1

Filed 3/14/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

RUEGG & ELLSWORTH et al.,

Plaintiffs and Respondents,

v.

CITY OF BERKELEY et al.,

Defendants and Appellants,

CONFEDERATED VILLAGES of 

LISJAN et al., 

Interveners and Appellants.

 A164749

 (Alameda County

 Super. Ct. No. RG18930003)

The sole issue on this appeal is whether the trial court exceeded the 

scope of our remand instructions in Ruegg & Ellsworth v. City of Berkeley 

(2021) 63 Cal.App.5th 277 (Ruegg I). In that prior appeal, we reversed the 

trial court’s denial of a petition for writ of mandate by which developers 

sought to compel the City of Berkeley (City) to grant a permit they had 

applied for pursuant to Government Code1 section 65913.4, which provides 

for streamlined approval of certain affordable housing projects. Holding that 

denial of the permit violated section 65913.4, we remanded the case with 

directions for the trial court to grant the writ petition. 

1 Further statutory references will be to the Government Code unless 

otherwise specified.
2

On remand, in addition to granting the writ petition, the trial court 

found that denial of the permit application violated the Housing 

Accountability Act (HAA) (§ 65589.5) as well as section 65913.4. The 

developers’ writ petition had alleged violation of both statutes, but the trial 

court did not address the HAA issues in its first judgment and we found it 

unnecessary to address them in our Ruegg I opinion.

We conclude the trial court had jurisdiction to entertain and decide the 

HAA issues.2

BACKGROUND

The statutes at issue in this case are among the measures the 

California Legislature has adopted over the years in efforts to address the 

crisis of insufficient housing and, in particular, affordable housing. (Ruegg I, 

supra, 63 Cal.App.5th at pp. 295-297.) Section 65913.4 provides for 

streamlined, ministerial approval of affordable housing projects meeting 

specified requirements and conditions. (Id. at p. 286.) The HAA, in brief,

prohibits local agencies from disapproving a housing development project for 

very low, low- or moderate-income households without making specified 

written findings. (Id. at pp. 295-296; § 65589.5, subd. (d).)

In 2018, the City denied an application by Ruegg & Ellsworth and 

Frank Spenger Company (Ruegg) for ministerial approval of a mixed-use 

development pursuant to section 65913.4. (Ruegg I, supra, 63 Cal.App.5th at 

2 Ruegg and intervenors Confederated Villages of Lisjan (CVL) filed 

writ petitions challenging the trial court’s order requiring them to post a 

bond pursuant to section 65589.5, subdivision (m), which provides that a local 

agency appealing a judgment “shall post a bond, in an amount to be 

determined by the court, to the benefit of the plaintiff if the plaintiff is the 

project applicant.” In light of this opinion, the writ petitions are moot and 

will be dismissed by separate orders. 
3

pp. 292-293.)3 Ruegg challenged the denial with a petition for writ of 

mandate, alleging that it violated both section 65913.4 and the HAA. The 

Confederated Villages of Lisjan (CVL) intervened in the action. (Id. at p. 

294.)

The trial court found the City did not err in determining it was not 

required to approve the proposed project under section 65913.4 and denied 

Ruegg’s petition for writ of mandate on that basis, without reaching the HAA 

issues. (Ruegg I, supra, 63 Cal.App.5th at p. 294.) We disagreed and directed 

the trial court to grant the writ petition. Our disposition stated, “The 

judgment is reversed. The matter is remanded to the trial court with 

directions to grant the petition for writ of mandate.” (Id. at p. 329.) We 

additionally noted, “Our conclusion that the City's denial of appellants’ 

application for ministerial approval failed to comply with section 

65913.4 makes it unnecessary for us to address [appellant’s] additional 

contention that the City's denial violated the HAA.” (Id. at p. 329, fn. 40.)4

On remand, Ruegg argued that in addition to granting the writ 

requiring the City to issue the section 65913.4 permit, the trial court should 

decide the outstanding HAA issues. The City and CVL argued the court 

lacked jurisdiction to do so because deciding these issues would exceed our 

3 The application was for a mixed-use development at 1900 4th Street 

in Berkeley (Spenger’s parking lot). (Ruegg I, supra, 63 Cal.App.5th at pp. 

286-287.)

4 Our opinion inadvertently referred to “respondents’ and CVL’s 

additional contention that the City’s denial violated the HAA.” (Ruegg I, 

supra, 63 Cal.App.5th at p. 329, fn. 40.) Context makes clear that the 

argument we were referring to was Ruegg’s, and the trial court so understood 

our meaning. 
4

remand directions. The court ordered briefing on the issue and set a hearing 

date. 

At the hearing on October 29, after argument, the trial court concluded 

that it should determine the as yet undecided HAA issues. The court 

reasoned that it could not avoid ruling on these issues because they had been 

briefed, had not been waived, and had not been determined “by anybody,” but 

rather “fell by the wayside because of the denial as to the SB 35 claim.”

Accordingly, the court believed it would “most closely comply with the court of 

appeal’s instructions” by issuing a writ of mandate on the first cause of action 

(violation of § 65913.4) and bifurcating the remainder of the causes of action 

(violation of the HAA, injunctive relief, declaratory relief) for determination 

on the existing record. The court set a hearing date over two months in the 

future to allow the City and CVL to “file a writ and test whether the court of 

appeal actually was making a determination about the previous denial of a 

petition being—including the Housing Accountability Act.”5

On November 3, 2021, following our instructions on remand, the trial 

court granted the writ petition with respect to the first cause of action and 

ordered issuance of a peremptory writ commanding the City to issue the 

permits required by section 65913.4 and to file a return to the writ within 30 

days. Its order further concluded that it had jurisdiction, and was obligated,

to address the merits of the remaining causes of action and set a briefing 

schedule and hearing date. The writ issued the same day. 

5 The City filed a petition for writ of prohibition/mandate in this court 

challenging the trial court’s decision to hear and decide the HAA claims, 

which we denied on December 7, 2021. 
5

The City rescinded its denial of Ruegg’s permit application and, on 

December 8, 2021, issued the permit and filed its return to the writ in the 

trial court. 

The trial court hearing on the merits of the HAA claims took place on 

February 4, 2022. After hearing the parties’ arguments, the court concluded 

that the City’s denial of the section 65913.4 permit application violated the 

HAA. 

On February 22, 2022, the court filed its order granting the petition 

with respect to the second, third, fourth and fifth causes of action.

6 As to the 

second and third causes of action, the court found that the City’s disapproval 

of the project application violated the HAA; found the necessary action for 

compliance was for the City to grant the permit and otherwise comply with 

the November 2021 order and writ of mandate; and stated it was exercising

continuing jurisdiction to determine whether to order further remedies 

pursuant to section 65589.5, subdivisions (k) and (l), or other applicable law, 

if the City did not comply with the court’s writ and orders. As to the fourth 

and fifth causes of action, the court found Ruegg was entitled to the “albeit 

duplicative” injunctive relief ordered in the writ and declared that the HAA 

and section 65913.4 both apply to the project; that both laws required the 

City to approve the project; that the City violated both laws when it 

disapproved the project; and that Ruegg “may seek such post-judgment relief 

as may be available for a violation of the HAA as well as for a violation of SB 

6 The court’s order states that the project is a housing development 

project that complied with applicable objective standards and qualified as a 

housing development project for very low, low- or moderate-income 

households; Ruegg was entitled to the permit; and the City disapproved the 

project without making the findings required by the HAA. 
6

35.” The court entered judgment in favor of Ruegg and retained jurisdiction 

over costs and attorneys’ fees.

The City and CVL filed timely notices of appeal. 

DISCUSSION

The City argues that the trial court lacked jurisdiction to decide the 

merits of the HAA claims because doing so would exceed the scope of our

remand instructions in Ruegg I. The City additionally argues that Ruegg 

forfeited the HAA claims by failing to seek rehearing in Ruegg I in order to 

ask us to modify the remand instructions to include further proceedings on 

the HAA claims. CVL, in addition to joining the City’s arguments, contends 

the trial court erred in determining the HAA claims because they were 

rendered moot by the issuance of the writ of mandate. Neither the City nor 

CVL challenge the merits of the trial court’s decision, only the court’s 

authority to address these issues.

A. Governing principles

“ ‘A reviewing court has authority to “affirm, reverse, or modify any 

judgment or order appealed from, and may direct the proper judgment or 

order to be entered, or direct a new trial or further proceedings to be had.”

(Code Civ. Proc., § 43.) The order of the reviewing court is contained in its 

remittitur, which defines the scope of the jurisdiction of the court to which 

the matter is returned.’ (Griset v. Fair Political Practices Com. (2001) 25 

Cal.4th 688, 701 . . . ; accord, Snukal v. Flightways Manufacturing, Inc.

(2000) 23 Cal.4th 754, 774, fn. 5 [‘the terms of the remittitur define the trial 

court's jurisdiction to act’].) ‘The trial court is empowered to act only in

accordance with the direction of the reviewing court; action which does not 

conform to those directions is void.’ (Hampton v. Superior Court (1952) 38 

Cal.2d 652, 655 [(Hampton)].)” (Ayyad v. Sprint Spectrum, L.P. (2012) 210 
7

Cal.App.4th 851, 859 (Ayyad).) ‘The issues the trial court may address in the 

remand proceedings are therefore limited to those specified in the reviewing 

court's directions, and if the reviewing court does not direct the trial court to 

take a particular action or make a particular determination, the trial court is 

not authorized to do so. [Citations.]” (Id. at pp. 859–860.) “Any material 

variance from the directions is unauthorized and void.” (Butler v. Superior 

Court (2002) 104 Cal.App.4th 979, 982 (Butler); In re Candace P. (1994) 24 

Cal.App.4th 1128, 1131.)

We review de novo a claim that the trial court did not follow the 

directions contained in the dispositional language of our previous opinion. 

(Ayyad, supra, 210 Cal.App.4th at p. 859.) We look to the wording of our 

directions, read in conjunction with the opinion as a whole. (Ibid.; Bach v. 

County of Butte (1989) 215 Cal.App.3d 294, 302 (Bach).)

B. Scope of our remand instructions

As earlier indicated, our disposition in Ruegg I remanded the case to 

the trial court “with directions to grant the petition for writ of mandate.” 

(Ruegg I, supra, 63 Cal.App.5th at p. 329.) The City argues that deciding the 

HAA issues exceeded the scope of our directions because it was unnecessary 

to decide these issues in order to issue the writ. 

The City likens this case to Hampton, supra, 38 Cal.2d 652. In that 

case, a contractor prevailed on contract claims against property owners, 

whose cross complaint for loss of rent was rejected. (Id. at p. 654.) The 

judgment was reversed on appeal with directions for the trial court to enter 

judgment denying the contractor relief on the contract and denying the 

property owners recovery for rent. (Ibid.) The trial court, however, set the 

matter for further trial on additional issues the contractor sought to raise, 

which Hampton characterized as a theory of quantum meruit. (Id. at p. 655.) 
8

Hampton issued a writ of prohibition, holding that the appellate court’s order 

to enter judgment against the contractor precluded trial on additional issues. 

(Id. at p. 656.) 

We do not share the City’s view that Hampton is analogous to the 

present case. In Hampton, the quantum meruit theory had never been raised 

prior to the reversal and remand and, if successful, would have undermined 

the appellate court’s order. (38 Cal.2d at p. 656.) Here, Ruegg’s petition for 

writ of mandate alleged violations of the HAA as well as of section 65913.4,

neither the trial court nor this court had addressed the HAA issues, and 

determining them would not change the result we ordered, only inform the 

relief Ruegg would be entitled to under the writ we directed the trial court to 

issue.

The other cases the City discusses also involve situations distinct from 

the one before us. In Bach, supra, 215 Cal.App.3d 294, the county sued to 

enforce a zoning regulation prohibiting operation of a law practice in a 

residence and the property owner cross complained, alleging civil rights 

violations. (Id. at p. 299.) The trial court denied injunctive relief as to the 

property owner’s practice of law at the residence under an exception in the 

zoning regulation for occupants of the residence, but enjoined the property 

owner from employing anyone who did not reside on the premises. (Ibid.) 

The appellate court found the exception did not apply, reversed the denial of 

injunctive relief to the county, and “remanded the matter ‘for further 

proceedings consistent with this opinion.’ ” (Id. at p. 302.) The property 

owner then sought an evidentiary hearing on changed circumstances in the 

neighborhood between the time of trial and issuance of the remittitur. (Id. at 

p. 300.) Bach upheld the trial court’s refusal to conduct the evidentiary 

hearing, explaining that “[r]ead in conjunction with the appellate opinion as a 
9

whole, the Bach I remand for further proceedings simply directed the trial 

court to vacate the injunction it previously issued and ordered the court to 

issue a new injunction consistent with the Bach I opinion, i.e., enjoining the 

Bachs from [conducting a law practice on the premises]. The opinion did not 

direct or authorize the trial court to hold the evidentiary hearing sought by 

the Bachs.” (Id. at p. 303.) As in Hampton, supra, 38 Cal.2d 652, the issues 

the property owner sought to raise on remand were new to the case and, if 

successful, would have led to a result contrary to the appellate court’s order. 

Butler, supra, 104 Cal.App.4th 979, is to similar effect. The trial court 

struck the defendant’s answer due to discovery noncompliance and, after a 

default prove-up hearing, ordered nominal damages for the plaintiffs. (Id. at 

p. 981.) The case was reversed on appeal on the basis that the ruling was 

arbitrary and disregarded evidence presented at the hearing. (Ibid.) 

Remand instructions directed the trial court to “enter a new default judgment 

in accordance with the evidence [plaintiff] presented at the default prove-up

hearing . . . .” (Ibid.) On remand, however, the trial court granted the 

defendant’s motion for reconsideration of the order striking her answer and

ordered that the defendant could call witnesses at trial with specified notice 

to the plaintiffs. (Ibid.) Butler held the trial court materially departed from 

the remand order, which directed reevaluation of the evidence presented at 

the prove-up hearing and “did not leave open the option of reconsidering prior 

rulings or reopening the case on the facts and allowing a trial.” (Id. at p. 

982.)

In Ayyad, supra, 210 Cal.App.4th 851, the case the City most heavily 

relies upon, the initial appeal affirmed a judgment for the plaintiffs and order 

granting plaintiffs a partial new trial on specific damages issues, and 

remanded for proceedings limited to retrial of those damages issues. (Id. at 
10

p. 854.) On remand, the defendant moved to compel arbitration of the same 

claims that had been resolved by affirmance of the judgment. (Ibid.) The 

trial court properly refused to entertain the motion to compel because its 

jurisdiction was limited to the issues specified in the dispositional language 

of the appellate court’s opinion. (Ibid.) Ayyad rejected the defendant’s 

suggestion that the trial court was free to consider the arbitration motion 

because the initial appellate opinion did not address arbitration, holding that 

a trial court’s jurisdiction on remand “extends only to those issues on which 

the reviewing court permits further proceedings” and the trial court “may not 

expand the issues on remand to encompass matters outside the scope of the 

remittitur merely because the reviewing court has not expressly forbidden 

the trial court from doing so.” (Id. at p. 863.) It was particularly easy for 

Ayyad to reject the defendant’s argument because the remand directions 

expressly limited the matters to be retried to the specified damages issues 

and the defendant’s motion to compel arbitration sought to relitigate the 

entire controversy. Indeed, Ayyad described the motion to compel arbitration 

as an “11th-hour attempt to undo the result of years of litigation.” (Id. at p. 

864.)

All these cases involved obvious departures from remand instructions: 

introduction of a new theory of recovery, not previously presented to the trial 

or appellate court, by the party against whom the appellate court ordered 

judgment to be entered (Hampton); reconsideration of a prior trial court order 

so as to allow a trial when the remand instructions called for entry of a 

default judgment (Butler); request for an evidentiary hearing on changed 

circumstances after the appellate court ordered specific injunctive relief

(Bach); relitigation of the entire case on a remand for retrial solely on 

specified damages issues (Ayyad). 
11

Conversely, the cases the City offers to illustrate proceedings on 

remand that are appropriate despite not being “specifically directed” by the 

remand instructions involve proceedings that were patently necessary to 

effectuate the remand instructions. In both Carroll v. Civil Service Com. 

(1973) 31 Cal.App.3d 561 (Carroll) and Currieri v. City of Roseville (1975) 50 

Cal.App.3d 499 (Currieri), the appellate court ordered reinstatement of an 

improperly fired employee with back pay, a party challenged an aspect of the 

trial court’s calculation of the award on remand, and the subsequent appeal 

confirmed the trial court’s authority to make the findings needed to 

determine the appropriate amount of the award.

7 Clearly, where an

7 The first appeal in Carroll, supra, 31 Cal.App.3d 561 reversed an 

order for back pay because it did not include offsets to which the county 

employer might be entitled, noting examples of potential offsets, and directed 

that the employee be restored to his job with “ ‘whatever back pay he may 

legally be entitled to receive.’ ” (Id. at p. 564.) The issue on the second 

appeal was the validity of an offset that was not one of the examples noted in 

the first opinion. Carroll did not address any question whether the trial 

court exceeded the scope of the remand instructions; it simply stated that the 

first appeal did not resolve the question because, while that opinion was law 

of the case with respect to the questions it decided, it “did not purport to 

decide all of the possible offsets to which the county may be legally entitled” 

and “was exemplary, not exhaustive.” (Id. at p. 564.)

In Currieri, supra, 50 Cal.App.3d 499, another back pay case, the 

remanding court noted that “ ‘earnings from other sources’ ” must be 

deducted from any back payments due. (Id. at p. 502.) On remand, the trial 

court denied back pay for a period in which the court found the employee 

failed to satisfy his duty to mitigate damages. (Id. at p. 502.) Relying in part 

on Carroll, Currieri rejected the argument that the trial court exceeded its 

jurisdiction and could not consider the mitigation issue, holding that the 

remand instruction to deduct earnings from other sources was not 

“exhaustive” but rather “avoided any impression that the trial court was 

limited on remand to a mathematical award of back pay without a full 

inquiry.” (Id., 50 Cal.App.3d at p. 503.) 
12

appellate court orders a money judgment, it is necessary for the trial court to 

determine the amount of the award. But this illustration of the point that a 

trial court is authorized to take actions that are not expressly stated in 

remand instructions but necessary to effectuate the instructions does little to 

inform analysis of the issues in the very different circumstances of the 

present case. 

Here, the trial court did as we directed: It issued the writ of mandate 

compelling issuance of the permit required under section 65913.4. The 

question is whether it exceeded the scope of our remand order by then 

determining, in light of our holding that the City’s disapproval of the permit 

violated section 65913.4, the as yet unadjudicated issue of whether the 

disapproval also violated the HAA. 

The City takes too narrow a view in arguing that it was not necessary 

to decide the HAA issues because, pursuant to our remand instructions, the 

City would have to, and did, issue a section 65913.4 permit. While the trial 

court did not need to decide the HAA issues in order to compel the City to 

issue a permit under section 65913.4, deciding those issues was necessary to 

fully resolve whether Ruegg was entitled to the relief sought by its petition –

that is, the extent of the relief afforded by granting the writ petition. 

The HAA issues were not new to the case: They had been presented to 

the trial court and to this court in Ruegg I. The trial court had not addressed 

them, presumably because its determination that section 65913.4 did not 

require the City to approve the project resolved the case: Ruegg had applied 

for a permit under section 65913.4’s streamlined, ministerial approval 

process and the trial court’s finding that the City’s denial complied with that 

process meant Ruegg was not entitled to the permit regardless of any issues 

under the HAA. Our subsequent determination that Ruegg was entitled to 
13

approval of its project under section 65913.4 made the HAA issues relevant, 

but it was not necessary for us to decide them because the error with respect 

to section 65913.4 required reversal of the trial court’s order and issuance of 

the writ compelling compliance with section 65913.4 without regard to the 

HAA. 

Contrary to the City’s characterization, we did not hold that “further 

litigation of the HAA claims is not necessary” or that “consideration of the 

HAA claims is unnecessary to the outcome.” We said it was “unnecessary for 

us to address” the HAA claims. There is nothing unusual about an appellate 

court declining to resolve in the first instance issues that a trial court’s initial 

erroneous ruling made it unnecessary for the trial court to address. (See 

American Foreign Service Assn. v. Garfinkel (1989) 490 U.S. 153, 161 

[declining to decide issue without benefit of lower court’s analysis].) Our 

decision resolved the merits of the section 65913.4 issues upon which the trial 

court based its decision to deny Ruegg’s writ petition and left the undecided 

HAA issues undecided.

Had we simply reversed the trial court’s judgment, all issues in the 

case would have been subject to relitigation. “[I]n general, ‘ “[a]n unqualified 

reversal remands the cause for a new trial . . ., [citation], and places the 

parties in the trial court in the same position as if the cause had never been 

tried, with the exception that the opinion of the court on appeal must be 

followed so far as applicable.” [Citation.] This principle is equally applicable 

to a partial reversal of a judgment.’ (Hall v. Superior Court (1955) 45 Cal.2d 

377, 381 . . . ; accord, e.g., Bevis v. Terrace View Partners, LP (2019) 33 

Cal.App.5th 230, 263.)” (Rincon EV Realty LLC v. CP III Rincon Towers, Inc. 

(2019) 43 Cal.App.5th 988, 1001.)
14

Our disposition in Ruegg I strictly limited what the trial court could do 

on remand with respect to the issues we decided—that the City violated 

section 65913.4 and Ruegg was entitled to issuance of the ministerial permit. 

We directed the trial court to issue the writ of mandate and the trial court 

had no choice but to do so. But this resolved only the issues under section 

65913.4. In stating that it was not necessary for us to address the HAA 

issues, we did no more than leave those issues—which had not yet been 

addressed by the trial court—open for determination by the trial court. 

The City maintains that the trial court “varie[d] materially” from our 

remand instructions by holding proceedings on the HAA issues, in that 

resolution of these issues would add nothing to the relief afforded by granting 

the writ and issuing a permit under section 65913.4. In the City’s view, the 

lack of necessity for deciding the HAA issues is demonstrated by the fact that 

the trial court granted the writ petition and issued the writ of mandate before 

hearing and deciding the section HAA issues. The City sees the trial court as 

having confirmed the lack of necessity, and its understanding that resolving 

the HAA issues added nothing, by its order stating that “the necessary action 

City must take to comply with the HAA” was to “grant the permit and 

otherwise comply” with the previously issued court order and writ. 

The City’s premise—that resolving the HAA issues added nothing to 

the relief afforded by the writ of mandate—is not accurate. The initial writ of 

mandate compelled issuance of the permit required by section 65913.4. But 

this was not the full relief sought by Ruegg’s writ petition. Unlike section 

65913.4, section 65589.5 authorizes a court not only to require the local 

jurisdiction to approve a project (in the specified circumstances) but also to 

order compliance with statutory requirements regarding conditions on the 

project, to retain jurisdiction to ensure its orders are carried out, to impose 
15

fines for noncompliance and to award attorney fees. Accordingly, here, once 

the trial court found that the City violated the HAA, it modified its judgment 

to include that it was “exercis[ing] continuing jurisdiction to determine 

whether to order further remedies pursuant to Gov. Code § 65589.5, subds. 

(k) and (l), or other applicable law, if the City were not to comply” with the 

court’s writ and orders, and that Ruegg “may seek such post-judgment relief 

as may be available for a violation of the HAA as well as for a violation of SB 

35.” 

We do not agree with the City’s suggestion that interpreting our 

disposition to permit resolution of the HAA claims would permit trial courts 

to “hold any and all proceedings on remand that [do] not strictly violate the 

law of the case doctrine.” This case presents a particular procedural scenario. 

To reiterate, our direction in Ruegg I for the trial court to grant the petition 

for writ of mandate was based solely on our conclusion that the City failed to 

comply with section 65913.4. We expressly stated that this conclusion made 

it unnecessary for us to address the HAA issues. Ruegg’s writ petition 

alleged violation of the HAA as well as section 65913.4, but the trial court

had no reason to consider the HAA issues once it (erroneously) determined 

that the City properly refused to approve the project under section 65913.4. 

After we reversed the trial court’s decision, the HAA issues became relevant 

to define the terms of the writ. We did not intend, and we do not believe our 

opinion in Ruegg I cannot reasonably be read as contemplating, that the HAA 

issues would simply drop out of the case without resolution. To the extent 

our disposition was ambiguous, it is to be interpreted “ ‘in light of the law and 

the appellate opinion.’ ” (Ayyad, supra, 210 Cal.App.4th at p. 863, fn. 7; see 

In re Justin S. (2007) 150 Cal.App.4th 1426, 1435 [“To the extent that the 

dispositional language used in our remittitur did not expressly state that 
16

appellant, as the prevailing party on the only issue in the appeal, was to be 

included in proceedings on remand to remedy the error, the opinion as a 

whole compels that interpretation”].)

The trial court did not err in concluding it had jurisdiction to resolve 

the HAA issues. 

C. Forfeiture

The City contends that Ruegg forfeited the HAA claims by failing to 

seek rehearing of our Ruegg I opinion in order to request modification of the 

remand instructions to encompass further proceedings on the HAA claims.

“A petition for rehearing is the correct remedy to address material 

inaccuracies or omissions in a disposition.” (Ducoing Management, Inc. v. 

Superior Court (2015) 234 Cal.App.4th 306, 314.) “ ‘[I]f a court of review 

inadvertently omits to include in its instructions to a trial court upon the 

reversal of a judgment essential elements within the issues necessarily 

determined on the appeal, the aggrieved party has his remedy in a petition 

for rehearing. A trial court may not exceed the specific directions of a court of 

review in remanding a cause after a reversal of the judgment on appeal and 

add thereto conditions which it assumes the reviewing court should have 

included.’ [Citation.]” (Hampton, supra, 38 Cal.2d at p. 656.)

The City’s argument depends on its characterization of our disposition 

in Ruegg I as suffering from material inaccuracies or omissions. By not 

expressly directing the trial court to consider and determine the HAA issues, 

however, we did not omit “essential elements within the issues necessarily 

determined on the appeal.” (Hampton, supra, 38 Cal.2d at p. 656.) Our 

opinion decided only the section 65913.4 issues. We did not determine the 

HAA issues and the trial court had not determined them; we simply found it 

unnecessary to decide them in the first instance. Ruegg was not required to 
17

seek rehearing in order to preserve the HAA issues because our disposition, 

read together with footnote 40 and the opinion as a whole, gave no reason to 

believe the HAA issues were not to be resolved.

D. Mootness

CVL argues that Ruegg’s HAA claim was rendered moot when the trial 

court issued the writ of mandate. “A case is considered moot when ‘the 

question addressed was at one time a live issue in the case,’ but has been 

deprived of life ‘because of events occurring after the judicial process was 

initiated.’ ” (Wilson & Wilson v. City Council of Redwood City (2011) 191 

Cal.App.4th 1559, 1574, quoting Younger v. Superior Court (1978) 21 Cal.3d 

102, 120.) “The pivotal question in determining if a case is moot is . . .

whether the court can grant the plaintiff any effectual relief.” (Ibid.)

CVL argues that the trial court’s issuance of the writ of mandate 

requiring the City to issue the section 65913.4 permit to Ruegg mooted the 

HAA issues because a ruling on those issues could not provide effectual relief, 

especially since the City has issued the permit. Responding to one of Ruegg’s 

arguments in the trial court,8 CVL maintains that the fact the HAA provides 

for an award of attorneys’ fees to the prevailing plaintiff/petitioner in an

enforcement action is insufficient to avoid finding the claims moot because “it 

is settled that an appeal will not be retained solely to decide the question of 

liability for costs.” (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134

(Paul).) CVL acknowledges that appellate courts will retain jurisdiction 

8 Ruegg argued the HAA issues were not moot because of the remedies 

available under the HAA, including but not limited to attorneys’ fees. Ruegg 

also argued it was not reasonable to view the HAA issues as moot when the 

City only issued the permit because this court and the trial court ordered it to 

do so. 
18

despite mootness of the underlying claims where an appeal also challenges an 

existing attorneys’ fees award, because review of underlying claims is 

necessary for review of the fee award, but distinguishes such cases from ones 

in which there has not yet been a fee award. Here, the trial court issued the 

writ of mandate before determining the HAA issues that would support 

awarding attorneys’ fees.

We need not determine whether the availability of attorneys’ fees alone 

would be sufficient to find the HAA issues were not moot.9 Attorneys’ fees 

are not the only relief available under the HAA that is not available under 

section 65913.4. As we have said, the HAA authorizes a trial court that finds 

a violation of the statute with respect to approval of a project or conditions 

imposed on it to compel compliance, retain jurisdiction to ensure enforcement 

of its orders and impose fines for noncompliance.

10 (§ 65589.5, subd. (k).) 

9 Paul, supra, 62 Cal.2d at p. 134, and the cases it cited, held that an 

appeal which has become moot will not be retained where the only remaining 

issue is liability for appellate costs. That holding is not necessarily 

dispositive of the question whether the potential for recovery of attorneys’ 

fees in proceedings to enforce the HAA can be considered effectual relief 

where the local agency alleged to have violated the HAA has been compelled 

to approve a project under a separate law. Additionally, at least one court 

has questioned “the wisdom of mechanically denying review” where only 

liability for costs is at issue. (Cinnamon Square Shopping Center v. 

Meadowlark Enterprises (1994) 24 Cal.App.4th 1837, 1843, fn. 2.) 

10 CVL asserts that Ruegg’s “potential, unadjudicated, claims for 

enforcement fines or attorneys’ fees are no different than the potential, 

unadjudicated, claim for costs at issue in Paul.” CVL sees the possibility of 

“recovering fines” as “squarely within Paul’s rationale,” but this point is far 

from self-evident. Paul did not present any “rationale” for the rule that 

liability for costs, alone, is insufficient to avoid finding an appeal moot; it 

simply cited cases supporting its statement that the point was “settled.” 

(Paul, supra, 62 Cal.2d at p. 134.) Moreover, Paul discussed the potential for 

“civil penalties” separately from the issue of costs. As to the former, the court 
19

Accordingly, determining the merits of the HAA issues did allow the trial 

court to provide effectual relief even though it had already compelled the City 

to issue the ministerial permit required by section 65913.4. The availability 

of these protections is forward-looking; it is not meaningless despite CVL’s 

observation that Ruegg has not shown that the City’s conduct “will ever

require any enforcement action pursuant to the HAA.”

DISPOSITION

The judgment is affirmed. 

explained that even if a judgment for the penalties was obtained, there was 

no possibility of it being paid because the defendant company had lost its 

license, become bankrupt and sold all its assets. (Id. at p. 133.) After 

explaining why other issues in the case were moot, Paul stated, “Finally, it is 

settled that an appeal will not be retained solely to decide the question of 

liability for costs.” (Id. at p. 134.)
20

_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, P.J.

_________________________

Petrou, J.*

A164749, Ruegg & Ellsworth et al. v. City of Berkeley, et al.

* Associate Justice of the Court of Appeal, First Appellate District, 

Division Three, assigned by the Chief Justice pursuant to article VI, section 6 

of the California Constitution.
21

Court: Alameda County Superior Court

Trial Judge: Hon. Frank Roesch

Berkeley City Attorney’s Office, Farimah Faiz Brown, City Attorney, 

Brendan Darrow, Deputy City Attorney; Briscoe Ivester & Bazel, Tony 

Francois, Peter Prows; Burke, Williams & Sorensen, Kevin D. Siegel, Megan 

A. Burke, Deepa Sharma for Defendants and Appellants

Law Offices of Thomas N. Lippe, Thomas N. Lippe, for Interveners and 

Appellants

Holland & Knight, Jennifer L. Hernandez, Daniel R. Golub, Emily M. Lieban; 

Reed Smith, Raymond A. Cardozo, Brian A. Sutherland, for Plaintiffs and 

Respondents

A164749, Ruegg & Ellsworth et al. v. City of Berkeley, et al.