FILED Superior Burt of California. County of San Bieg 09110912013 at 03:37:10 PM Clerk of the Superior Court By Lee Mb?lister?eputy Clerk BRIGGS LAW CORPORATION 1593.26] Cory I. Briggs (State Bar no. 176284) Mekaela M. Gladden (State Bar no. 253673) 99 East Street, Surte 111 Upland, CA 91786 Telephone: 909-949-71 15 Fax: 909-949-7121 Attorneys for Plaintiff and Petitioner CREED-21 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO-CENTRAL DIVISION - - BB-CU-TT-CT CASENO. 3? 2013 000 60 VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE vs. RELIEF AND PETITION FOR WRIT OF MANDATE UNDER THE SAN DIEGO CITY OF SAN and DOES 11 through CITY CHARTER, THE SAN DIEGO 100, MUNICIPAL CODE, THE CALIFORNIA 3 ENVIRONMENTAL QUALITY and DOES 1 through 10, Plaintiffs and Petitioners, Defendants and Respondents; OTHER LAWS SUNROAD SUNROAD CENTRUM PARTNERS, and DOES 101 through 1,000, Defendants and Real Parties in Interest. Plaintiff and Petitioner (?Plaintiff?) alleges as follows: Introductory Statement 1. This lawsuit challenges certain actions taken by Defendant and Respondent CITY OF SAN DIEGO as part of an illegal scheme in which politicians agree to give away public property and/or grant development approvals either in exchange for a developer?s donation to the politicians? pet projects-?without any nexus between the amount paid and the value of property given away or the community impact that the affected neighborhood?s residents will suffer?or for free and scan-dashbme without the payment of appropriate compensation. At a minimum, the scheme violates the San Diego City Charter, the San Diego Municipal Code the California Environmental Quality Act and the California Labor Code. Parties 2. - Plaintiff is a non-profit, social?advocacy organization formed and operating under the laws of the State of California. At least one of Plaintiff?s members resides in and pays real-property taxes within the geographical jurisdiction of CITY and has an interest in, among other things, ensuring open, accountable, responsive government and in protecting the region?s environment and the public?s environmental and other quality?of-life amenities. Plaintiff is suing on its own behalf and for its own bene?t, and on behalf of and for the benefit of its members, all persons similarly situated, all taxpayers within the geographical jurisdiction of CITY, and CITY 3. CITY is a public agency under Section 21063 of the Public Resources Code. CITY is authorized and required by law to determine the adequacy of and certify environmental documents prepared pursuant to CEQA. CITY is the local agency responsible for issuing develOpment and construction permits for the project that is the subject of this lawsuit and for enforcing violations of the City Charter and the SDMC. 4. Defendants and Real Parties in Interest SUNROAD ENTERPRISES and SUNROAD CENTRUM PARTNERS, L.P. (collectively, are the owners, applicants, and/or developers of the project that is the subject of this proceeding or have some other cognizable interest in it. 5. The true names and capacities of the parties identi?ed as DOES 1 through 100 and 101 through 1,000 are unknown to Plaintiff, who will seek the Court?s permission to amend this pleading in order to allege the true names and capacities as soon as they are ascertained. Plaintiff is informed No matter how any portion of this leadin ?s allegations or prayer is construed, in no way does Plaintiff intend to assert a claim or see relie that is inconsistent With the followmg parameters: Plaintiff does not seek any relief greater than or different from the relief sought forthe general pub 10 or for a class of which Plaintiff?s members residing within the geographical jurisdiction of CITY are themselves members. (2) This lawsuit seeks to enforce at least one important right affecting the public interest and to confer at least one signi?cant bene?t, whether pecuniary or non?pecuni ., on the general public or a large class of persons. (3) Private enforcement is necessary and places a isproportionate inancial burden on Plaintiff in relation to its stake in the matter. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. Page 2 and believes and on that basis alleges that each of the ?ctitiously named parties 1 through 100 and 101 through 1,000 has jurisdiction by law over one or more aspects of the property that is the subject of this proceeding or has some other cognizable interest in the property or its development. 6. Plaintiff is informed and believes and on that basis alleges that, at all times stated in this pleading, each Defendant/Respondent was the agent, servant, or employee of each other Defendant/Respondent and was, in doing the things alleged in this pleading, acting within the scope of said agency, servitude, or employment and with the full knowledge or subsequent rati?cation of his principals, masters, and employers. Alternatively, in doing the things alleged in this pleading, each Defendant/Respondent was acting alone and solely to further his own interests. Jurisdiction, Venue, and Exhaustion of Remedies 7. The Court has jurisdiction over this action pursuant to, as applicable and among other provisions of law, Code of Civil Procedure Sections 1060 et seq. and 1084 et seq.; and Public Resources Code Sections 21168 and 21168.5. 8. Venue in this Court is proper because the obligations, liabilities, and violations of law alleged in this pleading occurred in the City of San Diego in the State of California. 9. Plaintiff was not required to exhaust administrative remedies prior to ?ling this action. Alternatively, Plaintiff exhausted all applicable administrative remedies prior to ?ling this action. 10. Petitioner has caused a Notice of Commencement of Action to be served on Respondents, as required by Public Resources Code Section 21167.5. A true and correct copy of the Notice of Commencement of Action is attached to this pleading as Exhibit 11. Plaintiff will have caused a copy of this pleading to be served on the Attorney General not more than ten days after the commencement of this proceeding, as required by Public Resources Code Section 21167.7 and Code of Civil Procedure Section 388. Procedural Background 12. This action challenges waiver of the policy established by City Council Policy 700-06 pertaining to encroachments on a portion of park property and the associated approval of a building-restricted easement over that property (?Project?) on or about April 30, 2013, in Order to facilitate a residential development in the Kearny Mesa community approved by CITY more than 10 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. Page 3 years earlier (?Residential Development?). The Residential Development originally required, among other things, a minimum 2.0-acre park to serve nearby residents, as mitigation under CEQA and/or as a condition of approval under the City Charter and the SDMC (?the Park), to be carried out under the Sunroad Centrum Park Development Agreement As a result of the Project, however, neither CITY nor the residents will receive the full bene?t of the Park. mayor vetoed the Project?s approval on or about May 15, 2013. city council overrode the mayor?s veto of the Project?s approval on or about June 1 l, 2013, based upon the mayor?s reguest that his veto be overridden. A true and correct copy of City Council Policy 700-06 is attached to this pleading as Exhibit 13. At the time the Project was approved, CITY had failed to make an adequate ?environmental determination? for the Project (if any) as required by the SDMC and thus failed to subject the Project to any environmental review under CEQA. 14. The Project results in a substantial change to the mitigation and/or conditions of approval for the Residential Development. 15. The Project?s change to the Park and Residential Development could not have been discovered by Plaintiff--even with the exercise of reasonable diligence--until at least June 11, 2013. 16. CITY did not hold a public hearing pertaining to the Project on April 30, 2013. 17. CITY did not hold a public hearing pertaining to the Project on June 11, 2013. 18. CITY has given incomplete and con?icting information about whether it owned the park property that is the subject of the Project at the time the Project was approved. For example, City Council Policy 700-06 applies to ?City Property? and de?nes that term to mean ?land which is owned in fee title by the City excluding such land which is public right-of-way." waiver of the Policy thus implies that the park pr0perty was ?owned in fee title? by CITY at the time the Project was approved. Meanwhile, City Councilmembcr Scott Sherman stated on UT San Diego?s website after voting for the Project that ?[t]his is not city owned property yet.?2 A true and correct copy of his Facebook statement is attached to this pleading as Exhibit 2 Allegations in this pleading mi ht therefore be inconsistent. In this regard, Plaintiff admits that it is taking advantage of its right to mice allegations in the alternative because it believes that there has_been some illegal conduct in connection with the Pro'ect?s approval and that a reasonable opportunity to conduct iscovery is likely to yield evidence of full extent of such conduct. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ETC. Page 4 somqmm-meH 19. Plaintiff is informed and believes and on that basis alleges: A. The real property that is the subject of the Project falls within the de?nition of ?dedicated or designated parkland and open space? as used in City Council Policy 700-06. B. Alternatively and additionally, the real property that is the subject of the Project falls outside the de?nition of ?dedicated or designated parkland and open space" as used in City Council Policy 700-06. 7 C. Alternatively and additionally, the real property that is the subject of the Project falls under the de?nition of ?City property? as used in City Council Policy 700-06. 20. Plaintiff is informed and believes and on that basis alleges: A. mayor demanded a payment from SUNROAD in the amount of $100,000.00 in exchange for his agreement to ask city council to override his veto of the Project?s approval, and complied with the demand. The payment had no legally suf?cient nexus with the loss of the park property and would not be used to ?md any program or service that would bene?t the Keamy Mesa community where the park is located. A true and correct copy of the SUNROAD-prepared con?rmation of receipt of the payment is attached to this pleading as Exhibit B. Alternatively and additionally, SUNROAD offered mayor a payment in the amount of $100,000.00 in exchange for his agreement to ask CIT Y?s city council to override his veto of the Project?s approval, and the mayor accepted the offer. Again, the payment had no legally suf?cient nexus with the loss of the park property and would not be used to fund any program or service that would bene?t the Keamy Mesa community where the park is located. C. At least one CITY of?cial had an illegal con?ict of interest relating to the Project?s approval in violation of the City Charter, the SDMC, or one or more other applicable laws. D. Alternatively and additionally, CITY returned the $100,000.00 payment to SUNROAD and receivedino other monetary compensation in exchange for ultimate approval of the Project. A true and correct copy of the cover letter accompanying the refund is attached to this pleading as Exhibit COMPLAINT FOR DECLARATORY AND INJUNCTWE RELIEF ETC. Page 5 soon-400:4:pr E. Prior to approval of the Project, city attorney issued a memorandum advising that the Project?s approval may violate San Diego City Charter and SDMC. A true and correct copy of the memorandum is attached to this pleading as Exhibit F. Regardless of whether there was a payment in any way made in connection with the Project?s approval, CITY failed to follow the procedures prescribed by law in approving the Project. Authorization of Reduced PEIRST SAUgEcgar?g?g?ther Environmental Review (Against All Defendants/Respondents/Real Parties in Interest) 21. Paragraphs 1 through 20 are fully incorporated into this paragraph. 22. The Supreme Court has determined that there is an exception to the usual rule that CEQA applies only to discretionary projects, which is that an action challenging the agency?s non- compliance with CEQA may be ?led within 180 days of the time the plaintiff knew or reasonably should have known that the project under way differs substantially from the one described in the environmental document. 23. Plaintiff discovered that the Project will result in a substantial change to the mitigation and/or conditions of approval for the Residential Development no earlier than June 1 1, 2013, and could not have discover this earlier even with the exercise of reasonable diligence. By way of example and not limitation: A. The PDA de?nes ?Useable Park Land" as a graded pad or gently sloping land, among other things, ?unconstrained by environmental restrictions that would prevent its use as a park and recreation facility, free of structures, roads or utilities, unencumbered by easements of any kin B. The six-foot setback on the Residential Development made possible by the building-restricted easement over nine feet of the north and south sides of the Park as part of the Project?s approval deprives the public of park space; and simultaneously obstructs the access of ?re- protection personnel to residences within the Residential Development such that the personnel, the occupants of the residences, and the CITY generally will be at greater risk in the event of a ?re or other event that requires 15 feet of unobstructed access entirely on the sites of the residences. 24. The Project has not been subjected to adequate environmental review (if any) under CEQA. COMPLAINT FOR DECLARATORY AND INIUNCTIVE RELIEF ETC. Page 6 \qumM-hL?Nn?I 25. CITY of?cials purposefully misinformed Plaintiff and other members of the public about the nature of the Project and the reasons why the mayor was urging the city council to override his prior veto. 26. There was no Notice of Determination or Notice of Exemption filed or posted following the Project?s approval. Alternatively and additionally, if CITY did make an environmental determination under the SDMC, CITY failed to give notice of the right to administratively appeal that determination. 27. Plaintiff, its members, and other members of the public have been harmed as a result of Defendants?lRespondents? violation of CEQA because they have been denied the benefits and protections provided by compliance with CEQA. By way of example and without limitation, Plaintiff, its members, the public, and the decision-makers who approved the Project were not fully informed about the potential impacts of, mitigation measures for, and alternatives to the Project prior to its approval. SECOND CAUSE OF ACTION: Violation 0 an iego Munrcr al ode (Against All Defendants/Respondents/Rea Parties in Interest) 28. Paragraphs 1 through 27 are fully incorporated into this paragraph. 29. The Project involves a sale of real property and is therefore subject to SDMC Section 22.0902. Section 22.0902 states: ?Except as otherwise provided in the City Charter, the Council shall sell the real property of the City in compliance with the requirements herein established. No real property belonging to the City shall be sold except in pursuance of a resolution passed by an affirmative Vote of ?ve members of the Council, which shall contain the following: The reason for selling such real property; A description of the real property to be sold; A statement of the value of such property as disclosed by an appraisal made by a quali?ed real estate appraiser, who may be a professional appraiser or a quali?ed employee of the City of San Diego, together with the minimum amount the Council will consider for the sale of each parcel of property; A statement that the City may at its discretion pay a real estate broker?s commission under the provisions of Section 22.0905 for the sale of such real property; A statement that the property will be sold by negotiation or by public auction, or by sealed bids, or by a combination of public auction, and sealed bids; providing, however, COMPLAINT FOR Dacmnaroav AND INJUNCTIVE RELIEF arc. Page 7 00 \1 ON ?5 that in the event that such property is to be sold by negotiation, then the reasons therefore shall be included in the resolution.? 30. CITY did not comply with the requirements of SDMC Section 22.0902 when it approved the Project, rending the approval legal or otherwise void. 31. There is a good-faith dispute between Plaintiff, on the one hand, and the opposing parties, on the other hand, as to whether the Project in some manner violates SDMC Section 22.0902 or is otherwise void. Plaintiff contends that the Project is in some manner illegal and therefore void, while the opposing parties disagree. The parties therefore require a judicial determination of the issue. 32. approval of the Project violated a mandatory, ministerial duty. 33. Plaintiff, its members, and other members of the public have been harmed as a result of Defendants?fRespondents? violation of the SDMC because they have been denied the bene?ts and protections provided by compliance with the SDMC. By way of example and without limitation, CITY did not obtain proper value in exchange for the real-property rights it gave up when it approved the Project. THIRD CAUSE OF ACTION: Violation of San Diego ity arter? ublic Purpose (Against All Defendants/Respondents/Real Parties in Interest) 34. Paragraphs 1 through 33 are fully incorporated into this paragraph. 3 5. The Project involves real property set aside for use as a public park and therefore subject to City Charter Section 55. Section 55 states (in part): ?All real property owned in fee by the City heretofore or hereafter formally dedicated in perpetuity by ordinance of the Council or by statute of the State Legislature for park, recreation or cemetery purposes shall not be used for any but park, recreation or cemetery purposes without such changed use or purpose having been ?rst authorized or later rati?ed by a vote of two-thirds of the quali?ed electors of the City voting at an election for such purpose. However, real property which has been heretofore or which may hereafter be set aside without the formality of an ordinance or statute dedicating such lands for park, recreation or cemetery pin-poses may be used for any public purpose deemed necessary by the Council.? 3 6. CITY did not comply with the requirements of City Charter Section 5 5 when it approved the Project, rending the approval legal or otherwise void. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF arc. Page 3 mqouwa?oomqo?man?o 37. There is a good-faith dispute between Plaintiff, on the one hand, and the opposing parties, on the other hand, as to whether the Project in some manner violates City Charter Section 55 or is otherwise void. Plaintiff contends that the Project is in some manner illegal and therefore void, while the opposing parties disagree. The parties therefore require a judicial determination of the issue. 38. approval of the Project violated a mandatory, ministerial duty. 39. Plaintiff, its members, and other members of the public have been harmed as a result of Defendants?lRespondents? violation of the City Charter because they have been denied the bene?ts and protections provided by compliance with the City Charter. By way of example and without limitation, CITY authorized a use of park property that involves no ?public purpose? as that term is used in the City Charter. FOURTH CAUSE OF ACTION: Failure to Pay PrevaW (Against All Opposing Parties except Defendants/Respondents) 40. Paragraphs 1 through 39 are ?illy incorporated into this paragraph. 41. The Residential Development, including the Project, is part of the New Century Center Master Plan Project approved by CITY in November 2002 Project?) for commercial, industrial, and residential development. The Project constitutes a ?public works" within the meaning of Labor Code Section 1720(a) because, among other things, it involved ?construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds? insofar as the building-restricted easement involved a transfer by the state or political subdivision of an asset of value for less than fair market price and/or (it) fees, costs, rents, insurance or bond premiums, loans, interest rates, or other obligations that would normally be required in the execution of the contract, were paid, reduced, charged at less than fair market value, waived, or forgiven by the state or political subdivision. 42. The Residential Development portion of the Project is not the subject of this lawsuit. Plaintiff is suing only with regard to the non-Residential Development portion. 43. CITY has not opted out of the requirement that prevailing wages be paid on ?public wor COMPLAINT FOR DECLARATORY AND RELIEF are. Page 9 44. SUNROAD did not pay prevailing wage or require its contractors and sub-contractors to pay prevailing wages to the employees who worked on the non-Residential Development portion of the Project. I 45. There is a good-faith dispute between Plaintiff, on the one hand, and the opposing parties, on the other hand, as to whether the failure to pay prevailing wages on the non-Residential Development portion of the Project in some manner violates the Labor Code?s prevailing-wage requirements. Plaintiff contends that the requirements applied and were violated,'while the opposing parties disagree. The parties therefore require a judicial determination of the issue. Violation of afte?rETleNoi? Public Funds (Against All Defendants/Respondents/Real Parties in Interest) 46. Paragraphs 1 through 45 are ?illy incorporated into this paragraph. 47. Alternatively to the allegations that the Project involves an illegal sale of real property, the Project involves a gift of public funds. For example, if by reason of the $100,000.00 being returned to SUNROAD or for some other reason there was no sale as alleged earlier in this pleading, then the building-restricted easement included in the Project would be a gift of public funds. 48. San Diego City Charter Section 93 provides in relevant part: ?The credit of the City shall not be given or loaned to or in aid of any individual, association or corporation; except that suitable provision may be made for the aid and support of the poor.? 49. city attorney has regularly opined that San Diego City Charter Section 93 is analogous to California Constitution Article XVI, section 6, which prohibits the legislature from making or authorizing a gift of public funds or other thing of value to any individual, association, or corporation. 50. The gift of the real property to SUNROAD serves no public purpose. 51. There is a good-faith dispute between Plaintiff, on the one hand, and the opposing parties, on the other hand, as to whether the Project in some manner violates City Charter Section 93 or is otherwise void. Plaintiff contends that the Project is in some manner illegal and therefore void, while the Opposing parties disagree. The parties therefore require a judicial determination of the issue. 52. approval of the Project violated a mandatory, ministerial duty. COMPLAINT FOR DECLARATORY AND INJUNCTWE RELIEF ETC. P836 10 53. Plaintiff, its members, and other members of the public have been harmed as a result of Defendants ?/Respondents? violation of the San Diego City Charter because they have been denied the bene?ts and protections provided by compliance with the City Charter. By way of example and without limitation, CITY gifted CITY real prOperty and the gift involves no ?public purpose,? as that term is used in City Charter Section 93. PRAYER FOR ALL THESE REASONS, Plaintiff respectfully prays for the following relief against all Defendants/Respondents and Defendants/Real Parties in Interest (and any and all other parties who may oppose Plaintiff in this proceeding) jointly and severally: A. On the First Cause of A ction: 1. A judgment determining or declaring that Defendants/Respondents failed to comply fully with CEQA with respect to the Project and the Project?s approval is illegal in at least some respect, thereby rending the approval void. 2. A judgment determining or declaring that Defendants/Respondents must comply fully with CEQA with respect to the Project before the Project may lawfully be approved. 3. Injunctive relief prohibiting Defendants/Respondents and Defendants/Real Parties in Interest (and any and all persons acting at the request of, in concert with, or for the bene?t of one or more of them) from taking any action on any aspect of, in furtherance of, or otherwise based on the Project's approval unless and until Defendants/Respondents and Defendants/Real Parties in Interest have complied with all applicable provisions of CEQA, as determined by the Court. 4. A writ of mandate ordering Defendants/Respondents to comply fully with CEQA with respect to the Project before any action on any aspect of, in furtherance of, or otherwise based on the Project?s approval may commence or continue. 5. Any and all other relief that may be authorized by CEQA but is not explicitly or speci?cally requested elsewhere in this Prayer. COMPLAINT FOR DECLARATORY AND INIUNCTIVE RELIEF ETC. Page 1 1 B. On the Second Cause of Action: 1. A judgment determining or declaring that Defendants/Respondents failed to comply fully with the SDMC with respect to the Project and that the Project?s approval is illegal in at least some respect, thereby rendering the approval void. 2. A judgment determining or declaring that Defendants/ Respondents must comply fully with the SDMC with respect to the Project before the Project may lawfully be approved. 3. Injunctive relief prohibiting Defendants/Respondents and Defendants/Real Parties in Interest (and any and all persons acting at the request of, in concert with, or for the bene?t of one or more of them) from taking any action on any aspect of, in ?ntherance of, or otherwise based on the Project?s approval unless and until Defendants/Respondents have complied with all applicable provisions of the SDMC, as determined by the Court. 4. A writ of mandate ordering Defendants/Respondents to comply fully with the SDMC with respect to the Project before any action on any aspect of, in furtherance of, or otherwise based on the Project?s approval may commence or continue. 5. Any and all other relief that may be authorized by the SDMC but is not explicitly or speci?cally requested elsewhere inthis Prayer. C. 0n the Third and Fifth Causes of Action: 1. A judgment determining or declaring that Defendants/Respondents failed to comply fully with the City Charter with respect to the Project and that the Project?s approval is illegal in at least some respect, thereby rendering the approval void. 2. A judgment determining or declaring that Defendants/Respondents must comply fully with the City Charter with respect to the Project before the Project may lawfully be approved. 3. Injunctive relief prohibiting Defendants/Respondents and Defendants/Real Parties in Interest (and any and all persons acting at the request of, in concert with, or for the bene?t of one or more of them) from taking any action on any aspect of, in furtherance of, or otherwise based on the Project?s approval unless and until Defendants/Respondents have complied with all applicable provisions of the City Charter, as determined by the Court. COMPLAINT FOR DECLARATORY AND INJUNCTWE RELIEF ETC. Page 12 4. A writ of mandate ordering Defendants/Respondents to comply fully with the City Charter with respect to the Project before any action on any aspect of, in furtherance of, or otherwise based on the Project?s approval may commence or continue. 5. Any and all other relief that may be authorized by the City Charter but is not explicitly or speci?cally requested elsewhere in this Prayer. D. On the Fourth Cause of Action: 1. A judgment determining or declaring that Defendants/Real Parties in Interest failed to comply fully with the Labor Code?s prevailing-wage requirements as applicable to the Project. 2. A judgment determining or declaring that Defendants/Real Parties in Interest must comply fully with the Labor Code?s prevailing-wage requirements as applicable to the Project, including the payment of unpaid wages to the employees entitled thereto. 3. A judgment against Defendants/Real Parties in Interest and in favor of the employees on the Project who were not paid prevailing wages in the amount to which they are entitled plus any interest and penalties, all according to proof. 4. Any and all other relief that may be authorized by the Labor Code but is not explicitly or speci?cally requested elsewhere in this Prayer. E. An order providing for?the Court?s continuing jurisdiction over this proceeding in order to ensure that Defendants/Respondents and Defendants/Real Parties in Interest comply with all applicable laws. F. All attorney fees and other legal expenses incurred by Plaintiff in connection with this proceeding. G. Any further relief that this Court may deem apprOpriate. Date: September 9, 2013. Respectfully submitted, GGS AW CORPORATION ii. BRI By: Ody I. Bfuggs Attorneys for Plaintiff and Petitioner COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF arc. Page l3