In Roberson v. City of Rialto, No. E058187 (Cal. Ct. App. 4th Dist., May 21, 2014), the Fourth Appellate District affirmed the trial court’s judgment, upholding several project approvals for a new commercial retail center in the City of Rialto (City), including a Wal-Mart supercenter.  The appellate court denied Roberson’s petition for writ of administrative mandate, refusing to invalidate and set aside the project approvals on the basis of defective notice, because (1) Roberson did not demonstrate reversible error, and (2) res judicata barred the claim on appeal. 

The project at issue was a commercial retail center, anchored by a Wal-Mart Supercenter.  The planning commission recommended approval on May 28, 2008, and the City held two subsequent public hearings to adopt the project approvals on July 1 and 15, 2008.

Roberson’s petition alleged only that he was prejudiced by the City’s notice of the July 1, 2008, hearing, which failed to indicate that the Planning Commission had recommended that the City approve the project.  (Slip Op. at p. 5-6.)  While the court and parties agreed that the notice was defective,  the issue on appeal was whether the defective notice was prejudicial to Roberson, resulting in reversible error.

The appellate court affirmed denial of Roberson’s petition for two reasons.  First, Roberson failed to demonstrate reversible error.  Reversible error requires a finding of prejudice, substantial injury to the complaining party, and a probability of a different result absent error.  (Gov. Code, § 65010, subd. (b).)  In order to support a claim of error, the party claiming error must provide an adequate record on appeal.  (Slip Op. at p. 10 (citing In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498).)  In the absence of an adequate record, the judgment is presumed correct.  (Id.)  In this case, Roberson failed to provide an adequate record because the record on appeal did not include either the trial court’s tentative decision, or a copy of the hearing transcript.

In addition, the appellate court found Roberson failed to demonstrate  what comments he would have submitted opposing the project approval had he known about the recommendation to adopt the project approvals.  (Slip Op. at p. 10.)  Thus, there was no evidence in the record showing that the defective notice of hearing was prejudicial.

Second, the defective notice claim was barred by res judicata because Roberson was in privity with Rialto Citizens for Responsible Growth (Rialto Citizens), another group that litigated similar claims to conclusion. Res judicata bars litigation on a claim (1) that was raised in a prior litigation proceeding, (2) resulting in a final judgment on the merits, and (3) where the party or persons are in privity.  (Slip Op. at p. 15 (citing Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 799).)  The appellate court found that the defective notice claim in the Roberson case to be identical to that raised in Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899), and there was a judgment on the merits.  Additionally, the appellate court found Roberson to be in privity with Rialto Citizens because his “interests are so similar to a party’s interest that the latter was the former’s virtual representative in the earlier action.”  (Slip Op. at p. 17 [internal citations omitted].)  Roberson, like Rialto Citizens, sought to “vindicate a public interest” and both parties challenged the same project approval.  (Slip Op. at p. 19.)  Thus, the three requirements of res judicata are fulfilled and Roberson’s claim was barred.

Calendar-focused readers may still be reeling over the fact that the project was originally approved on July 15, 2008, Roberson filed his suit in October 2008, and the appellate court issued its opinion on May 21, 2014 (subsequently ordered published on June 17, 2014).  The court explained why it took nearly six years to resolve Roberson’s suit in the closing pages of its opinion, where it declined to dismiss the appeal and sanction Roberson’s attorney.  The court found that despite the problems with Roberson’s suit, reasonable attorneys could agree that Roberson had a right to file it because he had never been a member of Rialto Citizens and the City’s notice was indisputably defective.  The court further noted that real parties in interest shared responsibility for the delay in resolving the case because they agreed in April 2009 to stay entry of judgment on Roberson’s action until the Rialto Citizens case was final.

By Ryan Waterman ( and Shannon Morrissey.   Ms. Morrissey is a Law Clerk/Summer Associate with Stoel Rives LLP and is not currently licensed to practice law in California.