On September 26, 2018, the First District Court of Appeal partially published Atwell v. City of Rohnert Park, __ Cal.App.5th __ (2018) (Case Nos. A151896, A153011), a decision originally filed on September 18, 2018, addressing important procedural defenses in connection with the approval and subsequent re-approval of a Wal-Mart expansion project.

In a lawsuit challenging the re-approved project filed by different parties not involved in an earlier lawsuit regarding the original project, the Court affirmed a trial court judgment that held the appellants’ writ petition was barred by the doctrine of res judicata because the prior lawsuit also asserted the same general plan consistency claim raised in the second lawsuit.

The case involved the City’s 2010 approval of the expansion of an existing Wal-Mart store in Rohnert Park to add an approximately 36,000 square foot addition for a 24-hour supermarket. The City found that the project was consistent with its general plan, including Policy LU-7 to “[e]ncourage new neighborhood commercial facilities and supermarkets to be located to maximize accessibility to all residential areas.”

Sierra Club and Sonoma County Conservation Action filed a petition for writ of mandate challenging the City’s Environmental Impact report and project approvals With respect to the project approvals, Sierra Club and SCCA alleged that the project was inconsistent with the general plan and particularly Policy LU-7. They ultimately did not pursue the general plan consistency claim, however.

The trial court subsequently granted the petition in the first lawsuit and ordered the resolutions approving the project to be vacated and the project remanded for additional CEQA review regarding traffic impacts. The City thereafter vacated the project approvals and prepared a revised EIR. However, the revised EIR did not alter the original EIR’s analysis of the project’s consistency with the general plan. In 2015, the City certified the revised EIR and re-approved the project.

Appellants then filed a writ petition challenging the re-approved project’s consistency with Policy LU-7 and seeking a writ of mandate ordering the City to vacate the project approvals. The trial court concluded the petition was barred by res judicata, which bars a party and persons in privity with that party from relitigating a claim following a final judgment on the merits of the claim. The Court of Appeal agreed.

On appeal, the City claimed that appellants’ petition was barred by res judicata because the Sierra Club challenged general plan consistency in the first action, that action resulted in a final judgment, and appellants are in privity with Sierra Club and SCCA. While the appellants agreed the Sierra Club action resulted in a final judgment, they contended that their petition raised distinct claims and that they were not in privity with Sierra Club and SCCA.

The Court of Appeal noted that res judicata may bar issues that could have been litigated and that all of the appellant’s arguments regarding general plan consistency were identical to those raised, discussed, and argued before the city council in 2010. The Court thus held that the appellant’s claims were not based on changed material facts and raised the same claims raised in the prior lawsuit.

The Court also held that the appellants were in privity with the Sierra Club because their case raised issues of harm to the community in the same way as the prior litigation involving the Sierra Club. As a result, the appellant’s interest was so similar to the Sierra Club’s interest that the Sierra Club acted as appellant’s “virtual representative” in the first lawsuit.


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.