APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez, Judge. (Super.Ct.No. CIVSS708513)
The opinion of the court was delivered by: Ramirez P.J.
CERTIFIED FOR PUBLICATION
Reversed with directions.
Coalition for a Sustainable Future in Yucaipa (Coalition) appeals from a judgment denying its petition for writ of mandate. The petition challenged a shopping center approved by respondents City of Yucaipa and its city Council (jointly, City) and proposed by respondent and real party in interest Target Stores, Inc. (Target) on land owned by respondent and real party in interest Palmer General Corporation (Palmer). The principal ground of the petition was that the project conflicted with affordable housing requirements, but it also alleged failures to properly consider and deal with greenhouse gas emissions, urban decay effects, and traffic impacts. The appellant's opening brief focuses on the affordable housing and greenhouse gas issues.
Prior to the filing of a respondents' brief, City and Target moved to dismiss the appeal on the ground of mootness, and Coalition opposed the motions. The motions were denied without prejudice to reconsideration by the panel deciding the case; however, the court took up the issue again, and after further letter memoranda, determined that the appeal had been rendered moot.
The mootness determination was based on events subsequent to the filing of the appeal.*fn1 Target and Palmer abandoned the project because of litigation between them over a claimed breach of contract respecting the project. City rescinded the resolutions approving the project, a general plan amendment necessary to the project, and the certification of the environmental impact report for the project, all of which occasioned the litigation resulting in this appeal and were its sole subjects.
The court has considered appellant's and respondents' letters both filed April 19, 2010, pursuant to the order filed March 30, 2010. That order suggested the appropriate disposition of the appeal would be reversal of the judgment appealed solely to restore jurisdiction to the superior court to dismiss the action. (Compare Paul v. Milk Depots, Inc., (1964) 62 Cal.2d 129, 134-135 (Paul).) The court considered the disposition appropriate in view of respondents' abandonment of the project and City's rescissions. Although appellant naturally approved the proposed disposition, respondents objected on the grounds that (1) the case had not been rendered moot "in a manner that rendered the Superior Court's decision erroneous" and that (2) "there is no outstanding relief that would be rendered improper by this Court's determination of mootness." In support of the second ground, respondents distinguished two cases in which the Paul disposition was used to vacate judgments granting injunctions that were no longer proper.
To justify our use of the Paul disposition in this case, we will first look at Paul to see why the Supreme Court reversed with directions to dismiss. We will then address respondents' attempted distinctions.
In Paul, Creamcrest Dairy Products Company (Creamcrest), the predecessor of Milk Depots, Inc. (Milk Depots), and a milk distributor as opposed to a milk producer, sold milk for the lesser producer's price in violation of the minimum price set by a regulation of the Director of the California Department of Agriculture, Charles Paul (State). State sued to enjoin Creamcrest and recover civil penalties. The superior court rendered judgment in favor of Creamcrest, finding the regulation unauthorized by the statute under which it was promulgated. Subsequently, Creamcrest went bankrupt and Milk Depots substituted in. State appealed. (Paul, supra, 62 Cal.2d at pp. 130-131.)
While the appeal was pending, Creamcrest's distributor's license was revoked on other grounds, and Creamcrest ceased doing business and sold its physical plant to Milk Depots. A new regulation superseded the old regulation and omitted the producer/distributor price differential that the judge had found unauthorized. The Supreme Court held that the issues of the injunctive relief and even the civil penalties (which would have survived bankruptcy) were mooted by Creamcrest's status as an insolvent corporation with no assets. (Paul, supra, 62 Cal.2d at pp. 132-133.) Furthermore, although the public interest in the correctness of the trial court's invalidation of the producer/distributor price differential might have justified ignoring the mootness of the case as to the parties to reach an important legal question, the effective repeal of the old regulation removed that question from consideration. (Id. at pp. 133-134.)
The Supreme Court then took up the issue of the proper disposition. The court noted that the usual disposition of a moot appeal is dismissal. (Paul, supra, 62 Cal.2d at p. 134.) The problem with dismissal in Paul was that "'[t]he dismissal of an appeal is in effect an affirmance of the judgment . . . ." (Ibid.) The court then wrote, "As we do not reach the merits of the appeal in the case at bench, it is appropriate to avoid thus 'impliedly' affirming a judgment which holds unconstitutional a regulation of the Director of Agriculture promulgated pursuant to the Milk Stabilization Act. Since the basis for that judgment has now disappeared we should 'dispose of the case, not merely of the appellate proceeding which brought it here.' [Citations.] That result can be achieved by reversing the judgment solely for the purpose of restoring the matter to the jurisdiction of the superior court, with directions to the court to dismiss the proceeding. [Citations.] Such a reversal, of course, does not imply approval of a contrary judgment, but is merely a procedural step necessary to a proper disposition of this case." (Id. at pp. 134-135, ...