California Court of Appeals, First District, First Division
Superior Court of San Mateo County, No. CIV526753.
ORDERED that the published opinion filed herein on August 29,
2017, 14 Cal.App.5th 1005; ___ Cal.Rptr.3d ___, be modified
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.
footnote 9 will read:
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
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.
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 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.
footnote 13 will read:
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.)
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:
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 ...