n-r,,.:: :- Craig A. Sherman, Esq. (SBN 171224)

, >

LAW OFFICE OF CRAIG A SHERMAN 1901 Firsf Avenue, Suite 335 .. ., . ,> i:) 1;: San Diego, CA 92101 , . $

Tel: (619) 702-7892 . .

Fax: (6 19) 702-929 1 , ,

!I Attorney for Plaintiff THE HEART OF KENSINGTON, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COIJNTY OF SAN DIEGO - CENTRAL DISTRICT

THE HEART OF KENSINGTON, INC., a ) Case No.: 3 7 - 2 0 0 8 - 0 0 0 7 9 2 5 4 ~ u - ~ ~ ~ ~ California non-profit corporation, )

'I

Petitioner/Plaintifi j VERIFIED PETITION FOR WRIT OF ) MANDATE; COMPLAINT FOR

v. ) DECLARATORY AND INJUNCTIVE ) RELIEF

CITY OF SAN DIEGO, a public entity; and ) DOES ONE through FIVE, inclusive. )

)

II Responden f/Defendanr, j )

TERRACE PARTNERS, L.P., a registered )

California Limited Partnership; and DOES ) SIX through TWENTY, inclusive, )

Real Parties in inreresf. 1 )

I.

INTRODUCTION

I. This action involves a challenge of the City of San Diego's ("City") decision

made on February 5,2008 to approve the development of a 3-story, 56,000+ square foot

mixed-use commercial, office and residential project in a low-rise, 1 and 2-story area in the

Kensington neighborhood of the Mid-City Communities planning area. The proposed

development, known as "Kensington Terrace," will cause unmitigated adverse impacts to the

/(surrounding neighborhood character, traffic, historic resources. and the overall environment.

- 1 - VERIFIED PETITION FOR WRIT OF MANDATE COMPLAINT FOR DECLARATORY AND t N J U N W E RELIEF

2. The large scale of the proposed project will stand in stark contrast to the

su~~ouoding blocks and vicinity of the neighborhood, and will add over 1600 additional vehicle

trips to existing substandard traffic conditions immediately adjacent to the project.

3. By approving the large-scale developnicnt in the subject location, the City has

improperly applied state environmental protection laws, the local Municipal Code, arid the

City's own community plan and dcvelopment requirements, which were enactcd to ensurc

dcvelopment unifom>ity, conipatibility, and to ensure Lhat public assets and resources would be

prntected arid not adversely impacted.

4. Plaintiff alleges lierein that the City has failed to proceed in a nianncr required

by law, it has failed to adopt required findings, and /or tlic substantial evidence does not

suplmt its decisions and written findings.

5 . This lawsuit seeks to overturn the decision and findings of City's approval of

this large-scale projcct due to absent, deficient and/or unsupported findings, and iniproper

application, analysis, mitigation and ccrtificalion of a mitigaled negative declaration under tlic

California Environmental Quality Act ("CEQA").

GENERAL AL1,EGATIONS

6. THE HEART OF KENSINGTON, INC. ("Petitioner" or "Plaintiff') is a not-

fwpr-ofit California corporation based in San Drego, California, along with its menibers and

1 supporters, most of whom reside in the City of San Diego, and specifically the Kensington

Community, which has collectively formed and united for the pnrpose of preserving

: neighborhood values, the sanctity of community, and ensuring strict and good fxith compliance

, with the laws, regulations and ordinances adopted to prcscrve the same. Petitioner has standing

to enforce such laws that are designed to protect against inappropriate development,

degr:rdation of community values, and unmitigated environmental impacts. The decision(s) of

I def'entlant City will have detrimental impacts on Petitioner. its members, and agents, who

reside in and around the City of San Diego and the project site or who visit the area of the

~ .-.

VERIFIED PE'I'ITION FOR WRIT OF MANDATE; COMPI.AINT FOR UICIARA'I'OKY AND INJlJNCrIVE REL.IEF I I

propow$ development. Petitioner includes its members, agents and individuals who protested

against defendant City's action preceding the filing of this complaint,

7. Defendant CITY OF SAN DIEGO ("Defendant" or "City"), and LIOES ONE

thl-ough FIVE, is a local govcrrirncnt agency antl subdivision of the State of California, by way

of city charter, charged with complying with applicable provisions of state law, including the

California Environtnental Quality Act ("CEQA"), the general laws of this State, arid Municipal

Code of this local subdivision. The city council is the duly constituted legislative body :uid

final decision-making adniinist~-alive body in the City, antl is ch;lrgetl with the thty ofensuririg,

:unong other things, that all applicable federal, state and local laws :ire fully antl faithfully

oheyed and implen~entcd. For the purposes hercin, the "City" includes all of its depart~nents,

of-ficers, and appointed and clcctetl ~represcntatives charged with the duties :~ IKI ohligiitio~is as

allegctl herein. Lkfendant, through its I-espective officers, departments, elected officials. and

the final action of its city cou~lcil, has adopted the resolution(s), ortiinance(s), atloptcti finilings,

and is otherwise responsible for all conduct which is the subject of this litigation.

8. Real Parties il l lntercst, TERRACE I'ARTNERS, L.P. and DOES SIX through

TWENTY ("Real Parties"). is a registered California business entity (including its u~~tlisclosed

~nembers o r other persons) ;illegcd and believed to be the current proponents, applicants ;ir~ti/or

ownm of the project o r pnrcels which are the subject of this litigation, antl whose rights arid

cntitkments stand to be nKccted hy this litigation. Petitioner is currently unaware ol'ar~y o t lw

primary proponents, applicants and/or landholders who stand to be directly affected by this

litigation but will arnentl this complaint at a later time that such persons or entities heco~rlc

known, consistent with the laws of this State for adding DOE defendants.

9. This lawsuit has been comt~lenced within the time limits imposed for actions

iindel- the California Code of Civil Procedure and Califi~rnia Public Resources Code, as made

applic;tble to the City by its codes or ordinances or by thc general laws of this State.

10. Venue and jurisdiction in this Court are proper pursuant to the California Code

of Civil I'rocedure for a matter relating to the subject property located within, and an

administrative action decidcd within, the Court's jurisdiction.

- 3 -

VERIFIED PETITION I 'OK WKI'I'OI: MANDATE: COMPLAlNl FOR DECLARATORY AND INJUNCTIVE K l ~ l l l i l ;

I I . Petitioner, by and tlrrough itself, City staff, state agencies, residents, citizen

roups and citizens living, residing or operating in the Kensington, Mid-City, municipal and

reater San Diego County areas, have made oral and written commellts, and have been present,

articipatccl i n the public hearings or have otherwise raised the legal deficiencies asserted in

nis petition for writ of mandate.

12. Petitioner has perlormet1 all conditions precedent to filing this actiun by

omplying with all requirernents of the California Puhlic Resources Cotle, including the giving

~f prior written notice to the defendants prior to filing this action, and has no other remedy

~ther than to bring this action. All other requests of Defendant, having been previously madc,

lave proven and would bc fi~tile.

111.

THE CALIFORNIA ENVIRONMENTAL QUALITY ACT AND

OTHER LAWS GIVING RISE TO THIS ACTION

13. In 1970, the Califomi;~ Legislature enacted the California Environmental

)oality Act ("CEQA") (Public Resources Code $21000, et seq.; 14 Cal. Cotle Regs. 5 15000 et

eq.) its a means of requiring public agency decision-makers such as Defcndanl to docu~ncnt

ntl considcr the environmental implications of their actions. CEQA's fundamental goal is to

ully infornl the public and the decision makers as to the environmental consequences of its

ctions and to assure members of the public that their elected ofricials are making informed

ecisions. CEQA requires governmental authorities, such as Defeudant, to use all feasihle

neans to rctluce or avoid significant environ~uental damage that otherwise could result Srom its

ctions. CEQA forbitis agencies from approving projects with significant adverse impacts

vhen feasible alternatives can reduce, eliminate, or otherwise lessen such impacts.

14. The cornerstone of the CEQA process is the preparation of an environmental

tnpact report, which discloses the adverse environmental impacts that may result from the

~roposal or approval by a public agency. The primary function of the environmental impact

tport is to discuss the important enviroli~l~e~ital consequences, and to inform decision-makers,

tsponsible agencies, and thc general public of the potential adverse environmental

- 4 - ...

VliKIli11<1l PETITION I'OR WRrT OF MANIIAIF: (WMPI.AINT FOR DECLAKAI'ORY AND INJUNCTIVE RH.IEI;

mnsequences, and then mitigate and itnpleinent all feasible alternatives to the project that

would lcsscrl such adverse impacts.

1.5. Under CEQA, where there is no reasonable probability (or "fair argument") that

;any adverse impacts may result t'rorn an agency action, the preparation of a Negative

[)ccln,;.zrion or Mitigated Negntive Declnrutioiz is appropriate. However, the California

Supreme Court and tlic Legislature have clearly spoken and ruled that where a project nwy

Izclve a significant effect on the environment, an EIR I ~ I I ~ . T ~ he conipletccl I~efore tlie projcct is

approved. (Cal. Public Res. Code $8 21 100, 21 1.5 1; CEQA Guidelines $ 15064, suhds. (a)([),

(f) I)) Any question, doubt or uncertainty is present about potential significant effects, t lwc is

a strong presu~nptio~i in favor ol" requiring preparation of an EIR.

I 'l'he City purportedly has a process for approving pt-ojects via a Planned

Ikveloplncnt Permit process whereby City believes i t can clmlgc, relax, amend or do anything

i t wants regarding legislated zoning code restrictions, even beyond that which City looscly, anti

in an undefirlcd manner, refers to as "deviations." Under a f'latined Development Permit, City

claims to allow any number and types of departures, deviations or variaticcs from the legislated

staridnrds of the zoning code under the premise, reasoning and hasis City can make a pro.ject

better because of its flexibility of tlie zoning code, and whereby City contends i t can grant such

zoning code exceptions and deviations as long it makes and adopts a set of findings for the

I'1:uiried Development Permit. (San Diego Municipal Code 3 126.0604 et seq.)

17. The Mid-City Cowmirities P l m ("MCCI'") is the specific and most prccisc

elcrrrctlt or City's general plan that sets forth and seeks to control intended goals, policies and

anticipated development of the prqjcct site. The Cerrtrc~l Urhtmized t'lunnetl District

0ldinnwc.c ("PDO") (San Diego Municipal Code 8 155.0201 et seq.) is thc specific set ol'

zoning ordinances and development regulations adopted to control development on the "ClJ"

designated portion of the site. Most every other zoning requirement and development

regulation set forth in City's land developmenl and municipal code are also applicable to the

subject project site.

IV.

FACTUAL AND PROCEDURAL BACKGROUND GIVING RISE TO THIS AC'I'ION

18. On or about August 1998, the City adopted the current version of the Mid-City

I'ornrnnnities Plan,

19. On or abont June 2007 Real Parties made an application to develop lands

located at 4142, 4166, 4178 Adarns Avenue and 4708 Edgeware Road, as a mixctl nse

:om~ncrcial, residential, and office space complex.

20. On or about A u g ~ s t of 2007 an Initial Study and Initial Study Checklist were

prepasetl and included i n a Draft Mitigated Negative Declaration (MND) dated September 7,

2007 that City claims was circulated to the public, other agencies, and the tlecision-makers

regarding the development application for the Kensington Tert-ace Projecl, No. 105224. It is

allcgeti ;lnd bclicved tirat written corrmenls were suhnlitted as part o f that required PI-ocedurc.

2 1 . On or about October 22, 2007 the City completed responses to the comment

letters and finalinxi the MND.

22. On November 15, 2007, tlic City's planning commission convened to consider

iand vole 011 the Kensington Terrace develop~nent project. After about five hours o l testimony

ond discussion, the cotnmission voted to approve the project 5- 1

23. After an ilppeal was taken by one of Plaintiff's members anti officers, on

Fchruary 5. 2008, at a regularly scheduled meeting of City's city council, a public hearing was

lrcld anti a decision was made to nptrold the planning commission's decision anti approve the

project by (1) certifying the Final MND and a Mitigation and Monitoring Reporting Program

(MMRP) via Resolution No. R-303377, (2) adopting a resolution (No. R-303405) granting the

r;nhdivision Tentative Map No. 360180, and (3) adopting a rcsolution (No. K-303404) granting

n Planned Development Pennit No. 360181. I-Iereafter these approvals are collectively referred

to as thc "Froject" or "final approvals."

24. On February 6,2008, the City prepared and caused to bc filed with the San

Diego County Clerk, a Notice of Determination setting forth that a final CEQA decision was

made by the City on February 5, 2008.

- 6 -

VliKll'lED PETITION FOR WRIT OF MANDATE: COMPLAIN'I'FOK DBCI.ARATOKY AND INJUNCTIVE RELIEF

v. FIRST CAIJSE OF ACTION - PETITION FOR WRIT 01' MANDATE

Violation of the California Environmental Quality Act

(Cal. Public liesources Code $ 21000 et seq.; 14 CaI. Code Regs. $ 15000 et seq. )

25. Plaintiff hereby reallcgcs and incorporates by reference (j(j 1-24 above 21s though

ully set forth herein.

26 Defendant, i n processing, circulating, analyzing baseline conditions, adopting

lid certifying findings, and adopting a mitigation and monitoring reporting progritm for thc

<ensington Terrace Project ("Prqjcct") anti its final rnitigateti negative tlecl;rmtion (hcreafrer.

'Fiml MND"), constitules a pre~ndicial ;ihuse of discretion i n that Dcferrtlant failed to proceed

n a 1n;inncr rcquiretl by law, i t did no1 adopt requisite findings, and/or its tiecisions and

indings arc not supporled by substantial evidence.

27. Inforrnatio~~ and evitlcrrcc ir i the record, as well as in the findings m;rtlc. by

kfcndant in its adoption of the Final MND, indicate tlrc procetlural and subslantive

leficiencies of CEQA, as Follows:

a. T& Dcficient, Incoruolete and Unsunportcd Initial Study and Initial

Study Checklist - CEQA requires that an Initial Study musl reasonably scr

forth the environmental setting, and identify potential adverse environrnenlal

effects that could arise from approval, irnplenrentation (construction) or

operation of the proposed project. The circulated and adoptctl Initial Study

of the MND fails to fully look at and analyze [he potenti;tl envil-onmental

impacts from all phases of the Project. The Initial Study fails to cite to tlrc

page or pages in the rcfcrenced docurncnts where the inrol-mation is found.

The Lnitial Study fails to cxamine whethcr the proposed Project is consistent

with zoning plans, and other applicable larrd use contrnls, including ohviorls

contlicts with goals, policies and ol>jectives in the Mid-City Communities

Plan. The Initial Study only gives brief mention to, and docs not clearly o r

consistently sct forth what zoning ctwle exceptions or deviations are being

- 7 - .~~

VERlFICI) I'FTITIDN F O R WRITOF MANI)Al'11: (:OMPI.AINT FOR IiE(:I.AR,\MIIY AND INIIJN(:TIVE RRl.lEI:

requested, why they arc requested, what adverse impacts may rcsull, or what

legal basis and required findings may necd to he rnadc to support such

zoning code exceptions. The Initial Study provides no basis 01- evidence to

support City's conclusion that it is "not likely" that air quality would be

significantly imp;lcted. The Initial Study does not adeqr~ately disclose and

address potential cu~~iulative impacts. In :~ddressing :mi disclosing potential

adverse effects in the Initial Study C:liecklist, the City lras selectively chosen

those rnattcrs that contain facts that srq)porl t11e Project while hlutantly

ignoring aspects ofthe Project that tlmy conflict with andlor may cause

potential unmitigated significant adverse impacts. Multiple conclusions are

made in the Lnitial S t ~ ~ d y without support. The City's discussions and

disclosorcs in the Initial Study (including information i n its Checklist) arc

not legally adequate, and are not an 11oncst and good faith disclosure ;rnd

treatment of potcrztial iinpacts tliat may arise horn the Projecl;

b. Improper and Unsuonortcd Findinx There Will Re No I'otential A*

Impact to Connnunily Character ;md/or Aesthetics - CEQA requires tlial an

EIR must be prepared if there is snhstanlial evidence supporting a fair

argument that a potential adverse cnviron~nental effect mrry arise fi-on1

approval, implementation or operation of a project. Tlic proposed Project

may have a significant visual impact on the environment bcca~~se there is

p ' . . dn algument evidence that i t is not in i:liaracter with the surrounding

dcvelopnient. The Project may also liavc a significant impact on the

environment bccause the height and hulk of the I'rojcct exceeds the existing

patterns o f tievelopr~ient by a substantid margin. In addition, the curnulativc

effect of clranging the overall character (by allowing the creation of a

structure substantially different in height, bulk, scale and type of use) rnakes

i t reasonably foreseeable tliat other. suctl changes i n neigliborhooci character

will follow. Plaintiff and others presented substantial evidence, pel-sonal

- H - ~ ..

VCKII'IEIl l'C71r10N FOR WKlT OF MANDATE: COMPLAIN'I'I~OK I)I;CL.ARA'IT)KY AND INJUNCTIVII Klil . l tF

and Washington rohutsa trees, all of which provide natural, scenic antl

historic hliage en~oyed by the connnunitp that will be lost withou~ sufficient

disclosure ;mi mitigation. Due to potential significant adverse effccts to the

subject flora, aml>ience, and natural vegetation serting located at the I'roject

site the City was required to disclose, f~rlly mitigate, or nt least prepare an

ElR to evaluate and legally support its final approvals. City did nor rollow

CEQA in these I-egards;

(I. Improper anti Unsupporled Finding There-Will Be No Potential Adverse

Impact to Adol)tetl [..and Use Plans - CEQA requires that an EIR n ~ m t he

prepared i f there is substantial cvidence supporting a fair argnriient that a

potential advel-se environmental effect way arise from impacts to ;~dopteti

land uses antl land use plans. There are nrultiple conflicts with ritlop~etl

goals, policies and pnlposcs of the Mid-Ci~y Corn~nunities Plan which

represent a potcnti;dly significanl departure from tlrc atlopted vision for

tiensington. Due to conflicts and competing evitience rcga~ding potential

significant adverse effects to neighborhood char;icier, shading, antl

aesthetics, the City was required to prepare an EIK to more fully disclose

such conflicts so that the public and decision-niakers could be inSol-med, and

the City's final approvals would be legally supportctl;

e. Improper and Unsut~ported Findinr! There Will Be N o Polential Adverse

Imm~ct to Traffic - CEQA requires that :in EIR must be prepared i f there is

substantial evidence supporting a (air arginnent that a potential adverse

environmental effect mcly arise l?om approval, irnplctnentation or operation

of a project. Plaintiff, and othe1.s referenced anti presented substantial

evidence, personal observation andlor expert reports that significant direct

and cumulative ilnpacts will occur to streets and roads in, around antl

adjacent to the Project site. The City improperly discounted this evidence in

violation of CEQA instead relying on a factually and prot:edurally erroneous

- 10- ~p .~ -

\'EIIIFIEI) PETITION )'OR W R I T 0 1 MANDATE: COMPLAINT 1'OR I)C('I.ARI\TOKY AND INJIJN('TIVE KEI.IEI:

traffic analysis. Tlic Traffic Impact Analysis ("TIA") used by City is

lactrially incol-rect in that it characterizes a small (77 square foot) snack-

stand area of the site's gas station as a "convenience market," wllich i t

clcurly is not undcr the relevant definition. As such, C i ~ y miscalcul;~tes tlic

:~pproprintc set-off in average daily tl-ips ("ADT) hetween the existing tinct

proposed uses. The TIA Sails to adhere to guitlelines by wing the incorreci

baseline percentage for pass-by trips, which led lo tlrc City to employ an

improper reduction in the calculation of Project-generated new vehicle trips

;~nd potential traffic impacts. l'he TIA fails Lo give atlcquate hases krr t11c

assumptions i~rade i n calculating ADTs. Despite clear gnidelines to the

central-y, the an;~lysis employs no ha!-ti data and instead I-elks o n

unsupported speculation. The prqjcctetl possible trip generation from 21

firlly-built project was untlerestimatcd by not using a realistic, crediblc or

proper "wo~st case scenario" as concluded and conducted i n tbe TIA. By

not calculati~~g possible worst-case scenario traffic counts, the Cily failcd to

corrtlucl an m ~ l y s i s of freeway on-ramp analysis or a Congcstio~~

Managernent Program traffic analysis, which is I-eqoired for higher traffic

counts that would be indicated under an accurate worst-case traffic

genei-ation scenal-io. Traffic impacts and analysis was rwt conducted il)r

impacts to residential streets to tbe north arising from cut-tllro~igll 11-;rl'f'ic

seeking to avoid ;I congested Atl;nns Avenue to reach the freeway. Traflic

circulation was not studied to assess potential tral'hc and safety impacts

arising from vehicle trips leaving the I'rqject going north in the alley to

Alder Drive where tlicre is pedestrian activity related to an existing prc-

school and church. Potential traffic circulation impacls werc not consitlc~-etl

or analyzcd for I-esidential streets soutli of Pal-k Place which is a possible

impact arising from the Project's supermarket use, which will attract (11-ivers

from the neighborhood (inter-community) ratlrer than arriving from tllc

- 1 1 - .~~ . p~~ .. ~ ~~~~

VCKII'IRI> PETITION FOR WRIT 0 1 : MANDATE: COMPLAINT t4 )K III~CI.ARAI'DRY AND INJlIN(:TI\~R R1;1.110:

freeway. The cumulalive traffic impacts analysis was not conducted

properly by omitting known road construction pro;ects that could have

signiricant slrort-term inipacts. Also, neither the traffic study, nor adopted

mitigation rneasures adopted Tor the Project, addressed short-rerm traffic

irnpacls during t11e construction phase of the Project. The loss of I I parking

spaces have also not heen mitigated to below a level of insignificance in tlrc

Project area that is already overcrowded. A pay parking lot under the

Pro,ject site will not avoid and serve as sufficient mitigation for owskeet

parking losses. Due to fircially i n c o ~ ~ e c t data, calc~~lations, assunrptions,

impropcr application of required state arid local traffic impact analysis, and

an artificially narrowed geogmpt~ic;rl focus area, deficient content antl

findings i n and for the MND cnnnol be supported as a mattel- nf law.

'The MND antl Notice of Cii-culation of the Draft MNI) Failcd to Disclose

Hnzadous Substances Present on h e Proicct Sile and that the Property is on

a 1)esignated Contaminated Site List -The circulated notice and Initial

Study for the MND do not properly disclose that the Project site is on a

contaminated property list as rcquired by CEQA. Notwitlistanding issues

and cxcuses related to [he list, the conclusions antl rationale for failing to

disclosc both the (i) listed contaminated nature of the site, and ( i i ) potential

impacts associated from ilistr~rbance, removal, and transportation of

contaminated soils are neither supported by law or evitlencc. The potential

impacts associated with thc excavation, removal and tri~nsportation of

contaminated substances have not been adequately addl-essed or mitigated i n

the MND or final approvals as rcquired by CEQA.

The Findings of Insi~nificance and Approved Demolition of an Hisloric

Structure is Not Supported by the Evidence - The removal and/or

tiernolition of the circa 1923 historic properties located at 41 66 and 4178

Atlams Avenue may result in a significant impact under CEQA. Both state

12 - ~p ~~-p ~. - . .

VElllFlEU I'ETIrION POK WRIT OF MANDATE: i'OXIPlLAINT F O R DECLARATORY AND INIIINCI'IVi? KEI.IEP

and local laws recognize historic structures, properties and districts

in.espective if they are formally listed or designated. Prior failed atlenipts

by City to designate the subject historic property are not tielerminative.

Notwitlist;intiing, expert i~ifornialion supports ;ttltiitional anti new

infomiation about the importance and significance of the 85-year old

property as a major period of California history or prehistory. Additionally,

the loss of the two historic propel-ties ant1 their i~istoric landscaping may

adversely impact the formation of the Kensington Histnric District in

contravention of the Mid-City Communities Plan.

By approvi~ig the Project and not co~nplying with CEQA, the City h x failed to

xoceed i n a manner required by law a~idlor the dc.cision(s) and the suhslmlial evidence does

lot support findings I-elating to City's purported CEQA compliance. A pe.rrmptor.y writ of

nandarnrls is requested to be issr~cd by this Court ordering the City to rescind its I'ebrnary 5,

!008 final ;~pprovals, and relnantl the matter to the City for prepal-ation of an EIR, and

-econsider the project consistenl with requirements of CEQA.

VI.

SECOND CAUSE OF ACTION - PETITION FOR WRIT OF MANDATE

The Project was Approved with Improper andlor Uusupported Findings

for a P lan~~ed Development Pcrmit, Height Deviation, 1)ensitg Deviation

(Cal. Code Civ. PI-oc. $ 1094.5;

San Diego Municipal Code $5 131.0502, 126.0604, 143.0403, 155.0220)

2 PlaintifT hereby rcalleges and incorporates by reference ijil[ 1-28 above ;IS though

'111ly set fbrth herein.

30. As part o f l l ~ e City's final approvals, it granretl Real Partits a Plarl~~ed

3evelopmc1lt Permit (PDP) to construct the 56,000+ square foot PI-oject i n the Kensington

~eighhorhood, granted a height deviation allowing the project to exceed the 30-foot height limit

n the C N 1-3 Zo~ie by 8 feet, and granted a deviation allowing exceedencc of the size and

- I 3 - - ~~. ~- . .~ .~. .-

VCKII'IPD PEI'II'ION FOR WI<II'OF MANDATE: COMl'l AINI I'OR DBCLARA'I'ORY AND INILINCI'IVC KI'I.II'P

ensity or a com~nercial establishrnen~ in excess of the allowed 5,000 square feet in the C1J-3-3

.one.

3 1 . In griu~ting Real Parties a right to construct the Project, the City has not made or

upported its findings with substantial evitlence for approval of the Planned Developnent

ermit, which directs tlrnt five findings rllusl be made to support an approval of such a PDI',

or has C i ~ y done so in a legally sufficient manner for approval of the deviations.

32. Findings nos. 1, 2, 3, 4, & 5 cannot and have not been sutficicrrtly met beca~rse

m e arc potential significant impacts on the environrucnt that would conflict with land Lrse

l a m , would cause adverse impacts related to matters oT health, sakty ;~nd public welhre,

rclutiing but riot limited to traffic, parking, commnnity cliaracler, ;~nd/or hisloric rcsou~-ces,

nti thc Pro.ject is not consistent with ilnporl;~nt aspects of the underlying zoning and land usc

Inns.

33. A peremptory writ oTrnantla~nus is requested to he issued by this Court

ompelling 1 1 1 ~ City to rescind its Fcbrual-y 5 , 200X final approvals anti the matter should bc

m:intled to the City to rcconsitler its final approval consistenl with requirements of state law

ntl tlrc San Diego Municipal Code.

VTI.

THIRD CAUSE OF AC1'ION - PETITlON FOR WRIT OF MANDATE

I'he Project is Inconsistent with the Municipal Code Criteria for a I'lanned 1)evelopment

Pcrmit and with the Pnrpose of the Project Area's CN-1-3 Zoning

(Cal. Code Civ. Proc. 1094.5; San Diego Municipal Code 5 126.0602, 143.0401 and

ffl3l.OSO2)

34. H:~irrtiff trerehy rcallcges ;rnd incol-prates by reference 'IT 1-31 ahovc as though

ully sel brtlr herein.

35. As part of the City's final approvals, it granted Real Parties a Planned

)rveloprnenl I'emrit to constmet the 56,000+ square foot Project in the Kensington

cighborhootl.

- 14 - - ~. .-

~ .- VERlFIli l) PETITION Kilt WRIT OF MANDATE: (:OMPI.AIN'T FOR DCi:I.AIIATOllY ANI) INJIINCI 'I \JH REISEI~

36. In granting Real Parties n right to construct the Project, the City circurnvemtctl

[lie design and development criteria for Planned Devcloprnent T'erniits set forth in San Diego

M~micipal Code jj 143.O4I0, which directs that the overall design of a project should

demonstmte the relationship between the proposed development on-sire with the existing

tlevelop~i~cnt ofl-site, antl that the scale of lllc project "should be consistcnt wit11 the

neighhorliood scale as represented by the dominant development pattern irl the surrountling

area."

37. By consitlcring and ;rpproving the Project to build the lal-ge-scale commercial,

residential and office space complex i n the heart of the small-st:&, uniquc historic

neigllhorhootl of Kcnsinglon, the City has fi~iletl to proceed i n a manner required hy law ;intlIor

the tiecision(s) and findings relating to City's determination of the cornpatihility of the

proposed development are not soppotted by the snbstmtial cvidcnce. A peremptory writ of

manda~nus is recpesteti to bc issued hy this Court conipelling the City to rescind its Fcbruary 5.

2008 final approvals antl the matter slrould he remande,d to the City to reconsider ils final

approval consistent with requircrnents of San Diego Municipal C:odc 8 143.0410 ;IS alleged

hercin or as otherwise ordered by this Court after tri:ll.

38. The Purpose of the Comniercial Neighborhood ("CN") Zones (per San Diego

Municipal Code $ 13 1.0502) is to "provide residential areas with access to a limited number of

convenient retail anti personal service uses ... C N zones arc intcridetl lo 111-ovitlc areas for wlk

&, lower intensity tieveloprnents that arc consistent witli the cl~ar;lcle~- of thc s~~rrolniding

resideiitial areas." (emphasis added) Sixty percent ((50%) of this large-scale Projecl site is

zoned "CN-1-3." City has unlawfully appr-oved the Project. in direct contravention of one or

more inlportanI purposes delineated by thc Municipal Coclc.

39. A peremptory writ of m;nidanrus is rquested to bc issueti hy this Court

rompelling the City to rescind its lkbruary 5, 2008 final approvals and the matter should be

rem;rnded to tlrc City to reconsider its final approval consistent with requirements of the San

Diego Municipal Code 5 13 1.0502.

v111.

I'OIJRTH CAUSE O F ACTION - COMPIAINT FOR DE(:I,ARATORY

AND INJUNC'I'IVE RELIEF

Violation and Mibapplication of Deviation, Exception, and Variance Laws

(Cal. Code Civ. PIW. # 1060 et seq.; San Diego Municipal Code $ 126.0604)

40. Plaintiff hereby realleges and incorporates hy rel'erence 'j['j[ 1-39 i~ t~ovc as thougll

Ciilly set forth herein.

I I 41. Plaintiff is beneficially interested i n t l~c issu;ince of a dcclararion of law and

I / injnnciirn by virtue of the proposition of Octs and l i ~ i ~ set kxth hcriilr

I I 42. Plaintiff lms n clear, present and beneficial right to tlrc propel- pel-Cormancc 11)

1 1 City o f ils duties antl conipli;~nce with the laws ant1 legal principles as st1 forth lrercin. Plaintiff'

I I has n o plain, spee.tiy or atlequatc renredp in the ordinary c o m e of the law other ihan the relicl

I I 43. The declaratory relief requested hcrcin is pl-oper to delineate and clarify the

I l [i;~rties' rights :n~tl lii~bilities and resolvc, qniel, of- stabilize an uncerlain or disputed jural

/ I relalion. Withont the gi-ant of declaratory relief andlor a writ or nmndatc, the City will

contiime to proceed in a manner not allowed by law and will continne to lake action o~~tsitle of

its antlrority resulting in harm to Plaintiff and said citizens.

44. The City llas 21 regular nnlawful pattern ;~nd practice of granting tievelopmcnt

q~plic;~nls (snch as Real Par-ties) exceptions, tleviations. andlor variances from adopted and

legislated zoning ordinances without application, wirl-rout ail adopted or dcfinetl proccss,

w i h n t limits, antl withont requisite findings.

45. Plaintiff alleges that i t is a regular practice of the City to exercise its

:~drninistl-ative powcr and authority to approve any zoning code "deviation" fi1r :i project :rnd

applicant as long as City decides i t is "beneficial" lor llie pro~cct, not detrimental, and involvcs

review through ;I Planned Development Pennit or Site Lkvelopment Pertnit.

46. The tern1 "deviation" is not defined i n the San Diego Municipal Code. The City

is reg~~larly handling and treating the loose and undefined term of "deviation" (as occasionally

I I \WKIt:IRI) PETITION FOR W1<1101'MANDI\TE: COMI'LAINI I:OK I)KL.AIIATOKY AND INlLINCrl\T: Itlil.lW

icntionetl in its Municipal Code) as zoning code exceptions and variances in such a manner so

s to obviate arid undermine the purpose and strict li~iiits of S L I C ~ I exceptions as intendctl hy

tate arid national planning and zoning controls, and as explai~ied by tlie California Supt-cn~e

hurt iutcrpreting the same.

47. While i t alleged and contended that someti~nes the threshold for a "deviatioti" is

minor- increase or decrease not excceditig 20% of a regulated quantitative standard, there is no

ociified Lhit to such "deviations" and the City regularly changes whatever l ~ v c l of zoning

ode standards ils wants

48. By this maliner of implementation a~itl practice, the City has olwiatetl ; u ~ l

isplaced the need of its codified antl requit-ed "variance" procedure such tlxit an applicant for a

:cw tievelopment can have the zoning code requirements amended, cli;tnged, relaxed or

<nored to whate\~er degree or extent a project proponent can convince staff arid otlie~

tln~inistmtivc dccision-n~akers.

4 By tliis manricr of ruiliniited and ut~tlellned deviations, the City has violated. and

onti~lues to violale, the amount, cxtent, manner attd prtrcess trllowing zoning code esccptio~is

ntl variances which make zoning code I-estrictions rnere flexible planning tools that

clministr-i~tors can to ohvii~te carefully lefiislateti atid enacted laws. A dcc1:iration of law

nd permanent injunction is necessary to require City to define, refine, and/or discontinue this

11l;iwf111 practice as alleged herein, as will be prcscntctl antl argued at trial, ;md us may be

urthrr ordered by this Cour-t.

IX.

PRAYER FOR RELIEP

WHEKISFORE, Plaintiff respectfully prays li1r- jutlgment as follows:

I . That this Court find that by making the final approvals Defendant has riot

roceedcd in a ~nanner required by law, has not adopted requisite findings, andlol- the

ubstantial evidence does not support its decisions;

2. That this Court issue a peremptory writ ol' mandamus declaring that one or more

f the decision(s) rendered by Defendant on or about Felmary 5, 2008, and any additioual

esolution(s) of Defendant relating to, or dcpcndent upon the same, are null antl void and 01" no

brcc ;rnd/or legal effect;

3. That this Court ordcr Defendant to vacate and set aside each of the decisions

nade on or about February 5, 2008, and each of the resolutions, administrative approvals,

~ermits, antl any other decisions of Lkfcndnnt with respect thereto;

4. Tllat there he issned a writ of m;~ndanius ordering Defcndanl to prepare itn ElK

~ i t h i n a reasonable date lion) the issuance of said writ of mantiale, in thc event the Rcal Parties

x othel- successor owner/developer wish to pursue the Project;

5. Ttiirt until such time as Plaintiff's above claims can be ac!jutlicated by this Court,

1efend:rnt anti Real Parties be enjoined, ~.cstrained andlor Defendant's I2ebruary 5 , 2008

lecisions be stayed f~mm taking effect. to preserve tlie status qua, existing stnicturcs antl

mvironrnentd clualitics so as to prevent fn~stration of Plaintiff's and tlie pu1)lic's rightful

:Iaims and right to judicial review.

5. Tlial Plaintiff be awarded its reas011a1)le costs incurrcd i n this action, including

tttorneys' Fees under Cal. Code of Civil Procedure 3 1021.5 for this matter brought in the

~uhlic interest; ;ind

7. For such other and further relief as the Court deems just and proper.

CRAIG A. SHERMAN Attorney for Plaintiff HEART OF KENSING'TON, INC.

VERIPIEI) I'l~Xl'ION FOR WRIT OF MANDATE: COMPLAINT FOR DECLARATORY A N 0 INJIJNCllVE RELIEF

VEMFICATION

1, h2 ~ n m r A. CUFF+ , as an authorized representative of the plaintiff

organization, The Hea t of Kensington, Inc., hereby verify this PEI'ITION FOK WRIT OF

MANDATE; COMPLAINTFOR D E C U R A W R Y A N D INJUNCTIVE RELIEF ptusumt to

California Code of Civil Procedure Section 446. The facts herein alleged are true of my own

( 1 knowledge, except as to the matters (1x11 arc based on information md belief, which I believe (C

/ I be ,true I dcclarr under the penalty of parjury under the laws olCnlibrnin that the above

foregoing is true and correct and that this verification was executed on the helow stated dale in

San Diego County, California.

19 Dated: March -, 2008

By:

, Tor THE HEAR'S OF KENSINGTON, N C

II VtI<l).IEU YETII'ION FOR W R l r OF MANUATC: COMPLAIN'T FUK UtlCWUWI'ORY A N U INJUNCIIVL: I<bLI).:f

Craig A. Sherman, Esq. (SBN 17 1224) LAW OFFICE OF CRAIG A SHERMAN 1901 First Avenue, Suite 335 San Diego, CA 92101 Tcl: (619) 702-7892 Fax: (619) 702-9291

Attorney for Plaintiff THE HEART OF KENSINGTON, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO - CENTRAL DISTRICT

THE HEART OF KENSINGTON, INC., a ) Case No.: 37-zooaaoo7~2~4cU-MCUL California non-profit corporation, )

) ) REQUEST FOR THE PREPARATION ) OF THE ADMINISTRATIVE RECORD ! OF TIlE PROCEEDINGS:

RESERVATION OF PIAINTIFF~S CITY OF SAN DIEGO, a public entity; and ) TO ELECT TO I,REPARE DOES ONE through FIVE, inclusive, )

) THE ADMINISTRATIVE RECORD

II Defendant, 1 ) Cal. Public Res. Code 21 167.6

TERRACE PARTNERS, L.P., a registered j California Limited Partnership; and DOES SIX through TWENTY, inclusive, )

Real Parties in Interest 1 ) )

TO ALL PARTIES AND THEIR COUNSEL OF RECORD, PLEASE TAKE

NOTICE THAT pursuant to California Public Resources Code sectlon 21 167.6 and the content

substance and intent set forth in Los Angeles Superior Court, Local Rule 9.24, plaintiff THE

HEART OF KENSINGTON, INC.("Plaintiff") hereby requests that Respondent CITY OF SAN

DEGO ("City") begin preparation of the record of the proceedings, as such coordination and

process is set forth below, relating to City's decisions to approve development of the

- 1 -

I I REQUEST FOR THE PREPARATION OF n 1 E ADMINISTRATIVE RECORD OFTHE PROCEEDINGS; RESERVATION OF PLAINTIFF'S RIGHT TO PREPARE ADMINISTRATIVE RECORD

"Kensington Terrace" project (City Prolect No. 105244), which proposes a developmcnt of a 3-

tory, 56,000+ square foot mixed use conirnercial, office and residential project in a low-rise 1

tnd 2-story area i n the Kensington neighborhood of the Mitl-City Cornmnnities planning area

I~ereafter, "Project").

PLEASE TAKE NOTlCE THAT the record of the City's proccctlings for t l ~

'reject sliould ct~comp:iss any and all notes, drafts, files, emails, and final docu~rients l~eld,

,rcp:rred 01- received by any City staff, commissioner, council nrctnber, 01- outside

:nvirnnmental consultant, relating to the consiileraliori, evaluation, certification, atloptiim of

indings, mitigation iiicasures, ;mtl every other Pro,ject related approval PI-occss, clocnrr~enl,

:ondition, resolution, finding, permit including but not limited to:

(1) the Nove~r~be~- 15. 2007 ~nectirig and ilearing of tlrc planning commission; and

(2) the February 5 , 2008 tiieeting and hcaring of llie city council;

(3) certification and firial ;rpproval of n Mitigated Negative Decl;~rirtion and a

Mitigation and Monitoring Reporting Program (MMRP) via Resolution No. R-

303377;

(4) adoption of Resolution No. R-303405 granting subdivision 'l'cntative Map No.

36018; and

(5) adoption of Resolution No. R-303404 griarting Planned Development Perniit No.

360181.

:-heafter these approvals are collec~ively referred to as the "final approvals."

P1,EASE TAKE NOTICE THAT Plaintifl reqnests that respondent City inc l~~de i n

he administrative record of the proceedings a11 docnments, iriclutiing but not lirnited to all

learing and meeting transcripts, minules of meetings, notices, inter-agency, inter-office, public

rnd all other correspondences with or by City, reports, studies, proposed decisions, staft'reports,

. h l decisions, findings. and any other documents relating to the Project and final approvals

wllicli Sit within tlrc broad definition of being "relevant to rhc respondent agcncy's compliance 2 -

-- ~. .. -~

REQUEST FOR I H E I'I<EI'ARATION OF THE AIlhlINISTRATIVE RECORD OFTHE I'ROCEEDINGS: RESERVATION OF PLAINTIFF'S RIGHT TO PIIEI'ARE ADMINIS'I'RATIVE RE(?OKII

I

2

3

4

5

6

7

8

9

10

I I

12

I ?

14

IS

I h

17

I X

I!,

20

2 1

22

23

24

25

26

27

28

v i t h [CEQA]" including all notes, memoranda, and agency communications whiclr arc in the

gcncy's files pursuant to California Public Resources Code section 21 L67.6(e).

FURTHERMORE, PLEASE TAKE NOTICE THAT as part of the process and

wior lo the preparation of the administrative record or rile proceedings, Plaintiff reqncsts a draft

~idcx of documents proposed to be ir~cluded and an estimate of [he ~ o t d cost for preparing and

.; .."''"..:"G ';:.:" ;'."".:..;..'.."'" """a, ."Id . " C V L ~ ' " ~ ," 'IIU' IVU0011111,LCi ,,l<l,,lj>5 ~ l l l l l I

irneline afforded and required hy Los Angeles County Superior Court 120c:d Rules, Rulc 9.24,

uhds. (d) & ((e for cascs such ;IS this brought under CEQA. As afforded by the I-easonahle and

idopted process set forth in the referenced rule of court, :mi 21s expressly reqr~ested and strctcd

wein tl~is Notice and Request, Plaintiff ex~resslv reserves rhe right to prepare the record slronltl

'lain~iffcietermine the City's estimated cost for preparing the xlministru~ive record to be

xccssive. Once Plaintiff decides to exercise i t election, should City cominence preparing the

ecortl, Plaintiff also requests to be informed in advance if there is any change in the original cos

:stin~;lre, or if some cxtraordi~lary cost arises during the respondent agency, City's, preparalion

)I' the record.

LAW o~~cI<FAI<; A. SHERMAN

-L262dL&Si-"t- CRAIG A. SHE1 MAN

Attorney for Plaintiff THE HEART OF KJ3NSINGTON, INC.

.- REQIIEST E ~ ) R THE PREPARATION OF TIIE ADMINISTRATIVE KE<,:OKL)OTTIIE PHOCEEIIIN(;S:

RESERVATION 01'PIAINTIPF'S RIGHT TO PREPARE AI>MlNlSTRATIVE RECORD

SUMMONS (CITA CION JUDICIAL)

NOTICE TO DEFENDANT: AVlSO AL DEMANDADO): & ITY OF SAN DIEGO, a ~ u b l i c ent.itv; and DOES ONE thorugh FIVE, inciusibe, ~efendant,

TERRACE PARTNERS, L.P., a registered California Limited Partnership; and DOES SIX through TWENTY, inclusive, Re31 Parties in InteresC.

YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE)):

:':+- HEART OF,KENSINGTON, a California non-profit corporation IElL

' I

SUM-101 FOR COURTUSE OMlY

(SOLO PARA US0 DE LA CORTE)

L

You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in propar legal form i f you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.govlselfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property nlay be taken without further warning from the court.

There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attornev referral service. If vou cannot afford an attornev. vou mav be eliaible for free leaal services from a nonorofit loaal services .. . " , ~ . , - ~ progranl. You can localc IIIesc nonprofit groups at the Callforllia Legal Scrvices Wdb site (~ww.lawllelpcalifor11ia.org), the Callfor~m Courts Onlscw Sell-Help Center (www.court~nfo ca gowselll~elp), or by cantactmg yodr I x a l court or county bar nssociatmn.

The name, address, and telephone number of plaintiff s attorney, or plaintiff without an attorney, is: (El nornbre, la d~reccion y e l n h e r o de lel&fono del abogado del demandante, o dei demandante que no fiene abogndo, es): Craig A. Sherman 619-702-7892 619-702-9291 LAW OFFICE OF CRAIG A. SHERMAN 1901 First. Avenue, Suite 335

Tiene 30 D ~ A S DE CALENDAR10 despu6s de que /e enfreguen esta citacidn y papeles legales para presentar una respuesta por escrito en esla code y hacer que se enfregue una copia a1 demandante. Una carfa o una llamada telcfdnica no lo profegen. Su respuesla por cscnfo fiene que estar en formafo legal correcto s i desea qlle procesen su caso en la code. Es posible que haya un formula~~a que usled pueda usarpara su respuesta. Puede enconfrar esfos formulanos de la code y mas inforrnacidn en el Centro de Ayuda de las Cories de California (wrvw.coudinfo.ca.gov/seIfhelp/espanoll), en la biblioleca de leyes de su condado o en la code que le quede mds cerca. Si no puede pagar la cuofa de presenlacidn, pida a1 secrefario de la code que lc d6 un formulario de exencidn de pago de cuofas. Si no presenfa su respuesfa a dempo, puede perder el caso por incumplimiento y la code le podrir quitar su sueldo, dinero y bienes sin m6s advedencia.

Hay alms requisiloz legales. Es recomendable que llame a un abogado inmediatamente. Si no conoce a on abogado, puede llama, a un servicio de remisi6n a abogados. Si no puede pagar a un abogado, es posible que cumpla con 10s requisites para obtener servicios legales grafuitos de un programa de servicios legales sin fines de lucro. Puede encontrar estos grupos sin fines de lucm en el silio web de California Legal Services, (www.lawhelpcalifornia.org). en el Centro de Ayuda de b s Codes de California, (www.coudinfo.ca.gov/seIheIp/espanou) o poniendose en contacto con la code o el colegio de abogados locales.

San Diego, CA 92101 v: B y:, MAR Q 5 7 n n ~ Clerk, by . Deputy

Feclla (Secretario) (Agunto) (Forproof of service of this summons, use Proof of Setvice of Summons (form POS-010).) (Para m e b a de entrcon de esla citatidn use e i formulano Proof of Service of Summons POS-01011

The name and address of the court is: (El nombre y dircccior~ lire la coite es):

" . ~ -,, NOTICE TO THE PERSON SERVED: You are served

~ ~

1. ; as an individual defendant. 2 . r-~~-, .-~~. . as the person sued under the fictitious name of (specify):

c a t NUMBER j ~ c m , &I BIY)J. 3 7 - 2 0 0 8 - 0 0 0 7 9 2 5 4 ~ ~ . ~ ~ . ~ ~ ~

3 _ on behalf of (specify)

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO 330 West Broadwa SAN DIEGO, cn 92101

J under: I . CCP 416.10 (corporation) ~~~ ~

CCP 416.60 (minor) : CCP 416.20 (defunct corporation) - ~

. -~ CCP 416.70 (conservatee) . CCP 416.40 (association or partnership) . ., CCP 416.90 (authorized person)

othet (specify): 4. by delivery on (date): pas+ i or 1

~ w m w c d fw Mamaow use JudidrX GWncll 0, cai.(omu coar or C~WI m d w o $5 412 20 465

SUM-ITU [ R ~ V ~snuary I. WI SUMMONS

SUPERIOR COURT OF CALIFORNIA, COUNTY OFSAN DlEGO STREET ADDRESS: SJU West Bmabray

MAILING ADDRESS: 330 WBSI Dmadvay

ClTY AND ZIPCODE: Sen Diwo. CASZlOI

B M N C H NAME C x n h

TELEPHONE NUNOEK: 61916854146

PMINTIFF(S) I PETITIONER(S): The Heall of Kensington, Inc

I DEFENDANT(S)/ RESPONDENT(S): Cily of San Diego I

Judge: Jeffrey B. Barton

COMPLAINTIPETITION FILED: 03/05/2008

THE HEART OF KENSINGTON. INC VS. CITY OF SAN DlEGO

Department: C-69

NOTICE OF CASE ASSIGNMENT

CASES ASSIGNED TO THE PROBATE DIVISION ARE NOT REQUIRED TO COMPLY WlTH THE CIVIL REQUIREMENTS LISTED BELOW

CASE NUMBER:

37-2008-00079254-CU-MC-CTL

IT IS THE DUTY OF EACH PLAINTIFF (AND CROSS-COMPLAINANT) TO SERVE A COPY OF THIS NOTICE WlTH THE COMPLAINT (AND CROSS-COMPLAINT).

ALL COUNSEL WlLL BE EXPECTED TO BE FAMILIAR WlTH SUPERIOR COURT RULES WHICH HAVE BEEN PUBLISHED AS DIVISION II. AND WlLL BE STRICTLY ENFORCED.

TIME STANDARDS: The following timeframes apply to general civil cases and must be adhered to unless you have requested and been granted an extension of time. General civil consists of all cases except: Small claims appeals, petitions, and unlawful detainers.

COMPLAINTS: Complaint$ must be served on all named defendants, and a CERTIFICATE OF SERVICE (SDSC CIV- 345) filed within 60 days of filing. This is a mandatory document and may not be substituted by the filing of any other document.

DEFENDANT'S APPEARANCE: Defendant must generally appear within 30 days of service of the complaint. (Plaintiff niay stipulate to no more than a 15 day extension which must be in writing and filed with the Court.)

DEFAULT: If the defendant has not generally appeared and no extension has been granted, the plaintiff must request default within 45 days of the filing of the Certificate of Service.

THE COURT ENCOURAGES YOU TO CONSIDER UTILIZING VARIOUS ALTERNATIVES TO LITIGATION, INCLUDING MEDIATION AND ARBITRATION. PRIOR TO THE CASE MANAGEMENT CONFERENCE. MEDIATION SERVICES ARE AVAILABLE UNDER THE DISPUTE RESOLUTION PROGRAMS ACT AND OTHER PROVIDERS. SEE ADR INFORMATION PACKET AND STIPULATION.

YOU MAY ALSO BE ORDERED TO PARTICIPATE IN ARBITRATION PURSUANT TO CCP 1141 . I0 AT THE CASE MANAGEMENT CONFERENCE. THE FEE FOR THESE SERVICES WlLL BE PAID BY THE COURT IF ALL PARTIES HAVE APPEARED IN THE CASE AND THE COURT ORDERS THE CASE TO ARBITRATION PURSUANT TO CCP 1141.10. THE CASE MANAGEMENT CONFERENCE WlLL BE CANCELLED IF YOU FILE FORM SDSC CIV-359 PRIOR TO THAT HEARING

SDSC CIV-721 (Rev. 11-06) p a w 1

NOTICE OF CASE ASSIGNMENT

STREETADURESS: 330 West Broadway

).G~ILINGAODHESS: 330 West Broadway

c m . STATE. &ZIPCODE: San Dingo, CA 92101-3827

SUPERIOR COURT OF CALIFORNIA. COUNTY OF SAN DIEGO

BRANCH NAME: Central

PLAINTIFF(S): The Heart of Kensington, Inc

DEFENDANT(S): City of San Diego

SHORT TITLE: THE HEART OF KENSINGTON, INC VS. CITY OF SAN DIEGO

FOR COURT USE ONLY

Judge: Jeffrey B. Barton Departmenl: C-69

The arties and their atlomeys stipulale that the,matte! is al issue and the claims in this ac!ion shall be submitled to the following alternative disp~ite resohion process. Selecbon of any of these oplmns wtil not delay any case management tlme-ltnes.

Cow-Referred Mediation Program a Court-Ordered Nonbinding Arbitration

Private Neutral Evalualion 0 Court-Ordered Binding Arbilration (Slipwlated)

0 Private Mini-Trial a Private Reference to General Referee

[7 Private Summary Jury Trial 0 Privale Reference to Judge

0 Private Settlement Conference with Private Neutral 0 Private Binding Arbilralion

Other (specify):

It is also slipulated that the iollowing shall serve as arhitralor, mediator or other neutral: (Name)

Alternale: (mediation R arbitration only)

Date: Date:

Name of PLaintiff Name of Defendanl

Signature Signature

Name of Plaintiff's Attorney Name of Defendanl's Atlorney

Signalure Signature

Attach another sheet if additional narnes are necessaly). It is the dulyofthe panies to notify the court of any settlement pursuant to California kuies of Court, 3 1385. Upon notification of the settlement the court wll place this matter on a 45-day dismissal calendar.

No new parties may be added wilhout leave of rnurt and all un-served, non-appearing or actions by names parties are dismissed.

IT IS SO ORDERED.

Dated: 0310512008 JUDGE OF THE SUPERIOR COURT

SDSC CNJS9 l R w O l 4 l ) STIPULATION TO USE OF ALTERNATIVE DISPUTE RESOLUTION Page: I

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO

CASE NUMBER: 37-2008-00079254-CU-MC-CTL CASE TITLE: The Heart of Kensington. Inc vs. City of San Diego

NOTICE TO LITIGANTSIADR INFORMATION PACKAGE

You are required to serve a copy of this Notice to LitigantsIADR Information Package and a copy of the blank Stipulation to Alternative Dispute Resolution Process (received from the Civil Business Office at the time of filing) with a copy of the Summons and Complaint on all defendants in accordance with San Diego Superior Court Rule 2.1 5 , Division I1 and CRC Rule 201.9.

ADR POLICY

It is the policy of the San Diego Superior Court to strongly support the use of Alternative Dispute Resolution ("ADR") in all general civil cases. The court has long recognized the value of early case management intervention and the use of alternative dispute resolution options for amenable and eligible cases. The use of ADR will be discussed at all Case Management Conferences. It is the court's expectation that litigants will utilize some form of ADR - i.e. the court's mediation or arbitration programs or other available private ADR options as a mechanism for case settlement before trial

ADR OPTIONS

1) CIVIL MEDIATION PROGRAM: The San Diego Superior Court Civil Mediation Program is designed to assist parties with the eariy resolution of their dispute. All general civil independent calendar cases, including construction defect. complex and eminent domain cases are eligible to participant in the program. Limited civil collection cases are not eligible at this time. San Diego Superior Court Local Rule 2.31, Division II addresses this program specifically. Mediation is a non- binding process in which a trained mediator I) facilitates communication between disputants, and 2 ) assists parties in reaching a mutually acceptable resolution of all or part of their dispute. In this process, the mediator carefully explores not only the relevant evidence and law, but also the parties' underlying interests, needs and priorities. The mediator is not the decision-maker and will not resolve the dispute - the parties do. Mediation is a flexible, informal and confidential process that is less stressful than a formalized trial. It can also save time and money, allow for greater client participation and allow for more flexibility in creating a resolution.

Assignment to Mediation, Cost and Timelines: Parties may stipulate to mediation at any time up to the CMC or may stipulate to mediation at the CMC. Mediator fees and expenses are split equally by the parties, unless otherwise agreed. Mediators on the court's approved panel have agreed to the court's payment schedule for county-referred mediation: $150.00 per hour for each of the first two hours and their individual rate per hour thereafter. Parties may select any mediator, however, the court maintains a panel of court-approved mediators who have satisfied panel requirements and who must adhere to ethical standards. All court-approved mediator fees and other policies are listed in the Mediator Diredory at each court location to assist parties with selection. Discovery: Parties do not need to conduct full discovery in the case before mediation is considered, utilized or referred. Attendance at Mediation: Trial counsel, parties and all persons with full authority to settle the case must personally attend the mediation, unless excused by the court for good cause.

2) JUDICIAL ARBITRATION: Judicial Arbitration is a binding or non-binding process where an arbitrator applies the law to the facts of the case and issues an award. The goal of judicial arbitration is to provide parties with an adjudication that is earlier, faster, less formal and less expensive than trial. The arbitrator's award may either become the judgment in the case if all parties accept or if no trial de novo is requested within the required time. Either party may reject the award and request a trial de novo before the assigned judge if the arbitration was non-binding. If a trial de novo is requested, the trial will usuaily be scheduled within a year of the filing date.

Assignment to Arbitration, Cost and Timelines: Parties may stipulate to binding or non-binding judicial arbitration or the judge may order the matter to arbitration at the case management conference, held approximately 150 days after filing, if a case is valued at under $50,000 and is "at issue". The court maintains a panel of approved judicial arbitrators who have practiced law for a minimum of five years and who have a certain amount of trial andlor arbitration experience. In addition, if parties select an arbitrator from the court's panel, the court will pay the arbitrator's fees. Superior Court

3) SETTLEMENT CONFERENCES: The goal of a settlement conference is to assist the parties in their efforts to negotiate a settlement of all or part of the dispute. 'Parties may, at any time, request a settlement conference before the judge assigned to their case: request another assigned judge or a pro tern to act as settlement officer; or may privately utilize the services of a retired judge. The court may also order a case to a mandatory settlement conference prior to trial before the court's assigned Settlement Conference judge.

4) OTHER VOLUNTARY ADR: Parties may voluntarily stipulate to private ADR options outside the court system including private binding arbitration, private early neutral evaluation or private judging at any time by completing the 'Stipulation to Alternative Dispute Resolution Process" which is included in this ADR package. Parties may also utilize mediation sewices offered by programs that are partially funded by the county's Dispute Resolution Programs Act. These services are available at no cost or on a sliding scale based on need. For a list of approved DRPA providers, please contact the County's DRPA program office at (619) 238-2400.

ADDITIONAL ADR INFORMATION: For more information about the Civil Mediation Program, please contact the Civil Mediation Department at (619) 515-8908. Far more information about the .Judicial Arbitration Program, please contact the Arbitration Office at (619) 531-3818. For more information about Settlement Conferences. please contact the Independent Calendar department to which your case is assigned. Please note that staff can only discuss ADR options and cannot give legal advice.