Lee Heidhues 2.15.2023
The People prevailed!!! The entitled motorists lost!!!!
In the dry anodyne world of legal writing the California Court of Appeal has sent a powerful message.
“On the court’s own motion” a three Justice panel in San Francisco has shut down the last gasp attempt by the entitle motorists to bring back cars to The Great Walkway and JFK Promenade.
The will of the voters in San Francisco, along with actions of the Board of Supervisors and The Mayor is now recognized and acknowledged. It is now the law. The environment where people can enjoy two small spaces of land without the disruptive influence of climate killing cars is a reality.
Advocates for the entitled motorists have spent hundreds of thousands at the ballot box and in the courts in pursuit of their selfish self interest to drive their cars anywhere, anytime, anyplace.
Proponents of the measure to return cars to JFK Promenade were primarily funded by the Fine Arts Museums of San Francisco. The FAMSF spent 200K to place Proposition I on the ballot. FAMSF spent nearly 800K in total pushing this measure. FAMSF was also a plaintiff in the now dismissed lawsuit.
BY THE COURT:
For the following reasons, this appeal is dismissed on the court’s own motion after briefing by the parties.
According to the appellate record, respondents closed a portion of San Francisco’s Great Highway to motor vehicle traffic in March 2020 to give the public a safe and socially-distanced recreation area during the COVID-19 pandemic. In August 2021, as pandemic-related restrictions eased, respondents modified the closure so it applied only on weekends (Friday noon to Monday 6 a.m.) and holidays. The closure was set to expire at the end of the COVID-19 state of emergency on February 28, 2023.
In December 2021, appellants filed a complaint against respondents, seeking a preliminary injunction on the ground that respondents lacked authority for the closure under Vehicle Code section 21101. Appellants also argued that respondents violated Vehicle Code section 21101.6 and San Francisco Park Code section 3.03. Appellants filed a motion for a preliminary injunction on those grounds, which the trial court denied in February 2022. Appellants brought the instant appeal challenging the denial.
In November 2022, while the appeal was pending, San Francisco voters rejected Proposition I, which had called for a reopening of the Great Highway. We thereafter asked the parties to state whether the election results or any other matter since the filing of the appeal rendered the appeal moot.
On December 2, 2022, respondents asserted that the appeal would likely become moot when the closure expired under its then-existing authority at the end of the state of emergency in February 2023 and pursuant to possible future legislation by the City of San Francisco. Appellants, after receiving two extensions to file their letter brief, argued in a letter dated December 23, 2022 that the appeal was not moot. We set the appeal for oral argument.
On January 23, 2023, respondents filed a motion for judicial notice of a new ordinance that now closes the Great Highway for a different reason – to improve a storm water infrastructure program. Respondents asserted that the appeal had therefore become moot. On January 26, 2023, we issued an order to show cause, acknowledging our receipt of respondents’ motion for judicial notice and informing the parties of our intent to grant the request for judicial notice and, on our own motion, to dismiss the appeal as moot.
We offered appellants seven days to show cause why the request for judicial notice should not be granted and/or why the appeal should not be dismissed, and we offered respondents three days after the filing and service of appellants’ letter brief to respond.
On February 2, 2023, appellants responded by letter brief. Appellants did not oppose the request for judicial notice but argued that the appeal was not moot “for the reasons set forth in their Dec. 23, 2023 Letter Brief.”
On February 6, 2023, respondents filed a letter brief explaining why the appeal is moot and should be dismissed.
Having considered the parties’ letter briefs, we grant the request for judicial notice and conclude the appeal is moot. Because the closure of the Great Highway is now based on the authority of the new ordinance, this court cannot provide any effectual relief in ruling on the appeal. (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574.) Even if we were to agree with appellants’ arguments on appeal, appellants have not demonstrated that such a ruling would preclude respondents from keeping the Great Highway closed for a different purpose under the new ordinance. Furthermore, the issues presented in the appeal turn largely on the scope of respondents’ authority in the context of the COVID-19 pandemic, and appellants have not shown that the issues are likely to repeat, or that there is otherwise a reasonable expectation that the allegedly wrongful conduct will be repeated, such that we should exercise our discretion to address them. (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 434.)
The appeal is dismissed. The matter is removed from the February 2023 oral argument calendar. Each party shall bear its own costs on appeal.