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.”
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.