manatt manatt phelps phillips Keli N. Osaki Manatt, Phelps & Phillips, LLP Direct Dial: (714) 371-2539 KOsaki@Manatt.com December 15, 2017 Honorable Douglas P. Miller, Acting Presiding Justice Honorable Carol D. Codrington Honorable Marsha G. Slough California Court of Appeal, Fourth Appellate District, Division Two 3389 Twelfth Street Riverside, CA 92501 Re: Request for Publication of Creed-21 v. City of Wildomar, No. E066367 (opinion issued Nov. 28, 2017) Dear Honorable Justices: Pursuant to California Rules of Court, rule 8.1120, Wal-Mart Real Estate Business Trust and Manatt, Phelps & Phillips, LLP respectfully request that this Court publish its opinion in Creed-21 v. City of Wildomar, filed November 28, 2017. Walmart is the real party in interest in this case. Manatt represents Walmart in this action, as well as numerous other national and local developers and applicants for approvals from government entities. Thus, both Walmart and Manatt have a strong interest in the publication of the opinion. Walmart and other developers are often targets of unincorporated associations motivated by what appears to be economic rather than environmental concerns, which challenge development projects throughout California under the California Environmental Quality Act. Such lawsuits can delay projects for several years or more. Under these circumstances, examining a petitioner’s standing through discovery can effectively and efficiently dispose of lawsuits brought for ulterior motives. The opinion meets several of the criteria warranting publication under Rule 8.1105(c). If published, the opinion would provide valuable guidance to California courts and litigants frequently confronting these issues in the following respects: The opinion reaffirms that discovery is permissible in CEQA cases. Like CREED21 here, petitioners often assert that discovery is not allowed in CEQA actions because, among other reasons, the verified petition alone purportedly contains sufficient allegations to establish standing and discovery would intrude on the privacy of petitioner’s members’ right to privacy. (See Opinion, pp. 5-6, 9.) Thus, respondents and 695 Town Center Drive, 14th Floor, Costa Mesa, California 92626-1924 Telephone: 202.585.6500 Fax: 202.585.6600 Albany Chicago Los Angeles New York Orange County Palo Alto Sacramento San Francisco Washington, D.C. manatt manatt phelps phillips December 15, 2017 Page 2 real parties in interest are often forced to file motions to compel discovery with varying outcomes. The opinion also applies an existing rule of law to facts significantly different from those stated in published opinions and involves a legal issue of continuing public interest. First, it appears that the opinion is the first CEQA case in which a trial court has issued discovery sanctions against a petitioner, under Code of Civil Procedure sections 2025.450 and 2023.030, for its failure to comply with discovery. Publication would be significant for both respondents and real parties in providing a sound mechanism by which to dispose of CEQA lawsuits brought by petitioners which refuse to comply with discovery requests and/or orders on standing. Second, here, Walmart and the City of Wildomar argued that CREED-21 lacked standing because it was a shell corporation used by its attorney to recover attorney fees from respondents and real parties. (Opinion, pp. 4, 11, 19.) The trial court allowed Walmart to seek discovery on this particular issue and ultimately dismissed the case because CREED-21 abused the discovery process. We are unaware of a published CEQA decision in which a court permitted respondents or real parties to conduct such discovery even though exceptions to public interest standing have been emphasized by the Supreme Court in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155. There, the high court cautioned that, “The policy underlying the [public interest] exception may be outweighed by competing considerations of a more urgent nature.” (Id. at p. 170, fn. 5.) The opinion if published would allow CEQA practitioners to pursue discovery based on similar grounds to determine whether or not the petitioner has standing to sue. Accordingly, Walmart and Manatt respectfully request that the opinion be published. MANATT, PHELPS & PHILLIPS, LLP s/ Keli N. Osaki Keli N. Osaki (Bar No. 179920) On behalf of Real Party in Interest Wal-Mart Real-Estate Business Trust and Manatt, Phelps & Phillips, LLP cc: Service List 319537670.2