HomeMy WebLinkAbout21CV-0734 - Objections Filed_to Petitioners Sur-Reply1 -
OBJECTION TO PETITIONER’S SUR-REPLY
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BEST BEST & KRIEGER LLP ATTORNEYS AT
LAW 18101 VON
KARMAN AVENUE, SUITE 1000 IRVINE, CALIFORNIA
92612 JEFFREY V.
DUNN, Bar No. 131926
jeffrey.dunn@bbklaw.com DANIEL L. RICHARDS,
Bar No. 315552
daniel.richards@bbklaw.com BEST
BEST & KRIEGER LLP 18101
Von Karman Avenue, Suite 1000
Irvine, California 92612 Telephone: (949) 263-2600 Facsimile: (949) 260-0972
Attorneys for Defendants and Respondents City
of San Luis Obispo and
City Council of and for
the City of San Luis Obispo EXEMPT
FROM FILING FEES PURSUANT TO
GOVERNMENT CODE SECTION
6103 SUPERIOR COURT
OF
THE STATE OF CALIFORNIA COUNTY OF
SAN LUIS OBISPO NHC SLO, LLC, Petitioner and
Plaintiff, v. CITY OF SAN LUIS
OBISPO;
CITY COUNCIL
OF
AND FOR THE CITY
OF SAN LUIS OBISPO;
AND DOES 1-10, INCLUSIVE,
Defendants
and Respondents. Case No.
21CV-0734 Judge: Hon. Rita
Federman OBJECTION
TO
PETITIONER’
S SUR-REPLY Date: July 7,
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OBJECTION TO PETITIONER’S SUR-REPLY
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BEST BEST & KRIEGER LLP ATTORNEYS
AT LAW 18101 VON KARMAN AVENUE, SUITE 1000 IRVINE, CALIFORNIA 92612 OBJECTION TO IMPROPER
SUR-REPLY Defendant and Respondent City of San Luis Obispo (“City”) hereby objects to the
following
untimely, unsolicited materials submitted by NHC SLO, LLC (“NHC”) to the Court
on July 6, 2022: 1) “
Objection to New Argument and Evidence Raise[d] in Reply; Memorandum;” 2) “Supplemental Helios Dayspring
Declaration.” While Characterized as an “Objection to New Arguments” the document is a sur-reply. (See Objection to New Arguments [“Obj.”] at
pp. 2:24–8:23; see, e.g., p. 6:6–11 [“In Reply, the City
acknowledge that under its enacted statutes/ordinance, it does not have a legal ground to revoke
NHC SLO’s cannabis permit. However, the City argues in reply that Dayspring’s ‘frauds’
show that NHC SLO has ‘unclean hands’ regarding its
application, and that since these proceedings are equitable in nature, the court can ignore the law . . . .”].) The City’
s demurrer is set for hearing on July 7, 2022. As such, NHC’s opposition papers and any
supporting evidence were due in their entirety on or before June 23, 2022. Nothing in the applicable
statutes (Code of Civil Procedure section 430.10 and 1005), rules of court (e.g. Rule 3.1320),
or this Court’s local rules permit Plaintiff to submit still more argument or authorities in opposition
to the demurrers and replies. The Court neither requested nor invited a sur-reply or any other materials or
briefing to be filed, and NHC did not seek leave prior to filing the sur-reply. Further, there
would be no grounds to grant leave to file a sur-reply if NHC
had properly sought such leave. NHC’s representation that the City improperly raised new arguments and submitted
new evidence in reply is false. The City submitted no evidence with its reply. The City
also raised no new arguments in its reply. Each argument was either directly responsive to an argument raised
by NHC in its opposition, or was raised in the City’s moving papers. In particular,
NCH’s argument that the City “materially changed its legal argument that it was actually relying on language
buried at the bottom of the issue permit that the City could revoke even an issued permit if
it
later determined that there was any error or misstate[ment] in the
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OBJECTION TO PETITIONER’S SUR-REPLY
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BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 18101 VON KARMAN AVENUE, SUITE 1000 IRVINE, CALIFORNIA 92612 authorized by
its agreement, in its moving papers and reply. (Compare Dem. at pp. 17:24–18:
11 In connection with its application for a Cannabis Permit, NHC contractually agreed
that any false or misleading representation or omission would result in disqualification and revocation of permit, and waived
in inconsistent rights in the Municipal Code”] with Reply at p. 5:3–13 [“In
connection with its application for a Cannabis Permit, NHC contractually agreed that
any false or misleading representation or omission would result in disqualification . . . . NHC’s
opposition ignores its agreement. . . .”].) The City also raised precisely the same argument concerning unclean hands in its moving papers as it
supported in its reply. (
Compare Dem. at pp. 18:12–19:19 with Reply at pp. 7:25–9:
14.) There being no authority to permit NHC’s sur-reply and supplemental declaration to be submitted
or considered, nor leave of Court granted to do so, the City respectfully requests that
the Court reject this filing and exclude it
from
consideration in ruling
on the pending
demurrer. Dated: July 6, 2022
BEST BEST & KRIEGER LLP By: JEFFREY V. DUNN
DANIEL L. RICHARDS Attorneys for Defendants and Respondents City
of San Luis Obispo
82508.00018\34822950.1
PROOF OF SERVICE
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BEST BEST & KRIEGER
LLP ATTORNEYS AT LAW 18101
VON KARMAN AVENUE, SUITE 1000 IRVINE, CALIFORNIA 92612 Proof of Service I, Kerry V. Keefe, declare: I
am a citizen of the United States and employed in Orange County, California. I am over the age
of eighteen years and not a party to the within-entitled action. My business address is
18101 Von Karman Avenue, Suite 1000,
Irvine, California 92612. On July 6,
2022, I served a copy of the within document(s): OBJECTION TO PETITIONER’S SUR-
REPLY by transmitting via facsimile the document(s) listed above
to the fax number(s) set forth below on this date before 5:00
p.m. by placing the document(s) listed above in a sealed envelope
with
postage thereon fully prepaid, the United States mail at Irvine, California addressed as
set forth below. by placing the document(s) listed above in a sealed envelope and affixing
a
pre-paid air bill, and causing the envelope to be delivered to a agent
for delivery. by personally delivering
the document(s) listed above to the person(s) at the address(es)
set forth below. by transmitting via e-mail or electronic transmission the document(
s) listed
above to the
person(s) at the e-
mail address(es) set
forth below. John Armstrong
Armstrong Law Group
23232 Peralta Drive,
Suite 102 Laguna Hills, CA 92653 Phone: (949) 942-6069 Email: john@armstronglawgroup.co Attorneys
for Petitioner I am readily familiar with the firm's practice of collection and processing correspondence for mailing.
Under that practice it would be deposited with the U.S. Postal Service on that same day
with postage thereon fully prepaid in the ordinary course of business. I am aware that
on motion of the party served, service is presumed invalid if postal cancellation date or
82508.00018\34822950.1 2 -
PROOF OF SERVICE
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BEST BEST & KRIEGER LLP ATTORNEYS AT LAW 18101 VON KARMAN AVENUE, SUITE 1000 IRVINE, CALIFORNIA 92612 I
declare under penalty of
perjury under the laws of the State of
California that the