Petition — Court House Plaza Co. v. City of Palo Alto

Supreme Court brief1983

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83-172 |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

’

COURT HOUSE PLAZA COMPANY.

Petitioner,

CITY OF PALO ALTO. ET AL..

Respondents

On Petition From The United States Court of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

JEFFREY P. WIDMAN

SIMS & WIDMAN

Crocker Plaza

Suite 660

84 W. Santa Clara

San Jose, California 95115

Tel. :(408) 998-3400

Attorneys for Plaintiff and Petitioner

August 1983

QUESTIONS PRESENTED

1. Whether the doctrine of res judicata (claim-preclusion)

should apply in an action for damages under 42 U‘S.C.

§ 1983 after plaintiff has litigated only claims for equitable

relief in state courts and governing state law did not

recognize plaintiffs right to recover damages for inverse

condemnation under the Fifth Amendment.

Should this Court now resolve the division among the

circuit courts of appeals on the application of res judicata

under 42 U.S.C. § 1983?

PARTIES: INDIVIDUAL RESPONDENTS

The individual parties not named as Defendants and Respon-

dants in the caption of this Petition for Writ of Certiorari are

STANLEY R. NORTON, BYRON D. SHER, FREDS. EYERLY.

ROY L. CLAY, KIRKE W. COMSTOCK, SCOTT T. CAREY,

JOHN J. BERWALD, ANNE R. WITHERSPOON, JOHN V.

BEARS, Councilmen PETER R. CARPENTER, MARY GOR-

DON, WILLIAM E. GREEN, JAY W. MITCHELL, EMILY

M. RENZEL, ANNE STEINBERG, Planning Commissioners,

STAN J. NOWICKI, Chief Building Inspector, JAMES O.

GLANVILLE, Zoning Administrator, NAPTHALI H. KNOX,

Director of Planning and Community Environment, ROBERT

K. BOOTH, JR., City Attorney and LOUIS B. GREEN, As-

sistant City Attorney.

TABLE OF CONTENTS

EEE ONES REEUMLE BREED sb Kk s ce secs vcesecssececus ii

EIEN REINA DEAL LEBEN EG 20sec cc ccc cc eeees l

CONSTITUTIONAL AND STATUTORY

CE CO UEEWMED oc cece cs enseecssevcess l

MEME SOE BEBE CAADES osc ccc secs eccceccceces 2

REASONS FOR GRANTING WRIT OF

OS PS 5

II.

Ill,

THIS COURT HAS RECENTLY

DECIDED THAT PRECLUSION

RULES DO NOT AUTOMATICALLY

BAR A PLAINTIFF UNDER § 1983

FROM MAINTAINING FEDERAL

CLAIMS THAT HE THEORETICALLY

COULD HAVE RAISED, BUT ACTUALLY

DID NOT RAISE, IN A PRIOR STATE-

UMPC WUE MEEMEEUES oe ccc ct eecvecccenes 5

THE CIRCUIT COURTS OF APPEALS

HAVE ADOPTED CONFLICTING

PRECLUSION RULES UNDER § 1983 ......... 6

PETITIONER DID NOT ENJOY A “FULL

AND FAIR OPPORTUNITY” TO

MAINTAIN ITS CONSTITUTIONAL

CLAIMS FOR DAMAGES IN STATE

COURT BECAUSE THE CALIFORNIA

COURTS REQUIRED INITIAL RESORT

TO EQUITABLE REMEDIES AND ULTI-

MATELY ELIMINATED ANY MONETARY

a FS Sse 9) 1 rer 1]

ill

TABLE OF CONTENTS (Continued)

IV. SINCE THE FINAL JUDGMENT IN

THE MANDAMUS, THIS COURT HAS

IMPLICITLY DISAPPROVED THE

CALIFORNIA HIGH COURT'S OPINION

IN 4AG/INS ON THE ISSUE OF DAMAGES

FOR INVERSE CONDEMNATION,

AND THIS CHANGE IN CONTROLLING

LAW MAKES PRECLUSIONARY RULES

INAPPLICABLE TO PETITIONER'S

AILEY RIMM © LOUD hie cc cv bey eu weae de 16

V. THE POLICY BEHIND § 1983, TO

ASSURE THE AVAILABILITY OF

A FEDERAL FORUM FOR

VINDICATION OF CONSTITUTIONAL

RIGHTS, WILL BEST BE SERVED BY

THIS COURT'S ISSUING ITS WRIT. .......... 17

Bo Re ek rir yee a en ens ta 19

CREE Ee OF GUNN ie os ek abate udeeteres 20

TABLE OF AUTHORITIES CITED

Federal Cases

Allen v. McCurry, 449 U.S. 90 (1980) pe: ... 7,8,9,17,18

Castorr v. Brundage, U.S... 103 §. Ct. 240 (1982) ye et

Consolidated Foods Corporation v. Unger —.U.S.—., 102

S. Ct. 2288 (1982) tp ; Rate eer rae a ee

Court House Plaza Company v. City of Palo Alto, et al.,

No. 81-404, 454 U.S. 1074, cert. denied, November

| Ne ee Na ar Ry Ee Ae ee, ay we ie et 2

Haring v. Prosise, $1 U.S.L.W. $736 (June 13,1983)... §,6,8,11,12,14,

Harrington v. Inhabitants of Town of Garland, Me., 15,16,17

§51 F.Supp. 1371, 1373-75 (D. Me. 1982) ay? =e

Kaiser-Aetna v. U.S. 444 U.S. 164 (1979) a ACD | Re |

Kremer v. Chemical Construction Corporation, 456

ee eS Feros ee 9,10,11

Martino v. Santa Clara Valley Water District, 83 Dally

Journal D.A.R. 1067 (April 14, 1983) (No. 814578) .......... 15

Penn Central Transportation Co. v. City of New York,

ee I I ira ic i gg en ct oe Se gia lars 14

Sachetti v. Blair $36 F. Supp. 636, 64041 §.D.N.Y.

A ee i BRIS AL, gt hs a ra Ria 8 BAR Nai pea ae a nS 9.16

San Diego Gas & Electric Co. v. City of San Diego, 450

CE REM atiae « bated bia dice ack ek eck 14,15,17

Scoggin v. Schrunk, §22 F.2d 436 (9th Cir. 1975), cert.

ea ET Ti ea at tro iy oar 1,6

Williams v. Codd, 459 F.Supp. $04, 812 (S.D.N.Y.1978)........... 7

California Cases

Agins v. City of Tiburon, 24 Cal.3d 266, $98 P.2d 25,

157 Cal.Rptr 372 (1979), affd..447 U.S. 255 (1980) ...... 12,14,16

Brown v. City of Fremont, 7§ Cal. App.3d 141,142 Cal.

(RS Girl a pa A a oy ec ne A a 13

Court House Plaza Company v. City of Palo Alto, 117

Cal.App.3d 871,173 Cal.Rptr. 161 (1981)..............000- 2

Eldridge v. City of Palo Alto, $7 Cal. App.3d 613, 129

I Se Oe ee ee ewe 13

HFH, Ltd. v. Superior Court, 1§ Cal.3d $08, $42 P 2d

237, 125 Cal.Rptr. 365 (1975S), cert. denied, 425 U.S.

RU Se ee re na of wt 12,13

Strumsky v. San Diego County Employees Retirement

Association, 11 Cal.3d 28, $20 P.2d 29, 112 Cal.Rptr.

Rpts haat arta a in alle aes wate ere eo ow. bed ae eh ae 13

TABLE OF AUTHORITIES (Continued)

CONSTITUTIONS

Pages

United States Constitution

ES Ss Aah Sa 1,2,.4,12,14

Fourteenth Amendment...............0ee05. 1,4,10,14

California Constitution

tac uiene Give os asks a peene es 4

NI Sn 4

STATUTES

Federal

gE a Pane }

tae a ase sys-ecn hie 9 oe ke 6 os l

ee wae caw ee ev eseees 10,18

REO OS ee ee 1,4

EO eee eee 1,4

42 U.S.C. § 1983 .. 1,2,4,5,6,7,8,9,10,11,12,14,15,16,17,18

se a Bs b u've v oh ean siew nets 10

State of California

Code of Civil Procedure § 1085S .... 1... cece ccenees 13

Code of Civil Procedure § 1094.5 ...........c eevee, 13

City of Palo Alto

CE PS eee re ee eee +

Ordinance No. 2224 (the “P-C Ordinance”) .......... 2,3,4

OTHER

Note, “Res Judicata and Section 1983: The Effect of State

Court Judgments on Federal Civil Rights Action,” 27 UCLA

I a I ae om ae anew wee 18

Wright, Miller & Cooper, Federal Practice and Procedure:

EC |) eer ae 5,14

JURISDICTIONAL GROUNDS

Petitioner’s complaint in the district court alleged jurisdic-

tion under 28 U.S.C. § 1331 based upon alleged violations

of the Fifth and Fourteenth Amendments to the Constitution

of the United States. In addition, the complaint alleged

jurisdiction under § 1343 based upon alleged violations of the

federal Civil Rights Act, 42 U.S.C. §§ 1981 and following.

(See Appendix C.)

Respondents filed a motion to dismiss under FRCP, Rule

12(b), on the ground of res judicata and others. The district

court granted the motion on June 4, 1982. (See Appendix A.)

The district court’s Order dismissing the complaint expressed

its view that the decision of the Ninth Circuit in Scoggin v.

Schrunk, §22 F.2d 436 (1975), cert. denied, 423 U.S. 1066

(1976), made res judicata applicable to all claims stated in

Petitioner's complaint. Accordingly, the district court ren-

dered judgment against Petitioner on June 4, 1982. Entry of

judgment occurred on June 11, 1982 (Appendix A).

On July 6, 1982, Petitioner filed its notice of appeal to the

Ninth Circuit Court of Appeals. The Ninth Circuit affirmed

the judgment below in a memorandum decision and judgment

entered on May 2, 1983 (Appendix B). On June 2, 1983, the

Ninth Circuit issued its mandate to the district court (Ap-

pendix B).

This Court has jurisdiction of this Petition under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. United States Constitution, Amendment V.

United States Constitution, Amendment XIV, Sections |

and §.

28U.S.C.§ 1738. § 42 U.S.C. § 1982.

4 42US.C.§ 1981. 6 42 U.S.C. § 1983.

The text of these constitutional and statutory provisions

appears in Appendix C.

“

—

STATEMENT OF THE CASE

The district court dismissed the complaint because it believed

that an earlier state-court suit for mandamus (the ““Mandamus”)

precluded any subsequent action for damages under 42 U.S.C

§ 1983. The Mandamus was the subject of a reported opinion

by the California Court of Appeal, First District. Court House

Plaza Company v. City of Palo Alto, 117 Cal.App.3d 871,173

Cal.Rptr. 161 (1981). This Court denied review of that state

appellate decision. Court House Plaza Company v. City of Palo

Alto, et al., No. 81-404, 454 U.S. 1074, cert. denied (November

30, 1981). Petitioner filed the complaint in this case before

receiving this Court’s order denying certioran.

The complaint alleged historical facts that had been at issue

in the Mandamus as well as ultimate facts concerning a taking

of property (Fifth Amendment claims) and damages that had

not been litigated in the Mandamus. (The parties were substan-

tially the same in both the Mandamus and the subsequent

federal action.)

The facts alleged in the complaint were essentially these:

On December 28, 1964 the City adopted a planned develop-

ment zoning (the “P-C Ordinance’’y allowing professional and

commercial office space use on Petitioner's property. The P-C

Ordiance approved, by incorporation, detailed plans for con-

struction of a ten-story office building. These plans included

detailed drawings illustrating the location, elevation, and

floor plan of the ten-story building, associated parking garage,

and other details of site development such as landscaping.

landscaping.

A development schedule formed part of the P-C Ordinance.

Under that development schedule, Petitioner was required to

start construction of Phase |, consisting of the first four stories

of the building and certain levels of the parking garage, within

two years after the City’s approval of the P-C Ordinance. By

October 31, 1976 Petitioner was to commence construction of

the remaining six stories of the building as well as additional

levels of the parking garage. In agreeing upon this development

schedule, Petitioner and the City understood that phasing

would enable Petitioner to coordinate completion of the ten-

story building in accordance with the growth in demand for

commercial office space in the City.

Petitioner began and completed the first four floors of the

building in Phase 1 by August of 1967. In doing so, Petitioner

actually commenced construction of Phase 2 physically. The

portion of the office building completed in 1967 incorporated a

foundation, structural steel, specially located heating and cool-

ing equipment, elevator shafts, an interior smoke-proof tower,

and oversized utility systems, all designed to accommodate the

remaining six stories in Phase 2.

By early 1970, Petitioner had actually obtained building and

use permits for completing the work on Phase 2. Petitioner had

also fabricated the additional structural steel and two additional

elevators in reasonable reliance upon the issuance of those per-

mits, Petitioner made other investments in the reasonable

expectation that Phase 2 would be completed.

The City and its officials committed numerous acts having

one characteristic in common: intentional interference with

Petitioner's efforts to complete Phase 2 under lawfully issued

building and use permits before expiration of the development

schedule. Perhaps most significant in terms of the City’s policy

was the adoption of an ordinance in 1973 limiting the height of

new structures to a maximum of 50 feet in all but P-C zones.

Improper and retroactive application of the height ordinance to

the plans approved within the P-C Ordinance prevented com-

pletion of the ten stories in Phase 2. Indeed, the four-story

building completed in 1967 itself exceeded the 50-foot limit by

several feet.

After suffering numerous delays caused by obstructive acts

of the City and its officials, Petitioner applied for an extension

of the development schedule in August of 1976, three months

before the schedule would expire. At all relevant times Section

18.68 of the City’s Municipal Code provided that the Planning

Commission could recommend an extension “for good cause

shown by the property owner in writing.”

In practice, the City had routinely granted such extensions

upon application. Based upon a lettef wntten on May 23, 1968

by the City Attorney, Petitioner reasonably expected that it

could also obtain such an extension upon a showing of “good

cause.” But the Planning Commission refusediito recommend,

and upon appeal the City Council denied, any extension. This

denial violated Petitioner's property rights, because Petitioner

possessed “good cause” for an extension based not only upon

economic circumstances that rendered completion of Phase 2

before October 31, 1976 infeasible, but also upon the dilatory

and obstructive acts by the City that had prevented Petitioner

from obtaining new building and use permits replacing identical

but expired permits for Phase 2.

As a foundation for its claims for damages, Petitioner alleged,

in addition to repeated investments in Phase 2 of the Project,

the reasonableness of its expectations that Phase 2 could be

completed as contemplated by the P-C Ordinance, and conduct

by defendants that induced Petitioner to continue investing

time and money in the Project.

The complaint cast these allegations in six claims for relief:

First, inverse condemnation of Petitioner’s property under the

Fifth and Fourteenth Amendments; second, inverse condemna-

tion under the California Constitution, Article | § 19; third,

denial of equal protection and due process of law under the

Fourteenth Amendment; fourth, denial of equal protection and

due process of law under the California Constitution, Article’ |

§ 7; fifth, violations of sections 1981 and following of Title 42,

U.S.C. (the “Civil Rights Act”), and sixth, declaratory relief.

The prayer for damages sought compensation for (a) Peti-

tioner’s historical investment in the property; (b) loss of time

and profits, past and future, from the office building; (c) loss

of future appreciation in the planned ten-story building. In the

alternative, the prayer sought equitable relief (an order allowing

completion of the building) and interim damages for the City’s

taking.

REASONS FOR GRANTING THE

WRIT OF CERTIORARI

I. THIS COURT HAS RECENTLY DECIDED THAT PRE-

CLUSION RULES DO NOT AUTOMATICALLY BAR A

PLAINTIFF UNDER § 1983 FROM MAINTAINING

FEDERAL CLAIMS THAT HE THEORETICALLY

COULD HAVE RAISED, BUT ACTUALLY DID NOT

RAISE, IN A PRIOR STATE-COURT PROCEEDING.

In Haring v. Prosise, 51 U.S.L.W. 4736 (decided June 13,

1983) this Court ruled that a plaintiff in an action under 42

U.S.C. § 1983 could present his Fourth Amendment claims

to a federal court, even though he had entered a guilty plea and

undergone criminal conviction in a state court without litigating

those claims. This Court expressly rejected the contention

that the plaintiff (Prosise) “should be barred from litigating

an issue that was never raised, argued, or decided, simply be-

cause he had an opportunity to raise the issue in a previous

proceeding.” /d. at 4739.

The Haring opinion represents this Court’s most recent deci-

sion on the applicability of preclusion rules under § 1983. The

opinion was delivered by an unanimous Court. More important-

ly, the Haring decision was announced after the decision of the

Ninth Circuit Court of Appeals in this case became final. The

Ninth Circuit entered judgment on May 2, 1983 (App. B) and

the mandate issued on June 2, 1983 (App. B).

Haring clearly marked one boundary for the application of

claim and issue preclusion in a § 1983 action.* But other

boundaries remain to be drawn by this Court.

* Petitioner recognizes the distinction between claim-preclusion

(res judicata) and issue-preclusion (collateral estoppel). See

Wright, Miller & Cooper, Federal Practice and Procedure:

Jurisdiction § 4471 (1981). The distinction is not critical

in this case, because the courts below applied res judicata,

the more comprehensive of the two rules.

Haring involved a voluntary plea of guilty in a state criminal

prosecution followed by a conviction without trial. There this

Court refused to presume that the criminal defendant had

enjoyed the opportunit, to raise his Fourth Amendment

defenses, but had determined unilaterally not to do so.

Now this Court may turn to the important question pre-

sented here: the extent to which preclusion rules may apply

in a § 1983 action after a state-court civil trial and final judg-

ment in a proceeding for limited equitable relief only. This

Petition depicts the natural topography for marking another

boundry in the area of preclusion under § 1983.

II. THE CIRCUIT COURTS OF APPEALS HAVE ADOPTED

CONFLICTING PRECLUSION RULES UNDER

§ 1983.

The courts below applied the more restrictive version of the

rule on preclusion prevalent among the circuit courts of appeals:

namely, that res judicata applies to all claims that were actually

raised and all claims that might have been raised in an earlier

state-court suit. The Ninth Circuit has adhered to that view of

preclusion at least since Scoggin v. Schrunk, 522 F.2d 436 (9th

Cir. 1975), cert. denied, 423 U.S. 1066 (1976).

As Justice White noted just last year, in dissenting from the

denial of certiorari in Castorr v Brundage, US.» 108

S. Ct. 240 (1982), the courts of appeals remain divided on that

issue:

The issue of whether constitutional claims not actually

litigated in earlier state proceedings are barred in a subse-

quent federal suit is of considerable importance to § 1983

litigants and has divided the federal courts of appeal. The

First, Fifth, Eighth, Ninth, and Tenth Circuits, and now

the Sixth circuit, have held that a § 1983 claimant is pre-

cluded by res judicata from relitigating not only the issues

which were actually decided in the state proceeding, but

also the issues which he might have presented. See Lovely

v. Laliberte, 498 F.2d 1261 (CA 1), cert. denied, 419 U.S.

1038, 9S S.Ct. 526, 42 L.Ed.2d 316 (1974); Jennings v.

Caddo Parish School Bd., §31 F.2d 1331 (CA 5 1976);

Robbins y. Dist. Court, 592 F.2d 1015 (CA 8 1979);

Scoggin v. Schrunk, $22 F.2d 436 (CA 9 1975), cert.

denied, 423 U.S. 1066, 96 S.Ct. 807, 46 L.Ed.2d 657

(1976): Spence v. Latting, $12 F.2d 93 (CA 10), cert.

denied, 423 U.S. 896, 96 S.Ct. 198, 46 L.Ed.2d 129

(1975). The Second and Third Circuits hold that a liti-

gant is not precluded from asserting later such claims in

federal court. See Lombard v. Board of Ed. of New York

City, 502 F.2d 631 (CA 2 1974), cert. denied, 420 U.S.

976, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975); New Jersey

Ed. Ass'n. vy. Burke, 579 F.2d 764 (CA 3), cert. denied,

439 U.S. 894, 99 S.Ct. 252, 58 L.Ed.2d 239 (1978). This

conflict -- which has been recognized by petitioner, by

respondent, by the court below, and even by this Court,

Allen v. McCurry, 449 U.S. 90, 97, n. 10, 101 S.Ct. 411,

416, n. 10, 66 L.Ed.2d 308 (1980) -- should now be

resolved. I would grant certiorari.

While Haring rejected the Ninth Circuit’s view in the context

of a criminal plea of guilty without trial, as to other kinds of

prior state-court proceedings, not only does this Court’s posi-

tion remain unknown, but the division among the circuit

courts of appeals persists and threatens to grow deeper.

Indeed, the courts of appeals may well perceive conflicting

signals emanating from this Court. To begin with, this Court

has stated repeatedly that it has yet to address the validity of

the less restrictive rule on preclusion; that is, that a plaintiff

under §1983 may relitigate in federal court all issues except

those actually raised and decided in the earlier state-court

proceeding. This is apparently the view of the Second and

Third Circuits. E.g., Williams v. Codd, 459 F.Supp. 804, 812

(S.D.N.Y. 1978) (“The doctrine of res judicata does apply to

civil rights cases in general, of course, but in a somewhat re-

laxed form.”’)

In Allen v. McCurry, 449 U.S. 90 (1980), this Court discussed

generally the rules on claim and issue preclusion under §

1983, but without ever ruling on the Second and Third Circuits’

interpretation:

A very few courts have suggested that the normal rules of

claim preclusion should not apply in § 1983 suits in one

“

peculiar circumstance: Where a $1983 plaintiff seeks to

litigate in federal court a federal issue which he would

have raised but did not raise in an earlier state-vourt suit

against the same adverse party. Graves » Olgiati. $50 F

2d 1327 (CA2 1977). Lombard vy. Board of Ed of New

York City, 502 F.2d 631 (CA2 1974); Mack » Florida

Bd. of Dentistry, 430 F.2d 862 (CAS 1970). These cases

present a narrow question not now before us and we inti-

mate no view as to whether they were correctly decided.

449 U.S. 90, 97 n. 10.

Again, in Haring, this Court expressly refrained from addressing

that question:

Other federal courts have concluded, however, that civil

rights plaintiffs are not barred from litigating issues that

could have been raised in prior proceedings in state court

on a different cause of action. See eg., New Jersey Ed.

Assn. v. Burke, 579 F.2d 764, 772-774 (CA3 1978); Lom-

bard v. Board of Education, 502 F.2d 631 635-637 (CA2

1974). Since no motion to suppress evidence on Fourth

Amendment grounds was ever raised at the state-court

proceedings, this case does not present questions as to the

scope of collateral estoppel with respect to particular

issues that were litigated and decided at a criminal trial

in state court. As we did in Allen vy. McCurry, 449 USS.

90, 93 n. 2 (1980), we now leave those questions to another

day.

51 U.S.L.W. 4736, 4737 n. 2.

That precise question still remains open. In addition, the

direction of this Court’s decisions on preclusion under § 1983

remains uncertain. Haring itself points towards the need to

limit the range of preclusion rules in actions under § 1983.

Allen v. McCurry, in contrast, pointed towards broadening

the applicability of those same rules; for there this Court

stressed that nothing in the legislative histcm. and purpose

of §1983 made preclusion rules generally inapplicable. 449

U.S. 90, 96-97, 104-5,

The lower federal courts have taken Allen as encouragement

to apply those rules liberally. Even a district court within the

Second Circuit interpreted Allen as an invitation to apply res

judicata freely to federal constitutional claims, whether or

not brought under § 1983:

According to Monroe vy. Pape, Congress intended in §

1983 to provide a supplementary remedy where state law

and process did not allow full and fair litigation of a con-

stitutional claim. But the court in Allen recognized that

this was in accord with the normal res judicata and collateral

estoppel rules, which require a full and fair opportunity

to litigate the claim or issue in the first action as a predi-

cate to a bar in the second action.

Thus, the Supreme Court in Allen has taken the strongest

possible view in favor of full application of res judicata

and collateral esoppel rules in §1983 cases. The normal

res judicata rule includes a bar against assertion in a second

action of an issue which could have been litigated in the

first action, but was not. The view that the latter rule does

not apply in §1983 cases is wholly inconsistent with the

teachings of Allen.'

As noted earlier, the present case is not brought under §

1983, but directly under the Fifth and Fourteenth Amend-

ments. The Second Circuit in Lombard left open the ques-

tion of whether a federal court action brought directly

under the Constitution would be barred by a prior claim

could have been litigated but was not. 502 F.2d at 637.

In view of Allen v. McCurry, it seems clear that, at the

very least, one must read the Lombard holding narrowly,

and should not expand it beyond its precise facts. Thus,

the answer to the question left open in Lombard is that

res judicata should apply. The result in the present case is

that plaintiff's claim is barred.

Sachetti vy. Blair 536 F.Supp. 636, 640-41 (S.D.N.Y. 1982).

Indeed, in a footnote the Sacherti court portrayed the Second

Circuit’s view as isolated and possibly incorrect after Allen. See

also, Harrington v. Inhabitants of Town of Garland, Me., 551

F.Supp. 1371, 1373-75 (D.Me. 1982) (noting the uncertainty

created by the question left open in Allen vy. McCurry).

Nor does this Court’s opinion in Kremer v. Chemical Con-

struction Corporation, 456 U.S. 461, 102 S. Ct. 1883 (1982),

help remove the false impression that preclusion rules are

settled in §1983 actions. Aremer. of course. was a Title VII

case. Kremer rested upon the legislative history of 42 U.S.C.

§§ 2000e and following and their relation to 28 USC. §

1738. Yet there this Court held that a Title VII plaintiff would

be precluded from suing in federal court if the earlier state

proceedings did “‘no more than satisfy the minimum procedural

requirements of the Fourteenth Amendment’s Due Process

Clause” and the plaintiff had enjoyed a “full and fair opportu-

nity to litigate” his claim of employment discrimination. 456

U.S. 461, 102, S. Ct. 1883, 1897.

If receiving a minimum of due process sufficed to trigger

preclusion under Title VII, then why would not a very small

measure of due process produce a similar result under § 1983?

True, the Kremer opinion suggested, in dictum, that preclu-

sion under §1983 might apply under stricter constitutional

requirements:

Our finding that Title VII did not create an exception to

§1738 is strongly suggested if not compelled by our re-

cent decision in Allen v. McCurry, supra, that preclusion

rules apply in §1983 actions and may bar federal courts

from freshly deciding constitutional claims previously

litigated in state courts. Indeed, there is more in §1983

to suggest an implied repeal of §1738 than we have found

in Title VII.

456 U.S. 461, 476.

But the holding of Kremer reflected this Court's apparent

movement toward expanding the scope of preclusion rules.

Repeated, indeed universal, concern over the federal caseload

gives the lower federal courts a practical reason to read Allen

and Kremer in that manner. But compare Consolidated Foods

Corporation v. Unger,__U.S._, 102 §. Ct. 2288 (1982) (Black-

mun, J., concurring) (concern that Kremer will not serve

Congress’ purpose in enacting Title VII and may even encour-

age claimants not to seek redress first in state agencies and

courts).

Now Haring has made it evident that this Court does not

intend to sanction any broad, virtually automatic rule of pre-

clusion in § 1983 actions. Therefore, this Court should now

address the correctness of the Ninth Circuit's view, as applied

in this case, that an earlier state-court suit for equitable relief

bars a subsequent action for damages under § 1983, simply

because the plaintiff, ‘could have’ sought damages in the state

court, notwithstanding the constitutional inadequacy of the

remedy made available by the state court.

III. PETITIONER DID NOT ENJOY A “FULL AND FAIR

OPPORTUNITY” TO MAINTAIN ITS CONSTITUTION-

AL CLAIMS FOR DAMAGES IN STATE COURT BE-

CAUSE THE CALIFORNIA COURTS REQUIRED

INITIAL RESORT TO EQUITABLE REMEDIES AND

ULTIMATELY ELIMINATED ANY MONETARY RE-

MEDY ALTOGETHER.

In this case Petitioner admittedly went to trial in a California

court in the Mandamus (to obtain extension of the development

schedule and permits) and then appealed unsuccessfully. On

this ground, the courts below concluded that, Petitioner either

fully litigated its constitutional claims in the Mandamus or at

least had an opportunity to do so but declined.

Unfortunately, this facile conclusion ignores historical

reality—in particular, the evolution of California law during

the period from 1977 through 1981 when Mandamus was

pending.

That hard reality, already familiar to this Court from the

cases cited below, brings Petitioner now within the establish-

ed exceptions to preclusion under § 1983.

The two chief exceptions are stated in the Haring opinion;

and both operate in this case in tandem:

Section 28 U. S. C. sec. 1738 gr. erally requires “federal

courts to give preclusive effect to state-court judgments

whenever the courts of the State from which the judg-

ments emerged would do so.; Allen v. McCurry, supra,

at 96.° In federal actions, including sec. 1983 actions.

a state-court judgment will not be given collateral estoppel

effect, however, where “the party against who an earlier

court decision is asserted did not have a full and fair oppor-

tunity to litigate the claim or issue decided by the first

court.” /d, at 101° Moreover, additional exceptions to

collateral estoppel may be warranted in sec. 1983 actions

in light of the “understanding of sec. 1983” that “the

federal courts could step im where the state courts were

unable or unwilling to protect federal rights.” /d., at 101.

Cf. id, at 95, n. 7; Board of Regents v. Tomanio, 446

U.S. 478, 485-486 (1980) (42 U.S.C. sec. 1988 authorizes

federal courts, in an action under sec. 1983, to disregard an

otherwise applicable state rule of law if the state law is

inconsistent with the federal policy underlying sec. 1983).

$1 U.S.L.W. $736, 4738.

In this case Petitioner could not have effectively litigated

its federal constitutional claims for damages in state court,

precisely because the California courts in 1977 favored initial

resort to equitadle remedies (i.e. mandamus or declaratory

relief) and by 1979 the California Supreme Court had express-

ly eliminated the monetary remedy for a regulatory taking

under the Fifth Amendment. See Agins v. City of Tiburon,

24 Cal.3d 266, $98 P.2d 25, 157 Cal.Rptr. 372 (1979), aff'd,

447 U.S. 255 (1980) (challenged zoning ordinance, held consti-

tutional on its face; no opinion expressed on requirement

of a monetary remedy under the Fifth Amendment).

The historical antecedents of the California high court’s

Opinion in Agins are summarized in the opinion itself. 24 Cal.

3d 266, 273-77, 157 Cal.Rptr. 372, 375-77. In brief, the

California court in 1975 began by expressing a preference

for equitable suits in disputes over land-use regulations (zoning

ordinances and general plans, typically). HFH, Ltd. v. Superior

Court, 15 Cal.3d $08, 542 P.2d 237, 125 Cal.Rptr. 365, cert.

denied 425 U.S. 904 (1976). At the same time the HFH court

restricted the scope of regulatory ‘takings’ to those cases in

which the challenged regulation deprived the owner of virtu-

ally all reasonable use of his land. HFH, Lid., supra, at 15 Cal.

3d 518 n. 16. During the years succeeding that decision, the

California appellate courts almost invariably ruled against the

landowner in actions for inverse-condemnation damages. £.z.,

Brown y. City of Fremont, 7§ Cal.App.3d 141, 142 Cal.Rptr.

575 (1976) (cause of action for inverse condemnation stated

where City’s rezoning deprived owner of any economically

viable use and may have served as an alternative to public

acquisition for park use). Finally, in 1979 the California Su-

preme Court in Agins not only stated that the California courts

may not award monetary damages under the Fifth Amendment

in land-regulation cases, but also expressly disapproved Eldridge

as inconsistent with that radical rule. 24 Cal.App.3d 266,

273, 157 Cal.Rptr. 372, 375, $98 P.2d 25.

It was during that epoch that Petitioner prosecuted the Man-

damus in the California courts. The Mandamus sought only

equitable relief — essentially an order requiring the City to

extend the development schedule and issue replacement use and

duilding permits in order to complete the ten-story building

originally approved. Petitioner argued that it held a “vested

right” to complete the building, because such an allegation

was required under California law to obtain de novo review

of an agency’s decision through mandamus. The determination

on “vested right” in the Mandamus affected a preliminary

procedural matter, not any substantive issue necessary to the

decision. Cal. Code of Civ. Proc. §§ 1085, 1094.5; Strumsky

v. San Diego County Employees Retirement Association,

11 Cal.3d 28, $20 P.2d 29, 112 Cal. Rptr. 805 (de novo review

“under independent judgment” test applies in proceeding

under C.C.P. § 1094.5 for administrative mandamus where

a fundamental, vested right stands at issue). Petitioner sought

no money in the Mandamus. Nor did Petitioner attempt to

establish those facts requisite to a cause of action for inverse

condemnation: the lack of any remaining, economically viable

use for the property taken, acquisitory intent on the part of

the City, the existence and extent of injury to the real property.

See generally, Penn Central Transportation Co ¥. City of

New York, 438 U.S. 104 (1978) and Kaiser-Aetna v. US,

444 U.S. 164(1979).

In light of this disquieting chronicle of California land-

use law and Petitioner's enforced compliance with the pro-

cedural and substantive aspects of that law, this Court should

conclude that the exceptions noted in Haring do cover this

case. For if those exceptions do not control here, then the

strong federal policies behind §1983 may have lost their

original force and direction. The commentators on §1983

have observed that the scope of the “full and fair opportunity”

exception remains somewhat “ambiguous” still, and so this

Court has yet another reason to grant this Petition. Wright,

Miller & Cooper, (1981) Federal Practice and Procedure:

Juristicton § 4471, at p. 708 (1981).

Clearly this is a case in which the California courts have re-

fused to afford Petitioner the right to seek monetary damages

under the Fifth and Fourteenth Amendments, while the lower

federal courts, in a subsequent § 1983 action, have effectively

blessed the dereliction of the state courts.

The decision of the California Supreme Court in Agins,

supra, does not comport with the requirements of the Fifth

Amendment regarding the availability of a monetary remedy.

In his dissenting opinion in San Diego Gas & Electric Co. ¥.

City of San Diego, 450 U.S. 621, 101 S. Ct. 1287, Justice

Brennan reasoned the Fifth Amendment mandates the availa-

bility of monetary damages for a taking. Justice Rehnquist

would have agreed with that view in the dissenting opinion.

450 U.S. 621, 636 (Rehnquist, J., concurring in the dismissal

for lack of a final judgment below). It is now generally recog-

nized that a majority of this Court probably disagrees with

the California high court's view of remedies under the Fifth

Amendment.

Ironically, the Ninth Circuit stands among the first of the

courts of appeals to read the opinions in San Diego Gas &

Electric as disapproval of Agins. In reversing a summary judg-

ment against a landowner suing a city and water district in

California for damages under § 1983, the Ninth Circuit refused

to follow Agins on the question of remedy because *... the

present vitality of this aspect of Agins has. . . been substantially

undercut by Justice Brennan's dissenting opinion in San Diego

Gas & Electric Co. v. City of San Diego, . . ."’ Martino v. Santa

Clara Valley Water District, 83 Daily Journal D.A.R. 1067,

(April 14, 1983) (No. 81-4578).

The landowner in Martino had sought no equitable relief,

neither mandamus nor declaratory relief. Therefore the Ninth

Circuit might have affirmed the summary judgment on the

ground that the landowner had prayed only for damages, and

California law on inverse condemnation prohibited an award

of damages. The Martino court chose to follow this Court’s

constitutional rulings instead, reasoning:

Even if we were persuaded by the dictum in Agins to hold

that the Martinos could not recover damages for inverse

condemnation, summary judgment would be improper

insofar as it relates to the Martinos’ claim under the Federal

Civil Rights Act, 42 U.S.C. sec. 1983, 1985 and 1986...

are currently in a state of evolving definition and uncertainty”

(See City of Newport v. Fact Concerts, Inc., 453 USS.

246, 256 (1981)), an action for damages under section

1983 for the overregulation of land was recognized by the

U.S. Supreme Court in Lake Country Estates, Inc. v. Tahoe

Regional Planning Agency, 440 U.S. 391 (1979). The

district court improperly denied the Martinos an opportu-

nity to try to prove such a claim.

Id. at 1069.

Because California law governing the Mandamus meant that

the state courts were either unable or unwilling to protect

Petitioner’s constitutional right to seek damages, and more

likely both, the courts below should not have dismissed Pe-

titioner’s § 1983 action on the ground of res judicata. Haring

v. Prosise, supra, at 4738.

IV. SINCE THE FINAL JUDGMENT IN THE MANDAMUS,

THIS COURT HAS IMPLICITLY DISAPPROVED THE

CALIFORNIA HIGH COURT'S OPINION IN AGINS ON

THE ISSUE OF DAMAGES FOR INVERSE CONDEM-

NATION, AND THIS CHANGE IN CONTROLLING LAW

MAKES PRECLUSION INAPPLICABLE TO PETITION-

ER’S ACTION UNDER § 1983.

Having recounted the rise and fall of the California rule in

Agins, Petitioner now submits that those drastic changes in

governing constitutional law afford yet another exception

to the preclusion rules.

This Court explained this exception in its Haring opinion:

We have recognized various other conditions that must also

be satisfied before giving preclusive effect to a state-court

judgment. See generally Montana vy. United States, 440

U.S. 147 (1979). For example, collateral estoppel effect

is not appropriate when “controlling facts or legal princi-

ples have changed significantly since the state-court judg-

ment,” id., at 155, or when “special circumstances warrant

an excention [sic] to the normal rules of preclusion,”

Montana v. United States, supra, at 155; see, e.g., Porter

and Dietsche, Inc. v. FTC, 605 F. 2d 294, 300 (CA7 1979);

cf. Montana v. United States, supra, at 163 (preclusive

effect to a state-court judgment may be inappropriate

when the sec. 1983 claimant has not “ ‘freely and without

reservation submit(ted) his federal claims for decision by

the state courts ... and ha(d) them decided there...’ *’)

(quoting England vy. Medical Examiners, 375 U.S. 411,419

(1964)).

$1 U.S.L.W. 4736, 4738 n.7

Not until after the final judgment of the California Court of

Appeal in the Mandamus did Petitioner become free of the

restriction On monetary damages, and an unconstitutional

restriction at that, existing under California law. This Court

announced its decision in San Diego Gas & Electric Co., supra,

on March 24, 1981, thirteen days after the decision by the

California Court of Appeal. Petitioner commenced its action

for damages under § 1983 on December 3, 1981.

Unless the judgment below is reversed, Petitioner will never

have an Opportunity to present its claim for damages to any

court disposed to recognize and to rule fairly on such a claim.

V. THE POLICY BEHIND § 1983, TO ASSURE THE

FEDERAL FORUM FOR VINDICATION OF CON-

STITUTIONAL RIGHTS, WILL BEST BE SERVED

BY THIS COURT'S ISSUING ITS WRIT.

This Court has repeatedly recognized the purposes served

by § 1983. In essence, the statute embodies a policy that

the federal courts remain available to litigants seeking redress

for violation of their constitutional rights. That policy takes

On compelling force in those cases where the state courts

have proven deficient in protecting such rights. Haring y.

Prosise, 51 U.S.L.W. 4736, 4741; accord, Allen v. McCurry,

449 U.S. 90, 100-1 (1980). As this Court succinctly explained

in Allen:

To the extent that it did intend to change the balance of

power over federal questions between the state and federal

courts, the 42d Congress was acting in a way thoroughly

consistent with the doctrines of preclusion. In reviewing

the legislative history of § 1983 in Monroe v. Pape, supra,

the Court inferred that Congress had intended a federal

remedy in three circumstances: where state substantive

law was facially unconstitutional, where state procedural

law was inadequate to allow full litigation of a constitution-

al claim, and where state procedural law, though adequate

in theory, was inadequate in practice. 365 U.S., at 173-174.

In short, the federal courts could step in where the state

courts were unable or unwilling to protect federal rights.

Id., at 176. This understanding of § 1983 might well

support an exception to res judicata and collateral es-

stoppel where state law did not provide fair procedures

for the litigation of constitutional claims, or where a state

court failed to even acknowledge the existence of the

constitutional principle on which a litigant based his claim.

449 U.S. 100, 101.

Here the California courts in practice ignored. and ultimately

disavowed. Petitioner's right to seek monetary damages for an

alleged taking of property under the Fifth Amendment. No-

thing in Allen vy. McCurry orin any of this Court's other decisions

on the preclusion rules authorizes the decision by the Ninth

Circuit here

Other policies, Petitioner recognizes. impinge upon the

question of preclusion under § 1983. There are, for example.

considerations of comity and federalism and the express man-

date of full faith-and-credit for state-court judgments under

28 U.S.C. § 1738. In addition, limited federal judicial resources

may cause this Court to incline towards giving greater scope

to preclusion rules.

Reconciling all of these competing interests does not present

an easy task. See generally, Note, “Res Judicata and Section

1983: The Effect of State Court Judgments on Federal Civil

Rights Action,” 27 UCLA L. Rev. 177 (1977). In the final

analysis, the creation of a universal rule on preclusion under

§ 1983 may not prove a manageable or desirable enterprise.

Yet more modest, out extremely important. goals lie within

this Court’s reach. The division among the circuit courts of

appeals on preclusion rules can be healed definitively. In ad-

dition, this Court can clearly announce in this case that a civil

action for damages under § 1983 can be maintained after an

earlier state-court suit that confined the plaintiff to a single,

constitutionally inadequate, equitable remedy. Finally, this

Court may rule that, in land-regulation cases such as this where

the need for finality is not great, where in reality the land re-

mains frozen and the City adamant in its denial of the owner's

rights, the doctrine of res judicata will display a narrower sweep.

Cf. Castorr v. Brundage, U.S. ., 103 S.Ct. 240, 241 (Stevens,

J., concurring in denial of certiorari).

This court should issue its writ in this case as one that sharply

poses an important set of related questions under § 1983 and

the Fifth and Fourteenth Amendments.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of Certiorari

should be granted.

Respectfully submitted,

On July 31, 1983

SIMS & WIDMAN

s/ Jeffrey P. Widman

JEFFREY P. WIDMAN

84 W. Santa Clara St.

San Jose, CA 95115

Telephone: (408) 998-3400

Attorneys for Petitioner

CERTIFICATE OF SERVICE

STATE OF CALIFORNIA

) $5.

COUNTY OF SANTA CLARA

Jeffrey P. Widman, being first duly sworn upon his oath,

deposes and says that he is a member of the Bar of this Court

and one of the counsel of record for Petitioner in this cause:

that on this Ist day of August, 1983. he mailed three copies

of Petitioner's Petition for a Writ of Certiorari in this cause

by depositing same in the United States mail. first-class postage

prepaid, to:

Diane M. Lee Fred Caploe

City Attorney Williams & Caploe

City of Palo Alto 1060 Grant St..

250 Hamilton Ave. Suite 20]

Palo Alto, CA 9430] P.O. Box 698

Benicia, CA 94510

and that he also mailed forty copies of Petitioners’ Petition

for a Writ of Certiorari to the Clerk of this Court. first-class

postage prepaid, all in compliance with Supreme Court Rule

28.

s/ Jeffrey P Widman

JEFFREY P. WIDMAN

SUBSCRIBED AND SWORN to before me this 31st day of

July, 1983.

Witness my hand and official seat.

s| A.B. Drexler

A.B. DREXLER

NOTARY PUBLIC

My commission expires 7-] 5-86

APPENDICES

TABLE OF CONTENTS

Page

APPENDIX A:

(1) Complaint for Inverse Condemnation, Deprivation

of Constitutional Rights and Violation of the Fede-

ral Civil Rights Act and Declaratory Relief in

the United States District Court for the Northern

District Court of California filed on December

Fy EE EE Oe ae RR A Deb ee ek a Al

(2) Order Granting Motion to Dismiss of the United

States District Court for the Northern District of

California filed on June 4, 1982. ..............., A-19

(3) Judgment of the United States District Court for

the Northern District of California filed on June

RN Cail 5 date ae UREA ERLE che wines Kee A-22

APPENDIX B:

(1) Memorandum of the United States Court of

Appeals for the Ninth Circuit filed on May 2,

RE cate ars Kwe ea WSS eee os bb eee EN TR ab bee es B-1

(2) Judgment of the United States Court of Appeals

for the Ninth Circuit filed on May 2, 1983......... B-2

APPENDIX C:

Constitutional and Statutory Provisions Involved ..... C-1

(1)

(2)

(3)

APPENDIX A

Complaint for Inverse Condemnation, Deprivation

of Constitutional Rights and Violation of the Fede-

ral Civil Rights Act and Declaratory Relief in

the United States District Court for the Northern

District Court of California filed on December

3, 1981.

Order Granting Motion to Dismiss of the United

States District Court for the Northern District of

California filed on June 4, 1982.

Judgment of the United States Distt Court for

the Northern District of California filed on June

4, 1982.

JEFFREY P. WIDMAN

ANDREW L. FABER Original

BERLINER, COHEN & BIAGINI Filed

99 Almaden Blvd.. Suite 400 Dec. 3 198]

San Jose, CA 9§113 Clerk, U.S. District Court

Telephone: (408) 286-5800 Northern District of California

San Jose

ROBERT E. CARTWRIGHT

CARTWRIGHT, SUCHERMAN, SLOBODIN.,

& FOWLER, INC.

160 Sansome Street, Suite 900

San Francisco, CA 94306

Telephone: (415) 433-0440

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

COURT HOUSE PLAZA COMPANY, a

limited partnership,

: Plaintiff, No. C-81-4537 SC

THE CITY OF PALO ALTO, a

municipal corporation, STANLEY

COMPLAINT FOR

INVERSE CON-

R. NORTON, BYRON D. SHER, | DEMNATION,

FRED S. EYERLY, ROY L. CLAY, DEPRIVATION

KIRKE W. COMSTOCK, SCOTT T. OF CONSTITU-

TIONAL RIGHTS

AND VIOLATION

OF THE FEDER-

CAREY, JOHN J. BERWALD,

ANNE R. WITHERSPOON, JOHN V.

BEARS, Councilmen, PETER R.

CARPENTER, MARY R. GORDON, AL CIVIL

WILLIAM E. GREEN, JAY W. RIGHTS ACT

MITCHELL, EMILY M. RENZEL AND DECLARA-

ANNE STEINBERG, Planning Com- TORY RELIEF

missioners, STAN J. NOWICKI, Chief

Building Inspector, JAMES O. GLAN-

VILLE, Zoning Administrator, NAP-

THALI H. KNOX, Director of

Planning and Community Environ-

ment, ROBERT K. BOOTH, JR.,

City Attorney

and LOUIS B. GREEN, Assistant City

Attorney,

(Jury Trial De-

manded]

Nee Nee Nee Ne Nee Ne Nae Nr Nee Ne Ne Nee Ne Ne Nee Ne Ne Se’ ee Se ee Se Se “Ge

Defendants.

A-2

FIRST CLAIM FOR RELIEF

(Inverse Condemnation — United States Constitution]

[Jurisdiction and Venue]

This Court has jurisdiction under Section 1331 of Title

28 of the United States Code, because this action arises

under the Fifth and Fourteenth Amendments to the

Constitution of the United States and, more specifically,

those clauses of those Amendments requiring the payment

of just compensation to the owner of property taken by

government for public use and prohibiting the deprivation

of rights without due process of law and the denial of

equal protection under the laws.

This Court has jurisdiction also under Section 1343 of

Title 28 of the United States Code, because this action is

brought under Sections 1981 and following of Title 42

of the United States Code (the Civil Rights Act) to redress

the deprivation, under color of state law, of Plaintiff's

rights, privileges, and immunities secured by the Consti-

tution of the United States and by the Act.

To the extent that state law may authorize any claim for

relief stated herein, this Court has pendent jurisdiction

of such state claims because they arise from the same

set of facts as the federal claims stated in this Complaint.

Plaintiff, COURT HOUSE PLAZA COMPANY, is a limited

partnership formed and existing under the California

Limited Partnership Act (Corporations Code § §15500

et seq.) Plaintiff does business under the name of COURT

HOUSE PLAZA COMPANY and has complied with the

provisions of California law (Business and Professions Code

§§17910 er seq.) for the filing and publication of a

certificate stating such fictitious business name. Plaintiff

is the successor-in-interest to California Lands Building

Company, a California general partnership, the former

owner of the property in question here until about October

of 1971.

A-3

Plaintiffs principal place of business. and the property

in question are located within, and the acts of Defendants

described in this Complaint, all occurred within, the

jurisdictional boundaries of the District Court for the

Northern District of California. Venue is proper in this

Court for the prosecution of this action.

[Parties to this Action]

Plaintiff is the fee owner of real property located at 260

Sheridan Avenue, City of Palo Alto, County of Santa

Clara, State of California.

Defendant. THE CITY OF PALO ALTO (“the CITY”),

is now and at all times pertinent to this action was, a

municipal corporation organized and existing under the

laws of the State of California as a charter city and located

in the County of Santa Clara, State of California.

Defendents STANLEY R. NORTON, BRYON D. SHER,

FRED S. EYERLY, ROY L. CLAY, KIRKE W. COM-

STOCK, SCOTT T. CAREY, JOHN T. BERWALD, ANNE

R. WITHERSPOON and JOHN VY. BEAHRS were, on

and before December 6, 1976, members of the City

Council of the CITY.

Defendents PETER H. CARPENTER, MARY GORDON,

WILLIAM E. GREEN, JAY W. MITCHELL, EMILY M.

RENZEL and ANNE STEINBERG were, on and before

December 6, 1976, members of the Planning Commission

of the CITY.

Defendants STANLEY J. NOWICKI, JAMES O. GLAN-

VILLE, NAPHTALI H. KNOX, ROBERT K. BOOTH, JR.,

and LOUIS B. GREEN were, on or before December 6,

1976, respectively, the Chief Building Inspector, the

Zoning Administrator, the Director of Planning and

Community Environment, the City Attorney, and the

Assistant City Attorney of the CITY.

At all times pertinent to this action, Defendants individually

and collectively, acted in concert to cause Plaintiff's injury

10.

as described in this Complaint: and the individual Defen-

dants served as the agents and/or employees of Defendant

CITY and of each other and at all times acted within the

scope of such agency and employment.

(History of the Project: Acquisition of Vested Rights]

The CITY adopted Ordinance No. 2224 on December

28, 1964 (the “P<C Ordinance”). The PC Ordinance

placed Plaintiffs property in a “P-C”’ zone; that is, a zone

for professional and commercial office use. The PC

Ordinance also approved (by incorporation) Plaintiff's

development plans for ten-story office building; and these

plans consisted of detailed drawings showing the location,

elevation, and floor plan of the building, the related

parking garage, and other details of the site development

(the “Project”’).

The P-C Ordinance contained certain conditions:

(a) “Building location, dimensions, heights and other

improvements shall be substantially as indicated on

the approved Development Plan.”

(b) Off-street parking space shall be provided, the number

of spaces to be at the ratio of one for each 144 square

feet of floor area in the ground floors and one park-

ing space for each 288 square feet of floor space in

the upper floors.

development schedule providing that, in Phase 1,

“start of construction of the four-story office building”

and the “parking garage’’ shall be “within two years

of Council approval” and, in Phase 2, “‘start of

construction of the fifth to and including the tenth

story” and “additional levels of the parking garage”

shall be “by October 31, 1976.”

The development schedule contained in the P-C Ordinance

rested upon an understanding between Plaintiff and City

officials that the phasing of the Project would enable

13.

14.

A-5

Plaintiff to complete the Project when the demand for

office space in the CITY made completion economically

feasible.

Soon after adoption of the P-C Ordinance Plaintiff pre-

pared architectural plans for the entire ten-story building.

On June 14, 1966, the CITY issued a building permit

for Phase 1. On January 17, 1966, the CITY issued a use

permit for Phase 1. In reliance upon these permits and

with the guidance of its architectural plans for the ten-

story building, Plaintiff commenced construction of Phase

1, within the two-year period required under the develop-

ment schedule of the P-<C Ordinance, and completed

construction in about August of 1967.

The first four stories of the building completed in Phase

1 incorporated structural elements designed to support

the remaining six stories in Phase 2. Among the structural

elements, costing over $450,000, were the following:

(a) A foundation capable in sustaining all ten floors:

(b) Structural steel of sufficient strength to support the

remaining six floors;

ment instead of upon the roof, in order to permit

construction of the remaining six floors without

interrupting service to the first four floors;

(d) Two additional elevator shafts to accommodate

elevators for the remaining six floors;

(e) An interior smokeproof tower for fire safety purposes,

not necessary in a four-story building;

(f) Extra electrical, water and sewage capacity permitting

hook-up of facilities on the remaining six floors.

In so completing Phase | and thereby commencing actual

construction of Phase 2, Plaintiff acquired a vested right

to complete Phase 2 under regulations in effect on the date

that the P-<C Ordinance was adopted. Plaintiff reasonably

expected that it might complete Phase 2 under such

regulations based upon the conduct of Defendants in

—

16.

A+

issuing building and use permits for commencement of

the Project; and the Plaintiff's investment in the Project

in 1966 and succeeding years resulted from that reasonable

expectation.

[The Parking Problem]

Because the parking garage contemplated by the P-C

Ordinance would have interfered with the CITY’s plan

for realignment of Page Mill Road, the CITY did not

require Plaintiff to begin construction of the garage with-

in the two years provided in the development schedule.

On December 13, 1965 the CITY adopted Resolution

No. 3860 requiring Plaintiff to provide 107 off-street

parking spaces instead of the garage. The CITY thereby

acknowledged its responsibility for impeding Plaintiff's

construction of the parking garage and indicated officially

its willingness to cooperate with Plaintiff in resolving

the parking problem.

Thereafter CITY engaged in a course of conduct which

effectively aggravated the parking problem, prevented its

resolution, thwarted Plaintiff in its efforts to satsify the

condition of the PC Ordinance regarding parking spaces.

The CITY’s course of conduct included, among others,

the following acts:

(a) The CITY failed to resolve with the County of Santa

Clara the design of the Page Mill Road realignment.

(b>) On December 11, 1967, the CITY adopted Resolution

No. 4055 extending time for the commencement

of construction of the parking garage by one year.

On May 6, 1968 the CITY adopted Resolution No.

4113, rescinding Resolutions Nos. 3860 and 4055,

substituting 107 attendant parking spaces on the

surface in place of a parking garage, and allowing

until October 31, 1976, for Plaintiff to commence

construction of the parking garage.

17.

A-7

CITY consented to the County's acquiring, under

a final order of condemnation entered on August

21, 1970, a portion of the land Plaintiff intended

to use for construction of the parking garage. making

its construction impossible.

(d) In connection with the foregoing condemnation, the

CITY sold the County, and the County conveyed to

Plaintiff as partial compensation, a small piece of land

supposedly usable for the parking garage, but known

to the CITY not to be usable under CITY’s own

requirements for design and construction.

(e) On March 31, 1975, the CITY resolved to acquire

six parcels of land (the ‘Power parcels’’) for eventual

development by the CITY for low-and moderate-

income housing. At the time of this Resolution the

CITY knew that Plaintiff had once invested funds in

acquiring an option to purchase, and later in purchas-

ing the Power parcels as a means of resolving the

parking problem. Although no longer the owner after

1973, Plaintiff remained interested in using the Power

parcels for parking for the project.

By these and other acts the CITY defeated Plaintiff's

reasonable expectation that the CITY would with Plaintiff

cooperate to satisfy the parking requirements for the

Project before October 31, 1976.

[City’s Dilatory and Arbitrary Administrative Acts]

In the Fall of 1968 Plaintiff completed construction

drawings for Phase 2. The demand for office space then

justified completion of Phase 2. In October of 1969

Plaintiff arranged financing for construction, directed

its general contractor to commence the placement of

construction subcontracts for the remainder of Phase 2,

and particularily for structural stee! and elevators for the

six-story addition.

19.

20.

A-8

Plaintiff applied for a building permit on December 1,

1969. Instead of issuing a building permit promptly

according to the regulations fixed by the P-C Ordinance,

Defendants arbitrarily insisted that the smokeproof

tower shown in the construction plans did not comply

with the CITY’s Building Code as amended after the P-C

Ordinance. This dispute between Plaintiff and Defendants

was not resolved until after the Assistant City Attorney

ruled that Plaintiff had acquired vested rights in a ten-

story office building, to be completed with an interior

smokeshaft and without a fire sprinkler system, under the

P-C Ordinance. The CITY ffinally issued the building

permit on February 16, 1970.

Plaintiff applied for a use permit on February 13, 1970.

Again Defendants arbitrarily objected to this application

on the ground that the ten-story building, when completed,

would be fourteen feet higher than the building shown in

the drawings incorporated into the P-C Ordinance, even

though defendants knew that the P-C Ordinance required

building heights to be only “substantially as indicated on

the approved Development Plan.” The fourteen-foot

height difference derived from the need for more space

between the floors to accommodate heating and ventila-

tion equipment. The first four floors built in Phase | had

already included the extra spacing. Because CITY’s Zoning

Administrator objected to the difference in height, Plain-

tiff was required to request the CITY’s Planning Commission

to overrule the Zoning Administrator. On March 30,

1970 the City Council approved the Planning Commission’s

favorable ruling and issued the use permit, thereby ruling

officially that the fourteen-foot height difference sub-

stantially complied with the P-C Ordinance.

While the CITY so delayed in issuing building and use

permits to Plaintiff for the completion of Phase 2, the

CITY also approved, on September 22, 1969, the nearby

Palo Alto Square Project consisting of two ten-story office

24.

A-9

towers competing directly with Plaintiffs Project. The

Palo Alto Square Project created a surplus of professional

and commercial office space in the vicinity and so ren-

dered the completion of Phase 2 by Plaintiff not viable

economically for several years under then-prevailing

business and financial conditions.

Notwithstanding its own financial difficulties and the

saturated market for office space, Plaintiff again applied

for a use permit to complete Phase 2, following the

expiration of the use permit issued on February 13.

1970. Plaintiffs new application was filed on February

27, 1973 and requested a use permit identical to the one

issued in 1970. Despite the fact that the City Council

had already declared officially that the fourteen-foot

height difference complied substantially with the P-C

Ordinance, the CITY’s Zoning Administrator indicated

his intent to deny the new application because of that

difference. In the face of this arbitrary objection, Plaintiff

withdrew this application on March 30, 1973.

In September of 1973 the CITY adopted an interim

Ordinance No. 2745 limiting the height of new structures

to fifty feet. The CITY incorporated this fifty-foot

height limit into its new comprehensive plan in 1976.

In late 1975 the market for professional and commercial

Office space finally improved. The competitive Palo Alto

Square Project was then almost completely leased. The

renewed demand for office space and the availability

of construction financing combined to render the com-

pletion of Phase 2 of the Project economically feasible

once again.

In September of 1975 Plaintiff renewed discussions

with Defendants regarding the completion of Phase 2.

In response, Defendants resumed a course of conduct

intended to delay Plaintiff, prevent completion of Phase

2, deprive Plaintiff of its vested rights, and to frustrate

Plaintiff's reasonable investment-backed expectation

A-10

that it could complete the Project under the PC Ordi-

nance and the regulations in effect when the P-C Ordinance

was adopted. Among the acts comprising such course

of conduct were the following:

(a)

(b)

(c)

After Plaintiff applied on June 30, 1976 for a

change in the P-C zone to resolve the parking

problem, the CITY’s Zoning Administrator un-

reasonably objected to such application on the

ground that it included land not owned by Plaintiff

and for which Plaintiff requested contingent PC

zoning. Consequently, Plaintiff acquired the de-

scribed land on September 11, 1976. Notwithstand-

ing Plaintiff's expenditures of time, money, and

personal efforts the zone-change application was

never finally processed by the CITY before October

31, 1976, the end of the development schedule

under the P-C Ordinance.

In the face of objections to its zone-change appli-

cation, Plaintiff applied for a three-year extension

of the development schedule on the suggestion of

Zoning Administrator. The Planning Commission

denied this extension on August 25, 1976, despite

the fact that Section 18.68 of the CITY’s Municipal

Code provides that an extension of a development

schedule may be recommended by the Planning

Commission “for good cause shown by the property

owner in writing.” Plaintiff appealed the denial to

the City Council, and the Council placed the appeal

on its agenda. On the advice by the Mayor of the

CITY and other council-members that the appeal

would prove too controversial, Plaintiff withdrew

the appeal on September 11, 1976.

On August 27, 1976 Plaintiff applies for another use

permit for the same ten-story building for which the

use permit had been issued in 1970. On August 31,

1976 Plaintiff also applied for a building permit,

25.

26.

A-11

submitting the same plans submitted to the CITY in

1969. The City’s Zoning Administrator and Building

Inspector refused to act on either of these applica-

tions, notwithstanding the fact that Plaintiff then

possessed a right to obtain the use and building

permits described in the applications pursuant to

the PC Ordinance.

(d) After Plaintiff requested on October 1, 1976 a one-

year extension of the development schedule, Defen-

dants again sought to impose upon Plaintiff's request

regulations adopted after the P-<C Ordinance, in

particular the California Environmental Quality Act

of 1973. On October 27, 1976 the City Council

denied the appeal, thereby finally ruling that the

development schedule ending on October 31, 1976

would not be extended.

(e) The CITY never issued another building or use permit

for completion of Phase 2. The City, in failing to

issue such permits, relied upon grounds not authorized

by P-C Ordinance but imposed by regulations adopt-

ed subsequently thereto.

Plaintiff demonstrated, as required by Section 18.68 of

CITY’s Municipal Code, “good cause” for the one-year

extension. Such good cause consisted in the history of

the Project described above. As early as May 23, 1968,

when the City Attorney wrote to Plaintiff concerning the

availability of extensions to a development schedule,

Plaintiff formed the reasonable expectation that, because

the CITY had in fact customarily granted such extensions

to other applicants, Plaintiff would also be granted an

extension upon its request for good cause shown.

During the course of the history of the Project described

above, Plaintiff invested these funds in the Phase 2 of

the Project:

(a) $450,000 for the structural elements incorporated

in Phase | as part of the construction of Phase 2.

(bd)

(d)

(h)

The

A-l2

More than $65,000 for the preparation of architec-

tural plans for the remaining six stories of the building.

More than $450,000 for the fabrication of structural

steel and elevators for the remaining six stories,

expended in good faith reliance on the timely proces-

sing of Plaintiffs application for a building permit

finally issued after delays on February 16, 1970.

More than $20,000 for the preparation of revised

plans and specifications to comply with the 1973

Uniform Building Code adopted in Palo Alto, in

good-faith effort to compromise with the CITY, and

an additional $5,000 or more in legal fees in con-

nection with hearings before the Planning Commission

and City Council.

In excess of $10,000 for parking studies and revised

parking plans submitted to the Planning Commission.

$20,000 for the purchase of the six Power parcels

to solve the parking needs for the ten-story building.

$87,000 for acquisition of the Pierson parcel to

overcome the CITY’s objection to Plaintiffs zone-

change application in September of 1976.

In excess of $160,000 in total for parcels located at

228 Sheridan Avenue, 230 Sheridan Avenue, 320

Sheridan Avenue, and 2660 Park Boulevard, all

near the Project, as possible sites for parking.

above items constitute special damages suffered by

Plaintiff as a result of Defendants’ preventing completion

of Phase 2. Plaintiff has also suffered additional special

damages, the full nature and extent of which Plaintiff

does not know, but will allege and prove at the appropriate

time.

In addition, Plaintiff has suffered general damages in

amounts not now known, including, but not limited to,

the following:

(a)

Loss of time by, and inconvenience to, its partners

and the partners of its predecessor general partnership.

A-13

(b) Loss of profits from the existing four-story building

building which Plaintiff has a right to complete.

(d) Loss of increased appreciation in the four-story build-

ing and the remaining six stories together with the

parking garage as a complete, integrated project.

Plaintiff has also suffered additional general damages, the full

nature and extent of which Plaintiff does not know, but will

allege and prove at the appropriate time.

28. By their conduct Defendants have appropriated. and

taken without payment of just compensation, Plaintiff's

property as described in paragraphs 26 and 27 preceding

as well as the air-space above the existing four-story

building, in violation of the Fifth and Fourteenth Amend-

ments to the Constitution of the United States.

SECOND CLAIM FOR RELIEF

(Inverse Condemnation — California Constitution Art. 1, $19]

29. Plaintiff refers to, incorporates herein by reference in

their entirety, and realleges the allegations contained in

paragraphs | through 27, inclusive, of this Complaint.

30. By their conduct Defendants have confiscated, appropri-

ated, and taken without payment of just compensation

Plaintiff's property as described in paragraphs 26 and 27

above as well as the air-space above the existing four-story

building; and such taking and/or damaging of property

violates Article 1, §19 of the Constitution of the State

of California.

31. Plaintiff is entitled to recover its reasonable costs, dis-

bursements, and expenses, including attorney's and

expert fees, pursuant to Section 1036 of the California

Code of Civil Procedure.

in"

36.

A-14

THIRD CLAIM FOR RELIEF

[Denial of Equal Protection and Due Process of Law Under

the Fourteenth Amendment, U.S. Constitution]

Plaintiff refers to, incorporates herein by reference in their

entirety, and realleges the allegations of paragraphs 1

through 27, inclusive, of this Complaint.

In denying Plaintiff an extension of the development

schedule contained in the PC Ordinance, while routinely

granting extensions to other applicants upon a showing of

good cause under Section 18.68 of the City’s Municipal

Code. Defendants have unlawfully discriminated against

Plaintiff, thereby denying to Plaintiff equal protection

under the laws and depriving Plaintiff of its rights to due

process of law in violation of the Fourteenth Amendment

to the Constitution of the United States.

In seeking to apply to the Project regulations adopted

after the P-C Ordinance and after Plaintiff had acquired

a vested right to complete Phase 2 under the PC Ordi-

nance and regulations in effect at the time of its adoption,

Defendants have deprived Plaintiff of its right to substantive

due process of law in violation of the Fourteenth and Fifth

Amendments to the Constitution of the United States.

FOURTH CLAIM FOR RELIEF

(Denial of Equal Protection and Due Process of Law under

Art. 1, §7 of the California Constitution]

Plaintiff refers to, incorporates herein by reference in their

entirety, and realleges the allegations of paragraphs 1

through 27, inclusive, of this Complaint.

In denying Plaintiff an extension of the development

schedule contained in the P-C Ordinance, while routinely

granting extensions to other property owners upon a

showing of good cause unlawfully discriminated against

oOo

39.

40.

41.

. 4 can la; oF AF fee eigke A e

the laws and depriving Plaintiff of its mght to due process

of law in violation of Article Section 7 of the Constitu-

tion of the State of Californ

In seeking to apply requirements created by regulations

° th

under wee

acquired a vested right to compiete Phase

P-C Ordinance and regulations in effect at the time of

its adoption, Defendants have deprived Plaintiff of its

right to substantive due process of law in violation of the

Constitution of the State of California.

FIFTH CLAIM FOR RELIEF

ay - . :

Plaintiff refers to, incorporates herein by reference in their

through 28 and paragraphs 32 through 34. inclusi

this Complaint.

Through their conduct as described above, Defendants

have. under color of state law and municipal ordinances

and regulations, deprived Plaintiff of its rights, privileges,

and immunities secured by the Constitution of the United

States and, in particular, the Fifth and Fourteenth Amend-

ments thereto, in violation of Sections 1981 and following

of Title 42 of the United States Code.

For such violation Plaintiff is entitled to recover special

and general damages and described in paragraphs 26 and

27 of the First Claim of Relief.

As an alternative to such special and general damages,

Plaintiff is entitled to equitable relief to restore the depn-

vation of its rights privileges, and immunities by Defen-

dants. Such equitable relief consists in a mandatory

injunction from this Court directing Defendants to permit

Plaintiff to complete Phase 2 of the Project under the

P-C Ordinance and regulations in the effect at the time

of its adoption, without further discretionary approvals

by the CITY. In addition to such relief, Plaintiff is entitled

entirety, and realleges the allegations of paragraphs 1

45.

A-16

to interim damages actually suffered during the period

in which Defendants prevented Plaintiff from completing

Phase 2: and Plaintiff asks leave to allege the amount

of such damages and to prove the same when the amount

becomes known.

SIXTH CLAIM FOR RELIEF

(Declaratory Relief]

Plaintiff refers to, incorporates herein by reference in

their entirety, and realleges the allegations of paragraphs

] through 41, inclusive, of this Complaint.

An actual controversy has arisen now exists between the

Plaintiff, on the one hand, and Defendants, on the other

hand, concerning their respective rights and duties in

connection with the Project. Plaintiff contends that it

has the right either

(a) to complete Phase 2 under the P-C Ordinance and

the regulations in effect at the time of its adoption

' without further discretionary approvals by the CITY

and. in addition, to receive full compensation for

actual damages suffered during the period in which

the CITY prevented completion of Phase 2 or, in

the alternative,

(b) to receive full compensation for all special and

general damages heretofore suffered by Plaintiff

as a result of Defendant's conduct described above.

Plaintiffs is informed and believes, and alleges on the

basis of such information and belief, that Defendants

do not accept Plaintiff's contention but take a contrary

position.

Plaintiff desires an immediate declaration of its mghts

in the Project. Such declaration is necessary and appro-

priate in order to resolve the controversy between Plaintiff

and Defendants and to eliminate the injury previously

A-17

suffered. and still being suffered. by Plaintiff so long as

Defendants prevent Plaintiff from completing Phase 2

of the Project.

WHEREFORE Plaintiff prays for judgment against Defendants.

and each of them. as follows:

1. For the special damages described in paragraph 26 above

according to proof.

2. For the general damages described in paragraph 27 above

according to proof.

3. A declaration of the respective rights, duties and obliga-

tions of the parties.

4. Plaintiffs reasonable attorneys’ fees in this action.

5. Costs arising from the prosecution of this action.

6. Interest as provided by law and determined by this Court

on all items of special and general damages requested in para-

graphs | and 2 of this prayer.

For such other, further and additional relief as this Court

may deem appropriate.

In the alternative, Plaintiff prays for judgment against Defen-

dants, and each of them, as follows:

A. Equitable relief in the nature of a mandatory injunction

allowing Plaintiff to complete Phase 2 of the Project under the

P-C Ordinance and the regulations in effect at the time of its

adoption without further discretionary approvals by CITY.

B. Interim damages in the amount to be proven at trial for

losses, costs, and expenses incurred by Plaintiff during the

period in which Defendants prevented the completion of

Phase 2 of the Project.

C. Costs arising from the prosecution of this action.

D. Plaintiff's reasonable attorneys’ fees in this action.

E. Interest as provided by law and determined by this Court

on all of the losses, costs and expenses described in paragraph

B of this alternative prayer.

A-l*

F. For such other. further and additional relief as the Court

ppropriate.

may deem appr

mber «

Dated: December 3, 1

“>

BERLINER, COHEN & BIAGINI

By Jeffrey P. Widman

Attorney for Plaintiff

DEMAND FOR JURY TRIAL

Plaintiff hereby de a trial by jury under Rule 38(b)

of the Federal Rules of Civil Procedure.

Dated December 3, 1981

BERLINER, COHEN & BIAGINI

By JEFFERY P. WIDMAN

Attorneys for Plaintiff

A-19

Original

FILED

June 4 1982

William Whittaker

Clerk, U.S. District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

COURT HOUSE PLAZA COMPANY, )

a limited partnership, ) No. C-814537 SC

)

Plaintiff, )

“VS— )

) ORDER GRANT-

) ING MOTION TO

) DISMISS

)

THE CITY OF PALO ALTO, a

municipal corporation, et al.,

Defendants.

ORDER GRANTING MOTION TO DISMISS

Plaintiff, a building developer, seeks damages and equitable

relief for the actions of the Palo Alto City Council and its

Planning Commission in denying building and use permits for

the second phase in the construction of a ten-story office

building and in denying a one-year extension of the building’s

development schedule provided by a municipal zoning ordinance.

Because plaintiff's action is precluded by the res judicata

effect of a prior judgment in state court, plaintiff's action

must be dismissed.

After the city council’s denial of plaintiff‘s application for the

necessary permits and extension of time, plaintiff sought a

writ of mandamus from the California Superior Court. Plaintiff

was denied relief in superior court and on appeal. See Court

House Plaza Co. v. City of Palo Alto, 17 Cal. App. 871, 173

Cal. Rptr. 161 (1981). Plaintiff now seeks relief on six causes

“

of action: federal and state constitution “taking” claims (in-

verse condemnation): federal and state constitution equal

protection and due process claims: a federal civil rights claim:

and a declaratory judgment claim. The latter two claims rest

on the =isiaeienanigass violations alleged in the first four, and

contain no independent factual allegations.

The doctrine of res judicata prevents a plaintiff from relitigating

claims adjudicated in another prior proceeding. The Ninth

Circuit has extended res judicata to ban federal constitutional

claims, whether or not asserted in state court,

where the federal constitutional claim is based on

the same asserted wrong as was the subject of

[the] state action, and where the parties are the

same.

Scoggin v. Schrunk, 522 F. 2d 436,437 (9th Cir. 1975).

The federal claims here are based on the same alleged wrongful

acts which formed the basis of plaintiffs state court mandamus

action. Also, plaintiff has sued all the same defendants with

the exception of one individual named in the state court pro-

ceeding. Consistent with Scoggin, plaintiff's claims for declara-

tory relief, for relief under the civil rights act, and for the

alleged federal constitutional violations on which those claims

are barred by res judicata.

Plaintiff's citation of Gallagher v. Frye, 631 F. 2d 127 (9th

Cir. 1980) is inapposite. The court in Gallagher distinguished

Scoggin on the facts. In Scoggin, plaintiff sought to set aside

a foreclosure sale in federal court, after being unable to success-

fully challenge it in state court. In Gallagher, however, plain-

tiff's initial state court mandamus proceeding attempted to en-

force an administrative order of a civil service board against a

museum. Plaintiffs federal claim addressed defendant’s under-

lying act of employment termination. The essential issue in

the state court proceeding was “the jurisdictional authority of

of the state administrative agency.”’ /d. at 129-30. The issue in

the federal court proceeding was whether the alleged wrongful

conduct of the defendant museum violated plaintiff's civil rights.

A-2]

In the instant case. the alleged violations of the federal consti-

tution have been adjudicated in state court. The state court of

appeal upheld the trial court’s findings that the denial of the

time extension did not deprive plaintiff of equal protection or

due process of law. Court House Plaza v. City of Palo Alto,

117 Cal. App. 3d at 883, and that the city’s adverse zoning

action did not constitute a “taking” requiring compensation.

Id. at 888. Furthermore, even assuming that these constitution-

al claims had not been raised. having had the ability to raise

the federal claims in the state court proceedings bars this

court from adjudicating them now. Scoggin vy Schrunk, $22

F. 2d at 437.

Finally, when a district court, as in this case. dismisses all

federal claims prior to trial, “the proper exercise of discretion

requires dismissal”’ of the state claims. Wren v. Sletten Construc-

tion Co., 654 F. 2d 529, $36 (9th Cir. 1981). Such claims

should be dismissed for want of federal jurisdiction. Hodge

v. Mountain States Tel. & Tel. Co., 355 F. 2d 254. 261 (9th

Cir. 1977).

In accordance with the foregoing, it is hereby ordered that

defendants’ motion to dismiss plaintiffs complaint is granted.

Dated: June 4, 1982

SAMUEL CONTI

United States District Judge

A-22

Filed

June 4 500 PM ‘82

William Whittaker

Clerk

U.S. District Court

No. Dist, of CA.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

COURT HOUSE PLAZA COMPANY, a)

limited partnership, )

) No. C-81-4537 SC

Plaintiff, )

)

“Vs- ) JUDGEMENT

)

THE CITY OF PALO ALTO, a )

municipal corporation, et al., )

)

Defendants. )

It is hereby ordered, adjudged and decreed that defendants’

motion to dismiss plaintiff's complaint is granted in accordance

with the order entered by the court herein.

Dated: June 4, 1982.

SAMUEL CONTI

United States District Judge

Entered in Civil Docket 6-11 1982

APPENDIX B

(1) Memorandum of the United States Court of

Appeals for the Ninth Circuit filed on May 2,

1983

(2) Judgment of the United States Court of Appeals

for the Ninth Circuit filed on May 2, 1983

B-]

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COURT HOUSE PLAZA COMPANY, a

limited partnership,

Plaintiff-Appellant,

v, No. 8244393

DC #CV-41-

4537-SC

)

THE CITY OF PALO ALTO, a

municipal corporation, STANLEY )

R. NORTON, BYRON D. SHER, )

FRED S. EYERLY, ROY L. CLAY, ) MEMORANDUM

KIRKE W. COMSTOCK, SCOTT T. )

CAREY, JOHN J. BERWALD, )

ANNE R. WITHERSPOON, JOHN V. )

BEARS, Councilmen, PETER R. )

CARPENTER, MARY R. GORDON, )

WILLIAM E. GREEN, JAY W. )

MITCHELL, EMILY M. RENZEL )

ANNE STEINBERG, Planning Com- )

missioners, STAN J. NOWICKI, Chief )

Building Inspector, JAMES O. GLAN- )

VILLE, Zoning Administrator, NAP- )

THALI H. KNOX, Director of )

Planning and Community Environ- )

ment, ROBERT K. BOOTH, JR., )

City Attorney )

and LOUIS B. GREEN, Assistant City )

Attorney,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Samuel Conti, District Judge, Presiding

Argued and submitted April 14, 1983

Before: KILKENNY, SCHROEDER, and BOOCHEVER,

Circuit Judges.

The district court's dismissal, on res judicata grounds, of

this federal civil rights action must be affirmed under Scoggin

v. Schrunk, 522 F.2d 436 (9th Cir. 1975), cert. denied, 423

U.S. 1066 (1979),

Affirmed.

B-2

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COURT HOUSE PLAZA COMPANY, a

limited partnership,

Plaintiff Appellant, .

No, §2-4393

DC CV 814537

)

THE CITY OF PALO ALTO, a )

municipal corporation, STANLEY

R. NORTON, BYRON D. SHER, )

FRED S. EYERLY, ROY L. CLAY, )

KIRKE W. COMSTOCK, SCOTT T. )

CAREY, JOHN J. BERWALD, )

ANNE R. WITHERSPOON, JOHN V )

BEARS, Councilmen, PETER R. ) pa eee

CARPENTER, MARY R. GORDON, ) —

WILLIAM E. GREEN, JAY W.

MITCHELL, EMILY M. RENZEL

ANNE STEINBERG, Planning Com- )

missioners, STAN J. NOWICKI, Chief )

Building Inspector, JAMES O. GLAN- )

VILLE, Zoning Administrator, NAP-

THALI H. KNOX, Director of )

Planning and Community Environ-

ment, ROBERT K. BOOTH, JR... )

City Attorney )

and LOUIS B. GREEN, Assistant City )

Attorney,

Defendants-Appellees.

APPEAL from the United States District Court for the North-

ern District of California.

THIS CAUSE came on to be heard on the Transcript of the

Record from the United States District Court for the North-

ern District of California and was duly submitted.

ON CONSIDERATION WHEREOF-. It is now here ordered

and adjudged by this Court, that the judgment of the said

District Court in this Cause be, and hereby is affirmed.

Filed and entered: May 02, |983

APPENDIX C

Constitutional and Statutory Provisions Involved

C-]

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. United States Constitution, Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger: nor shall any person be subject for

the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be

taken for public use, without just compensation.

2. United States Constitution, Amendment XIV.

Sections | and §:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction there-

of, are citizens of the United States and of the

State wherein they reside. No State shall make

or enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Section 5. The Congress shall have power to

enforce, by appropriate legislation, the provisions

of this article.

3. Title 28, United States Code Section 1738:

The Acts of the legislature of any State, Territory,

or Possession of the United States, or copies

thereof, shall be authenticated by affixing the

seal of such State, Territory or Possession thereto.

The records and judicial proceedings of any court

of any such State, Territory or Possession, or

copies thereof, shall be proved or admitted in

other courts within the United States and its

Territories and Possessions by the attestation of

C-2

the clerk, and seal of the court annexed. if a seal

exists, together with a certificate of a judge of the

court that the said attestation is in proper form.

Such Acts. records and judicial proceedings or

copies thereof. so authenticated. shall have the

same full faith and credit in every court within

the United States and its territories and Possessions

as they have by law or usage in the courts of such

State, Territory or Possession from which they

are taken.

4. Title 42, United States Code Section 1981:

All persons within the jurisdiction of the United

States shall have the same right in every State

and Territory to make and enforce contracts, to

sue, be parties, give evidence, and to the full and

equal benefit of all laws and proceedings for the

security of persons and property as is enjoyed

by white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses, and ex-

actions of every kind, and to no other.

Title 42, United States Code Section 1982:

All citizens of the United States shall have the

same right, in every State and Territory, as is

enjoyed by white citizens thereof to inherit,

purchase, lease, sell, hold, and convey real and

personal property.

6. Title 42, United States Code, Section 1983:

Every person who, under color of any statute,

Ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

nights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress. For the purposes

of this section, any Act of Congress applicable

exclusively to the District of Columbia shall

be considered to be a statute of the District of

Columbia.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.