Case Name: Anderson, et al. v. City of San Jose, et al.
Case No.: 16-CV-297950

This action is brought by petitioners Sarah Anderson, Joana Cruz, Urban Habitat Program, and Housing California (collectively “Petitioners”) against the City of San Jose and the San Jose City Council (collectively the “City”) to invalidate its policy for selling surplus city-owned land.

The Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief (“the Petition”) concerns the California Surplus Land Act (“the Act”), which requires local governments to prioritize the development of affordable housing on surplus city property. The goal of the Act is to provide more affordable housing to low-income individuals. The City enacted Resolution 77725 stating it need not follow the Act and adopted City Policy 7-13 (“the Policy”), which permitted the City to dispose of surplus land in ways that allegedly do not comply with the Act. The gravamen of the Petition is that the Policy reduced the amount of the City’s affordable housing, thereby obstructing the Act’s purpose.

Petitioners assert the following four causes of action: petition for writ of mandate for unlawful conflict with state law, declaratory relief, petition for writ of mandate for violations of Government Code section 65008, and violations of the Fair Employment and Housing Act (“FEHA”). Petitioners deem all provisions of the Policy which conflict with the Act to be illegal.

The City demurred to all causes of action asserted in the Petition on the ground of failure to state sufficient facts to constitute a cause of action. On December 21, 2016, the Court sustained the demurrer as to the first two causes of action without leave to amend and overruled the demurrer with respect to the third and fourth causes of action.

On January 5, 2017, Petitioners filed the instant motion for reconsideration of the order sustaining the demurrer without leave to amend as to the first and second causes of action pursuant to Code of Civil Procedure section 1008 (“Section 1008”). Section 1008 provides that a party affected by an order, based upon new or different facts, circumstances, or law, may make application to the same judge or court that made the order to reconsider the matter and modify, amend, or revoke the prior order.

Petitioners assert different facts exist to justify reconsideration of the order sustaining the demurrer without leave to amend. Petitioners attach a proposed amended petition alleging these different facts. Petitioners argue the amended pleading itself constitutes a different state of facts, regardless of whether such facts are newly discovered. Petitioners cite two cases in support, namely, Rains v. Superior Court (1984) 150 Cal.App.3d 933 (“Rains”) and Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371 (“Careau”).

In opposition, the City asserts Petitioners’ reliance on Rains and Careau is misplaced because the cases are based on law that is no longer relied upon by courts in ruling on motions of reconsideration. The City avers the relevant law requires a party seeking reconsideration to provide new or different facts that were not previously known to that party, and Petitioners fail to fulfill this requirement. The Court agrees.

Rains held that different facts alleged in a proposed pleading after a demurrer was sustained without leave to amend sufficed as the different facts required under Section 1008. (Rains, supra, 150 Cal.App.3d at p. 944.) However, subsequent courts have departed from that reasoning. More recent cases interpreting Section 1008 have held “facts of which the party seeking reconsideration was aware at the time of the original ruling are not “new or different.” (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468, citations and quotations omitted.) These cases have further held the moving party must also proffer a “satisfactory explanation” for failing to provide the facts in connection with the underlying motion and order on which reconsideration is sought. (See ibid.; see also Hennigan v. White (2011) 199 Cal.App.4th 395, 406; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690 [denying the motion for reconsideration because “[t]he information consisting of [the moving party’s] own declared knowledge was obviously always within his possession, and no satisfactory explanation appeared for not bringing it out earlier”].) Thus, the burden under Section 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.) Legislative intent is in accord, which was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; see Baldwin v. Home Sav. Of America (1997) 59 Cal.App.4th 1192, 1198.)

In reply, Petitioners urge the Court to rely on Rains and Careau, arguing Careau was recently “affirmed” in Haro v. City of Solana Beach (2011) 195 Cal.App.4th 542 (“Haro”) and Buller v. Sutter Health (2008) 160 Cal.App.4th 981 (“Buller”). These cases, however, are inapplicable. First, Haro did not involve the review of an order on a motion for reconsideration. Instead, the court reviewed an order sustaining a demurrer without leave to amend and concluded the trial court properly denied leave to amend because there was nothing in the record demonstrating the plaintiffs could amend their pleading to cure the subject defects. (Haro, supra, 195 Cal.App.4th at pp. 554–55.) The court in Haro merely cited Careau for the general propositions that it may be an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows a reasonable possibility a defect in the complaint may be cured by amendment and that a plaintiff carries the burden to show how the pleading may be amended and how the amendment will change its legal effect. (Id. at pp. 554–55.) Similarly, the court in Buller evaluated the propriety of a trial court order sustaining a demurrer without leave to amend; it did not address a motion for reconsideration. (Buller, supra, 160 Cal.App.4th at p. 992.) The appellate court only cited Careau for the same propositions as cited in Haro. (Id. at p. 992.) Moreover, neither Haro nor Buller otherwise cite Rains as legal authority. Therefore, the cases Petitioners cite on reply do not actually “affirm” Rains or Careau. The Court therefore finds that a necessary requirement for a motion for reconsideration is to provide a satisfactory explanation of why the different facts were unavailable at the time the underlying motion was filed.

Here, Petitioners do not provide any explanation whatsoever as to how or why they could not have provided these facts at the time the Petition was filed or the demurrer was heard. Further, a review of the purported new facts reveals they existed at the time the Petition was filed. The new allegations mostly elaborate on the dearth of affordable low-income housing in California and the historical context of the connection between the Act and an issue of statewide concern. These issues were generally addressed by the papers and argument submitted in connection with the initial demurrer, and the court has already considered this policy argument as it was presented in opposition to the demurrer.

As the Court finds that Petitioners do not present any new or different facts within the meaning of Section 1008, subdivision (a), the motion for reconsideration is DENIED.