Way v. City of Redwood City

          Superior Court of San Mateo County, No. CIV526753.

          OPINION

         THE COURT.

         IT IS ORDERED that the published opinion filed herein on August 29, 2017, 14 Cal.App.5th 1005; ___ Cal.Rptr.3d ___, be modified as follows:

         1. On page 11, add a new footnote 9 at the end of the section heading III. [14 Cal.App.5th 1016');">14 Cal.App.5th 1016, advance report, line 1], " Issues Under the SMA Are Not Ripe for Review." Footnotes 9, 10, and 11 in the filed opinion will be renumbered 10, 11, and 12, respectively.

         The new footnote 9 will read:

         Prior to the issuance of this opinion, and in its petition for rehearing, SLW argued that it should be allowed to file a supplemental brief on the issue of ripeness, citing to section 68081, which provides that " [b]efore ... a court of appeal ... renders a decision ... based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. ..." We denied the request. Under this statute, " [t]he parties need only have been given an opportunity to brief the issue decided by the court, and the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of section 68081." ( People v. Alice (2007) 41 Cal.4th 668, 679 [61 Cal.Rptr.3d 648');">61 Cal.Rptr.3d 648, 161 P.3d 163].) Justiciability is present in every case, and the issue of ripeness is " fairly included" within LWJV's argument that the PDP does not violate any provisions of the SMA.

         2. On page 12 [14 Cal.App.5th 1016');">14 Cal.App.5th 1016, advance report, line 10], delete subheading 1, numbering and title only. The text that follows will remain.

         3. On page 13, first full paragraph, 10th line [14 Cal.App.5th 1017, advance report, 1st full par., line 12], add a short form to the cited case, so that the citation reads Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 [188 Cal.Rptr. 104');">188 Cal.Rptr. 104, 655 P.2d 306] ( Pacific Legal ).

Page 330b

         4. On page 13, last line [14 Cal.App.5th 1017');">14 Cal.App.5th 1017, advance report, 2nd par., line 3], after the sentence that ends " certifying the EIR," add a new footnote 13. Footnotes 12 and 13 in the filed opinion will be renumbered 14 and 15, respectively.

         The new footnote 13 will read:

         In Pacific Legal, the Supreme Court adopted a two-pronged ripeness analysis used by the United States Supreme Court, requiring an evaluation of (i) " 'the fitness of the issues for judicial decision'" and (ii) " 'the hardship to the parties of withholding court consideration.'" ( Pacific Legal, supra, 33 Cal.3d at p. 171, italics omitted; see Abbott Laboratories v. Gardner (1967) 387 U.S. 136, 149 [18 L.Ed.2d 681, 87 S.Ct. 1507].) Because we conclude the issue is not fit for judicial decision, we need not reach the second prong of this test: " A party seeking judicial review of an administrative decision must establish both that the issues are sufficiently defined for appellate review and that the party faces hardship as a consequence of court inaction." ( PG& E Corp. v. Public Utilities Com. (2004) 118 Cal.App.4th 1174, 1222 [13 Cal.Rptr.3d 630], second italics added.)

         5. In newly renumbered footnote 15, previously footnote 13, the last two sentences [14 Cal.App.5th 1018');">14 Cal.App.5th 1018, advance report, fn. 13, lines 3-6] will be deleted and two new sentences will be added, so that the footnote reads in its entirety:

         SLW also argues that the trial court held the City failed to make a required finding that the project will provide " 'an environment of physical and functional desirability, in harmony with the character of the surrounding neighborhood'" and that LWJV waived this point by not addressing it in the opening brief. As the trial court's statement of decision is somewhat confusing on this point, we decline to treat the issue as waived because LWJV adequately addresses this finding in its reply brief. We agree with LWJV that other findings in the Resolution ...