Civ. No.

C075668




CALIFORNIA COURT OF APPEAL
THIRD APPELLATE DISTRICT

CALIFORNIA HIGH-SPEED RAIL AUTHORITY et al.
Petitioners
v.
THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF
SACRAMENTO
Respondent
JOHN TOS, AARON FUKUDA, COUNTY OF KINGS,
HOWARD JARVIS TAXPAYERS ASSOCIATION, COUNTY
OF KERN, FIRST FREEWILL BAPTIST CHURCH, EUGENE
VOILAND, CITIZENS FOR CALIFORNIA HIGH-SPEED
RAIL ACCOUNTABILITY, KINGS COUNTY WATER
DISTRICT, and UNION PACIFIC FAILROAD COMPANY,
Real Parties in Interest
Sacramento County Superior Court Case Number 34-2011-0113919-CU-
MC-GDS and 34-2013-00140689-CU-MC-GDS; Department 31, Hon.
Michael P. Kenny, J udge. Tel.: 916-874-6353

PRELIMINARY OPPOSITION OF REAL PARTIES IN
INTEREST JOHN TOS, AARON FUKUDA, COUNTY OF
KINGS, AND COUNTY OF KERN TO PETITION FOR
EXTRAORDINARY WRIT OF MANDATE

Stuart M. Flashman, SBN 148396
Law Offices of Stuart M.
Flashman
5626 Ocean View Drive
Oakland, CA 94618-1533
Telephone and fax: (510) 652-
5373
e-mail: [email protected]
Michael J. Brady, SBN 40693
1001 Marshall Street, Ste 500
Redwood City, CA 94063-
2052
Telephone: (650) 364-8200
Facsimile: (650) 780-1701
e- mail: [email protected]
Theresa A. Goldner, County
Counsel SBN 101838
Nicole M. Misner, Dep.Cty.
Counsel SBN 188076
Kern Cty Admin. Ctr.
1115 Truxton Ave. 4
th
Fl.
Bakersfield, CA 93301
Tel. (661) 868-3800
Attorneys for Real Parties in Interest
JOHN TOS, AARON FUKUDA, AND COUNTY OF
KINGS
Attorney for Real Party in
Interest
COUNTY OF KERN

TO BE FILED IN THE COURT OF APPEAL
APP-008
COURT OF APPEAL, Third APPELLATE DISTRICT, DIVISION
Court of Appeal Case Number:
C075668
ATTORNEY OR PARTY WllliOUT ATTORNEY (Name, Stale Bar number, and Superior Court Case Number:
Stuart M. Flashman
34-2011-00140689
- 5626 Ocean View Drive
Oakland, CA 94618-1533
FOR COURT USE ONI.Y
TELEPHONE 00.: 510-652-5373 510-652-5373
E-MAIl ADDRESS (Opliona/): [email protected]
ATTORNEY FOR (Name): Real Parties in Interest John Tos et a!.
APPELLANTIPETITIONER: California High Speed Rail Authority et a!.
RESPONDENT/REAL PARTY IN INTEREST: John Tos et aI,
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
(Check one): [Z] INITIAL CERTIFICATE D SUPPLEMENTAL CERTIFICATE
Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial
certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a
motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ You may
also use this form as a supplemental certificate when you learn of changed or additional information that must
be disclosed.
1. This fonn is being submitted on behalf of the following party (name): Real Parties in Interest John Tos & Aaron Fukuda
2, a. [Z] There are no interested entities or persons that must be listed in this certificate under rule 8.208.
b. D Interested entities or persons required to be listed under rule 8.208 are as follows:
_____ __ __ __ __ _______ 1 _________________ __ __ __ ________________ __
_ entity or person _ _ (Explain):
(1)
(2)
(3)
(4)
(5)
D Continued on attachment 2.
The undersigned certifJ8s that the persons or entities (corporations, partnerships, firms, or any other
association, but not including government entities or their agencies) have either (1) an ownership 10 percent or
in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices
should consider in determining whether to disqualify themselves, as defined in rule 8.208{e)(2).
Date: February 3, 2013
Stuart M. Flashman
(tYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEy)
Form Approved for Optional Use
Judicial Council of California
APP-008lRev. January 1,20091
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Page 1 of1
Cal. Rules of Court, rules 8.208, 8.488
. gov
American legj!I\IIIet, Inc .
.


ii

TABLE OF CONTENTS
TABLE OF CONTENTS.......................................................................................ii
TABLE OF AUTHORITIES................................................................................iv
INTRODUCTION AND OUTLINE OF ARGUMENT...................................... 1
STATEMENT OF MATERIAL FACTS ............................................................. 3
A. GENERAL BACKGROUND.................................................................3
B. THE FUNDING PLAN...........................................................................4
C. THE REVISED BUSINESS PLAN AND THE
LEGISLATIVE APPROPRIATION. .....................................................6
D. INITIATION OF THE TOS SUIT..........................................................6
E. AUTHORIZATION OF BOND ISSUANCE AND THE
VALIDATION ACTION........................................................................7
F. TRIAL ON MANDAMUS CAUSES OF ACTION IN TOS
CASE.......................................................................................................9
STANDARD OF REVIEW.................................................................................. 11
ARGUMENT ........................................................................................................ 13
A. THE WRIT PETITION SHOULD BE SUMMARILY
DENIED................................................................................................13
1. Petitioners have an adequate remedy to the judgment
in the validation action by appeal. .......................................... 13
a. Requiring an appeal of the validation action
would not cause any irreparable harm to
petitioners. ........................................................................ 14
b. There is no pressing public interest that could not
be addressed through an appeal. ...................................... 16
2. The issues in the tos case would not be mooted by
compliance with the writ. ........................................................ 17
a. Compliance with the writ would not moot an
appeal because the situation involved in this case
is likely to recur. ............................................................... 19
b. Compliance with the writ would not moot an
appeal because absent an appeal the trial courts
ruling would have continuing effect through res
judicata and collateral estoppel. ......................................20
3. Petitioners willful delay of the trial court proceedings
precludes them from asserting the need for speed as
a basis for this writ proceeding. .............................................. 21
4. The irreparable harm that petitioners complain of is
illusory. ...................................................................................... 23


iii

a. Petitioners have shown no irreparable harm from
a possible GAO investigation or introduction of
federal legislation. ............................................................23
B. THE TRIAL COURTS DETERMINATIONS SHOULD BE
UPHELD ON THEIR MERITS............................................................24
1. The trial courts judgment in the validation action was
proper. ....................................................................................... 25
a. Judicial review of the committees decision to
authorize bond issuance was proper. ...............................25
b. The trial courts judgment in the Validation
Matter was proper, based on the evidence before
it. .......................................................................................27
2. The trial courts ruling in the tos case was proper. ................... 27
a. The provisions of the Funding Plan are
enforceable by the courts, because they were
promises made to the voters by the bond
measure. ............................................................................27
b. The Funding Plan violated the plain language of
the bond measure. .............................................................29
c. The Authoritys violations of the bond measures
direct mandates required rescission of the
Funding Plan. ...................................................................30
CONCLUSION..................................................................................................... 31

Certificate of Compliance
Exhibit (Supplemental Appendix of Exhibits)
Proof of Service


iv

TABLE OF AUTHORITIES
Cases
Baeza v. Superior Court
(2011) 201 Cal.App.4th 1214..................................................................13
Blue v. City of Los Angeles
(2006) 137 Cal.App.4th 1131..............................................................1, 14
Boelts v. City of Lake Forest
(2005) 127 Cal.App.4th 116..............................................................17, 25
Building a Better Redondo, Inc. v. City of Redondo Beach
(2012) 203 Cal.App.4
th
852.....................................................................18
Christian Research Institute v. Alnor
(2007) 148 Cal.App.4th 71......................................................................24
Cinel v. Christopher
(2012) 203 Cal.App.4th 759....................................................................11
City of Monrovia v. Black
(1928) 88 Cal.App. 686...........................................................................26
County of San Joaquin v. State Water Resources Control Bd.
(1997) 54 Cal.App.4th 1144....................................................................13
Donaldson v. Department of Real Estate
(2005) 134 Cal.App.4th 948....................................................................13
High-Speed Rail Authority and High Speed Passenger Train
Finance Committee of the State of California v. All Persons
Interested etc. ("Validation Action")
(Sacramento County Superior Court case #34-2013-2013-
00140689-CU-MC-GDS)..........................................................1, 8, 10, 22
In re C.F.
(2011) 198 Cal.App.4th 454....................................................................25
Jenkins v. Williams
(3
rd
Dist, 1910) 14 Cal.App.89................................................................28
Jones v. Super. Ct.
(1994) 26 Cal.App.4th 92........................................................................11
Langford v. Superior Court
(1987) 43 Cal.3d 21.................................................................................12
Long Beach Lesbian & Gay Pride, Inc. v. City of Long Beach
(1993) 14 Cal.App.4th 312......................................................................21
Los Angeles Internat. Charter High School v. Los Angeles
Unified School Dist. (LAICH)
(2012) 209 Cal.App.4th 1348............................................................19, 20
McWilliams v. City of Long Beach
(2013) 56 Cal.4th 613..............................................................................26
MHC Operating Limited Partnership v. City of San Jose
(2003) 106 Cal.App.4
th
204.....................................................................18
O'Farrell v. County of Sonoma
(1922) 189 Cal. 343.............................................................................3, 28


v

Omaha Indemnity Co. v. Super. Ct.
(1989) 209 Cal.App.3d 1266...................................................................12
People v. Avila
(2006) 38 Cal.4th 491..............................................................................16
People v. Giles
(2007) 40 Cal.4th 833..............................................................................22
People v. Mena
(2012) 54 Cal.4th 146..............................................................................12
People v. Prince
(2007) 40 Cal.4th 1179............................................................................16
People v. Smith
(2005) 37 Cal.4th 733..............................................................................13
Powers v. City of Richmond
(1995) 10 Cal.4th 85..................................................................................1
Roden v. AmerisourceBergen Corp.
(2005) 130 Cal.App.4
th
211.....................................................................11
Shaw v. People Ex Rel. Chiang
(2009) 175 Cal.App.4th 577................................................................3, 28
Simmons v. Ware
(2013) 213 Cal.App.4th 1035..................................................................21
Tos et al v. California High-Speed Rail Authority et al. ("Tos
Case") (Sacramento County Superior Court case #34-2011-
0113919-CU-MC-GDS)...................................................................passim
Vandenberg v. Superior Court
(1999) 21 Cal.4th 815..............................................................................21
Western States Petroleum Assn. v. Superior Court (WSPA)
(1995) 9 Cal.4th 559..........................................................................13, 27
Statutes
Civil Code
3517.......................................................................................................23
Code of Civil Procedure
526a...............................................................................................6, 9, 22
860 et seq.................................................................................................1
867.....................................................................................................1, 14
870...........................................................................................................1
Streets & Highways Code
2704.01....................................................................................................4
2704.04....................................................................................................4
2704.08....................................................................................4, 5, 29, 30
2704.12....................................................................................................7


1

INTRODUCTION AND OUTLINE OF ARGUMENT
Faced with two trial court rulings finding that Petitioners California
High-Speed Rail Authority et al. (hereinafter, Petitioners) violated terms
of a voter-approved bond measure, Petitioners now ask the Court to
intervene unnecessarily in two only loosely related cases, one of which is
already ripe for appeal and the other delayed, at Petitioners own doing, in
its trial court proceedings. The Court should turn down this invitation.
In the validation action,
1
Petitioners have an adequate legal remedy
by pursuing the expedited appellate procedure laid out in the validation
statutes. (Code of Civil Procedure 860 et seq., and specifically 867 and
870(b); Blue v. City of Los Angeles (2006) 137 Cal.App.4th 1131, 1139 fn 7
[court granted expedited appellate review of validation judgment].) The
availability of that remedy, contrary to the allegation in 26 of the Petition,
makes pursuit of writ relief unnecessary, and hence improper. (Powers v.
City of Richmond (1995) 10 Cal.4th 85, 112-113 [direct appeal is generally
an adequate legal remedy for dissatisfaction with trial court judgment, and
Petitioner bears burden of demonstrating inadequacy of appeal as remedy].)
Also contrary to the allegations in the Petition, in the second case,
Tos et al v. California High-Speed Rail Authority et al., (Sacramento
County Superior Court case #34-2011-0113919-CU-MC-GDS, hereinafter,

1
High-Speed Rail Authority and High Speed Passenger Train Finance
Committee of the State of California v. All Persons Interested etc.
(Sacramento County Superior Court case #34-2013-2013-00140689-CU-
MC-GDS)


2

Tos case) Petitioners compliance with the trial courts peremptory writ
of mandate (Petitioners Appendix of Exhibits [HSR], Vol. 1, Tab 3, pp.
50-51), which was properly served on Petitioners on J anuary 17, 2014,
2
will
not moot the issues raised by the trial courts order of J anuary 3, 2014
granting the petition for writ of mandate. Consequently, there is no urgent
need to vacate the trial courts ruling or the issuance of its writ of mandate,
or to interfere with the Petitioners duty to comply with that writ.
Further, Petitioners admitted in the trial court that the bond issuance
for the Spring of 2014 would begin in February (1 HSR 103:1-2), which
means there would have needed to be a validation judgment in hand well
before now in order for the administrative preparations for bond issuance to
have been done in a timely manner. It is now already too late for bonds to
be issued in the Spring issuance. There is, therefore, no urgency in terms of
bond issuance.
Finally, on the merits, the trial courts two rulings simply say that in
issuing Proposition 1A bonds and using their proceeds, Petitioners must
comply with the legal requirements of the voter-approved measure. This is
not a situation where the trial court construed a statute and that construction
would require independent review by this Court. The trial court merely
read and applied the plain language of the bond measure and required

2
See Tab A to Appendix of Exhibits of Real Parties in Interest J ohn Tos et
al., submitted herewith


3

Petitioner California High-Speed Rail Authority (hereinafter, Authority)
to comply with its requirements.
Petitioners ask the Court to allow the Authority to ignore those
requirements, but that is beyond the power of this Court, or any court.
Once a valid bond measure has been approved by the voters, the agency has
no choice but to comply with the bond measures provisions; and so long as
they are legal and proper, only the voters can modify those requirements.
(O'Farrell v. County of Sonoma (1922) 189 Cal. 343, 347; Shaw v. People
Ex Rel. Chiang (2009) 175 Cal.App.4th 577, 596.)
Real Parties in Interest J ohn Tos, Aaron Fukuda, County of Kings,
and County of Kern (hereinafter, RPI) therefore respectfully request that
the Extraordinary Petition for Writ of Mandate be summarily denied.
STATEMENT OF MATERIAL FACTS
A. GENERAL BACKGROUND
For purposes of the two cases at issue here, one can agree that the
relevant facts start in 2008, when the Legislature took up and modified a
previously-proposed high-speed rail bond measure and placed the modified
measure, designated as Proposition 1A, on the November 2008 ballot for
approval by the voters. (20 HSR 5121 et seq., 5137 et seq.) The measure
was approved by a relatively narrow 52.7% to 47.3% margin. (15 HSR
4197.)


4

B. THE FUNDING PLAN
In November 2011, the Authority prepared and submitted to the
Legislature a Funding Plan (20 HSR 5174 et seq.), purportedly pursuant to
Streets & Highways Code 2704.08(c), along with a Draft 2012 Business
Plan (20 HSR 5194 et seq.) that was incorporated into the Funding Plan by
reference.
The Funding Plan was required by the bond measure to identify or
certify several crucial characteristics of the Corridor or Usable Segment
that it was intended to provide funding for. (20 HSR 5130-5131.) The
identification or certification of these characteristics was intended to assure
the Legislature and the voters that construction and operation of that
Corridor
3
or Usable Segment would be successful. (See, 20 HSR 5125
[analysis in Voter Information Guide stating that a detailed Funding Plan
for each Corridor or Usable Segment would be prepared and submitted to
the Legislature prior to any appropriation of funds]; 20 HSR 5126 [ballot
argument in favor of measure stating that there would be public oversight
and detailed independent review of financing plans.) Among those
characteristics were: 1) its estimated full cost for construction, 2) the
sources of all funds to be invested in it, along with anticipated time for

3
A Corridor is defined in Streets & Highways Code 2704.01(f) as a
portion of the high-speed train system as described in 2704.04. A
Usable Segment is described in 2704.01(g) as a portion of a corridor
with at least two stations.


5

receipt of those funds, 3) certification that it could be completed as
proposed, and 4) certification that all project-level environmental
clearances needed to proceed to its construction had been completed.
(Streets & Highways Code 2704.08(c)(2)(C),(D),(G), and (K).)
In fact, and as the trial court found based on undisputed evidence in
the record, several of these identifications or certifications in the Funding
Plan were improper. In particular, the Funding Plan did not identify all of
the funds to be invested in the 300 mile long Usable Segment
4
, but only in a
130 mile long Initial Construction Section.
5
(ICS) (1 HSR 80-82; 20
HSR 5185-5186.) Further, the Funding Plan did not and could not certify
that all project level environmental clearances had already been completed
so that the project could proceed to construction.
6
Instead, it certified that
environmental clearances for the ICS would be completed before
construction of that section was initiated. (1 HSR 82-84; 20 HSR 5192.)

4
Later identified more specifically in the April 2012 Revised 2012
Business Plan as the Initial Operating Segment South (IOS-South). (27
HSR 7046 et seq., 7053, 7096 [tab 373].)
5
Even here, the funds would not be sufficient to provide electrification or
positive train control, two requirements if the Usable Segment was to be
suitable and ready for high-speed train operation. (2704.08(c)(2)(H); 27
HSR 7099, 7114-7115.)
6
In fact, as of the date the Funding Plan was completed and sent to the
Legislature, none of the environmental clearances for the Usable Segment
had been completed. (27 HSR 7113.)


6

C. THE REVISED BUSINESS PLAN AND THE LEGISLATIVE
APPROPRIATION.
In April of 2012, the Authority approved and sent to the Legislature
a revised version of its 2012 Business Plan. (27 HSR 7046 et seq.) The
November 2011 Funding Plan was not, however, amended to incorporate
the Revised Business Plan. While the Revised Business Plan changed a
number of salient features of the proposed Phase I system, including
introducing the blended system
7
and designating the IOS-South as the
first Usable Segment, it did not correct any of the defects that the trial court
found in the Funding Plan.
In J uly 2012, the Legislature took up the Authoritys appropriation
requests. While the measure approving the appropriations, SB 1029,
passed the Assembly easily, it barely passed in the Senate, with the
leadership of the Senate Transportation Committee, the committee with
primary jurisdiction over the project, voting no. (15 HSR 4185 [showing
Senators Lowenthal, Simitian, and Desaulnier voting no].)
D. INITIATION OF THE TOS SUIT.
On November 14, 2011, Real Parties in Interest J ohn Tos, Aaron
Fukuda, and County of Kings (hereinafter, Tos Plaintiffs) filed their
Complaint for Declaratory Relief; Complaint by Taxpayers/Interested
Parties Under Code of Civil Procedure 526a to Prevent Commission of

7
A system that used conventional rail segments to connect to the two Phase
I termini. (See generally 27 HSR 7046 et seq. [tab 373].)


7

Illegal Act; Request for Permanent Injunction. (19 HSR 5109 et seq.) On
December 13
th
, the Tos Plaintiffs filed their First Amended Complaint. (19
HSR 5079 et seq.) Defendants demurred to that complaint (19 HSR 5051),
which demurrer was granted with leave to amend. (18 HSR 4845 et seq.)
Subsequently, the Tos Plaintiffs filed their Second Amended Complaint
(hereinafter, SAC) (18 HSR 4806 et seq.), which remains the operative
pleading in the Tos Case.
E. AUTHORIZATION OF BOND ISSUANCE AND THE
VALIDATION ACTION.
In March of 2013, the Authority began consideration of requesting
the issuance of approximately $8.5 billion of Proposition 1A bonds for
high-speed rail construction. On March 18
th
, the Authority adopted a
resolution requesting that the California High-Speed Passenger Train
Finance Committee (hereinafter, Committee), which had been established
by Proposition 1A (Streets & Highways Code 2704.12; 20 HSR 5132),
authorize the issuance of those bonds. (8 HSR 2048-2049 [Tab 109].) The
Authority forwarded the resolution to the Committee, but did not submit
any additional information in support of the request.
That same day, the Committee met. No staff report or other
supporting documentation was provided to the Committee. (3 HSR 714
1.) The open session began with ten minutes of public comments, none of
which provided evidence supporting authorization of bond issuance. After


8

that, consideration of bond authorization took one minute and 43 seconds,
with no discussion by Committee members, just a voice vote approving the
two resolutions authorizing bond issuance. (8 HSR 1953, 1956 et seq.,
2005 et seq.; 6 HSR 1553 [6], 1554 [11], 1555 [14, 15], 1613 [letter
from Chief Counsel for Authority], 1623 et seq.
8
; 3 HSR 713 [stipulation
by counsel for the Authority and the Committee that no documents were
presented to the Committee in open session at its March 18, 2013 meeting
other than the Authoritys resolution requesting authorization for bond
issuance and the two draft resolutions authorizing bond issuance].)
The following day, the Authority and the Committee jointly filed the
Validation Action seeking to validate the Authoritys and the Committees
determinations authorizing the bond issuance. (10 HSR 2760 et seq. [tab
189].) After preliminary skirmishes over the propriety of the summons and
of the validation complaint, answers were filed by eight parties. (7 HSR
1929; 8 HSR 2122; 9 HSR 2469, 2479, 2496, 2507, 2514; 10 HSR 2727.)
After full briefing, the matter was heard on September 27, 2013. (1
HSR 97 et seq. [tab 7] [hearing transcript].) On November 26, 2013, the
trial court issued its Ruling on Submitted Matter (1 HSR 52 et seq. [tab 4]),
finding that a judgment validating the bond authorization could not be

8
The Declaration of Kathy Hamilton was submitted to the trial court
without objection. In its ruling on the Validation Action, the trial court
expressed reservations about the accuracy of the transcript attached to the
declaration. However it did not strike the declaration, which is therefore
part of the record before this Court.


9

entered because the authorization did not comply with statutory
requirements. More specifically, there was no evidence before the
Committee to support its determination authorizing bond issuance. The
trial court designated the Tos Plaintiffs to prepare a proposed judgment for
the court. (1 HSR 71.)
After extended negotiations with opposing counsel over the form of
the judgment, a final judgment was approved by the plaintiffs counsel and
submitted to the court. J udgment was entered on J anuary 3, 2014 (1 HSR
4), and Notice of Entry of J udgment was served on the plaintiffs by mail on
J anuary 16, 2014. (1 HSR 34.)
F. TRIAL ON MANDAMUS CAUSES OF ACTION IN TOS
CASE.
By stipulation of the parties, after an informal telephonic case
management conference (18 HSR 4773-4774 [tab 279]; 4784-4785 [tab
283]), the writ claims in the SAC that were based on an administrative
record were heard, after full briefing, on May 31, 2013.
9
(1 HSR 171 et
seq. [tab 8][hearing transcript].)

9
The issues in the non-mandamus causes of action, which include
injunctive relief under Code of Civil Procedure 526a and declaratory
relief, were left to be decided after the court heard and decided the formal
writ proceedings. The Tos Plaintiffs filed their opening brief for those
proceedings along with their opening brief in the writ proceedings. A
determination on whether to proceed with the non-writ claims by a court
trial is currently pending in the trial court on defendants motion for
judgment on the pleadings, set for hearing on February 14, 2014.


10

On August 16, 2013, the trial court issued its Ruling on Submitted
Matter, determining that, as a matter of law, the Authority had abused its
discretion in approving the November 2011 Funding Plan. (1 HSR 74 et
seq. [tab 5].) The court ordered further briefing on the appropriate remedy
(if any) for the violation. After completion of that briefing, the court held a
second hearing, on remedies, on November 8, 2013. (1 HSR 232 et seq.
[tab 9][hearing transcript].) On November 26, 2013, the trial court issued
its second Ruling on Submitted Matter in the case, finding that because
ordering rescission of the Authoritys approval of the Funding Plan would
have real and practical effect, a writ of mandate would issue ordering that
rescission. (1 HSR 52 et seq. [tab 4].) The court denied, however, the Tos
Plaintiffs requests that the writ include rescission of the Authoritys
construction contracts and that the court enjoin expenditure of state bond
funds or federal grant funds towards construction, finding that such relief
was not warranted at that time. The Tos Plaintiffs were directed to prepare
a proposed order and a proposed writ of mandate for submission to the
court.
As with the Validation Action, Tos Plaintiffs counsel prepared the
proposed order and writ and submitted them to opposing counsel for
approval as to form. (See 1 HSR 276 [letter to court from counsel for Tos
plaintiffs reviewing process for preparing and submitting proposed order].)
There followed several rounds of negotiation over the form and content of


11

the order and writ. Eventually, counsel for defendants indicated that the
form of the order and writ were acceptable. (1 HSR 277.) Shortly
thereafter, however, defendants counsel retracted that approval and asked
for additional delay while the clients were consulted. (1 HSR 276 .)
Eventually, counsel for defendants asked that Tos Plaintiffs agree not to
seek issuance of a writ of mandate until a final judgment was entered. (1
HSR 279-280.) In the meantime, defendants counsel indicated that
defendants would stipulate to not using any Proposition 1A bond funds
towards construction. (Id.) The Tos Plaintiffs rejected this proposal and
submitted the proposed order and writ with an explanatory cover letter. (1
HSR 276-277 [tab 10].) On J anuary 3, 2014, the trial court filed its order
and issued the writ of mandate. (1 HSR 37 et seq., 50-51.) On J anuary 17,
2014, the writ of mandate was personally served on the Tos Defendants,
through their legal counsel. (Supplement of Real Parties in Interest J ohn
Tos et al. to Appendix of Exhibits, p.1.) The Writ of Mandate ordered the
Authority to rescind its Funding Plan, and required the Authority to submit
a return to the court within sixty days of receipt of service, indicating its
compliance with the writ.
STANDARD OF REVIEW
An extraordinary petition for writ of mandate is, as the name
indicates, extraordinary. (Roden v. AmerisourceBergen Corp. (2005) 130
Cal.App.4
th
211, 213.) Unlike the usual appeal, it is heard outside normal


12

channels of appellate review. (Jones v. Super. Ct. (1994) 26 Cal.App.4th
92, 100.) Consequently, an appellate courts consideration of an
extraordinary writ of mandate is discretionary, and is rarely granted. (Cinel
v. Christopher (2012) 203 Cal.App.4th 759, 766 fn. 4; Omaha Indemnity
Co. v. Super. Ct. (1989) 209 Cal.App.3d 1266, 1272 [Writ relief, if it were
granted at the drop of a hat, would interfere with an orderly administration
of justice at the trial and appellate levels.].) The burden is on the
petitioner to demonstrate to the court that:
(1) the issue tendered in the writ petition is of
widespread interest or presents a significant and novel
constitutional issue; (2) the trial courts order deprived
petitioner of an opportunity to present a substantial
portion of his cause of action; (3) conflicting trial court
interpretations of the law require a resolution of the
conflict; (4) the trial courts order is both clearly
erroneous as a matter of law and substantially
prejudices petitioners case; (5) the party seeking the
writ lacks an adequate means, such as a direct appeal,
by which to attain relief; and (6) the petitioner will
suffer harm or prejudice in a manner that cannot be
corrected on appeal. (Omaha Indemnity Co., supra,
209 Cal.App.3d at 1273-1274 [internal citations
omitted].)
Unless the above-referenced criteria are met, the appellate court
should properly determine that, because a writ of mandate requires as a
prerequisite that there be no plain, speedy, and adequate remedy at law
available (People v. Mena (2012) 54 Cal.4th 146, 153), the petition should
be summarily denied. (See, Langford v. Superior Court (1987) 43 Cal.3d
21, 27 [summary denial of petition improper where no plain, speedy and
adequate remedy was available].)


13

In considering the merits of the trial court decisions, as opposed to
whether the petition should be granted consideration, the appellate court
(whether by writ review or by appeal) applies a two-part standard. When
purely legal determinations, or determinations based on undisputed facts,
are involved, the court reviews the trial court decision de novo. (Donaldson
v. Department of Real Estate (2005) 134 Cal.App.4th 948, 954.) When,
however, factual determinations are involved, the trier of facts is given
substantial deference and the trial courts determinations will be upheld
unless there was an abuse of discretion. (People v. Smith (2005) 37 Cal.4th
733, 739; County of San Joaquin v. State Water Resources Control Bd.
(1997) 54 Cal.App.4th 1144, 1152-1153.)
ARGUMENT
A. THE WRIT PETITION SHOULD BE SUMMARILY DENIED.
1. PETITIONERS HAVE AN ADEQUATE REMEDY TO
THE J UDGMENT IN THE VALIDATION ACTION BY
APPEAL.
In order for an extraordinary writ petition to be considered by the
Court, Petitioners must demonstrate that they have no plain, speedy, and
adequate remedy in the ordinary course of law. (Western States Petroleum
Assn. v. Superior Court (WSPA) (1995) 9 Cal.4th 559, 566 fn.1.)
Ordinarily, when a final judgment has already been entered in a case, an
appeal is considered an adequate remedy for any error in the judgment.
(Baeza v. Superior Court (2011) 201 Cal.App.4th 1214, 1221.)


14

When the petitioner may immediately appeal, his
remedy is considered adequate and writ relief is
precluded, unless the petitioner "can show some
special reason why it is rendered inadequate by the
particular circumstances of his case. (Id.)
Here, Petitioners argue that an appeal, may take years to resolve
and incur the exorbitant costs, fiscal and otherwise, that will attend the
delays (Petition at p.8 26.) Petitioners ignore the fact that Code of
Civil Procedure 867 requires that:
Actions brought pursuant to this chapter shall be given
preference over all other civil actions before the court
in the matter of setting the same for hearing or trial,
and in hearing the same, to the end that such actions
shall be speedily heard and determined.
Given this mandate, and the provision of California Rules of Court,
Rule 1.10, subd (c) [allowing shortening of time, unless otherwise provided
by law, within which a party must perform any act under the rules], there is
no reason why pursuing an appeal in the ordinary course would not be a
plain, speedy, and adequate remedy. (See, e.g., Blue,, supra, 137
Cal.App.4th at 1139 fn 7 [court granted expedited appellate review of
validation judgment].)
a. Requiring an appeal of the validation action would
not cause any irreparable harm to petitioners.
Further, Petitioners cannot point to any irreparable harm that would
occur if they were to pursue such an expedited appeal. Petitioners
themselves admitted at the hearing in the Validation action that the states
spring bond sales would occur between February and April, and that a


15

validation judgment was necessary before preparations for the bond sale
could occur. (1 HSR 103.) At this point, it being February already and
assuming that a determination by this court ordering entry of a validation
judgment would require briefing by the parties, that determination would be
well over a month away, and it would be practically if not literally
impossible for the bonds to be sold in the spring bond sale. In short, to use
a perhaps not inappropriate metaphor, that train has already left the station
and cannot serve as a basis for urgency.
Petitioners also argue that the short timeframe available to expend
the federal grant funds requires that the Court reverse the trial court
decisions so that bond funds will be available to provide a required match
to the federal funds. (Petition at p.35.) While the American Recovery and
Reinvestment Act requires that federal funds granted under that act be spent
by 2017, it places no similar deadline on the expenditure of state matching
funds. Indeed, the most recent Grant/Cooperative Agreement between the
Authority and the Federal Railroad Administration (36 HSR 9445 et seq.
[tab 445]) explicitly allows a tapered match, where expenditure of federal
funds precedes expenditure of state matching funds. (See also, 13 HSR
3333:3-5 [Petitioners acknowledge that federal grant funds may be spent
prior to any expenditure of state bond funds].)
It should also be noted that the delay in seeking to access bond funds
has been a delay of Petitioners own choosing. They could have sought


16

authorization to issue bonds at any point after the voters approval of
Proposition 1A. As Petitioners note, there is nothing that requires that
bonds be issued at any particular time once issuance is authorized.
(Petition at 23.)
Petitioners also argue that the trial courts rulings have galvanized
political opposition to the high-speed rail project. (Petition at pp.35-36.)
Of course, neither the trial court nor RPI have control over the political
repercussions of litigation. In a democracy, it is not the role of the courts to
try to control, or even shape, the tenor of political debates. That arena
belongs to the other two branches of government. Certainly, it would be
highly improper for the Court to rule in this case based on political
considerations. (See, e.g., People v. Prince (2007) 40 Cal.4th 1179, 1299;
People v. Avila (2006) 38 Cal.4th 491, 615 [appellate consideration of
death sentence review is not impermissibly influenced by political
considerations]
b. There is no pressing public interest that could not
be addressed through an appeal.
Petitioners also argue that to accept the trial courts judgment would
mean having to initiate a new validation action. (Petition at p. 9 27.)
Petitioners argue that the trial court decision has cast doubt upon the
procedures by which agencies may authorize and validate general
obligation bonds (Id.) If Petitioners mean they need to worry about


17

whether they ought to place some evidence before the Committee in order
to justify the bond sale authorization, this seems a trivial concern.
In the context of other validation proceedings, it has long been
understood that validation is not a rubber stamp, and that there must be at
least some evidence in the record to support the decision whose validation
is sought. (See, e.g., Boelts v. City of Lake Forest (2005) 127 Cal.App.4th
116, 120 [lack of evidence in the record supporting agencys conclusion
that proposed redevelopment area was blighted required entry of judgment
invalidating redevelopment plan].) If Petitioners (and others) are unable to
come up with any evidence supporting authorization of bond issuance, then
perhaps the conclusion should be that the issuance not be authorized; not
that the law be reinterpreted such that the evidentiary requirement is thrust
aside. In any case, such a major change in public policy would be better
dealt with through the standard appellate process.
2. THE ISSUES IN THE TOS CASE WOULD NOT BE
MOOTED BY COMPLIANCE WITH THE WRIT.
With regard to the trial courts order and writ of mandate in the Tos
Case, Petitioners argue that unless the Court accepts the Petition and orders
rescission of the order and writ, the Authority will be forced to comply with
the writ, and that, in turn, would render the underlying issues moot and not
susceptible to appeal once judgment is entered. (Petition at p. 11 32.) As
had already been explained to the trial court by Tos Plaintiffs and was


18

presumably accepted by that court (1 HSR 281-282 [tab 12]), this is not the
case.
Petitioners had expressed concern to the trial court that compliance
with a writ of mandate ordering rescission of the Authoritys Funding Plan
would moot any later attempt to appeal the trial courts ruling. (1 HSR 279-
289 [tab 11]) They express the same concern here. (Petition at p. 11 32,
47-48.)
Petitioners base their concern on a series of cases where a court had
issued an order mandating a particular action, and the agencys subsequent
compliance with the order by taking that action mooted the appeal. In each
case, compliance with the order fully resolved the controversy that had
engendered the lawsuit without the prospect of its recurrence, leaving
nothing to be appealed.
Thus, in MHC Operating Limited Partnership v. City of San Jose
(2003) 106 Cal.App.4
th
204, 214, the trial court had issued a writ ordering
the respondent city to reconsider the petitioners application for a rent
increase under the citys rent control ordinance. The court of appeal held
that the city, having completed its reconsideration of the application in
compliance with the writ, could no longer seek to avoid the reconsideration
through an appeal.
Similarly, in Building a Better Redondo, Inc. v. City of Redondo
Beach (2012) 203 Cal.App.4
th
852, 865-866, the trial court had issued a


19

writ requiring the city to place a proposal for a local coastal program on the
ballot. Again, the city complied with the writ by placing the measure on
the ballot. Having done so, nothing was left for the court of appeal to
address in the appeal.
In each of these cases, the agency was ordered to take the positive
action that had been sought by the plaintiff. Once that action was
completed, the plaintiffs concerns had been fully addressed. A reversal on
appeal could not unring the bell. Further, these were not situations where
plaintiffs complaint could be predicted to recur. Thus the appeal could
accomplish no useful purpose and was therefore moot.
a. Compliance with the writ would not moot an
appeal because the situation involved in this case is
likely to recur.
The situation here is quite different. It is much more similar to that
in Los Angeles Internat. Charter High School v. Los Angeles Unified
School Dist. (LAICH) (2012) 209 Cal.App.4th 1348. In that case, the
plaintiff had submitted a request to the defendant district for use of district
facilities during a specific school year. (Id. at 1352.) The district denied
the request and the plaintiff filed a petition for traditional mandamus,
asserting that the district had a duty under state law to provide facilities.
The trial court granted the writ and the district did not appeal. (Id. at 1353.)
In its return on the writ, the district asserted that it had complied
with the writ by providing facilities at a high school within the district. The


20

plaintiff contested the return, arguing that the offered facilities were
inadequate. The trial court nonetheless discharged the writ. The plaintiff
timely appealed from the discharge. (Id.)
In the court of appeal, the district asserted that the appeal was moot,
because the school year for which facilities had been requested had ended
more than a year earlier. (Id. at 1354.) The court disagreed. It noted that,
an exception to the mootness doctrine is the distinct possibility that the
controversy between the parties may recur. (Id.) The court went on to
note that the plaintiff schools request could be expected to recur on an
annual basis, and that under the exception, the appeal was not moot. (Id.)
The situation here is similar. The trial courts writ requires the
Authority to rescind its approval of its 2011 Funding Plan for an Initial
Operating Segment of the high-speed rail system. However, unlike the
cases presented by the Petitioner, but like LAICH, supra, mere rescission of
the Funding Plan would not end the controversy. Assuming the Authority
still wished to construct that segment (or, for that matter, a different
Corridor or Usable Segment thereof), it would have to adopt a new Funding
Plan (or readopt its prior plan) making recurrence of the controversy likely.
b. Compliance with the writ would not moot an
appeal because absent an appeal the trial courts
ruling would have continuing effect through res
judicata and collateral estoppel.
Further, in the absence of an appeal, the trial courts ruling would
continue to affect the Authoritys future decision-making, an effect that a


21

successful appeal would reverse. The trial courts decision, absent an
appeal, would prohibit the Authority from behaving similarly in future
situations under either res judicata (if the Authority attempted to re-adopt
the same Funding Plan) or collateral estoppel (if the same issue arose in the
context of a different Funding Plan or with different plaintiffs). (See,
Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828-830 [general
discussion of the application of collateral estoppel].) Thus, even after the
Authoritys compliance with the writ of mandate was complete, a
successful appeal of the trial courts order could still affect future actions,
and the appeal would therefore not be moot. (See, e.g., Simmons v. Ware
(2013) 213 Cal.App.4th 1035, 1046 [prospect of future application of
collateral estoppel against appellant meant appeal was not moot]; Long
Beach Lesbian & Gay Pride, Inc. v. City of Long Beach (1993) 14
Cal.App.4th 312, 328 [plaintiffs appeal of adverse rulings on portions of
an otherwise favorable judgment was not moot because, in future litigation
against the city on the same subject, those issues could arise again but their
litigation be precluded by collateral estoppel].)
3. PETITIONERS WILLFUL DELAY OF THE TRIAL
COURT PROCEEDINGS PRECLUDES THEM FROM
ASSERTING THE NEED FOR SPEED AS A BASIS FOR
THIS WRIT PROCEEDING.
It is quite ironic that Petitioners now worry that delay in pursuing an
appeal in these two cases jeopardizes their ability to construct a high-speed


22

rail system. The Tos Case was originally filed in November 2011, and the
first amended complaint filed a month later. Petitioners demurrer and the
need to file a second amended complaint delayed the proceedings for
another six months. Their unwillingness to allow a trial on the Declaratory
Relief and Code of Civil Procedure 526a action to move forward and
continued insistence that the entire case be heard as a writ proceeding based
on an administrative record delayed the case for another six months, and
even now continues to add to the delay.
After the Validation Action was filed, Petitioners sought to have
these two cases consolidated (13 HSR tabs 225-233; 14 HSR tabs 242, 244,
245, 258-260), even though they have little in common, and only relented
when the Tos Plaintiffs agreed to not only dismiss the one paragraph in the
complaint that referred to bond issuance, but also to stipulate to addressing
any issues involving the issuance or validity of bonds solely through the
Validation action. (13 HSR 3398 et seq. [tab 228].)
In short, Petitioners dilatory tactics have delayed these cases
resolution for well over a year. Now, however, they proclaim that time is
of the essence, and even an expedited appeal process for the Validation
action is not fast enough. As was stated in Tos Plaintiffs letter to the trial
court, If defendants now find themselves boxed in this is a box of
their own making. This is but a variant of the equitable maxim, No one


23

can take advantage of his own wrong. (Civil Code 3517; See, e.g.,
People v. Giles (2007) 40 Cal.4th 833, 848.)
4. THE IRREPARABLE HARM THAT PETITIONERS
COMPLAIN OF IS ILLUSORY.
Petitioners complain that in the absence of relief by this Court
(originally by the Supreme Court), they will suffer irreparable harm. Some
of that irreparable harm has already been addressed in this opposition and
found wanting. What about the rest?
a. Petitioners have shown no irreparable harm from a
possible GAO investigation or introduction of
federal legislation.
Petitioners complain (Petition, p.10 31) that the two trial court
rulings have directly resulted in an investigation by the Government
Accountability Office (GAO) and introduction of legislation intended to
cut off federal grant funds until sufficient non-federal funds are available.
Neither claim suffices to show irreparable harm
10
.
Petitioners have asked the Court to take judicial notice of a letter
from Congressmen Tom Latham and J eff Denham asking that the GAO
address the following questions regarding the Authoritys compliance
with its grant agreements and the effect of the California litigation on those
grants. This is quite different from Congress itself opening a Congressional

10
In fact, the two documents have no relevance to the Petition or its
appropriateness, and the request for judicial notice should therefore be
denied. In the event this Court asserts jurisdiction, RPI will file an
opposition to Petitioners Motion for J udicial Notice (styled as a request for
judicial notice).


24

investigation of the Authority, and the letter does not indicate that such an
investigation has been authorized. Even so, assuming Petitioners have
nothing to hide, what irreparable harm flows from the mere initiation of an
congressional investigation per se?
As for the legislation introduced by Congressman Denham and
others, literally thousands of bills are introduced in Congress each session.
Very few of them are actually enacted. The mere introduction of a bill
cannot be considered irreparable harm; in fact, it can hardly be considered
any harm at all.
11

B. THE TRIAL COURTS DETERMINATIONS SHOULD BE
UPHELD ON THEIR MERITS.
In the interest of not taking the Courts time unnecessarily, RPI will
keep their discussion of the merits of the two cases to a minimum, reserving
in-depth discussion to such time as when appellate review on the merits is
actually at issue. This brief summary only serves to outline the major
issues involved and explain why Petitioners arguments against the trial
courts decisions are groundless.

11
The writ petition also references a number of newspaper articles
concerning the two trial court decisions, presumably as additional evidence
supporting irreparable harm. Such newspaper articles are hearsay evidence
(Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 83) that
is not admissible and RPI hereby object to that evidence and ask that it be
stricken from the Petition.


25

1. THE TRIAL COURTS J UDGMENT IN THE
VALIDATION ACTION WAS PROPER.
a. Judicial review of the committees decision to
authorize bond issuance was proper.
Petitioners start with the astonishing assertion that the courts have no
business conducting judicial review of the propriety of the Committees
action in authorizing the issuance of $8.5 billion in Proposition 1A general
obligation bonds. (Petition p. 28.) Petitioners are essentially saying that
the Committees action was even less than ministerial more like an
automatic rubber stamp, because even a ministerial action can be
challenged based on the failure to properly perform a mandatory duty. (In
re C.F. (2011) 198 Cal.App.4th 454, 465.)
Petitioners quote from Boelts, supra, 127 Cal.App.4
th
116 to the
effect that determination of whether an act is necessary or desirable is
probably so elastic as not to impose any substantive requirements
[emphasis added] and that such a determination is largely immune from
judicial review. [emphasis added] This may be so, but just because a
requirement is probably or largely characterized in a certain way does
not mean it is invariably immune to judicial review. After all, the trial
courts ruling acknowledged that all that was required is that there be
evidence in the record to support the committees determination. (1 HSR
25:4-8 [tab 1].) There could hardly be a lower threshold. The trial court
did not even demand that the evidence be substantial. Unfortunately, the


26

Authority and the Committee, whether through negligence, ignorance, or
arrogance, did not have any evidence in the record to support the
determination. This lapse is especially egregious when the project involved
is likely to be the largest and most expensive public works project in
Californias history. To say the least, this is not a common situation, but
judicial review must be available to address it on the rare occasion that it
occurs. Otherwise, as the trial court noted, there would be no way to
protect against an arbitrary or capricious action. (Id.; see also, 1 HSR
122:2-27 [the court asks whether flipping a coin would be an appropriate
basis for the decision; counsel for Petitioners replies yes].)
Petitioners cite to City of Monrovia v. Black (1928) 88 Cal.App. 686
as support for their position, but it addresses a different point. City of
Monrovia stands for the proposition that a validation determination does
not require formal findings in its support. Yet the trial court here was not
complaining about an absence of findings; the problem was an absolute
absence of evidence something quite different. Nothing in Petitioners
citation indicates whether there was evidence to support the determination;
only that there were no findings. It is axiomatic that cases are not
authority for propositions not considered. (McWilliams v. City of Long
Beach (2013) 56 Cal.4th 613, 626.)


27

b. The trial courts judgment in the Validation Matter
was proper, based on the evidence before it.
Given that judicial review of the Committees determination was
proper, and that, by Petitioners own admission, the Committee, in open
session, had before it only the Authoritys bare resolution requesting bond
issuance and the two proposed resolution it intended to adopt, the trial court
had no choice but to conclude there was no evidence to support its
determination about whether or not it was necessary or desirable to
authorize the bond issuance
12
.
2. THE TRIAL COURTS RULING IN THE TOS CASE WAS
PROPER.
a. The provisions of the Funding Plan are enforceable
by the courts, because they were promises made to
the voters by the bond measure.
In the Tos Case as well, Petitioners take the position that the
Authoritys approval of its Funding Plan is not subject to judicial review.
(Petition at p. 36.) According to Petitioners, the Funding Plan was intended
solely for the benefit of the Legislature, and it, and it alone, was entitled to
judge its sufficiency. That judgment, according to Petitioners, was

12
Petitioners point to the possibility that evidence was presented in closed
session that might have supported the authorization. (Petition at pp.33-35.)
Yet the closed session was not called to consider bond issuance, but
potential litigation. Considering evidence supporting bond issuance
would have been a violation of Californias open meeting laws. Further, if
evidence had been presented, it was Petitioners burden to present that
evidence to the court, in camera if necessary. Having failed to do so,
Petitioners cannot now claim it exists. (See, WSPA, supra,.9 Cal.4
th
at
573.)


28

determined by whether the appropriation was approved. If it was, the
Funding Plan passed muster; if not, it failed.
Petitioners position ignores, however, the fact that the requirements
for the Funding Plan were placed before the voters in the ballot measure.
Not all of AB 3032, the legislation that created Proposition 1A, became part
of the ballot measure. If the Funding Plans requirements were intended
solely for the Legislatures benefit, there was no reason why it needed to be
placed before the voters and approved by them. The conclusion therefore
must be that these provisions were included for the benefit of the voters, as
well as the Legislature. Indeed, the analysis in the Voters Handbook, as
well as the ballot argument in favor of the measure, both trumpeted to the
voters the financial protections that would be provided by the Funding Plan.
(20 HSR 5125, 5126.) Thus the promises of specific requirements in the
Funding Plan were made to the voters, and as with any promise made to the
voters in a bond measure, are enforceable through judicial review.
(OFarrell, supra, 189 Cal. at 348; Shaw, supra, 175 Cal.App.4
th
at 595-
596.) To accept Petitioners arguments about the unaccountability of the
Authority would be to set a very dangerous precedent. As was said many
years ago in Jenkins v. Williams (3
rd
Dist, 1910) 14 Cal.App.89 in a similar
context:


29

It seems to us that the views herein expressed are
consistent with the letter and spirit of the statute, and
that the construction contended for by the plaintiffs
would open the door to possible, if not probable,
dangerous abuse of power, and would take from the
vote of the people all its significance as well as defeat
its purpose. (Id. at 98.)
b. The Funding Plan violated the plain language of the
bond measure.
As with the Validation Action; once judicial review is allowed, it is
obvious the Authoritys action in approving the Funding Plan was, as the
trial court found, an abuse of discretion.
Section 2704.08(c)(2) requires that a Funding Plan for a Corridor or
Usable Segment include a series of statements, identifications, or
certifications. Among these are: 1) disclosure of the full cost of
constructing the Corridor or Usable Segment; 2) the sources of funds that
are intended to be invested in building the Corridor or Usable Segment; 3) a
certification that the Corridor or Usable Segment can be completed as
proposed in the Funding Plan; 4) a certification that the Corridor or Usable
Segment, when completed, would be suitable and ready for high-speed train
operation; and 5) that the Authority had completed all project-level
environmental clearances necessary to begin construction of the Corridor or
Usable Segment. The Authoritys Funding Plan, however, failed to comply
with the plain language of these requirements.
While 2704.08(c)(2)(D) required identifying the source of all funds
to be invested in constructing the Corridor or Usable Segment, the


30

Authoritys Funding Plan only identified the source of funds to be used to
construct the ICS 130 miles instead of the 300 miles in the Authoritys
identified Usable Segment. (20 HSR 5185-5186.) Further, the total of
identified funds was only roughly $6 billion (20 HSR 5185), while the cost
of the full Usable Segment (required by subsection (c)(2)(C)) was identified
as $27 to $33 billion (depending on whether a northern or southern segment
was built). (20 HSR 5183-5184.) In either case, the unfunded gap was
huge, making the certification that the segment could be completed as
proposed (2704.08(c)(2)(G)) meaningless. (20 HSR 5191.)
While 2704.08(c)(2)(K) required that the Authority certify that it
had completed all project-level environmental clearances necessary to
begin construction of the Usable Segment, the Authoritys Funding Plan
certified instead that the Authority will have completed all necessary
clearances before it begins construction. (20 HSR 5192.)
c. The Authoritys violations of the bond measures
direct mandates required rescission of the Funding
Plan.
The trial court was not content with simply ordering rescission of the
illegal Funding Plan. It insisted that rescission would only be appropriate if
it would have real and practical effects. (1 HSR 87:5-7.) It therefore
ordered supplemental briefing on that issue. (Id. at 88.)
Based on the supplemental briefing, the trial court concluded that,
contrary to Petitioners assertion, approval of a Funding Plan under


31

2704.08(d), required before bond proceeds could be committed or
expended on construction, required the prior preparation of an adequate
Funding Plan under subsection (c) of that section. It came to this
conclusion taking into account the language of the measure itself, as well as
the language of the analysis contained in the Voter Information Guide,
which would have been read and relied upon by voters considering the
bond measure. (See, 1 HSR 91-92 [trial courts explanation of its
reasoning].)
The trial court therefore concluded that rescission of the Authoritys
approval of the subsection (c) Funding Plan would have real and practical
effect and ordered issuance of a writ of mandate ordering that rescission.
The trial courts action was entirely appropriate, and indeed required, given
the Authoritys noncompliance with the bond measures mandatory
requirements.
CONCLUSION
While there are unquestionable appealable issues in both the
Validation Action and the Tos Case, the appropriate way for those issues to
make their way to this Court is through the normal, orderly, appellate
process, not through the filing of a hurried writ petition. Petitioners have
not justified bypassing the normal process to reach this Court (or the
Supreme Court) by taking the express lane of an extraordinary writ
petition. For all of the above reasons, RPI respectfully request that the
Court summarily deny the Petition.
Dated:
Respectfully submitted,
Michael J Brady
Stuart M. Flashman
Attorneys for Real Parties in Interest
John Tos, Aaron Fukuda, and County of
Kings
Mark L. Nations, County Counsel
Nicole M. Misner, Deputy County
Counsel
Attorneys for Real Party in Interest
County of Kern
B Y : 4 4 1 ~
... tuart. Flashman
32
CERTIFICATE OF COMPLIANCE
[CRC 8.204(c)(1)]
Pursuant to California Rules of Court, rule 8.204( c)( 1), I, Stuart
Flashman, certify that this Preliminary Opposition contains 7553 words,
including footnotes, as determined by the word count function of my word
processor, Microsoft Word 2002, and is printed in a 13-point typeface.
Dated: February 3, 2014
~ ~
art . ashtliari
Civ. No. C075668




CALIFORNIA COURT OF APPEAL
THIRD APPELLATE DISTRICT

CALIFORNIA HIGH-SPEED RAIL AUTHORITY et al.
Petitioners
v.
THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF
SACRAMENTO
Respondent
JOHN TOS, AARON FUKUDA, COUNTY OF KINGS,
HOWARD JARVIS TAXPAYERS ASSOCIATION, COUNTY
OF KERN, FIRST FREEWILL BAPTIST CHURCH, EUGENE
VOILAND, CITIZENS FOR CALIFORNIA HIGH-SPEED
RAIL ACCOUNTABILITY, KINGS COUNTY WATER
DISTRICT, and UNION PACIFIC FAILROAD COMPANY,
Real Parties in Interest
Sacramento County Superior Court Case Number 34-2011-0113919-CU-
MC-GDS and 34-2013-00140689-CU-MC-GDS; Department 31, Hon.
Michael P. Kenny, J udge. Tel.: 916-874-6353

SUPPLEMENTAL APPENDIX OF EXHIBITS

Stuart M. Flashman, SBN 148396
Law Offices of Stuart M.
Flashman
5626 Ocean View Drive
Oakland, CA 94618-1533
Telephone and fax: (510) 652-
5373
e-mail: [email protected]
Michael J. Brady, SBN 40693
1001 Marshall Street, Ste 500
Redwood City, CA 94063-
2052
Telephone: (650) 364-8200
Facsimile: (650) 780-1701
e- mail: [email protected]
Theresa A. Goldner, County
Counsel SBN 101838
Nicole M. Misner, Dep.Cty.
Counsel SBN 188076
Kern Cty Admin. Ctr.
1115 Truxton Ave. 4
th
Fl.
Bakersfield, CA 93301
Tel. (661) 868-3800
Attorneys for Real Parties in Interest
JOHN TOS, AARON FUKUDA, AND COUNTY OF
KINGS
Attorney for Real Party in
Interest
COUNTY OF KERN





SUPPLEMENTARY APPENDIX OF EXHIBITS

TABLE OF CONTENTS

DESCRIPTION DATE CASE PAGE

Proof of Personal Service of Writ of Mandate 1/17/14 T TOS 1


-
Attorney or Party without Attorney: For Court Use Only
STUART M. FLASHMAN ESQ, Bar #148396
Law Offices Of: STUART M. FLASHMAN
5626 OCEAN VIEW DRIVE
Oakland, CA 94618
Telephone No: 510-504-0154 FAX No: 510-652-5373
Attorney for: Plaintiff
IRef No. or File No.:
Insert name 0/ Court, and Judicial District and Branch Court:
SACRAMENTO COUNTY SUPERIOR COURT
Plaintiff: JOHN TOS, et al.
Defendant: CALIFORNIA HIGH SPEED RAIL
PROOF OF SERVICE
/Hearin
g
Date:
I Time:
IDeptlDiv:
Case Number:
I
34-2011-00113919
I. At the time of service I was at least 18 years of age and not a party to this action.
2. 1 served copies of the -; PEREMPTORY WRIT OF MANDATE
CALIFORNIA HIGH-SPEED RAIL AUTHORITY 3. a. Party served:
b. Person served: S. WONG, BUSINESS SERVICES ASSISTANT/AUTHORIZED TO ACCEPT,
Asian, Male, 50 Years Old, Black Hair, Brown Eyes, 5 Feet 5 Inches, 160 Pounds
4. Address where the party was served:
5. I served the party:
OFFICE OF ATTORNEY GENERAL
455 GOLDEN GATE AYE., STE 11000
San Francisco, CA 94102
a. by personal service. I personally delivered the documents listed in item 2 to the party or person authorized to receive
process for the party (I) on: Fri., Jan. 17, 2014 (2) at: 12:21 PM
7. Person Who Served Papers:
a. A VELlNO MISERA Y
S
..
Sc R
903 Sneath Lane
Suite #227
Son BM.IftO,CA 9-4066
Services
Recoverable Cost Per CCP l033.5(a)(4)(B)
d. The Fee for Service was: $85.00
e. I am: (3) registered California process server
(i) Independent Contractor
(U) Registration No.: 2012-0001265
(iii) County: San Francisco
Phone 6!50. 794.1923
FAX 65O.989.41B2
(iv) Expiration Date: Wed, Nov. 12,2014
8. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct
Date: Fri, Jan. 17,1014
Judij:ial CQIIDcil Form
Rule :U54J.(a}&(ti) Kev January 1,2007
PROOF OF SERVICE
stjIa.81219
Submitted to trial
court as per local
rules on 1/23/14
TOS 1
PROOF OF SERVICE BY MAIL AND ELECTRONIC MAIL
I am a citizen of the United States and a resident of Alameda County. I am over the age
of eighteen years and not a party to the within above-titled action. My business address
is 5626 Ocean View Drive, Oakland, CA 94618-1533.
On February 3,2014, I served the within PRELIMINARY OPPOSITION on the parties
listed below by placing a true copies thereof enclosed in sealed envelopes with postage
thereon fully prepaid, in a US. mailbox at Oakland, California addressed as follows:
Stephanie Zook, Deputy Attorney General
California Attorney General
1300 I Street, Ste. 125
Sacramento, CA 95814
[email protected]
Raymond L. Carlson, Esq.
Griswold, LaSalle, Cobb, Dowd & Gin LLP
III East Seventh Street
Hanford, CA 93230
[email protected]
Tim Bittle
Howard Jarvis Taxpayers Foundation
921 11th Street, Ste. 1201
Sacramento, CA 95814
[email protected]
Blaine Green, Esq.
Pillsbury Winthrop Shaw Pittman LLP
Four Embarcadero Ctr., 22
nd
Fl.
P.O. Box 2824
San Francisco, CA 94126-2824
[email protected]
Nicole M. Misner, Deputy County Counsel
Office of the County Counsel
Kern County Administrative Ctr.
11IS Truxtun Ave., 4th Fl.
Bakersfield, CA 93301
[email protected]
Thomas P. Feher, Esq.
LeBeau & Thelen LLP
5001 E. Commercecenter Dr. #300
P.O. Box 12092
Bakersfield, CA 93309
[email protected]
Mark Harrison
First Free Will Baptist Church
2236 E. California Ave.
Bakersfield, CA 93307-2005
[email protected]
In additio:p., on the above-same day I served the above-same document on the above-
same Rarties by electronic delivery by attaching a copy of said document", converted to
"pdf' file format, to an e-mail sent to the above-same parties at the e-mau addresses
shown above.
I, Stuart M. Flashman, hereby declare under penalty of perjury under the laws of the State
of California that the foregoing is true and correct.
Executed at Oakland, California on February 3, 2014.


Stuart M. Flashman