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Chapter IV - Sue the Bastards: Procedure
1. Is your case strong enough?
Well, they approved the project, as you knew they would. It’s still a piece of crap, as the only changes made were token. You’ve studied the law and the facts and built your case at every step of the way. Now, you have to decide whether you have grounds to file a lawsuit to invalidate the approval of the project.
Was CEQA or other law violated? Was there clear-cut violation? The law provides a strong “presumption of validity” to the decisions and actions of legislative bodies (city councils and boards of supervisors), so ask yourself if they screwed up enough for you to lay down a strong case before the judge. Close calls almost always go to the city or county. Compare your case to the published appellate decisions you’ve read. Does yours seem as strong? In making your decision, don’t overlook your own bias and strong feelings. The judge probably won’t share them, and may even be biased in the other direction. Play devil’s advocate, listen to the opponents’ arguments, and try to shoot down your own arguments yourself.
CEQA, unfortunately, does not prohibit environmental destruction. So what they approved, even though an abomination, may in fact be legal. If they screwed up procedurally, was their error “prejudicial,” or mere “harmless error?” If it wouldn’t have changed the final result, the courts won’t correct it. If you attack the EIR, you’ll have to convince a judge that its deficiencies were significant, and caused CEQA’s purposes to be violated. If you attack any of their findings as unsupported, remember you’re up against the “substantial evidence test,” which means that even one good reason will sustain the finding.
Assuming you win your lawsuit, will that get you anywhere? Will it force real changes in the project or just changes in the paperwork? Will it force the developer to curb his or her greed and cooperate in improving the final result? Will it serve as a warning shot over the heads of the other developers waiting in the wings? When reported in the press, will it help your cause in general? Think about it.
2. The writ of mandate
Okay. So you have a strong case. This time they screwed up good, thinking nobody would call them on it. You look around and find that it’s now up to you: if you don’t do something, nobody is going to. The development-industry predators are circling overhead. The bulldozers are ready to spoil irreversibly what nature took millions or billions of years to produce, just to make a few more bucks for a greed bag. You’re not at all sure you can win, but you’ve decided you just can’t sit by and watch greed trample a special part of the earth you’ve come to value, love, and want to see passed on. You’re going to put up a fight.
After the approval, you’ve got only 30 days to file a petition for writ of mandate in superior court (Public Resources Code §21167(b)(e)), and it’s probably December, when the developers know it’s tough for people to get a lawsuit together. CCP, either §1085 or §1094.5, provides for writs of mandate. A writ of mandate is a court order, in this case to the city council or board of supervisors, invalidating their approval of the development and ordering them to follow the law in future. This is the mechanism you use to shoot down a development approval in court.
CCP §1085 provides for “traditional” writ of mandate, while §1094.5 provides for “administrative” mandate. Which type of writ you ask the court to grant depends on the type of action you’re challenging. The “traditional” writ of mandate is needed to overturn approval of “legislative” acts, approvals the city council or board of supervisors made acting in their capacity as a legislative body. These are normally “broad brush” approvals like general plans or general plan amendments, specific plans or amendments, zoning or rezoning ordinances that affect large areas of land owned by different people, although a legislative act sometimes applies to a single development only. On the other hand, if what they approve is “adjudicatory” in nature—applying the law or regulations to a particular set of facts—such as a subdivision map, site-development permit, conditional-use permit, or variance, you need an “administrative” writ of mandate to shoot it down. If, as often happens, the development approval includes both legislative and adjudicatory actions, you will ask for both traditional and administrative writs of mandate.
How does this distinction affect your lawsuit? First, right on the front page of your petition for writ of mandate—the opening shot in your lawsuit—you will indicate the type of writ you’re asking for, either under CCP §1085 or CCP §1094.5, or both. If you’re unsure of which type you need, you put down both.
Second, the distinction affects the “standard of review” the court will use in scrutinizing the actions of the city council or board of supervisors, and thus what you will have to allege and ultimately prove in your lawsuit. For legislative acts, the court will determine if those acts were “arbitrary, capricious, or wholly lacking in evidentiary support.” In order to get your writ of mandate, you have to allege and ultimately show that they were—usually not easy to do. Legislative bodies can do just about anything they feel like so long as they give a reason and base it on some evidence. However, sometimes the developers have turned them into such mindless zombies, or pumped up their egos to the point where their actions fail even this lenient standard.
For adjudicatory acts, the court will check whether the city council or board of supervisors (1) acted within their lawful jurisdiction, (2) provided a fair hearing, and (3) did not prejudicially abuse their discretion. Number 3, prejudicial abuse of discretion, is where they usually screw up, which they can do by (1) not following the procedures required by law, (2) not supporting their decision with findings, or (3) making findings that are not supported by substantial evidence in the record. In order to invalidate an adjudicatory act, then, your lawsuit will have to allege and ultimately prove that it failed one or more of the above tests. “Prejudicially,” by the way, means you will have to show that whatever error they committed would have made a difference to you, and wasn’t mere “harmless error.”
Again, for mixed approvals, or when it’s not clear which type you have, you should allege that it was arbitrary and capricious, or wholly lacking in evidentiary support, and that it failed one of the tests for adjudicatory acts—for example, that the city council failed to follow the procedures required by law.
Also, whether it’s a traditional or administrative writ, you want a “peremptory” writ of mandate rather than an “alternative” writ of mandate. (Code of Civil Procedure §1087.) The alternative writ is where you go to the judge and get the writ first, commanding the city or county to reverse their approval or (in the alternative) come to court and show cause why they shouldn’t have to. I.e., writ first, trial after.
But you want the peremptory, where you have the trial first and then get the writ (if you win), because this allows time to prepare the record of proceedings (here, the evidence), which must be ready before the trial. So you’ll be proceeding under Code of Civil Procedure §1088.5, which you’ll also write on the cover page of your lawsuit along with the words “Petition for Peremptory Writ of Mandate.” When you ultimately get the peremptory writ of mandate, it simply commands them to invalidate their approval, period.
3. Your lawsuit: 19 essential steps
Here are the steps in your law suit. Most are determined by CEQA and the Code of Civil Procedure, which are state law, so they apply to all law suits filed in California. Other procedures are based on the state rules of court, which also apply to everybody. Still others are determined by your local rules of court, so they could differ from jurisdiction to jurisdiction. You can download your local rules of court online.
If you ultimately lose your case in superior court (trial court) and decide to appeal, you will need to assemble “conformed” copies (stamped by the court clerk) of all the documents that have been filed in the superior court, so that the appellate court (court of appeal) can review them. So it’s a good idea to get a clean, conformed copy of every document you file or the opposition files and file it away for that rainy day. You also have to prepare two indexes of these documents, one chronological and one alphabetical. (California Rules of Court, Rules 5.1(c), and 9(d).) To make that task easier when the time comes, as well as to help you keep your papers organized now, you can start a log, listing the exact title of every paper filed, the date it was filed, and the number of pages in it. Put this information into a data base file on your computer.
STEP 1—PREPARING THE PETITION FOR WRIT OF MANDATE
Draft a “petition for writ of mandate.” You can use the sample petition included with this book as a guide, adapting it to the specifics of your case. The petition is like a complaint in a normal civil lawsuit. The object is to set forth “ultimate legal and factual conclusions”: they are guilty of violating the law because they did this, etc. You don’t have to prove it at this point, just allege it. Your two main concerns are that you allege every possible violation of law that you can think of, because you normally can’t add allegations later, and that you make your petition “demurrer proof.” A demurrer is a legal paper the city/county or developer may file in response to your petition, seeking to have it thrown out of court without even looking at the evidence in the record, and before you even get a trial. The court may grant a demurrer if your petition “fails to state a cause of action,” meaning that what you allege, though possibly true, doesn’t amount to a violation of any law or entitle you to a writ of mandate. For example, if your petition alleges that the board of supervisors took campaign contributions from the developer and then approved his project, it might invite a demurrer because the board’s actions, though reprehensible, is not against the law.
So your petition must include valid “causes of actions,” or allegations in the form “the board did this……..which violates the law.” It’s not even necessary that you cite the laws they broke at this point—you’ll do that later in your “memorandum of points and authorities,” or legal brief—but you must include the specific facts that constitute a violation of the law. For example, “The board violated CEQA by failing to prepare, circulate, and certify an environmental impact report for the Avarice Ranch Project even though this project will have significant impacts on the environment.” Again, you do not have to prove your factual allegations at this point—the official record of proceedings will not even have been prepared yet—just state them, and be prepared to prove them later in your brief.
Try to get other individuals and organizations to join you as petitioners in your lawsuit. The name of an organization on the suit emphasizes the public interest at stake and shows it’s not about some elitists trying to protect their back yards. Also, a city, county, or local agency like a school district, water district, or parks board on your law suit can help you in another important way that may mean the difference between winning and losing your case: they can have the case moved to another county under CCP § 394—normally impossible to do. If all or most of the judges in your county are developer controlled, as they are in Orange County, your only hope of a fair trial may be a change of venue. It may be difficult or impossible to add the city, county, or local agency’s name to your suit after it has been filed, so plan ahead and get them on board before the deadline to file the suit.
Unlike an individual petitioner, however, an organization or group needs to be represented by an attorney in order to be a party to your law suit—you as a non-attorney cannot represent the group.
Regardless of the specifics of your case, your petition must contain certain allegations in order to be legally adequate. (See Code of Civil Procedure §1086.) See the sample petition included with this book for the specific wording of each allegation.
Your petition will end with a “prayer” for relief, in which you tell the court exactly what you want it to do.
Unfortunately, merely filing your lawsuit doesn’t stop the project. CEQA does allow the developer to proceed with it—at his or her own risk—even though you’ve filed your suit. (PRC §21167.3(b).) That can lead to serious problems for you while your case is in litigation. In Orange County, developers have deliberately trashed sites during litigation, to make the final decision academic, and others up and down the state have copied this tactic.
This booklet explains below what steps you need to take to protect the environment until you get your day in court. But for now, do this: when drafting your petition, include a cause of action for injunctive relief or stay. It should say, “If the respondents are not enjoined from implementing the project and from undertaking acts in furtherance thereof, and the agency’s decision approving the project is not stayed, petitioners and plaintiffs will suffer irreparable harm for which there is no adequate remedy at law in that the property will be irrevocably altered and significant adverse impacts on the environment will occur, contrary to state law.” This allows you to ask for an injunction or stay later on, in case the developer tries to start grading or building before the trial. If you add this cause of action, you should now entitle your petition “Petition for Peremptory Writ of Mandate and Complaint for Injunctive Relief.”
Sign, date, and verify the petition, and attach a “notice of commencement of action” as an exhibit, plus a “proof of service [the legal delivery of a document] by mail of notice of commencement of action.” See the sample petition included in this book for an example.
The notice of commencement of action can simply be a letter to the city council or county board of supervisors saying that you plan to file a suit against them under CEQA to set aside their approval of Avarice Ranch.
Have your server of legal documents, who can be anyone over 18 who is not a listed party to the law suit, sign the proof of service by mail. Remember to name the developer as “real party in interest,” because if you don’t, they can have your suit thrown out for “failing to name an indispensable party.”
Did you forget to put something important into your petition? You can fix it and file an amended petition, but you have to do it before they file their response.
STEPS 2 THROUGH 11—COPIES, NOTICES, SERVING PAPERS
Make at least four copies of the entire petition prepared above, including
Punch two holes on top of the original and staple it. Staple each copy. Fill out a “civil case cover-sheet” form (available online) and attach it (don’t staple it) to the original before filing.
Draft a “request to prepare record of proceedings.” (See PRC §21167.6(a).) If you intend to prepare the record yourself (see Step 12, below), indicate this in your request. Make the same number of copies as you made of the petition.
Draft a “proof of service by mail of petition for writ of mandate” to the California Attorney General. Call the Attorney General’s Office in Sacramento or Los Angeles and ask for the current address. The reason for this is PRC § 21167.7, which requires you to send the state attorney general a copy of your lawsuit. This, at least in theory, gives the attorney general the opportunity to intervene in the law suit, although they rarely do.
Draft a “proof of personal service” of (1) the petition and (2) the “request to prepare record of proceedings” to the respondent and each of the real parties in interest. A single “proof of personal service” can be used for both documents.
Take your server to the clerk of the superior court and file the petition, paying the filing fee. “Filing” means you give the original copy to the clerk, and have the clerk “conform” (stamp) all the copies of it and give them back to you. The filing of the petition must be done within 30 days of the posting of the “notice of determination” by the council or board -- usually the same day as the development was approved (PRC §21167(e)).
Immediately file the “request to prepare record of proceedings,” and have all the copies of it stamped by the clerk.
Now go to the post office and mail a copy of the petition to the California Attorney General.
Within 10 business days of filing the petition and the request to prepare record of proceedings, have your server serve the respondent a copy of the petition and the request to prepare record of proceedings.” (PRC §21167.6(a).) These have to be served personally, meaning your server has to hand the documents to the clerk of the board of supervisors, or the city clerk. So the two of you should walk into the clerk’s office and, when the receptionist asks what you want, say you have some legal documents to serve on the clerk. If the receptionist offers to take them to the clerk for you, simply explain that you need to hand the papers to the clerk personally. At this point, if you’re dealing with a professional clerk, he or she will come out and take the papers. Simply hand them over, and note the time and the name of the clerk.
If, on the other hand, you’re dealing with jerks, they may try to play games to avoid receiving the petition. The courts are very picky about service of law suits. They won’t hear your case unless all the parties have been properly served, so this gives rise to a variety of game playing by shady city clerks and city attorneys hoping you will slip up and they can have your law suit tossed for failure to properly serve it. This, by the way, is a good reason to give yourself a few days to accomplish the service before the 30-day deadline. For example, the receptionist may disappear into the clerk’s office for a few minutes, then come out and say “Uh, she’s not in right now.” At this point, you should say: “These are very important legal papers that concern the city (or county) that I am required to give to her personally. When will she be in her office to receive them?” Hopefully, you’ll be given a time when you can come back, but if they say something like, “We don’t know when she’ll be back,” you can either stake out the office and wait, catch her going into a city council meeting, or, if all else fails, hire a marshal to carry out the service.
Have your server do step 9, personal service, on each real party in interest.
Finally, have the server sign the “proofs of service.” Make at least one (file) copy of each signed proof of service. Then go back to the court house and file the proofs of service, keeping a stamped file copy of each for your files, in case you are later accused of not serving somebody:
STEP 12—THE PRESETTLEMENT CONFERENCE
Within 20 days of the service of the petition, the public agency must file a notice setting the time and place of a presettlement conference. Within 45 days of the service, the conference must actually take place. (PRC §21167.8(a).)
At the conference, you’re supposed to try in good faith to settle the litigation. So when you get there, be prepared with at least one proposal, such as “I will consider dropping my suit if you agree to redo the EIR.” They’ll never go for that, but don’t give them any grounds for telling the court you wouldn’t cooperate in good faith. For their part, the developer and city or county may try to offer you a bike trail, landscaping, some other pittance, or even money to get you off their backs. This is supposed to be an informal conference, but some developers will try to have a court reporter there to see if they can capture something to use against you later. If they try that, just tell them you won’t agree to it. This isn’t a deposition. Just keep your cool, be assertive about what you want, and don’t volunteer anything extra.
The settlement conference process can continue if the parties feel they are making progress. If an offer is made that you want time to think over, say so. Sometimes CEQA law suits get settled without going to trial. If you decide to accept their settlement offer, be sure to get it in writing and go over it very carefully before dismissing your law suit. It should spell out exactly what you will do, what they will do, when they must do it by, who pays for it, and what happens if they fail to do it. That last point is the most important—how will you enforce the agreement if they later violate it? Sometimes a developer will agree to modify their project in exchange for your dismissing your law suit and agreeing not to oppose the modified project if and when it goes back through the approval process. Be careful you understand and can live with the exact meaning of “not oppose.”
At the presettlement conference, you should also discuss the record of proceedings and the overall schedule for the litigation: when the record will be prepared and certified, when your opening brief will be due, when their response brief will be due, when your final reply brief will be due, and when the hearing will take place. Ideally, this too should be reduced to a written agreement or “stipulation” among the parties which, after everyone signs it, is submitted to the judge for approval. Preparation of the record is usually the biggest unknown. If you’re doing it yourself, be sure to allow yourself enough time and to make sure the agreement specifies the time by which the city or county will make available all the documents in the record for you to copy, and when they will certify the final record you have prepared. Otherwise, if they are playing games to try to make you look bad, they will drag their feet and you won’t be able to prepare the record on time.
STEP 13—PREPARING THE RECORD OF PROCEEDINGS
The record must be prepared not later than 60 days after service of the petition, but extensions are possible (PRC § 21167.6). If you prepare the record yourself under PRC §21167.6(b), it is subject to certification of its accuracy by the county or city. Preparing it yourself saves you money, because the county or city charges as much per page as they think they can get away with to copy it. In some developer-bought-and-paid-for counties, like Orange County, they even try to charge you for attorney time supposedly spent figuring out what belongs or doesn’t belong in the record. In a recent case, even though the author explicitly elected to prepare the record himself to save a buck, the county counsel and developer got their fingers into it, and at the end tried to collect $50,000 in attorney fees for the time they supposedly spent interfering with the author’s preparation of the record. So public agencies see this requirement of CEQA as an opportunity to punish citizen litigants for suing them, or to price them out of court.
Unless you have a ton of money for the record, you should initially elect to prepare the record of proceedings yourself through the request to prepare the record described above. After serving the lawsuit, you should ask the city attorney or county counsel when you can have access to the documents in order to make copies. Remind them that you have elected to prepare the record yourself in order to keep down the costs of the lawsuit—costs the city, county, or developer may have to pay if you win the suit. Tell them you simply want access to the documents, and that you will supply your own copier if they try to bilk you for the copies. Remind them that their role under CEQA is limited to certifying the accuracy of the record after you have prepared it. You don’t want them hanging around trying to run up their time clocks “helping” you. You especially don’t want to see any of the developer’s attorneys or stooges sticking their noses into it either because the city or county is the custodian of the records, not the developer.
Originally, the record was supposed to contain only those documents before the decision makers at the time of their vote, i.e., only things they considered in reaching their decision. But the law has changed so that the record now contains everything but the kitchen sink. PRC § 21167.6(e) lists a bunch of things that the record must “include,” but is not limited to.
Unfortunately, the city or county that you’re suing is also the custodian of the records, so you can expect them to do all they can to make your task difficult. They’ll try to throw in as much bulky garbage as they can, to drive up the cost and to impress the judge with how much “evidence” there is to support their approvals. Remember, also, about “substantial evidence.” Normally, a bulky record benefits the city or county, not you, because it provides more material they can point to and say “substantial evidence” supported the decision, even if they never even read it prior to voting.
You should check CEQA, and, if there’s any doubt about a document they demand, and it’s not prohibitively voluminous, include it in the record. If it’s just way too much and clearly doesn’t belong, you can try to convince them to omit it. Remind them again that they may have to pay for it if they lose. Also, try looking at the “agenda item transmittal,” the paper describing what specific action the board or council is being asked to vote on. At the end, there will usually be a list of attachments or exhibits. These are the documents “before” the decision makers. If the disputed item does not appear on this list, ask the city attorney or county counsel how the decision makers could have considered this document if it was never presented to them. If that doesn’t work, either go to the judge for an order to exclude it, or simply don’t include it. When the city or county later refuses to certify your record as accurate, you can submit it to the court anyway with an explanation of the dispute, and let the judge sort it out.
It’s all a big pain in the neck, and the law needs to be reformed to curb the hanky panky around the record of proceedings.
To prepare the record of proceedings, put the originals of all your documents in chronological or reverse chronological order. Then number stamp each page, beginning with page 000001 and going up, using a self-inking, self-advancing number stamping machine available at office supply stores. When all of the pages are numbered, prepare an index to be placed at the beginning. This index should list the date, title, and stamped page numbers of each document. You should have one index in chronological order, and another index in alphabetical order for convenience in looking things up.
At this point, you should ask the city or county to certify the accuracy of the record you have prepared. (PRC § 21167.6(b)(2).) Ideally, they will do so and provide a signed certification page you can insert at the beginning. If they refuse, you can try to accommodate any reasonable request for inclusion or exclusion of documents. If they’re asking for documents that are clearly not properly part of the record as provided by CEQA, suggest that they certify the record you have prepared, so you can move forward, and that they submit their own “supplemental” record, which you reserve the right to object to. If they’re just trying to bulk up the record to make it look impressive to the judge and cost you money, remind them that CEQA requires that the parties strive to prepare the record “at a reasonable cost.” (PRC § 21167.6(f).)
Now make copies of the numbered pages. The original will be lodged with the court, you will need a copy, the city or county will need a copy, and any real parties in interest will each need a copy. Next, bind each copy of the record into volumes of not more than 300 pages each. These volumes can be bound into 3-ring binders, or better yet, with plastic comb or other binding systems. Number the volumes: 1, 2, 3, etc. Later, when you write your brief, you will cite the evidence in the record by volume and page. For example “AR 4: 987-988” means volume 4 of the “administrative record” (another name for the record of proceedings), pages 987 through 988.
The record doesn’t actually have to be submitted to the court until five days before the hearing. (California Rules of Court, Rule No.347.) To prepare their briefs, however the parties will each need a copy well in advance of the hearing.
STEP 14—THE “ANSWER” TO YOUR PETITION
Unless you’ve served them a summons, the opposition need not reply to your petition until 30 days after they’ve received a copy of the record. (CCP §1089.5.) However, they’ll normally respond before the record is prepared, and usually in the form of answer. This is simply a legal paper in which they take the allegations in your petition, going paragraph by paragraph, and deny, admit, or state that they have no knowledge of each allegation. You should read their answer carefully, noting which allegations they admit. You won’t have to prove these later on. You will have to prove those allegations they’ve denied.
The answer will normally conclude with “affirmative defenses,” such as allegations that you didn’t exhaust your administrative remedies, filed your petition too late, or “failed to state a cause of action.” They normally have to throw these in or lose the option of using them later, so don’t be surprised to see them. You need make no further response to an answer.
Occasionally, the opposition will respond by “demurrer,” either to your entire petition or to selected causes of action. A demurrer is a claim that, even if the facts you’ve stated are true, there was no violation of the law. This is another way of saying that you’ve “failed to state a cause of action.” If your petition was too vague or general, it’s subject to attack by demurrer. Even without strong grounds, the opposition may try a demurrer because, if it succeeds, your entire law suit is thrown out. So, with their lawyers billing them by the hour, the developers often take a shot at demurring to your law suit.
Unlike an answer, however, the demurrer requires a hearing. The opposition will set a hearing date, and file a brief in support of their demurrer. You will have to file an opposing brief, and appear at the hearing to argue against it. Even if you lose this hearing, the judge may give you leave to amend your petition. The best way to steer clear of demurrers is to make your petition sufficiently clear and specific. CCP §§430.10-430.80, 589, and 591 deal with demurrers.
STEP 15—REQUESTING A HEARING (TRIAL)
When should you schedule your court hearing? Think carefully about this, because it can be very important.
Generally, you want to get to court as quickly as you can if there’s any danger the plunderers will pull permits and trash the site before the trial; they can do this legally. If you’re not sure when they’ll be in position to start the bulldozers, read through the conditions of approval on the project. Check out anything that says “prior to grading,” or “prior to the issuance of a grading permit.” Does a road have to be built or a bridge opened up? If so, you can keep an eye on the progress of that road or bridge. But if all they have to do is submit reports and paperwork to city or county backroom bureaucrats, watch out! And don’t assume that the city or county will make them do everything they’re supposed to. After all, they approved the project and want to help the developer break ground so as to make your lawsuit against them useless. You need vigilance and, if possible, a spy within the agency who will tell you what’s happening with the project. Pester the bureaucrats and demand to see the reports and plans the developer is supposed to produce. If they’re not right, raise a stink.
If they get ready to roll before your trial, you’ve got a problem. You’ll have to go in and ask the court for a temporary restraining order. (CCP §527.) That will last for 15 or 20 days. If you need longer, you’ll have to argue for a preliminary injunction. (CCP §529.) The catch here is that you have to put up a bond, usually thousands of dollars, in case you end up losing in court and are considered to have damaged the developer. Since most environmental groups or individuals can’t afford to post these large bonds, it’s best to avoid this situation if you can.
One other approach is to ask for a stay order under CCP §1094.5(g), which is different from an injunction. You’re eligible for a stay if you’re using administrative (as opposed to traditional) mandamus, i.e., if you’re proceeding under CCP §1094.5 and not CCP §1085. Unlike a temporary injunction, this stay of the agency’s decision doesn’t absolutely require a bond. The court can waive or require it, at its discretion. (Venice Canals Resident Home Owners Association v. Superior Court (1977) 72 Cal.App.3d 675, 679.) You should also base your argument against a bond on CEQA. PRC §21167.3 allows work to proceed on the project while awaiting trial, but at the applicant’s risk. A bond shifts that risk to you.
An early hearing date will also deprive them of their favorite argument, that you’re simply trying to delay the project. Of course, if you’re preparing the record of proceedings, you’ll have to work fast in order to have it ready by the time you file your opening brief, and the public agency will likely drag its feet as much as possible in responding to your requests for documents.
You must request a hearing (trial) within 90 days of the filing. (PRC §21167.4.) The hearing need not occur within the 90 days, but you have 90 days to schedule the hearing date. Do this by calling the department of the court where your case will be heard. They will reserve a date for you. Then serve and file a notice of hearing on all parties. Also, check your local rules of court for any other requirements for placing your hearing on the court’s calendar. Warning: PRC §21167.4 (put into CEQA by a legislative stooge of the Orange County developers) requires the court to throw out your case if you make a technical screw-up in setting your hearing, and the developer’s lawyer will be looking for this.
STEP 16—LODGING AND SERVING YOUR RECORD OF PROCEEDINGS
If you prepared the record of proceedings yourself, as described above, “lodge” it with the court. “Lodging” is different from filing. You lodge the record by simply leaving the original with the clerk of the judge who will be hearing your case. Serve a copy on all parties. You can charge the developer for their copy of the record. If you win the case, you can claim the cost of preparing the record. If you lose the case, you pay for the record. As soon as you lodge the record, serve by mail on all parties a notice that the record has been certified and lodged with the court. (PRC § 21167.8(b)(1).)
STEP 17—STATEMENT OF ISSUES (PRC § 21167.8(f))
Within 30 days of certification of the record of proceedings, you have to file and serve a “statement of issues” which you, as the petitioner, intend to raise in your brief. You frame the issues as questions, for example, “Did the city violate CEQA by failing to prepare and circulate an environmental impact report for the Token Oaks project?” This can be a fairly short paper, but don’t leave out any issue you think you might raise in your briefs.
STEP 18--POINTS AND AUTHORITIES (Your Legal Brief)
“Points and Authorities”, also called a legal brief, must be filed at least 15 calendar days before the hearing date (California Rule of Court 17) unless you and the opposition have stipulated to a different briefing schedule. The brief gives a detailed explanation of the allegations you made in your petition. You cite the relevant law, and then the facts of your case, based on specific page citations to the record as necessary to show how the city or county violated the law.
Writing an effective persuasive brief takes a lot of work. You should read over as many samples as you can get hold of. Remember that you must back up every allegation of fact by a specific reference to the record, and every legal contention with a reference to an authority, such as statutory or case law. Other than that, the normal rules of effective writing apply: be specific, brief, and clear, and use plain language. You can be precise and convincing without using pretentious legal jargon. You’ll also find style manuals in the law library to help you write an effective brief.
The opposition must file a response brief before the hearing date, and you must file your reply brief.
STEP 19—THE TRIAL
On the day of your hearing, you’ll argue your case before a judge (no jury). Usually the judge will ask the parties specific questions he or she has after reading the briefs. Some issues may be unclear in the judge’s mind. Prepare for your trial by writing down your backup arguments to make sure you’re clear about both your position and the opposition’s position on each issue. Listen carefully to the judge’s questions so you can provide a direct answer; the judge may be irritated if you don’t seem to be responding to a question he or she raises. One good way to prepare yourself is to sit in this judge’s courtroom before your trial to see how things are done. The judge will usually “take the matter under submission,” meaning he or she will not decide your case immediately, but will send you a written judgment later in the mail. If you win, the judge will require you to draft the actual writ of mandate and serve it on the city or county, and the developer. Do that right away, because they’re not legally stopped until you do.
4. If the opposition throws in extra motions
The above are the essential steps in the lawsuit, but other events may take place between the time you file and the time the case is heard. The opposition, especially if they’re trying to pad the developer’s bill, may bring various “motions” in court. A motion is an application for a court order or ruling. They may make a motion for “summary judgment,” to have the case thrown out before trial because it is “without merit.” They may “demur” to your petition, as described above.
If you’re up against well-heeled greedheads, they’ve probably purchased the deluxe litigation package from their attorneys, who will almost surely try to harass you before the hearing with “discovery.” This consists of requests for written and oral responses to questions, e.g., depositions and interrogatories. You may be able to get a court order blocking such discovery by arguing that only evidence contained in the official record of proceedings may be admitted.
If not, read the “Discovery Act” in the Code of Civil Procedure (CCP §§201 6-2036) before going to your deposition or answering any written interrogatories. It tells you which questions you have to answer and which you don’t. The danger to you is this: if you refuse to answer a question that you’re required to answer, they can go get a court order commanding you to answer and to pay their attorney’s fees incurred in the process.
So, if you’re in doubt about a question, answer it. It’s not likely that they’ll come up with much evidence they can use anyway, because the court must decide the case based on evidence in the record. Whether you’re divorced or were ever a communist will not help them show that their clients didn’t abuse discretion by approving Avarice Ranch.
The discovery is mostly for the purposes of harassment and intimidation. To make it as quick and painless as possible, keep these rules in mind:
Another consideration in discovery is the cost. If you lose the case, you may be ordered to pay for the opposition’s costs. Normally, this will be only their filing fee. But if there have been depositions and a court reporter, that can run the bill up thousands of dollars, and the developers know that raises the stakes for you. This is another reason you should seek to block discovery unless you have the money to cover the possible costs.
DEALING WITH THE EXTRAS
An attorney can help you deal with these extra motions and maneuvers. You can look up the legal basis for them in the Code of Civil Procedure.
Generally, the procedure for a motion is this: They file a notice of their motion, and serve you a copy. With the notice is a brief, usually a short one, explaining the legal and factual basis for the motion, and a proposed order they’re asking the judge to sign. You then have a certain number of days to file your points and authorities in response to theirs, explaining why the court should deny the motion. They get the final say in a reply brief, and you then go to trial on that motion.
The law library is full of information and forms relating to the various motions, most of which, incidentally, are not usually granted. So hang in there, taking comfort in the fact that it’s costing the developer a fortune to try to get rid of you.
5. A word about judges
Unfortunately, many if not most superior court judges know less than you do about CEQA, because they rarely hear environmental lawsuits. Try to find out if your judge knows much about it by asking others who have been before this judge in CEQA cases. If you’re in court with this judge on a motion prior to your main hearing, listen carefully to how he or she talks about the law and your case.
You may need to educate the judge about CEQA both in your papers and in oral argument. If he or she is ignorant of CEQA, the opposition will try to take advantage of this -- a favorite tactic. Start your brief with a short description of CEQA’s requirements, emphasizing those that relate to your case. Judges often misunderstand the subtler aspects of this rather complex law, especially the following points:
The court must not reweigh the evidence and rehear the developers’ arguments as if it were the city council or the board of supervisors. Still, judges often get sucked into looking at the inevitable green watercolor renderings of young people blithely pedaling their bicycles through Utopia to work. The court’s limited role is to determine whether the actual decision makers abused their discretion by making findings which were not supported by the evidence in the record, or not following the procedures mandated by law.
An environmental impact must be considered significant, and an EIR prepared, if there is any substantial evidence to that effect, even if a contrary conclusion might be possible. This follows from the substantial evidence test itself, as construed by numerous court decisions, including Friends of B Street V. City of Hayward (1980) 106 Cal.App.3d 988, and No 0i4 Inc. V. City of Los Angeles (1974) 13 Cal.3d 68, 84.
Even so, judges often err by entertaining after-the-fact arguments that an impact is actually insignificant, based upon this or that evidence. Suppose, for example, a biologist has testified and submitted information into the record that the project will have a significant impact on an endangered species. Not surprisingly, the developer’s hired biologist disagreed, submitting a study allegedly proving that the impact will be insignificant. The judge can’t allow this issue to be re-debated in the courtroom. He or she must look at the evidence supporting an impact, and if the supporting evidence is substantial, the impact must be considered significant and an EIR prepared.
You may fall into the clutches of a judge who’s simply prejudiced against environmentalists in general. Such judges come from various political persuasions. Some believe that private property rights take precedence over the common good (“Persons should be able to do whatever they want to with their land without government interference”) and will find a way to give you the bum’s rush if you’re trying to overturn approval of a private development project. The same kind of judge may be more receptive, though, to a lawsuit against a public works project such as a freeway or jail, especially if private developers are not supporting it and government condemnation of private land is involved.
On the other hand, a liberal judge may be willing to slack CEQA for a developer of “affordable housing,” or for a public transportation project. Remember also that these judges are elected and may have gotten campaign contributions from the developers. You can check out that possibility at the registrar of voters office. The tentacles of the development octopus reach into every aspect of government, including the judiciary. Be vigilant, especially where multi-million dollar profits are at stake.
One judicial pontiff told the author not to worry about the destruction of an endangered habitat. “I really don’t think there’s a problem,” he said one day in court. “You can throw a little rye grass seed out there after it’s bulldozed and it will return to wilderness.” If you get stuck with one of these types and you don’t think there’s anyone worse you could be assigned to, you can bounce the s.o.b. under CCP §170.6. Each party gets one shot, so before bouncing a judge you want to be sure you won’t end up with a worse one. If you decide to go ahead, you just file and serve a 1-page affidavit whose form is given in CCP §170.6(5). But you have to do this within 10 days of being assigned to that judge. Depending on your local court, that assignment may take place as early as the day you file your law suit, so be ready to move on this as soon as you know who your judge is.
Since the courts are overloaded with cases, many judges will read your case with an eye to finding a quick and easy way out of a land use case like yours, which is usually more complicated and requires more work than the run of the mill, so that they won’t have to read the whole thing and rule on all the issues. A common developer tactic is to take advantage of the judge’s laziness and ignorance of CEQA by presenting a temptingly easy way to dispose of the entire case --against you, of course -- and burying the judge in papers that he or she would otherwise have to read. This is all the more reason to educate the judge about CEQA and to cite relevant case law, especially from your own appellate court district if possible, to show the judge that he or she would be going out on a limb by taking the opposition’s suggestion and prematurely dumping your case.
For your part, you should argue that only evidence which was before the decision makers is relevant to the court’s determination, so the court need not spend time reading the invariable piles of private traffic studies and self-serving declarations pumped out by the developer after the project was approved.
If you lose in superior (trial) court, you can take your case to the appellate court, one notch up from the superior court. The appellate court can correct the legal errors made by the superior court, but generally defers to the trial court in matters of fact. You should appeal your case if you believe the trial court misapplied the law to the facts of your case. If you win in superior court, the opposition will most likely appeal the case.
The procedure in appellate court is much simpler than in superior court. Basically, the appellant (party who appeals) initiates the appeal by filing a notice of appeal within 60 days of the notice of entry of judgment in the superior court case, and then prepares either a “clerk’s transcript,” or a “joint appendix,” according to the procedures set out in the California rules of court, which contains the record of proceedings you used in the superior court, plus a copy of all the papers filed in the superior court case. All the pages are numbered just as before so the parties can cite them.
The appellant starts by filing an opening brief; the respondent (here: the party who won in superior court) files an opposition brief; and the appellant files a final reply brief. If the parties then request it, the case is argued before a panel of three appellate judges. Otherwise, the judges simply send you a written opinion after reading the briefs.
You have 60 days from the entry of superior court judgment to start your appeal by filing a “notice of appeal” with the appellate court. This is basically a letter saying you intend to appeal the judgment. The California Rules of Court describe the entire appeals procedure under “Appellate Rules.” Your local appellate court division also can give you a copy of its own rules of procedure, which tell you how to bind your brief, what color cover to put on it, etc.
Incidentally, you should make sure a judgment gets drafted and entered right away after the superior court has ruled on your case. Watch out for this stunt: After winning in superior court, developers will often drag their feet about drafting the judgment, in order to keep it from being entered by the court. Until judgment is entered, you can’t appeal from it. Meanwhile they’re free to rush out and trash the environment. So, if the opposition doesn’t quickly draft and submit a proposed judgment to the court for approval, you should do so.
When it’s all over, even if you don’t win your case, don’t despair. You’ll still have accomplished something You’ll have taught the developers and their pawns in government that they’re in for a fight the next time, and decide whether the expense and delay of going to court are worth cutting legal corners.
You will also have learned a lot. The author lost his first CEQA case, but learned from the experience, won the next three court cases, helped others to win theirs, and probably deterred dozens of other potential land rapers from trying to get away with illegal plans.
Also, by delaying the ultimate demise of the land, you may have cost the developer enough money and grief to prevent him or her from ruining some other area, or from coming back for more plunder in your area. Delay can often help. If the economy goes down in the meantime, the developer may not be able to build and sell as many houses and thereby ruin as much land as originally approved. A sewer or water moratorium may occur, or another threatened plant or animal species might be listed as endangered, giving its habitat legal protection.
If you win your case, you’ll enjoy the inner peace and satisfaction of knowing that you’ve saved something you love from being destroyed, to be enjoyed now and by generations to come, something that would simply have been converted into a windfall for some forgotten greedhead but for your efforts. Whenever you pass by that place, you’ll have the satisfaction of knowing that your hard work paid off.