Petitioners Reply Brief — Court House Plaza Co. v. City of Palo Alto

NO. 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

REPLY TO RESPONDENTS’ BRIEF IN

OPPOSITION TO 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

October 1983

II.

III.

IV,

TABLE OF CONTENTS

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THE DOCTRINE OF RES JUDICATA AS APPLIED

BY THE CALIFORNIA COURTS WOULD NOT BAR

PETITIONER’S SUBSEQUENT ACTION FOR

pT oS RS cP RG MSI RES Ne ree ey epee

WHAT RESPONDENTS LABEL “CHP III” IS A

CALIFORNIA ACTION FOR DAMAGES IN WHICH

AN APPEAL REMAINS PENDING, NOT A FINAL OR

AUTHORITATIVE RULING BY THE CALIFORNIA

CPOE cee saewes te bbss ch whevaee hore aks eree wen

THE DECISION IN THE MANDAMUS DID NOT

ADJUDICATE PETITIONER’S FEDERAL CONSTI-

FETT TUTOR sv odccepol awe ehisedes women

ee Seer Aer TOR Ere eck tos:

TABLE OF AUTHORITIES CITED

Cases

Page

Agarwal vy. Johnson, 25 Cal. 3d 932, 954, 603 P. 2d 58, 72,

56S Ca. Hehe: 160, BAe Cie eee bic ces eieneeeseachacceas 1,2

Jackson v. Jackson, 253 Cal. App. 2d 1026, 12 Cal. Rptr.

BSE. SE CUED oicn sc canals lidae th cenewee el naeawa 3

Sawyer v. First City Financial Corporation, Ltd., 124 Cal.

App. 3d 390, 177 Cal. Rptr. 398 (1981) .............4.. 2

Constitutions

NE CN ay oarckcera ae in w kieran ance RO wee 4

ee EN eo 505s ha eaaiace whee ha ek aa 4

Statutes

Civil Rights Act of 1964, Title VEE. ...5c ccc ccc tc ccncndeces 2

MORES CAR eos ces cose on eee 1,2,3

Petitioner Court House Plaza Company (“Petitioner”)

submits this reply to the Brief in Opposition to Writ of Certi-

orari' filed by Respondents City of Palo Alto, et al.

I. THE DOCTRINE OF RES JUDICATA AS APPLIED BY

COURTS WOULD NOT BAR PETITIONER'S SUBSE-

QUENT ACTION FOR DAMAGES.

Respondents contend that California law on res judicata

binds the federal courts in this action under 42 U.S.C. §1983

and that such law would bar Petitioner's action. Resp. B. 13-18.

Without reiterating all the powerful reasons of policy against

applying California law in this case, Petitioner will accept

Respondents’ premise, arguendo, and dispute their conclusion.

California courts would nor bar Petitioner’s action for damages

based upon constitutional violations under res judicata or any

preclusion doctrine.

Respondents shore up their res judicata argument with

detailed footnotes on California law. Resp. B. 16-18, notes

12, 13. Indeed, the Court may suspect that the difficult ques-

tions of law have been artfully buried alive in the notes and so

left to pass quietly away.

Yet the California Supreme court speaks forcefully enough

about the “primary rights” test for res judicata that represents

California law. In Agarwal v. Johnson, 25 Cal.3d 932, 954, 603

P.2d 58, 72, 160 Cal.Rptr.141, 155 (1979), the court refused

to rely solely upon commonality of historical facts:

Under the ‘primary rights’ theory adhered to in California,

it is true that there is only a single cause of action for

the invasion of one primary night. [Citation omitted.]

But the significant factor is the harm suffered; that the

same facts are involved in both suits is not conclusive.

On its facts, Agarwal involved an employee who had prosecuted

and lost a Title VII action in federal court before bringing a

state-court action for defamation and infliction of emotional

distress. Both actions sought damages. And both actions arose

' All references to the Brief in Opposition will be given in the

form “Resp. B.” followed immediately by page number.

to

from the same historical event. Nevertheless, the California

Supreme Court held that the subsequent state action involved

a separate cause of action and therefore res judicata would

not apply.

The result should be no different under California law

where the statutory cause of action for damages Title VII in

Agarwal, § 1983 here — follows the state-court action.

Respondents attempt to distinguish Agarwal by suggesting

that there the first action (under Title VII) involved “property

rights,” while the second (defamation) involved “personal

rights.” Resp. B. 15-16, note 11. This distinction is forced.

A man’s loss of his job is as much a personal injury as a loss of

property; one could say much the same about a loss of a man’s

good name. Agarwal simply makes this case appear a less likely

candidate for dismissal on res judicata grounds. For here Pe-

titioner has never prosecuted to judgment any other action

for damages.

In a more recent application of the “primary right”’ test

in the California courts, Sawyer v. First City Financial Corpora-

tion, Ltd., 124 Cal.App.3d 390, 177 Cal.Rptr. 398 (1981),

the court held that a prior action for breach of contract (col-

lection of a promissory note) did not bar a subsequent action

under a variety of tort theories that also sought collection on

the note. Initially, Sawyer recited the relevant California

procedural rule:

Where the plaintiff has several causes of action, however,

even though they may arise from the same factual setting,

and even though they might have been joined in one suit

under permissive joinder provisions, the plaintiff is privi-

leged to bring separate actions based upon each separate

cause.

Id., at 399-400, 171 Cal.Rptr. at 402. Advocating a flexible

and discriminating application of res judicata, the Sawyer

court acknowledged, :

The theoretical discussion of what constitutes a ‘primary

right’ is complicated by historical precedent in several

well-litigated areas establishing the question of ‘primary -

right’ in a manner perhaps contrary to the result that

might be reached by a purely logical approach.

Id., at 400, 177 Cal.Rptr. 403.

There is nothing surprising about the flexibility with which

the California courts apply the “primary rights” test. In fact,

the doctrine of res judicata itself arises from equitable consid-

erations. See Jackson vy. Jackson, 253 Cal.App.2d 1026, 62

Cal.Rptr. 121, 129-30 (1967) and authorities cited therein.

Equitable considerations never disappear from the judicial

act of interpreting and applying res judicata.

Il. WHAT RESPONDENTS LABEL “CHP III” IS A CALI-

FORNIA ACTION FOR DAMAGES IN WHICH AN

APPEAL REMAINS PENDING, NOT A FINAL OR

AUTHORITATIVE RULING BY THE CALIFORNIA

COURTS.

Respondents attempt to give the impression that Petitioner

has litigated every issue at least three times. Dignifying their

argument with Roman numerals, Respondents describe ““CHP

III” as a state-court adjudication: on res judicata. Resp. B.

8-9, 19.

Upon examination, it turns out that “CHP III” is a California

trial court’s order of dismissal of state constitutional claims

only. Moreover, the dismissal is not a final judgment because

it remains on appeal. See Resp. B., Appendix G, p. A-92.

Finally, “CHP III”’ was originally filed on September 22, 1977,

a few months after the Mandamus, but never prosecuted to trial

because the California courts strongly favored initial resort

to equitable remedies. See Petition for Certiorari, Argument III.

Ill. THE DECISION IN THE MANDAMUS DID NOT AD-

JUDICATE PETITIONER'S FEDERAL CONSTITUTION-

AL RIGHTS.

Respondents repeatedly translate “vested right,’ as used

by the California courts in determining the proper standard

of judicial review in mandamus proceedings, into federal con-

stitutional rights embraced in section 1983. But this facile

interchange of terms should not mislead the Court. What was

actually litigated in the Mandamus (“CHP I”) were only the

limited questions of the scope of judicial review of the City’s

administrative decision and Petitioner’s right to receive a

writ to compel issuance of permits by the City.

The Memo of Decision by the trial judge in the Mandamus

discusses “‘vested rights” in that context only. See Appendix to

Jurisdictional Statement in U.S. Docket No. 81-404, cerr.

denied, 454 U.S. 1074 (1981), at pp. A-1 ff. The Memo simply

does not address constitutional rights. The subsequently entered

conclusions of law contain catch-all references to ‘“‘due process”

and “equal protection.” /d. at pp. A-19 ff. But again there is

no reference to any provision of the California or United States

Constitution. Accordingly, any such reference in the appellate

opinion in the Mandamus can only be regarded as dictum,

completely gratuitous and unnecessary to the court’s decision.

Cf Resp. B.3.

IV. CONCLUSION

Respondents have not overcome the powerful reasons of

federal policy and fundamental fairness that find expression

in the Petition for Certiorari. The Petition should be granted.

Dated: October 24, 1983 Respectfully submitted,

S & MAN

Nlalman

J EY P. WIDMAN

Attorneys for Petitioner

CERTIFICATE OF SERVICE

STATE OF CALIFORNIA )

) ss.

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 the 24th day of October 1983, he mailed three copies

of Petitioner’s Reply to Respondents’ Brief in Opposition to

Petition for Writ of Certorari 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., Suite 201

250 Hamilton Ave. P.O. Box 698

Palo Alto, CA 94301 Benicia, CA 94510

and that he also mailed forty copies of Petitioner’s Reply to

Respondents’ Brief in Opposition to Petition For Writ of

Certorari to the Clerk of This Court, first-class postage prepaid,

all in compliance with Supreme Court Rule 28.

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Vers co Wed HELE

JEFFREY P. WIDMAN

SUBSCRIBED AND SWORN to before me this 24th day of

October, 1983.

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