Free Request for Judicial Notice - District Court of California - California

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1 RYAND. LAPIDUS (BarNo. 196838) Email: ryanuulagiduslaw.com 2 DANIEL C.'LAPIDUS (Bar No. 227170) Email: danuula~iduslaw.com 3 JIM D. BAtlCH (Bar No. 199454) Email: jip1uulapiduslaw.com 4 LAPIDUS'& LAPIDUS A PROFESSIONAL LAW CORPORATION 5 177 SOUTH BEVERLY DRIVE BEVERLY HILLS", CALIFORNIA 90212 6 TEL: 31 0-550-870u FAX: 310-943-2471 7 Attorneys for Plaintiff U-Haul Co. of California 8 and Amerco Real Estate Company 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION CASE No.: C08-02313 WDB U-HAUL CO. OF CALIFORNIA, a California corporation; and AMERCO PLAINTIFFS' REQUEST FOR REAL ESTATE COMPANY, a Nevada JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO corporation, DEFENDANT'S MOTION TO DISMISS Plaintiffs,
v.

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D.ate: September 3,2008 TIme: 1:30 p.m. The Honorable Wayne D. Brazil Courtroom 4

CITY OF BERKELEY, a municipality; Defendant.

PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE CASE NO. C08-2313 WDB- 1

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In support of their Opposition to Defendant's Motion to Dismiss, plaintiffs U-Haul Co. of California and Amerco Real Estate Company ("Plaintiffs") respectfully request that the Court take judicial notice of the following documents pursuant to Federal Rules of Evidence Rule 201 (records of courts of the State of California): EXHIBIT A August 1,2008: City of Berkeley's Opposition to Motion to Stay or Dismiss filed in the Alameda County Superior Court, Case No. RG08-388586, entitled City ofBerkeley v. V-Haul

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Company ofCalifornia
EXHIBITB June 17,2008: City of Berkeley's Notice of Motion and Motion for Dismissal of Appeal filed in the Court of Appeal of the State of California, First Appellate District, Division Three, Case No.RG07352204, entitled V-Haul Company of

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California v. City ofBerkeley.
EXHIBIT C July 3, 2008: U-Haul Co. of Califomia's Opposition to Motion for Dismissal of Appeal filed in the Court of Appeal of the State of California, First Appellate District, Division Three, Case No.RG07352204, entitled V-Haul Company of

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California v. City ofBerkeley.

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PLAINTIFFS' REOUEST FOR JUDICIAL NOTICE CASE 'NO. C08-2313 WDB- 2

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EXHIBITD Order Denying Motion for Dismissal of Appeal of Alameda County Superior Court Case No.RG07352204, entitled U

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Haul Company ofCalifornia v. City ofBerkeley, entered by
the Clerk of the Court of Appeal of the State of California on July 18, 2008. LAPIDUS & LAPIDUS A PROFESSIONAL LAW CORPORATION

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DATED: August 13,2008 8

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~D.BAUCH

Attomey.s for Defendants U-Haul Co. of California and Amerco Real Estate Company

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PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE CASE NO. C08-2313 WDB- 3


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EXHIBIT A


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ZACR COWAN, Acting City Attorney SBN 963721 LYNNE S. BOURGAULT, Deputy City Attorney SBN180416 City of Berkeley 2180 Milvia Street, Fourth Floor Berkeley, CA 94704 [email protected] Telephone: (510) 981-6950 Facsimile: (510) 981-6960 Attorneys for Plaintiff CITY OF BERKELEY

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V-HAUL CO. OF CALIFORNIA, a California corporation; AMERCO REAL ESTATE COMPANY, a Nevada corporation, and DOES 1-100,

SUPERIOR COllRT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA

CITY OF BERKELEY, Plaintiff,

Case No. RG08 388586 ASSIGNED FOR ALL PURPOSES TO
JUDGE Lawrence John Appel
DEPARTMENT 16


PLAINTIFF CITY OF BERKELEY'S OPPOSITION TO MOTION TO STAY OR DiSMISS

Date: August 18,2008 Time: 9:00 a.m. Defendants. 17 I I - - - - - - - - - - - - - - - - - - - J Dept.: 16 18 19 20 21

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Plaintiff's MPA in Opposition to Motion to Stay or Dismiss
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I.

INTRODUCTION
V-Haul has moved to stay or dismiss this case on two grounds:
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"[P]ursuant to Code of Civil Procedure section 916 pending the outcome" of its

purported appeal of the judgment entered by this Court in Case No. RG 07352204 in February 2008, which V-Haul claims "forms the basis for this entire action for public nuisance"; and

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Pursuant to Code of Civil Procedure sections 410.30 and 418.10 "because there

exists a prior action between the same parties arising out of the same dispute in federal court in this judicial district [], which provides a suitable alternative forum ..." (See Notice of Motion to Stay, etc., p. 2, 11. 5-8 & 10-14, filed June 17,2008.) This case is not subject to a stay under Section 916 because that section does not apply here.

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This Court (per Judge Roesch) denied V-Haul's petition for writ of mandate in Case No.
RG 07352204. Judgment in that case is final as to this Court, and is effective unless stayed. Stay of that judgment is governed not by Section 916 but by Section 1094.5(g), which requires an unsuccessful petitioner to obtain a stay from the Court of Appeal. V-Haul does not claim that it has done so, and in fact has not done so. Accordingly, the City Council's decision revoking its Use Pennit stands, and V-Haul currently has no Use Permit. Nor is this case subject to stay or dismissal under Section 410.30. First, V-Haul has already made a general appearance in this action. Code Civ. Proc. § 41O.30(b). Thus it may not object to this Court's jurisdiction under Section 418.10. Second, Section 410.30 applies only when a court finds that "an action should be heard in a forum outside this state". (Code Civ. Proc. § 430.1O(a), emphasis supplied.) V-Haul has not claimed that this case should be heard outside of the state; indeed, it argues that it should be heard in the very city and county in which this Court is located. Finally, V-Haul's request for stay based on comity is without any basis, and in fact turns the principle on its head, by pretending its pending state litigation in Case No. RG 07352204 is subordinate the its later-filed federal case. Accordingly, the motion should be denied.
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Plaintiff's MPA in Opposition to Motion to Stay or Dismiss
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II.

ARGUMENT

A.

This Action Is Not Stayed Under Code of Civil Procedure Section 916 and Only the Court of Appeal Can Grant A Stay of the City's Revocation of U-Haul's Use Permit

U-Haul argues as follows:

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U-Haul has appealed the judgment in Case No. RG 07352204; and

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If that appeal is successful, no public nuisance would exist" and this action
would necessarily fail. (V-Haul MPA, 1:9-16.Y

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Therefore, this case is a matter "embraced or affected" by the judgment in Case No.
RG 07352204.

Based on this syllogism, U-Haul argues that this action is automatically stayed under Code of Civil Procedure section 916. 2 Section 916 is not applicable, however. Code of Civil Procedure section 1094.5(g) (governing review of administrative orders) states as follows: If an appeal is taken from a denial of the writ, the order or decision of the agency shall not be stayed except upon the order of the court to which the appeal is taken. Code of Civil Procedure section 1094.5(g) is the exclusive authority for a stay of an administrative order, because Code of Civil Procedure section 1110 states that provisions governing special proceedings (such as Section 1094.5) prevail over the general provisions of the Code of Civil Procedure (such as Section 916): The provisions of Part II of this Code relative to new trials and appeals [which includes Section 916], except in so far as they are inconsistent with the provisions of this Title [governing writs of mandate], apply to the proceedings mentioned in this Title.
U-Haul argues at some length that the City has asked this Court to determine the timeliness of V- Haul's appeal in Case No. RG 07352204, but that it may not do so. (V-Haul MPA, 4-6, 10) To the contrary, the City has not asked the Court in this action to make any such determination, and in any event the Court need not do so in order to decide the instant motion.
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Section 916 states: (a) Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810. the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. (b) When there is a stay of proceedings other than the enforcement of the judgment, the trial court shall have jurisdiction of proceedings related to the enforcement the judgment as well as any other matter embraced in the action and not affected by the judgment or order appealed from.

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To the extent that Section 1094.5(g) conflicts with Section 916, Section 1094.5(g) prevails. Yet V-Haul is asking this Court to deem the "the decision of the agency" stayed, contrary to the plain language of Section 1094.5(g), and on that basis to stay this action} There is no statutory basis for doing so.

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B.

Forum Non Conveniens is Not A Basis for Staying or Dismissing This Action
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U-Haul's Motion Under Section 410.30 is Barred Because V-Haul Has Already Made a General Appearance

Motions raising the issue of inconvenient forum are filed pursuant to Section 418.1O(a)(2), as this one was. (See U-Haul Notice of Motion, filed June 17, 2008, p. 2.) However Section 41O.30(b) provides that Section 418.10 does not apply "to a motion to stay or dismiss the action by a defendant who has made a general appearance." V-Haul has already made a general appearance in this action. Accordingly it has forfeited any ability to request a stay or dismissal under Section 418.10.

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2.

Forum Non Conveniens Does Not Apply Where the State of California is an Appropriate Forum

U-Haul argues that this action should be either stayed or dismissed under Section 430.1O(a) 16 on the ground that the federal court in Oakland is a "suitable alternative forum". (U-Haul MPA, 6 17 7.) Section 430.10(a), however, only applies where a court finds that an action should be heard "in 18 a forum outside this state". (Emphasis supplied.) "A ruling dismissing an action for forum non 19
conveniens adjudicates not merely that the selected venue within California is inconvenient, but that

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Ferreira (1973) 9 Cal 3d 824, 832, citing Section 430.10 and Great Northern Ry. Co. v. Superior

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Court (1970) 12 Cal. App. 3d 105, 109-110; accord Thomson v. Continental Ins. Co. (1967) 66 Cal.

23 2d 738, 742-743. Moreover if the plaintiff is a California resident, the action may not be dismissed, 24 but only stayed. Ferreira, supra, 9 Ca1.3d at 838-839. 25 26 27 ·28
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Section 917.8(c) states that an appeal does not stay proceedings: "If a judgment or order adjudges a building or place to be a nuisance and, as part of that judgment or order, directs the closing or discontinuance of any specific use of the building or place for any period of time." Thus. V-Haul could not obtain a stay of an order for preliminary injunction in this case. It would be even more illogical to deny a preliminary injunction based . on an appeal of another case. 3 Plaintiffs MPA in Oppositi9n to Motion to Stay or Dismiss
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Stangvik v. Shiley (1991) 54 Ca1.3d 744, the single case cited by V-Haul, is not to the

contrary. In that case the question was whether, under Section 430.10, a lawsuit by foreign survivors of heart valve recipients against California and Delaware corporations, should be stayed because the plaintiffs' countries of residence were "suitable alternative fora." V-Haul does not argue that this case should be heard outside of the state. To the contrary, it argues that it should be heard in the very city and county in which this Court is located. (D-Haul l\1PA, 6:2~-27.) Section 430.10 is clearly inapplicable.

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Comity Does Not Require That This Case Be Stayed

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V-Raul's final argument is that this case should be stayed pursuant to common law principles of judicial comity. (D-Haul MPA, 7-9.) Both the law and the facts are to the contrary.

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1.

The Cases U-Haul Cites Do Not Justify A Stay

Thomson v. Continental Ins. Co. (l96?) 66 Ca1.2d 738, was very explicitly a forum non conveniens case, and did not address comity. Id. at 740, 742-744. Thomson merely held (as we

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pointed out in section II.B.l above) that under forum non conveniens it was error to dismiss a case filed by a California resident in a California court. Rather, in such cases only a stay is permissible.
It was in that context that the Supreme Court stated Court stated that granting a stay "in a case

where the issues in two actions are substantially identical" is a matter for the discretion of the trial court. Id. at 746.

In Archibald v. Cinerama Hotels (1976) 15 Ca1.3d 853, a forum non conveniens case
decided under Code of Civil Procedure section 410.30, the Supreme Court held that it had been error to dismiss a case filed hI. California by a California resident against companies that operated hotels in Hawaii, on two grounds: the defendants had not demonstrated lack of personal jurisdiction by the California courts, and in any case, the trial court's authority was limited to staying the action, not dismissing it. Id. at 856. Neither Thomson nor Archibald is applicable here.
Farmland Irrigation Co. v. Dopplmaier (1957) 48 Ca1.2d 208, involved a dispute about

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royalties in which the resident plaintiff in the California action had not been permitted to intervene in the foreign action to protect his interests. The Supreme Court upheld the trial court's denial of a
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stay of the California action because although the issues in the two actions overlapped, the California action involved some issues not presented in the foreign action. Id. at 214-216. In this context, the Supreme Court made the statement quoted by U-Haul. If anything, Farmland Irrigation stands for the proposition that California courts do not lightly stay California actions if they present issues that are not fully addressed in a foreign action. lllustrating the opposite end of the spectrum, Simmons v. Superior Court (1950) 96 Cal.Ap.2d 119, involved competing divorce actions filed first in Texas (by the wife) and then in California (by the husband), both of whom were Texas residents. Id. at 131. The Texas action and the California action are between the same parties and involve the same subject matter. The Texas action will be determinative of all issues included in the California action. [d. at 128. The Court of Appeal accordingly ordered the California action stayed. Id. at 133. Neither forum non conveniens nor comity come into consideration unless the issues in two actions are substantial identical, as in Thomson and Simmons. Even a relatively minor difference is sufficient to defeat a request for a stay, as in Farmland Irrigation. V-Haul's federal case seeks damages for alleged discriminatory and retaliatory treatment by the City in the enforcing its Zoning Ordinance against V-Haul and in other respects. However it does not-and could not-seek to directly overturn the City's revocation of V-Haul's Vse Permit, which is the subject of U-Haul's purported appeal in Case No. RG 07352204. Nor does V-Haul's federal action address the issue raised in this case: whether V-Haul's truck rental operation is a per
se public nuisance as a result of the revocation of the Vse Permit. Indeed, other than the parties,

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there is very little if any overlap between V-Haul's federal case in Oakland and this case.

2.

Comity is Not A Basis for Staying or Dismissing A Case When Such A Motion is Based on the Existence of A Case that is Itself Barred By Younger Abstention

In addition, we must note that to the extent V-Haul has a viable appeal in Case No.
RG 07352204, the federal case on which it bases its comity argument is barred by Younger

abstention, and is therefore itself subject to dismissal for similar reasons.

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The Younger abstention doctrine embodies "a strong federal policy against federal court interference with pending state judicial proceedings." Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746,27 L.Ed.2d 669 (1971); Mission Oaks Mobile Home Park v. City ofHollister, 989 F. 2d 359, 360 (9 th Cir. 1993). "A federal court must abstain to avoid interference in a state-court civil action when three tests are met. First, the proceedings must implicate important state interests; second, there must be ongoing state proceedings; and third, the federal plaintiff must be able to litigate its federal claims in the state proceedings." M&A Gabaee v. Community Redevelopment Agency ofthe

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City ofLos Angeles, 419 F.3d 1036, 1039 (9 th Cir. 2005).

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a.

Important State Interests

"The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved." Middlesex County Ethics Committee v. Garden State

Bar Assoc., 457 U.S. 423, _ (1982). "Important state interests" under Younger include
enforcement of zoning ordinances and state nuisance actions. Huffman v. Pursue, Ltd., 420 U.S. at 604-605 (state nuisance proceeding against adult-oriented movie theater); World Famous Drinking

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Emporium, Inc., 820 F.2d at 1083 (enforcement of zoning ordinance designed to avoid public
nuisance); M&A Gabaee v. Community Redevelop. Agency o/City 0/ Los Angeles, 419 F.3d 1036, 1039 (9 th Cir. 2005) (eminent domain proceeding). The fact that a governmental entity could have proceeded against the defendant in either civil or criminal court further evidences an important state interest. World Famous Drinking Emporium, Inc. v. City o/Tempe, 820 F.2d 1079, 1083 (C.A. 9 th 1987). The importance of a state's interest is measured by "considering its significance broadly, rather than by focusing on the state's interest in the resolution of an individual case."

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AmerisourceBergen Corp. v. Roden, 495 F3d 1143, 1150 (9 th Cir. 2007).
In this case, the City's enforcement of its zoning ordinance through revocation of U-Haul's Use Permit constitutes an important state interest

b.

State Court Proceedings Are Ongoing

A state court action is "ongoing" even if it has concluded prior to the filing of the federal

court action. Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992). The aggrieved party's failure to appeal the adverse state court decision does not preclude Younger abstention, because the party is
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considered to have failed to exhaust its state appellate remedies. Huffman v. Pursue, Ltd., 420 U.S. 592,609-10 (1975) (failure to appeal in state court constitutes failure to exhaust state appellate remedies, even if appeal would have bee~ "futile"); World Famous Drinking Emporium, Inc. v. City
o/Tempe, 820 F.2d at 1082.

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Here, the City contends that V-Haul failed to exhaust its state appellate remedies when it failed to appeal the final judgment entered by the Court on February 7,2008. V-Raul claims it has a viable appeal. Either way, the state court proceedings would certainly be "ongoing" for Younger purposes.

c.

V-Raul's Federal Claims Were Not Barred From State Court

The third Younger prong requires abstention "unless state law clearly bars the interposition of the constitutional claims" brought in federal court. Middlesex County Ethics Committee, 457
V.S. at 432 (quoting Moore v. Sims, 442 U.S. 415, 423 (1979) State Court proceedings are

presumed adequate to raise a federal claim "in the absence of unambiguous authority to the contrary." Pennzoi! v. Texaco, Inc., 481 U.S. 1, 15 (1987); Communications Telesystems Int'l v.
California Public Utilities Comm'n, 196 F.3d 1011, 1020 (9th Cir. 1999). If the party had an

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opportunity to raise its constitutional claims in state court but failed to do so, abstention is required.
World Famous Drinking Emporium, Inc., 820 F.2d at 1083.

In this case, nothing precluded V-Haul from bringing all of the claims it brought in its federal case in state court. Thus, V-Raul's supernumerary federal case js barred by Younger. Its existence is thus no basis for staying or staying or dismissing a state case, such as this one, which was filed to effectuate a judgment in a prior state case that is the basis for Younger abstention. Accordingly, comity does not justify, much less compel, a stay of this action.
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III.
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CONCLUSION
For all of the foregoing reasons, the City of Berkeley respectfully requests that the

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Court deny U-HauI's motion to stay or dismiss this case.

Dated: August 1, 2008

Respectfully submitted:

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By:

"" 't\CcoWAN:ACtilliCitY Attorney
Attorneys for Plaintiff City of Berkeley

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PROOF OF SERVICE CASE NA:ME: COURT: CASE NO.:
City ofBerkeley v. V-Haul Co. of California, et al.
Alameda County Superior Court, Rene C. Davidson Courthouse RG08-388586

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I, the undersigned, certify that I am employed in the City of Berkeley, County of Alameda, California; that I am over the age of eighteen years and not a party to the within action; that my business address is 2180 Milvia Street, 4th Floor, Berkeley, California 94704. On the date listed below, I served the following document(s):

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PLAINTIFF CITY OF BERKELEY'S OPPOSITION TO MOTION TO STAY OR DISMISS
on the parties stated below, through their attorneys of record, by placing true copies thereof in sealed envelopes addressed as shown below by the following means of service:

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Counsel for Defendants: Ryan D. Lapidus, Esq. - [email protected]
Daniel C. Lapidus, Esq. - dan @lapiduslaw.com
Jim D. Bauch, Esq. - [email protected] LAPIDUS & LAPIDUS 177 South Beverly Drive
Beverly Hills, CA 90212
Phone: (310) 550-8700


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Fax: (310) 943-2471

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--1L.

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By First Class Mail - I am readily familiar with the firms' practice for collection and processing of correspondence for mailing. Under that practice, the correspondence is deposited with the U.S. Postal Service on the same day as collected, with first-class postage thereon fully prepaid, in Berkeley, California, for mailing to the office of the addressee following ordinary business practices.

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I declare under penalty of peljury under the laws of the State of California that the foregoing is true and correct. Executed on August 1, 2008 ilm~a. ~

-Brown

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Proof of Service

ACSC No. RG08-388586

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EXHIBITB


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Case No. A121811

IN TIlE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION THREE U-HAUL CO. OF CALIFORNIA,
Plaintiffand Petitioner,
vs.

CITY OF BERKELEY, a California m\UlicipaJ corporation; CITY COUNCIL OF THE CITY OF BERKELEY, the governing body of the CITY OF BERKELEY; LINDA MAIO, in her official capacity; DARRYL MOORE, in his official capacity; MAXWELL ANDERSON, in his official capacity; DONA SPRING, in her official capacity; LAURIE CAPITELLI, in his official capacity; BETTY OLDS, in her official capacity; KRISS WORTHINGTON, in his official capacity; and GORDON WOZNIAK, in his official capacity,

Defendants and Respondents,

Appeal From the Orders ofthe Superior Court ofAlameda County re Judgment

. dated February 7, 2008 The Honorable Frank Roesch, Department 31 Case No. RG070352204

NOTICE OF MOTION AND MOTION FOR DISMISSAL OF APPEAL


ZAeH COWAN, Acting City Attorney (State Bar No. 963721)
LYNNE BOURGAULT, Deputy City Attorney (State Bar No. 180416)
2180 Milvia Street, Fourth Floor
Berkeley, CA 94704
Phone: (510) 981-6950 · Fax: (510) 981-6960
ATTORNEY FOR DEFENDANTSIRESPONDENTS
CITY OF BERKELEY


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MOTION TO DISMISS APPEAL BEFORE RECORD IS FILED

(CRC 8.57)


TO APPELLANT U-HAUL COMPANY OF CALIFORNIA AND ITS
COUNSEL OF RECORD:
PLEASE TAKE NOTICE that Respondent City ofBerkeley will, and hereby does, move, to dismiss the appeal in this matter on the ground that it is untimely, under California Rule of CoWi 8.104, This motion is based on this Notice of Motion and Motioo, and the supporting Memorandum of Points and Authorities and Declaration ofZach .Cowan filed herewith. Dated: Jun.e 17,2008 Respectfully submitted,

Zach Cowan, Acting City Attorney

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Case No. A121811
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DMSION THREE V-HAUL CO. OF CALIFORNIA,

Plaintiffand Petitioner,'
VS.

CITY OF BERKELEY1 a California municipal corporation.; CITY COUNCIL OF THE CITY OF BERKELEY~ the governing body ofthe CITY OF BERKELEY; LINDA MAIO, in her official capacity; DARRYL MOORE, in his official capacity; MAXWELL ANDERSON, in his official capacity; DONA SPRING, in her official capacity; LAURIE CAPITELLI, in his official capacity; BETTY OLDS, in her official capacity; KRISS WORTIflNGTON, in his official capacity; and GORDON WOZNIAK, in his official capacity,

Defendants and Respondents,

Appeal From the Orders of the Superior Court ofAlameda County re Judgment
dated February 7,2008
The Honqrable Frank Roesch, Department 31
Case No. RG070352204


MOTION FOR DISMISSAL OF APPEAL


ZACH COWAN, Acting City Attorney (State Bar No. 96372])
LYNNE BOURGAULT, Deputy City Attorney (State Bar No. 180416)
2180 Milvia Street, Fourth Floor
Berkeley, CA 94704
Phone: (SIO) 981-6950 · Fax: (510) 981-6960

ATTORNEY FOR DEFENDANTS/RESPONDENTS


CITY OF BERKELEY


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TABLE OF CONTENTS
I.

INTRODUCTION

;
,

1
2
2

n.

FACTUAL BACKGRbUND

A. REVOCATION ~F U-HAUL'S USE PERMIT
!

B. U-HAUL'S UNStJCCESSFUL CHALLENGE TO THE CITY'S DE¢ISION
,
'

6

III. ARGlJ1\I1ENT
IV. CONCLUSION

~

7
, 13

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TABLt OF AUTHORITIES

I State Cases
Associated Convalescent Enterprises v. Carl Marks & Co., Inc.
(1973) 3'3 Cal.App.3d 116 .. l
Cook v. Stewart McKee & Co.: (194568 Cal.App.2d 758 ;
I

i

8

8

Belio v. Panorama Optics, Ind.
(1995) 33 Cal.App.4th 1096
! I

9

California Assn. ofPsychology Providers v. Rank
(1990) 51 Ca1.3d 1

L
I

"

"

9

Daar v, Yellow Cab Co.

(1967) 67 Cal.2d 695

;
I

9 , : 12

Duffy v. City ofLong Beach ; (1988) 201 Cal.AppJd 135~
Goat Hill Tavern v. City ofCo~t~ Mesa (1992) 6 Ca1.AppA th 1519 .. ~

11

Griset v. Fair Political Practi~es Com, (2001) 25 Cal. 4th 688 .!.-

9, 10 la, 11
12

Hensler v. City ofGlendale
(1994) 8 Cal.4 I
th

:

I
i

l

Korean American Legal Advo~acy Found. v. City ofL.A.
(1994) 23 Cal.AppA 376
~

Lyons v. Goss
(1942) 19 Cal.2d 659 ; 9

Malibu Mts. Rec. v. County ofL.A. th : (1998) 67 Cal.App.4 359 i
i

12
11

Mola Dev. Corp_ v. City 0/Seal Beach (1997) 57 Ca1.App.4ill 405 ~i

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TABLE OF AUTHORITIES (eon't.) Morehart v. County ofSanta Barbara (1994) 7 Ca1.4th 725 Nerhan v. Stinson Beach County Water District (1994) 27 Cal.App.4th 536

9

9
11 12 12 ·. 9 . 12 12

o 'Hagen v. Board o/Zoning Adjustment.
(1971) 19 CaI.AppJd 151
Scott v. City ofDel Mar (1997) 58 Cal.App.4 th 1296 Stewart v. Colonial W. Agency (2001) 87 Cal. App. 4th 1006

Superior Court v. County 0/Mendocino (1996) 13 Ca1.4th 4S
Trans-Oceanic Oil Corp. v. Santa Barbara (1948) 85 Cal.App.2d 776

Traverso v. People ex ref. Dep 't oj Transp. (1993) 6 CaL4th 1152
Federal Cases
Hoe,ck v. City 0/Portland (9th Cir. 1995) 57 F 3d 781
Statutes


12

California Rule ofConrt 8.l04(a) & (b) Code of Civil Procedure section 1094.6 Evidence Code section 452(b)

7
2
11


11

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TABLE OF AUTHORITIES (eoo't.)


Other Authorities
5 Witkin, Cal. Proc. (Pleading) §§ 778~ 779 (4 th ed. 1997)
I


10
10
11


6 Witkin Cal. Proc. (Provisional Remedies) § 276 (4th ed. 1997) Berkeley Municipal Code §§ 23B.64.020.B & 1.26.010

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1.

INTRODUCTION
I

In 2007, after conducting two noticed public hearings, the City of

Berkeley revoked appellant U-Haw's use permit to operate a truck and trailer rental business at 2100 San Pahlo Avenue in Berkeley. The basis of
the City's decision was V-Haul's repeated and long-term violation of its
use penn it.

V-Haul timely filed a petition for writ of administrative mandate and

complaint for inverse condemnation. On January 31, 2009, the Alameda County Superior Court denied U"Haul's motion for a writ, and on February 7,2008, the Court entered its final judgment in the case. Notice of entry was served on February 8, 2008. U-Haul filed its notice of appeal four months later, on June 6, 2008.
The appeal is therefore un.timely and must be dismissed.

U-Haul may claim that its appeal is timely because the February 7th final judgment did not become final until its request for dismissal of its inverse condemnation claim was entered on May 21,2008.
V-Haul
j,g

incorrect because the Superior Court's denial of its motion

for writ ofmandate resolved the entire case as a matter of law, and as a result the judgment was final and appealable. U-Haul's subsequent
voluntary dismi~sal of its remaining claims only confinns this.

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II.

FACTUAL BACKGROUND A. REVOCAnON OF U"HAUL'S USE PERMIT

Complaints regardin.g U-Haul's use ofthe public streets as its own parking lot came to the City's attention in 1996 and resurfaced in 1997. (AR;46 1.) In general, the complaints involved V-Haul's use of on-street parking in the surrounding neighborhood as an adjWlct parking lot because it had exceeded the number of trucks pennitted on its lot by the use pennit.
The City investigated and confinned the validity oftile complaints.

{Id.) After a failed attempt to discuss the issue directly with V-Haul, the

City issued a Notice and Order on September 29, 1997. (Id.) The Notice
and Order concluded that "[i]f non-rented rental vehicles are parked on city

streets" the use permit is subject to review and revocation by the ZAB. (AR:47.) In response, U-Haul indicated that it had voluntarily taken various
steps to resolve this problem, although there is no evidence to suggest that

V-Haul actually did so. (AR:9.) In 2000, the City again began receiving-complaints that V-Haul was using the streets as an adjWlct parking lot. (Id.) Staff wrote to and met with V-Haul in the following months warning that a failure to legalize its Citations in this form are to the Administrative Record prepared pursuant to Code of Civil Procedure section 1094.6 and lodged with the Superior Court.
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practices would result in citations. (AR:9, 52, 515.) Nonetheless, U-Haul continued to park its vehicles on the streets and was subsequently issued a citation. (AR;515.) In response, U-Haul promised that it would remove trucks parked on certain streets after business hours and "put [them] on our lot". (AR:54.) In addition, V-Haul claimed that it would seek to legalize its operations by submitting an application to "reduce the number oftrailers" and ··increase the num.ber of trucks [allowed] on the site." (Jd.) V-Haul never filed any such application. (AR:9, 515.) Once again in 2004, in response to the same complaints, the City contacted V-Haul. (AR:lO.) Once more, V-Haul continued to use the streets as its own parking lot and a second Notice of Violation was issued a month later. (AR:56.) In May 2006, neighbors again complained that U-Haul was parking its trucks on the streets and blocking driveways. (AR:I0.) During the period from May to June 2006, Code Enforcement staff monitored V-Haul activity and found that it "consistently had 50 trucks on their lot>1 and ~'4 to 32 trucks at any given time that were parked on the street, in the red zones, blocking .fire hydrants, blocking the crosswalks [and] at meters." (AR:137 138.) After repeated inspections and warnings, a citation was issued to U~
Haul. (AR:lO.) U-Haul did not appeal this citation and, instead, paid the

fine in August 2006. (ld.)

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On August 21, 2006, U-Haul was issued another citation. for parking 32 trucks on the street. (AR:517.) The citation was upheld by the City's Administrative Hearing Officer. V-Haul appealed this decision to the Alameda Superior Court, but abandoned this appeal and agreed to pay the full fine in a settlement agreement with the City. (Id.) On August 23, 2006, City staffmet with V-Haul to reiterate the problems and try to obtain compliance. (AR:I0,58.) Despite U-Haul's history of noncompliance, staff agreed to grant a 30-day moratorium on enforcement conditioned upon V-Haul taking the following actions during that period: submit an application to modify its use permit; schedule a meeting with the neighbors to discuss concerns; stop parking its trucks on the streets; and reduce the number oftrucks on the lot to 20. (AR: 11.) V-Haul did not. take these actions. (AR: 10, 60, 516.) In October
2006, staffwrote to V-Haul chronicling its repeated violations and the City's attempts to gain compliance. (AR:62-64, 5] 6.) However, with no

change in U'Haul's business practices, the City continued to issue V-Haul citations for both storing trucks in the street and storjng excess trucks on its lot. (AR:517.) On November 16, 2006, V-Haul submitted by a seriously deficient application2 to modify its use permit. (AR: 11.) The City notifi.ed .it that the

It lacked the requisite fees, applicant statement, site photographs, vicinity map, site plan or Zoning Vse questionnaire. (AR:66-67.)
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application was incomplete and gave it ten days to .file a completed one.
(AR:69-70.) It never did so. (AR:ll.)
Instead~ in

February 2007,

U~HauJ

submitted another application.

(AR:72-S0.) However, once again, the application was substantially incomplete and the City notified V-Haul ofthis fact. (AR:82-84.) Yet again, V-Haul never responded nor submitted a revised application.
CAR:l!.)

Between August 2006 and June 2007~ staff and neighbors docu mented at least 24 occasions where V-Haul used the streets to store its trucks and, in some instances, left the trucks on the streets for up to three
days. (AR:7, 16-29.) In addition, on at least 4 occasions, staff counted
between 29and 39 V-Haul trucks parked on the streets. (AR:7, 16-17.)

Accordingly, the City initiated proceedings to modifY or revoke U Haul's use permit The first step in this process was a noticed public hearing before the City's Zoning Adjustments Board (UZAB"). Although U-Haul received notice of this hearing, U-Haul did not send a representa· tive or submit any written testimony. Based upon the overwhelming
uncontroverted evidence and V-Haul's decade of lack of response, the ZAB

detennined that it had been given enough chances to conform and recommended revocation ofits use pennitto the City Council. (AR: 139,
144-145, 149-150.)

The ZAB's recommendation was forwarded to the City Council and

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scheduled for another noticed public hearing. A represen.tative from VHaul attended the Council hearing. He admitted that a11 the problems com

plained ofregarding U-Haul's operations were tru.e and apologized for
them. (AR:401-403.) As a result, Council deterrn.ined~ in part, that: No evidence was submitted refuting numerous citations and notices to V-Haul of its violations of UP No. 7575 by parking in excess of20 trucks on the U-Haullot and parking U-Haul . trucks in the public right of way, apology at the September 18,2007 public hearing does not negate its serious violations of UP No. 7575 and is insufficient in light of the evidence which shows U-HauPs longstanding failure to comply with the UP. (AR:519-520.) The Council then voted unanimously to revoke V-Haul's use permit. (AR:520.) This litigation followed.
U~Haul's

B.

V-RAUL'S QNSUCCESSFUL CHALLENGE TO THE CITY'S DECISION
U-Haul's PetitiqD and Complaint (Cowan Dec!., Exh. A) alleged five

causes of action; · Administrative mandate invalidating the City's decision to revoke U-Haul's use pennit. · Injunctive relief against enforcement ofthe City's Zoning Ordinance and decision to revoke V-Haul's use permit. · Injunctive relief ordering the City to "void and set aside'l its

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decision to revoke V-Haul's use pennit.

· Declaratory relief that U-Haul had not violated its use pennit or improperly expanded its use and that the City's decision to
revoke its use permit was invalid. · Inverse condemnation seeking damages because "as a result of Respondents' revocation ofU-HAUL'S Use Pennit, U-HAUL
has been damaged..." (Petition for Writ of Mandate, filed

October 19,2007, , 35.) The Alameda County Superior Court denied V-Haul's motion for a

writ of administrative mandate on January 31, 2008. (Cowan Decl., Exh.
S.) On February 7, 2008, in the presence ofU-Haul's counsel and without

objection, the Court entered its fmal judgment in the case. (Cowan Ded.,

ft 4-6, Exh. C.) Notice of entry was served on February 8, 2008. (Cowan
Decl.· Exh. D.) U-Haul filed its notiee of appeal four months later, on June 6,2008. (Cowan Decl. Exh. E.)

III.

ARGUMENT
There is no dispute that V-Haul's notice of appeal was filed more than 60 days after notice ofentry ofjudgment. Thus, if the underlying
judgment was indeed a final judgment for purposes of appeal, U-Haul's appeal is Wltimely and must be dismissed. (Cal. Rule of Court 8. 104(a) & (b).)

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V-Haul may argue that the February 7eb final jUdgment did not
become final until its request for dismissal of its inverse condemnation

claim was entered on May 21, 2008. This argument is based on the premise that the jUdgment was really just an interlocutory order denying its m.otion for a writ of mandate, and did not resolve its other causes of action. The premise is faulty because it mistakes fann for substance: the Court's denial ofU-HauPs petition for writ ofmandate resolved all issues raised by the Complaint and left nothing further for the Court to resolve. This legal reality is only highlighted by U-HauPs dismissal ofits remaining claims: if
they had independent merit one can be sure that V-Haul would not have

dispensed with them for sake of an appeal. J As most recently stated by the Supreme Court, the rule upon which V-Haul relies is that an appeal cannot be taken from ajudgment that fails
cC

to complete the disposition of all causes of action bernreen the parties even if the causes of action disposed of by judgment have been ordered to be tried separately, or may be characteti7.:ed as separate and independent from
those remaining, Thus, the denial of a petition for writ of mandate is not

appealable if other causes ofaction remain pending benveen the parties."

In the event this Court were to allow this appeal to go forward, it is clear that the dismissed claims are no longer before it. (Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 761 [UAplaintiff's voluntary dismissal of his action has the effect ofan absolute withdrawal ofhis
claim... "]; Associated Convalescent Enterprises v. Carl Marks & Co" Inc.

(1973) 33 Cal.App.3d 116, 120 [no appeal lies from entry of voluntary dismissal].)
8


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(Grise! v. Fair Political Practices Com, (2001) 25 Cal. 4th 688, 697,

internal quotation marks omitted, citing Morehart v. County ofSanta
Barbara (1994) 7 Ca1.4 th 725, 743; Nerhan v. Stinson Beach County Water

District (1994) 27 Cal.App.4th 536, 540; Superior Court v. County of
Mendocino (1996) 13 Ca1.4dI 45, 52, th. 5.)

The dispositive question is whether the February 71JJ judgment here
"complete[d] the disposition of aU causes of action between the parties even [though] the causes of action ... may be characterized as separate and independent .,. ~" This is not a mechanical test. As Griset explained, "where no issue is left for future consideration except the fact of

compliance or noncompliance with the terms of the first decree. that decree is final, but where anything further in the nature of judicial action on the
part of the court is essential to atinal detennination of the rights of the parties, the decree is interlocutory." (Id.) at 698-699, internal quotation marks omitted, citing Lyons v. Goss (1942) 19 Ca1.2d 659, 670 (emphasis added); California Assn. ofPsychology Providers v. Rank (1990) 51 Ca1.3d

1, 9 [summary adjudication on seventh cause of action effectively disposing
of entire case is an appealable judgment]; Daar v. Yellow Cab Co. (1967)

67 Ca1.2d 695, 699 [order of dismissal "in legal effect a final judgment
from which an appeal lies"]; Belio v. Panorama Optics, Inc. (1995) 33

Cal.App.4th 1096, 1101-1102 [order granting summary adjudication of One

of three causes of action but 'effectively disposing ofthe case construed as

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appealable judgment].) In Griset, for instance, the Supreme Court held that an order denying motions for writ of mandate and declaratory reJiefhad constituted an appealable judgment because the rationale underlying the order-that a challenged statute was constitutional---effectively disposed of the other two causes ofaction, for injunctions. (Id., at 699-700.)
The same applies here. The Superior Court's January 31 st order and February 7th judgment

clearly disposed ofU-HauL's first cause of action for adm.inistrative mandate. They manifestly also disposed of the second, third and fourth causes of action, all of which were likewise directed exclusively at the validity of the City·s decision to revoke U·Haul's use permit and its enforcement ofthat decision. 4 The only remaining cause ofaction is the fifth, for inverse condem nation. In this cause of action V-Haul sought damages because "as a result of Respondents' revocation ofU-HAUL'S Use Permit, U-HAUL has been

damaged...." (Cowan Decl., Exh. A, '35.)

This is in addition to the fact that V-Haul's purported causes of action for injunctive and declaratory reliefwere not even potentiaJJy viable. There is no such thing as a "cause of action" for injunction: an injunction is an equitable remedy, not a cause ofaction. (5 Witkin, Cal. Proc. (Pleading) §§ 778-779 (4 th ed. 1997); 6 Witkin Cal. Proc. (Provi.$icm,al Remedies) § 276 (4 th ed. 1997). And declaratory relief is not available to challenge an adjudicative action such as the City's decision to revoke U-Haul's Use Permit. (Hensler v. City ofGlendale (1994) 8 Cal.4 th 1, ]4.)
4

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The Court's order and judgment resolved this cause ofaction. As UHaul itself alleged, this caus,e of action was based solely on V-Haul's claim that the City's decision to revoke V-Haul's use permit was invalid. Since the Court's order completely resolved that issue, it equally resolved U Haul's inverse condemna.tion claim: ...property owners must first succeed in setting aside a city's decision through a judicial determination on mandamus before pursuing damages for a regulatory taking. Hensler stresses the im.portance of allowing the city to change its mind "rather than pay compensation for a taking. A landowner may not, by seeking only compensation, force a governmental agency to condemn the property.
(Mola Dev. Corp. v. City ofSeal Beach (1997) 57 Cal.App.4 405, 410,
, ili

emphasis supplied, quoting Hensler v. City a/Glendale (1994) 8 CaI.4 th 1.) Moreover, a valid administrative decision to revoke a permit-just

like a decision to abate a nuisance'---does not constitute inverse
condemnation. Even where a land use entitlement has vested "it may be

revoked if the permittee fails to comply with reasonable terms or conditions
expressed in the permit ...." (Goat Hill Tavern v. City o/Costa Mesa

(1992) 6 CaLApp.4 th 1519, 1530-1531; o 'Hagen v. Board o!Zoning
Adjustment (1971) 19 Cal.App.3 d 151, 158 ["When a permittee has

acquired ... a vested right [in a permit] it may be revoked if the permittee
5 The distinction is irrelevant here 1 since U-Haul's violation ofits use pennit is also aper se public nuisance under the City's Zoning Ordinance. (See, BMC §§ 23B.64.020.B & 1.26.010, Cowan Decls. Exh. E & F.) The City requests that the Court take judicial notice of these ordinances pursuant to Evidence Code section 452(b).

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fails to comply with reasonable terms or conditions expressed in the permit granted.]; Trans-Oceanic Oil Corp. v. Santa Barbara (1948) 85 Ca1.App.2d 776, 783 ["If the permittee does nothing beyond obtaining the permit or fails to comply with reasonable terms or conditions expressed in the permit granted, the proper authorities may {'evoke it.".]; accord, Malibu MIs. Rec.
v. County ofL.A. (1998) 67 Cal.App.4th 359; Korean American Legal
Advocacy Found. v. City o/L.A. (1994) 23 Cal.App.4 376,391; Traverso
v. People ex rei. Dep'to[Transp. (1993) 6 Cal.4 th 1152, 1161-1162; Scott
th

v. Clty of Del Mar (1997) 58 CaLApp,4tb 1296; DuffY v. City ofLong

Beach (1988) 201 Cal.App.3d 1352; Hoeck v. City ofPortland (9 th Cir.


1995) 57 F.3d 781.)

Thus, when the Court detennined that the City's revocation ofU

Haul's Use Permit was properl it full)' resolved all ofU-Haul's other causes

of action, including its inverse condemnation claim~ and left no issue for
future eonsideration. Having resolved all i.ssues between the partjes~ the Court's judgment was immediately appealable, and U-Haul's time for filing

a Notice of Appeal expired 60 days following service of Notice of Entry of
Judgment, or April 9,2008. U-Haul may argue that courts have approved the use of voluntary

dismissals with prejudice after an adverse ruling by the trial court in order
to expedite an appeal ofthe roling. (See, e.g., Stewart v. Colonial W.
Agency (2001) 87 CaL App. 4th 1006, 1012.) That is not the case here,

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·..
however, since a final judgment had been entered long before V-Haul's voluntary dismissal wjthout pr~judice. Indeed, U-Haul's request for dismissal here was not a means to expedite an appeal of an adverse ruling, but a stratagem for extending its time to do so by two months. IV.

CONCLUSION
For all of the foregoing reasons, U-Haul's appeal must be dismissed as untimely. Dated:June 17,2008

By:

_

ZACH COWAN, Acting City Attorney Attomey for Respondent City ofBerkeley, et al.

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PROOF OF SERVICE
1


2

3

4


CASE NAME:
COURT:

V-Haul Company ofCalifornia v. City ofBerkeley, et at.

Court ofAppeal, State of California, First Appellate District, Division Three
Lower Court: Alameda County Superior Court - Rene C. Davidson Courthous?

5

6


CASE NO.:

A121811

Lower Court Case No: RG07352204
I, the undersigned, certify that I am employed in the City of Berkeley, County of that I am over the age of ejghteen years and not a party to the within action; that my business address is 2180 Milvia Street, 4th Floor, Berkeley, California 94704. On this date, I served the following document(s):
Alamed~ California;

7


8

9

10

11


NOTICE OF MOTION AND MOTION TO DISMISS APPEAL, and DECLARATION OF ZACB COWAN IN SUPPORT OF MOTION TO DISMISS APPEAL.

l2
on the parties stated below, through their attorneys of record, by placing true copies thereof in sealed envelopes addressed as shown below by the following means of service; 13

Counsel (or Plaintiff..

14

15


16

17


Ryan Lapidus, Esq.
Lapidus & Lapidus, PLC
177 south Beverly Drive
Beverly Hills, CA 90212
Phone: (310) 550-8700
Fax: (310) 943-2471


Superior Court ofCalifornia. Alameda COPy) County

1225 Fallon Street, Department 31
Oakland, CA 94612
Courtesy Copy: Judge Lawrence Appel, D-16


a

Cali£e.m;(J Supreme Court
350 McAllister Street
San Francisco, CA 94102


(4 copies)


18


19

20


-x

By First Class Mail- I am readily familiar with the firms I practice for collection and processing of correspondence for mailing. Under that practice~ the correspondence is deposited with the U.S. Postal Service on the same day as collected, with fIrst-class postage thereon fully prepaid, in Berkeley. California, for mailing to the office of the addressee following ordinary business practices.
laws,joo~"""'""'i~

21

22

23

24


I declare under penalty of perjury under the foregoing is true and correct. Executed on June 18

8

25

26

27


28


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EXHIBIT C


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'/
Case No. A121811

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION THREE U-HAUL CO. OF CALIFORN
Plaintiffand Petitioner, vs.

,courtofAF\lED

al First Apellata District

JUL 0 3 Z006
Diana Herbert, CIerI< Oeoutv Clark ~;-CITY COUNCIL

CITY OF BERKELEY, a California municipal corporati OF THE CITY OF BERKELEY, the governing body of the CITY OF BERKELEY; LINDA MAIO, in her official capacity; DARRYL MOORE, in his official capacity; MAXWELL ANDERSON, in his official capacity; DONA SPRING, in her official capacity; LAURIE CAPITELLI, in his official capacity; BETTY OLDS, in her official capacity; KRISS WORTHINGTON, in his official capacity; and GORDON WOZNIAK, in his official capacity,
Defendants and Respondents

Appeal From the Orders of the Superior Court of Alameda County re Judgment
Dated February 7, 2008
The Honorable Frank Roesch, Department 31
Case No. RG070352204


OPPOSITION TO MOTION FOR DISMISSAL OF APPEAL


RYAN D. LAPIDUS (State Bar No. 196838)
DANIEL C. LAPIDUS (State Bar No. 227170)
JIM D. BAUCH (State BarNo. 199454)
177 South Beverly Drive
Beverly Hills, CA 90212
Phone: (310) 550-8700 . Facsimile: (310) 943-2471
ATTORNEY FOR PLAINT!FFIPETITIONERAND APPELLANT
U-HAUL CO. OF CALIFORNIA


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Certificate of Interested Entities or Persons
Pursuant to California Rule of Court 8.208, the undersigned certifies that Amerco has an ownership interest of 10 percent or more in plaintiff and appellant V-Haul Co. of California. The undersigned knows of no other entity or person who must be listed under Rule of Court 8.208(e)(I) or (2). Respectfully submitted,

~BaUCh(BarNO.

199454)

Lapidus & Lapidus, A Professional Law Corporation 177 South Beverly Drive Beverly Hills, California 90212 Tel: 310-550-8700; Fax: 310-943-2471

Attorneys for Plaintiff and Appellant V Haul Company of California

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TABLE OF CONTENTS


1.
II. III.

IJ\fTRODUCTION STATENIENT OF FACTS LECJAL A.
ARCJ~~NT

1 '" '" 1 3

CALIFORNIA FOLLOWS THE ONE FINAL JUDCJ~NT RULE

3

B.

THE FEBRUARY 7 JUDCJMENT WAS NOT A FINAL JUDCJMENT 3 THE CITY'S
ARCJL~NT IS

C.

WITHOUT MERIT......7

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Table of Authorities State Cases Belio v. Panorama Optics, Inc. 33 Cal.AppAth 1096 (1995) California Assoc. ofPsychology Providers v. Rank 51 Cal.3d 1 (1990) Daar v. Yellow Cab Co. 67 Cal.2d 695 (1967) Griset v. Fair Political Practices Commission 25 Cal.4th 688 (2001) Morehart v. County ofSanta Barbara 7 Cal.4th 725 (1994) Nerhan v. Stinson Beach County Water District 27 Cal. App. 4th 536 (1994) Residents ofBeverly Glen, Inc. v. City ofLos Angeles 275 Cal.App.2d 732 (1969) Schonfeld v. City of Vallejo 50 Cal.App.3d 401 (1976) Turner v. Los Angeles Realty Board, Inc. 233 Cal.App.2d 755 (1965) 3,5,9 10 5, 6, 9 6, 7,9 6,9, 10 7, 8 8 8 8

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Statutes California Code of Civil Procedure section 904.1(a)(1) California Code of Civil Procedure section 1061 3, 4 5

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I.
INTRODUCTION


The City's Motion is the latest attempt by the City of Berkeley to deny U-Haul its legal rights - here, the right to appellate review. The City's Motion ignores relevant case law, including a decision of this District, which squarely holds that a judgment denying a petition for writ of mandate is not a final judgment where other claims, such as declaratory relief, injunctive relief, and inverse condemnation claims, remain at issue in the trial court. The rule the City proposes to apply would burden the Courts of Appeal with numerous premature appeals filed as a precaution.
II. STATEMENT OF FACTS

The City's Motion contains a lengthy, inaccurate, and misleading factual history, the vast majority of which is irrelevant to this Motion and intended only to poison the well. U-Haul does not wish to burden the Court with unnecessary argument, and provides the following brief summary of the facts to set the record straight. The City of Berkeley has conducted a lengthy campaign to drive V-Haul out of town. Among other things, the City revoked V Haul's use permit to operate a truck and trailer rental business at 21 00 San Pablo Avenue in Berkeley. Specifically, the City determined that the phrase "approximately 20 trucks and 30 trailers" in V-Haul's application for a use permit somehow established a maximum of20 trucks and 30 trailers that could be parked on the property, even though its own
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Administrative Hearing Officer found such an argument "fundamental[ly] t1aw[ed]." The City also decided that V-Haul was having equipment "staged, stored, repaired or maintained" in public streets if a V-Haul customer parked her vehicle on the street: a "rule" not applied to other businesses. In its efforts to justify its predetermined result, the City purported to make other factual findings that were contrary to the weight of the evidence. V-Haul commenced this action with a Petition for Writ of Mandate and Complaint for Injunctive Relief, Declaratory Relief, and Inverse Condemnation filed in Alameda County Superior Court. On January 31,2008, the Superior Court (Judge Roesch) issued an Order denying the petition for writ of mandate. That order (Ex. C to the Cowan Decl.) makes no reference to V-Haul's other causes of action. On February 7,2008, the Superior Court entered a "Judgment" drafted by counsel for the City that states "Judgment shall enter in favor of the City of Berkeley and all the Respondents against V-Haul Company of California on the Petition for Writ of Administrative Mandate." Ex. D to the Cowan Decl. (the "February 7 Judgment"). The February 7 Judgment similarly makes no reference to V-Haul's claims for declaratory relief, injunctive relief, and damages for inverse condemnation. Because it did not dispose of all of the claims between the parties, as explained in more detail in the following section, the February 7 Judgment was not a final judgment and was not appealable. Although the City now contends that the Superior Court's ruling on the petition for writ of mandate "effectively" disposes of

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those other claims, the City made no motion or other request to have the trial court dismiss or enter judgment on those claims. Meanwhile, the City of Berkeley had continued to violate U Haul's constitutional and other rights in a variety of ways, such as discriminating against U-Haul and its customers, and retaliating against U-Haul for its challenges to the City's actions. Accordingly, U-Haul filed an action in the United States District Court for the Northern District of Califomia, Case No. C08-02313, asserting claims for civil rights and other violations. Because the federal action provided an appropriate forum for all of U-Haul 's non-writ petition claims against the City, U-Haul voluntarily dismissed its remaining claims in this action on May 21, 2008, and promptly filed its notice of appeal on June 6, 2008.

III.
LEGAL ARGUMENT

A. California Follows the One Final Judgment Rule
With certain statutory exceptions not applicable here, "it is the fundamental rule in California, as in most jurisdictions, that no order or judgment may be appealed from unless it finally disposes of the case in the trial court." Turner v. Los Angeles Realty Board, Inc., 233 Cal.App.2d 755, 758 (1965); see Code of Civil Procedure, § 904. 1(a)(1) (appeal may be taken from "ajudgment, except (A) an interlocutory judgment ....") (emphasis added).

B. The February 7 Judgment Was Not a Final Judgment
The February 7 Judgment did not "finally dispose of the case in the trial court," Turner, 233 Cal.App.2d at 758, because by its own
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terms it was expressly limited to the petition for writ of mandate and did not address V-Haul's complaint for injunctive relief, declaratory relief, and inverse condemnation. The February 7 Judgment - prepared by counsel for the City of Berkeley! -- specifically states that "Judgment shall enter in favor of the City of Berkeley and all the Respondents against V-Haul Company of California on the Petition for Writ ofAdministrative
Mandate." February 7 Judgment, p. 1 (emphasis added). Neither the

February 7 Judgment, nor the Order denying the petition for writ of mandate, purports to rule on, discuss, or even mention V-Haul's other causes of action. See id.
It is well-established that a judgment or order disposing of a

petition for writ of mandate does not act as a final judgment where other claims, e.g. monetary damages and declaratory relief, are involved. The City admits this in its Motion, acknowledging the rule that "the denial of a petition for writ of mandate is not appealable if

! The City asserts in its Motion that "in the presence of V-Haul's counsel and without objection, the Court entered its final judgment in the case." Motion, p. 7. The City's characterization of the February 7 Judgment as a "final judgment" is a legal conclusion, and an incorrect one. Moreover, nothing in the record, including the declaration submitted by counsel for the City with its Motion, evidences any stipulation or acquiescence by V-Haul regarding the alleged "finality" of the February 7 Judgment. There is nothing improper or unusual about the entry of an interlocutory judgment - their existence is acknowledged in C.C.P. § 904.1(a)(1) - and no reason why V-Haul should have objected to the form of the judgment. 4

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other causes of action remain pending between the parties." Motion, p.8. In Turner, the Court of Appeal determined that a ruling on a writ petition was not a final judgment because the plaintiff also sought declaratory relief and other claims for monetary damages. See

Turner, 233 Cal.App.2d at 758 ("While the orders before us purport to
determine the right of plaintiffs to a writ of mandate against one defendant, they not only leave undecided the issue of the right to that writ against a codefendant, but they also leave undetermined the right of plaintiffs to declaratory relief and to damages against LARB as well as against its codefendant parties. They are, therefore, not a 'final' disposition of the litigation as between plaintiffs and LARB.") Similarly, in Residents ofBeverly Glen, Inc. v. City ofLos

Angeles, 275 Cal.App.2d 732, 735 (1969), the plaintiffs sued the
defendant city, and a business to which the city had issued a conditional use permit, for a writ of mandate and for declaratory relief. The court held a trial on the petition for writ of mandate and entered a "Judgment Denying Writ of Mandate," then refused to set the plaintiffs claim for declaratory relief for trial. The plaintiff appealed from the judgment denying the writ of mandate and the order striking its at-issue memorandum, and the Court of Appeal dismissed the appeals. "The so-called 'judgment' denying a writ of mandate is not a final judgment in the action. Plaintiff sought, in the trial court, a declaration of the invalidity of the section ofthe Los Angeles ordinance under which the City purported to act. It is entitled to such a declaration or to an order under section 1061 of the Code of Civil Procedure refusing declaratory relief and judgment for defendants. Unless section 1061 is invoked, plaintiff is entitled to a 5


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declaration whether the result is favorable or unfavorable to it." Id. at 735. This principal was reaffirmed by the California Supreme Court in Morehart v. County o/Santa Barbara, 7 Cal.4th 725, 743 (1994), which held that "an appeal cannot be taken from a judgment that fails to complete the disposition of all the causes of action between the parties even if the causes of action disposed of by the judgment have been ordered to be tried separately, or may be characterized as 'separate and independent' from those remaining." The plaintiffs in

Morehart had alleged causes of action for "(1) a writ of mandate, (2)
damages for inverse condemnation, (3) damages for violation of civil rights ... (4) declaratory relief, and (5) injunctive relief." Id. at 735. The trial court filed a statement of decision and entered judgment on the writ of mandate, declaratory relief, and injunctive relief causes of action, from which appeal was taken. The California Supreme Court held that "[b]ecause the trial court's judgment in favor of plaintiffs did not complete the disposition of all of plaintiffs' causes of action against defendant county, the judgment was not appealable." Id. at 744.

Morehart has specifically been applied to hold that a denial of a
petition for writ of administrative mandate is not appealable if there remain other claims on the complaint of the plaintiff/petitioner. In

Nerhan v. Stinson Beach County Water District, 27 Cal. App. 4th 536,
540 (1994), a property owner brought a petition for a writ of mandate to compel the granting of a zoning variance as well as a complaint for damages for regulatory taking of the property. The trial court sustained the water district's demurrer and dismissed the petition for

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writ of mandate on the grounds that Nerhan lacked standing to seek a writ because he had sold the property. Nerhan appealed, and Division Three of this District dismissed the appeal as premature. "[W]e conclude Morehart holds that absent unusual circumstances, the denial of a petition for writ of mandate is not appealable if other causes of action remain pending between the parties." Id. at 540. Thus, the February 7 Judgment was not, at the time it was entered, a final judgment and was not appealable. IfU-Haul had attempted to appeal from that judgment while its remaining causes of action were still pending before the trial court, this Court would have properly dismissed such an appeal as premature. C. The City's Argument Is Without Merit

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