Subpoena Rec'd 2-17-2023 - Housing Defense Fund, Yimby Law vs. Cupertino23CV410817
Santa Clara — Civil
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Dylan Casey
CALIFORNIA HOUSING DEFENSE FUND
360 Grand Avenue #323
Oakland, CA 94160
(443)223-8231
No fax number
dylan@calhdf.org
State Bar No. 325222
Attorney for Petitioner California Housing Defense Fund
Electronically Filed
by Superior Court of CA,
County of Santa Clara,
on 2/3/2023 10:13 AM
Reviewed By: L. Quach-1
Case #23CV410817
Envelope: 11102865
r- [P H V
Keith E. Diggs D
YIMBY LAW
57 Post Street #908 F E B 1 / 2023
San Francisco, CA 94104
(703)409-5198
No fax number CUPERTINO CITY CLERK
keith@yimbylaw.org
State Bar No. 344182
Attorney for Petitioner Yes In My Back Yard
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
I 23CV410817
CALIFORNIA HOUSING DEFENSE FUND, a
California nonprofit public benefit corporation;
and YES IN MY BACK YARD, a California
nonprofit public benefit corporation;
Petitioners,
V.
CITY OF CUPERTINO,
Respondent.
Case No.:
VERIFIED PETITION FOR WRIT OF
MANDATE
(Code Civ. Proc. § 1085; Gov. Code §§ 65587,
65751)
Petitioners CALIFORNIA HOUSING DEFENSE FUND and YES IN NlY BACK YARD allege as
follows:
1. "California has a housing supply and affordability crisis of historic proportions." (Gov. Code
§ 65589.5, subd. (a)(2).)'
2. To address this crisis, the State's Housing Element Law (Gov. Code §§ 65580 et seq.) required
Bay Area cities and counties to adopt the sixth revisions of their housing elements by January 31, 2023.
' Subsequent references are to the Government Code unless otherwise specified.
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VERIFIED PETITION FOR WRIT OF MANDATE
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3. The City of Cupertino did not meet this deadline.
4. On behalf of the public interest in alleviating the housing crisis, the California Housing Defense
Fund and Yes In My Back Yard petition the Court for a writ of mandate compelling the City to adopt a
revised housing element.
PARTIES
5. Petitioner California Housing Defense Fund ("Ca1HDF") is a California nonprofit public benefit
corporation.
6. CaIHDF's mission is to promote housing growth and affordability in California through
education and legal advocacy. As part of this mission Ca1HDF monitors local government policies
related to the availability and growth of housing.
7. Petitioner Yes In My Back Yard is a California nonprofit public benefit corporation.
8. Yes In My Back Yard litigates for housing through its project YIMBY Law, whose mission is to
end the housing shortage and achieve affordable, sustainable, and equitable housing for all.
9. Respondent City of Cupertino ("the City") is an incorporated city in Santa Clara County.
JURISDICTION AND VENUE
10. The Court has subject matter jurisdiction under Sections 65587 and 65751 of the Government
Code and Section 1085 of the Code of Civil Procedure.
11. The Court has personal jurisdiction over the City consistent with Section 410.10 of the Code of
I Civil Procedure.
12. Venue is proper under Sections 394-395 of the Code of Civil Procedure.
STATUTORY BACKGROUND
13. California's Housing Element Law (Gov. Code §§ 65580 et seq.) is the State's main policy for
addressing the housing crisis.
14. A "housing element" is a mandatory element of a county's or city's general plan. (§ 65302, subd.
(0.)
15. "Notwithstanding subdivision (a)" of Section 65700, all the provisions of the Housing Element
Law apply to general -law and charter cities alike. (§ 65700, subd. (b).)
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VERIFIED PETITION FOR WRIT OF MANDATE
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16. The Department of Housing and Community Development ("HCD") is the State agency that
administers the Housing Element Law. (See Health & Saf. Code §§ 50400, 50459.)
17. The driving mechanism of the Housing Element Law is known as the "regional housing need
allocation" or "RHNA." (Gov. Code §§ 65584.03, subd. (d); 65584.04, subd. (g)(2); 65584.05, subd.
(e)(1); 65584.06, subd. (f); 65584.07, subd. (b)(1); 65584.08, subd. (a)(4)—(5); 65584.09, subd. (a).)
18. Housing elements are updated on a cyclical basis. (See § 65588.)
19. Bay Area governments are now entering their sixth cycle of housing -element revisions.
20. Each cycle, HCD "determine[s] the existing and projected need for housing for each region" in
the State. (§§ 65584, subd. (a)(1); 65584.01.)
21. HCD allocates this RHNA to the regional council of governments, as applicable. (See §§ 65584-
65584.02.)
22. The regional council of governments then distributes its R14NA among its local governments.
(See §§ 65584.04—.05.)
23. HCD distributes the R1 NA among local governments where no council exists. (§ 65584.06.)
24. With its share of the RHNA assigned, a locality must revise its housing element with a plan to
"make adequate provision for the [housing] needs of all economic segments of the community."
(§ 65583.)
25. A housing element must provide "[a]n inventory of land" with zoned capacity "to meet the
locality's housing need for [each] designated income level" by the end of the cycle. (§§ 65583, subd.
(a)(3).)
26. The site inventory must meet detailed and justiciable statutory requirements. (See § 65583.2.)
27. Where existing zoned capacity is insufficient to meet the RHNA, the locality must rezone for
sufficient capacity within three years (if timely and adequately revised) or one year (if not). (§ 65583,
subd. (c)(1)(A).)
28. A housing element must, in its site inventory and otherwise, "affirmatively further fair housing."
(§§ 65583, subds. (a)(3), (b), (c)(1), (c)(5), (c)(10)(A); 65583.2, subd. (c); see § 8899.50 [definition].)
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VERIFIED PETITION FOR WRIT OF MANDATE
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29. A housing element must also "remove governmental ... constraints to the maintenance,
improvement, and development of housing ... for all income levels" where "appropriate and legally
possible." (§ 65583, subd. (c)(3).)
30. A revision to a housing element must be prepared long before its adoption.
31. Housing Element Law spells out detailed requirements for public and administrative review.
32. "[T]he first draft revision of a housing element" must be made "available for public comment for
at least 30 days." (§ 65585, subd. (b)(1).)
33. "[I]f any comments are received, the local government shall take at least 10 business days after
the ... public comment period to consider and incorporate public comments into the draft." (Ibid.)
34. "At least 90 days prior to adoption of a revision of its housing element," the locality must submit
the draft to HCD for administrative review. (Ibid.)
35. HCD then makes "written findings" as to whether the draft "substantially complies" with the
Housing Element Law. (Id., subd. (d).)
36.Only after HCD has had time to review a draft may the locality adopt it.
37. If HCD finds that a draft "does not substantially comply," the locality can either "[c]hange" its
draft to comply or "[addopt" with "written findings" rebutting HCD's findings. (Id., subd. (f).)
38. Housing Element Law specifies consequences for failure to substantially comply.
39. A locality without a "revised housing element ... in substantial compliance" is prohibited from
using its general plan and zoning standards to "disapprove" or "render[] ... infeasible" any housing
development project meeting certain affordability requirements. (§ 65589.5, subds. (d)(5), (h)(3).)
40. As described above, a locality that fails to obtain HCD's finding of substantial compliance
within 120 days of the statutory deadline must complete all required rezoning within one rather than
three years. (§ 65583, subd. (c)(1)(A); see above ¶ 27.)
41. "[A]ny interested party" may petition for a writ of mandate compelling "compliance with the
provisions" of the Housing Element Law. (§ 65587, subd. (b); see also § 65751.)
42. "[I]f the court" in such a proceeding enters "final judgment in favor of the ... petitioner," then
the locality must "bring its ... [housing] element ... into compliance ... within 120 days." (§ 65754.)
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VERIFIED PETITION FOR WRIT OF MANDATE
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43. "The court shall include" in such a judgment "one or more" additional specified provisions,
including suspension of nonresidential building permits and mandatory approval of residential building
permits, "until the [locality] has substantially complied." (§ 65755, subds. (a)(1), (a)(4).)
44. "[T]he court may, upon a showing of probable success on the merits, grant the relief provided in
Section 65755 as temporary relief." (§ 65757.)
45. "Notwithstanding ... Section 65585," a locality subject to a writ of mandate must submit a draft
revision of its housing element to HCD "at least 45 days prior to ... adoption." (Id., subd. (a).)
46. The locality must then conform its zoning ordinance within 120 days of adoption. (Id., subd. (b).;
47. "[A]ny action necessary" to comply with the writ is statutorily exempt from the California
Environmental Quality Act. (§ 65759, subd. (a); see also Pub. Res. Code §§ 21000 et seq.)
STATEMENT OF FACTS
48. Bay Area governments, including the City, were due to adopt the sixth revision of their housing
elements on January 31, 2023. (See HCD, Housing Element Update Schedule, https://www.hcd.ca.gov/
community-development/housing-element/does/6th-web-he-duedate.pdf, p.5.)
49. "At least 90 days prior" to this statutory deadline (Gov. Code § 65585, subd. (b); see above
¶¶ 31-36), the City had not submitted a draft revision of its housing element to HCD.
50. The City has not adopted a sixth revision of its housing element.
51. Together with another housing organization, Petitioners contacted the City about its failure and
inability to comply with Housing Element Law.
52. In their letter to the City, Petitioners offered to "forgo immediate litigation" against the City if
the City would acknowledge in writing that it would:
a. "not be in substantial compliance" by the statutory deadline;
b. "be prohibited from rejecting any [affordable] housing development project based on
//
subdivision (d)(1) or (d)(5) of the Housing Accountability Act (HAA), Government Code
Section 65589.5," from February 1, 2023, until such time as the City adopts a
substantially compliant housing element; and
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VERIFIED PETITION FOR WRIT OF MANDATE
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c. "be estopped" from invoking those subdivisions in any litigation arising from "any such
project that is the subject of an application or preliminary application submitted" during
that same period of time.
53. This letter was sent by email on December 16, 2022, to the City's manager, community
development director, attorney, and council.
54. The City's attorney responded and engaged Petitioners' counsel in settlement discussions, but
the parties did not reach an agreement.
BENEFICIAL INTEREST
55. "The availability of housing is of vital statewide importance ...." (§ 65580, subd. (a).)
56. The Legislature has declared that the City has a "responsibility" to "make adequate provision for
the housing needs of all economic segments of the community." (Id., subd. (d).)
57. Legalizing "the development of housing" is "essential" to achieving this goal. (Id., subd. (f).)
58. The Legislature intends that housing elements "move toward" this goal. (§ 65581, subd. (b).)
59. The writ of mandate is sought in this action to enforce the City's public duty.
FIRST CAUSE OF ACTION
Writ of Mandate to Compel Compliance with Housing Element Law
(Gov. Code §§ 65587, 65751; Code Civ. Proc. § 1085)
60. Petitioners incorporate and reallege all of the foregoing paragraphs.
61. Section 65587 of the Government Code, subdivision (b), provides that "any interested party"
may bring an action "to review the [City's] conformity with the [Housing Element Law]."
62. Petitioners are "interested part[ies]" under the Housing Element Law. (Ibid.)
63. Section 65587, together with Section 65751, provides that such an action "shall be brought
pursuant to Section 1085 of the Code of Civil Procedure." (Ibid.)
64. Because the City has not adopted a sixth revision of its housing element, and its statutory
deadline has passed, the City is out of compliance with the Housing Element Law.
65. Petitioners have no available administrative remedies.
66. Petitioners have no plain, speedy, or adequate remedy in the ordinary course of law, other than
those sought herein.
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VERIFIED PETITION FOR WRIT OF MANDATE
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67. Petitioners are thus entitled to a writ of mandate.
DEMAND FOR JUDGMENT
WHEREFORE, Petitioners demand judgment against Respondent as follows:
1. A writ of mandate directing the City to adopt a sixth revised housing element according to the
I schedule in Section 65754.
2. An injunction or order providing relief under Section 65755.
3. A declaration that:
a. the City is out of compliance with the Housing Element Law from February 1, 2023, until
the City lawfully adopts a sixth revision of its housing element that substantially
complies with the Housing Element Law;
b. the City must rezone as necessary to execute such sixth revision of its housing element by
the deadlines set forth in Articles 10.6 and 14 of Chapter 3 of Division 1 of Title 7 of the
Government Code;
c. the City may not rely on paragraphs (1) or (5) of subdivision (d) of Section 65589.5 of
the Government Code, also known as the Housing Accountability Act or "HAA," to
disapprove a housing development project —or condition approval in a manner that
renders such project infeasible —so long as such project meets the affordability
requirements described in paragraph (3) of subdivision (h) of the HAA;
4. Costs of suit;
5. Attorneys' fees under Code Civ. Proc. § 1021.5 and as otherwise allowed by law; and
6. Such further relief as the Court deems just and proper.
Dated: February 2, 2023
CALIFORNIA HOUSING
DEFENSE FUND
By: Dylan Casey
Attorney for Petitioner California
Housing Defense Fund
YIMBY LAW
r--
By: Keith E. Diggs
Attorney for Petitioner Yes In My
Back Yard
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VERIFIED PETITION FOR WRIT OF MANDATE
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VERIFICATION
I, Dylan S. Casey, declare:
1. I am an employee of and hold the position of Executive Director at Petitioner California Housing
Defense Fund, and am familiar with the matters discussed in the foregoing Petition.
2. 1 have read the Petition and know the contents thereof. The statements of fact therein are true
and correct of my own knowledge.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on February 2, 2023 at Alameda, California.
Dylan S. Casey
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VERIFIED PETITION FOR WRIT OF MANDATE
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VERIFICATION
I, Sonja K. Trauss, declare:
1. I am the Executive Director of Yes In My Back Yard, the Petitioner in this action.
2. I have read the foregoing Petition, and know the stated facts to be true of my own knowledge.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on February 2, 2023 at Oakland, California.
By: Sonja K. Trauss
Executive Director, Yes In My Back Yard
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VERIFIED PETITION FOR WRIT OF MANDATE
SANTA CLARA COUNTY SUPERIOR COURT
ALTERNATIVE DISPUTE RESOLUTION
INFORMATION SHEET
Many cases can be resolved to the satisfaction of all parties without the necessity of traditional litigation, which can be expensive, time
consuming, and stressful. The Court finds that it is in the best interests of the parties that they participate in alternatives to traditional
litigation, including arbitration, mediation, neutral evaluation, special masters and referees, and settlement conferences. Therefore, all
matters shall be referred to an appropriate form of Alternative Dispute Resolution (ADR) before they are set for trial, unless there is good
cause to dispense with the ADR requirement.
What is ADR?
ADR is the general term for a wide variety of dispute resolution processes that are alternatives to litigation. Types of ADR processes
include mediation, arbitration, neutral evaluation, special masters and referees, and settlement conferences, among others forms.
What are the advantages of choosing ADR instead of litigation?
ADR can have a number of advantages over litigation:
• ADR can save time. A dispute can be resolved in a matter of months, or even weeks, while litigation can take years.
• ADR can save money. Attorney's fees, court costs, and expert fees can be reduced or avoided altogether.
• ADR provides more participation. Parties have more opportunities with ADR to express their interests and concerns, instead
of focusing exclusively on legal rights.
• ADR provides more control and flexibility. Parties can choose the ADR process that is most likely to bring a satisfactory
resolution to their dispute.
• ADR can reduce stress. ADR encourages cooperation and communication, while discouraging the adversarial atmosphere of
litigation. Surveys of parties who have participated in an ADR process have found much greater satisfaction than with parties
who have gone through litigation.
What are the main forms of ADR offered by the Court?
Mediation is an informal, confidential, flexible and non -binding process in the mediator helps the parties to understand the interests of
everyone involved, and their practical and legal choices. The mediator helps the parties to communicate better, explore legal and practical
settlement options, and reach an acceptable solution of the problem. The mediator does not decide the solution to the dispute; the parties
do.
Mediation may be appropriate when:
• The parties want a non -adversary procedure
• The parties have a continuing business or personal relationship
• Communication problems are interfering with a resolution
• There is an emotional element involved
• The parties are interested in an injunction, consent decree, or other form of equitable relief
Neutral evaluation, sometimes called "Early Neutral Evaluation" or "ENE", is an informal process in which the evaluator, an experienced
neutral lawyer, hears a compact presentation of both sides of the case, gives a non -binding assessment of the strengths and weaknesses
on each side, and predicts the likely outcome. The evaluator can help parties to identify issues, prepare stipulations, and draft discovery
plans. The parties may use the neutral's evaluation to discuss settlement.
Neutral evaluation may be appropriate when:
• The parties are far apart in their view of the law or value of the case
• The case involves a technical issue in which the evaluator has expertise
• Case planning assistance would be helpful and would save legal fees and costs
• The parties are interested in an injunction, consent decree, or other form of equitable relief
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CV-5003 REV 10/21/2020 ALTERNATIVE DISPUTE RESOLUTION INFORMATION SHEET
CIVIL DIVISION
Arbitration is a less formal process than a trial, with no jury. The arbitrator hears the evidence and arguments of the parties and then
makes a written decision. The parties can agree to binding or non -binding arbitration. In binding arbitration, the arbitrator's decision is final
and completely resolves the case, without the opportunity for appeal. In non -binding arbitration, the arbitrator's decision could resolve the
case, without the opportunity for appeal, unless a party timely rejects the arbitrator's decision within 30 days and requests a trial. Private
arbitrators are allowed to charge for their time.
Arbitration may be appropriate when:
The action is for personal injury, property damage, or breach of contract
Only monetary damages are sought
Witness testimony, under oath, needs to be evaluated
An advisory opinion is sought from an experienced litigator (if a non -binding arbitration)
Civil Judge ADR allows parties to have a mediation or settlement conference with an experienced judge of the Superior Court. Mediation
is an informal, confidential, flexible and non -binding process in which the judge helps the parties to understand the interests of everyone
involved, and their practical and legal choices. A settlement conference is an informal process in which the judge meets with the parties or
their attorneys, hears the facts of the dispute, helps identify issues to be resolved, and normally suggests a resolution that the parties may
accept or use as a basis for further negotiations. The request for mediation or settlement conference may be made promptly by stipulation
(agreement) upon the filing of the Civil complaint and the answer. There is no charge for this service.
Civil Judge ADR may be appropriate when:
• The parties have complex facts to review
• The case involves multiple parties and problems
The courthouse surroundings would he helpful to the settlement process
Special masters and referees are neutral parties who may be appointed by the court to obtain information or to make specific fact
findings that may lead to a resolution of a dispute.
Special masters and referees can be particularly effective in complex cases with a number of parties, like construction disputes.
Settlement conferences are informal processes in which the neutral (a judge or an experienced attorney) meets with the parties ortheir
attorneys, hears the facts of the dispute, helps identify issues to be resolved, and normally suggests a resolution that the parties may
accept or use as a basis for further negotiations.
Settlement conferences can be effective when the authority or expertise of the judge or experienced attorney may help the parties reach a
resolution.
What kind of disputes can be resolved by ADR?
Although some disputes must go to court, almost any dispute can be resolved through ADR. This includes disputes involving business
matters; civil rights; collections; corporations; construction; consumer protection; contracts; copyrights; defamation; disabilities;
discrimination; employment; environmental problems; fraud; harassment; health care; housing; insurance; intellectual property; labor;
landlord/tenant; media; medical malpractice and other professional negligence; neighborhood problems; partnerships; patents; personal
injury; probate; product liability; property damage; real estate; securities; sports; trade secret; and wrongful death, among other matters.
Where can you get assistance with selecting an appropriate form of ADR and a neutral for your case, information about ADR
procedures, or answers to other questions about ADR?
Contact.,
Santa Clara County Superior Court
ADR Administrator
408-882-2530
CV-5003 REV 10/21/2020 ALTERNATIVE DISPUTE RESOLUTION INFORMATION SHEET
CIVIL DIVISION
CIVIL LAWSUIT NOTICE
Superior Court of California, County of Santa Clara
191 North First St., San Jose, CA 95113
ATTACHMENT CV-5012
CASE NUMBER: 23CV410817
PLEASE READ THIS ENTIRE FORM
PLAINTIFF (the person suing): Within 60 days after filing the lawsuit, you must serve each Defendant with the Complaint,
Summons, an Alternative Dispute Resolution (ADR) Information Sheet, and a copy of this Civil Lawsuit Notice, and you must file
written proof of such service.
DEFENDANT (The person sued): You must do each of the following to protect your rights:
1. You must file a written response to the Complaint, using the proper legal form or format, in the Clerk's Office of the
Court, within 30 days of the date you were served with the Summons and Complaint;
2. You must serve by mail a copy of your written response on the Plaintiffs attorney or on the Plaintiff if Plaintiff has no
attorney (to "serve by mail" means to have an adult other than yourself mail a copy); and
3. You must attend the first Case Management Conference.
Warning: If you, as the Defendant, do not follow these instructions, you may automatically lose this case.
RULES AND FORMS: You must follow the California Rules of Court and the Superior Court of California, County of
< CountyName_> Local Civil Rules and use proper forms. You can obtain legal information, view the rules and receive forms, free
of charge, from the Self -Help Center at 201 North First Street, San Jose (408-882-2900 x-2926).
■ State Rules and Judicial Council Forms: www.courtinfo.ca.00v/forms and www.courtinfo.ca.aov/rules
■ Local Rules and Forms: http://www.sccsupedorcourt.org/civil/ruieltoc.htm
CASE MANAGEMENT CONFERENCE (CMC): You must meet with the other parties and discuss the case, in person or by
telephone at least 30 calendar days before the CMC. You must also fill out, file and serve a Case Management Statement
(Judicial Council form CM-110) at least 15 calendar days before the CMC.
You or your attorney must appear at the CMC. You may ask to appear by telephone -see Local Civil Rule 8.
Your Case Management Judge is:
The 1st CMC is scheduled for: (Completed by Clerk of Court)
Date:
Time:
Department:
in Department:
The next CMC is scheduled for: (Completed by party if the 1st CMC was continued or has passed)
Date:
Time:
in Department:
ALTERNATIVE DISPUTE RESOLUTION (ADR): If all parties have appeared and filed a completed ADR Stipulation Form (local
form CV-5008) at least 15 days before the CMC, the Court will cancel the CMC and mail notice of an ADR Status Conference.
Visit the Court's website at www.sccsuperiorcourt.org/civil/ADR/ or call the ADR Administrator (408-882-2100 x-2530) for a list of
ADR providers and their qualifications, services, and fees.
WARNING: Sanctions may be imposed if you do not follow the California Rules of Court or the Local Rules of Court.
CV5012 REV 08/01/16 CIVIL LAWSUIT NOTICE Page 1 of 1