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FILEDUNTY
SAN MATEO CO
ALISON MADDEN
Petitioner-Intervenor, In Pro Per SEP 08 2021
PO Box 620650 Woodside CA 94062
650.270.0066; No Fax eye the ate Court
maddenprope mail.com
DEPUTY CLERK
ALEX YEUNG
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN MATEO — SOUTHERN DISTRICT
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FRANCESCA FAMBROUGH, CHRIS Case No. 17CIV05387
11 TAVENNER, NINA PESCHCKE-KOEDT,
EMILIO DIAZ, DAN SLANKER, DAWN Assigned for All Purposes to the
12 SLANKER, BRENDA SMITH, THUMPER
SMITH, Hon. Marie S. Weiner, Dept. 2
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Plaintiffs, JOINDER OF ALISON MADDEN
14 IN OPPOSITION OF PLAINTIFFS/
Vv. PETITIONER-INTERVENORS TO
15 CITY’S MOTION POR
CITY OF REDWOOD CITY,
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Defendant.
17 Trial Date: Sept. 17, 2021
Time: 9:00 a.m.
18 Dept.: 2
ALISON MADDEN, WILLIAM MICHAEL Judge: The Hon. Marie S. Weiner
19 FLEMING, EDWARD STANCIL, JEDRICK.
HUMPHRIES, ALBA LUCIA DIAZ,
20 JONATHAN REID, TINA REID, AND
JOHN CHAMBERS,
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Petitioner-Intervenors.
22
v.
23 SEP Sen 2:03
CITY OF REDWOOD CITY,
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Defendant.
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This is the Joinder of Petitioner-Intervenor Alison Madden (“PI Madden”), to the
26
27 Opposition filed today by the Thorsnes, Bartolotta & McGuirre, LLP law firm (“TBM”).
28 TBM represents each of the co-parties in this Action. PI Madden joins in the TBM
-1-
17CIV05387 PI MADDEN JOINDER TO PLAINTIFFS’ OPPOSITION TO CITY’S MOTION
Opposition, to the same extent and effect as if a signatory thereto. In addition to the Point &
Authorities therein, including all citations, PI Madden adds the following:
With respect to the permit case raised by the City, Allegretti & Company v. County of
Imperial, 138 Cal.App.4" 1261 (2006), PI Madden notes the following.
Here, there “was” a permit. City acknowledges it issued a revocable permit to the prior
operator, Docktown, Inc. (“DTI”), and DTI paid a yearly fee for use of the public trust tide and
submerged lands in Redwood Creek, to operate Docktown Marina.
DTI thereafter entered into multiple long-term leases with homeowners, in reliance on the
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permit, some of whom have lived at Docktown for decades (Mr. Diaz and Mr. Fleming). All the
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others have lived at Docktown for years (Ms. Madden and her son, and Ms. Peschcke-Koedt,
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among others), all without any interruption or interference. City knew at all times the residential
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nature and character of Docktown Marina, in addition to its commercial and recreational uses.
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15 Docktown was, and always has been, viewed as a community of Redwood City, with the
16 same mix of long-term homeowners, with some shorter-term occupant, as any other Redwood
17 City neighborhood. Although PI Madden does not represent any other Plaintiff, the examples are
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germane to her (PI Madden), establishing her own case.
19
Moreover, trial testimony demonstrated that a local grantee steps into the shoes of the
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State Lands Commission (“SLC”) with respect to granted lands. A local grantee is authorized
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and empowered to grant long-term leases, just the same as SLC. The Exhibits show that SLC
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enters into long-term leases for public trust lands, statewide, for any trust-consistent use (for
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land ‘not? legislatively granted in trust to a local grantee). A marina is a trust-consistent use.
24
The testimony established the presence of overnight liveaboards for safety and security is per-
25
mitted to support a trust-consistent use. All this was established by Mr. Boggiano’s testimony
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and each and every one of the SLC letters introduced by City and/or PI Madden or Plaintiffs.
27
Thus, the City was empowered to grant a long-term lease to DTI, and may do so
28 -2-
17CTV05387 PI MADDEN JOINDER TO PLAINTIFFS’ OPPOSITION TO CITY’S MOTION
presently to Plaintiffs. To be declining now to extend a permit or lease to Plaintiff
homeowners is the taking, as DTI walked away from its right to operate the marina, and the
City stepped into DTI’s shoes, with the same Plaintiff liveaboard homeowners in occupancy as
of the date of the takeover.
As referenced, although City could have granted a long-term lease, it actually
granted to DTI an open-ended revocable permit, and DTI paid an annual fee to the City for use
of public trust lands under that permit. This “revocable permit” clearly would have had the
same applicability of an implied covenant of good faith and fair dealing as any lease, permit or
other contract or agreement. Thus, the City could not just unilaterally revoke the permit
10 without good cause or absent a breach.
li Under either an open-ended permit for state public trust land, or a 100 year lease, the
12 usage of Docktown Marina to support homeownership is the functional equivalent of a
13 lifetime “fee simple” use. At least viewing a marina as similar to a mobile home lot, where the
14 home is owned, and the location is rented, is germane. In other words, a lease or permit for
15 Docktown Marina under SLC policies would enable DTI to operate Docktown Marina on
16 Redwood Creek for 100 years. It operated for over 50 years, and allowed homeownership the
17 entire time. Although the density may or may not have been trust-consistent, some residential
18 usage was trust consistent (for safety/security) and at present, the occupancy is trust-consistent
19 at present.
20 In addition, all of the above must be viewed with consideration of the equitable
21 doctrines of unclean hands, estoppel and waiver, and within the substantive doctrine of
22 detrimental reliance. These all militate to estop the State (SLC) and Redwood City, via its
23 Council or Port Dept., from enforcing a “zero tolerance” prohibition of residential use, which
use it allowed and enabled for decades. Especially on a short time frame that the State (SLC)
25 never demanded.
26 All of the Plaintiffs relied on the City’s permit to DTI in making their decisions to take
27 jobs and move cross country (Slankers), to move their family to Docktown (Madden), and to
28 . decide to begin their home and lives together (the Reids), among each Plaintiff's specific
17CI1V05387 PI MADDEN JOINDER TO PLAINTIFFS’ OPPOSITION TO CITY’S MOTION
stories. The City knew of, and enabled and allowed, residential use, since the 1960s on
Redwood Creek. Again, the proven conduct and basis of others establishes the issue overall.
City is making a decision now, to fully close and remove Docktown Marina now, for
“more public access”. Although City is clearly trying to dodge admitting it is closing
Docktown, or has closed Docktown, its intent is clear from its conduct. It has not allowed in
any new recreational or commercial uses for nearly a decade now, and has ceased operating
Docktown Marina as a going concern.
PI Madden respectfully requests that this Court deny City’s Motion.
Dated: Sept. 3, 2021
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wl ree
Alison Madden
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17CIV05387 PI MADDEN JOINDER TO PLAINTIFFS’ OPPOSITION TO CITY’S MOTION
PROOF OF SERVICE
C.C.P. §1013(a), C.R.C. 2003(3), 2005(1)
STATE OF CALIFORNIA, COUNTY OF SAN DIEGO
Ireside in the County of San Mateo, State of California. I am over the age of eighteen
ie
(18) and no t a party to the within action; my address is 1548 Maple, Redwood City, CA 94063.
On
UN) UN ofpoSiTIO N OF PLAY
feo PES/ JE TPT ANE
¥14202/ served the document identified on the parties be! low by: e1
AINE
copy thereof as
MAD) DENS
ssed as below:
OTION T
PETITIONER-INTERVENOR TM dary
= aD
Y UD CRY
AG ND DU OF ND iT SU
THEREOF
Michelle Marchetta Kenyon Mary Eleonor Ignacio
mkenyon@bwslaw.com City of Redwood City
Kevin Siegel 1017 Middlefield Road
ksiegel@bwslaw.com Redwood City, CA 94063
10 :
Albert Tong acio edwoodcit
ll atong@bwslaw.com
Maxwell Blum
12 mblum@pbwslaw.com Karen Frostrom
BURKE, WILLIAMS & SORENSON LLP Audrey Kennedy
13 1901 Harrison Street, Suite 900 frostrom@tbmlawyers.com;
Oakland, CA 94612-3501 kenned) tbmla ers.com
14
15 Oo BY MAIL: I am “readily familiar” with the firm’s practice of collection and processing
correspondence for mailing. Under that practice, it would be deposited with the U. S. Postal
Service on the same day with postage thereon fully prepaid at San Diego, California, in the
16
ordinary course of business. I am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one day after
17 date of deposit for mailing in affidavit.
18 BY E-MAIL: Based on a court order or an agreement of the parties to accept service by e-
mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail
19 addresses as shown on the attached service list.
20 I did not receive, within a reasonable time after the transmission, any electronic message or
other indication that the transmission was unsuccessful.
21
[State] I declare under penalty of perjury under the laws of the State of California that
22 the above is true and correct.
23
[Federal] I declare that I am employed
in the office of a member of the bar of this court
at whose direction the service was made.
24
Executed ontpltd7, 2021 at Redwood City, California.
25
26
/s/Colin Lehr
27 Colin Lehr
28
1414477¥1
&
PLAINTIFF-INTERVENOR UDE}FPEWCRAD
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FILEDUNTY SAN MATEO CO ALISON MADDEN Petitioner-Intervenor, In Pro Per SEP 08 2021 PO Box 620650 Woodside CA 94062 650.270.0066; No Fax eye the ate Court maddenprope mail.com DEPUTY CLERK ALEX YEUNG SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN MATEO — SOUTHERN DISTRICT 10 FRANCESCA FAMBROUGH, CHRIS Case No. 17CIV05387 11 TAVENNER, NINA PESCHCKE-KOEDT, EMILIO DIAZ, DAN SLANKER, DAWN Assigned for All Purposes to the 12 SLANKER, BRENDA SMITH, THUMPER SMITH, Hon. Marie S. Weiner, Dept. 2 13 Plaintiffs, JOINDER OF ALISON MADDEN 14 IN OPPOSITION OF PLAINTIFFS/ Vv. PETITIONER-INTERVENORS TO 15 CITY’S MOTION POR CITY OF REDWOOD CITY, 16 Defendant. 17 Trial Date: Sept. 17, 2021 Time: 9:00 a.m. 18 Dept.: 2 ALISON MADDEN, WILLIAM MICHAEL Judge: The Hon. Marie S. Weiner 19 FLEMING, EDWARD STANCIL, JEDRICK. HUMPHRIES, ALBA LUCIA DIAZ, 20 JONATHAN REID, TINA REID, AND JOHN CHAMBERS, 21 Petitioner-Intervenors. 22 v. 23 SEP Sen 2:03 CITY OF REDWOOD CITY, 24 Defendant. 25 This is the Joinder of Petitioner-Intervenor Alison Madden (“PI Madden”), to the 26 27 Opposition filed today by the Thorsnes, Bartolotta & McGuirre, LLP law firm (“TBM”). 28 TBM represents each of the co-parties in this Action. PI Madden joins in the TBM -1- 17CIV05387 PI MADDEN JOINDER TO PLAINTIFFS’ OPPOSITION TO CITY’S MOTION Opposition, to the same extent and effect as if a signatory thereto. In addition to the Point & Authorities therein, including all citations, PI Madden adds the following: With respect to the permit case raised by the City, Allegretti & Company v. County of Imperial, 138 Cal.App.4" 1261 (2006), PI Madden notes the following. Here, there “was” a permit. City acknowledges it issued a revocable permit to the prior operator, Docktown, Inc. (“DTI”), and DTI paid a yearly fee for use of the public trust tide and submerged lands in Redwood Creek, to operate Docktown Marina. DTI thereafter entered into multiple long-term leases with homeowners, in reliance on the 10 permit, some of whom have lived at Docktown for decades (Mr. Diaz and Mr. Fleming). All the 11 others have lived at Docktown for years (Ms. Madden and her son, and Ms. Peschcke-Koedt, 12 among others), all without any interruption or interference. City knew at all times the residential 13 nature and character of Docktown Marina, in addition to its commercial and recreational uses. 14 15 Docktown was, and always has been, viewed as a community of Redwood City, with the 16 same mix of long-term homeowners, with some shorter-term occupant, as any other Redwood 17 City neighborhood. Although PI Madden does not represent any other Plaintiff, the examples are 18 germane to her (PI Madden), establishing her own case. 19 Moreover, trial testimony demonstrated that a local grantee steps into the shoes of the 20 State Lands Commission (“SLC”) with respect to granted lands. A local grantee is authorized 21 and empowered to grant long-term leases, just the same as SLC. The Exhibits show that SLC 22 enters into long-term leases for public trust lands, statewide, for any trust-consistent use (for 23 land ‘not? legislatively granted in trust to a local grantee). A marina is a trust-consistent use. 24 The testimony established the presence of overnight liveaboards for safety and security is per- 25 mitted to support a trust-consistent use. All this was established by Mr. Boggiano’s testimony 26 and each and every one of the SLC letters introduced by City and/or PI Madden or Plaintiffs. 27 Thus, the City was empowered to grant a long-term lease to DTI, and may do so 28 -2- 17CTV05387 PI MADDEN JOINDER TO PLAINTIFFS’ OPPOSITION TO CITY’S MOTION presently to Plaintiffs. To be declining now to extend a permit or lease to Plaintiff homeowners is the taking, as DTI walked away from its right to operate the marina, and the City stepped into DTI’s shoes, with the same Plaintiff liveaboard homeowners in occupancy as of the date of the takeover. As referenced, although City could have granted a long-term lease, it actually granted to DTI an open-ended revocable permit, and DTI paid an annual fee to the City for use of public trust lands under that permit. This “revocable permit” clearly would have had the same applicability of an implied covenant of good faith and fair dealing as any lease, permit or other contract or agreement. Thus, the City could not just unilaterally revoke the permit 10 without good cause or absent a breach. li Under either an open-ended permit for state public trust land, or a 100 year lease, the 12 usage of Docktown Marina to support homeownership is the functional equivalent of a 13 lifetime “fee simple” use. At least viewing a marina as similar to a mobile home lot, where the 14 home is owned, and the location is rented, is germane. In other words, a lease or permit for 15 Docktown Marina under SLC policies would enable DTI to operate Docktown Marina on 16 Redwood Creek for 100 years. It operated for over 50 years, and allowed homeownership the 17 entire time. Although the density may or may not have been trust-consistent, some residential 18 usage was trust consistent (for safety/security) and at present, the occupancy is trust-consistent 19 at present. 20 In addition, all of the above must be viewed with consideration of the equitable 21 doctrines of unclean hands, estoppel and waiver, and within the substantive doctrine of 22 detrimental reliance. These all militate to estop the State (SLC) and Redwood City, via its 23 Council or Port Dept., from enforcing a “zero tolerance” prohibition of residential use, which use it allowed and enabled for decades. Especially on a short time frame that the State (SLC) 25 never demanded. 26 All of the Plaintiffs relied on the City’s permit to DTI in making their decisions to take 27 jobs and move cross country (Slankers), to move their family to Docktown (Madden), and to 28 . decide to begin their home and lives together (the Reids), among each Plaintiff's specific 17CI1V05387 PI MADDEN JOINDER TO PLAINTIFFS’ OPPOSITION TO CITY’S MOTION stories. The City knew of, and enabled and allowed, residential use, since the 1960s on Redwood Creek. Again, the proven conduct and basis of others establishes the issue overall. City is making a decision now, to fully close and remove Docktown Marina now, for “more public access”. Although City is clearly trying to dodge admitting it is closing Docktown, or has closed Docktown, its intent is clear from its conduct. It has not allowed in any new recreational or commercial uses for nearly a decade now, and has ceased operating Docktown Marina as a going concern. PI Madden respectfully requests that this Court deny City’s Motion. Dated: Sept. 3, 2021 10 lt 12 wl ree Alison Madden 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 17CIV05387 PI MADDEN JOINDER TO PLAINTIFFS’ OPPOSITION TO CITY’S MOTION PROOF OF SERVICE C.C.P. §1013(a), C.R.C. 2003(3), 2005(1) STATE OF CALIFORNIA, COUNTY OF SAN DIEGO Ireside in the County of San Mateo, State of California. I am over the age of eighteen ie (18) and no t a party to the within action; my address is 1548 Maple, Redwood City, CA 94063. On UN) UN ofpoSiTIO N OF PLAY feo PES/ JE TPT ANE ¥14202/ served the document identified on the parties be! low by: e1 AINE copy thereof as MAD) DENS ssed as below: OTION T PETITIONER-INTERVENOR TM dary = aD Y UD CRY AG ND DU OF ND iT SU THEREOF Michelle Marchetta Kenyon Mary Eleonor Ignacio mkenyon@bwslaw.com City of Redwood City Kevin Siegel 1017 Middlefield Road ksiegel@bwslaw.com Redwood City, CA 94063 10 : Albert Tong acio edwoodcit ll atong@bwslaw.com Maxwell Blum 12 mblum@pbwslaw.com Karen Frostrom BURKE, WILLIAMS & SORENSON LLP Audrey Kennedy 13 1901 Harrison Street, Suite 900 frostrom@tbmlawyers.com; Oakland, CA 94612-3501 kenned) tbmla ers.com 14 15 Oo BY MAIL: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U. S. Postal Service on the same day with postage thereon fully prepaid at San Diego, California, in the 16 ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after 17 date of deposit for mailing in affidavit. 18 BY E-MAIL: Based on a court order or an agreement of the parties to accept service by e- mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail 19 addresses as shown on the attached service list. 20 I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 21 [State] I declare under penalty of perjury under the laws of the State of California that 22 the above is true and correct. 23 [Federal] I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. 24 Executed ontpltd7, 2021 at Redwood City, California. 25 26 /s/Colin Lehr 27 Colin Lehr 28 1414477¥1 & PLAINTIFF-INTERVENOR UDE}FPEWCRAD