On July 15, 2008, defendant and respondent, City of Rialto (the City), through its city council, adopted several "project approvals," clearing the way for the construction of a large commercial retail center in the City, to be anchored by a Wal-Mart Supercenter (the project). Plaintiff and appellant, Marcus L. Roberson, petitioned the trial court for a writ of administrative mandate (Code Civ. Proc., § 1094.5) invalidating and setting aside the project approvals, namely, a resolution certifying an environmental impact report for the project, resolutions approving general and specific plan amendments for the project site, and an ordinance approving a development agreement for the project.
In his trial brief, Roberson claimed the project approvals were invalid only because the notice of the initial, July 1, 2008, public hearing before the city council on the project approvals did not indicate that the planning commission had recommended the city council adopt the project approvals. (Gov. Code, §§ 65090, 65094;
In January 2013, nearly four years after an April 2, 2009, court trial on Roberson's petition, the trial court entered judgment denying Roberson's petition. Roberson appeals, claiming the judgment must be reversed and the project approvals invalidated and set aside based solely on the defective notice of hearing. He argues only that he presented "unopposed" evidence to the trial court that he was prejudiced by the defective notice of hearing. (§ 65010, subd. (b) [legislative actions under the Planning and Zoning Law may not be invalidated or set aside absent findings of prejudice, substantial injury, and probability of a different result absent the error].)
We affirm the judgment denying Roberson's petition for two independent reasons: (1) Roberson has not demonstrated reversible error because the record on appeal is inadequate to show the trial court erroneously failed to credit Roberson's "evidence of prejudice," and (2) his defective notice claim is barred by res judicata. The claim is in all respects identical to Rialto Citizens's defective notice claim; Rialto Citizens resulted in a final judgment on the merits of the claim; and Roberson is in privity with Rialto Citizens. We decline to decline to dismiss Roberson's appeal as frivolous, though the question is a close one, and we deny real parties' motion for $12,860 in sanctions.
On May 28, 2008, the planning commission held a public hearing and issued several resolutions recommending that the city council adopt the project approvals.
The notice stated that the city council would hold a public hearing on July 1, 2008, to consider the project approvals. The hearing proceeded as noticed on July 1 and, on that date, was continued to July 15 for "final consideration" of the project approvals and to allow City staff to prepare written responses to comments received at the July 1 hearing. At the conclusion of the continued hearing on July 15, the city council adopted the project approvals.
Roberson filed his original writ petition in October 2008, and filed an amended petition in November 2008. In a single cause of action, the amended petition alleged that the notice of the July 1 city council hearing on the project approvals was defective because it failed to include, among other things, "a general explanation of the matter to be considered." (See §§ 65090, 65094.) In his trial brief, he argued only that the notice of the July 1 city council hearing was defective because it did not include the planning commission's recommendations on the project approvals. This point is not in dispute. The parties and we agree the notice was defective because it did not include the planning commission's recommendations on the project approvals. (Environmental Defense Project, supra, 158 Cal.App.4th at pp. 890-893.)
In Environmental Defense Project, the Third District Court of Appeal held that a notice of a public hearing before the Sierra County Board of Supervisors to consider a zoning ordinance amendment was defective because it was given before the county planning commission first considered the amendment. (Environmental Defense Project, supra, 158 Cal.App.4th at pp. 890-893.) Hence, the notice of the hearing before the board did not indicate whether the planning commission was recommending that the board adopt the amendment. (Id. at p. 882.) The notice was required to include, among other things, "a general explanation of the matter to be considered" by the board at its hearing on the amendment (§ 65094), and the court concluded that this "general explanation" included the planning commission's recommendation on the amendment. (Environmental Defense Project, supra, at p. 891.)
Following briefing and oral argument at an April 2, 2009, court trial, the trial court denied Roberson's petition to nullify and set aside the project approvals and adopted its tentative decision as its order denying the petition. The record contains neither a copy of the tentative decision nor a transcript of the April 2, 2009, court trial, and the judgment contains no factual findings. Thus, the record is silent concerning the trial court's reasons for denying Roberson's petition.
Previously, in August 2008, Rialto Citizens petitioned the trial court to invalidate and set aside the project approvals based in part on the same defect in the notice of the July 1 city council hearing that was the subject of Roberson's original and amended petitions. Unlike Roberson, Rialto Citizens participated in the July 1 city council hearing through one of its members, Citizens for Responsible Equitable Environmental Development (CREED). (Rialto Citizens, supra, 208 Cal.App.4th at pp. 912-913.) Through CREED, Rialto Citizens, then an unincorporated nonprofit association, argued the project approvals would violate the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.), the Planning and Zoning Law, and other land use laws.
The judgment in the present action was entered in January 2013, shortly after the California Supreme Court denied review in Rialto Citizens, this court issued its remittitur in the case, and the judgment denying Rialto Citizens's writ petition (and defective notice claim) became final. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2013) ¶ 2:13.5, p. 2-12 (rev. # 1, 2011) [appealable judgment becomes final for all purposes once all avenues for appellate review are exhausted or time frame for appeal has otherwise lapsed].) The same attorneys who represented Roberson throughout the present writ proceedings represented CREED in the July 1 and 15 city council hearings and later represented Rialto Citizens throughout the Rialto Citizens action.
Thus, in Rialto Citizens, we concluded the trial court erroneously invalidated the project approvals and ordered them set aside based solely on the defective notice, without making the necessary factual findings of prejudice, substantial injury, and probability of a different result absent the error. (Rialto Citizens, supra, 208 Cal.App.4th at p. 919.) We distinguished Environmental Defense Project as an action for declaratory relief in which the plaintiff was not seeking to invalidate or set aside the board's adoption of the zoning amendment, but was only seeking a judicial declaration that Sierra County's "`streamlined zoning process,'" of noticing board hearings on actions before its planning commission made recommendations on those actions, violated the Planning and Zoning Law. (Rialto Citizens, supra, at p. 920.)
Roberson claims his petition to nullify and set aside the project approvals based on the defect in the notice of the July 1 city council hearing was erroneously denied. He argues this case differs from Rialto Citizens because here, "the appellate record contains evidence of prejudice to [Roberson], and case law presumes substantial injury and the probability of a different result as a matter of law." For the reasons we explain, Roberson's arguments fail to demonstrate reversible error.
The record on appeal is inadequate to show the trial court somehow erroneously disregarded the "evidence of prejudice" in Roberson's declaration or, more generally, erroneously failed to find that the defective notice of hearing was prejudicial. Indeed, the record is completely silent on why the court denied Roberson's petition. The judgment denying Roberson's petition contains no factual findings, and Roberson's appellant's appendix on appeal includes neither a copy of the trial court's tentative decision, which the trial court adopted as its order denying the petition, or a transcript of the April 2, 2009, court trial on Roberson's petition.
But the administrative record before the trial court did show, and the court was presumably well aware, that the attorneys for Rialto Citizens vigorously challenged the project approvals on behalf of Rialto Citizens at the July 1 city council hearing. The record before the trial court and on this appeal shows the attorneys for Rialto Citizens presented a letter to the city council, which explained in a detailed attachment why the project approvals violated CEQA, the Planning and Zoning Law, the Subdivision Map Act (§ 66410 et seq.), and other laws. The attorneys also submitted an "opposition DVD" for the city council's consideration.
Again, the record on appeal does not indicate that Roberson ever explained to the trial court what written comments or testimony he would have submitted at the July 1 and 15 city council hearings had he known of the
Thus, on this record, Roberson did not demonstrate to the trial court that the defect in the notice of the July 1 city council hearing was prejudicial, resulted in substantial injury to Roberson, or that a different result was probable absent the defect in the notice. (§ 65010, subd. (b).) To the contrary, ample evidence supports the trial court's implied finding — implied in the judgment denying the petition — that the defect in the notice was not prejudicial, did not result in substantial injury to Roberson, and that a different result was not probable if the defect had not occurred. (Ibid.) Even though this court's July 2012 decision in Rialto Citizens was issued after the April 2009 court trial on Roberson's petition, we presume the trial court was aware of the factual findings it was required to make under section 65010, subdivision (b) in order to invalidate the project approvals. (Rialto Citizens, supra, 208 Cal.App.4th at pp. 916-921.)
Sounhein v. City of San Dimas (1992) 11 Cal.App.4th 1255 [14 Cal.Rptr.2d 656] does not assist Roberson's argument. There, the City of San Dimas did not give any notice of hearing and even failed to hold any public hearing on its enactment of a zoning ordinance. (Id. at pp. 1259-1260.) Sounhein concluded that failure to provide notice or hold a hearing "cannot be deemed harmless or nonprejudicial" under section 65010, subdivision (b), given that the omissions were "not a mere minor technical defect [citations], but rather the process was fundamentally flawed by the complete omission of any public notice or hearings ...." (11 Cal.App.4th at pp. 1260-1261.) Here, the defect in the notice at issue was minor and technical; it failed to include the planning commission's recommendations on the project approvals. And here, prejudice was not shown.
The two other cases Roberson relies on are similarly distinguishable. (Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 550 [99 Cal.Rptr. 745, 492 P.2d 1137] [prejudice presumed when entire class of affected landowners were not given notice of a hearing on zoning amendments affecting their properties]; City of Sausalito v. County of Marin (1970) 12 Cal.App.3d 550, 559, 567 [90 Cal.Rptr. 843] ["substantive" defect in rezoning an area by resolution rather than by ordinance was jurisdictional, not a "procedural" defect which could be deemed harmless under former § 65801, predecessor to § 65010, subd. (b)].)
Finally, Roberson faults real parties for failing to bring section 65010, subdivision (b) to the trial court's attention, and claims real parties have therefore waived any claim that the defect in the notice was prejudicial, caused substantial injury to Roberson, or that a different result was probable absent the error. (§ 65010, subd. (b).) We rejected the same argument in Rialto Citizens. Rialto Citizens, supra, 208 Cal.App.4th at p. 920.) Just as it was Rialto Citizens's burden to make the required factual showings in Rialto Citizens, it was Roberson's burden to make the factual showings here, and on this record he did not do so.
Roberson argues his defective notice claim differs from Rialto Citizens because he did not have an opportunity to address the city council on the project approvals, while Rialto Citizens did participate in the July 1 city council hearing. Therefore, he argues, "[his] claim could not include the same prejudice issue" as Rialto Citizens's defective notice claim.
On this record, Roberson's claim that his defective notice claim "could not include the same prejudice issue" is completely devoid of substance. Indeed, Roberson's defective notice claim is identical in all respects to the defective notice claim raised by Rialto Citizens in Rialto Citizens: both claims sought to invalidate the project approvals because the notice of the July 1 city council hearing did not indicate that the planning commission was recommending that the city council adopt the project approvals. (Rialto Citizens, supra, 208 Cal.App.4th at pp. 916-921.)
And as discussed, Roberson never explained to the trial court what comments or testimony he would have submitted to the city council in opposition to the project approvals had he known of the planning commission's recommendations and attended the July 1 hearing. Nor did Roberson
In sum, just as Roberson's claim that he was somehow prejudiced by the defective notice of the July 1 hearing is completely devoid of substance, his claim that "his" prejudice differed from Rialto Citizens's undemonstrated prejudice is equally devoid of substance.
"`In the final analysis, the determination of privity depends upon the fairness of binding [a party to the present proceeding] with the result obtained in earlier proceedings in which it did not participate.... "`Whether someone is in privity with the actual parties requires close examination of the circumstances of each case.'"' [Citations.] [¶] `"`This requirement of identity of parties or privity is a requirement of due process of law.' ... `Due process requires that the nonparty have had an identity or community of interest with, and adequate representation by, the ... party in the first action.'"' [Citations.]
Roberson maintains he is not in privity with Rialto Citizens because he brought his petition "in his own interest," while Rialto Citizens challenged the project approvals on public interest grounds. He claims Rialto Citizens sought to vindicate public interests by challenging the project approvals based on the defective notice, while "he only allege[d] harm to himself." But Roberson never explained to the trial court what "harm to himself" he was seeking to prevent by challenging the project approvals based on the defective notice, and his declaration shows he was seeking to vindicate the same public interests Rialto Citizens was seeking to vindicate, not his private interests.
As we recognized in Rialto Citizens, Rialto Citizens is a nonprofit mutual benefit corporation "formed for the purpose of promoting `social welfare through advocacy for and education regarding responsible and equitable environmental development.'" (Rialto Citizens, supra, 208 Cal.App.4th at p. 915.) By its writ petition in Rialto Citizens, Rialto Citizens sought to "enforce the City's public duties to comply with CEQA and the Government Code in considering" the project approvals. (Ibid.)
In his petition Roberson averred he is "a natural person who resides in the City of Rialto," around three miles from the proposed Wal-Mart Supercenter, and he regularly drove through the intersections near the project site. And in his declaration in support of his trial brief, Roberson effectively admitted he was seeking to vindicate a public interest, not a private one, by challenging the project approvals based on the defective notice of hearing. He averred: "I regularly read local and regional newspapers like the San Bernardino County Sun in order to find out what is happening in and around my community. Matters in the public sphere and in the private sphere are of interest to me. Among the matters that interest me in the public sphere are the hearings by the City of Rialto's city council .... [¶] ... I am opposed to the proposed Wal-Mart Supercenter because in my view it is likely to harm the community and should not have been approved, but I am even more troubled by the City's failure to follow the procedures that the law requires for giving consideration to such proposals in the first place...." (Italics added.)
Roberson's declaration completely belies his claim that he brought his petition in his own interest rather than the public interest. Indeed, his declaration shows he challenged the project approvals based on the defective notice because the project was "likely to harm the community" and in order
Thus, the record on appeal and our decision in Rialto Citizens shows Roberson "`"`had an identity or community of interest with, and adequate representation by'"'" Rialto Citizens on his defective notice claim, both during the July 2008 city council hearings and in the Rialto Citizens action. (Gottlieb v. Kest, supra, 141 Cal.App.4th at p. 150; see Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 298-299 [128 Cal.Rptr.3d 772] [two parties asserting public interest claims against same project concerning enforcement of CEQA in privity for res judicata purposes]; Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1070-1071 [71 Cal.Rptr.2d 77] ["public interest" group in privity with "state agencies responsible for representation of the public interest" in the same dispute].)
As we have discussed, Roberson did not designate an adequate record on appeal to support his claim that the trial court somehow erroneously disregarded his so-called "evidence of prejudice," namely, that he would have
Nonetheless, we are reluctant to conclude that Roberson's appeal from the judgment denying his petition to set aside the project approvals based on the defective notice of hearing is frivolous or was intended solely to delay the finality of the judgment in this action. The declarations in opposition to the motions show, and real parties do not dispute, that Roberson is not and has never been a member of Rialto Citizens. We also believe reasonable attorneys could agree that, as a private citizen and resident of the City at the time of the July 1 and 15 city council hearings,
The judgment is affirmed. Respondents and real parties shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2), (d).)
McKinster, Acting P. J., and Miller, J., concurred.
In opposition to the motion, Roberson admits he "recently" changed his place of residence from Rialto to Beaumont, but argues he nevertheless has a beneficial interest in the project approvals because his office is located "less than half a mile" from the project site, and he has to "drive or walk by [the project site] more frequently today than [he] did when [his] lawsuit was filed."
It is unnecessary to address the merits of real parties' second motion to dismiss based on Roberson's current lack of standing to appeal or the related request for judicial notice. For the reasons discussed, Roberson has not demonstrated reversible error, and his defective notice claim, which in the trial court was based squarely on the project approvals' "likely ... harm to the community," and not on any distinct, personal harm to Roberson, is barred by the doctrine of res judicata. (See Braude v. City of Los Angeles (1990) 226 Cal.App.3d 83, 88-89 [276 Cal.Rptr. 256] [beneficial interest standing must be based on interest not held in common with public at large].)