Stein v. Dept. of Fish and Wildlife CA3

Filed 8/24/16 Stein v. Dept. of Fish and Wildlife CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

PAUL STEIN et al., C076561

Plaintiffs and Appellants, (Super. Ct.

No. 34201100114371CUEIGDS)

v.

DEPARTMENT OF FISH AND WILDLIFE et al.,

Defendants and Respondents.

Appellants Paul and Jason Stein1 appeal from the trial court’s judgment of

dismissal of their second amended complaint (SAC), following an order granting the

respondents’ (State of California, California Department of Fish and Game (DFG),2

1 Appellant Jason Stein is not an active party in this litigation. For clarity, we treat Paul

Stein (Stein) as the sole appellant.

2The Department of Fish and Game changed its name to the Department of Fish and

Wildlife after the events which gave rise to this action.

1

William Cox, Neil Manji, and John McCamman)3 motion for summary judgment. The

issues in this case involve Stein’s sale of his trout farm, known as Kemoo Trout Farm

(KTF). On appeal, Stein contends the trial court erred in granting summary judgment

because: (1) the summary judgment motion was “irregular on its face”; (2) contrary to

the trial court’s ruling, he has standing to bring claims for the alleged unconstitutional

taking of KTF; (3) neither failure to petition for administrative mandate nor the statute of

limitations bars his claims; and (4) the trial court’s evidentiary rulings excluding evidence

presented in opposition to the motion for summary judgment were erroneous.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Facts Alleged by Stein

Various owners and operators have raised trout at KTF in Calaveras County since

1967. Stein owned and operated KTF from 1980 to 1997.4

In 1982, the DFG identified Myxobolus cerebralis (Mc) in waters supplying KTF.

Mc is a parasite that can cause whirling disease under certain conditions. Whirling

disease affects trout and was categorized as a serious disease in California Code of

Regulations, title 14, section 245. The DFG’s policy was to contain Mc within known

infected water basins, and prohibit activities that could aggravate the parasite’s impacts

or increase its geographic distribution. The DFG allowed established aquaculturists to

continue producing and distributing commercially infected fish under the conditions of a

3 In 2007, William Cox was the supervising biologist of the Fisheries Branch, and

reported to Neil Manji. Manji was the Fisheries Branch Chief of the DFG. John

McCamman was first Chief Deputy Director, then Acting Director, of the DFG. We refer

to the individual respondents by their last names, and the individual respondents and

DFG collectively as respondents.

4 In addition to being the owner of KTF, Stein was once employed by DFG, serving as

an appointed chief deputy director of DFG for a year. He left that post in 2005.

2

compliance agreement generally designed to contain Mc and limit its potential impacts.

However, the DFG sought to “not allow significant expansion of existing aquaculture

facilities which test positive for whirling disease, nor to authorize any new facilities using

whirling disease positive water sources.”

In 1983, the DFG diagnosed Mc at KTF after finding rainbow trout infected with

Mc spores in samples taken from the farm. The DFG subsequently quarantined the

facility and destroyed the fish Stein had on hand at the time. Stein was compensated for

this destruction of property, and he used the money to improve KTF in hopes of getting

rid of Mc. In June of 1984, Stein entered into a compliance agreement that ran from

July 1, 1984, to September 15, 1984, and provided interim measures until the DFG could

conclude testing and surveillance and decide whether to allow reestablishment of “normal

cultural and marketing operations.” KTF resumed operation in 1984 and continued until

December of 1996.

On May 14, 1987, the DFG renewed KTF’s registration but imposed two

conditions due to the known presence of Mc “in waters in the vicinity of” the facility.5

The conditions required that tubifex worms, hosts for Mc that could facilitate the

parasite’s spread, be kept out of the facility. The conditions also limited stocking of trout

from KTF to waters already known to be infected with Mc, subject to future disapproval

by the DFG “if it is determined that such stocking poses a threat to fishery resources,

private aquaculture or a general expansion of the range of [whirling] disease.” The

conditions applied to “all subsequent years of operation unless amended by written notice

from the [DFG].”

In December of 1996, KTF was destroyed by a flood and rebuilt by Stein in its

current form.

5 In this document, and others, Mc and “whirling disease” are used interchangeably.

3

In 1997, Stein leased KTF to Don and Jan Stivers. The Stiverses operated KTF

from 1997 to 2002. In or around June of 1999, the DFG learned that fish infected with

Mc had been transferred from KTF to a Mc-free facility. On June 28, 1999, the DFG sent

the Stiverses a letter informing them of the discovery and reminding them that the

compliance agreement from 1987 prohibited such transfers.6 In 1999, with KTF still

“positive for Mc,” the Stiverses entered into a compliance agreement. The 1999

compliance agreement contained conditions intended to “assure continued protection of

the fishery resources of California, and minimize impacts to [KTF].” The agreement

generally limited distributions of fish from Mc-positive sites; limited distributions of Mc-

positive fish; prohibited “[f]acility expansion utilizing increased volumes of Mc-positive

waters, to increase production and distribution of Mc-positive fish”; and expressly noted

that “[n]ew or presently unregistered facilities utilizing Mc-positive waters will not be

approved for registration or use.” In his declaration, Stein referred to this agreement as

an agreement that had been “revised” by DFG.

KTF was last operational in 2002. Thereafter, Stein did not renew the aquaculture

license registration at KTF.

On March 6, 2006, Cox received a partial voicemail from Marlyss Hanson, a

prospective buyer for KTF. Cox e-mailed Stein to obtain the buyer’s contact

information, and also said, “I shoul[d] talk to you about the existing compliance

agreement. That would be re-written for the new owner, and I’d like to discuss that with

you.”7 Stein replied, “I remember the compliance agreement and have apprised them of

6 The record does not contain an actual compliance agreement dated 1987; this letter was

likely referring to the registration conditions set forth in the DFG’s registration letter to

Stein on May 14, 1987.

7 In full, the text of the Cox e-mail reads: “Paul [¶] I received half of a phone message

from Martis? Hanson, who is a prospective buyer of your trout farm. Unfortunately the

message was cut off before a phone contact was left. Do you have her contact

4

the whirling disease exposure. I believe in full disclosure so feel free to give them

whatever they reasonably request.”8 In his declaration, Stein said he relied on Cox’s

“representation” in the e-mail, but he did not say that he contacted Cox to discuss the

compliance agreement as Cox had requested. There is no other evidence in the record

that Stein contacted Cox regarding how the compliance agreement would be rewritten or

what conditions it would contain. Nor is there any evidence in the record that Stein and

Cox had any other communication about the compliance agreement other than the

March 6, 2006, Cox e-mail.

On or about June 21, 2007, Stein sold KTF to Deborah and John Coleman for

$650,000; Stein held an installment note on the sale for $500,000. There is no evidence

in the record that Stein informed Cox or anyone else at DFG about this buyer or that Cox

or anyone else at DFG was otherwise informed of this sale before it occurred.

On August 2, 2007, John Coleman applied for an aquaculture registration permit

with the DFG. On August 24, 2007, Cox e-mailed his superior, Manji, to express

concerns about the Colemans’ application. Cox wrote, “We have an issue here. This

facility is whirling disease positive dating back to the early 1980’s. It has not been

registered for about 5 years, and now ownership, or operation, has changed. The new

owner/manager is applying for registration. Normally, for new facilities we would not

register a facility if we knew the product produced would be diseased. This approach has

information for a follow up? Also, I shoul[d] talk to you about the existing compliance

agreement. That would be re-written for the new owner, and I’d like to discuss that with

you. [¶] Hope all is well. [¶] bc.”

8 With the exception of the requested contact information, the entirety of Stein’s

response reads: “Hey Bill. Marlyss Hanson can be reached @ [phone number omitted].

You can contact me at the number below. Yes I remember the compliance agreement

and have apprised them of the whirling disease exposure. I believe in full disclosure so

feel free to give them whatever they reasonably request. [¶] Thanks Bill. [¶] Paul Stein

[Stein’s contact information omitted].”

5

been used numerous times, especially in Mono and Inyo counties. Also, unwritten policy

has been to not re-register [whirling disease] positive sites once their registration has

expired. The idea being that eventually these positive sites would become inoperative

and the State would benefit by not having diseased fish to plant. However, this smacks of

underground regulation. [¶] To complicate things a little further, the site which was sold

or leased was owned by former chief deputy director Paul Stein. A [whirling disease]

compliance agreement was written for [KTF] in ~1983 which I believe is still en [sic]

force. [¶] Resource-wise it would be best to not grant re-registration. Legal issues may

come into play. I’m not sure if the property was sold, or is being leased. I’m also not

sure if disclosure of the [whirling disease] issue was made by Paul.”

On August 29, 2007, Cox indicated in another internal e-mail that he had spoken

with Manji about the Colemans’ application for registration. According to Cox, Manji

did not want to register KTF because it would likely produce diseased fish. However,

Cox noted, “Some language needs to include the willingness of DFG to test fish . . . since

we have done this elsewhere prior to registration. . . . There is some chance that the

facility has been dried up for the last 5 years and the pathogen has vanished. . . . We need

to deal with all aquaculture registration applications in a consistent manner.” Cox added,

“There also seems to be some confusion as to who is the owner and who is the manager

vs who is applying for the permit.”

On October 2, 2007, McCamman emailed Stein and shared information he had

received from Manji. The e-mail noted that Stein had been working under a compliance

agreement but went on to say, “Once a facility is taken off line, and the permit expires,

DFG has not re-issued permits. The reasoning is to limit the number of diseased fish

from being raised and released into state waters. We do not permit new facilities if they

have tested positive for [whirling disease]. Since [KTF] has been off line for several

years and the permit has expired, we normally do not issue a permit to a new owner. We

are willing to retest the facility to determine if being off line has reduced or eliminated

6

the [whirling disease] problem. If the facility is clean, then DFG would re-issue the

permit.” Stein urged the Colemans’ application should not be “considered a new license

since [KTF] has a previous history of 30 years of continuous operation,” and he

suggested treating the application as “a reissuance of the old permit” instead. Stein also

indicated testing KTF would be a “waste [of] staff time” since whirling disease was

endemic to the water source, but suggested “craft[ing] a compliance agreement that calls

for the use of available technology to minimize exposure to [whirling disease], restrict

future movement of product to waters know[n] to have [whirling disease] present and/or

restrict trout raised at the facility to the dressed fish market.”

McCamman replied, “I’ve got the permit application for a new permit in front of

me now, and really there is no way we can consider [the Colemans’ application] a

renewal – a lapsed permit requires a new application. We have rejected applicants in

similar circumstances previously, and are about to prospectively, so to make an exception

here would cause us a world of hurt. As I indicated previously, we will place some fish

in [KTF] and see what happens . . . alternately, there are other species, and in fact we

MAY consider whirling disease resistant strains of trout, but this would have to go to the

aquiculture advisory committee [AAC] for determination.”

Stein replied, “John: I understand your dilemma. Let’s try to work with the

solution where [the Colemans] are allowed to work with [whirling disease] resistant

strains, use ultraviolet lights to minimize infection, dressed trout market etc. Have Neil

set up a consult with the AAC to discuss this option. Thanks again for your help.”

McCamman forwarded Stein’s e-mail to Manji and asked Manji to schedule the

consult Stein requested. McCamman also said he explained to Stein that if the new

operator wanted to look at disease resistant strains and water treatment, approval from the

AAC would still be required and then stated, “He asked for [a] hearing. Please work

directly with Paul, or perhaps directly with the applicant, on scheduling a place on the

agenda for the [AAC], in the form of a permit appeal?” McCamman noted that

7

scheduling the “appeal” probably meant the DFG would have to first reject the

Colemans’ pending application.

On November 5, 2007, after KTF again tested positive for Mc, Manji informed the

Colemans in writing that the DFG would issue their aquaculture registration, but “[t]o

protect California’s diverse fish populations,” new conditions would be required,

including: (1) incoming water would have to be irradiated with ultraviolet light; (2) only

whirling disease resistant fish could be cultured; and (3) no live products were to leave

KTF and only dead fish were to be marketed. These restrictions would not apply if

species other than salmonids were cultured.9

On December 11, 2007, the Colemans e-mailed Stein that the new conditions

created “an unexpected additional operating cost.” The Colemans also said, “we believed

we were buying the trout farm with no limitations except out [sic] ability to manage it.

We are disappointed that we were not told of the [w]hirling’s disease history.” Stein

replied, “I’m sorry to hear that Lannie[10] never fully disclosed the whirling disease issue.

9 Manji’s November 5, 2007, letter to the Colemans stated the following: “Thank you

for your cooperation with Dr. Maret from our Fish Health Lab. Your fish farm at

[address omitted] tested positive for whirling disease spores. To protect California’s

diverse fish populations, the Department requires specific conditions to alleviate our

concerns about the spread of whirling disease. [¶] The Department will issue your

Aquaculture Registration with the following conditions: [¶] 1) Incoming water shall be

irradiated with ultraviolet light sufficient to kill TAMS and spores of [Mc]. [¶] 2) Only

whirling disease resistant fish shall be allowed for culture; for salmonids, this is restricted

to brown trout and Hofer strain rainbow trout. [¶] 3) No live products are to leave the

facility. Fish are to be marketed dead to terminal food markets only. [¶] If species other

than salmonids are to be cultured these restrictions do not apply. [¶] If you have any

questions, please contact Dr. Joe Maret at [phone number omitted].”

10 The reference to “Lannie” is apparently to Lannie Staniford, Stein’s real estate agent.

In his declaration, Stein stated that the Colemans sued him “for not disclosing whirling

disease, a material fact, not exclusively for the DFG actions or policies, even though I did

disclose these facts to the real estate agent.”

8

She knew as does everyone in Calaveras County that whirling disease is in the Middle

fork. That is specifically why I mentioned the compliance agreement with DFG in the

disclosure document, and further stated that I made no representation that trout could

successfully be raised at the facility. I was really under the impression that you both

loved the property and the trout farm was merely a delightful addition. As for value, I

knocked $100K off the previous year’s asking price because Lannie represented you were

motivated and really fell in love with the property. I had a good feel about you and

determined this was a fair price. [¶] The trout farm can still be profitable but in the

dressed or smoked market. Over time, with a clean bill of health, I’m certain you will be

able to plant fish in whirling disease endemic areas, just as I did for over a decade.” The

Colemans continued to operate KTF under the conditions set forth in the November 5,

2007, letter.

The Colemans’ aquaculture license registration expired on December 31, 2007.

Around May of 2008, Stein e-mailed the Colemans that he met with DFG staff, including

Cox, and they would offer “to put some test fish at the facility . . . immediately. This will

get you started without any necessity for ultraviolent equipment. They have agreed that

you can start a slow and incremental operational plan to return the hatchery to

productivity.”

From July to October of 2008, Garry Kelley, an associate fish pathologist with the

DFG, conducted a preliminary study to evaluate the presence of Mc in rainbow trout at

KTF. The study detected no Mc and observed no lesions typically associated with Mc

development. The findings suggested low prevalence of Mc in KTF’s water source. Due

to the preliminary study’s small sample size, however, Kelley noted the need for further

investigation of whirling disease development at KTF.

From January to August of 2009, Kelley conducted a second, more expansive

investigation into whirling disease at KTF. This second study again detected no Mc in

trout from KTF.

9

It is unclear whether, and how, the DFG engaged in further deliberation over the

conditions on KTF following these tests, but the Colemans continued to operate KTF

under the conditions set forth in Manji’s November 5, 2007, letter, including the

prohibition against transporting or selling live trout. There was no date set by which they

would be permitted to transport live fish and as far as the Colemans understood that

condition would remain for the “foreseeable future.” The Colemans asked DFG to make

changes to the conditions, but DFG refused.

The Coleman Action

On June 18, 2010, the Colemans filed suit against Stein for breach of contract and

fraud. The complaint alleged the Colemans bought KTF “with a previously established

fish farm that they could operate as a business raising and selling live trout to customers

that [Stein] had established, continuing [Stein’s] operation with the existing facilities,”

but Stein in fact sold “the property without a viable fish business, and with useless

unsightly facilities that have to be removed.”

The case settled on October 7, 2011. The settlement agreement lowered the

original sale’s installment note from $500,000 to $220,000. The Colemans also assigned

their rights to any legal claims against the DFG to Stein.

The Present Action

On November 21, 2011, Stein sued the DFG and DOES for inverse condemnation

and deprivation of rights under section 1983 of title 42 of the United States Code.11 The

DFG demurred, arguing that the court had no jurisdiction over the inverse condemnation

cause of action, and that the complaint failed to sufficiently plead either the inverse

condemnation or section 1983 causes of action.

11 Section 1983 refers to section 1983 of title 42 of the United States Code unless

otherwise specified.

10

By stipulation, Stein submitted a first amended complaint (FAC), naming Cox,

Manji, and McCamman as individual defendants. Respondents demurred again, claiming

Stein failed to plead facts sufficient to constitute either an inverse condemnation cause of

action or a section 1983 claim. The demurrer set forth three arguments: (1) both causes

of action were barred by their respective statutes of limitations12; (2) respondents’ actions

did not deprive Stein of all reasonable use of KTF; and (3) the section 1983 action against

individual respondents in their official capacities was not actionable as a matter of law.

In opposition to respondents’ demurrer, Stein claimed the facts giving rise to his

causes of action did not come to light until October 2011. Stein also contended

respondents were estopped from relying on statutes of limitations, because respondents

fraudulently concealed facts essential to the causes of action against them. Additionally,

Stein argued conditions imposed on KTF operations constituted “a de facto taking of the

business in it’s [sic] entirety, because the business was one of selling, transporting and

planting live trout,” and in any case damage to “less than all” of KTF, i.e., damages

reflecting a diminution in value would still be compensable. Finally, Stein claimed the

individual respondents, “exercising and abusing arbitrary and capricious authority

without any basis in logic, law or fact, arbitrarily and capriciously destroyed [his]

business in its entirety,” and were thus liable under section 1983 for deprivation of

constitutional rights.

The trial court overruled the demurrer as to inverse condemnation, finding Stein’s

arguments could “be construed to state equitable estoppel barring [respondents] from

12 Specifically, the statute of limitations was three years for inverse condemnation and

two years for section 1983; respondents argued that both accrued in 2007 because the

DFG’s restrictions on KTF operations were implemented in November of 2007, and the

Colemans notified Stein as to these restrictions in December of 2007.

11

raising the statute of limitations as a defense.” The court also ruled that “a governmental

taking can occur absent denial of all economically beneficial use of property.”

The trial court also overruled the DFG’s demurrer as to the section 1983 claim.

Based on the aforementioned analysis, the court found that respondents were not entitled

to demurrer based on a statute of limitations defense. The court sustained the demurrer

with leave to amend as to the individual respondents because “state officials acting in

their official capacities are not ‘persons’ within the purview of 42 U.S.C. § 1983 and

cannot be sued as such for damages.”

Stein filed a second amended complaint (SAC), with additional allegations that

respondents “acting individually, and as the State of California and it’s agency, the

[DFG],” took actions that functionally shut down Stein’s business at KTF.

Thereafter, respondents moved for summary judgment. They argued that Stein

lacked standing to bring an inverse condemnation action because he failed to petition for

a writ of administrative mandate; the action was untimely; KTF had no value anyway

because it was sold as “vacant land”; and individual respondents could not be liable for

inverse condemnation as a matter of law, because individuals do not have the power of

eminent domain. Respondents further argued that Stein lacked standing to bring a section

1983 claim because he had no property interest in KTF at the time of the alleged

violation, and a section 1983 claim involves a violation of individual rights that cannot be

assigned; the action was untimely; and individual respondents were entitled to qualified

immunity.

In opposition, Stein argued that respondents were estopped from relying on his

failure to petition for a writ of administrative mandate, since respondents’ actions misled

him as to the final nature of conditions imposed on KTF. Stein further argued that

administrative mandate would be an inadequate remedy in any case, because it could not

restore his rights after final settlement with the Colemans. Similarly, Stein repeated that

respondents could not rely on timeliness issues because respondents misrepresented the

12

final nature of conditions imposed on KTF. Additionally, Stein repeated conclusory

assertions that KTF had value as a business regardless of how it was sold; the individual

respondents are liable; and the Colemans assigned their rights to sue to Stein.

The court granted respondents’ motion for summary judgment. As to the inverse

condemnation cause of action, the court found that the Colemans, who owned KTF at the

time of the alleged violation, believed the conditions imposed to be final,13 and no one

ever filed a petition for a writ of administrative mandate. Thus, the court concluded, the

Colemans had forfeited their right to an inverse condemnation action, and had no such

right to assign to Stein.

As to the section 1983 claim, the court found that Stein provided no legal or

factual support for his contention that he had any claim against respondents except by

assignment from the Colemans. The court concluded Stein could not maintain an action

for deprivation of property, since he did not actually own KTF at the time of the alleged

violation. Similarly, because the Colemans believed the conditions on KTF to be final,

the court rejected Stein’s estoppel argument because the Colemans would not be able to

assert such argument against respondents’ claim that the statute of limitations for a

section 1983 action had run.

The court considered evidentiary objections from both parties. The court

overruled all of Stein’s objections to respondents’ evidence and statement of undisputed

facts. The court sustained some of respondents’ objections to Stein’s evidence. The

court did not consider the inadmissible evidence in deciding respondents’ motion for

summary judgment.

13 The trial court noted Deborah Coleman indicated her understanding that the

November 5, 2007, letter from Manji was the DFG’s final decision, citing her deposition

testimony where she said the DFG “ ‘wouldn’t change anything on it. We asked.’ ”

13

DISCUSSION

We review the trial court’s grant of summary judgment de novo, applying the

same rules and standards that govern a trial court’s determination of the motion. (Carnes

v. Superior Court (2005) 126 Cal.App.4th 688, 694 (Carnes).) We consider all the facts

that were before the trial court, including evidence set forth in the moving and opposing

papers, except that to which objections were made and sustained. (Yanowitz v. L’Oreal

USA, Inc. (2005) 36 Cal.4th 1028, 1037.) “We liberally construe the evidence in support

of the party opposing summary judgment and resolve doubts concerning the evidence in

favor of that party.” (Ibid.)

I. Asserted Summary Judgment Procedural Irregularities

A. The Parties’ Contentions

Stein contends respondents’ “motion for summary judgment was irregular on its

face and should have been denied” for that reason. Stein alleges two irregularities. First,

he complains that respondents relied on the same fifteen “multi-part repetitive and

redundant” facts to support each of nine identified issues in their motion for summary

judgment. Second, he essentially argues that respondents’ claims to immunity fail

because respondents failed to contest “evidence of misconduct, abuse of discretion,

waiver, misrepresentation, and concealment” to overcome Stein’s assertion of estoppel.

Respondents assert that basing multiple grounds for summary judgment on the

same facts is not reason to deny summary judgment, and Stein failed to explain “how or

why the undisputed material facts submitted in the [motion for summary judgment] fail to

support summary judgment on qualified immunity grounds.”

B. Analysis

We agree with respondent that Stein has not shown irregularities in the motion for

summary judgment that would have warranted denying the motion.

Stein cites Code of Civil Procedure section 437c, subdivision (b)(1), in support of

his claim of irregularities. That provision requires that supporting papers to a motion for

14

summary judgment include a separate statement of undisputed material facts, and

provides that “ ‘failure to comply with this requirement . . . may in the court’s discretion

constitute a sufficient ground for denial of the motion.’ ” (Code Civ. Proc., § 437c,

subd. (b)(1).) Stein did not, however, specifically explain how respondents’ motion

failed to comply with this requirement. In fact, in the sentence immediately following

this citation, Stein states, “The fact-intensive nature of the motion and the disputed issues

of material fact can nowhere better be shown than by moving party’s own voluminous

Separate Statement of Undisputed Material Facts in Support of the Motion for Summary

Judgment.” (Italics added.) Since Stein acknowledges that respondents submitted a

separate statement in support of their motion, it is unclear how Code of Civil Procedure

section 437c, subdivision (b)(1), supports his position on appeal. Stein carries the burden

to clearly state the issues on appeal and make coherent legal arguments. (Cal. Rules of

Court, rule 8.204(a)(1)(B)-(C); see also People v. Freeman (1994) 8 Cal.4th 450, 482,

fn. 2.) To the extent he cites authority without argument, the citations are not considered

and do not merit discussion on appeal. (See, e.g., In re S.C. (2006) 138 Cal.App.4th 396,

408.)

The only argument on this point we can discern from Stein’s brief is that

respondents’ use as to each ground for summary judgment of “multi-part repetitive and

redundant” facts constitutes a “ ‘failure to comply’ ” with the requirement of Code of

Civil Procedure section 437c, subdivision (b)(1), such that the trial court should have

denied respondents’ motion for summary judgment on that basis. But even if we

considered this argument, it is meritless. First, Stein provides no legal support for his

contention that use of the same facts to support multiple grounds for summary judgment

is “irregular” and thus grounds for reversal. Second, even assuming arguendo that

respondents’ separate statement failed to comply with the requirement to set forth facts

“plainly and concisely,” the decision whether to deny the motion on that basis is “in the

[trial] court’s discretion.” (Code Civ. Proc., § 437c, subd. (b)(1).) Where a trial court is

15

required to exercise its discretion in ruling on a Code of Civil Procedure section 437c

motion for summary judgment, we review that decision for abuse of discretion.

(GuideOne Mutual Ins. Co. v. Utica National Ins. Group (2013) 213 Cal.App.4th 1494,

1501; Whitehead v. Habig (2008) 163 Cal.App.4th 896, 901.) Stein makes no argument

that the trial court abused its discretion in granting respondents’ motion for summary

judgment despite a supposedly deficient separate statement of undisputed material facts.

Stein’s argument thus fails to show reversible error based on Code of Civil Procedure

section 437c, subdivision (b)(1).

Stein’s second asserted irregularity is not a procedural irregularity with

respondents’ motion for summary judgment, but rather a substantive argument that

respondents should be estopped from raising a statute of limitations defense. As such, we

address it in our discussion of the section 1983 action, post.

II. Evidentiary Rulings

In the last argument in his opening brief, almost as an afterthought, Stein seeks

reversal of the trial court’s evidentiary rulings sustaining many of respondents’ objections

to the declarations of Stein and Richard Reynolds. Unlike Stein, we address this before

turning to the causes of action because the evidentiary rulings shape the record before us

on appeal.

“ ‘The trial court is “vested with broad discretion in ruling on the admissibility of

evidence,” ’ ” and its “ ‘ “ruling[s] will be upset only if there is a clear showing of abuse

of discretion.” ’ ” (Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1513.) The

trial court abused its discretion if, “ ‘in light of the applicable law and considering all

relevant circumstances, the court’s decision exceeds the bounds of reason and results in a

miscarriage of justice.’ ” (Safeco Ins. Co. of America v. Superior Court (2009) 173

Cal.App.4th 814, 832.) We presume the trial court properly applied the law and acted

within its discretion unless Stein affirmatively shows otherwise. (Id. at pp. 832-833.)

16

Here, Stein does not challenge any specific evidentiary ruling, but recites various

details from his declaration. The relevance of these recitations is unclear, but Stein

appears to argue that conflicts between his testimony and the Colemans’ testimony raise a

“triable issue of material fact as to the credibility of the witnesses.” Thus, we discern his

argument to be that the court erred in deciding the issue -- i.e., determining that the

Colemans were more credible than Stein -- instead of merely noting that a triable issue of

material fact precluded summary judgment.

Stein’s argument, as we understand it, is meritless. First, there is no evidence that

the trial court made any factual determination as to the relative credibility of Stein and

the Colemans. Indeed, inconsistent with their credibility argument, Stein argues

elsewhere in his briefing that the trial court’s evidentiary rulings lacked accompanying

reasoning. Second, Stein does not challenge the bases of any objections to his

declaration, nor does he assert that the trial court abused its discretion in sustaining such

objections on those bases. Stein’s argument that the trial court erroneously disregarded a

triable issue of material fact speaks to the merits of his inverse condemnation cause of

action, not to the correctness of the trial court’s evidentiary rulings. Insofar as Stein’s

arguments are relevant to the inverse condemnation cause of action, we address them

post.

Stein also requests reversal because the trial court “sustained blanket objections.”

While the trial court explained some of its rulings, it simply noted that other objections

were “SUSTAINED.” Stein’s opening brief cites Nazir v. United Airlines, Inc. (2009)

178 Cal.App.4th 243, 255 (Nazir), and Twenty-Nine Palms Enterprises Corp. v. Bardos

(2012) 210 Cal.App.4th 1435, 1449 (Twenty-Nine Palms), for the proposition that blanket

rulings, sustaining objections without explanation, constitute abuse of discretion. Neither

case holds that summarily sustaining numerous objections categorically constitutes an

abuse of discretion. Nor has Stein cited any case that so holds. Indeed, Nazir and

Twenty-Nine Palms are both distinguishable from the instant case.

17

In Nazir, the trial court sustained 763 out of 764 defense objections. (Nazir,

supra, 178 Cal.App.4th at p. 255.) The reviewing court found there was “no way that the

trial court could properly have sustained 763 objections ‘ “ ‘guided and controlled . . . by

fixed legal principles.’ ” ’ ” (Ibid.) The Nazir court cited several reasons for its

conclusion. The court emphatically observed that some of the sustained objections “did

not even assert any basis for the objection!” (Id. at p. 256.) Other objections were to the

plaintiff’s testimony about things like his religion or skin color. (Ibid.) Over 250 of the

sustained objections failed to even quote the evidence objected to. (Ibid.) Twenty-seven

objections were to the plaintiff’s brief rather than his evidence. (Ibid.) Many of the

sustained objections were obviously frivolous. (Ibid.) And the reviewing court

determined that the one objection the trial court overruled should have been sustained, at

least in part. (Id. at p. 257.) Under these extreme circumstances, the reviewing court

concluded the trial court’s evidentiary rulings were “a manifest abuse of discretion.”

(Ibid.)

Nazir does not, however, stand for the proposition that the issuance of a blanket

ruling sustaining multiple objections constitutes abuse of discretion as a matter of law.

Nothing like the facts in Nazir is present here, nor does Stein assert any parallel between

Nazir and this case aside from the mere fact that many objections were made and

sustained. Here, the number of summarily ruled-upon objections was much smaller than

it was in Nazir. Moreover, unlike in Nazir, the trial court did not issue a purely blanket

ruling but, in disposing of over 100 defense objections, identified every objection

overruled and every objection sustained. Apart from sustaining objections on the

grounds asserted, the court also specifically explained why it sustained one particular

objection on grounds other than what respondents argued. Unlike in Nazir, Stein has not

shown here that any significant portion of the sustained objections was clearly frivolous

or unreasonable. In short, the trial court’s evidentiary rulings in this case are not

comparable to the rulings in Nazir that constituted a manifest abuse of discretion.

18

Twenty-Nine Palms is likewise distinguishable from the instant case. There, as in

Nazir, the reviewing court concluded “the trial court’s blanket ruling sustaining all the

objections, without reasoning, was an abuse of discretion.” (Twenty-Nine Palms, supra,

210 Cal.App.4th at p. 1449.) Again, there was more to the analysis than the mere fact

that the trial court issued blanket evidentiary rulings. The reviewing court in Twenty-

Nine Palms based its conclusion on, inter alia, the “sweeping nature of the objections,”

and specific examples where it appeared the trial court sustained unreasonable objections

or did not consider individual objections. (Id. at pp. 1447-1449.) Again, Stein has not

shown similar objections by the opposing party or rulings by the trial court here.

Furthermore, while the reviewing court in Twenty-Nine Palms determined that “the

objections in [that] case needed individual attention,” it also specifically observed that

“summarily ruling on numerous evidentiary rulings is a common labor-saving practice in

law and motion courts.” (Id. at p. 1447.) This acknowledgement, while not expressly

endorsing the “common labor-saving practice,” at least contradicts Stein’s suggestion that

the mere act of summarily ruling on numerous evidentiary rulings, in and of itself,

constitutes abuse of discretion.

Even if Stein had shown that the trial court abused its discretion in sustaining any

of respondents’ objections, such error would not require reversal. To obtain a reversal on

appeal, Stein must show that the error was prejudicial. (Cal. Const., art. VI, § 13;

Carnes, supra, 126 Cal.App.4th at p. 694.) “[A]n erroneous evidentiary ruling requires

reversal only ‘if there is a reasonable probability that a result more favorable to the

appealing party would have been reached in the absence of the error.’ ” (Twenty-Nine

Palms, supra, 210 Cal.App.4th at p. 1449.)

Here, as we have noted, Stein has not challenged any specific evidentiary ruling.

In a sense, his contention on appeal can be viewed as a “blanket” assertion of error. And

Stein has not asserted, much less shown, that he was prejudiced by any specific alleged

error or combination of alleged errors related to any of the trial court’s evidentiary

19

rulings. We conclude that here, as in Twenty-Nine Palms, any error in the trial court’s

evidentiary rulings would not change the outcome of respondents’ summary judgment

motion because Stein failed to create a triable issue of fact, as we explain post. (Twenty-

Nine Palms, supra, 210 Cal.App.4th at p. 1449.)

III. Inverse Condemnation

A. The Parties’ Contentions

Respondents contend Stein should be estopped from asserting KTF had any

business value at the time of the alleged taking. Moreover, respondents argue that Stein

lacks standing to bring an action for inverse condemnation because he failed to petition

for a writ of administrative mandate, and the action is in any case untimely and barred as

a matter of law. Finally, respondents claim Stein cannot bring an inverse condemnation

action against individual respondents as a matter of law.

Stein raises two possible theories of why he has standing to bring this cause of

action. First, there is the assignment of rights from the Colemans, which Stein

characterizes as merely a precaution. Under this theory, he alleges the new conditions

respondents imposed on the Colemans’ operation of KTF “effectively ended the

business” and amounted to an unconstitutional taking. Second, Stein claims he has

independent standing to sue for inverse condemnation because respondents’ decision to

impose new conditions on the Colemans diminished the property value of KTF -- i.e.,

what Stein could get for selling the property -- and amounted to an unconstitutional

taking of the sale value of KTF. Specifically, Stein contends he sold KTF “only after he

was assured the Compliance Agreement would be re written [sic] for new owners.”

Additionally, Stein suggests in his opening brief and elaborates in his reply brief

that respondents misled him into thinking he (1) could sell KTF at full value because the

new owners would be allowed to operate KTF under Stein’s compliance agreement, and

(2) did not need to pursue administrative remedies because the conditions imposed on the

Colemans would be lifted in the future. Thus, Stein contends, respondents should be

20

estopped from arguing that nonexhaustion of administrative remedies or untimeliness

bars his cause of action under his second theory of standing.

B. Analysis

1. Respondents’ Claim of Estoppel

Respondents contend Stein cannot claim any loss of value as a result of the alleged

“taking” because “he maintained as an undisputed fact in the Coleman action that [KTF]

had no value whatsoever.” Stein in his reply brief essentially argues that although KTF

was sold as vacant land rather than as an ongoing business, its potential for trout farming

operations was nonetheless understood to be a significant part of its value; and in any

case Stein is not estopped by his arguments in the Coleman action from claiming

damages in the instant case.

Respondent’s estoppel claim was raised before the trial court. However, the trial

court disposed of the inverse condemnation cause of action on the basis that Stein failed

to petition for a writ of administrative mandate, and did not reach this estoppel issue.

As a preliminary matter, respondents did not cite any legal authority to support

their estoppel argument here, nor did they specify what kind of estoppel is in dispute.

“Where a point is raised in an appellate brief without . . . legal support, ‘it is deemed to

be without foundation and requires no discussion by the reviewing court.’ ” (Juror

Number One v. Superior Court (2012) 206 Cal.App.4th 854, 865.)

Even if we considered respondents’ argument, it would be insufficient to defeat

Stein’s claim for inverse condemnation. Respondents’ argument most closely resembles

an assertion of judicial estoppel. “ ‘Judicial estoppel is an equitable doctrine aimed at

preventing fraud on the courts’ ” by “prohibit[ing] a party from taking inconsistent

positions in the same or different judicial proceedings.” (M. Perez Co., Inc. v. Base

Camp Condominiums Assn. No. One (2003) 111 Cal.App.4th 456, 463.) Judicial estoppel

applies when: “(1) the same party has taken two positions; (2) the positions were taken in

judicial or quasi-judicial administrative proceedings; (3) the party was successful in

21

asserting the first position (i.e., the tribunal adopted the position or accepted it as true);

(4) the two positions are totally inconsistent; and (5) the first position was not taken as a

result of ignorance, fraud, or mistake.” (Jackson v. County of Los Angeles (1997) 60

Cal.App.4th 171, 183.) Respondents’ apparent assertion of judicial estoppel fails to meet

the third and fourth requirements. We discuss those requirements in reverse order.

In the Coleman action, Stein asserted that KTF had not been sold as an ongoing

business as an “alternative, provisional defense” to the Colemans’ claim that they

purchased an existing business. In this action, Stein does not assert that KTF was sold as

an ongoing business; in fact, he admits it was sold as “vacant land” but explains that this

did not reflect KTF’s primary value as a potential trout farming operation.

For judicial estoppel to apply, the seemingly conflicting positions “must be clearly

inconsistent so that one necessarily excludes the other.” (Coleman v. Southern Pacific

Co. (1956) 141 Cal.App.2d 121, 128.) The alleged conflict here is not so clear. Stein can

consistently assert both that KTF was not an ongoing business when the Colemans

bought it, and that the Colemans bought KTF as a potential business.

Moreover, where a litigant was unsuccessful in asserting the first position, a

subsequent inconsistent position introduces no risk of inconsistent court determinations

and thus is not barred by judicial estoppel. (Tuchscher Development Enterprises, Inc. v.

San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1245-1246.) Here, Stein did

not prevail in the Coleman action, and there was no judicial determination as to what

KTF was in fact worth. While “there is no hard and fast rule which limits application of

[judicial estoppel] to those situations where the litigant was successful in asserting the

contrary position,” the doctrine “should be applied to an unsuccessful litigant only in the

rare situation where the litigant has made an egregious attempt to manipulate the legal

system.” (Thomas v. Gordon (2000) 85 Cal.App.4th 113, 118-119.) Neither the record

nor respondents’ brief shows any such egregious attempt here. Judicial estoppel is

22

therefore unnecessary in this case to protect the integrity of the judicial process. (See

Tuchscher, at p. 1245.)

2. Standing/Writ of Administrative Mandate Requirement

Whether Stein has standing by virtue of assignment from the Colemans, or

independent standing on the theory that his investment in the value of KTF was the

unconstitutionally taken property, owners of property suing for inverse condemnation

following an alleged taking must have first petitioned for a writ of administrative

mandate. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 27-28 (Hensler).) Here,

neither the Colemans nor Stein ever did so. Thus, under either theory of standing, the

failure to exhaust administrative remedies would bar Stein’s inverse condemnation cause

of action. (See Hensler, at pp. 16-17.)

Stein’s first theory of standing fails because the Colemans understood the

regulations at issue to be final as of November 5, 2007, but never petitioned for a writ of

administrative mandate. The Colemans thus waived their inverse condemnation claim

against respondents, and consequently had no such claim to assign to Stein. We discuss

Stein’s second theory of standing further in the context of his estoppel claim.

3. Stein’s Claim of Estoppel

Stein claims his failure to exhaust administrative remedies should not preclude

him from asserting independent standing to sue, because respondents should be estopped

from asserting nonexhaustion. The equitable estoppel doctrine “provides that a person

may not deny the existence of a state of facts if he [or she] intentionally led another to

believe a particular circumstance to be true and to rely upon such belief to his [or her]

detriment.” (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725.) The elements

of equitable estoppel are: (1) the party to be estopped must be apprised of the facts; (2)

the party to be estopped must intend that his or her conduct shall be acted upon, or must

so act that the party asserting the estoppel has a right to believe it was so intended; (3) the

other party must be ignorant of the true state of facts; and (4) the other party must rely

23

upon the conduct to his or her injury. (Ibid.) The detrimental reliance must be

reasonable. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 35.)

Moreover, where, as here, equitable estoppel is asserted against the government,

the doctrine is inapplicable if the court determines that the avoidance of injustice in the

particular case does not justify the adverse impact on public policy or the public interest.

(City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 496-497 (Mansell).)

We look first to the ordinary elements of equitable estoppel. Applying Stein’s

allegations to the elements, we can discern two possible bases for equitable estoppel: (1)

if respondents led Stein to sell KTF upon the reasonable belief that his compliance

agreement would be transferred to the new owners, and (2) if respondents led Stein to

forego pursuing administrative remedies by assuring him that the new conditions

imposed on the Colemans were temporary. Neither basis justifies the application of

equitable estoppel because Stein consistently misrepresents respondents’ actions to suit

his interpretation.

Stein has not established the second and fourth elements of equitable estoppel with

respect to his decision to sell KTF. Stein alleges Cox said, in one e-mail, that his

compliance agreement “would be re-written for the new owner.” Stein points out Cox

characterized the wording of his e-mail as a “mistake” during his deposition. Since this

mistake in wording is the only alleged misconduct, Stein has not established the second

element of equitable estoppel because there is no evidence that Cox intended to mislead

Stein into thinking the compliance agreement would be transferred.

Nor can Stein establish the fourth element of equitable estoppel, because the

record contradicts his claim that he sold KTF in reliance on some assurance of the

Colemans’ ability to plant trout. When the Colemans informed Stein of the new

conditions imposed on KTF, and expressed disappointment that they “were not told of the

[Mc] history,” Stein replied that the Mc issue “is specifically why . . . [he] made no

representation that trout could successfully be raised at the facility. [He] was really under

24

the impression that [the Colemans] loved the property and the trout farm was merely a

delightful addition.” Thus, by Stein’s own account, in selling KTF he did not actually

rely on any perceived guarantee by respondents that the Colemans would be able to

operate KTF under the same conditions that Stein once did.

Even if Stein had relied on Cox’s e-mail as an assurance that the compliance

agreement would be transferred, such reliance was unreasonable. Stein characterizes

Cox’s statement as an assurance that the compliance agreement would “transfer” to new

owners. But Cox did not use the word “transfer.” He used the word “re-written.”

Indeed, Cox testified in a deposition that his “intent in writing this [e-mail] was to let

[Stein] know that the existing compliance agreement would be different for – the set of

restrictions would be different for a new owner than they were for the current owner.”14

He also testified that “[a] transfer of a compliance agreement from one owner to another

had never occurred for trout farmers in California.”

Cox’s statement in the e-mail cannot be reasonably viewed as an assurance of

anything, let alone an assurance that the compliance agreement would be transferred,

since Cox’s statement included a request to discuss the matter. As noted, the word

“transfer” was not used; Cox used the word “re-written.” Pertinent definitions of the

word “rewrite” as used in this context include: “to write (something) again especially in

a different way in order to improve it or to include new information”; “to make a revision

of (as a story)”; “cause to revised: as [¶] . . . [¶] to alter (previously published material)

for use in another publication”; “to revise something previously written.” (Merriam-

Webster’s Dictionary <http://www.merriam-webster.com/dictionary/rewritten> [as of

14 Regarding Cox’s characterization of his wording as a “mistake,” Stein blames Cox for

not contacting Stein about this mistake. But whether it was a mistake or not to use the

word “re-written,” that word was still ambiguous, such that Stein’s professed reliance

thereon was unreasonable.

25

Aug. 24, 2016].) Thus, the word “re-written” reasonably could have meant new

conditions for any new owners. Further clarification along the lines of what Cox said in

his deposition testimony may have been forthcoming had Stein discussed the matter with

Cox as Cox had requested. But Cox testified that he had no recollection of discussing the

rewrite with Stein, and there is no evidence in the record that such a conversation took

place. Because Stein did not respond to Cox’s request to discuss the matter, he could not

reasonably rely on Cox’s email as an assurance the compliance agreement would be

transferred, especially given the plain meaning of the word “re-written.”

Moreover, the inclusion of different conditions is consistent with respondents’ past

handling of KTF. Stein referred to the 1999 agreement written after the Stivers leased

KTF as an agreement that had been “revised” by DFG. And that agreement did in fact

include revisions to Stein’s 1987 registration. For example, the tubifex worm prohibition

in the 1987 document is not in the 1999 document. While the stocking of trout was

limited to four specific rivers by name and several specific areas in those rivers in the

1987 document, the 1999 document more generally restricted distributions of fish from

KTF to: “1. . . . historical markets in non-enzootic waters where continued distributions

of Mc-positive stocks are not considered by [DFG] to be a significant risk to wild fish, as

determined after consultation with the Fish Disease Advisory Committee, if necessary”

and “2. . . . Mc-positive water basins, or into waters where no year-round populations

occur.” The 1999 document also expressly prohibited distributions of Mc-positive fish

“within enzooic waters supplying [DFG] or commercial production facilities, or waters

containing threatened or endangered salmonids, without specific written authorization

from the [DFG]” and “where Mc is not presently known, or where recent sampling

efforts cannot detect past infections.” These specific prohibitions are not in the 1987

document. The 1999 document also included an express prohibition against “[f]acility

expansion utilizing increased volumes of Mc-positive waters[] to increase production and

26

distribution of Mc-positive fish.” No such prohibition can be found in the 1987

document.

Furthermore, the potential for subsequent amendment was noted in the 1987

document. It reads, “The above special conditions and restrictions apply to 1987 and all

subsequent years of operation unless amended by written notice from the [DFG].”

(Italics added.) Additionally, the 1999 document lists as one of the five conditions, “New

or presently unregistered facilities utilizing Mc-positive waters will not be approved for

registration or use.” That notice was not in the 1987 document.

In summary, it was not reasonable for Stein to rely on Cox’s statement about the

need to rewrite the compliance agreement as an assurance the agreement would simply be

transferred to new owners without any changes to the conditions given the following: (1)

the differences in the conditions between the 1987 and 1999 documents; (2) an express

statement in the 1987 document indicating the possibility of future amendments; (3)

Stein’s own reference to the 1999 document as a “revised” agreement; and (4) Cox’s

overture to discuss the rewrite for a prospective buyer and the lack of evidence Stein ever

followed through on that request. Stein cannot establish the fourth element of equitable

estoppel -- reasonable reliance.

Stein similarly has not established the second and fourth elements of equitable

estoppel with respect to his decision to forego administrative remedies. Stein contends he

did not seek an administrative remedy with the DFG or petition for writ of mandamus

because the conditions imposed on the Colemans were only temporary and were never

final. In support of this argument, Stein focuses on Manji’s November 5, 2007, letter in

which those conditions were set forth. But the word “temporary” cannot be found in

Manji’s letter and there is nothing in the letter from which one could infer the conditions

were temporary. (See fn. 9, ante.) Nor does any other document in the record say the

conditions were temporary. Moreover, as for the condition prohibiting planting of live

fish, the Colemans stated there was no date set by which they would be permitted to do so

27

and as far as they understood that condition would remain for the “foreseeable future.”

The Colemans asked DFG to make changes to the conditions, but DFG refused.

Stein claims respondents “repeatedly confirmed” and “promised” the

temporariness of the conditions imposed on the Colemans, but the evidence he cites

shows no such promise or confirmation. Stein cites to his own declaration, wherein he

claims the procedures used in this case had never been used before in his own experience

with the DFG, and to some purported confusion between respondents’ uses of the terms

“compliance agreement” and “registration.” The fact that Stein was personally

unfamiliar with respondents’ registration practices, or that respondents sometimes used

the terms “compliance agreement” and “registration” interchangeably, hardly amounts to

an affirmative and intentional promise by respondents that the conditions imposed on the

Colemans were temporary. If Stein relied on these dubious bases in believing the

conditions were temporary, and thereby did not pursue administrative remedies, such

reliance was unreasonable. Moreover, even if the decision to forgo administrative

remedies was a foreseeable and reasonable consequence of Stein’s belief that the

conditions imposed on the Colemans were temporary, Stein still has not shown that

respondents intentionally caused him to have such a belief.

Stein also cites as evidence of a so-called “promise” by respondents the fact that

the Colemans were in a sort of “trial period,” i.e., “a slow and incremental operational

plan to return the hatchery to productivity.” These are Stein’s words, not respondents,

but assuming arguendo these words were respondents’, this is still insufficient to show

that respondents intentionally caused Stein to forego administrative remedies by leading

him to believe the conditions imposed on the Colemans were temporary. A trial period is

no guarantee of a change in conditions, since the whole point of a trial period and

accompanying testing is ostensibly to see if a change in the conditions is warranted.

Indeed, Stein stated in his declaration that the trial period, as he understood it, was to give

the Colemans a chance to “show[] the ability to successfully raise trout at the facility.”

28

Thus, given the reason for the trial period, the conditions may have never been lifted

without the Colemans proving themselves. Stein points to his e-mail to the Colemans of

December 12, 2007, in which he told them, “Over time, with a clean bill of health, I’m

certain you will be able to plant fish in whirling disease endemic areas, just as I did for

over a decade.” But Stein did not speak for respondents, and his representations to the

Colemans did not constitute or reflect any promise or guarantee from respondents.

If Stein failed to pursue administrative remedies in reliance on this tortured

interpretation of the Colemans’ trial period, such reliance was unreasonable. Stein states,

“It would have made no sense” to sell KTF and “continue trout farming activities if the

conditions were permanent,” apparently in an attempt to prove by reductio ad absurdum

his claim that the conditions were temporary. Accepting as a premise, however, that

selling KTF and “observ[ing] the Colemans continuing to conduct trout farming

operations” “made no sense” if there was no guarantee that the conditions were

temporary, it does not follow that the conditions must then have been temporary. Rather,

it further bolsters our conclusion that Stein’s decisions to sell KTF and tell the Colemans

they could continue trout farming operations, despite the inherent uncertainty of a trial

period and the possibility that the conditions could be permanent, were unreasonable.

Again, Stein cannot establish the reliance element of his equitable estoppel claim. Thus,

no matter how we view the record, there is no triable issue of fact as to the application of

equitable estoppel to excuse Stein’s failure to exhaust administrative remedies and file a

petition for writ of mandate.

Moreover, even assuming Stein demonstrated the elements for an ordinary

assertion of equitable estoppel, the doctrine would be inapplicable here because Stein has

not shown that the avoidance of injustice in this case justifies the adverse impact on

public policy or the public interest. (Mansell, supra, 3 Cal.3d at pp. 496-497.) The

purported injustice at stake here is limited because, by Stein’s own account, he was the

only one injured in this entire case. And, as we discussed ante and will discuss further

29

within the context of Stein’s section 1983 claim, post, the dearth of evidence of any

wrongful or unfair conduct by respondents further mitigates the potential injustice at

issue. On the other hand, the public interest implicated is significant because, as Stein

concedes, phasing out Mc positive sites to benefit the State by preventing planting of

diseased fish is a “supportable or reasonable” goal.

Additionally, the public policy behind requiring exhaustion of administrative

remedies in cases like this one weighs against Stein. As the trial court noted and our

Supreme Court has explained, “The purpose of statutes and rules which require that

attacks on land-use decisions be brought by petitions for administrative mandamus, and

create relatively short limitation periods for those actions, and actions which challenge

the validity of land use statutes, regulations, and/or decisions, is to permit and promote

sound fiscal planning by state and local governmental entities.” (Hensler, supra, 8

Cal.4th at p. 27.) Specifically, “ ‘The requirement that challenges to administrative

actions constituting takings be brought initially by administrative mandamus assures that

the administrative agency will have the alternative of changing a decision for which

compensation might be required. If no such early opportunity were given, and instead,

persons were permitted to stand by in the face of administrative actions alleged to be

injurious or confiscatory, and three or five years later, claim monetary compensation on

the theory that the administrative action resulted in a taking for public use, meaningful

governmental fiscal planning would become impossible.’ ” (Id. at pp. 27-28, quoting

Patrick Media Group, Inc. v. California Coastal Com. (1992) 9 Cal.App.4th 592, 612.)

Thus, having weighed the policy concerns implicated by Stein’s assertion of equitable

estoppel, we conclude the doctrine should not be applied in this case. (See Schafer v.

City of Los Angeles (2015) 237 Cal.App.4th 1250, 1261.)

4. Taking versus Diminution in Value

As a final point relevant to Stein’s assertion of independent standing, we note that,

even if equitable estoppel applied to excuse Stein’s failure to exhaust administrative

30

remedies, he still would not prevail on the cause of action for inverse condemnation.

“ ‘To state a cause of action for inverse condemnation, the property owner must show

there was an invasion or appropriation (a “taking” or “damaging”) of some valuable

property right which the property owner possesse[d] by a public entity and the invasion

or appropriation directly and specially affected the property owner to his injury.’ ” (City

of Los Angeles v. Superior Court (2011) 194 Cal.App.4th 210, 221.) Stein claims “the

value” of his “investment [in KTF] was taken by the state.” Thus, he argues, he has

independent standing to sue “for loss in [the] value of [KTF].” However, even assuming

Stein had a property right in the sale value of KTF, and such value was diminished by

respondents’ actions prior to the sale to the Colemans, mere diminution in the value of

property does not suffice to support an inverse condemnation cause of action. (San

Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 942 [“[A] diminution

in property value is not a ‘taking or damaging’ of the property, but an element of the

measure of just compensation when such taking or damaging is otherwise proved.”];

HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 518 [“a zoning action which merely

decreases the market value of property does not violate the constitutional provisions

forbidding uncompensated taking or damaging”]; Scott v. City of Del Mar (1997) 58

Cal.App.4th 1296, 1307 [diminution of the value of homes after city’s removal of

adjacent seawall and riprap on public land was not a taking].)

In sum, whether Stein stands in his own shoes or those of the Colemans, failure to

exhaust administrative remedies bars his inverse condemnation cause of action.

Moreover, under Stein’s independent standing theory, his inverse condemnation cause of

action would also fail because he did not show a “taking” of any valuable property right

aside from diminution in the property or sale value of KTF.

31

IV. Section 1983

A. The Parties’ Contentions

Stein mentions his section 1983 claim only in a single reference to “defense claims

of ‘immunity’ ” under the argument that respondents’ motion for summary judgment was

irregular. Stein states: “Moreover, despite the defense claims of ‘immunity’ on the part

of the individual defendants and having already at least twice in briefing on demurrer

encountered plaintiffs’ claims of delayed accrual, waiver and estoppel to raise statute of

limitations defenses, defendants offered not a single declaration or reference to their own

deposition testimony or documents produced by them contesting plaintiffs[’] evidence of

misconduct, abuse of discretion, waiver, misrepresentation, and concealment.” As noted

ante, though this contention purports to demonstrate an irregularity in respondents’

motion for summary judgment, it really functions as a substantive argument that

respondents should be estopped from raising a statute of limitations defense. We

therefore construe it as such.

Respondents contend Stein established no triable issue of fact as to his section

1983 claim because he had no protected property interest, he lacked standing to bring the

action, the action was untimely, and in any case, the individual respondents are entitled to

qualified immunity. Stein did not directly address the first and third arguments, perhaps

intending his previous arguments about property rights and estoppel to apply generally to

both his inverse condemnation and section 1983 claims. On the standing issue, Stein

rehashed his prior argument that he has direct standing to sue as described in section III

of his reply brief because of the diminution of value in KTF. Stein also argued the

individual respondents are not entitled to “the discretionary immunity defense,” by which

we assume he meant “qualified” immunity defense, because respondents “have never

been able to show any reasonable basis” for the conditions imposed on KTF.

32

B. Analysis

The essential elements of a section 1983 claim are: (1) the conduct complained of

was committed by a person acting under color of state law, and (2) the conduct deprived

the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the

United States.15 (§ 1983) “Section 1983 is not itself a source of substantive rights, ‘ “but

merely provides ‘a method for vindicating federal rights elsewhere conferred.’ ” ’ ”

(McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1207.)

One cannot go into court claiming only a violation of section 1983. (Chapman v.

Houston Welfare Rights Organization (1979) 441 U.S. 600, 615-617 [60 L.Ed.2d 508,

521-522].)

We turn first to the question of whether Stein has standing to bring a section 1983

claim. The trial court correctly found Stein lacks standing to bring a section 1983 claim

for injuries that allegedly occurred during the Colemans’ ownership of KTF. Section

1983 claims must be based upon a violation of Stein’s personal rights, not the rights of

someone else. (§ 1983; Rose v. City of Los Angeles (C.D.Cal. 1993) 814 F.Supp. 878,

881.) Stein, perhaps recognizing the flaws in his section 1983 claim as assigned by the

Colemans, asserts on appeal that he has standing to sue on his own behalf -- including,

presumably, for his section 1983 claim.

We therefore consider whether Stein can bring a section 1983 claim for

respondents’ alleged actions during Stein’s ownership of KTF. Stein bases his claim on

“deprivation of property without due process of law . . . notice or opportunity to be

heard.” Although Stein does not specify as much, this claim appears to be for alleged

15 We note “that neither a State nor its officials acting in their official capacities are

‘persons’ under § 1983.” (Will v. Michigan Dept. of State Police (1989) 491 U.S. 58, 71

[105 L.Ed.2d 45, 58].) As the trial court recognized in its ruling on demurrer, and as

reflected in Stein’s subsequent SAC, Stein’s section 1983 claim is thus against the

individual respondents in their individual capacities only.

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violation of procedural due process. (See Collins v. City of Harker Heights, Tex. (1992)

503 U.S. 115, 125 [117 L.Ed.2d 261, 273] [Procedural due process is “a guarantee of fair

procedure in connection with any deprivation of life, liberty, or property by a State,”

while substantive due process “protects individual liberty against ‘certain government

actions regardless of the fairness of the procedures used to implement them.’ ”].)

A procedural due process claim under section 1983 requires proof of the

following: (1) a protectable liberty or property interest, and (2) a denial of adequate

procedural protections. (Thornton v. City of St. Helens (9th Cir. 2005) 425 F.3d 1158,

1164 (Thornton).) To have a property interest in a government benefit like the transfer of

a state operating license, Stein must have “a legitimate claim of entitlement to it.”

(Board of Regents v. Roth (1972) 408 U.S. 564, 577 [33 L.Ed.2d 548, 561].) Such a

claim must be more than a “unilateral hope,” and the mere fact that Stein received

renewals “in the past, even for a considerable length of time, does not, without more, rise

to the level of a legitimate claim of entitlement.” (Doran v. Houle (9th Cir. 1983) 721

F.2d 1182, 1186 (Doran); see also Clark v. City of Hermosa Beach (1996) 48

Cal.App.4th 1152, 1180 (Clark).)

Whether a statute creates a property interest in the renewal of an existing operating

license depends on the extent to which that statute contains mandatory language that

restricts the discretion of the reviewing body to deny renewal to applicants who claim to

meet the statutory requirements. (Thornton, supra, 425 F.3d at p. 1164.) In other words,

the asserted property interest turns on whether “ ‘the local agency lacks all discretion to

deny issuance of the permit or to withhold its approval. Any significant discretion

conferred upon the local agency defeats the claim of a property interest.’ ” (Clark, supra,

48 Cal.App.4th at p. 1180.) “ ‘[A] cognizable property interest exists “only when the

discretion of the issuing agency is so narrowly circumscribed that approval of a proper

application is virtually assured.” ’ ” (Ibid.) Moreover, the local agency’s opportunity to

deny issuance suffices to defeat the claim of a federally protected property interest even

34

if, in a particular case, “ ‘ “objective observers would estimate that the probability of

issuance was extremely high.” ’ ” (Id. at pp. 1180-1181.)

Here, Stein essentially asserts a property interest in the transfer of his compliance

agreement to new owners of KTF under identical or similar terms, or at least less

restrictive terms than the registration conditions imposed on the Colemans in 2007. His

theory is ostensibly that such renewal is the only way to actualize his investment in

KTF’s property value.

Compliance agreements with respondents are not governed directly by statute, but

by California Code of Regulations, title 14, section 245, which in turn is authorized by

broad terms under Fish and Game Code section 15500 et seq. The regulation provides

that “[w]hen diseases/pathogens are identified by a fish pathologist in aquatic plants or

animals in an aquaculture facility . . . which require restrictive action by [respondents],

. . . [¶] . . . a compliance agreement describing the action to be taken may be drawn up

between the owner and the director.” (Cal. Code Regs., tit. 14, § 245, subd. (a)(2)-(3),

italics added.) Importantly, nowhere does section 245 specify circumstances under which

a compliance agreement must issue, nor does it provide for mandatory renewal of

compliance agreements or transfer to purchasers of a facility. Indeed, Stein does not cite

specific language from this regulation, or any other legal authority, which would qualify

as “mandatory language” restricting respondents’ discretion to deny compliance

agreement renewals.

Stein, in his briefing, makes multiple assertions to the effect that nothing

prohibited transferring compliance agreements. These assertions are inapposite; even if

transferring compliance agreements was allowed, it would not follow that such transfers

were therefore mandatory, so as to give Stein a property interest therein for purposes of

bringing a section 1983 claim.

Stein also complains that respondents circumvented California Code of

Regulations, title 14, section 245’s “requirements” and “protections of the economic

35

interests of a trout farmer.” Stein cites to no specific language in section 245, but broadly

claims the regulation “recognized that his right to continue to raise and plant trout from

[KTF] was of financial benefit, and that benefit extended to his right to recoup the value

of his investment on retirement, lease or sale.” Section 245 contains no such language.

The closest provision in the regulation to Stein’s assertion is the requirement that

compliance agreements “shall be designed in consultation with the Aquaculture Disease

Committee to bring the least amount of economic hardship possible to the affected party

while affording maximum protection to other growers and the fishery resources of the

State.” (Cal. Code. Regs., tit. 14, § 245, subd. (a)(3).) This provision requires

respondents to consider the economic impacts of compliance agreements on private

owners, but it in no way mandates the specific property interest Stein seems to claim.16

In sum, Stein failed to show that any statute or regulation restricted respondents’

discretion to decline to transfer his compliance agreement to the Colemans. (See

Thornton, supra, 425 F.3d at p. 1164.) Indeed, Stein’s claim seems based entirely on the

theory that he renewed his compliance agreement in the past “for a considerable length of

time,” (Doran, supra, 721 F.2d at p. 1186) and thus developed a unilateral expectation

that the agreement would transfer to the Colemans. Stein argues, for example, “In the

16 For example, Stein seems to suggest respondents could not attempt to gradually phase

out trout farms in Mc endemic waters (e.g., by refusing to issue registrations to new

owners) without running afoul of section 245’s requirement that private economic

interests be considered. Section 245 does not, however, dictate any details of how

respondents are supposed to weigh private economic interests against public protection.

(Cal. Code. Regs., tit. 14, § 245, subd. (a)(3).) Here, respondents considered private

economic interests as required by section 245, and struck what they deemed the

appropriate balance by allowing established trout farmers to continue operations under

compliance agreements but declining to renew those agreements for new owners. This

balance may not have created a favorable result for Stein, but it does not follow from

Stein’s dissatisfaction that respondents’ decision was unlawful or somehow deprived

Stein of a property interest.

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past, interruptions, changes in the form of ownership of the premises, or change in

operation of [KTF] by lessees, had in no way affected the continuing right to plant trout

from [KTF] in designated areas under the ‘Compliance Agreement.’ ” But as noted ante,

these facts cannot support a “legitimate claim of entitlement” for purposes of a

procedural due process claim under section 1983. (Doran, at p. 1186.)

Some of Stein’s arguments suggest he might have intended to bring a substantive

due process claim in addition to or instead of a procedural due process claim.17 But even

if we considered his arguments under a substantive due process analysis, they would still

fall short of establishing a valid section 1983 claim.

First, to assert a deprivation of substantive due process, Stein must establish a

federally protected property interest. (Vieira Enterprises, Inc. v. City of East Palo Alto

(2012) 208 Cal.App.4th 584, 595-596, quoting Clark, supra, 48 Cal.App.4th at p. 1184.)

As discussed ante, Stein has not met this requirement. Even assuming arguendo that he

had established a “cognizable property interest,” section 1983 requires more than

“evidence that a government decision was arbitrary and capricious.” (Vieira Enterprises,

at p. 596.) In Galland v. City of Clovis (2001) 24 Cal.4th 1003, 1033 (Galland), the

California Supreme Court set forth its formulation of the “appropriate substantive due

process standard for determining when an administrative body charged with

implementing a law acts erroneously in such a way as to injure an individual’s economic

17 For example, in his SAC, Stein complained of “arbitrary and capricious governmental

activity” “without any rational basis” and “without the authority of law.” On appeal, he

argues that respondents made “misguided, arbitrary and overreaching” decisions “off the

cuff, on a random, ad hoc basis,” and that respondents’ policies were “ ‘underground,’

unreasonable and arbitrary,” “capricious,” and “improper.” (Cf. County of Sacramento v.

Lewis (1998) 523 U.S. 833, 845-846 [140 L.Ed.2d 1043, 1057] [Substantive due process

prohibits “the exercise of power without any reasonable justification in the service of a

legitimate governmental objective” and “protects against government power arbitrarily

and oppressively exercised.”].)

37

and property interests.” Stein “ ‘must at least show that state officials are guilty of grave

unfairness in the discharge of their legal responsibilities. Only a substantial infringement

of state law prompted by personal or group animus, or a deliberate flouting of the law

that trammels significant personal or property rights, qualifies for relief under § 1983.

[Citation.] Inadvertent errors, honest mistakes, agency confusion, even negligence in the

performance of official duties, do not warrant redress under this statute.’ ” (Id. at

p. 1034.)

Stein has not shown anything like the conditions described in Galland.

Throughout his briefing, Stein complains of numerous actions by respondents that

supposedly were misleading or constituted bad policy; but as discussed ante, Stein shows

no “ ‘substantial infringement of state law’ ” (Galland, supra, 24 Cal.4th at p. 1034),

much less “ ‘personal or group animus’ ” (ibid.), nor does he contend any errors made by

respondents exceeded the bounds of inadvertence, honest mistake, agency confusion, or

negligence, so as to constitute “ ‘deliberate flouting of the law that trammels significant

personal or property rights’ ” (ibid.).

For example, Stein mentions repeatedly that Cox said, in writing, that KTF’s

compliance agreement would be rewritten for new owners. This allegation refers to

Cox’s e-mail dated March 6, 2006, in which Cox said, “I shoul[d] talk to you about the

existing compliance agreement. That would be re-written for the new owner, and I’d like

to discuss that with you.” However, Stein overlooks Cox’s deposition testimony,

wherein he said, “[M]y intent in writing this [e-mail] was to let Paul know that the

existing compliance agreement would be different for -- the set of restrictions would be

different for a new owner than they were for the current owner.” This evidence, as

explained ante, casts doubt on Stein’s claim that he “justifiabl[y] reli[ed]” on a clear

guarantee that his compliance agreement would transfer, essentially unchanged, to the

Colemans. Moreover, Stein does explicitly cite to the immediately preceding sentence in

Cox’s testimony, where Cox said, “I was mistaken in assuming that we would be

38

rewriting a compliance agreement.” This uncontested evidence suffices to demonstrate

that even to the extent Cox erred in handling Stein’s situation, the error was inadvertent,

not an abuse of governmental power as an instrument of oppression. (See Galland,

supra, 24 Cal.4th at p. 1034.) There is no evidence to the contrary.

As another example, Stein repeatedly asserts that respondents implemented an

“ ‘underground regulation,’ ” based apparently on the use of that term in Cox’s

August 24, 2007, e-mail. Initially, we note that even if respondents indeed worked

through underground regulations, this would, at best, tend to support a claim for violation

of procedural due process; but as previously discussed, Stein cannot prove such a claim.

Under the substantive due process framework, evidence of such underground regulation

as Stein describes is wholly insufficient to establish a constitutional violation. In fact, the

very e-mail upon which Stein bases his entire theme of underground regulation actually

evinces respondents’ sincere intent to act in accordance with the law and requirements of

due process. In that e-mail, Cox noted that the point of limiting registration was to

eventually phase out Mc positive sites to benefit the State by preventing the planting of

diseased fish -- a goal that even Stein concedes is “arguably supportable or reasonable” --

but expressed concern that such policies might “smack[] of underground regulation.”

Similarly, Cox specifically said in another e-mail that respondents needed to offer Stein

and the Colemans the option to test fish at KTF for whirling disease “to deal with all

aquaculture registration applications in a consistent manner.” These communications do

not indicate animus to substantially infringe or flout the law, or to abuse governmental

power; on the contrary, they show that, whatever the deficiencies in respondents’

handling of Stein’s situation might have been, they were not so egregious as to constitute

a violation of substantive due process.

We therefore conclude Stein failed to show a violation of due process to support

his section 1983 claim. Since this suffices to defeat Stein’s section 1983 claim, we need

39

not reach the additional issues of timeliness or estoppel, or the individual respondents’

assertion of qualified immunity.

Throughout the opening brief Stein makes isolated comments to the effect that he

needs only show a triable issue of material fact, or that respondents failed to actually

show the absence of any disputed material facts. None of these comments, however, are

accompanied by any explanation or analysis of how Stein has actually shown triable

issues of material fact.18

We are not obliged to search the record to ascertain whether it supports Stein’s

contentions or develop his arguments for him. (Green v. Green (1963) 215 Cal.App.2d

31, 35.) Insofar as Stein’s briefing does not demonstrate the trial court was wrong, but

merely challenges respondents to prove the court was right, Stein fails to establish that

the trial court erred in granting respondents’ motion for summary judgment. (Guthrey v.

State of California (1998) 63 Cal.App.4th 1108, 1115-1116.) Otherwise, as discussed

ante, Stein has not shown a triable issue of material fact to preclude judgment in

respondents’ favor on either the inverse condemnation cause of action or section 1983

claim. Summary judgment was properly granted.

18 Stein does argue elsewhere in his opening brief that his declaration qualifies as a

showing of material factual disputes. The purported “dispute” is essentially that the

Colemans believed Neil Manji’s November 5, 2007, letter constituted a final

determination regarding conditions on KTF, while Stein believed the conditions to be

temporary. Stein complains the trial court ignored this “issue of material fact” and

“engaged in issue determination as opposed to issue spotting.” As the trial court

explained, however, the issue of material fact pertinent to Stein’s causes of action was not

whether the November 5, 2007, letter was actually final, but whether the Colemans

believed it was final. Stein’s testimony might suggest the Colemans’ belief was wrong,

but could not raise a triable issue of material fact as to whether the Colemans nonetheless

had that belief.

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DISPOSITION

The judgment is affirmed. Appellants shall pay respondents’ costs on appeal.

(See Cal. Rules of Court, rule 8.278(a)(1), (5).)

MURRAY , J.

We concur:

ROBIE , Acting P. J.

MAURO , J.

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