because the action

10 is time barred and the alleged facts do not sufficiently state a cause of action against them Code

11 Civ Proc 43010 e and 863 864

12 Dated May 16 2011 JONES MAYER

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14

15 By Aftekkar16

K BERLY HALL BARLOWJAMES R TOUCHSTONE

17 DENISE L ROCAWICH

Attorneys for Whittier Defendants18

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1 TABLE OF CONTENTS

2

MEMORANDUM OF POINTS AND AUTHORITIES 1

3I INTRODUCTION 1

4II STATEMENT OF FACTS 1

5III STATUTORY STANDARD DEMURRER

6IV ANALYSIS 3

7A PLAINTIFFS FIRST AND SIXTH CAUSES OF ACTION

8 FOR AN ALLEGED VIOLATION OF THE PUBLIC TRUSTDOCTRINE AND WHITTIER CITY CHARTER ARE TIME

9 BARRED 3

10 B THE SECOND CAUSE OF ACTION FAILS TO STATE ANY

CLAIM AND IS TIME BARRED 511

1 CEQA Review is Not Required as to the Matrix Contract12 Or its Amendment

13 2 Even in CEQA Review Were Required as to the MatrixContract or the Amendment a Legal Challenge Based

14 Upon CEQA is Now Time Barred

15 C THE THIRD FOURTH AND FIFTH CAUSES OF ACTIONFAIL AS TO THE WHITTIER DEFENDANTS DUE TO

16 THERE BEING NO VIOLATION OF THE COUNTYLOBBYIST ORDINANCE AS FOUND BY THE BOARD

17 AND THE FIFTH CAUSE OF ACTION DOES NOTPROPERLY STATE ANY CLAIM FOR WRIT OF

18 MANDATE 11

19 V CONCLUSION 15

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iWHITTIER DEFENDANTS DEMURRER TO FIRST AMENDED PETITION AND COMPLAINT

1 TABLE OF AUTHORITIES

2 Pages

3 CASES

4 Beauchene v Synanon Foundation Inc88 Cal App 3d 342 1979

5

6Cedar FairLP v City of Santa Clara

2011 Cal App LEXIS 506 Apr 6 2011 8

7Citizens for a MegaplexFree Alameda v City ofAlameda

8 149 Cal App 4th 91 2007 11

9 Citizens for Responsible Government v City of Albany56 Cal App 4th 1199

10

Citizens to Enforce CEQA v City of Rohnert Park11 131 Cal App 4th 1594 200512 City of Chula Vista v County of San Diego13 23 Cal App 4th 1713 1994 11

14 Common Cause v Board ofSupervisors49 Cal 3d 432 1989 15

15Concerned McCloud Citizens v McCloud Community Services Dist

16 147 Cal App 4th 181 2007 6 7

17 Farmers Ins Exchange v Zerin

18 53 Cal App 4th 445 1997

19 Graydon v Pasadena Redevelopment Agency104 Cal App 3d 631 1980 4 5

20Grossmont Union High School Dist v State Dept of Ed

21 169 Cal App 4th 869 2008 3

22 Heckler v Chaney

23470US 821 US 1985 1

24 Parchester Village Neighborhood Council v City of Richmond182 Cal App 4th 305 2010

25McKee v Los Angeles Interagency Metrop Police Apprehension Crime Task Force

26 134 Cal App 4th 354 2005

27 People v Crusilla

2877 Cal App 4th 141 1999 3

iiWHITTIER DEFENDANTS DEMURRER TO FIRST AMENDED PETITION AND COMPLAINT

1 People v Overten28 Cal App 4th 1497 1994 3

2

3 Save Tara v City of West Hollywood45 Cal 4th 116 2008 6 7

4STATUTES

514 Cal Code Regs 15061 b3

6Cal Civ Proc Code 43030a 43070

7

Cal Civ Proc Code 10945c 18

9Cal Evid Code 452 d h

10Cal Evid Code 664 1

11 Cal Pub Res Code 21167 d 11

12 California Code ofCivil Procedure Sections 860 et seq 5

13 California Code of Civil Procedure Section 863 Ruling on Respondents Demurrers andSpecial Motions to Strike filed on January 27 2011 Ruling at p7112227 3

14

California Code ofCivil Procedure Section 10945 115

16California Public Resources Code Section 21167 11

17Civil Procedure Code Section 864 4 5

18 Code Civ Proc 43010

19 Code Civ Proc 43010e

20 Code of Civil Procedure sections 860

21 OTHER AUTHORITIES

22 Los Angeles County Code 2160010 et seq 11

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iiiWHITTIER DEFENDANTS DEMURRER TO FIRST AMENDED PETITION AND COMPLAINT

1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I INTRODUCTION

3 PlaintiffsPetitioners hereafter Plaintiffs claims fail and are subject to demurrer in

4 that Plaintiffs claims of a violation of the Public Trust Doctrine Proposition A or the 1993

5 WhittierDistrict Agreement and the Whittier City Charter are time barred Plaintiffs have

6 further failed to allege any valid basis for an alleged violation of the Los Angeles County

7 Lobbying Ordinance or any writ of mandate for such alleged violation Plaintiffs

8 PetitionComplaint hereafter Complaint is subject to demurrer therefore without leave to

9 amend since the fatal defects cannot be rectified

10 II STATEMENT OF FACTS

11 Plaintiffs continue to allege that they are Open Space Legal Defense Fund Heriberto F

12 Diaz and Daniel Duran a non profit organization oftaxpayers and residents or respectively

13 individual taxpayers and residents who live near the vicinity of the Project site in the City of

14 Whittier FAC at 1 4 5 Their lawsuit challenges the contract entered into on October

15 28 2008 and later amended and reexecuted on April 12 2011 by and between the City of

16 Whittier and Matrix Oil Company FAC at 111 The Matrix contract is a mineral

17 extraction agreement which is still subject to review pursuant to the California Environmental

18 Quality Act and the Citysyet to be approved conditional use permit FAC at 34 See also

19 Whittier Defendants Request for Judicial Notice filed concurrently herewith RJN at

20 Exhibit A Matrix Contract at 61 Plaintiffs claim that the Matrix agreement is a violation

21 ofthe public trust doctrine as applicable to the project site FAC at 1 They assert that the

22 property owned by the City ofWhittier cannot be utilized for mineral extraction activities23 whatsoever FAC at 1 2633 3957 Further they claim that the Matrix contract

24 violates the Whittier City Charter FAC at 1 32 97 105

25 In connection with the Matrix contract the City entered into a contract with Defendants

26 Esther Feldman and Community Conservancy International CCI which later became

27 Community Conservation Solutions in September 2009 and May 2010 for consulting services28

1


1 relating to finalizing approvals which may be required for the carrying out ofthe Matrix contract2 FAC at IT 2 8 9 35 Plaintiffs allege that the Feldman and CCI contracts are invalid in

3 violation of County of Los Angeles code requirements relating to the registration of lobbyists4 and their employers FAC at IT 3538 6596 Plaintiffs seek to have the Matrix Feldman

5 and CCI contracts all declared void FAC at p2223 5 6

6 III STATUTORY STANDARD FOR DEMURRER

7 A party may demur to a pleading when any ground for objection appears on its face or

8 from any matter ofwhich acourt may take judicial notice Code Civ Proc 43010The sole

9 function of a demurrer is to test the legal sufficiency of the challenged pleading Beauchene v

10 Synanon Foundation Inc 88 Cal App 3d 342 344 1979 citing Whitcomb v County of Yolo

11 73 Cal App 3d 698 702 1977 A demurrer is properly sustained when the complaint taken as

12 a whole and reading its parts in context does not state facts sufficient to constitute a cause of

13 action Code Civ Proc 43010eIn reviewing the sufficiency ofa complaint against a

14 demurrer for failure to state a cause ofaction courts consider all material facts properly pleaded

15 in a complaint as admitted but not contentions deductions or conclusions of fact or law Farmer

16 Ins Exchange v Zerin 53 Cal App 4th 445 451 1997 citing Blank v Kirwan 39 Cal 3d

17 311 318 1985

18 Further a court may consider information which is judicially noticeable in ruling on a

19 demurrer Cal Civ Proc Code 43030a 43070 It is proper for this Court for instance

20 to take judicial notice of the official acts of the City of Whittier and the County of Los Angeles

21 by way of public records which are not reasonably subject to dispute and are easily verifiable by

22 reference to sources not reasonably disputable namely the official and public records of this

23 governmental entity Cal Evid Code 452 d h 1280 official record and 1530

24 official writing Notably such records are excepted from the prohibition against hearsay Id25 In addition it is proper and appropriate for the Court to take judicial notice of city

26 resolutions and agreements and other documents which give authority to public officers to act or27 the absence of such authority McKee v Los An eles Intera lenc Metro Police A rehensio

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WHITTIER DEFENDANTS DEMURRERTO FIRST AMENDED PETITION AND COMPLAINT

1 Crime Task Force 134 Cal App 4th 354 361 n3 2005 granting judicial notice of city

2 resolutions and joint powers agreements People v Overten 28 Cal App 4th 1497 1504 19943 granting judicial notice as to signed consent form for peace officers to act throughout city and4 county ofSan Diego The taking ofjudicial notice as to official acts will negate contrary facts5 alleged in the complaint Grossmont Union High School Dist v State Dept ofEd 169 Cal6 App 4th 869 879 2008 Documents published by the government will be judicially noticed7 as an official act People v Crusilla 77 Cal App 4th 141 147 19998 IV ANALYSIS

9 A PLAINTIFFS FIRST AND SIXTH CAUSES OF ACTION FOR AN ALLEGED

10 VIOLATION OF THE PUBLIC TRUST DOCTRINE AND WHITTIER CITY

11 CHARTER ARE TIME BARRED

12 This Court recognized in its prior ruling in this matter on previous demurrers by the

13 parties that the First and Seventh Causes of Action in Plaintiffs initial complaint were governed14 by California Code ofCivil Procedure Section 863 Ruling on Respondents Demurrers and15 Special Motions to Strike filed on January 27 2011 Ruling at p7112227 citing

16 California Commerce Casino Inc v Schwarzenegger 146 Cal App 4th 1406 1420 2007

17 The First and Seventh Causes of Action previously addressed claims that the Matrix Contract

18 violated the Public Trust Doctrine and the Whittier City Charter respectively However the

19 Court further found that Plaintiffs might be able to amend to show that the Matrix Contract had

20 not yet been authorized such that the statute of limitations was not already triggered Ruling at21 p8112225 Further Plaintiffs might be able to amend to show good cause for failing to22 comply with the 60 day notice period Id The Court also clearly recognized that alt the23 heart of these causes ofaction is Petitionerscontention that the agreement between City of

24 Whittier and the RPIs is illegal the crux of both claims is that the agreement regarding oil and

25 gas development of that particular parcel ofproperty is illegal Ruling at p911 12 45

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27 1 Whittier Defendants reserve their claim that Plaintiffs have failed to state any cause of action under the PublicTrust Doctrine or the City Charter However given the Courtsruling on that issue in its order filed on January 27

28 2011 Plaintiffs do not renew those claims in detail except to generally preserve them3


1 Plaintiffs claims fail because they do not address the deficiencies identified by the Court as well

2 as failing to satisfy the statute oflimitations as set forth below Plaintiffs causes ofaction are3 not significantly changed in the FAC except that Plaintiffs Seventh Cause of Action for an

4 alleged violation ofthe Whittier City Charter is now Plaintiffs Sixth Cause ofAction in the5 FAC

6 Plaintiffs FAC does not resolve the above issues First Plaintiffs still allege that the

7 Matrix Contract was entered into on October 28 2008 more than two years ago The Courts

8 Ruling questioned whether Plaintiffs could somehow allege whether such agreement had not9 been authorized pursuant to California Code ofCivil Procedure Code Section 864 However

10 Section 864 explicitly provides that contracts shall be deemed authorized as of the date of11 adoption by the governing body of the public agency ofa resolution or ordinance approving the12 contract and authorizing its execution Cal Civ Proc Code 864 Plaintiffs admit by their

13 allegations that the Matrix Contract was authorized within the meaning of Section 864 on

14 October 28 2008 FAC at 1 See also FAC at 28 virtually identical to original 33

15 31 identical to original 34 32 identical to original 35 45 99 identical to original

16 98 IT 100 almost identical to original 99 103 identical to original 101

17 New allegations found in the FAC do not undermine this fundamental and unavoidable18 legal conclusion Plaintiffs now allege that the City amended and reexecuted the Matrix19 Contract on April 12 2011 FAC at 33 However a mere time extension of a contract

20 subject to the validation statutes does not serve to renew a longdead cause of action Notably21

2 Indeed the only change between the original Complaint and the FAC in paragraph 1 is the addition of an22 11legation that the lease was extended on April 12 2011

See Graydon v Pasadena Redevelopment Agency 104 Cal App 3d 631 1980 in which the appellant challenged23 the award of a construction project to another company the real partyininterest The original action was filed more

than 60 days after the contract had been awarded The appellate court stated thatthe central issue presented on24 appeal is whether this action is barred by the limitation provisions of Code of Civil Procedure sections 860 through

870 Idat 635

25Section 864 provides that for the purposes of said chapter 9 oftitle 10 of part 1 of the Code of

26 Civil Procedure contracts shall be deemed to be in existence upon the date of the authorizationand that contracts shall be deemed authorized as of the date of adoption by the governing agency

27 or the public agency of resolution approving the contract and authorizing its executionSection 863 provides that if no action has been brought by the public agency pursuant to chapter 9

28 of title 10 ofpart 2 of the Code of Civil Procedure to determine the validity of the matter within 604


1 Plaintiffs do not allege that their legal claims are in any way changed by the provisions of the

2 amendment to the Matrix Contract In fact Plaintiffs cannot so allege since their claims arise

3 not from the mere time extension of the agreement but from the initial adoption and execution o

4 the Matrix Contract more than two years ago It completely undermines and negates the very

5 purpose of the validation provisions in California Code of Civil Procedure Sections 860 et seq

6 to allow Plaintiffs to bring the within action more than two years after the action about which

7 they claim namely the entering into of a contract with Matrix

8 Second Plaintiffs now allege that the Matrix Contract is subject to conditions which they

9 claim must be satisfied before the WhittierMatrix Contract can commence operations The

10 above quoted provisions of Section 864 however make no legal distinction between a contract11 that is executed but subject to certain conditions before some ofits terms or obligations take12 effect Indeed a review ofthe contract makes clear that the lease is fully operative in that Matrix

13 is required to pay lease payments to the City while it undertakes to satisfy other provisions of the14 lease that must be fulfilled before they can construct drilling facilities Request for Judicial

15 Notice RJN filed concurrently herewith Exhibit A IT 21 The only criteria under Section 86416 is the execution ofan agreement which was satisfied here on October 28 2008 It was at that17 time that Plaintiffs causes ofaction accrued and should have been diligently pursued by

18 Plaintiffs within the required statutory time period

19 B THE SECOND CAUSE OF ACTION FAILS TO STATE ANY CLAIM AND IS

20 TIME BARRED

21 Plaintiffs Second Cause ofAction is for an alleged violation ofthe California

22 Environmental Quality Act FAC at IT 5864 They claim that the City failed to conduct23 environmental review with respect to the amendment to the Matrix Contract on April 12 201124 FAC at 1159 Their Second Cause of Action completely fails on several related grounds25

days after the existence of a matter any interested person may bring an action within the time26 prescribed by section 860ie60 days to determine the validity of the matter

27 Id at 104 Cal App 3d at 640 41 Merely extending some time periods in such an agreement cannot anddoes not change the date ofaward of the contract from which the validation deadline must and does run

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1 1 CEQA Review is Not Required as to the Matrix Contract or its Amendment

2 Neither the Matrix Contract nor the amendment requires CEQA review at this point

3 Plaintiffs cite the opinion in Save Tara v City of West Hollywood 45 Cal 4th 116 132 2008

4 for their claim that the Matrix Contract ispresently subject to CEQA because it commits the

5 public agency to the project FAC at 63 However Plaintiffs misread and misapply the

6 opinion and facts in Save Tara The Court in Save Tara discussed the opinioninMcCloud

7 wherein the court relied in part on the agreementslack of information as to the springs that

8 would be exploited the site of the bottling plant how the water would be transported and other

9 details essential to environmental analysis of the project Without that information the court

10 concluded preparation of an EIR would be premature Any analysis of potential environmental

11 impacts would be wholly speculative and essentially meaningless Save Tara at 132 quoting

12 Concerned McCloud Citizens v McCloud Community Services Dist 147 Cal App 4th 181

13 197 2007 Similar to McCloud there are many aspects ofthe oil and gas operations which are14 not known and cannot be properly evaluated at this time In fact it was entirely premature to

15 evaluate CEQA impacts at execution of the lease where as Plaintiffs acknowledge no

16 Conditional Use Permit identifying the specific project location footprint scope and conditions

17 had yet been sought much less processed FAC at 34 Ofparticular note in Save Tara was

18 the fact that the City had devotedsubstantial public resources to the agreement which is not

19 alleged here Save Tara at 134137 In fact the Supreme Court expressly rejected the broad20 rule in Save Tara that any agreement conditional or unconditional would be an approval

21 requiring prior preparation of CEQA documentation if at the time it was made the project was22 sufficiently well defined to provide meaningful information for environmental assessment Id23 emphasis added internal quotations omitted Specifically the Supreme Court recognized that24 privately conducted projects often need some form of government consent or assistance to get25 off the ground sometimes long before they come up for formal approval If having high26

27 4 Real Party in interest Matrix has expended significant funds in reliance on the validity of the lease agreementhowever including paying thousands of dollars m lease payments filing for a conditional use permit and

28 undertaking the very CEQA analysis which the Petition complains is absent6


1 esteem for a project before preparing an environmental impact report EIR nullifies the process

2 few public projects would withstand judicial scrutiny since it is inevitable that the agency3 proposing a project will be favorably disposed toward it Id internal quotations omitted4 Further the Court acknowledged that cities often reach purchase option agreements

5 memoranda of understanding exclusive negotiating agreements or other arrangements with

6 potential developers especially for projects on public land before deciding on the specifics of a7 project Such preliminary or tentative agreements may be needed in order for the project8 proponent to gather financial resources for environmental and technical studies to seek needed9 grants or permits from other government agencies or to test interest among prospective

10 commercial tenantsRequiring agencies to engage in the often lengthy and expensive

11 process of EIR preparation before reaching even preliminary agreements with developers could12 unnecessarily burden public and private planning CEQA review was not intended to be only an13 afterthought to project approval but neither was it intended to place unneeded obstacles in the14 path of project formulation and development Id at 137

15 In contrast are the facts in Citizens for Responsible Government v City of Albany 56

16 Cal App 4th 1199 In Citizens the City entered into a development agreement which when17 approved by the voters provided a developer with a vested right to develop The Court found18 that the city had contracted away its power to consider the full range ofalternatives and19 mitigation measures required by CEQA and had precluded consideration of a no project20 option Citizens for Responsible Government supra 56 CalApp4that pp 12211222 Here21 however as admitted by Plaintiffs the Matrix Contract is subject to discretionary approval of a22 conditional use permit by the City which includes full CEQA review FAC at 34 As part

23 of that discretionary review process the City would consider all alternatives including a no24 project alternative and has not otherwise committed itself to any particular outcome with respect25 to the conditional use permit review See also McCloud 147 CalApp4that 196 agreement not26 project approval because agencys discretion not restricted27 In Save Tara the Court specifically found that certain facts suggested that the City had28

7


1 committed itself to the project The resolutions of approval affirmatively state the intent to

2 further the project and that public input would only go to the design of the project Save Tara

3 at 141 Further the City lent the developer half a million dollars which loan was not contingent

4 upon CEQA approval Id There was no provision for repayment if the project was not

5 approved and the Court found that the sum at issue was no trivial amount for such a small city6 for which to risk complete loss In addition a later version of the agreement with the city in

7 Save Tara limited the Citysdiscretionary authority to even deny the project leaving it up to

8 only the reasonable determination ofthe City Manager that CEQA had been satisfied Id

9 Finally the Court noted that the City had made public announcements that it was going to

10 proceed with the project and it took actions in furtherance oftenant relocation Save Tara at11 142 These circumstances all amounted to a determination that the city had committed itself to a

12 particular course ofaction these circumstances are simply not present here13 In Cedar Fair LP v City ofSanta Clara 2011 Cal App LEXIS 506 3740 Apr 6

14 2011 the Court ofAppeal just last month found that a term sheet agreement for a proposed15 stadium despite being detailed did not commit the city to a particular course ofaction requiring16 CEQA review where the city and redevelopment agency retained sole discretion to make CEQA17 decisions and that a no project alternative specifically was still available The Court recognized18 thatthe negotiation of a complicated multiparty development agreement can involve a long19 process of hammering out a multitude of issues Id The Court ultimately held as follows20 The modern phenomenon ofpublicprivate partnerships for development makes

the time of approval under CEQA more difficult to ascertain since a local21 agency may be a vocal and vigorous advocate of a proposed project as well as an

approving agency But an agency does not commit itself to a project simply by22 being a proponent or advocate ofthe project City of Vernon v Board of

Harbor Comrs 1998 63 Cal App 4th 677 688 74 Cal Rptr 2d 49723 disapproved on other grounds in Save Tara supra 45 Ca14th 116 131 fn 10

Tara supra 45 Cal 4th 116 131 fn 10 Parchester Village Neighborhood24 Council v City ofRichmond 2010 182 Cal App 4th 305 313 105 Cal Rptr

3d 736 We return to the crucial question whether the term sheet viewed in25 light ofall the surrounding circumstances as a practical matter committed the

City or the Redevelopment Agency to the project as a whole or to any particular26 features so as to effectively preclude any alternatives or mitigation measures that

CEQA would otherwise require to be considered including the alternative of not27 going forward with the project Citation Save Tara supra 45 Cal 4th at pp

132 139 Tara supra 45 Cal 4th at pp 132 139 In this case the term sheet28

8WHITTIER DEFENDANTS DEMURRER TO FIRST AMENDED PETITION AND COMPLAINT

1 even considered together with the alleged circumstances did not preclude anyalternative or mitigation measure that would ordinarily be part of CEQA review

2

3 Id at 4445 Similar to the term sheet in Cedar Fair the Matrix Contract is subject to full review

4 of a conditional use permit application as well as CEQA Further no alternatives or mitigation

5 measures are in any way precluded from being considered as part of those processes The fact

6 that some of the specifics ofa stadium proposal or an oil and gas extraction proposal are

7 formalized in writing does not change this fact or trigger CEQA review itself

8 Similarly CEQA review was found not to apply yet with the mere entering into a

9 Memorandum of Understanding Citizens to Enforce CEQA v City of Rohnert Park 131 Cal

10 App 4th 1594 2005 cited in Parchester Village Neighborhood Council v City ofRichmond

11 182 Cal App 4th 305 2010 In Rohnert Park a city entered into a MOU with an Indian tribe

12 for a source of funds as to possible capital improvements as to a future proposed casino

13 Citizens at 15971598 The Citizens Court held that the MOU was not a project for purposes

14 of CEQA because the agreement merely authorized a funding mechanism Citizens at 1601

15 The reason for the above findings of CEQA review not being required as to preliminary

16 steps is statutorily clear and consistent with the overall purpose and specific provisions of17 CEQA The CEQA Guidelines provide that an activity is exempt from CEQAwhere it can be

18 seen with certainty that there is no possibility that the activity in question may have a significant

19 effect on the environment 14 Cal Code Regs 15061 b3 There is simply no

20 possibility of any significant effect on the environment from a contract that is contingent upon21 the review and approval of a conditional use permit and obtaining release from protected area22 status by another agency all of which will be subject to full CEQA review Nor can the23 amendment to the lease be said to have any possibility ofhaving a significant effect on the

24 environment where it merely extends the primary lease term and makes provision for rent during25 the extended term RJN Ex D

26 111

27 111

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1 2 Even if CEQA Review Were Required as to the Matrix Contract or the

2 Amendment a Legal Challenge Based upon CEQA is Now Time Barred

3 Assuming arguendo that CEQA somehow applied despite the above discussion the

4 time has long since passed for Plaintiffs challenge of the Matrix Contract on CEQA grounds

5 As set forth above the agreement about which Plaintiffs complain is the Matrix Contract entered

6 into more than twoyears ago on October 28 2008 California Public Resources Code Section

7 21167 provides that when someone asserts anaction or proceeding alleging that a public8 agency has improperly determined that aproject is not subject to CEQA and a notice hasg Y p j subject Q

9 not been filed to that effect the action or proceeding shall be commenced within 180 days from

10 the date of the public agencysdecision to carry out or approve the project Cal Pub Res Code11 21167 d Plaintiffs therefore were required to file any cause ofaction relating to CEQA12 within 180 days after October 28 2008 The time for such a challenge has long since passed

13 Plaintiffs allege that an amendment to the Matrix Contract extending the time for the

14 agreement was executed on April 12 2011 However this allegation does not save Plaintiffs15 already time barred CEQA cause ofaction As discussed above Plaintiffs do not allege that16 there is anything particular to the amendment which differently or separately violates CEQA as17 compared to the execution ofthe Matrix Contract itself In fact Plaintiffs cannot so claim as the18 amendment was merely a time extension of the Matrix Contract The mere extension of the

19 Matrix Contract does not operate to renew a long barred cause ofaction under CEQA and a time20 extension is not in and of itself aviolation ofCEQA See egCitizens for a MegaplexFree

21 Alameda v City ofAlameda 149 Cal App 4th 91 110 2007 Citys filing ofnotices of22 determination relating to subsequent approvals did not extend limitations period for CEQA23 challenge which ran from notice of determination Moreover as noted in the FAC at24 Paragraph 61 the project here the lease approval is the whole of an action not each separate25 governmental approval Thus the approval of the extension which did not change the project26 of the lease in any way material to the issues here did not somehow create a separate and new27 project requiring independent analysis or revive the statute of limitations See also City of28

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1 Chula Vista v County of San Diego 23 Cal App 4th 1713 1994 180day statute of

2 limitations for CEQA challenge ran from approval of agreement not execution of agreement

3 more than two years later

4 C THE THIRD FOURTH AND FIFTH CAUSES OF ACTION FAIL AS TO THE

5 WHITTIER DEFENDANTS DUE TO THERE BEING NO VIOLATION OF THE

6 COUNTY LOBBYIST ORDINANCE AS FOUND BY THE BOARD AND THE

7 FIFTH CAUSE OF ACTION DOES NOT PROPERLY STATE ANY CLAIM FO

8 WRIT OF MANDATE

9 Plaintiffs Third Fourth and Fifth Causes of Action relate to the Whittier Defendants

10 alleged violations ofLos Angeles County Code 2160010 et seq Plaintiffs admit that the

11 County ofLos Angeles has determined that there has been no violation of its Lobbyist12 Ordinance FAC at 36 On that basis alone Plaintiffs Third and Fourth Causes ofAction

13 fail Plaintiffs are simply not entitled to any determination that there is any alleged waste of

14 public funds or illegal expenditure and they are not entitled to any disgorgement of funds15 As to Plaintiffs Fifth Cause of Action they claim that the Countysdetermination that

16 there was no violation of its Lobbying Ordinance was not supported by substantial evidence and

17 that they are thus entitled to a writ ofmandate FAC at 1118496 However the actual18 allegations in Plaintiffs Fifth Cause of Action assert that the County Executive Officer is19 required to collect evidence once a charge is made as a violation of the Lobbying Ordinance20 Plaintiffs further assert that the Executive Officer failed to provide adequate findings because

21 there are no specifics in the written determination letter which reveal the contents of evidence22 considered FAC at p 20 11 1820 The Executive Officer also purportedly applied the23 wrong legal standard because the Executive Officer considered how much time was spent24 lobbying not whether a contract had been entered to lobby FAC at p 20 11 2123 The25 decision also purportedly flailed to attach evidence to the report to the Board or provide an26 adequate summary FAC at p 20 11 2425 These allegations however do not meet the27 5 The Whittier Defendants are not named as Respondents in the Fifth Cause ofAction but are Real Parties in28 Interest as to that Cause of Action and demurrer in their capacity as Real Parties


1 standards of California Code of Civil Procedure Section 10945which requires that it be shown

2 that the findings are not supported by substantial evidence in the light of the whole record

3 Cal Civ Proc Code 10945c

4 Plaintiffs allegations are irrelevant to this legal standard and do not establish any valid

5 legal grounds for a writ ofmandate to be issued by this Court Plaintiffs allege as identified6 above that there are inadequate findings of the Executive Officer based solely upon the claim

7 that the content of the evidence considered by the Executive Officer is not contained within the

8 findings Further Plaintiffs claim that there is no evidence attached to the report of the9 Executive Officer to the Board of Supervisors There is no such legal requirement a decision

10 does not lack substantial evidence simply because it does not attach or refer to every single shred

11 ofevidence supporting the decision or considered by the one making the decision In fact this12 Court reviews aquasijudicial administrative decision in the light of the whole record not13 merely based upon citations to evidence in a statement of the final decision Cal Civ Proc14 Code 10945c

15 The alleged deficiencies in the Countysdecision are not in line with the required duties16 of the Executive Officer Section2160150ofthe County Code requires that the Executive

17 Officer investigate any charge ofa violation of the Lobbying Ordinance RJN Ex B18 2160150c The Executive Officer has the authority to receive evidence relating to a19 charged violation and must make determinations as to violations of this chapter Id The20 Executive Officer must further give the charged individual or entity notice and an opportunity to21 respond to the charge Finally the Executive Officer shall make a determination as to the22 accuracy ofthe charge and shall present this determination along with the reasons for the23 determination to the board of supervisors None of the allegations set forth above demonstrate

24 any failure of the Executive Officer to comply with these requirements of the County Code25 Instead the actual facts are precisely to the contrary The Executive Officer submitted a26 memo to the Board of Supervisors dated February 22 2011 informing the Board ofhis27 determination that the charges against Esther Feldman Feldman Associates Community

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1 Conservancy International and the City of Whittier relating to an alleged violation of the2 Countys Lobbyist Ordinance were not substantiated RJN Ex C p 3 Notably the3 Executive Officer indicated that he reviewed the activities and communications by Ms Feldman4 with the County pursuant to her contract with the City and prior to registration he reviewed the5 fee schedule to Ms Feldmanscontract with the City invoices for services provided and6 interviewed Ms Feldman and Stephen Helvey ofthe City ofWhittier

7 Based on a review of documents and information including the above the Executive

8 Officer concluded that the communications that Ms Feldman did have with County officials

9 prior to registration were of the nature of fact finding research and clarification for the City of10 Whittier not of the nature of promoting supporting influencing modifying opposing or11 delaying any official action RJN Ex C p3 The Executive Officer therefore complied12 with the requirements of Section2160150 in that he received evidence considered it permitted13 those charged with notice and an opportunity to respond made a determination whether the Code14 was violated and presented that determination along with reasons to the Board There is no15 failure in any of his duties as alleged by Plaintiffs The fact that he may not have attached16 specific evidence to the report does not render it legally deficient or alone render the findings17 not supported by substantial evidence

18 Similarly Plaintiffs make the petty claim that the findings do not specifically refer to the19 September 2009 and May 2010 contracts between Feldman and the City despite these having20 been purportedly provided to the Executive Officer FAC at 1196 In fact the findings clearly21 list certain relevant documents reviewed by the Executive Officer and indicate that his review of

22 documents merely included the review ofthe listed documents RJN Ex C p 3 and that the23 review wasbased on the documents received RJN Ex C p 2 emphasis added These24 statements do not lead to an inference that the Executive Officer did not review the contracts

25 among other documents In fact the decision states that the fee schedule for Ms Feldmans26 contract was reviewed It is hardly rational to assume that the Executive Officer reviewed an

27 exhibit to the contract but did not review the contract itself Moreover this Court can presume

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13WHITTIER DEFENDANTS DEMURRER TO FIRST AMENDED PETITION AND COMPLAINT

1 that an official duty was carried out Cal Evid Code 664 It is presumed that official duty

2 has been regularly performed

3 Plaintiffs allegations do not assert that the Executive Officer did not review the contracts4 or that he did not carry out his duties under the CountysCode to receive all evidence given to5 him relating to the charged violation of the Lobbyist Ordinance Instead Plaintiffs merely claim6 that the written decision ofthe Executive Officer does not specifically state that the contracts

7 were reviewed There is no legal requirement as to the contents of the decision in that regard

8 and thus no legal basis for this Court to issue any writ of mandate9 Plaintiffs also claim that the Executive Officer somehow applied the wrong legal standar

10 to the alleged violation because the Executive Officer purportedly did not consider the mere11 entering into of a contract by Feldman and the City In the decision however the Executive12 Officer quotes the requirements of the County Lobbyist Rules at length In particular the13 Executive Officer lists the requirements necessary to be a lobbyist under the CountysCode14 First an individual must be employed or contract to communicate with any County official

15 for the purpose of influencing official County action ifa substantial or regular portion ofthe16 activitiesfor which he or she receives such compensation is for the purpose ofinfluencing17 official County action To determine whether the latter italicized provision is met the County18 looks to two tests the amount of compensation received in any calendar month for actually

19 influencing official County action or the amount ofcontact the individual has with county20 officials actually engaging in direct communication for the purpose of influencing official21 County action RJN Ex C p 2 This is language and standards taken directly from the22 CountysLobbying Rules The County certainly can set forth in adopted rules those23 circumstances under which it chooses to prosecute a violation of its own Code See eg

24 Heckler v Chaney 470 US 821 831 US 1985 an agencysdecision not to prosecute or

25 enforce whether through civil or criminal process is a decision generally committed to an26 agencys absolute discretion

27 Finally the remedy sought by Plaintiffs is unwarranted as a matter of law Plaintiffs ask28

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1 this Court not for a mere overturning of the Countysdetermination that there is no violation of2 its Lobbying Ordinance but that the County be compelled to declare that the Feldman and3 Whittier Defendants violated the County Lobbying Registration requirement FAC at 95

4 However with respect to a writ of mandate a court may not substitute its discretion for that of5 legislative or executive bodies in matters committed to the discretion of those branches6 Similarly although a court may order a local legislative body to perform a nondiscretionary7 ministerial act it may not control a local boardsdiscretion Common Cause v Board of8 Supervisors 49 Cal 3d 432 445 19899 Moreover it is wholly within the Countys discretion what penalty if any to impose

10 Plaintiffs do not allege that even if the County had found a violation of the Code the County11 was not within its discretion in imposing no penalty as permitted by its own Code Notably12 Plaintiffs seek disgorgement of funds which is not a remedy provided by Section216015013 FAC at 83 p 23 at 89

14 V CONCLUSION

15 For all of the foregoing reasons the Whittier Defendants respectfully request that the16 Court grant their demurrer without leave to amend Plaintiffs cannot amend their17 PetitionComplaint to cure the fatal defects to their pleading identified herein18 Dated May 16 2011 JONES MAYER

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21 ByKIMBERLY ALL BARLOW

22 JAMES R TOUCHSTONEDENISE L ROCAWICH

23 Attorneys for Whittier Defendants24

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Open Space Legal Defense Fund v City of Whittier et aLLASC Case No BS 128995

1 PROOF OF SERVICE

2 STATE OF CALIFORNIA COUNTY OF ORANGE

3 I am employed in the County of Orange State of California I am over the age of 18 and nota party to the within action My business address is 3777 North Harbor Boulevard Fullerton CA4 92835

5 On May 16 2011 I served the foregoing document described as CITY OF WHITTIERCITY COUNCIL OF THE CITY OF WHITTIER ESTHER FELDMAN AND

6 COMMUNITY CONSERVATION SOLUTION S NOTICE OF DEMURRER ANDDEMURRER TO PLAINTIFF AND PETITIONERSFIRST AMENDED PETITION FOR

7 WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORYRELIEF UNDER CCP 526 526A 1085 1086 AND 10945MEMORANDUM OF POINTS

8 AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in said action byplacing X a true and correct copy or the original thereof enclosed in a sealed envelope

9 addressed as indicated below and delivered by one or more of the means set forth hereafter to the10

addressees

11 Geralyn L Skapik Esq Eric A Woosley EsqMark C Allen III Esq Jordan T Porter Esq

12 Claremont Land Group Victor G Zilinskas

250 W First Street Suite 330 Law Office of Eric A Woosley13 Claremont CA 91711 1602 State Street

909 3984404 Santa Barbara CA 9310114 909 3981883 Fax 805 8971830

Attorney for Plaintiffs 805 8971834 Fax15 Attorneys for Real Parties In Interest

16 Mark Goldowitz Esq ANDREA SHERIDAN ORDIN County CounselPaul Clifford Esq RICHARD D WEISS Assistant County Counsel

17 CALIFORNIA ANTISLAPP PROJECT SCOTT KUHN Senior Deputy County Counsel2903 Sacramento Street 648 Kenneth Hahn Hall of Administration

18 Berkeley CA 94702 500 West Temple Street510 4869123 x301 Los Angeles California 900122713

19 510 4869708 213 9741852Attorneys for Defendant Esther Feldman and 213 613 4751 Fax

20 Community Conservation Solutions Attorneys for County ofLos Angeles

21 Via Mail By depositing said envelope with postage thereon fully prepaid in the United22

States mail at La Habra California I am readily familiar with the firmspractice ofcollection and processing correspondence for mailing Under that practice it would be

23 deposited with the US Postal Service on that same day with postage thereon fully prepaid atFullerton California in the ordinary course ofbusiness I am aware that on motion of the24 party served service is presumed invalid if postal cancellation date or postage meter date is

more than one day after date ofdeposit ofmailing in affidavit25

Personal Delivery I caused the above referenced documentsto be delivered to the26 addresseesset forth above

27 X Overnight Delivery I caused the above referenced documentsto be delivered to anovernight delivery service for delivery to the addresseesset forth above28

Open Space Legal Defense Fund v City of Whittier et aLLASC Case No BS 128995

1

Via Facsimile I caused the above referenced documentsto be transmitted to the named2 personsto the fax numbers set forth above

3 X State I declare under penalty of perjury under the laws of the State ofCalifornia that theabove is true and correct

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Executed on May 16 2011 at Fullerton California5

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