Cox, Castle & Nicholson LLP 50 California Street, Suite 3200 San Francisco, California 94111-4710 P: 415.262.5100 F: 415.262-5199 Andrew B. Sabey 415.262.5103 asabey@coxcastle.com File No. 99999 December 14, 2017 VIA TRUEFILING Honorable Douglas P. Miller, Acting Presiding Justice Honorable Carol D. Codrington Honorable Marsha G. Slough Court of Appeal Fourth Appellate District, Division Two 3389 12th Street Riverside, CA 92501 Re: Request for Publication: Creed-21 v. City of Wildomar, Case No. E066367 Pursuant to California Rules of Court, Rule 8.1120, and on behalf of the Building Industry Legal Defense Foundation, California Building Industry Association, the Building Industry Association of the Bay Area, and California Business Properties Association (collectively, the “Building Industry”), we respectfully request that this Court publish its opinion in Creed-21 v. City of Wildomar, filed November 28, 2017 (the “Opinion”). As described in more detail below, the Opinion applies laws to a set of facts substantially different than other cases, explaining both rules of standing and discovery in a California Environmental Quality Act (“CEQA”) case. (See California Rule of Court (“Rule”) 8.1105, subds. (c)(2), (c)(3).) Further, in CEQA litigation, lead agencies and real parties often struggle with how to determine if an association has standing when the association declines to name or identify any of its members. Accordingly, the Opinion involves legal issues of continuing public interest. (See Rule 8.1105, subd. (c)(6).) 1. Building Industry’s Interest In Publication Of The Opinion The Building Industry Legal Defense Foundation (“BILD”) is a non-profit mutual benefit corporation and wholly-controlled affiliate of the Building Industry Association of Southern California, Inc. (“BIA/SC”). BIA/SC, in turn, is a non-profit trade association representing over 1,000 member companies. The mission of BIA/SC is to promote a positive business environment for the building industry. BILD’s purposes are, among others, to monitor www.coxcastle.com Los Angeles Orange County San Francisco Received by Fourth District Court of Appeal, Division Two Honorable Justices: December 14, 2017 Page 2 legal and regulatory developments and to intervene when appropriate to improve the legal climate for the building industry. The California Building Industry Association (“CBIA”) is a statewide non-profit trade association comprising approximately 3,000 members involved in the residential development industry. CBIA and member companies directly employ over one hundred thousand people. CBIA is a recognized voice of all aspects of the residential real estate industry in California. The Building Industry Association of the Bay Area (“BIA/BA”) is a non-profit association representing developers and others involved in the residential construction industry in the San Francisco Bay Area. The California Business Properties Association (“CBPA”) serves as the California legislative and regulatory advocate for individual companies, as well as the International Council of Shopping Centers, the California Chapters of the Commercial Real Estate Development Association, the Building Owners and Managers Association California, the Institute of Real Estate Management chapters of California, the Retail Industry Leaders Association and the Association of Commercial Real Estate – Southern California, making CBPA the recognized voice of the commercial, industrial, and retail real estate industries in California representing over 10,000 companies. The holdings of the Opinion are of direct relevance to the Building Industry’s members. These members, as the applicants and advocates for development approvals, are directly affected by the interpretation and application of CEQA, and have a strong interest in ensuring that the law is applied fairly, uniformly, and predictably statewide. 2. The Opinion Meets The Requirements For Publication Because It Explains How Existing Rules Of Discovery And Standing Apply To CEQA The Opinion explains that, in appropriate circumstances, discovery can play an important role in administrative mandamus actions. CEQA litigants often contend no discovery is allowed in CEQA litigation. (See Opinion at p. 5 [petitioner alleged “there was no discovery allowed in administrative mandamus proceedings”].) This is correct when a court is considering factual issues based on an administrative record. The Opinion explains that, where an issue outside the record such as standing arises, not only is discovery allowed in CEQA cases, but failure to abide by discovery rules carries the same exposure to sanctions as in any other civil action. (Opinion at pp. 19–20.) While standing is not a disputed issue in many writ proceedings, where standing is in dispute, it is important for practitioners to recognize and respect their obligations under the Civil Discovery Act. The Opinion clarifies that discovery orders cannot be ignored under the notion that writ practice is immunized against discovery. Accordingly, the Opinion meets the requirements for publication under Rule 8.1105, subdivisions (c)(2) and (c)(3). December 14, 2017 Page 3 The Opinion also involves an issue of continuing public interest. CEQA petitioners are often associations. Due to a lack of published cases on the issue, some lead agencies and real parties mistakenly believe they have no path to explore whether a petitioner organization has standing. This can be particularly important in cases pursued by unincorporated associations, which typically have no public documentation about their membership, and often refuse to identify members. Publication of the Opinion would inform lead agencies and real parties that they have a readily available tool in the right circumstances, when they have a good faith concern about the petitioner association's standing. By the same token, it reminds petitioner's counsel that they cannot ignore discovery or discovery orders that may be entered against them, even ifthey disagree with the premise of the discovery. Clarifying the rules in this arena may help curb CEQA litigation abuse by reinforcing the conclusion that flouting the rules of civil litigation can end a case. Thus the Opinion meets the requirement for publication under Rule 8.1105, subdivision (c)(6). For the foregoing reasons, the Building Industry respectfully requests that this Court publish the Opinion. \ I ~~~p'~ctfun; -- / cc: Service List 1\'(:J _;-~-- ··---~LV\j - ABS/lxk ~ ub i1ffd, J \ \ Andrew B. Sabey y u l\ ' PROOF OF SERVICE AND CERTIFICATION Creed-21 v. City of Wildomar; Walmart Real Estate Business Trust Case Number E066367 CA 4th District Court of Appeal Division 2 I am employed in the County of San Francisco, State of California. I am over the age of 18. My business address is 50 California Street, Suite 3200, San Francisco, California 94111-4710, and my email address is rkeel@coxcastle.com. On December 14, 2017, I served the foregoing document(s) described as Request for Publication: Creed-21 v. City of Wildomar, Case No. E066367 on ALL INTERESTED PARTIES in this action by sending a true copy thereof to the following: See Attached Service List ~ (BY ELECTRONIC TRANSMISSION) I personally electronically served all parties the foregoing document(s) described above through [One Legal Online Court Services/LexisNexis File and Serve System]. Upon completion of the electronic file transmission, an electronic filing receipt page was issued as confirmation that the document(s) was/were received, and filed and served. [CCP §1010.6; CRC §2.251, et seq.] I hereby certify that the above document was prepared and printed on recycled paper. I declare under penalty of perjury that the foregoing is true and correct. Executed on December 14, 2017, at San Francisco, California. ' Rosa !t. Keel · SERVICE LIST Creed-21 v. City of Wildomar; Walmart Real Estate Business Trust Case Number E066367 CA 4th District Court of Appeal Division 2 Party Creed-21 : Plaintiff and Appellant Attorney Cory Jay Briggs Briggs Law Corporation 99 East "C" Street, Suite 111 Upland, CA 91786 Email: cory@briggslawcorp.com City of Wildomar : Defendant and Respondent Amy E. Hoyt Burke Williams & Sorensen, LLP 1600 Iowa Avenue, Suite 250 Riverside, CA 92507 Email: ahoyt@bwslaw.com Walmart Real Estate Business Trust : Real Party in Interest and Respondent 900104\200869123v3 Keli Nicole Osaki Manatt Phelps & Phillips LLP 695 Town Center Drive, 14th Floor Costa Mesa, CA 92626-1924 Email: kosaki@manatt.com