November 2, 2012

Summary of October 31, 2012 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, October 31, 2012. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal. This week, as last week, we note the Court has depublished a civil case, suggesting the practice of depublication may be enjoying renewed popularity under Chief Justice Cantil-Sakauye.

Review Granted

Sterling Park v. City of Palo Alto, S204771—Review Granted—October 31, 2012

The City of Palo Alto conditions approval of certain residential development applications upon the developer’s compliance with the City’s below market rate (BMR) housing program, set forth in the Palo Alto Municipal Code. This code section requires that housing projects involving the development of five or more acres provide at least 20 percent of all units as BMR units. Plaintiffs planned to construct 96 residential condominiums on 6.5 acres. They sued the city, arguing the City may not lawfully impose BMR affordable housing fees or exactions as a condition of approving the Project.

The questions presented are: (1) whether the BMR housing requirements fall within the language of Government Code sections 66020 and 66021, which “allow[s] a developer to protest the imposition of ‘a fee, tax, assessment, dedication, reservation, or other exaction . . .the payment or performance of which is required to obtain governmental approval of a development . . .’ and to obtain a refund of any overpayments”; and (2) whether Government Code section 66499.37 applies and, if so, whether the trial court abused its discretion in considering it even though the City did not mention this section before filing its motion for summary judgment.

The Court of Appeal, Sixth District, held in an unpublished decision that: (1) sections 66020 and 66021 do not apply to the BMR housing concessions in this case; (2) under section 66499.37, the plaintiffs’ complaint was untimely; and (3) the City could assert section 66499.37 as a defense.

Review Denied (with dissenting justices)

None.

Depublished

Mongols Nation Motorcycle Club v. City of Lancaster, S205306—Court of Appeal Opinion Ordered Depublished on Court’s Own Motion—October 31, 2012

A corporation brought an action against a city and city officials for interference with exercise of civil rights under state law, violation of 42 U.S.C. section 1983, intentional interference with contractual relationship and defamation. The defendants city and city officials filed an anti-SLAPP motion, which the trial court denied. The defendants appealed. While the appeal was pending, the corporation filed a certificate of dissolution.

In Mongols Nation Motorcycle Club, Inc. v. City of Lancaster (2012) 208 Cal.App.4th 124, the Court of Appeal, Second District, Division Three, held the corporation’s dissolution abated its action against the defendants, writing the “continued pursuit of this lawsuit cannot be part of the winding up process of [the corporation], in that the certificate of dissolution indicated the corporation was at all times devoid of any assets, debts or liabilities, and therefore had nothing to wind up.” The Court of Appeal therefore dismissed the defendants’ appeal as moot and remanded to the trial court with directions to dismiss the corporation’s action in its entirety.

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