Filed 4/20/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
FRIENDS OF OCEANO 2d Civil No. B320491
DUNES, (Super. Ct. No. 21CV-0214)
(San Luis Obispo County)
Plaintiff and Respondent,
v.
CALIFORNIA COASTAL
COMMISSION,
Defendant;
DEPARTMENT OF PARKS
AND RECREATION,
Defendant and Real Party in
Interest;
COUNTY OF SAN LUIS
OBISPO,
Real Party in Interest;
NORTHERN CHUMASH
TRIBAL COUNCIL et al.,
Movants and Appellants.
ECOLOGIC PARTNERS et al., (Super. Ct. No. 21CV-0219)
(San Luis Obispo County)
Plaintiffs and Respondents,
v.
CALIFORNIA COASTAL
COMMISSION et al.,
Defendants;
COUNTY OF SAN LUIS
OBISPO,
Real Party in Interest.
FRIENDS OF OCEANO (Super. Ct. Nos. 21CV-0246,
DUNES, 21CV-0541)
(San Luis Obispo County)
Plaintiff and Respondent,
v.
CALIFORNIA COASTAL
COMMISSION,
Defendant;
DEPARTMENT OF PARKS
AND RECREATION et al.,
Real Parties in Interest.
2
Three community stakeholders moved to intervene in
several lawsuits challenging the authority of the California
Coastal Commission (Commission) to ban all off-highway vehicle
(OHV) use at Oceano Dunes State Vehicular Recreation Area
(Oceano Dunes). The trial court denied the motion on the ground
that the stakeholders’ interests are adequately represented in the
litigation.
We conclude that where a nonparty has interests in the
outcome of a civil action that are identical to those of a party to
the action, the nonparty must make a compelling showing of
inadequate representation to be permitted to intervene as of
right.
The Northern Chumash Tribal Council, Oceano Beach
Community Association, and Center for Biological Diversity
(collectively, Appellants) appeal from the order denying their
motion to intervene in four petitions for writ of mandate that
Friends of Oceano Dunes, EcoLogic Partners, and Specialty
Equipment Market Association (collectively, Respondents) filed
against the Commission and the Department of Parks and
Recreation (Department) (collectively, the State defendants).
Appellants contend the trial court erred when it: (1) denied them
leave to intervene as of right, (2) denied their request for
permissive intervention, and (3) sustained Respondents’
evidentiary objections. We affirm.
3
FACTUAL AND PROCEDURAL HISTORY1
The Department established what is now known as Oceano
Dunes in 1974. OHVs have operated at the park since its
founding. Since 1982, the vehicles have operated subject to a
coastal development permit (CDP) issued by the Commission.
The CDP has been amended several times over the years to limit
access to and protect culturally and environmentally significant
areas of Oceano Dunes.
In March 2021, the Commission amended the CDP to phase
out the use of OHVs at Oceano Dunes over three years, restrict
beach driving and camping to the north end of the park, and close
one park entrance. Respondents challenged these amendments
in a series of petitions for writ of mandate, alleging the
Commission had no authority to adopt them. Alternatively, they
alleged that the State defendants violated the California Coastal
Act of 1976 (Pub. Resources Code, § 30000 et seq.; Coastal Act)
and California Environmental Quality Act (Pub. Resources Code,
§ 21000 et seq.; CEQA) when doing so.
Respondents subsequently entered into a stipulation with
the Department and the County of San Luis Obispo (a real party
in interest) to stay implementation of specified CDP amendments
pending the outcome of their lawsuits. The Commission did not
oppose the stipulation, and the trial court entered an order
approving it in December 2021.
1 The statement of facts in Appellants’ opening brief relies
largely on sources outside the record on appeal, in violation of
court rules. (Cal. Rules of Court, rule 8.204(a)(2)(C) [opening
brief must “[p]rovide a summary of the significant facts limited to
matters in the record” (italics added)].) We thus take the facts
from Respondents’ briefs.
4
Two months later, Appellants moved to intervene in
Respondents’ lawsuits against the State defendants. The State
defendants did not oppose Appellants’ motion, but Respondents
did. Respondents also objected to evidence Appellants attached
to their reply brief.
The trial court denied Appellants’ motion to intervene as of
right, concluding that they have the “same ultimate objective[s]”
as the State defendants, objectives the State defendants will
adequately protect: First, Appellants do not intend to raise any
new legal arguments in the litigation or present any additional
evidence. Nor do they claim that the State defendants will “take
an undesirable legal position” or otherwise fail to “vigorously
defend the [CDP] amendment.” Second, the amendment
“completely addresses and protects all of [Appellants’] claimed
interests . . . over any and all competing interests,” and there is
no indication the State defendants might be “considering a
scaled-back amendment at odds” with those interests. Third,
Appellants have no “special expertise” concerning the
Commission’s authority to amend the CDP or the procedures
employed when doing so, the sole issues raised in Respondents’
writ petitions.
The trial court also denied Appellants’ motion for
permissive intervention, finding that Appellants’ reasons for
intervention are “outweighed by the rights of the original parties
to conduct their lawsuit on their own terms.”
Finally, the trial court sustained Respondents’ objection to
admitting into evidence a copy of the December 2021 stipulation
and order staying portions of the CDP amendment. Appellants
offered the stipulation for the first time with their reply brief,
affording Respondents no opportunity to respond. The proffered
evidence also lacked foundation because it was neither part of a
5
request for judicial notice nor attached to a declaration from
counsel.
DISCUSSION
Intervention as of right
Appellants first contend they have the right to intervene in
Respondents’ lawsuits because the State defendants cannot and
will not adequately protect their interests. State and federal
cases are unsettled as to whether the denial of a motion for
intervention as of right is reviewed de novo or for abuse of
discretion. (Crestwood Behavioral Health, Inc. v. Lacy (2021) 70
Cal.App.5th 560, 573-574.) We do not weigh in on the standard-
of-review debate here because there was no error under either
standard.
A nonparty has the right to intervene in a civil action if
they: (1) file a timely application, (2) have “an interest relating to
the property or transaction that is the subject of the action,” (3)
are “so situated that the disposition of the action may impair or
impede [their] ability to protect that interest,” and (4) show that
their interest is not “adequately represented by one or more of
the existing parties.” (Code Civ. Proc.,2 § 387, subd. (d)(1)(B).)
Only the fourth of these elements is at issue here. We “take
guidance from federal law” when evaluating whether it has been
met (Edwards v. Heartland Payment Systems, Inc. (2018) 29
Cal.App.5th 725, 732), and “ ‘ “are guided primarily by practical
and equitable considerations” ’ ” (Callahan v. Brookdale Senior
Living Communities, Inc. (9th Cir. 2022) 42 F.4th 1013, 1020
(Callahan)). We “ ‘liberally construe[]’ ” it (City of Malibu v.
California Coastal Com. (2005) 128 Cal.App.4th 897, 902),
2 Unlabeled statutory references are to the Code of Civil
Procedure.
6
resolving “[a]ny doubt as to whether the existing parties will
adequately represent the [nonparty’s interest] . . . in favor of
intervention” (California Dump Truck Owners Ass’n v. Nichols
(E.D.Cal. 2011) 275 F.R.D. 303, 307 (California Dump Truck)).
Three factors determine whether a party will adequately
represent a nonparty’s interest: “(1) whether the interest of a
present party is such that it will undoubtedly make all of [the
nonparty’s] arguments[,] (2) whether the present party is capable
and willing to make such arguments[,] and (3) whether [the
nonparty] would offer any necessary elements to the proceeding
that other parties would neglect.” (Callahan, supra, 42 F.4th at
p. 1020.) Generally, the burden of satisfying this test is
“minimal”; it can be satisfied if the nonparty “shows that
representation of [their] interest ‘may be’ inadequate.” (Trbovich
v. United Mine Workers of America (1972) 404 U.S. 528, 538, fn.
10.) If the nonparty’s “interest is ‘identical to that of one of the
present parties,’ ” however, “ ‘a compelling showing [is] required
to demonstrate inadequate representation.’ ” (Callahan, at pp.
1020-1021.)
Here, Appellants’ interest in this litigation is identical to
that of the State defendants: They, like the State defendants,
assert that the Commission had the authority to amend the CDP
and that the amendment process complied with both the Coastal
Act and CEQA. And if the CDP amendment takes effect, the
Commission’s decision to ban OHVs at Oceano Dunes will
completely protect Appellants’ concerns about negative impacts
on the environment, local citizens, and the Northern Chumash.
(Cf. Callahan, supra, 42 F.4th at p. 1021 [interests identical
where party and nonparty seek the same litigation outcome].)
Appellants are thus required to make a compelling showing that
the State defendants’ representation will be inadequate.
7
Appellants maintain that they need not make such a
showing because they have different interests than the State
defendants: The State defendants are “ ‘public agenc[ies] that
must balance relevant environmental and health interests with
competing resource constraints and the interests of various
constituencies,’ ” while they “are ‘not required to balance any
economic impact against [their] own considerations pertaining to
health and environmental protections.’ ” (Citing California
Dump Truck, supra, 275 F.R.D. at p. 308.) But here, the State
defendants are not balancing anything: The issues in this
litigation do not center on what the CDP amendments should
include or how far they should go; the State defendants have
already made those substantive determinations and are now
defending their authority to do so in court.
More significantly, Appellants misconstrue the pertinent
inquiry. The interests relevant here are not the State
defendants’ and Appellants’ respective interests in general, but
their interests in this specific litigation. (Callahan, supra, 42
F.4th at p. 1021.) The sole questions at issue are narrow
jurisdictional and procedural ones: whether the State defendants
had the authority to amend the CDP and, if so, whether the
amendment process complied with applicable laws. Appellants
and the State defendants both want these questions answered
with unqualified “yeses.” Whatever substantive differences the
two may have generally are not relevant. The “compelling
showing” standard applies.
Appellants have not met it. If permitted to intervene,
Appellants do not intend to raise any legal arguments in support
of the CDP amendment other than those raised by the State
defendants. The State defendants are thus ipso facto willing and
able to make all of Appellants’ arguments. Additionally, the
8
State defendants are not “considering a scaled-back amendment
at odds” with Appellants’ interests, have not indicated that they
will take some other “undesirable legal position” in the litigation,
and have not indicated that they will fail to defend the
amendment process. And Appellants concede that they have no
specialized legal expertise concerning the Commission’s authority
to amend the CDP or whether the amendment process complied
with applicable laws. They have thus failed to make a compelling
showing of inadequate representation.
Appellants disagree, asserting that they would have
opposed staying implementation of the CDP amendment if
permitted to intervene, which demonstrates that the State
defendants are not adequately representing their interests. But
this assertion “ultimately amounts to a disagreement over
litigation strategy.” (Callahan, supra, 42 F.4th at p. 1021.) “And
‘[w]hen a [nonparty] has not alleged any substantive
disagreement between it and the existing parties to the suit, and
instead has rested its claim for intervention entirely upon a
disagreement over litigation strategy or legal tactics, courts have
been hesitant to accord the [nonparty] full-party status.’ ” (Ibid.)
Appellants’ “assertion that [they] would not have agreed to the
[stay] is insufficient to show that [the State defendants will] not
adequately represent [their] interests.” (Ibid.)
Appellants also claim the State defendants may advance
different arguments than they would like to see at trial. But they
“identify no argument the [State defendants] would not or could
not make on [their] behalf, and suggest no ‘necessary element’
[they] alone could present.” (Southwest Center for Biological
Diversity v. Babbitt (9th Cir. 1998) 150 F.3d 1152, 1154.) Even if
they had, intervention requires more than “ ‘offer[ing] a different
angle on the legal questions in [a] lawsuit.’ ” (Public Service Co.
9
v. Patch (1st Cir. 1998) 136 F.3d 197, 210.) Conflicting views on
legal strategy do not amount to inadequate representation.
(Callahan, supra, 42 F.4th at p. 1021.)
Appellants also assert that the State defendants have not
committed to supporting all their goals, and maintain they
possess cultural and ecological knowledge the State defendants
do not. That may very well be true. But again, what matters for
the adequacy-of-representation test is whether the State
defendants support Appellants’ goals as they relate to the CDP
amendment, and whether Appellants have knowledge or
expertise relevant to the State defendants’ authority and the
amendment process. (Callahan, supra, 42 F.4th at p. 1021.) That
Appellants and the State defendants may have diverging
interests and expertise on other issues is not a compelling
showing of inadequate representation.
The cases on which Appellants rely are not to the contrary.
In California Dump Truck, supra, 275 F.R.D. at page 308,
intervention was permitted because there was no identity of
interest between the nonparty and government agency given the
government’s prior weakening of a regulation the nonparty
supported. An analogous scenario has not occurred here.
In Utah Association of Counties v. Clinton (10th Cir. 2001)
255 F.3d 1246, 1256, intervention was permitted because the
government agencies were “consider[ing] a broad spectrum of
views, many of which . . . conflict[ed] with the particular interest
of the” nonparty. And subsequent Tenth Circuit cases explained
that the Utah Association of Counties rule does not apply where,
as here, the government is singularly pursuing an objective that
aligns with the nonparty’s interests. (San Juan County v. United
States (10th Cir. 2007) 503 F.3d 1163, 1204.) Appellants are thus
10
adequately represented in the litigation with the State
defendants, as the trial court correctly concluded.
Appellants respond that, in reaching this conclusion, the
trial court erroneously relied on a “ ‘presumption of adequacy of
representation,’ ” a presumption that arises when a party and
nonparty “have the same ultimate objective” in litigation. (See
Arakaki v. Cayetano (9th Cir. 2003) 324 F.3d 1078, 1086.) They
maintain that recent cases have “call[ed] into question whether
the application of such a presumption is appropriate.” (Callahan,
supra, 42 F.4th at p. 1021, fn. 5; see Berger v. N.C. Conf. of the
NAACP (2022) __ U.S. __ [142 S.Ct. 2191].)
But we review a trial court’s ruling, not its rationale. (Ross
v. Superior Court (2022) 77 Cal.App.5th 667, 681.) Here,
Appellants and the State defendants “have not only the same
ultimate objective but identical interests in this action.”
(Callahan, supra, 42 F.4th at p. 1021, fn. 5.) “Consequently, we
need not apply the ‘same ultimate objective’ presumption; we
instead rely [on the] rule that a [nonparty] must make a
compelling showing of inadequate representation when [their]
interest is identical to that of an existing party.” (Ibid.) “This
‘identity of interest’ rule remains on firm legal footing after
Berger.” (Ibid.) And it was satisfied here.
Permissive intervention
Appellants next contend the trial court erred when it
denied their request for permissive intervention. We disagree.
“ ‘The purpose of allowing intervention is to promote
fairness by involving all parties potentially affected by a
judgment.’ ” (Lindelli v. Town of San Anselmo (2006) 139
Cal.App.4th 1499, 1504.) A trial court may therefore “permit a
nonparty to intervene in [an] action . . . if the [nonparty] has an
interest in the matter in litigation, or in the success of either of
11
the parties, or an interest against both.” (§ 387, subd. (d)(2).)
Intervention will generally be permitted if: “ ‘(1) the proper
procedures have been followed[,] (2) the nonparty has a direct
and immediate interest in the action[,] (3) the intervention will
not enlarge the issues in the litigation[,] and (4) the reasons for
the intervention outweigh any opposition by the parties presently
in the action.’ ” (City and County of San Francisco v. State of
California (2005) 128 Cal.App.4th 1030, 1036 (City and County of
San Francisco).)
Permissive intervention requires “balanc[ing] the interests
of [nonparties] affected by a judgment against the interests of the
original parties in pursuing their case unburdened by others.”
(South Coast Air Quality Management District v. City of Los
Angeles (2021) 71 Cal.App.5th 314, 320 (South Coast).) A trial
court has “broad discretion” to strike this balance. (Ibid.) We
will find that the court abused that discretion only if its decision
exceeds the bounds of reason. (City and County of San Francisco,
supra, 128 Cal.App.4th at p. 1037.)
The trial court’s decision to deny Appellants’ request for
permissive intervention did not exceed the bounds of reason
because “ ‘the rights of the original parties to conduct their
lawsuit on their own terms’ ” outweighed the reasons for
intervention. (People ex rel. Rominger v. County of Trinity (1983)
147 Cal.App.3d 655, 661.) Appellants and the State defendants
take the same positions in Respondents’ lawsuits. Those
duplicative positions alone provide a sufficient basis to uphold
the discretionary denial of permissive intervention. (South
Coast, supra, 71 Cal.App.5th at p. 320.)
Additionally, permitting Appellants to intervene would add
to an already-expansive action, one with four consolidated writ
petitions; multiple plaintiffs, defendants, and real parties in
12
interest; and significant burdens on the trial court. (South Coast,
supra, 71 Cal.App.5th at p. 319 [proper to deny intervention
where “[s]eating at th[e] table already [is] crowded”].) It could
also serve to delay an action in which Appellants possess no
specialized expertise regarding the Commission’s authority to
amend the CDP. (In re Marriage of Kerr (1986) 185 Cal.App.3d
130, 134 [intervention properly denied where it would delay
action].) And needlessly so: Because this case will be decided on
the administrative record, Appellants can offer no new evidence
and plan to offer no new legal arguments. But if Respondents are
successful, Appellants will be able to offer such evidence and
arguments when the State defendants reopen the environmental
reviews for the Oceano Dunes CDP amendment. The balance of
relevant factors thus weighs against permissive intervention, as
the trial court correctly concluded.
Evidentiary objections
Finally, Appellants contend the trial court erred when it
sustained Respondents’ objection to admitting a copy of the
December 2021 stipulation and order staying portions of the CDP
amendment. There was no error.
We review a trial court’s decision to exclude evidence for
abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 667-
668.) “ ‘An abuse of discretion occurs if, in light of the applicable
law and considering all of the relevant circumstances, the court’s
decision exceeds the bounds of reason and results in a
miscarriage of justice.’ ” (Safeco Ins. Co. of America v. Superior
Court (2009) 173 Cal.App.4th 814, 832.) “ ‘We presume that the
court properly applied the law and acted within its discretion
unless [Appellants’] affirmatively show[] otherwise.’ ” (Id. at pp.
832-833.)
13
Appellants have not made that showing. Appellants
offered into evidence an unauthenticated copy of the stipulation,
one unaccompanied by a declaration of counsel or request for
judicial notice. It is firmly established that a trial court may
decline to admit evidence that lacks foundation. (People v. Prince
(2007) 40 Cal.4th 1179, 1226.) But even if the stipulation did
have the requisite foundation, a court may decline to admit
evidence offered for the first time with a party’s reply papers.
(Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (Jay).) That
is what the trial court did here.
Appellants counter that a party may offer new evidence on
reply if it “fill[s] gaps in the evidence” and supports an argument
raised in their opening brief. (Jay, supra, 218 Cal.App.4th at p.
1538.) They claim the proffered stipulation supports the
argument, raised in their opening brief, that the State defendants
cannot or will not adequately represent their interests because
they “are ‘constrained’ to representing broad public interests.”
But how the stipulation supports that argument Appellants do
not explain—except by speculating that the State defendants
“might” someday change their positions in this action “in light of
[their] broad mandate[s].” Such speculation is undermined by
the State defendants’ constant, consistent defense of their
authority and the CDP amendment process. Because Appellants
identify no other “gaps” to which the stipulation might be
relevant, we cannot say that the trial court abused its discretion
when it declined their request to admit it for the first time on
reply.
14
DISPOSITION
The trial court’s order denying Appellants’ motion for leave
to intervene, entered March 21, 2022, is affirmed. Respondents
shall recover their costs on appeal.
CERTIFIED FOR PUBLICATION.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
15
Tana L. Coates, Judge
Superior Court County of San Luis Obispo
______________________________
Environmental Law Clinic University of California, Irvine
School of Law and Michael Robinson-Dorn for Movants and
Appellants.
Law Offices of Thomas D. Roth and Thomas D. Roth for
Plaintiff and Respondent Friends of Oceano Dunes.
Gatzke Dillon & Ballance, David P. Hubbard and Kendall
F. Teal for Plaintiffs and Respondents EcoLogic Partners and
Specialty Equipment Market Association.