Estopping the “Revolving Door” CEQA/Land Use Plaintiff: Roberson v. City of Rialto Holds Different Plaintiffs Litigating To Vindicate Same Public Interests Are Still In Privity

by Miller Starr Regalia
Contact

In a decision ordered published on June 17, 2014, nearly a month after it was originally filed, the Fourth District Court of Appeal addressed a key element of the related doctrines of res judicata and collateral estoppel – the concept of “privity.” (Roberson v. City of Rialto (Wal-Mart Real Estate Business Trust, et al., Real Parties In Interest) (4th Dist. 2014) 226 Cal.App.4th 1499.) The Court did so in a manner that could prove very useful to public agencies and project proponents defending actions brought by ostensibly distinct CEQA/land use plaintiffs who are actually seeking to serially re-litigate claims or issues brought in the “public interest” that have previously been finally adjudicated.

Plaintiff Marcus Roberson, an individual, challenged the City of Rialto’s 2008 approvals (general plan and specific plan amendments, development agreement, EIR certification) for a Wal-Mart Super center project. At trial in 2009, he argued the project approvals were invalid solely because the notice for the City Council’s public hearing on the project was defective, i.e., it failed to indicate the planning commission’s recommendation of adoption as required by law. (Gov. Code §§ 65090, 65094; Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 890-893 [holding statutorily-required “general explanation of the matter to be considered” included planning commission’s recommendation on zoning amendment].)

In January 2013, the trial court entered judgment denying Roberson’s petition for writ of administrative mandate. Roberson appealed, claiming the defective notice required reversal because he had presented “unopposed” evidence that he was prejudiced, i.e., he claimed he would have submitted written comments and testimony at the City’s public hearings had he known of the planning commission’s recommendation.

The Court of Appeal affirmed the judgment, holding that – while there was no dispute the public hearing notice was legally defective – Roberson had failed to demonstrate reversible error, as it was his burden to do. (See Gov. Code, § 65010(b) [stating there is no presumption of prejudicial error, and requiring court to make findings of prejudice, substantial injury to the complaining party, and probability of a different result absent the error before invalidating legislative body’s action under Planning and Zoning Law].) It also held that his defective notice claim was barred by res judicata since the identical claim had been fully litigated on its merits, resulting in a final judgment adverse to Roberson’s position in earlier litigation brought by environmental group plaintiffs with whom Roberson was in privity. (See, Rialto Citizens for Responsible Government v. City of Rialto (2012) 208 Cal.App.4th 899, 916-921.)

Quoting extensively from existing case law precedent, the Court of Appeal explained:  “[R]es judicata bars a party and persons in privity with that party from relitigating a claim following a final judgment on the merits of the claim.”  The doctrine applies to an entire cause of action, or one or more issues, where: (1) the claim or issue raised in the present action is identical to that litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party in the present action against whom the doctrine is asserted was either a party or in privity with a party to the prior proceedings. According to the Court, “The concept of privity… refers ‘to a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with another as to represent the same legal rights… and, more recently, to a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is “sufficiently close” so as to justify application of the doctrine of collateral estoppel.’” Further, the privity determination is grounded in fairness, “requires close examination of the circumstances of each case,” and requires as a matter of due process “that the nonparty have had an identity or community of interest with, and adequate representation by, the… party in the first action.” (emph. in orig.) Critically, “‘[a] party is adequately represented for purposes of the privity rule “if his or her interests are so similar to a party’s interest that the latter was the former’s virtual representative in the earlier action….’ … We measure the adequacy of ‘representation by inference, examining whether the … party in the suit which is asserted to have a preclusive effect had the same interest as the party to be precluded, and whether that… party had a strong motive to assert that interest….’” (Citing Gottlieb v. Kest (2006) 141 Cal.App.4th 141, 149-150.)

Applying these principles to the case before it, in the pertinent part of its opinion, the Court of Appeal found Roberson was in privity with the Rialto Citizens’ petitioners who had made and lost the same “prejudicially-defective notice” argument – along with CEQA, Planning and Zoning Law, and Subdivision Map Act arguments – in the prior litigation. This was so even though Roberson was “not and has never been a member of Rialto Citizens.” While Roberson allegedly brought his petition “in his own interest,” he “never explained to the trial court what ‘harm to himself’ he was seeking to prevent by challenging the project approvals based on the defective notice, and his declaration [in support of his trial brief] show[ed] he was seeking to vindicate the same public interests Rialto Citizens was seeking to vindicate, not his private interests.” That declaration showed in relevant part that Roberson opposed Wal-Mart’s project “because in my view it is likely to harm the community and should not have been approved, [and] I am even more troubled by the City’s failure to follow the procedures that the law requires for giving consideration to such proposals in the first place….” (emph. in opn.) The record revealed no mention of any harm Roberson would have suffered from the defective notice or the project approvals that differed in any way from any alleged public harm; Roberson thus had an identity or community of interest with and was adequately represented on his defective notice claim by the Rialto Citizens group both in the administrative proceedings and the prior litigation.

We live in an age of ubiquitous CEQA and land use litigation. Lawsuits often involve “revolving door” plaintiffs comprised of citizens and environmental groups who purport to litigate in the “public interest” and who carefully coordinate their actions, seek to cloak their members’ identities (and relevant property interests) with group names and associational privacy protections, and often serially litigate claims and issues already finally adjudicated and decided adversely to earlier litigants with whom they have “an identity or community of interest.” Such “revolving door” or “copycat” plaintiffs add nothing new in terms of arguments or issues, and simply seek another chance to litigate an issue and obtain a more favorable result from a different judge. Roberson should thus provide a useful tool for land use litigation counsel representing beleaguered public agencies and project proponents to employ in appropriate circumstances so as to deny such “revolving door” plaintiffs an undeserved “second bite at the apple.”

Written by:

Miller Starr Regalia
Contact
more
less

Miller Starr Regalia on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!