hsr 15 -motion for discovery

8/9/2019 HSR 15 -Motion for Discovery

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF ERROR CORAM NOBIS

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LAW OFFICES OF STUART M. FLASHMANSTUART M. FLASHMAN (SBN 148396)5626 Ocean View DriveOakland, CA 94618-1533TEL/FAX (510) 652-5373e-mail: [email protected]

Attorney for Petitioners and Plaintiffs Town of Atherton et al.(Exempt from filing fees Gov. Code 6103)

Filed via fax

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SACRAMENTO

TOWN OF ATHERTON et al.,Petitioners and Plaintiffsv.CALIFORNIA HIGH SPEED RAILAUTHORITY, a public entity, and DOES 1-20,Respondents and Defendants

No. 34-2008-80000022 filed 8/8/08Judge Assigned for All Purposes:HONORABLE MICHAEL P. KENNYDepartment: 31

NOTICE OF MOTION AND MOTION TOTAKE DISCOVERY AND TO SHORTENTIME FOR RESPONSES; SUPPORTING

MEMORANDUM OF POINTS ANDAUTHORITIES; SUPPORTINGDECLARATION OF STUART

FLASHMANDate: August 20, 2010Time: 9:00 AMDept. 31Judge: Hon. Michael P. Kenny

TO ALL PARTIES OF RECORD HEREIN AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on August 20, 2010, at 9:00 AM or as soon thereafter as

the matter may be heard in Department 31 of the above-entitled Court, located at the 720 Ninth

Street, Sacramento, California, Petitioners and Plaintiffs Town of Atherton, et al. (Petitioners),

will move the Court for an order authorizing Petitioners to take discovery and shortening the

time for Respondent California High-Speed Rail Authority (Respondent) to respond to the

initial set of discovery requests.

This motion is made on the grounds that, unless the Court decides to summarily grant or

deny the Petition for Writ of Error Coram Nobis currently before the Court, discovery will be


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necessary in order for Petitioners to adequately present their case before the Court. An order

shortening time is requested in order to expedite the resolution of this matter, and because

Respondent was served with the first set of discovery requests more than a month before the

hearing date and should not need the full statutory period to respond to these requests.

This motion is based on this Notice, the attached supporting Memorandum of Points and

Authorities, the attached supporting declaration of Stuart M. Flashman, the attached Exhibits A

through D, the complete files of this case, and on any evidence or argument which the Court may

entertain at the hearing on this motion.

Pursuant to Local Rule 3.04, the court will make a tentative ruling on the merits of this

matter by 2:00 p.m., the court day before the hearing. To receive the tentative ruling, call the

department in which the matter is to be heard at 448-8239 (Department 53) or 448- 8234(Department 54). If you do not call the court and the opposing party by 4:00 p.m. the court day

before the hearing, no hearing will be held. The text of the tenative ruling may also be accessed

at the Courts website: http://www.saccourt.com/courtrooms/trulings/dept31view.asp.

SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

This motion seeks authorization for discovery by Petitioners Town of Atherton et al. in

connection with the Petition for Writ of Error Coram Nobis now pending before the Court. This

motion is necessary because Petitioners have served discovery requests on Respondent, but

Respondent has refused to comply, asserting that the Civil Discovery Act (Code of Civil

Procedure 2016 et seq.) is inapplicable because a final judgment has already been entered in

the case. Petitioners therefore seek the Courts explicit order authorizing discovery. In addition,

because Respondent was served with the initial set of discovery requests more than a month

prior to this hearing, Petitioners seek an order shortening time to expedite resolution of this

matter.

STATEMENT OF FACTS

Many of the salient facts underlying this motion have been set forth in the Petition for

Writ of Error Coram Nobis filed in this case. Briefly, a final judgment against Respondent was


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entered in this case on November 3, 2009. In February of 2010, after the period for appeal had

expired, certain previously hidden facts were brought to Petitioners attention. These facts

indicated that crucial evidence had been withheld from Petitioners and the public. This evidence

bore on the credibility and validity of the ridership and revenue modeling data contained in the

Environmental Impact Report that was the subject of the case. (Declaration of Stuart Flashman

in Support of Petition for Writ of Error Coram Nobis [hereinafter, Flashman Dec.] 2-4.)

Petitioners legal counsel immediately brought the matter to the attention of opposing

counsel, who promised to look into it. (Id. at 6.) In the meantime, Petitioners sought to

substantiate the allegations that had been made and to clarify the significance of the withheld

evidence. (Id. at 4-15.) Petitioners were able to confirm the accuracy of the allegations based

on documentation obtained through California Public Record Act requests1. (Id. at 7-15.).

Petitioners also verified the significance of the withheld evidence based on an independent

consultants evaluation. (Declaration of Norman Marshall in Support of Petition for Writ of

Error Coram Nobis, 5.)

Based on the substantiation of the veracity and significance of the information,

Petitioners filed the Petition for Writ of Error Coram Nobis (Petition) now before the Court

and set the matter for hearing. Upon learning that Respondent intended to oppose the petition,

Petitioners realized that it would be important to gain a better understanding of the facts and

contentions involved in the Petition than was possible through the limited scope of Public

Record Act requests. In addition, Respondent indicated that it would not file a responsive

pleading to the Petition, thus eliminating such a pleading as a source of information.

On July 6, 2010, Petitioner Transportation Solutions Defense and Education Fund served

on Respondent, by mail and electronic mail, a set of discovery requests consisting of a set of

form interrogatories, a set of twelve requests for admissions, and a set of fifteen specially

prepared interrogatories. (Exhibit A to Supporting Declaration of Stuart Flashman.) On July 12,

2010, Petitioners counsel received via electronic mail a meet and confer letter from counsel

for Respondent indicating that Respondent did not intend to respond to the discovery requests.

1 Because the case was no longer pending before the Court, discovery was not available. (Codeof Civil Procedure 2017.010; Department of Fair Employment & Housing v. Superior Court(1990) 225 Cal.App.3d 728, 732.)


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(Exhibit B to Supporting Declaration of Stuart Flashman.) On July 16, 2010, after conferring

with the client, Counsel for Petitioners sent a responding letter proposing a compromise solution

to the dispute, namely that responses would not be due until ten days after the hearing scheduled

for August 20th, and only if the matter remained pending at that time. (Exhibit C to Supporting

Declaration of Stuart Flashman.) On July 21, 2010, Petitioners received a response from counsel

for Respondent, rejecting Petitioners offer and indicating that Respondent still refused to

respond to the discovery requests pending the results of the hearing on August 20th and further

action by the Court. (Exhibit D to Supporting Declaration of Stuart Flashman.)

After discussion of the situation with counsel, Petitioners determined to file this motion

to bring the issue before the Court for resolution.

ARGUMENT

I. DISCOVERY SHOULD BE ALLOWED ON THE PENDING PETITION.

A petition for writ of error coram nobis is a venerable common law legal procedure.

While it is not addressed by any California statute, California case law has gradually defined

most of its parameters. (See, e.g., People v Kim (2009) 45 Cal.4th 1078.) However, as should be

evident from review of the correspondence relating to this motion, neither Petitioners nor

Respondent has been able to find any published cased clarifying the availability of discovery in a

trial court coram nobis proceeding.

Respondent takes the position that once final judgment has been entered, the case is no

longer pending before the court, and no discovery is allowed until and unless the court

determines to grant the writ petition and vacate the final judgment. (See 2 and 3 of Exhibit

B.) Petitioners contend, however, that such would contrary to the intent of the Civil Discovery

Act, especially because, under established procedure for a petition for writ of error coram nobis,

the court is authorized to conduct a hearing, like an ordinary trial, including the presentation of

evidence and the calling of witnesses. (People v. Shipman (1965) 62 Cal.2d 226, 230-231.)

A. ONCE A HEARING HAS BEEN SET, THE PETITION IS A MATTER PENDINGBEFORE THE COURT, AND THE CIVIL DISCOVERY ACT APPLIES.

Code of Civil Procedure 2017.010 provides:

Unless otherwise limited by order of the court in accordance with this title, anyparty may obtain discovery regarding any matter, not privileged, that is relevant


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to the subject matter involved in the pending action or to the determination of anymotion made in that action, if the matter either is itself admissible in evidence orappears reasonably calculated to lead to the discovery of admissible evidence.

Respondent argues that once a final judgment has been entered, the matter is no longer

pending, and will not be pending unless the court orders the judgment vacate. Respondent citesas supporting authorityDepartment of Fair Employment & Housing v. Superior Court

(DFEH)(1990) 225 Cal.App.3d 728, 732. In fact, that case runs directly against Respondents

position.

InDFEH, an action had been brought against an employer for violation of a settlement

agreement on claims of discrimination and sexual harassment. Summary judgment was granted

against the employer, and judgment was entered ordering the employer to pay $19,000 to the

victim. (Id. at 730.) However, the employer did not follow through on paying the judgment.Without filing any motion, DFEH sought discovery against the employer to determine facts

related to the non-payment. (Id. at 731.) The employer raised objections, and DFEH filed a

motion to compel. The trial court denied the motion, and the court of appeal affirmed. The court

noted that while discovery would be proper after the filing of a motion for contempt, without

such a motion, there was nothing pending before the court upon which to based discovery

requests. (Id. at 732.)

Here, once judgment was entered, the case was no longer pending and no discovery couldbe had. (See fn.1, on p.3 of this brief.) However, with the filing of the coram nobis petition and

the setting of the matter for hearing, the petition was properly pending before this Court,

analogous to if DFEH had first filed a motion for contempt prior to its discovery requests2.

Thus, the situation here is fundamentally different than that inDFEH, and by filing the petition

and setting the matter for hearing, Petitioners have done precisely what the court recommended

inDFEH, and discovery should properly be allowed.

B. DISCOVERY SHOULD BE ALLOWED IN ACCORDANCE WITH THEPURPOSE OF THE CIVIL DISCOVERY ACT.

The purposes of the discovery statutes are "to assist the parties and the trier of factin ascertaining the truth; to encourage settlement by educating the parties as to thestrengths of their claims and defenses; to expedite and facilitate preparation and

2 It should be noted that inDFEH, the courts recommended procedure would allow discoverydespite the entered judgment remaining intact.


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trial; to prevent delay; and to safeguard against surprise." (Beverly Hospital v.Superior Court(1993) 19 Cal.App.4th 1289, 1294.)

As the above quotation makes clear, the states discovery statutes, and specifically the

Civil Discovery Act, were enacted to help the parties to litigation both prepare their cases for

trial and understand the true facts underlying the litigation. In a coram nobis proceeding, and

particularly one arising out of CEQA litigation, these purposes are particularly important. Most

CEQA litigation, and specifically this litigation, is based on a certified administrative record.

(Public Resources Code 21167.6.) As such, there is no pretrial discovery involved, and hence

no opportunity to the plaintiffs to go beyond what is shown on the face of the administrative

record. Normally, this is very appropriate. However, in the exceptional case where, through no

fault of the plaintiff, evidence that should have been before the court was improperly excluded

from the administrative process (See, Code of Civil Procedure 1094.5; Western States

Petroleum Assn. v. Superior Court(1995) 9 Cal.4th 559, 578), the plaintiff must be provided

with the legal resources to ferret out the evidence required to prove its case, evidence that will,

by definition, not be within the administrative record even though it may, in fact, be in the

possession of the respondent agency. Without the ability to conduct discovery, it will be

difficult if not impossible for Petitioners to ascertain the truth, learn the true strength of the

claims and defenses, and safeguard against surprise when the petition is actually heard on the

merits. This will be particularly true if the Court should decide that, because issues of credibility

are involved, an actual court trial is needed. (See, e.g., In re Lawley (2008) 42 Cal.4th 1231,

1241 [in appellate habeas proceeding, special master is appointed to hold evidentiary hearing

when issues of credibility are important].) For this reason as well, discovery should be provided

for.

C. DISCOVERY SHOULD BE ALLOWED BASED ON THE CLOSE ANALOGYBETWEEN CORAM NOBIS AND HABEAS CORPUS PROCEEDINGS.

As with the writ or error coram nobis, the writ ofhabeas corpus arose originally from the

common law. However, in California, habeas corpus has now been codified in the Penal Code

(1473 et seq.), and corresponding provisions incorporated into the California Rules of Court

(Rule 4.550 et seq., Rule 8.380 et seq.). Even with the codification ofhabeas corpus in


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California, however, the right to discover has not, in most cases, been codified by statute3. (See,

People v. Duvall (1995) 9 Cal.4th 464, 474 et seq. for a general explication of California habeas

corpus procedures.) However, the decisions of the California Supreme Court have made clear

that once an order to show cause has issued, there is a right to discovery in a habeas corpus

proceeding. For other cases, in which the sentence imposed is less than death or life in prison

without the possibility of parole, we are guided by the decisions of the California Supreme

Court. The general rule is that discovery is available in a habeas proceeding once an order to

show cause has issued. (Board of Prison Terms v. Superior Court(2005) 130 Cal.App.4th

1212, 1241.)

While it might be argued that a habeas corpus proceeding is a criminal proceeding while

the current coram nobis proceeding is civil, the California Supreme court has made clear that it

considers a habeas corpus proceeding to be civil, rather than criminal, in nature. (In re Scott

(2003) 29 Cal.4th 783, 815.) Indeed, the California Supreme Court has acknowledged to strong

similarity between coram nobis and habeas corpus proceedings. (See. e.g., People v. Kim(2009)

35 Cal.4th 1978.) Thus the analogous right to discovery in a coram nobis proceeding, once the

court has determined that a prima facia case has been made, should be provided.

II. THE COURT SHOULD PROVIDE FOR EXPEDITED RESPONSES TO THEFIRST SET OF DISCOVERY REQUESTS.

Ordinarily, discovery requests requiring a written response allow thirty days for the

service of the response. This makes sense, because in addition to the time required to write the

response, responses also require time for the gathering and analysis of the information and

evidence required to make a complete response. However, under Code of Civil Procedure

2019.020(b), on motion and for good cause shown, the court may establish the sequence and

timing of discovery for the convenience of parties and witnesses and in the interests of justice.

In this case, it is obviously in all parties, and the Courts interest to have the petition

resolved quickly. Respondent was served with the discovery requests more than thirty days prior

to the hearing date on this motion. Respondent has therefore had more than adequate time to

investigate and compile the information needed to provide responses to the requests. Petitioners

3 Penal Code 1054.9 provides a right of discovery even before the filing of the petition, but onlyin cases involving the death penalty or life imprisonment.


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therefore request that the Court order that Respondent provide responses to the requests within

ten days from the date of the Courts order on this motion.

CONCLUSION

Assuming that the Court determines that further proceedings are needed before ruling on

the merits of the petition for writ of error coram nobis, Petitioners have the need to, and a right

to, conduct reasonable discovery related to the issues raised by the petition. Petitioners therefore

respectfully request that the motion be granted.

DATE: July 29, 2010

Respectfully submitted,

Stuart M. FlashmanAttorney for Petitioners Town of Atherton et al.

SUPPORTING DECLARATION OF STUART FLASHMAN

I, STUART FLASHMAN, declare as follows:

1. I am an attorney licensed to practice in California. I am the attorney of record for

Petitioners Town of Atherton et al. in this case. I have personal knowledge of the facts set forth

in this declaration and am competent to testify as to them if called as a witness.

2. On July 6, 2010 I served a set of discovery requests on Respondent California High

Speed Rail Authority (Respondent) via mail and electronic mail. A true and correct copy of

these discovery requests is attached hereto as Exhibit A.

4. Only July 9, 2010, I received a telephone call from counsel for Respondent indicating

that Respondent objected to the discovery requests. Counsel for Respondent indicated that she

would be sending me a meet and confer letter identifying in detail her objections.3. On July 12, 2010 I received, via electronic mail, a letter from counsel for Respondent

designated as a further effort to meet and confer pursuant to Code of Civil Procedure 2016.040.

A true and correct copy of this letter is attached hereto as Exhibit B.


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4. On July 16, 2010 I sent, via mail and electronic mail, a letter to counsel for Respondent

responding to her meeting confer letter. A true and correct copy of that letter is attached hereto

as Exhibit C.

5. On July 21, 2010 I received, via electronic mail, a letter from counsel for Respondent

responding to my letter of July 16th. A true and correct copy of that letter is attched hereto as

Exhibit D.

I have personal knowledge of the above facts, and I declare under penalty of perjury

under the laws of the State of California that the foregoing is true and correct. Executed on July

29, 2010 at Oakland, California.

Stuart M. Flashman


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Exhibit A


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PETITIONER TRANSDEFS SPECIALLY PREPARED INTERROGATORIES,SET #1

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LAW OFFICES OF STUART M. FLASHMANSTUART M. FLASHMAN (SBN 148396)5626 Ocean View DriveOakland, CA 94618-1533TEL/FAX (510) 652-5373

e-mail: [email protected]

Attorney for Petitioners and Plaintiffs

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SACRAMENTO

TOWN OF ATHERTON et al.,Petitioners and Plaintiffs

v.

CALIFORNIA HIGH SPEED RAIL

AUTHORITY, a public entity, and DOES 1-20,

Respondents and Defendants

No. 34-2008-80000022 filed 8/8/08

Judge Assigned for All Purposes:

HONORABLE MICHAEL P. KENNY

Department: 31

PETITIONER TRANSPORTATION

SOLUTIONS DEFENSE AND

EDUCATION FUNDS SPECIALLY

PREPARED INTERROGATORIES

(Set No. One)

Trial Date: August 20, 2010

PROPOUNDING PARTY:Petitioner Transportation Solutions Defense and

Education Fund

RESPONDING PARTY Respondent California High-Speed Rail Authority

SET NUMBER One

Petitioner Transportation Solutions Defense and Education Fund requests that

Respondent California High-Speed Rail Authority answer the following specially prepared

interrogatories, set No.1, under oath within 30 days from the date of service, pursuant to Code of

Civil Procedure section 2030.010.


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DEFINITIONS

1. AUTHORITY means the California High-Speed Rail Authority, its

predecessors or successors in interest, employees, officers, directors, attorneys, agents and all

other persons or entities otherwise subject to its control.

2. PROJECT means the Bay Area to Central Valley High-Speed Train Project.

3. RIDERSHIP/REVENUE MODEL means ALL models or model components

prepared in connection with the analysis of the PROJECT.

4. MTC means the Metropolitan Transportation Authority, its predecessors or

successors in interest, employees, officers, directors, attorneys, agents and all other persons or

entities otherwise subject to its control.

5. PB means Parsons Brinckerhoff, its predecessors or successors in interest,

employees, officers, directors, attorneys, agents and all other persons or entities otherwise

subject to its control..

6. PETITION means the Petition for Writ of Error Coram Nobis filed by

Petitioners Town of Atherton et al against Respondent AUTHORITY.

7. FEIR/EIS means the Final Environmental Impact Report/Environmental Impact

Statement for the PROJECT.

INTERROGATORIES

1. Identify each and every allegation in the PETITION which the AUTHORITY admits as

true.

2. Identify each and every allegation in the PETITION which the AUTHORITY denies.

3. For each allegation identified in your answer to Interrogatory Number 2, identify all of

the facts and evidence that support the AUTHORITYs denial of the allegation.

4. Identify each and every allegation in the PETITION which the AUTHORITY denies

based on information and belief.

5. For each allegation identified in your answer to Interrogatory Number 4, explain the basis

for the AUTHORITYs denial of the allegation.


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6. What was the date on which the AUTHORITY first learned that the ridership and

revenue information contained in the FEIR/EIS was not derived using the model information

contained in the final Task 5a report, Interregional Model System Development prepared for

the AUTHORITY .and MTC?

7. Between the years 2006 and 2008, was PB involved in the development or evaluation of

any REVENUE/RIDERSHIP MODEL related to the PROJECT?

8. If your answer to Interrogatory Number 7 was yes, identify the extent and nature of PBs

involvement, including the names of all those involved.

9. If your answer to Interrogatory Number 7 was yes, identify all persons within the

AUTHORITY who were aware of PBs involvement.

10. For each person identified in your answer to Interrogatory Number 9, explain the nature

of that persons association with the work identified your answer to Interrogatory Number 8.

11. Identify all persons within the AUTHORITY involved in coordinating with MTC the

ridership/revenue modeling work associated with the PROJECT.

12. For each person identified in your answer to Interrogatory Number 11, explain their role

in coordinating the ridership/revenue modeling work with MTC.

13. Identify all person within the AUTHORITY involved in coordinating with Cambridge

Systematics, Inc. on the ridership/revenue modeling work associated with the PROJECT.

14. For each person identified in your answer to Interrogatory Number 13, explain their role

in coordinating the ridership/revenue modeling work with Cambridge Systematics.

15. State the name, address, telephone number, and relationship to the AUTHORITY of all

persons who prepared or assisted in preparing the responses to these interrogatories, and the

interrogatories with which they assisted. (Do not include those who merely typed or reproduced

the responses.)

DATE: July 6, 2010

Stuart M. FlashmanAttorney for PetitionerTransportation Solutions Defenseand Education Fund


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Exhibit 1


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555 12t h

Street , Sui te 1600

O kl d CA 94607

Memorandum

TO: Nick Brand

FROM: George Mazur

DATE: January 29, 2010

RE: Final Coefficients and Constants in HSR Ridership & Revenue Model

The seven (7) attached tables provide the final coefficients and constants in the high-speed rail(HSR) ridership and revenue model, which was developed by Cambridge Systematics undercontract to the Metropolitan Transportation Commission (MTC). These tables supersedeinformation presented in the Task 5a report (Interregional Model System Development), datedAugust 2006.

The Task 5a report listed the model coefficients and constants as they existed after thepreliminary estimation and calibration effort. As is normally the case, additional calibrationand validation efforts led to changes in model structure, variables, and the values of coefficientsand constants. These changes continued until the model structure was finalized in April 2007.There have been no changes to these model elements since April 2007. The client, MTC, elected

not to update the Task 5a report nor to include the final coefficients and constants in the finalproject report.


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Exhibit 2


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Table 3.2. Trip Frequency Models - Long Trips

Variable Acronym Definition Coefficient t-stat Coefficient

1 regacc Regional accessibility -0.217 Constr -0.217

2 slogsum Short trip logsum3 llogsum Long trip logsum 0.123 Constr 0.123

4 hhsizen Household size

5 onephh One person household? (0/1)

6 threephh Three person household? (0/1)

7 medinc Medium income household? (0/1) 0.527 1.5 0.188

8 highinc High income household? (0/1) 1.139 3.0 0.291

9 missinc Missing income household? (0/1) (used for model estimation only) 0.955 2.3 0.340

10 nocars Zero car household? (0/1)

11 carsltw Fewer autos than workers? (0/1) -0.412 -1.0 -0.457

12 wkrspps Workers / household size 0.537 1.9 1.274

13 sacog Resident in SACOG region? (0/1) 0.234 Constr 0.011

14 sandag Resident in SANDAG region? (0/1) -0.174 Constr -0.342

15 mtc Resident in MTC region? (0/1) -0.683 Constr -1.421

16 nowkrs No worker household? (0/1) -2.098 -3.4 -2.668

17 scag Resident in SCAG region? (0/1) -0.274 Constr -0.948

21 const1 Constant for 1 trip -4.611 Constr -2.674

22 const2 Constant for 2 or more trips -5.247 Constr -4.110

Business Comm


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Table 3.9. Destination Choice Models for Long Trips

Variable Acronym Definition Coefficient t-stat Coefficient t-stat

Accessibility Variables

1 mlogsum Mode choice logsum 0.053 Constr 0.053 Constr

2 distance Distance (miles) -0.024 -8.5 -0.031 -11.7

3 distsqu Distance squared 0.000 8.9 0.000 10.8

4 distcub Distance cubed 0.000 -8.0 0.000 -9.5

Area Types

6 durban Urban destination? (0/1) 0.724 6.7 0.810 9.5

7 drural Rural destination? (0/1) 0.222 2.0 0.607 6.8

8 urburb Urban to urban movement? (0/1) -0.010 -0.1 -0.096 -0.8

9 subsub Suburban to suburban movement? (0/1) -0.185 -1.5 -0.029 -0.3

10 rurrur Rural to rural movement? (0/1) -0.112 -0.7 -0.036 -0.3

Destination District

41 AMBAG AMBAG -0.242 Constr 0.183 Constr

42 CC Central Coast -0.255 Constr 1.334 Constr

43 FN Far North -1.728 Constr -0.839 Constr

44 FM Fresno -0.685 Constr -0.150 Constr

45 Kern Kern 0.476 Constr 0.522 Constr

46 Merced Merced -0.855 Constr -0.094 Constr

47 SSJ S. San Joaquin -0.144 Constr 0.547 Constr

48 SACOG SACOG

49 SANDAG SANDAG -5.072 Constr -4.395 Constr

50 SJ San Joaquin -0.108 Constr -0.375 Constr

51 Stan Stanislaus -1.043 Constr -1.426 Constr

52 WSN W. Sierra Nevada -0.134 Constr 0.407 Constr

53 MTC Alameda -0.678 Constr 5.000 Constr

54 MTC Contra Costa 0.226 Constr 5.000 Constr

55 MTC Marin/Sonoma/Napa 0.149 Constr 5.000 Constr

56 MTC San Francisco -0.847 Constr 5.000 Constr

57 MTC San Mateo -0.687 Constr 5.000 Constr

58 MTC Santa Clara -0.710 Constr 5.000 Constr

59 MTC Solano 0.800 Constr 5.000 Constr

60 SCAG Los Angeles -1.810 Constr 5.000 Constr

61 SCAG Orange -2.945 Constr 5.000 Constr62 SCAG Riverside 0.096 Constr 5.000 Constr

63 SCAG San Bernardino -4.416 Constr 5.000 Constr

64 SCAG Ventura -3.831 Constr 5.000 Constr

65 SCAG Destination district -3.001 Constr 5.000 Constr

Regional Interactions

71 mtcscag MTC to SCAG -1.123 Constr -6.400 Constr

72 mtcsandag MTC to SANDAG 1.142 Constr 3.632 Constr

73 sacogscag SACOG to SCAG -1.736 Constr -1.274 Constr

74 sacogsand SACOG to SANDAG 0.368 Constr 8.000 Constr

75 scagmtc SCAG to MTC -1.123 Constr -6.400 Constr

76 scagsacog SCAG to SACOG -1.736 Constr -1.274 Constr

77 sandagmtc SANDAG to MTC 1.142 Constr 3.632 Constr

78 sandagsac SANDAG to SACOG 0.368 Constr 8.000 Constr

79 mtcsacog MTC to SACOG 0.770 Constr 0.532 Constr80 sacogmtc SACOG to MTC 0.770 Constr 0.532 Constr

81 scagsanda SCAG to SANDAG 5.403 Constr 8.098 Constr

82 sandagsca SANDAG to SCAG 5.403 Constr 8.098 Constr

Size Variables

0 L_S_M 1.000 Constr 1.000 Constr

101 loincret Retail employment - low income 1.061 2.1 -0.041 -0.1

102 loincsvc Service employment - low income 0.547 1.5 -1.250 -3.6

103 mdincret Retail employment - medium income 2.232 4.9 -0.163 -0.4

104 mdincsvc Service employment - medium income 0.829 1.8 -0.985 -3.3

105 hiincret Retail employment - high income 1.993 5.6 0.326 0.8

106 hiincsvc Service employment - high income 0.926 2.8 -0.933 -2.4

107 msincret Retail employment - missing income (model estimation only) 12.991 0.1 -6.851 -0.1

108 msincsvc Service employment - missing income (model estimation only) 12.343 0.1 -0.836 -1.4

Trip Purpose

Business / Commute Recreation / Other


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Table 3.10. Destination Choice Models for Short Trips

Variabl Acronym Definition Coefficient t-stat Coefficient t-stat Coefficient t-stat Coefficient t-stat

Accessibility Variables

1 mlogsum Mode choice logsum 0.332 Constr 0.332 Constr 0.332 Constr 0.332 Constr

2 distance Distance (miles) -0.130 -3.7 -0.130 -6.1 -0.166 -7.9 -0.104 -4.0

3 distsqu Distance squared 0.002 2.3 0.001 2.7 0.001 3.3 0.001 1.1

4 distcub Distance cubed 0.000 -1.7 0.000 -1.8 0.000 -1.2 0.000 -0.3

Area Types

6 durban Urban destination? (0/1) 0.760 3.8 0.872 7.4 0.502 3.8 0.419 2.3

7 drural Rural destination? (0/1) 0.036 0.2 0.126 1.1 0.081 0.6 0.190 1.18 urburb Urban to urban movement? (0/1) -0.499 -1.6 -0.019 -0.1 -0.142 -0.7 0.457 1.9

9 subsub Suburban to suburban movement? (0/1) 0.253 1.1 -0.055 -0.4 0.051 0.3 -0.016 -0.1

10 rurrur Rural to rural movement? (0/1) -0.505 -1.8 -0.075 -0.5 0.336 1.9 0.245 1.0

Destination District

41 AMBAG AMBAG -0.245 Constr -5.730 Constr 5.366 Constr 6.909 Constr

42 CC Central Coast -2.553 Constr -11.136 Constr -4.168 Constr -0.469 Constr

43 FN Far North 4.294 Constr 0.805 Constr 11.121 Constr 15.867 Constr

44 FM Fresno -0.441 Constr -7.272 Constr 2.226 Constr 4.798 Constr

45 Kern Kern 0.274 Constr -12.241 Constr -5.457 Constr -0.586 Constr

46 Merced Merced -1.435 Constr -7.268 Constr 2.332 Constr 2.307 Constr

47 SSJ S. San Joaquin -0.008 Constr -2.153 Constr 3.938 Constr 3.948 Constr

48 SACOG SACOG

49 SANDAG SANDAG -3.182 Constr -13.230 Constr -3.518 Constr -2.171 Constr

50 SJ San Joaquin 0.556 Constr 0.474 Constr 4.412 Constr 4.915 Constr

51 Stan Stanislaus 0.244 Constr -0.352 Constr 4.894 Constr 4.152 Constr

52 WSN W. Sierra Nevada 1.634 Constr 0.386 Constr 5.284 Constr 4.601 Constr

53 MTC Alameda -0.275 Constr 0.816 Constr 1.601 Constr 2.174 Constr54 MTC Contra Costa 0.265 Constr 1.254 Constr 2.294 Constr 2.311 Constr

55 MTC Marin/Sonoma/Napa 0.118 Constr 1.129 Constr 2.831 Constr 1.166 Constr

56 MTC San Francisco -0.109 Constr 0.447 Constr 0.878 Constr 1.140 Constr

57 MTC San Mateo -0.010 Constr 0.961 Constr 1.288 Constr 1.588 Constr

58 MTC Santa Clara -0.244 Constr 0.325 Constr 2.296 Constr 2.010 Constr

59 MTC Solano -0.218 Constr 1.453 Constr 1.525 Constr 2.398 Constr

60 SCAG Los Angeles -2.226 Constr -9.274 Constr 4.265 Constr 4.549 Constr

61 SCAG Orange -3.617 Constr -10.991 Constr 2.931 Constr 2.665 Constr

62 SCAG Riverside -3.139 Constr -1.875 Constr -1.207 Constr -2.258 Constr

63 SCAG San Bernardino -3.764 Constr -9.920 Constr 2.438 Constr 2.456 Constr

64 SCAG Ventura -2.226 Constr -9.274 Constr 3.274 Constr 4.437 Constr

65 SCAG Destination district -3.072 Constr -9.405 Constr 3.663 Constr 3.749 Constr

Regional Interactions

71 mtcscag MTC to SCAG

72 mtcsandagMTC to SANDAG

73 sacogscag SACOG to SCAG

74 sacogsand SACOG to SANDAG75 scagmtc SCAG to MTC

76 scagsacog SCAG to SACOG

77 sandagmtcSANDAG to MTC

78 sandagsac SANDAG to SACOG

79 mtcsacog MTC to SACOG 2.700 Constr -0.467 Constr 7.140 Constr 10.368 Constr

80 sacogmtc SACOG to MTC 2.700 Constr -0.467 Constr 7.140 Constr 10.368 Constr

81 scagsanda SCAG to SANDAG -1.079 Constr 0.095 Constr 0.746 Constr -2.362 Constr

82 sandagsca SANDAG to SCAG -1.079 Constr 0.095 Constr 0.746 Constr -2.362 Constr

Size Variables

0 L_S_M 1.000 Constr 1.000 Constr 1.000 Constr 1.000 Constr

101 loincret Retail employment - low income 0.038 0.0 2.285 3.7 0.149 0.3 -10.195 0.0

102 loincsvc Service employment - low income 1.228 2.1 1.106 1.7 -2.674 -1.0 -1.478 -2.4

103 mdincret Retail employment - medium income 0.718 1.2 1.162 4.1 -0.108 -0.2 -11.112 0.0

104 mdincsvc Service employment - medium income -0.057 -0.1 0.057 0.2 -0.716 -2.0 -0.987 -2.2

105 hiincret Retail employment - high income 3.146 3.1 2.328 6.1 -0.157 -0.2 1.007 1.8

106 hiincsvc Service employment - high income 1.002 0.9 1.114 2.9 -1.778 -1.4 -1.002 -0.8

107 msincret Retail employment - missing income (model estimation only) 0.567 0.6 0.811 1.3 0.630 0.8 0.286 0.4108 msincsvc Service employment - missing income (model est imat ion only) -1.592 -0.7 -0.249 -0.4 -1.167 -0.8 -11.537 -0.1

Other

Trip Purpose

Commute RecreationBusiness


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PROOF OF SERVICE BY FAX AND ELECTRONIC MAIL

I am a citizen of the United States and a resident of Alameda County. I am over the ageof eighteen years and not a party to the within above titled action. My business address is5626 Ocean View Drive, Oakland, CA 94618-1533.

On July 6, 2010, I served the within: PETITIONER TRANSPORTATION SOLUTIONSDEFENSE AND EDUCATION FUNDS SPECIALLY PREPARED

INTERROGATORIES(Set No. One); PETITIONER TRANSPORTATIONSOLUTIONS DEFENSE AND EDUCATION FUNDS FORM INTERROGATORIES GENERAL (Set No.1); and PETITIONER TRANSPORTATION SOLUTIONS

DEFENSE AND EDUCATION FUNDS REQUESTS FOR ADMISSION (Set No.1)on the party listed below by transmitting the same via a fax machine at the telephonenumber (510) 652-5373 to the telephone number listed below. The fax machine indicatedthat the fax was properly received, and a copy of the printed fax report is attached hereto.

Danae Aitchison, Deputy Attorney General

(916) 327-2319

[email protected]

In addition, on the above-same day, I also sent an electronic copy of the above-samedocument, converted to pdf format, as an e-mail attachment, to the above-same party atthe e-mail address shown above, return receipt requested. A copy of that e-mail, showingthe date and time of transmission, is also attached hereto.

I, Stuart M. Flashman, hereby declare under penalty of perjury under the laws of the Stateof California that the foregoing is true and correct.

Executed at Oakland, California on July 6, 2010.

Stuart M. Flashman


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Exhibit B


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Exhibit C


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Law Offices of

Stuart M. Flashman5626 Ocean View Drive

Oakland, CA 94618-1533(510) 652-5373 (voice & FAX)

e-mail: [email protected]

July 16, 2010

Danae J. Aitcheson, Deputy AttorneyGeneralCalifornia Dept. of Justice1300 I Street, Ste. 125P.O. Box 944255Sacramento, CA 94244-2550e-mail: [email protected]

RE: Town of Atherton et al. v. California High-Speed Rail Authority, Sacramento CountySuperior Court Case No. 34-2008-80000022

Dear Ms. Aitcheson,

This letter responds to your meet and confer letter of July 12, 2010 regarding discoveryin the above-referenced case. I must emphatically disagree with your claim that there is no rightto discovery in a case that has been set for hearing on a petition for writ of error coram nobis.That should be obvious. I would certainly never have propounded or served discovery requestsif I felt there was no basis for conducting discovery. While there may be no published Californiacases that explicitly confirm the right to discovery in a coram nobis proceeding, the case Peoplev. Rosoto (1965) 62 Cal.2d 684 is instructive. In that case, the defendants, after conviction andentry of final judgment, filed petitions for both coram nobis and habeas corpus. (Id. at p.686.)The California Supreme Court specifically ordered the taking of evidence before a refereeregarding factual issues raised by the petition. (Id.) While it is certainly true that in this case theCourt could similarly set the contested factual issues for court trial, a major purpose of discoveryis to allow factual issues to be determined efficiently without court involvement. (See, FairmontIns. Co. v. Superior Court(2000) 22 Cal.4th 245, 253-254.) Failing to allow discovery would

essentially throw all of the factual issues identified in the writ petition into the Courts lap forresolution. Attempting to resolve or clarify the issues through discovery would comport withconsiderations of judicial economy. (See, Beverly Hospital v. Superior Court(1993) 19Cal.App.4th 1289, 1294.)

Insofar as supporting California authority is concerned, the writ of error coram nobis,while considered a civil writ, has been applied in both civil and criminal cases, and indeed is farmore common in the criminal law context. There is no difference in its application to civil orcriminal cases, nor are the procedures different. With that as context, a coram nobis petition isconsidered similar to a petition for a writ ofhabeas corpus. Indeed, California courts have heldrepeatedly that in criminal cases a petition for writ ofhabeas corpus is now the proper remedyfor issues that might formerly have been addressed by a petition for writ of error coram nobis.(e.g., People v. Adamson (1949) 34 Cal.2d 320, 327.)

As with a petition for writ of error coram nobis, a petition for writ ofhabeas corpus isgenerally a post-judgment proceeding. While the mere filing of a petition for writ ofhabeascorpus does not create a right to discovery, it is well established that once an order to show causeissues setting the matter for hearing, there is a right of discovery on issues relating to the petition(In re Scott(2003) 29 Cal.4th 783, 814), although the scope of discovery is determined on acase-by-case basis. (Id. at p. 813.) By analogy, a petition for writ of error coram nobis, once itstates aprima facia case sufficiently to be set for hearing, also creates a right to discoveryrelating to the allegations of the petition.


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Danae J. Aitcheson, Esq.7/16/10page 2

You suggest that the filing of a coram nobis petition does not cause the case to bepending. However, the courts determination to set a hearing date, or in this case itsdetermination not to accept your invitation to summarily dismiss the petition but instead to allowthe hearing to go forward, just as with an order to show cause in a habeas corpus proceeding,does place the matter before the court.

However, in the spirit of compromise and in the interest of not causing unnecessarymotion practice, my client is willing to extend the time to respond to its discovery requests untilten days following the court hearing on August 20

th, provided the following condition is agreed

to by the Authority. If the court determines to deny the petition, no further response would berequired from the Authority. If, however, the court determines to either grant the petition or toconduct further proceedings, the Authority would respond to the requests within ten days withoutraising further objections. Please let me know within five court days whether the Authority iswilling to accept this proposal.

Most sincerely,

Stuart M. Flashman


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Exhibit D


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hsr 15 -motion for discovery

Documents