(Super. Ct. No. 34-2010-80000428-CU-WM-GDS)
The opinion of the court was delivered by: Butz , J.
Jamulians Against the Casino v. Iwasaki
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff association Jamulians Against the Casino (JAC) and various individual plaintiffs who are primarily JAC members (hereafter collectively referred to as JAC or plaintiff JAC) filed a petition for a writ of mandate. Plaintiff JAC contested defendant Randell Iwaskaki's execution of an April 2009 settlement agreement (hereafter Agreement)--in his capacity as Director of Caltrans (Caltrans)--with real party in interest and respondent Jamul Indian Village (the Tribe).
The Agreement had resolved federal litigation between those parties over application of the California Environmental Quality Act (CEQA) (Pub. Res. Code, § 21000 et seq.) to the Tribe's efforts to upgrade its interchange on State Route 94 to allow for access to a proposed casino. JAC alleged the Agreement itself was subject to review procedures in CEQA before Caltrans could execute it. JAC premised this theory on an argument that Caltrans had committed itself in the Agreement to granting a permit for the interchange upgrade.
After JAC served the Tribe with the petition for writ of mandate, the Tribe made a special appearance to quash the summons (raising the doctrine of sovereign immunity) and seek dismissal of the action. The Tribe asserted it was an indispensable party without whom the action could not proceed. Caltrans demurred. It argued the Agreement did not constitute a "project" within the ambit of CEQA and did not commit it to granting a permit. The trial court sustained the demurrer on this basis and dismissed the action. It declined to rule on the Tribe's motions to quash and for dismissal in light of its ruling on the demurrer. JAC filed a timely notice of appeal.
On appeal, JAC initially reiterated its argument on the merits--that its allegations had adequately established the need for CEQA review before Caltrans could properly execute the Agreement. After our plenary review of the record, we invited supplemental briefing on the issue of whether the trial court exceeded the proper scope of judicial notice in taking provisions of the Agreement into account that were not among the allegations of the petition (which neither incorporated the Agreement by reference nor attached it as an exhibit). JAC now agrees we must reverse on this basis. Caltrans does not present any cogent authority to the contrary.
Consistent with its litigation strategy in the trial court, the Tribe has declined to make a general appearance in this court as a respondent, but sought leave to appear as an amicus curiae (which we granted).*fn1 Although the Tribe's amicus brief makes colorable arguments in favor of its indispensable status,*fn2 this is an issue on which the trial court must exercise its discretion in balancing several criteria in the first instance. We therefore will reverse the judgment sustaining the demurrer with directions to the trial court to address the merits of the issue on remand.
FACTUAL AND PROCEDURAL BACKGROUND
Ordinarily we would need to determine whether the well-pled factual allegations of the petition state a cause of action, a question subject to our de novo review. (Robison v. City of Manteca (2000) 78 Cal.App.4th 452, 455, 456.) In the present case, however, our focus is not the sufficiency of the pleading itself but the procedural propriety of the trial court's foray outside the "four corners" of the pleading through the vehicle of judicial notice. We therefore do not need to summarize the allegations of the petition beyond the general tenor we set out above. We begin with a few procedural details before we turn to the trial court's ruling.
JAC initially filed its petition in Alameda County Superior Court in August 2009. The petition incorporated three brief quotes from the April 2009 Agreement. The first occurred in the course of an allegation that the quoted provision represented a Caltrans commitment to issue a permit without CEQA review.*fn3 The other two were simply part of a description of the Tribe's duty under the Agreement to fund mitigation measures to further the express purpose of the Agreement, in the course of an allegation that Caltrans did not have "sufficient enforcement authority over these mitigation measures" because the Agreement included an express reservation of the Tribe's authority to assert sovereign immunity.*fn4
In October 2009, the parties (including the Tribe, under compulsion of the Alameda County court) apparently stipulated to a change of venue to Sacramento County. Caltrans had already filed a demurrer, in connection with which it "requested the Court to take judicial notice of the entire settlement agreement" (without citing any authority for taking judicial notice of the truth of its contents). Caltrans primarily argued that the casino proposal itself was nascent and thus not yet a "project" within CEQA's meaning, nor had Caltrans--in executing the Agreement--committed itself to approving the permit for the interchange upgrade. As is pertinent to this opinion, Caltrans also argued (in a couple of paragraphs at the end of its demurrer discussion) that if the Tribe asserted its sovereign ...