Modification: City of Grass Valley v. Cohen

CITY OF GRASS VALLEY, as Successor Agency, etc., et al.,

Plaintiffs and Appellants,

v.

MICHAEL COHEN, as Director, etc.,

Defendant and Appellant.

No. C078981

(Super. Ct. No. 34-2013-80001580-CU-WM-GDS)

California Courts of Appeal

Third Appellate District

(Sacramento)

Filed Dec. 19, 2017

MODIFICATION OF OPINION AND

DENIAL OF PETITIONS FOR REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

Plaintiffs and appellants City of Grass Valley et al. and defendant and appellant Michael Cohen have filed petitions for rehearing with this court. It is hereby ordered that the petitions for rehearing are denied.

It is also ordered that the opinion filed herein on November 20, 2017, be modified as follows:

1. On page 5, delete the penultimate sentence that presently reads: "By January 31, 2012, the RDA paid the City $307,161 pursuant to this agreement."

That paragraph will now read:

The second 2011 agreement at issue (which we refer to as the Omnibus Agreement) provided the RDA would pay the City for several extant projects totaling over $18 million. It, too, anticipated the Great Dissolution and made provision therefor.

2. On page 6 in the paragraph immediately following the heading "The Goods and Services Claim," the last two sentences are to be deleted. The paragraph will now read:

The trial court issued a writ commanding the Department to consider whether certain transfers under the 2011 Omnibus Agreement ($307,161 at issue herein) were for "goods and services" as that phrase is used in section 34179.5, subdivision (b)(3).

3. On page 28, add the following new, full paragraph to the end of footnote 12:

In a rehearing petition the City insists it is not a subdivision of the State, or at least that it is a special kind of subdivision not subject to any rule precluding it from raising its contract clause claims. We agree that in some contexts cities--particularly charter cities--have different attributes than other public entities. But our Supreme Court stated in the seminal Great Dissolution case that California cities " 'are mere creatures of the state and exist only at the state's sufferance.' [Citations.]" (Matosantos, supra, 53 Cal.3d at p. 255.) So far as Great Dissolution litigation is concerned, we see no reason to delve into and parse the precedential underpinnings of our Supreme Court's statement of the law on this point--dictum or not--as the City asks us to do.

4. On page 14, add the following new, full paragraph to the end of footnote 9:

In a request for modification we treated as a rehearing petition, the Department in part asks that we hold that a request for funding for highway projects can be included on a subsequent ROPS, and the City has no quarrel with this suggestion in the abstract. But to the extent the Department suggests the City must start from square one, that is, file a new ROPS to raise issues regarding the highway funds at issue in this case, we disagree. As the City contends, the Department must give the City a new hearing on its clawback determination using the new definition of an "enforceable agreement" relating to highway projects.

These modifications do not change the judgment.

FOR THE COURT:

/s/

Hull, Acting P. J.

/s/

Mauro, J.

/s/

Duarte, J.