Andy’s BP v. City of
Filed 8/15/13 Andy’s BP v. City of San Jose CA6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
ANDY’S BP, INC., et al.,
Plaintiffs and
Appellants,
v.
CITY OF SAN
JOSE,
Defendant and
Respondent;
AMIR SHIRAZI,
Real Party in
Interest and Respondent.
No. H038358
(Santa Clara
County
Super. Ct.
No. CV176412)
Appellants
Andy’s BP, Inc. and Andy Saberi appeal from an order discharging a peremptory
respondent City of San Jose
(City). Appellants contend that they
were deprived of their due process rights
when the trial court issued an order discharging the peremptory writ of mandate
without conducting a hearing. Since
appellants have failed to establish prejudice, we affirm the order.
Real Party
in Interest Amir Shirazi owns the gas station, Moe’s Stop, which is located at
the corner of North 33rd Street
and McKee Road in San
Jose.
name="_ftnref1" title="">[1] The project underlying the present litigation
involves the expansion of Moe’s Stop and consists of demolition of a house on
the property, replacement of the house with three gasoline tanks, and
construction of a canopy over the tanks.
The City approved a negative declaration for the project and upheld the
planning commission’s approval of the conditional use permit for the
project. Appellants own a gas station,
Gas and Shop, on another corner of the same intersection.
In July
2010, appellants filed a petition for writ of mandate in which they challenged
the City’s approval of the project.
Appellants alleged that the City had failed to comply with the
(CEQA) by ignoring evidence regarding traffic and leaking gasoline tanks.
On March 11, 2011, the trial court
issued an order granting the petition for writ of mandate on the first cause of
action (noncompliance with CEQA). The
order discussed the issue of potential traffic impacts extensively, but did not
refer to the gasoline leak claim. The
order also directed appellants to prepare and submit to the City and Shirazi an
appropriate form of judgment granting the writ and a peremptory writ of mandate
that would be consistent with the order.
Appellants’
counsel prepared a judgment and a peremptory writ of mandate which required the
City to prepare an environmental impact report (EIR) that complied with
CEQA. Appellants’ counsel then prepared
a judgment granting the peremptory writ and a peremptory writ of mandate directing
the City to set aside its approval of the project and prepare an EIR pursuant
to Public Resources Code section 21080, subdivision (d).
the grounds for noncompliance with CEQA.
The trial court signed the judgment and writ on March 29, 2011.
enforcement of the order by way of a return to the peremptory writ of mandate
“until the Court has determined that Respondent ha[d] complied with the
provisions of CEQA.â€
On December 21, 2011, the City filed a return
to the peremptory writ of mandate. The
following day, appellants filed their objection to the return to the peremptory
writ of mandate and requested a hearing.
On January 3, 2012, appellants filed a
based on alleged noncompliance with CEQA and for declaratory and injunctive
relief. On the same day, appellants
filed an ex parte application for a temporary restraining order and order to
show cause. The City opposed the
application. The trial court denied the
requested relief.
On January 5, 2012, the trial court
entered an order discharging the peremptory writ of mandate. However, a January 9, 2012 minute order states that “[t]he Court has
conducted a telephonic conference with all counsel,†including counsel for
appellants, the City, and Shirazi. The
conference was not reported. The trial
court ordered that the January 5, 2012
order discharging the peremptory writ of mandate be set aside.
On April 13, 2012, the trial court
issued an order discharging the peremptory writ of mandate based on the City’s
compliance with the writ.
Appellants
filed a timely appeal.
Appellants
contend that the trial court erred in failing to hold a hearing before
discharging the peremptory writ of mandate.
Cal.App.3d 964 outlines the procedure to be followed when a petitioner
challenges the respondent’s claim that it has complied with a writ. “It is well settled that the court which
issues a writ of mandate retains continuing jurisdiction to make any order
necessary to its enforcement.
[Citations.] Where, as here, the
writ remands the matter to the administrative body with directions to proceed
in a certain manner, and the return states that the court’s mandate has been
carried out, the petitioner may challenge the validity of that claim in
under Code of Civil Procedure section 1094.5, or by supplemental petition
(using the original action number).
[Citations.] But the petitioner
is not required to proceed by writ; if it or the court is not satisfied with
the return, the court may, on its own motion or on that of the petitioner,
either oral or written, order the respondent to reconsider further. [Citations.]â€
(Id. at p. 971, italics
added.)
Here,
appellants filed objections to the City’s return on December 22, 2011, and sought a determination
that the City’s EIR failed to comply with CEQA.
On January 3, 2012,
before the writ was discharged, appellants filed a supplemental writ petition
under the same docket number and alleged that the City’s EIR did not comply
with CEQA. It is not clear why
appellants chose to proceed in this manner.
In any event, assuming that appellants were entitled to a hearing on
their objections to the City’s return, they have failed to demonstrate
prejudice. The parties have already
submitted briefing on the supplemental petition on the same issues that were
raised in their objections, and there will be a hearing on these issues.
claim that the EIR fails to meet the requirements of CEQA.
Appellants
argue that the City or Shirazi could “assert that Appellants are barred by some
aspect of res judicata, such as collateral estoppel, in relation to the
supplemental petition.†We disagree.
“Res
judicata or claim preclusion precludes the relitigation of a cause of action
that previously was adjudicated in another proceeding between the same parties
or parties in privity with them.
[Citation.] Res judicata applies
if (1) the decision in the prior proceeding is final and on the merits; (2) the
present proceeding is on the same cause of action as the prior proceeding; and
(3) the parties in the present proceeding or parties in privity with them were
parties to the prior proceeding.
[Citation.] Res judicata bars the
litigation not only of issues that were actually litigated but also issues that
could have been litigated.
[Citation.]†(
v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202.)
“[I]n a new action on a different
cause of action the former judgment is a collateral estoppel, being conclusive
on issues actually litigated in the former action.†(Lewis
v. Superior Court (1978) 77 Cal.App.3d 844, 851.) “Collateral estoppel precludes relitigation
of issues argued and decided in prior proceedings. [Citation.]
Traditionally, we have applied the doctrine only if several threshold
requirements are fulfilled. First, the
issue sought to be precluded from relitigation must be identical to that
decided in a former proceeding. Second,
this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided
in the former proceeding. Fourth, the
decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is
sought must be the same as, or in privity with, the party to the former proceeding. [Citations.]â€
(Lucido v. Superior Court
(1990) 51 Cal.3d 335, 341, fn. omitted.)
Here, the threshold requirements have not been met, since appellants
were deprived of a hearing on the issues raised in their objections to the
return.
The order
is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
______________________________
Premo, Acting P. J.
______________________________
Grover, J.
name="_ftn1" title="">[1] Shirazi has not filed a respondent’s
brief.
name="_ftn2" title="">[2] Public Resources Code section 21080,
subdivision (d) provides: “If there is
substantial evidence, in light of the whole record before the lead agency, that
the project may have a significant effect on the environment, an environmental
impact report shall be prepared.â€
