GRESHAM

SAVAGE

Jonathan.Shardlow@GreshamSavage.corn · San Bernardino Office
(909) 890-4499 · fax (909) 890-9877

December 13, 2017

The Honorable Douglas P. Miller
The Honorable Carol D. Codrington
The Honorable Marsha G. Slough
Fourth District of Appeal, Division Two
3389 Twelve Street
Riverside, CA 92510
Re:

Request for Publication:
Creed-21 v. City of Wildomar
(Fourth District Court of Appeal, Division Two, Case No. E066367)

Dear Justices Miller, Codrington, and Slough:

Statement of Interest

Gresham Savage Nolan & Tilden, PC ("Gresham Savage") is a law firm founded in
1910 that practices in the area of land use and environmental law, with an emphasis on
the entitlement of projects in accordance with the California Environmental Quality
Act ("CEQA") and related litigation.
We believe the Opinion should be published because it appears to be the first CEQA
case in which a trial court has issued sanctions pursuant to Code of Civil Procedure
sections 2025.450 and 2023.030, arising from a real party in interest's use of discovery
as a means to obtain evidence for the purpose of challenging a petitioner's claim of
public interest standing.
As discussed below, the Opinion should be published because it meets the standards
for publication set forth in California Rule of Court, rule 8.1105(c)(2) [application of
existing rule of law to a set of facts significantly different from those in published
opinions], (6) [examination of a legal issue of continuing public interest], and (8)
[reaffirmation of a principle of law not applied in a recently reported decision].

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Received by Fourth District Court of Appeal, Division Two

Pursuant to California Rules of Court, rule 8.1120(a), we respectfully request the
publication of the opinion issued by this Court in Creed-21 v. City of Wildomar, Case
No. E066367, filed on November 28, 2017 (the "Opinion").

 Fourth District Court of Appeal, Division Two
December 13, 2017
Page2

Significance of the Opinion
Since 2011, there has been a lack of case law published with regard to how a
petitioner's claim of public interest standing may be investigated and potentially
challenged. As a result of this lack of guidance, there has not been any case law that
has expanded upon the holding of the California Supreme Court in Save the Plastic Bag
Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155 ("Plastic Bag"), in which the
Court explained that:
[W]e do not suggest that public interest standing is freely available to
business interests lacking a beneficial interest in the litigation. No
party, individual or corporate, may proceed with a mandamus petition
as a matter of right under the public interest exception. As the Waste
Management court correctly observed, 'Judicial recognition of citizen
standing is an exception to, rather than repudiation of, the usual
requirement of a beneficial interest. The policy underlying the
exception may be outweighed by competing considerations of a more
urgent nature. [Citations omitted].'

(Plastic Bag, supra, at 170, fn.S.)
Prior to Plastic Bag, there was legal precedent that outlined various issues that may be
raised by a respondent or real party in interest in support of a challenge to a
petitioner's claim of public interest standing.
For example, in Waste Management of Alameda County, Inc. v. Alameda County (2000) 79
Cal.App.4th 1223 ("Waste Management"), the California Court of Appeal, Third
Appellate District, found that a petitioner lacked standing because the real party in
interest provided evidence demonstrating that the petitioner was motivated by
"commercial and competitive interests." (Waste Management at 1235.) Accordingly,
the Court held that the petitioner lacked standing and ordered the matter to be
remanded and dismissed. (See id. at 1240-1241.)
Similarly, in Regency Outdoor Advertising, Inc. v. City of West Hollywood (2007) 153
Cal.App.4th 825 ("Regency"), the California Court of Appeal, Second Appellate
District, found that a petitioner lacked standing because it failed to "dispel the aura of
self-interest masquerading as environmentalism." (Regency at 833.) The Court added
that corporations such as the Sierra Club were the "prototypical corporations" that
would be granted public interest standing; not a "for profit corporation" like the
petitioner. (Id. at 832-833.)

 Fourth District Court of Appeal, Division Two
December 13,2017
Page3

Since the reversal of Waste Management and Regency, through the publication of Plastic
Bag, we have seen numerous CEQA actions filed for what we suspect are anticompetitive or "for profit", economic interests. However, CEQA is not intended to
serve as a medium for these types of lawsuits. Further, we believe that these types of
lawsuits constitute the type of sufficiently "urgent" facts that could and should
"outweigh" a petitioner's claim of public interest standing, which is often claimed
through just one or two vague, boilerplate sentences included within a complaint.
The publication of the Opinion would serve as an important follow up to the holding
of Plastic Bag because, in the instant case, the real party in interest sought to investigate
and obtain evidence of what they alleged to be a defect to the petitioner's claim of
public interest standing. Accordingly, the real party in interest sought to depose the
petitioner's person most knowledgeable on the subject of standing, and also requested
the production of documents that related to the following subjects: the organizational
structure and number of members; the level of control that the petitioner's attorney
had over the organization and its finances; and the assets of the organization. (See
Opinion at pp. 5-6; 11.)
As a result of the petitioner's refusal to comply with the real party in interest's notice
of deposition and request for production of documents, the trial court ultimately
dismissed the case, ruling that the petitioner lacked standing. (See id. at p. 16.)
We believe that the Opinion will serve as important precedent that shows how a
defendant or real party in interest may go about obtaining evidence of a potential
defect to a petitioner's claim of public interest standing, and the types of subjects that
may be relevant (e.g., finances, control of law firm over the organization, the number
of members, etc.).
In addition, we believe that the Opinion will serve as important guidance as to the
scope of discovery that is allowed for in CEQA cases, an issue which is regularly
debated (which results in the unnecessary expenditure of judicial resources, including
hearings on motions for protective orders or motions to compel) in instances where we
seek to raise a challenge to a petitioner's claim of public interest standing, even though
standing is a jurisdictional prerequisite that may be challenged at any time. (See Rialto
Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 912.)

Although the Supreme Court stated in 2011 that, "[t]he policy underlying the [public
interest standing] exception may be outweighed by competing considerations of a
more urgent nature", we believe that the occurrence of activities sufficiently "urgent"
to "outweigh" a claim of public interest standing has become commonplace. These

 Fourth District Court of Appeal, Division Two
December 13,2017
Page4

activities include the use of CEQA litigation as a means to demand one-time monetary
payments in exchange for the dismissal of a lawsuit filed by a law firm representing a
questionable entity with no rational connection to the underlying project, or to
leverage the execution of agreements wholly unrelated to CEQA, such as union
construction contracts.
The Opinion should be published because it "[a]pplies an existing
rule of law to a set of facts significantly different from those stated in
published opinions." (Cal. Rules of Court, rule 8.1105(c)(2).)
We are not aware of any previously reported decision that addresses the application of
a trial court's authority under Code of Civil Procedure sections 2025.450 and 2023.030
to impose an issue, evidence, or terminating sanction in a CEQA action, arising from
the challenge of a petitioner's claim of public interest standing.
In fact, when we ran a search of case law that includes citations to Code of Civil

Procedure sections 2025.450 or 2023.030, that also includes the term "CEQA", the only
search result was the unreported Opinion discussed herein.
Accordingly, the Opinion appears to apply an existing rule of law to a set of facts
significantly different from those in published opinions pursuant to California Rule of
Court, rule 8.1105(c)(2).
The Opinion should be published because it "[i]nvolves a legal issue
of continuing public interest." (Cal. Rules of Court, rule 8.1105(c)(6).)
The Opinion examines a legal issue of continuing public interest, pursuant to
California Rule of Court, rule 8.1105(c)(6)-i.e., the use of discovery to investigate and
assess a petitioner's claim of public interest standing under CEQA and the
implications of a party's refusal to comply with such discovery.
The Opinion should be published because it "reaffirms a principle of
law not applied in a recently reported decision." (Cal. Rules of Court,
rule 8.1105(c)(8).)
The Opinion examines and reaffirms principles of law not applied in a recently
reported decision, pursuant to California Rule of Court, rule 8.1105(c)(8)-i.e., that
discovery is allowed in CEQA actions, and that a petitioner's claim of public interest
standing under CEQA is a jurisdictional prerequisite that may be challenged at any
time. (See Rialto Citizens, supra, 208 Cal.App.4th at 912.)

 Fourth District Court of Appeal, Division Two
December 13, 2017
PageS

*

*

*

We believe the Opinion meets several of the standards for publication set forth in
California Rule of Court, Rule 8.1105(c) and therefore, respectfully request that the
Court certify the Opinion for publication.
Very truly yours,

Jonathan E. Shardlow, Attorney for
GRESHAM SAVAGE
NOLAN & TILDEN,
A Professional Corporation
MPS:tdg
cc:
All counsel of record
Proof of service attached.

 PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SAN BERNARDINO

I am employed in the County of San Bernardino, State of California. I
am over the age of 18 years and not a party to the within action; my business
address is: 550 East Hospitality Lane, Suite 300, San Bernardino, CA 92408.
On December 13, 2017, I served a true copy ofthe within document
described as REQUEST FOR PUBLICATION on the interested parties in this
action as follows:
1 electronic copy (via TrueFiling)
Cory J. Briggs
Briggs Law Corporation
99 East "C" Street, Suite Ill
Upland, CA 91786
Email: cmy@briggslawcorp.com
Attorneys for Plaintiff/Appellant, CREED-21
Amy E. Hoyt
1 electronic copy (via TrueFiling)
Burke Williams & Sorensen, LLP
1600 Iowa A venue, Suite 250
Riverside, CA 92507
Email: ahoyt@bwslaw.com
Attorneys for Defendant/Respondent, CITY OF WILDOMAR
Keli Nicole Osaki
1 electronic copy (via TrueFiling)
Manatt Phelps & Phillips LLP
695 Town Center Drive, 14th Floor
Costa Mesa, CA 92626-1924
Email: kosaki@manatt.com
Attorneys for Real Party in Interest/Respondent,
WAL-MART REAL ESTATE BUSINESS TRUST
I declare under penalty of petjury under the laws of the State of
California that the foregoing is true and correct.
Executed on December 13, 2017, at San Bernardino, California.

TERID. GALLAGH

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