Judge: Walter P. Schwarm, Case: 30-2022-01241823, Date: 2023-05-18 Tentative Ruling
Intervener’s (California Department of Housing and Community Development) Motion for Leave to Intervene (Motion), filed on 11-15-22 under ROA No. 107, is GRANTED.
City of Anaheim’s (City) Evidentiary Objections, filed on 1-23-23 under ROA No. 121, are OVERRULED.
Code of Civil Procedure section 387, subdivision (d), states, “(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: [¶] (A) A provision of law confers an unconditional right to intervene. [¶] (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties. [¶] (2) The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either parties, or an interest against both.”
Carlsbad Police Officers Association v. City of Carlsbad (2020) 49 Cal.App.5th 135, 148 (CPOA), states, “Section 387 recognizes two forms of intervention. The first is compulsory. Under subdivision (d)(1)(B), a trial court ‘shall, upon timely application, permit a nonparty to intervene in the action or proceeding’ if that person ‘claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one of the existing parties.’ In other words, to establish a right to mandatory intervention, the nonparty must: (1) show a protectable interest in the subject of the action, (2) demonstrate that the disposition of the action may impair or impede its ability to protect that interest; and (3) demonstrate that its interests are not adequately represented by the existing parties. [Citation.] These criteria are virtually identical to those for compulsory joinder of an indispensable party. [Citation.] [¶] If intervention is not compulsory, leave to intervene may also be granted on permissive grounds. Under section 387, subdivision (d)(2), ‘[t]he court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.’ Permissive intervention is appropriate if: ‘(1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action.’ [Citations.]” City of Malibu v. California Coastal Commission (2005) 128 Cal.App.4th 897, 902 (City of Malibu) provides, “ ‘[C]ourts have recognized California Code of Civil Procedure section 387 should be liberally construed in favor of intervention. [Citation.]’ [Citation.] Nonetheless, ‘[a] trial court has broad discretion in determining whether to permit intervention. [Citations.]’ [Citations.]”
Government Code section 65585 states in part, “. . . (j) The department shall notify the city, county, or city and county and may notify the office of the Attorney General that the city, county, or city and county is in violation of state law if the department finds that the housing element or an amendment to this element, or any action or failure to act described in subdivision (i), does not substantially comply with this article or that any local government has taken an action in violation of the following: . . . [¶] (k) Commencing July 1, 2019, prior to the Attorney General bringing any suit for a violation of the provisions identified in subdivision (j) related to housing element compliance and seeking remedies available pursuant to this subdivision, the department shall offer the jurisdiction the opportunity for two meetings in person or via telephone to discuss the violation, and shall provide the jurisdiction written findings regarding the violation. This paragraph does not affect any action filed prior to the effective date of this section. The requirements set forth in this subdivision do not apply to any suits brought for a violation or violations of paragraphs (1) and (3) to (9), inclusive, of subdivision (j). [¶] (l) In any action or special proceeding brought by the Attorney General relating to housing element compliance pursuant to a notice or referral under subdivision (j), the Attorney General may request, upon a finding of the court that the housing element does not substantially comply with the requirements of this article pursuant to this section, that the court issue an order or judgment directing the jurisdiction to bring its housing element into substantial compliance with the requirements of this article. . . . [¶] (n) Nothing in this section shall limit the authority of the office of the Attorney General to bring a suit to enforce state law in an independent capacity. The office of the Attorney General may seek all remedies available under law including those set forth in this section. [¶] (o) Notwithstanding Sections 11040 and 11042, if the Attorney General declines to represent the department in any action or special proceeding brought pursuant to a notice or referral under subdivision (j) the department may appoint or contract with other counsel for purposes of representing the department in the action or special proceeding. . . .”
The Petition for Writ of Mandate and Complaint In Intervention for Declaratory and Injunctive Relief (CII), attached as Exhibit A to the Motion, for the City’s alleged violations of the Housing Element Law, Housing Accountability Act, Government Code sections 8899.50 and 65583, subdivisions (c)(1), (c)(3), (c)(5), and (c)(10)(A), Government Code section 65008, failure to implement Housing Element goals, policies, and programs, and “. . . Any and all remedies available under section 65585. . . .” (CII; 28:8-30:22.) Intervener issued a Notice of Violation to the City on 12-14-21. (CII, ¶ 59 and Exhibit B.) The 12-14-21 Notice of Violation states in part, “If necessary, HCD must notify a locality when that locality takes actions that are in violation of Government Code sections 65008 and 65583 (Gov. Code, § 65585, subd. (j)) and may refer such violations to the Office of the Attorney General. (Gov. Code, § 65585, subds. (i)(1), (j).)” (CII, ¶ 59 and Exhibit B at p. 1 of the 12-14-21 Notice of Violation.) Page 7 of the 12-14-21 Notice of Violation states in part, “HCD provides the City until January 13, 2022 to provide a written response to these findings before taking any of the actions authorized by section 65585, including, but not limited to, referral to the California Office of the Attorney General.” (CII, ¶ 59 and Exhibit B at p. 7 of the 12-14-21 Notice of Violation.) The Motion states, “. . . The City, however, violated—and continues to violate—state housing laws by imposing unlawful impediments to transitional housing . . . .” (Motion; 6:14-16.)
The Motion
contends, “Without HCD’s intervention, a disposition in this case, or even a
ruling or order related to a substantial issue in the case, will impair HCD’s
statutory rights to enforce state housing laws and to vindicate the public
interest in protecting housing for persons with disabilities or who have been
homeless.” (Motion; 11:24-27.) The City’s Opposition to Intervener-Petitioner
California Department of Housing and Community Development’s Motion for Leave
to Amend (Opposition), filed on 1-23-23 under ROA No. 123, asserts, “Here,
HCD goes on at length about how Petitioner cannot adequately represent HCD’s
interests. . . . And, indeed, no one is asking Petitioner to represent HCD’s
interests. As noted in its Motion, HCD can bring a separate action to seek
the City’s compliance with state housing laws.” (Opposition; 4:20-23.)
Intervener’s Reply to Opposition to Motion for Leave to Intervene (Reply),
filed on 1-27-23 under ROA No. 127, responds, “In doing so, the City misreads
the law and ignores HCD’s role as both the state agency with the primary
responsibility for state housing policy and as a public prosecutor with a duty
to enforce the State’s housing laws.”
(Reply, 1:11-13.)
California Constitution, Art. 5, § 13, states in part, “Subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State. . . .” Government Code section 12511 provides, “The Attorney General has charge, as attorney, of all legal matters in which the State is interested, except the business of The Regents of the University of California and of such other boards or officers as are by law authorized to employ attorneys.” Government Code section 12518, states in part, “. . . Upon the Attorney General’s own motion or upon the request of any state agency, the Attorney General may institute such an action in the name of the people of the state or on behalf of any state agency.”
Here, the Attorney General, in its representative capacity, seeks to institute an action on behalf of Intervener within the meaning of Government Code section 65585, subdivisions, (j), (k), and (o). In other words, the Attorney General’s act of representing Intervener indicates that the Attorney General has accepted representation of Intervener rather than declining representation of Intervener.
Intervener has demonstrated a protectable interest in the subject of this action, that the disposition of the action may impair or impede its ability to protect that interest, and that its interest is not adequately represented by the parties. Petitioner (Grandma’s House of Hope) is in part enforcing the same right/interest to compel the City to comply with the applicable state housing laws that the Intervener has the same, parallel authority to enforce.
Specifically, the Housing Element Law specifically grants a private party, such as Petitioner, the ability to enforce certain statutory provisions by way of a writ petition to enforce the provisions of Government Code section 65583, subdivision (c)(1), (2), and (3). (Gov. Code, § 65587, subd. (d)(2).) Government Code section 65585 allows Intervener to pursue this civil action as discussed above. The City has not shown that it is improper for Intervener to pursue this action with the Office of the Attorney General as its legal representative.
Intervener has issued violations of the state housing laws to the City regarding the project at issue in this case. (Zisser Decl. ¶¶ 11-15 and Exhibits A and B.)
Petitioner and Intervener are, in part, seeking to enforce the same statutory right/interest and same violations of the state housing law with respect to the same project. (Petition, ¶ 33; CII, ¶ 46.) The declaratory relief sought by Petitioner and other final adjudications of the Petition have the potential to bind Intervener as to whether the City is in fact in compliance with the state’s housing laws as to the City’s imposition of the conditional use permit (CUP) requirement on Petitoner, and its subsequent denial of Petitioner’s application for a CUP. (Petition, ¶¶ 42-62; CII, ¶¶ 51-65.) Intervener has a protectable interest in this action, and the disposition of the action has the potential to impair or impede Intervenor’s ability to protect that interest. (Crestwood Behavioral Health, Inc. v. Lacy (2021) 70 Cal.App.5th 560, 579-580.)
Intervener’s interests are not adequately represented by the existing parties, given Petitioner’s primarily private interests at stake versus the broad, overarching public interest Intervener seeks to protect.
With mandatory intervention, it makes no difference that such intervention will expand the issues in the case. (CPOA, supra, 49 Cal.App.5th at p. 149.)
Based on the above, the court GRANTS Intervener’s (California Department of Housing and Community Development) Motion for Leave to Intervene filed on 11-15-22 under ROA No. 107. The court order Intervener to file and serve the CII no later than 5-25-23.
Intervener is to give notice.