Ruegg & Ellsworth v. City of Berkeley ( 2023 )

Filed 3/14/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
RUEGG & ELLSWORTH et al.,
Plaintiffs and Respondents,
A164749
v.
CITY OF BERKELEY et al., (Alameda County
Super. Ct. No. RG18930003)
Defendants and Appellants,
CONFEDERATED VILLAGES of
LISJAN et al.,
Interveners and Appellants.
The sole issue on this appeal is whether the trial court exceeded the
scope of our remand instructions in Ruegg & Ellsworth v. City of Berkeley
(2021) 63 Cal.App.5th 277 (Ruegg I). In that prior appeal, we reversed the
trial court’s denial of a petition for writ of mandate by which developers
sought to compel the City of Berkeley (City) to grant a permit they had
applied for pursuant to Government Code1 section 65913.4, which provides
for streamlined approval of certain affordable housing projects. Holding that
denial of the permit violated section 65913.4, we remanded the case with
directions for the trial court to grant the writ petition.
Further statutory references will be to the Government Code unless
1
otherwise specified.
1
On remand, in addition to granting the writ petition, the trial court
found that denial of the permit application violated the Housing
Accountability Act (HAA) (§ 65589.5) as well as section 65913.4. The
developers’ writ petition had alleged violation of both statutes, but the trial
court did not address the HAA issues in its first judgment and we found it
unnecessary to address them in our Ruegg I opinion.
We conclude the trial court had jurisdiction to entertain and decide the
HAA issues.2
BACKGROUND
The statutes at issue in this case are among the measures the
California Legislature has adopted over the years in efforts to address the
crisis of insufficient housing and, in particular, affordable housing. (Ruegg I,
supra, 63 Cal.App.5th at pp. 295-297.) Section 65913.4 provides for
streamlined, ministerial approval of affordable housing projects meeting
specified requirements and conditions. (Id. at p. 286.) The HAA, in brief,
prohibits local agencies from disapproving a housing development project for
very low, low- or moderate-income households without making specified
written findings. (Id. at pp. 295-296; § 65589.5, subd. (d).)
In 2018, the City denied an application by Ruegg & Ellsworth and
Frank Spenger Company (Ruegg) for ministerial approval of a mixed-use
development pursuant to section 65913.4. (Ruegg I, supra, 63 Cal.App.5th at
2 Ruegg and intervenors Confederated Villages of Lisjan (CVL) filed
writ petitions challenging the trial court’s order requiring them to post a
bond pursuant to section 65589.5, subdivision (m), which provides that a local
agency appealing a judgment “shall post a bond, in an amount to be
determined by the court, to the benefit of the plaintiff if the plaintiff is the
project applicant.” In light of this opinion, the writ petitions are moot and
will be dismissed by separate orders.
2
pp. 292-293.)3 Ruegg challenged the denial with a petition for writ of
mandate, alleging that it violated both section 65913.4 and the HAA. The
Confederated Villages of Lisjan (CVL) intervened in the action. (Id. at p.
294.)
The trial court found the City did not err in determining it was not
required to approve the proposed project under section 65913.4 and denied
Ruegg’s petition for writ of mandate on that basis, without reaching the HAA
issues. (Ruegg I, supra, 63 Cal.App.5th at p. 294.) We disagreed and directed
the trial court to grant the writ petition. Our disposition stated, “The
judgment is reversed. The matter is remanded to the trial court with
directions to grant the petition for writ of mandate.” (Id. at p. 329.) We
additionally noted, “Our conclusion that the City's denial of appellants’
application for ministerial approval failed to comply with section
65913.4 makes it unnecessary for us to address [appellant’s] additional
contention that the City's denial violated the HAA.” (Id. at p. 329, fn. 40.)4
On remand, Ruegg argued that in addition to granting the writ
requiring the City to issue the section 65913.4 permit, the trial court should
decide the outstanding HAA issues. The City and CVL argued the court
lacked jurisdiction to do so because deciding these issues would exceed our
The application was for a mixed-use development at 1900 4th Street
3
in Berkeley (Spenger’s parking lot). (Ruegg I, supra, 63 Cal.App.5th at pp.
286-287.)
Our opinion inadvertently referred to “respondents’ and CVL’s
4
additional contention that the City’s denial violated the HAA.” (Ruegg I,
supra, 63 Cal.App.5th at p. 329, fn. 40.) Context makes clear that the
argument we were referring to was Ruegg’s, and the trial court so understood
our meaning.
3
remand directions. The court ordered briefing on the issue and set a hearing
date.
At the hearing on October 29, after argument, the trial court concluded
that it should determine the as yet undecided HAA issues. The court
reasoned that it could not avoid ruling on these issues because they had been
briefed, had not been waived, and had not been determined “by anybody,” but
rather “fell by the wayside because of the denial as to the SB 35 claim.”
Accordingly, the court believed it would “most closely comply with the court of
appeal’s instructions” by issuing a writ of mandate on the first cause of action
(violation of § 65913.4) and bifurcating the remainder of the causes of action
(violation of the HAA, injunctive relief, declaratory relief) for determination
on the existing record. The court set a hearing date over two months in the
future to allow the City and CVL to “file a writ and test whether the court of
appeal actually was making a determination about the previous denial of a
petition being—including the Housing Accountability Act.”5
On November 3, 2021, following our instructions on remand, the trial
court granted the writ petition with respect to the first cause of action and
ordered issuance of a peremptory writ commanding the City to issue the
permits required by section 65913.4 and to file a return to the writ within 30
days. Its order further concluded that it had jurisdiction, and was obligated,
to address the merits of the remaining causes of action and set a briefing
schedule and hearing date. The writ issued the same day.
The City filed a petition for writ of prohibition/mandate in this court
5
challenging the trial court’s decision to hear and decide the HAA claims,
which we denied on December 7, 2021.
4
The City rescinded its denial of Ruegg’s permit application and, on
December 8, 2021, issued the permit and filed its return to the writ in the
trial court.
The trial court hearing on the merits of the HAA claims took place on
February 4, 2022. After hearing the parties’ arguments, the court concluded
that the City’s denial of the section 65913.4 permit application violated the
HAA.
On February 22, 2022, the court filed its order granting the petition
with respect to the second, third, fourth and fifth causes of action.6 As to the
second and third causes of action, the court found that the City’s disapproval
of the project application violated the HAA; found the necessary action for
compliance was for the City to grant the permit and otherwise comply with
the November 2021 order and writ of mandate; and stated it was exercising
continuing jurisdiction to determine whether to order further remedies
pursuant to section 65589.5, subdivisions (k) and (l), or other applicable law,
if the City did not comply with the court’s writ and orders. As to the fourth
and fifth causes of action, the court found Ruegg was entitled to the “albeit
duplicative” injunctive relief ordered in the writ and declared that the HAA
and section 65913.4 both apply to the project; that both laws required the
City to approve the project; that the City violated both laws when it
disapproved the project; and that Ruegg “may seek such post-judgment relief
as may be available for a violation of the HAA as well as for a violation of SB
6The court’s order states that the project is a housing development
project that complied with applicable objective standards and qualified as a
housing development project for very low, low- or moderate-income
households; Ruegg was entitled to the permit; and the City disapproved the
project without making the findings required by the HAA.
5
35.” The court entered judgment in favor of Ruegg and retained jurisdiction
over costs and attorneys’ fees.
The City and CVL filed timely notices of appeal.
DISCUSSION
The City argues that the trial court lacked jurisdiction to decide the
merits of the HAA claims because doing so would exceed the scope of our
remand instructions in Ruegg I. The City additionally argues that Ruegg
forfeited the HAA claims by failing to seek rehearing in Ruegg I in order to
ask us to modify the remand instructions to include further proceedings on
the HAA claims. CVL, in addition to joining the City’s arguments, contends
the trial court erred in determining the HAA claims because they were
rendered moot by the issuance of the writ of mandate. Neither the City nor
CVL challenge the merits of the trial court’s decision, only the court’s
authority to address these issues.
A. Governing principles
“ ‘A reviewing court has authority to “affirm, reverse, or modify any
judgment or order appealed from, and may direct the proper judgment or
order to be entered, or direct a new trial or further proceedings to be had.”
(Code Civ. Proc., § 43.) The order of the reviewing court is contained in its
remittitur, which defines the scope of the jurisdiction of the court to which
the matter is returned.’ (Griset v. Fair Political Practices Com. (2001) 25
Cal.4th 688, 701 . . . ; accord, Snukal v. Flightways Manufacturing, Inc.
(2000) 23 Cal.4th 754, 774, fn. 5 [‘the terms of the remittitur define the trial
court's jurisdiction to act’].) ‘The trial court is empowered to act only in
accordance with the direction of the reviewing court; action which does not
conform to those directions is void.’ (Hampton v. Superior Court (1952) 38
Cal.2d 652, 655 [(Hampton)].)” (Ayyad v. Sprint Spectrum, L.P. (2012) 210
6
Cal.App.4th 851, 859 (Ayyad).) ‘The issues the trial court may address in the
remand proceedings are therefore limited to those specified in the reviewing
court's directions, and if the reviewing court does not direct the trial court to
take a particular action or make a particular determination, the trial court is
not authorized to do so. [Citations.]” (Id. at pp. 859–860.) “Any material
variance from the directions is unauthorized and void.” (Butler v. Superior
Court (2002) 104 Cal.App.4th 979, 982 (Butler); In re Candace P. (1994) 24
Cal.App.4th 1128, 1131.)
We review de novo a claim that the trial court did not follow the
directions contained in the dispositional language of our previous opinion.
(Ayyad, supra, 210 Cal.App.4th at p. 859.) We look to the wording of our
directions, read in conjunction with the opinion as a whole. (Ibid.; Bach v.
County of Butte (1989) 215 Cal.App.3d 294, 302 (Bach).)
B. Scope of our remand instructions
As earlier indicated, our disposition in Ruegg I remanded the case to
the trial court “with directions to grant the petition for writ of mandate.”
(Ruegg I, supra, 63 Cal.App.5th at p. 329.) The City argues that deciding the
HAA issues exceeded the scope of our directions because it was unnecessary
to decide these issues in order to issue the writ.
The City likens this case to Hampton, supra, 38 Cal.2d 652. In that
case, a contractor prevailed on contract claims against property owners,
whose cross complaint for loss of rent was rejected. (Id. at p. 654.) The
judgment was reversed on appeal with directions for the trial court to enter
judgment denying the contractor relief on the contract and denying the
property owners recovery for rent. (Ibid.) The trial court, however, set the
matter for further trial on additional issues the contractor sought to raise,
which Hampton characterized as a theory of quantum meruit. (Id. at p. 655.)
7
Hampton issued a writ of prohibition, holding that the appellate court’s order
to enter judgment against the contractor precluded trial on additional issues.
(Id. at p. 656.)
We do not share the City’s view that Hampton is analogous to the
present case. In Hampton, the quantum meruit theory had never been raised
prior to the reversal and remand and, if successful, would have undermined
the appellate court’s order. (38 Cal.2d at p. 656.) Here, Ruegg’s petition for
writ of mandate alleged violations of the HAA as well as of section 65913.4,
neither the trial court nor this court had addressed the HAA issues, and
determining them would not change the result we ordered, only inform the
relief Ruegg would be entitled to under the writ we directed the trial court to
issue.
The other cases the City discusses also involve situations distinct from
the one before us. In Bach, supra, 215 Cal.App.3d 294, the county sued to
enforce a zoning regulation prohibiting operation of a law practice in a
residence and the property owner cross complained, alleging civil rights
violations. (Id. at p. 299.) The trial court denied injunctive relief as to the
property owner’s practice of law at the residence under an exception in the
zoning regulation for occupants of the residence, but enjoined the property
owner from employing anyone who did not reside on the premises. (Ibid.)
The appellate court found the exception did not apply, reversed the denial of
injunctive relief to the county, and “remanded the matter ‘for further
proceedings consistent with this opinion.’ ” (Id. at p. 302.) The property
owner then sought an evidentiary hearing on changed circumstances in the
neighborhood between the time of trial and issuance of the remittitur. (Id. at
p. 300.) Bach upheld the trial court’s refusal to conduct the evidentiary
hearing, explaining that “[r]ead in conjunction with the appellate opinion as a
8
whole, the Bach I remand for further proceedings simply directed the trial
court to vacate the injunction it previously issued and ordered the court to
issue a new injunction consistent with the Bach I opinion, i.e., enjoining the
Bachs from [conducting a law practice on the premises]. The opinion did not
direct or authorize the trial court to hold the evidentiary hearing sought by
the Bachs.” (Id. at p. 303.) As in Hampton, supra, 38 Cal.2d 652, the issues
the property owner sought to raise on remand were new to the case and, if
successful, would have led to a result contrary to the appellate court’s order.
Butler, supra, 104 Cal.App.4th 979, is to similar effect. The trial court
struck the defendant’s answer due to discovery noncompliance and, after a
default prove-up hearing, ordered nominal damages for the plaintiffs. (Id. at
p. 981.) The case was reversed on appeal on the basis that the ruling was
arbitrary and disregarded evidence presented at the hearing. (Ibid.)
Remand instructions directed the trial court to “enter a new default judgment
in accordance with the evidence [plaintiff] presented at the default prove-up
hearing . . . .” (Ibid.) On remand, however, the trial court granted the
defendant’s motion for reconsideration of the order striking her answer and
ordered that the defendant could call witnesses at trial with specified notice
to the plaintiffs. (Ibid.) Butler held the trial court materially departed from
the remand order, which directed reevaluation of the evidence presented at
the prove-up hearing and “did not leave open the option of reconsidering prior
rulings or reopening the case on the facts and allowing a trial.” (Id. at p.
982.)
In Ayyad, supra, 210 Cal.App.4th 851, the case the City most heavily
relies upon, the initial appeal affirmed a judgment for the plaintiffs and order
granting plaintiffs a partial new trial on specific damages issues, and
remanded for proceedings limited to retrial of those damages issues. (Id. at
9
p. 854.) On remand, the defendant moved to compel arbitration of the same
claims that had been resolved by affirmance of the judgment. (Ibid.) The
trial court properly refused to entertain the motion to compel because its
jurisdiction was limited to the issues specified in the dispositional language
of the appellate court’s opinion. (Ibid.) Ayyad rejected the defendant’s
suggestion that the trial court was free to consider the arbitration motion
because the initial appellate opinion did not address arbitration, holding that
a trial court’s jurisdiction on remand “extends only to those issues on which
the reviewing court permits further proceedings” and the trial court “may not
expand the issues on remand to encompass matters outside the scope of the
remittitur merely because the reviewing court has not expressly forbidden
the trial court from doing so.” (Id. at p. 863.) It was particularly easy for
Ayyad to reject the defendant’s argument because the remand directions
expressly limited the matters to be retried to the specified damages issues
and the defendant’s motion to compel arbitration sought to relitigate the
entire controversy. Indeed, Ayyad described the motion to compel arbitration
as an “11th-hour attempt to undo the result of years of litigation.” (Id. at p.
864.)
All these cases involved obvious departures from remand instructions:
introduction of a new theory of recovery, not previously presented to the trial
or appellate court, by the party against whom the appellate court ordered
judgment to be entered (Hampton); reconsideration of a prior trial court order
so as to allow a trial when the remand instructions called for entry of a
default judgment (Butler); request for an evidentiary hearing on changed
circumstances after the appellate court ordered specific injunctive relief
(Bach); relitigation of the entire case on a remand for retrial solely on
specified damages issues (Ayyad).
10
Conversely, the cases the City offers to illustrate proceedings on
remand that are appropriate despite not being “specifically directed” by the
remand instructions involve proceedings that were patently necessary to
effectuate the remand instructions. In both Carroll v. Civil Service Com.
(1973) 31 Cal.App.3d 561 (Carroll) and Currieri v. City of Roseville (1975) 50
Cal.App.3d 499 (Currieri), the appellate court ordered reinstatement of an
improperly fired employee with back pay, a party challenged an aspect of the
trial court’s calculation of the award on remand, and the subsequent appeal
confirmed the trial court’s authority to make the findings needed to
determine the appropriate amount of the award.7 Clearly, where an
7 The first appeal in Carroll, supra, 31 Cal.App.3d 561 reversed an
order for back pay because it did not include offsets to which the county
employer might be entitled, noting examples of potential offsets, and directed
that the employee be restored to his job with “ ‘whatever back pay he may
legally be entitled to receive.’ ” (Id. at p. 564.) The issue on the second
appeal was the validity of an offset that was not one of the examples noted in
the first opinion. Carroll did not address any question whether the trial
court exceeded the scope of the remand instructions; it simply stated that the
first appeal did not resolve the question because, while that opinion was law
of the case with respect to the questions it decided, it “did not purport to
decide all of the possible offsets to which the county may be legally entitled”
and “was exemplary, not exhaustive.” (Id. at p. 564.)
In Currieri, supra, 50 Cal.App.3d 499, another back pay case, the
remanding court noted that “ ‘earnings from other sources’ ” must be
deducted from any back payments due. (Id. at p. 502.) On remand, the trial
court denied back pay for a period in which the court found the employee
failed to satisfy his duty to mitigate damages. (Id. at p. 502.) Relying in part
on Carroll, Currieri rejected the argument that the trial court exceeded its
jurisdiction and could not consider the mitigation issue, holding that the
remand instruction to deduct earnings from other sources was not
“exhaustive” but rather “avoided any impression that the trial court was
limited on remand to a mathematical award of back pay without a full
inquiry.” (Id., 50 Cal.App.3d at p. 503.)
11
appellate court orders a money judgment, it is necessary for the trial court to
determine the amount of the award. But this illustration of the point that a
trial court is authorized to take actions that are not expressly stated in
remand instructions but necessary to effectuate the instructions does little to
inform analysis of the issues in the very different circumstances of the
present case.
Here, the trial court did as we directed: It issued the writ of mandate
compelling issuance of the permit required under section 65913.4. The
question is whether it exceeded the scope of our remand order by then
determining, in light of our holding that the City’s disapproval of the permit
violated section 65913.4, the as yet unadjudicated issue of whether the
disapproval also violated the HAA.
The City takes too narrow a view in arguing that it was not necessary
to decide the HAA issues because, pursuant to our remand instructions, the
City would have to, and did, issue a section 65913.4 permit. While the trial
court did not need to decide the HAA issues in order to compel the City to
issue a permit under section 65913.4, deciding those issues was necessary to
fully resolve whether Ruegg was entitled to the relief sought by its petition –
that is, the extent of the relief afforded by granting the writ petition.
The HAA issues were not new to the case: They had been presented to
the trial court and to this court in Ruegg I. The trial court had not addressed
them, presumably because its determination that section 65913.4 did not
require the City to approve the project resolved the case: Ruegg had applied
for a permit under section 65913.4’s streamlined, ministerial approval
process and the trial court’s finding that the City’s denial complied with that
process meant Ruegg was not entitled to the permit regardless of any issues
under the HAA. Our subsequent determination that Ruegg was entitled to
12
approval of its project under section 65913.4 made the HAA issues relevant,
but it was not necessary for us to decide them because the error with respect
to section 65913.4 required reversal of the trial court’s order and issuance of
the writ compelling compliance with section 65913.4 without regard to the
HAA.
Contrary to the City’s characterization, we did not hold that “further
litigation of the HAA claims is not necessary” or that “consideration of the
HAA claims is unnecessary to the outcome.” We said it was “unnecessary for
us to address” the HAA claims. There is nothing unusual about an appellate
court declining to resolve in the first instance issues that a trial court’s initial
erroneous ruling made it unnecessary for the trial court to address. (See
American Foreign Service Assn. v. Garfinkel (1989) 490 U.S. 153, 161
[declining to decide issue without benefit of lower court’s analysis].) Our
decision resolved the merits of the section 65913.4 issues upon which the trial
court based its decision to deny Ruegg’s writ petition and left the undecided
HAA issues undecided.
Had we simply reversed the trial court’s judgment, all issues in the
case would have been subject to relitigation. “[I]n general, ‘ “[a]n unqualified
reversal remands the cause for a new trial . . ., [citation], and places the
parties in the trial court in the same position as if the cause had never been
tried, with the exception that the opinion of the court on appeal must be
followed so far as applicable.” [Citation.] This principle is equally applicable
to a partial reversal of a judgment.’ (Hall v. Superior Court (1955) 45 Cal.2d
377, 381 . . . ; accord, e.g., Bevis v. Terrace View Partners, LP (2019) 33
Cal.App.5th 230, 263.)” (Rincon EV Realty LLC v. CP III Rincon Towers, Inc.
(2019) 43 Cal.App.5th 988, 1001.)
13
Our disposition in Ruegg I strictly limited what the trial court could do
on remand with respect to the issues we decided—that the City violated
section 65913.4 and Ruegg was entitled to issuance of the ministerial permit.
We directed the trial court to issue the writ of mandate and the trial court
had no choice but to do so. But this resolved only the issues under section
65913.4. In stating that it was not necessary for us to address the HAA
issues, we did no more than leave those issues—which had not yet been
addressed by the trial court—open for determination by the trial court.
The City maintains that the trial court “varie[d] materially” from our
remand instructions by holding proceedings on the HAA issues, in that
resolution of these issues would add nothing to the relief afforded by granting
the writ and issuing a permit under section 65913.4. In the City’s view, the
lack of necessity for deciding the HAA issues is demonstrated by the fact that
the trial court granted the writ petition and issued the writ of mandate before
hearing and deciding the section HAA issues. The City sees the trial court as
having confirmed the lack of necessity, and its understanding that resolving
the HAA issues added nothing, by its order stating that “the necessary action
City must take to comply with the HAA” was to “grant the permit and
otherwise comply” with the previously issued court order and writ.
The City’s premise—that resolving the HAA issues added nothing to
the relief afforded by the writ of mandate—is not accurate. The initial writ of
mandate compelled issuance of the permit required by section 65913.4. But
this was not the full relief sought by Ruegg’s writ petition. Unlike section
65913.4, section 65589.5 authorizes a court not only to require the local
jurisdiction to approve a project (in the specified circumstances) but also to
order compliance with statutory requirements regarding conditions on the
project, to retain jurisdiction to ensure its orders are carried out, to impose
14
fines for noncompliance and to award attorney fees. Accordingly, here, once
the trial court found that the City violated the HAA, it modified its judgment
to include that it was “exercis[ing] continuing jurisdiction to determine
whether to order further remedies pursuant to Gov. Code § 65589.5, subds.
(k) and (l), or other applicable law, if the City were not to comply” with the
court’s writ and orders, and that Ruegg “may seek such post-judgment relief
as may be available for a violation of the HAA as well as for a violation of SB
35.”
We do not agree with the City’s suggestion that interpreting our
disposition to permit resolution of the HAA claims would permit trial courts
to “hold any and all proceedings on remand that [do] not strictly violate the
law of the case doctrine.” This case presents a particular procedural scenario.
To reiterate, our direction in Ruegg I for the trial court to grant the petition
for writ of mandate was based solely on our conclusion that the City failed to
comply with section 65913.4. We expressly stated that this conclusion made
it unnecessary for us to address the HAA issues. Ruegg’s writ petition
alleged violation of the HAA as well as section 65913.4, but the trial court
had no reason to consider the HAA issues once it (erroneously) determined
that the City properly refused to approve the project under section 65913.4.
After we reversed the trial court’s decision, the HAA issues became relevant
to define the terms of the writ. We did not intend, and we do not believe our
opinion in Ruegg I cannot reasonably be read as contemplating, that the HAA
issues would simply drop out of the case without resolution. To the extent
our disposition was ambiguous, it is to be interpreted “ ‘in light of the law and
the appellate opinion.’ ” (Ayyad, supra, 210 Cal.App.4th at p. 863, fn. 7; see
In re Justin S. (2007) 150 Cal.App.4th 1426, 1435 [“To the extent that the
dispositional language used in our remittitur did not expressly state that
15
appellant, as the prevailing party on the only issue in the appeal, was to be
included in proceedings on remand to remedy the error, the opinion as a
whole compels that interpretation”].)
The trial court did not err in concluding it had jurisdiction to resolve
the HAA issues.
C. Forfeiture
The City contends that Ruegg forfeited the HAA claims by failing to
seek rehearing of our Ruegg I opinion in order to request modification of the
remand instructions to encompass further proceedings on the HAA claims.
“A petition for rehearing is the correct remedy to address material
inaccuracies or omissions in a disposition.” (Ducoing Management, Inc. v.
Superior Court (2015) 234 Cal.App.4th 306, 314.) “ ‘[I]f a court of review
inadvertently omits to include in its instructions to a trial court upon the
reversal of a judgment essential elements within the issues necessarily
determined on the appeal, the aggrieved party has his remedy in a petition
for rehearing. A trial court may not exceed the specific directions of a court of
review in remanding a cause after a reversal of the judgment on appeal and
add thereto conditions which it assumes the reviewing court should have
included.’ [Citation.]” (Hampton, supra, 38 Cal.2d at p. 656.)
The City’s argument depends on its characterization of our disposition
in Ruegg I as suffering from material inaccuracies or omissions. By not
expressly directing the trial court to consider and determine the HAA issues,
however, we did not omit “essential elements within the issues necessarily
determined on the appeal.” (Hampton, supra, 38 Cal.2d at p. 656.) Our
opinion decided only the section 65913.4 issues. We did not determine the
HAA issues and the trial court had not determined them; we simply found it
unnecessary to decide them in the first instance. Ruegg was not required to
16
seek rehearing in order to preserve the HAA issues because our disposition,
read together with footnote 40 and the opinion as a whole, gave no reason to
believe the HAA issues were not to be resolved.
D. Mootness
CVL argues that Ruegg’s HAA claim was rendered moot when the trial
court issued the writ of mandate. “A case is considered moot when ‘the
question addressed was at one time a live issue in the case,’ but has been
deprived of life ‘because of events occurring after the judicial process was
initiated.’ ” (Wilson & Wilson v. City Council of Redwood City (2011) 191
Cal.App.4th 1559, 1574, quoting Younger v. Superior Court (1978) 21 Cal.3d
102, 120.) “The pivotal question in determining if a case is moot is . . .
whether the court can grant the plaintiff any effectual relief.” (Ibid.)
CVL argues that the trial court’s issuance of the writ of mandate
requiring the City to issue the section 65913.4 permit to Ruegg mooted the
HAA issues because a ruling on those issues could not provide effectual relief,
especially since the City has issued the permit. Responding to one of Ruegg’s
arguments in the trial court,8 CVL maintains that the fact the HAA provides
for an award of attorneys’ fees to the prevailing plaintiff/petitioner in an
enforcement action is insufficient to avoid finding the claims moot because “it
is settled that an appeal will not be retained solely to decide the question of
liability for costs.” (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134
(Paul).) CVL acknowledges that appellate courts will retain jurisdiction
8 Ruegg argued the HAA issues were not moot because of the remedies
available under the HAA, including but not limited to attorneys’ fees. Ruegg
also argued it was not reasonable to view the HAA issues as moot when the
City only issued the permit because this court and the trial court ordered it to
do so.
17
despite mootness of the underlying claims where an appeal also challenges an
existing attorneys’ fees award, because review of underlying claims is
necessary for review of the fee award, but distinguishes such cases from ones
in which there has not yet been a fee award. Here, the trial court issued the
writ of mandate before determining the HAA issues that would support
awarding attorneys’ fees.
We need not determine whether the availability of attorneys’ fees alone
would be sufficient to find the HAA issues were not moot.9 Attorneys’ fees
are not the only relief available under the HAA that is not available under
section 65913.4. As we have said, the HAA authorizes a trial court that finds
a violation of the statute with respect to approval of a project or conditions
imposed on it to compel compliance, retain jurisdiction to ensure enforcement
of its orders and impose fines for noncompliance.10 (§ 65589.5, subd. (k).)
9 Paul, supra, 62 Cal.2d at p. 134, and the cases it cited, held that an
appeal which has become moot will not be retained where the only remaining
issue is liability for appellate costs. That holding is not necessarily
dispositive of the question whether the potential for recovery of attorneys’
fees in proceedings to enforce the HAA can be considered effectual relief
where the local agency alleged to have violated the HAA has been compelled
to approve a project under a separate law. Additionally, at least one court
has questioned “the wisdom of mechanically denying review” where only
liability for costs is at issue. (Cinnamon Square Shopping Center v.
Meadowlark Enterprises (1994) 24 Cal.App.4th 1837, 1843, fn. 2.)
10 CVL asserts that Ruegg’s “potential, unadjudicated, claims for
enforcement fines or attorneys’ fees are no different than the potential,
unadjudicated, claim for costs at issue in Paul.” CVL sees the possibility of
“recovering fines” as “squarely within Paul’s rationale,” but this point is far
from self-evident. Paul did not present any “rationale” for the rule that
liability for costs, alone, is insufficient to avoid finding an appeal moot; it
simply cited cases supporting its statement that the point was “settled.”
(Paul, supra, 62 Cal.2d at p. 134.) Moreover, Paul discussed the potential for
“civil penalties” separately from the issue of costs. As to the former, the court
18
Accordingly, determining the merits of the HAA issues did allow the trial
court to provide effectual relief even though it had already compelled the City
to issue the ministerial permit required by section 65913.4. The availability
of these protections is forward-looking; it is not meaningless despite CVL’s
observation that Ruegg has not shown that the City’s conduct “will ever
require any enforcement action pursuant to the HAA.”
DISPOSITION
The judgment is affirmed.
explained that even if a judgment for the penalties was obtained, there was
no possibility of it being paid because the defendant company had lost its
license, become bankrupt and sold all its assets. (Id. at p. 133.) After
explaining why other issues in the case were moot, Paul stated, “Finally, it is
settled that an appeal will not be retained solely to decide the question of
liability for costs.” (Id. at p. 134.)
19
_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Petrou, J.*
A164749, Ruegg & Ellsworth et al. v. City of Berkeley, et al.
* Associate Justice of the Court of Appeal, First Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
20
Court: Alameda County Superior Court
Trial Judge: Hon. Frank Roesch
Berkeley City Attorney’s Office, Farimah Faiz Brown, City Attorney,
Brendan Darrow, Deputy City Attorney; Briscoe Ivester & Bazel, Tony
Francois, Peter Prows; Burke, Williams & Sorensen, Kevin D. Siegel, Megan
A. Burke, Deepa Sharma for Defendants and Appellants
Law Offices of Thomas N. Lippe, Thomas N. Lippe, for Interveners and
Appellants
Holland & Knight, Jennifer L. Hernandez, Daniel R. Golub, Emily M. Lieban;
Reed Smith, Raymond A. Cardozo, Brian A. Sutherland, for Plaintiffs and
Respondents
A164749, Ruegg & Ellsworth et al. v. City of Berkeley, et al.
21