# Opposition Brief — Court House Plaza Co. v. City of Palo Alto

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 945

## Text

Supreme Court, U.S.
FILED

(4) | OCT R 1086

No. 85-287 | SEPH F. SPANIOL, JR.
K

In the Supreme Court-———

OF THE

United States

OCTOBER TERM, 1985

CourT HOusE PLAZA COMPANY, 2 limited partnership,
Petitioner,

VS.

THE City OF PALO ALTO,
a municipal corporation, et al.,
Respondents.

BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI
TO THE COURT OF APPEAL
FOR THE STATE OF CALIFORNIA

DIANE LEE
City Attorney
City of Palo Alto
250 Hamilton Avenue
Palo Alto, CA 94301
(415) 329-2171
FRED CAPLOE*
A Professional Corporation
WILLIAMS, CAPLOE & ROBBINS
1060 Grant Street, #201
P.O. Box 698
Benicia, CA 94510
(415) 228-3840
(707) 746-1011
Attorneys for Respondents

*Counsel of Record

BOWNE OF SAN FRANCISCO, INC. > 190 NINTH ST. « S.F.. CA 94103 + (415) 864-2300

QUESTION PRESENTED

Whether California law of res judicata precludes the present
action for inverse condemnation damages under the California
Constitution by reason of a final judgment on the merits against
petitioner and in favor of respondents in a prior state court action
which adjudicated the same facts, same cause of action and same
constitutional provision and held that there was no inverse
condemnation?

No question of federal law is presented.

ii

TABLE OF CONTENTS

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A.
B.

IR ns Sa cea be cae

Nature and Procedural History of the Present
Action and Two Prior Related Actions ..........

1. Petitioner's First State Court Action (“CHP
I’): This Court Has Previously Denied Review
of a State Court Final Judgment on the Merits,
Against Petitioner and In Favor of Respor.
dents, Following a 5-Week Trial Which Liti-
gated the Same State Constitutional Claim and
Predicate Facts Asserting Injury to Property as
Ate REE TH iv 5 5 kia hahah eaeKees

2. Petitioner's Federal Action (“CHP III’’): This
Court Again Denied Certiorari After the Ninth
Circuit Court of Appeals Affirmed Dismissal
on Grounds of Res Judicata of Petitioner’s
Damage Action Alleging Identical Constitu-
tional Taking Claims and Predicate Facts as
GE vvcsndacessaesee eee

3. Petitioner’s Second State Court Action (“CHP
IT’): The Trial Court Below Dismissed as Res
Judicata the Present State Constitutional Tak-
ing Claim and Action, Which is a Mirro:
Image of CHP III, and the Court of Appeal
Bees FE «nx oct nuncéasepdabeee ee

may GE AMIR osc in 5 boc sndnewaweree ees
i

If.

The United States Supreme Court Has No Jurisdic-
tion to Decide Questions of State Law When Review-
ing Decisions of State Courts ..........ccccceeese

There Is No Question of Federa] Law Presented in
BR CORR no ccc ves kc 0cs03 0) auekee ek eee

Page

1]

i}

TABLE OF CONTENTS

Page

A. The California Court of Appeal Held Petitioner’s

Claim to Be Barred by the California Law of Res
Ree ioc Ck ca ue so cee aeons so 13

B. The Single Substantive Claim In This Suit Was
ek cece ch anecaeueseareas 14

Conclusion 15

nn an ee ee eee EERE EEO SOE OEE ER EE 8 OS HO OS

iv

TABLE OF AUTHORITIES CITED

Cases
Page
Agins v. City of Tiburon, 447 U.S. 255 (1979) ........ a2 2
Boccardo v. Safeway Stores, Inc. (1982) 134 Cal. App. 3d
SNe eee erry Terr yer TTT ee 12

Court House Plaza Co. v. City of Palo Alto, 117 Cal. App.
3d 871 (1981), cert. den., 454 U.S. 1074 (1981) .... passim

Court House Plaza Co. v. City of Palo Alto, 709 F.2d 1515,

cort. dom, 464 US. 93S (USGS) «2... ccc ccc ccccess passim
Ellis v. Dixon, 349 U.S. 458 (1954) .............0 008 14
Murdock v. City of Memphis, 20 Wall. (87 U.S.) 590

SEE eS chino endesepeeaseesneewkenne ceuaegaasees 11
Penn Central Transp. Co. v. New York City, 438 U.S. 104

CUTE sa vis «kad oak ARRAKKAHAND AN ORO NR KGS OOK eS eX 3
Slater v. Blackwood (1975) 15 Cal. 3d 791 ............ 12
Wulfjen v. Dolton (1944) 24 Cal. 2d 891.............. 12

Statutes and Rules

Federal Rules of Evidence, Rule 201.................. 2
Supreme Court Rules:
yp fh Are rerrrr ery eter ere Tree 2
DS EE ch acbncsccacdanacsddshanseseceneenss 2

Be SE OEE wd 5404 ge ecankhcseeewacuuees 3, 14

——

No. 85-287

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1985

Court House PLAZA COMPANY, a limited partnership,
Petitioner,

VS.

THE CITy OF PALO ALTO,
a municipal corporation, et al.,
Respondents.

BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI
TO THE COURT OF APPEAL
FOR THE STATE OF CALIFORNIA

STATEMENT OF THE CASE

A. INTRODUCTION

Petitioner is seeking review in this Court for the third time in
this lengthy, eight year, vexatious litigation against the same
respondents. On the two previous occasions, this Court denied
review. A brief recapitulation of the history of this litigation will
demonstrate the frivolity of this third petition, and the absence of
any issue that would permit this Court to take jurisdiction of this
case.

Briefly, the facts pertinent to this proceeding are as follows.

' Petitioner’s Statement of the Case (Petition (“Pet.”) pp. 2-5) fails
to give a complete picture of the case because, on its face, it is limited to
the facts alleged in the complaint in the present action (“CHP iI’’). The

2

In 1964, respondent City of Palo Alto, at petitioner’s request,
zoned petitioner’s property for construction of an office building
and garage in two phases. The zoning ordinance required that
construction of Phase | (4-story office building and garage) be
started by 1966, and that Phase 2 (6 more floors on the same
office building) be started by 1976. Nothing in the ordinance
stated that completion of Phase | vested any right to complete
Phase 2. App. A, p. A-15, CL 3. The CHP / trial court found that
the Phase | 4-story building was

“a self-contained, functional structure even without the addi-
tional six floors, and has been occupied and used up to and
including the present.” (Emphasis added)

App. A, FF 13.

The trial court also found that petitioner “did not acquire
vested rights to construct Phase 2 by virtue of overbuilding Phase
I tc accommodate it or in any other respect”. App. A. FF 61, CL
12.2 As to Phase 2, the court found that petitioner fully obligated
itself to pay for Phase 2 costs before obtaining financing or a

incompleteness is inconsistent with Rule 21.1(g) requiring the Petition
to contain “facts material to the consideration of the question
presented”.

At this point, in compliance with Rule 34.1(g) requirements that
respondents’ statement of the case contain “all that is material to the
consideration of the questions presented with appropriate references to
... the record ...”, and pursuant to Rule 201 of the Federal Rules of
Evidence, respondents respectfully request this Court to take judicial
notice of the Appendices to this brief which contain copies of records of
proceedings before the various courts that have considered and litigated
this action and related state court actions referred to throughout this
brief.

Appendix A to this brief sets forth detailed Findings of Fact (“FF”)
and Conclusions of Law (“CL”) by the trial court in the first state court
action between the same parties on the same cause of action. That
action is called “CHP J” in this brief. The Findings and conclusions
followed a 5-week trial in which res, ondents prevailed over petitioner.

2 The Court of Appeal below also confirmed that the CHP / trial court
“repeatedly rejected the notion that the developer acquired any vested
rights” (Pet., App. B, p. B6), and that “no taking was found in the first

3

building permit therefor; and that this mistake, not any act of
respondents, resulted in petitioner’s financial problems. App. A,
FF 20-23. There was no evidence of an anti-high rise philosophy
on the part of respondents nor any intent to delay or obstruct
petitioner. App. A., FF 23, 24, 32-37, 59-63, CL 15. As to
respondents’ refusal to extend the 1976 deadline for start of Phase
2, the trial court concluded that petitioner

“... had not at any time acquired vested rights to a building
permit to construct Phase 2; therefore, the (City’s) denial of
the one-year extension did not constitute a deprivation of
vested rights.”

App. A, CL 13.

Thus, CHP I clearly settled that petitioner had no reasonable,
investment-backed expectation in Phase 2; that the City had not
interfered with petitioner’s property rights; and that petitioner has
an economically viabie use of the property. Agins v. City of
Tiburon, 447 U.S. 255 (1979); Penn Central Transp. Co. v. New
York City, 438 U.S. 104, 138 (1978).

In CHP I, petitioner first sought mandamus against respondent
City of Palo Alto in California Superior Court, contending, inter
alia, that its property had been taken in inverse condemnation
under both the California and federal constitutions. The Superior
Court denied relief; the California Court of Appeal affirmed; and
the California Supreme Court denied review. Petitioner then
soughi federal review of the judgment of the Court of Appeal, but
this Court denied certiorari. Court House Plaza Co. v. City of
Palo Alto, 117 Cal. App. 3d 871 (1981), treating appeal as pet.
for certiorari, cert. den., 454 U.S. 1074 (1981).

Petitioner then brought a damage action in federal District
Court, again contending that its property had been taken in
inverse condemnation. The District Court found that the inverse
condemnation claim had already been adjudicated adversely to
petitioner in CHP J, and held the claim barred by res judicata
under 28 U.S.C. section 1738 (and hence by res judicata under

action, thus eliminating the premise for a damage award” (/d., p. B7, fn.
2, and p. B8 (Conclusion) ).

4

California law). The Court of Appeal for the Ninth Circuit
affirmed in a one-sentence unpublished memorandum opinion.
Petitioner sought review of the Ninth Circuit’s decision, but this
Court denied certiorari. Court House Plaza Co. v. City of Palo-
Alto, 464 U.S. 935 (1983). Petitioner refers to this suit as CHP
III, and respondents adopt this nomenclature.

Three months after filing its damage action in federal District
Court in CHP Ili petitioner filed an amended complaint for
damages in Califo: .ia Superior Court, contending once again that
its property had been taken in inverse condemnation. Petitioner
refers to this suit as CHP IJ, and respondents adopt this nomen-
clature. The compiaint in CHP I/ was identical to the cw.~ »laint
in CHP III. As the federal District Court in CHP III had uone,
the California Superior Court in CHP // found that the claim was
barred by res judicata under California law because of the
decision in CHP J. The California Court of Appeal below af-
firmed. Petitioner seeks review in this Court of the Court of
Appeal Decision.

stitioner, now petitioning this Court for the third time, con-
tends that this case presents a substantive federal issue concerning
the availability of damages in an inverse condemnation suit. As is
apparent from the preceding summary and as will be explained in
greater detail below, that issue is not present in this case. The only
issue is one of California law—whether the California Court of
Appeal correctly applied the California law of res judicata. This
Court does not have jurisdiction to decide questions of state law
when reviewing decisions of a state court.

B. Nature and Procedural History of the Present Action and
Two Prior Related Actions

To fully appreciate that the present petition is limited to the res
judicata issue, it is necessary to describe the present action and
two prior related actions between the same parties on the same
cause of action (i.e., CHP J, Il and III).

5

1. Petitioner's First State Court Action (“CHP I”): This
Court Has Previously Denied Review of a State Court
Final Judgment on the Merits, Against Petitioner and
In Favor of Respondents, Following a 5-Week Trial
Which Litigated the Same State Constitutional Claim
and Predicate Facts Asserting Injury to Property as Are
Alleged Herein.

Petitioner originally brought an action in California state court
in 1977 challenging respondents’ legislative zoning decision deny-
ing permission to build six additional stories on a fully function-
ing, occupied four-story building. Petitioner alleged a breach of
both state and federal constitutional rights, including an unconsti-
tutional taking of property, and sought mandamus based on those
claims.’ Following full discovery and a 5-week trial, the trial court
found that none of petitioner’s constitutional rights had been
violated.* The California Court of Appeal affirmed, concluding
that there had been no taking of petitioner’s property. Court
House Plaza Co. v. City of Palo Alto (CHP I), 117 Cal. App. 3d
871, 887-888 (1981). The California Supreme Court denied
petitioner’s petition for hearing. CHP J, 117 Cal. App. 3d at 888.°

> The state constitutional taking or inverse condemnation claim was
raised in paragraph 92 of the 61-page petition for writ of mandate in
CHP I. (That petition is found at pages 113-174 of the Clerk’s
Transcript before the Court of Appeal below; and paragraph 92 is found
at CT 170.) Paragraph 92 reads in pertinent part: “... Respondents
have denied Petitioner the lawful use of its real property, have taken the
same without compensation . . . and in contravention of . . . the Constitu-
tion of the State of California and the United States of America... ”.
The same taking claim is raised in the present action. Pet., App. A,
p. Al3, “Second Cause of Action”, paragraph 27.

* Appendix A to this brief contains separately numbered “Findings of
Fact and Conclusions of Law” of the state trial court in CHP /. They
were also presented to and considered by both the trial court and the
Court of Appeai below through judicial notice.

* CHP I resulted in a final judgment on the merits. Petitioner has
never contended otherwise.

6

Petitioner then filed a Jurisdictional Statement in this Court
seeking review of that judgment. Referring directly to its factual
and constitutional taking claim that had been litigated adversely
to it in all state courts in CHP I, petitioner contended:

“The present case clearly presents the issue of whether
California under the recent ruling in Agins v. City of
Tiburon, 24 Cal. 3d 266 (1979) that a property owner’s
exclusive remedy is invalidation of the zoning regulation
where the zoning regulation deprives the property owner of
substantially all beneficial use of the real property right and
is not entitled to an award of damages in an inverse condem-
nation proceeding... can deny [petitioner] any monetary
compensation... ”.

CHP I, No. 81-404, Jurisdictional Statement, pp. 11 and 13.° This
passage frames the precise issue which Petitioner again seeks to
revive in the present petition. Pet., Issues I and II, pp. 6-15.

However, this Court dismissed the appeal and, treating it as a
petition for certiorari, denied the petition. CHP I, 454 U.S. 1074
(1981).

2. Petitiv-zer’s Federal Action (“CHP III’): This Court
Again Denied Certiorari After The Ninth Circuit Court
of Appeals Affirmed Dismissal on Grounds of Res
Judicata of Petitioner’s Damage Action Alleging Iden-
tical Constitutional Taking Claims and Predicate
Facts as CHP I.

Three days after this Court denied certiorai: in CHP I, Peti-
tioner filed on December 3, 1981, an action in United States
District Court seeking damages for violation of the identical

® Petitioner also contended therein:

“The present case presents a factual situation which gives the
Supreme Court jurisdiction to decide the monetary issue where the
Property Owner has been foreclosed from any use of the rights to
six additional stories of a ten-story office building by chailenged
zoning regulations and also has been foreclosed from monetary
compensation.” (Emphasis added) CHP I, No. 81-404, Jurisdic-
tional Statement pp. 25-26.

DEI ite. MC Ge

7

federal and state consitutional taking provisions, based on the
same underlying facts, as it alleged in CHP I (“CHP III’’).’

On June 4, 1982, the District Court dismissed CHP III holding:

“Because plaintiff's action is precluded by the res judicata
effect of a prior judgment in state court [i.e., CHP /],
plaintiff's action must be dismissed . . .

“The federal claims here are based on the same alleged
wrongful acts which formed the basis of plaintiff's state court
mandamus action...

“(T]he alleged violations of the federal constitution have
been adjudicated in state court. The state court of appeal
upheld the trial court’s findings that the denial of the time
extension [to build the six story addition] 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 the city’s adverse zoning action did not constitute a
‘taking’ requiring compensation. \d. at 888.” (emphasis
added)

App. B.

A three-judge panel of the Court of Appeals for the Ninth
Circuit unanimously affirmed the District Court’s dismissal, on
res judicata grounds, in a one sentence unpublished memorandum
order on May 2, 1983. App. C. The Court of Appeals judgment is
reported at 709 F. 2d i515.°

Acting for the second time, this Court again denied a petition
for writ of certiorari. 464 U.S. 935 (1983).

’ As a practical and sequential matter, this federal action followed
next on the heels of CHP J. However, petitioner has referred to the
federal action as CHP III in its petition (p. 5). Therefore, to avoid
confusion, that designation will be used herein.

® The Court of Appeal below in the present action took judicial notice
of the dismissal of CHP III because of the res judicata effect of CHP I.
Pet., App. B, p. B3.

8

3. Petitioner’s Second State Court Action (“CHP II’):
The Trial Court Below Dismissed As Res Judicata The
Present State Constitutional Taking Claim and Action,
Which Is A Mirror Image of CHP III, and the Court of
Appeal Below Affirmed.

On February 26, 1982, three months after this Court denied
certiorari in CHP I, petitioner filed the present CHP IJ complaint
seeking damages against the same defendants named in CHP /
and J/I. CHP II is a verbatim copy of the CHP III complaint.
Petitioner later reserved its federal claims, so that the court below
had only a state claim before it.’ Pet., App. A, p. A20. (CHP had
not reserved any claims in CHP I.) However, as conceded by
petitioner in its reservation, CHP III

“states claims for relief that are in substance identical to the
causes of action in the First Amended Complaint before this
Court.”(CT 280)

(The takings clauses of the United States and California Consti-
tutions are virtually identical.)

The Ceurt of Appeal below, commenting on the allegations of
the CHP II amended complaint, emphasized that “[n]umerous
allegations in the... complaint contradict the findings made in
| CHP I)’, that the trial court below had judicially noticed the
CHP I mandamus petition, detailed findings and appellate opin-
ion; and that, therefore, “[o]n demurrer, the court is not required
to assume the truth of allegations which contradict what is
judicially noticed”. Pet., App. B, pp. B1-B2. The Court of Appeal
also noted petitioner’s concession that the facts in CHP J and
CHP II were the same. /d., p. B1.

* Respondents filed a demurrer and motion to strike the first amended
complaint in CHP II. Pet., App. A, pp. Al8-19. Attached to their
Memorandum of Points and Authorities in Support thereof were Exhib-
its A-K. See App. D to this brief, consisting only of the title page and
page |b listing those exhibits. Exhibits C-K are essentially the same
exhibits that respondents presented to the federal District Court for
judicial notice in connection with its motion to dismiss in CHP III.

'° Those CHP I findings are set forth in Appendix A to this brief.

wheal Da MT Div el cdeee ts A OME Bi Ans The Sno ane

ae ae ee

The trial court below took judicial notice of the holding of the
Court of Appeal in CHP / “in which the court [of appeal] held
that piaintiff was not entitled to compensable damages under a
theory of inverse condemnation. Such damages would include any
that flow from interference with use of air space.” Pet. App. A, p.
A21. It concluded that petitioner’s claim was barred by CHP I:

“{T ]he demurrer to the second cause of action [state inverse
condemnation ] is sustained on the grounds that that cause of
action is barred by res judicata. Since there is no basis for an
amendment, the demurrer is sustained without leave to
amend.”

Ibid."'

The Court of Appeal below addressed and decided only the res
judicata issue. As the Court noted at the outset: “The critical
question in this appeal is: does that judgment [CHP /] bar the
developer from seeking damages in imverse condemnation based
on the same actions by the City? The irial court so decided...
We agree with the [trial] court’s decision.” Pet., App. B, p. B1.
Thus, the Petition is erroneous in stating that the Court of Appeal
“concluded under Agins v. City of Tiburon, 24 Cal. 3d 266, 272-
277 (1979), affd. on other grounds, 447 U.S. 255 (1980)” that
the appropriate remedy for a taking by excessive zoning regula-
tions is not money damages but equitable relief. Pet., p. 5.

As is evident from the face of the opinion, the Court of
Appeal’s discussion of inverse condemnation was merely a histori-
cal preface to its holding on the single res judicata issue before it.
Pet., App. B, pp. B3-B4. More specifically, the Court of Appeal,
in that portion of the opinion, was simply explaining, for res
judicata purposes, the nature of the cause of action or, in
California res judicata terms, the primary right at issue in CHP |

'' The petition misstates the trial court’s decision in that it indicates
that the court held that petitioner “was not entitled to ... damages
under . . . inverse condemnation . .. and that CHP II was barred by res
judicata.” (Emphasis added.) Pet., p. 5. In fact, the trial court held that
petitioner was not entitled to inverse condemnation damages because
CHP II was barred by res judicata. Pet., App. A, p. A21.

10

and //, preliminary to its single holding that it was identical in
both actions and that, therefore, preclusion applied. The Court of
Appeal noted that the property mght involved in CHP J was
“clearly a right to develop property by building on it and presuma-
bly to profit...”. Pet, App. B, p. B4. It then went on to explain
briefly the state of the law when CHP / and II were filed. Jbid.
Thereafter, the body of the opinion, entitled “Res Judicata”’,
points out that “[t]he developer’s argument [that CHP II does
not involve the same primary right as CHP /] can prevail only if
the property right to be compensated by inverse condemnation
damages was not involved in [CHP I]”. Id., p. BS. The Court of
Appeal carefully examined what was actually litigated in CHP /;
and, comparing it to CHP II, noted petitioner’s reluctance to do
so. The court then emphasized that petitioner had alleged a
taking in CHP I, that the CHP / “apeilate opinion shows that a
central issue was whether the developer had acquired a vested
right” and that the CHP / trial court “repeatedly rejected the
notion that the developer had acquired any vested rights... ”’. Jd.,
p. B6. The Court of Appeal concluded: “Thus, the same primary
right was at issue in [CHP /j which the developer seeks to
reassert here...” . Jd,. pp. B6-B7.

Thus, the entire petition evaporates in the face of the foregoing
review of what was actually decided by the Court of Appeal
below.

In sum, petitioner litigated and lost all of its federal and state
constitutional claims (and their factual predicates) in CHP I. It
has tried to relitigate those same federal constitutional claims and
facts in federal court, and all federal courts found that they had
already been adjudicated and are therefore barred by res judicata.
CHP III. It has tried to relitigate the same state constitutional
claims and facts in state ccurt, and the state trial court and Court
of Appeal below have found that they had already been adjudi-
cated and are therefore barred by res judicata. CHP II.

Now, for the third time, petitioner importunes this Court to
review its taking and vested rights claims on the previously
rejected ground that this Court should address issues on inverse
condemnation law not presented to the California courts earlier.
Petition, Issues I and II. But every court that has so far consid-

ee a ae

us sn ate ese ince es en ie sed s livosices tanh

See vee ase stl +

1]

ered the matter has concluded that the record clearly demon- >
Strates that petitioner’s taking claim and pertinent facts were
actually presented to the state court in CHP IJ and adjudicated
adversely to petitioner by that court. Thus, the only question this
petition fairly presents is whether the Court of Appeal correctly
applied California law of res judicata.

SUMMARY OF ARGUMENT

1. It is fundamental law that this Court does not have
jurisdiction to decide questions of state law when reviewing
decisions of state courts. Murdock v. City of Memphis, 20 Wall.
(87 U.S.) 590 (1875). 28 U.S.C. section 1257 limits this Court’s
authority to review only those state court decisions which raise
issues of federal law.

II. There is no question of federal law presented in this case.
In holding petitioner’s claim to be barred by res judicatc, the
Court of Appeal below relied entirely on California law. Petitioner
does not dispute this fact. Moreover, petitioner does not and could
not dispute that the only substantive claim it pursued in this case
was an issue of California law.

ARGUMENT

I. The United States Supreme Court Has No Jurisdiction to
Decide Questions of State Law When Reviewing Decisions
of State Courts.

It is fundamental law that this Court does not have jurisdiction
to decide questions of state law when reviewing decisions of state
courts. Murdock v. City of Memphis, 20 Wall. (87 U.S.) 590
(1875). The statute authorizing Supreme Court appellate review
of state court decisions only authorizes this Court to decide issues
of federal law. 28 U.S.C. section 1257.

II. There Is No Question of Federal Law Presented in This
Case.

There is an immediately evident and fatal flaw in the petition
which belies its asserted presence of a federal question that might
justify review of this matter by this Court (aside from this Court’s

12

previous denial of review in CHP III which involved essentially
the same issue as this petition). At no point does petitioner deny
(nor, indeed, could it fairly do so) that the cause of action (or, in
California res judicata terms, the primary right) involved in CHP
II is identical to that involved in CHP J. The Court of Appeal
below keenly and appropriately pinpointec this flaw: “While the
developer is aware that our concern is whether different primary
rights are involved in this action compared to [CHP I], it
apparently prefers not to characterize the rights or the differ-
ence.” Pet., App. B, p. BS.

A related fatal flaw is petitioner’s failure to dispute (again it
could not fairly do so) that the Court of Appeal below correctly
stated and followed California law as to res judicata.

These flaws are fatal because they impliedly concede that
petitioner’s asserted reason for granting the writ (i.e., to address
the issue of the remedy for a taking) is a mirage.

Moreover, the record in this case is not appropriate to raise the
issue of the correct remedy for a taking precisely because CHP /
comclusively determined that no taking had occurred as noted by
the Court of Appeal below. Pet. App. B, p. B7, fn. 2, and p. B8
(Conclusion). As this Court has held: “Because no taking has
occurred, we need not consider whether a State may limit the
remedies available to a person whose land has been taken without
just compensation.” Agins v. City of Tiburon, 447 U.S. 255, 263

12 Under settled California law, cited and relied on by the Court of
Appea! (Pet., App. B, pp. B5-B8)
“(a] valid final judgment on the merits in favor of a defendant
serves as a complete bar to further litigation on the same cause of
action.”
Slater v. Blackwood (1975) i5 Cal. 3d 791, 795. For res judicata
purposes, California courts hold that
“the violation of a single primary right constitutes a single cause of
action... ”.
Boccardo v. Safeway Stores, Inc., (1982) 134 Cal. App. 3d 1037, 1043;
Wulfjen v. Dolton (1944) 24 Cal. 2d 891, 895. According to Slater, a
“ ‘cause of action’ is based upon the harm suffered, as opposed to
the particular theory asserted ...”.
Slater, supra, 15 Cal. 3d 794, 795.

13

(1979). Thus, it is irrevelant whether, as petitioner contends, a
damage remedy did not exist for a taking when CHP J was
pending. Pet., pp. 13-14.

Finally, it is spurious and trifling for petitioner to assert the
damage remedy as an issue herein in the face of this Court’s prior
denial of review of the identical issue in the CHP / petition for
certiorari in this Court. 454 U.S. 1074 (1981). (See Statement of
the Case, supra, Part B.1, p. 6)

A. The California Court of Appeai Held Petitioner’s Claim to
Be Barred by the California Law of Res Judicata.

The California Court of Appeal, whose decision petitioner is
challenging, held that petitioner’s substantive claim was barred by
res judicata. In so holding, the Court of Appeal relied entirely on
California law. Pet., App. B, pp. B1-B8. Petitioner does not deny
this fact.

No argument has been made that the application of settled
principles of California res judicata law deprived petitioner of due
process of law under the United States Constitution. In a vague
and confusing statement, the petition appears to suggest that this
Court should accept review to determine whether there is, as an
abstract proposition, a due process right to damages for an inverse
condemnation deprivation of vested rights to avoid an assertedly
unjust application of res judicata in this case. This statement
hopelessly and erroneously intermixes the due process and taking
clause concepts. Whatever the statement is intended to mean,
there are three reasons for rejecting its suggestion. First, peti-
tioner raised a federal due process issue in CHP J (See paragraph
92 of the CHP I petition for writ of mandate at p. 170 of the
Clerk’s Transcript before the Court of Appeal below. Paragraph
92 also raised the taking issue under both federal and state
constitutions. See fn. 3, supra.) As noted by the federal District
Court in CHP III (App. B, p. A-19), the trial court and Court of
Appeal in CHP | rejected the argument that the same acts of
respondents which petitioner contends were a deprivation of
vested rights for taking purposes resulted in a violation of due
process. Court House Plaza v. City of Palo Alto, supra, 117 Cal.
App. 3d 871, 883. Second, petitioner waived any possible right to

+

raise the suggestion in this case by failing to do so in its petition
for writ of certiorari in CHP III. Third, the question of whether
the application of California law of res judicata violated any of
petitioner’s federal rights “was not raised below, and hence is not
open here”. Ellis v. Dixon, 349 U.S. 458, 460 (1954).

B. The Single Substantive Claim in This Suit Was Based on
State Law.

As described in the Statement of the Case, petitioner sought to
litigate its federal claim for damages arising out of the asserted
inverse condemnation in federal District Court in CHP III. In the
present suit, brought in California Superior Court, petitioner
“reserved” its federal claims so that they could be litigated in the
federal District Court.'? The only substantive claim ever
presented to the California court in this suit was a claim for
inverse condemnation under California law. Thus, even if the res
judicata question could be put aside and this Court could legiti-
mately be asked to address the issue of substantive law sought to
be litigated in this case, that issue is only an issue of California
law. |

'3 As described in the Statement of the Case, the District Court in
CHP III found that these federal claims were barred by the California
law of res judicata, as applied by the federal courts under 28 U.S.C.
section 1738. If any such indication were needed, this federal decision
indicates that the California courts in this case have fairly applied their
own law of res judicata.

<<

15
CONCLUSION

For over 8 years now, respondents have been put through
extraordinary and unreasonable hoops by vexatious litigation and
attempted relitigation of petitioner’s legally insufficient claims.
This Court has twice refused review. All state courts and all
federal courts considering this case have uniformly rejected peti-
tioner’s claims. Petitioner now seeks to have this Court review the
California Court of Appeal’s decision resting entirely on Califor-
nia law. For the reasons and on the authorities set forth above,
respondents respectfully request that this Court deny the petition.

DATED: Sept. 17, 1985
DIANE M: LEE
City Attorney

Fred Caploe*
A Professional Corporation

By FRED CAPLOE
*Counsel of Record
Attorneys for Respondents

(Appendices follow)

JCHN KAZU8OWSKI
COUNTY CLERK

COURT HOUSE PLAZA COMPANY,

a limited partnership,

Petitioner,
Vs. No. P 32449
THE CITY OF PALO ALTO, a FINDINGS OF FACT AND
municipal corporation, et al., CONCLUSIONS OF LAW
Respondents.

A petition for writ of mandamus has been filed herein by
Petitioner. Respondents filed a timely return and the matter
came on regularly before this Court for trial on Feburary 21,
1978, and succeeding dates. The record of the administrative
proceedings was received into evidence, examined and con-
sidered by the Court and additional evidence, both oral and
documentary, was admitted, examined and considered by the
Court. Trial briefs and post-trial briefs have been filed by both
parties and examined and considered by the Court. Both parties
have orally argued the matter to the Court on March 30, 1978.

Following its examination and consideration of all of the
foregoing matters, the Court rendered and filed its Memo of
Decision on May 11, 1978.

Petitioner thereafter filed its request for findings of fact and
conclusions of law, and the Court filed its order directing

Respondents to prepare proposed findings of fact and conclu-

A-2

sions of law and a proposed judgment.

The Court hereby makes the following findings of fact and
conclusions of law.

FINDINGS OF FACT
1. Petitioner, Courthouse Plaza Company, a limited partner-
ship, was and is the owner of the four-story office building lo-
cated at 260 Sheridan Avenue, Palo Alto, California. The four-
story building is in a block bounded by Sheridan Avenue on the
east, Birch Street on the south, Grant Avenue on the west and
Park Boulevard on the north.

2. Respondent, City of Palo Alto (“City”) is a municipal
corporation and a charter city.

3. The City Council of City (“Council”) passed Ordinance
No. 2224 on December 28, 1964, rezoning the subject property
to a “Planned Community” (“‘PC’’) zoning district.

4. Ordinance No. 2224 became effective on January 28,
1965.

5. Ordinance No. 2224 contains a Development Plan and
Development Schedule providing for two phases of construc-
tion. Phase 1 provided for start of construction of a four-story
office building and a parking garage within two years of Council
approval. Phase 2 provided for a start ot construction of six
additional floors of the four-story office building and additional
levels on the parking garage by October 31, 1976.

6. In August, 1965, City was informed that a part of the
subject property planned by Petitioner for the permanent park-
ing structure approved by Ordinance No. 2224 might be re-
quired by the (.«inty of Santa Clara (‘“‘County”’) for a County
road project (Page Mill-Birch Street realignment). From 1961
on, the County wanted to undertake this project to improve

traffic safety on the County Expressway System, of which the

ee

A-3

Birch Street off-ramp (adjacent to the parking structure site)
was a part. The County initiated, designed and constructed
improvements for that project, including the Birch Street off-
ramp, and condemned the land for the same. The County re-
tained control of the project and there is no evidence that the
City had any control over the project.County did not actually
determine its condemnation *~e from the parking structure site
until 1969. Accordingly, in an attempt to alleviate the problem
caused by this uncertainty so as to allow Petitioner to proceed
on a temporary basis, the Council passed Resolution No. 3860
on December 13, 1965, amending the Development Plan and
Development Schedule of the PC zone established by Ordinance
No. 2224. Resolution No. 3860 approved construction of Phase
1 with 107 temporary offstreet parking spaces in lieu of the re-
quired permanent parking structure and gave Petitioner an
extension of time until December 13, 1968, to start construc-
tion of the parking structure.

7, City Zoning Ordinance §18.68.070(a) allows PC zoning
districts to be amended by resolution rather than ordinance.

8. In October, 1965, the County asked the City to make no
allowance for improvement of approximately 11,500 square
feet of the subject property at the intersection of Grant Avenue
and Birch Street (the “Grant-Birch” parcel). The County made
this request, since it intended to condemn that part of the sub-
ject property for expansion of the North Santa Clara County
Courthouse and did not wish’ to pay for improvements thereto.
Petitioner withdrew this parcel from its Original project pro-
posal prior to passage of Ordinance No. 2224, at the urging of a
private merchants’ group, thus facilitating the Courthouse ex-
pansion. There is no evidence that the City was responsible for
the acqusition of the Grant-Birch parcel.

9. In 1966, the County commenced condemnation proceed-
ings for acquisition of the Grant-Birch parcel. In the Spring of

A-4

1967, following a jury trial, the County acquired this parcel and
Petitioner received just compensation for the taking.

10. On January 17, 1966, City issued a use permit for the
Phase 1 four-story building, promptly following passage of
Resolu..sn No. 3860.

11. On June 14, 1966, City issued a building permit for
construction of a four-story office building as approved by
Ordinance No. 2224 and Resoultion No. 3860 (Exhibit 10).

12. Prior to June 14, 1966, Petitioner’s architect, Albert A.
Hoover, raised the question with Petitioner about the additional
expense to be incurred in designing and building the four-story
office building to accommodate a six-story addition when the
possibility existed that only the first four stories would ever be
constructed and, therefore, such additional expenses could not
be recovered. Petitioner was willing to assume the risk of incur-
ring such expense.

13. The four-story building authorized by the June 14,
1966, building permit (Exhibit 10) was completed in August,
i977. It was substantially leased by the Spring of 1968. It isa
self-contained, functional structure even without the additional
six floors, and has been occupied and used up to and including
the present.

14. On December 11, 1967, Council plasseaq Resolution No.
4055, amending the Development Plan and Development
Schedule of the PC zone established by Ordinance No. 2224
and giving Petitioner an extension of time until December 13,
1969, to start construction of the parking structure.

15. Before February 15, 1968, and within six months after
completion of the four-story building, Petitioner instructed its
architect to proceed forthwith in preparing a complete set of
working drawings for the six-story addition for Phase 2. The
drawings were completed by the Fall of 1968.

A-5

16. As to the design of both Phase 1 and 2, the practice of
Petitioner’s architect was to apply changes in local and state
laws, such as the Uniform Building Code, occurring after com-
mencement of work on each of such phases.

17. Before the Phase 2 drawings were completed, the
Council passed Resolution No. 4113 on May 6, 1968 (Exhibit
14) to further assist in the solution of the parking problem and
to allow Petitioner to obtain permanent financing for Phase 2.
This resolution amended the Development Plan and Develop-
ment Schedule of the PC zone established by Ordinance No.
2224. It rescinded Resolutions Nos. 3860 and 4055. It also con-
tinued the prior authorization of 107 surface parking spaces in
lieu of the permanent parking structure and permitted use and
occupancy of the four-story building with such surface parking.
It provided further that “‘construction of the permanent parking
structure shall start on or before October 31,1976’"—the same
date provided in Ordinance No. 2224 for start of construction
of the six-story addition. Finally, Resolution No. 4112 provided
that the six-story addition “‘shall remain unused and unoccupied
until the parking structure is completed.” Except as herein
indicated, Resolution No. 4113 left all other sections of Ordi-
nance No. 2224 as originally written. Resolution No. 4113 has
never been amended.

18. By Fall, 1968, Petitioner had obligated itself to its
architect to pay for the complete Phase 2 working drawings.

19. In August, 1969, after finally determining the engineer-
ing design requirements, County commenced condemnation
proceedings to acquire approximately 4,000 square feet of the
permanent parking structure site between Page Mill Road and
Sheridan Avenue for the County’s Page Mill/Birch Street re-
alignment (“parking site acquisition’’). Prior to this date, Peti-
tioner was free to apply to City for a building permit to build
the parking structure approved by Ordinance No. 2224 and

Resolution No. 4113, but decided not to do so for reasons of its

own.

20. In the Fall of 1969, Petitioner ordered the structural
steel and elevators for Phase 2 and submitted the Phase 2 plans
for bid. On September 30, 1969, Petitioner’s then managing
general partner (W. G. Dunn) instructed its general contractor
to “immediately commence placement of all subcontracts for
the construction of the six-story building addition” (Exhibit
R40), including at least structural steel, steel decking, exterior
facade and elevators.

21. By its letter of September 30, 1969 (Exhibit R40), and
by the acts of its general contractor pursuant thereto in placing
contracts for structural steel (Exhibit R66) and elevators (Ex-
hibit R44), Petitioner fully obligated itslef to pay for Phase 2
development costs prior to obtain financing to construct Phase
2 and prior to being issued a building permit for Phase 2 on
February 16, 1970 (almost five months later).

22. Petitioner admits that it committed a mistake by not
obtaining financing before committing the partnership to the
obligation involved in paying for the steel and elevators for
Phase 2, and that this mistake got the partnership into financial
difficulties. This mistake was in no way attributable to Re-
spondent or any of its officials or employees.

23. Petitioner’s inability to obtain Phase 2 financing was not
due to any act or acts of Respondents. Despite continuing
efforts throughout 1968 and 1969, Petitioner was unable to ob-
tain anything other than a verbal agreement from a lender in
late 1969 which ultimately failed to materialize because the
lender found itself overcommitted during that same period of
time. Similarly, in the Fall of 1976, Petitioner was unsuccessful
in its one effort to obtain Phase 2 financing because the lender's
agent stated that time was too short to permit any substantive
negotiations prior to the Phase 2 deadline of October 31, 1976,
for start of construction.

—————————————— 2

A-7

24. On November 7, 1969, Petitioner executed a real estate
purchase contract with Power Construction, Inc. (‘‘Power’’)

a aR MR

under which Petitioner acquired the right to purchase several
parcels of land in the block south of and adjacent to the subject
property. Petitioner considered the Power parcels as a possible
alternative to provide the necessary offstreet parking for the six-
story addition. Petitioner never requested a zone change to use
the Power percels for such parking despite its awareness of the
pending County condemnation for the parking site acquisition,
and despite its further awareness of City requirements in this
regard by virtue of its zone change application for an amend-
ment to the PC Development Schedule ultimately passed by
{ the Council in Resolution No. 4113 (Exhibit 117). Mr. Power
| testified that the City never interfered with his contractual rela-
tions with Petitioner. Because of Petitioner’s inability to obtain
Phase 2 financing, the Power parcels were permitted to revert to
Power late in 1971, and a quit-claim was executed by Petitioner
in 1973.

25. Late in 1969, a controversy between Petitioner and City
arose over the installation of a smokeproof tower. Earlier in
: 1965, City had resolved a similar dispute in Petitioner’s favor
| within three weeks of the date it was raised by permitting con-
| struction of Phase 1 with an interior smokeproof tower. The
: 1969 controversy lasted about two months and was resolved in
| Petitioner’s favor on February 2, 1970, by issuance of a build-
ing permit for Phase 2 using a mechanically-ventilated interior
smoketower (Exhibits 17 & 19). An inter-office communication
from the city attorney’s office to the city manager (Exhibit 18)
does not show that the City recognized that Petitioner has a
vested right to construct Phase 2 but instead only a vested right
to a method of construction, namely an interior smokeshaft in
the existing four-story building. The refernece to vested rights
in Exhibit 18 does not apply to construction of Phase 2.

A-8

26. On March 30, 1970, City issued Petitioner a use permit
following an appeal from the City zoning administrator’s refusal
to issue the use permit on the ground that the proposed six-
story addition would create a building approximately 14 feet
(or 11 percent) highe: than the building approved by the PC
zoning in Ordinance No. 2224 and that the proposed addition
was a Variation not within reasonable limits of the zoning ad-
ministrator’s administrative discretion to approve. The use
permit was granted within approximately six weeks after Peti-
tioner applied for it.

27. On March 11, 1970, during a hearing on its appeal from
the use permit denial, Petitioner told the City Planning Com-
mission (‘“‘Commission’’) that it would not be building a parking
structure, that it had options on sufficient land to provide the
required Phase 2 parking, and that it realized it would have to
provide parking before it could use and occupy the six-story
addition (Exhibit 20, p. 83).

28. On March 30, 1970, at the hearing at which the Council
approved the Phase 2 use permit, City advised Petitioner that
the PC Development Plan required construction of the parking
structure before October, 1976 (Exhibit 21, p. 238).

29. On April 3, 1970, the City staff advised Petitioner in
writing that it should file plans in the near future for “consider-
ation of a change of the approved Development Plan which now
requires an off-street parking structure” (Exhibit 128).

30. On April 13, 1970, the Council amplified the minutes of
its March 30, 1970, meeting to reflect that, as to Phase 2, the
“parking requirements are expected to be consistent with the
previously approved plan” approved by Ordinance 2224 (Ex-
hibit 22).

31. City granted Petitioner’s request of May 22, 1970, to
extend the Phase 2 building permit to July 1, 1970 (Exhibit
R4).

a aes mde sO Bie aia.

Sh tm Nita Latha ho

Ar Ase aller petar ke 4

A-9

32. The Phase 2 building permit (Exhibit 19) expired on
July 1, 1970, because of Petitioner’s inability to obtain
financing.

33. City granted Petitioner’s request to extend the Phase 2
use permit to March 30, 1972.

34. The Phase 2 use permit expired on March 30, 1972, be-
cause of Petitioner’s inability to obtain financing.

35. No construction work was ever undertaken on either the
Phase 2 six-story additon or the permanent parking structure.

36. In August, 1970, the County of Santa Clara completed
condemnation proceedings to .acquire approximately 4,000
square feet of the permanent parking structure site between
Page Mill Road and Sheridan Avenue for the County’s Page
Mill/Birch Street realignment. The County acquisition was
based on a Stipulation for Judgment executed between Peti-
tioner and County (Exhibit R5). County commenced this con-
demnation proceeding in August, 1969, approximately one
month before Petitioner ordered the steel and elevators for
Phase 2 (Exhibit R40). Petitioner received just compensation
for this taking, including certain excess lands deeded to it by
the County contiguous to the parking structure site.

37. On October 6, 1972, at Petitioner’s request, City staff
members met with Petitioner for the purpose of discussion con-
struction requirements and processing of Phass 2. There was no
intent to delay, hinder or thwart Petitioner in any way on the
part of the City staff members present at the October 6, 1972,

meeting, or on the part of any other City official, at that time
or at any other time.

38. Approximately one year after the Phase 2 use permit
expired (February 27, 1973), Petitioner applied for a new use
permit for the Phase 2 six-story addition, but withdrew the
application on March 20, 1973, without it being acted upon by
the City. Petitioner intended to resubmit its application a few

A-10

months thereafter, but did not do so because it lost its chief
tenant which decided to move to a new facility to achieve its
own corporate identity. There was no evidence that the tenant
vacated because of Petitioner’s inability to provide more space
for it in the contemplated six-story addition.

39. On September 24, 1973, the City passed Ordinance No.
2475 (Exhibit R8) placing a 50-foot height limit on buildings in
certain zoning districts but not Planned Community zones, such
as applies to the subject property.

40. The City passed various ordinances adopting current
editions of various construction codes which were applicable to
Phase 2. Among these were Ordinance No. 2436, passed on May
27, 1968, adopting the 1967 editions of the Uniform Building,
Electrical, Mechanical and Plumbing Codes (Exhibit R3), Ordi-
nance No. 2605, passed on June 7, 1971, adopting the 1970
editions of the Uniform Building and Mechanical Codes (Ex-
hibit R6), and Ordinance No. 2809, passed on August 26, 1974,
adopting the 1973 editions of the Uniform Building, Mechanical
and Housing Codes.

41. For a period of approximately three years, from the date
of its withdrawai of ts Phase 2 use permit application on
March 20, 1973, Petitioner did nothing about further construc-
tion on Phase 2 until June 30, 1976, when it applied for a zone
change with respect to the parking problem and also for new
uses not previously permitted (Exhibit 225). Despite being told
by ‘the City’s zoning administrator on March 31,1975, that the
City might agree to a reduction of parking spaces, Petitioner
waited for more than a year to submit its zone change applica-
tion. Petitioner did not start working in earnest on the parking
problem until October or November, 1975.

42. Petitioner’s zone change application of June 30, 1976,
was defective in that it included a portion of property not
owned by Petitioner and also a portion of the City street on

A-11

Sheridan Avenue. No City staff member told Petitioner that
such an application would be approved either prior to or after
its submittal.

43. Pursuant to §18.68.070(a) of the City Zoning Ordinance
governing PC District Regulations, zone changes in a PC district
are considered the same as changes in the City zoning map and
are in accordance with the general rezoning procedures set forth
in City Zoning Ordinance Chapter 18.98. Section 18.98.0200
limits zone change applications to the Council or Commission
or “a property owner.” Section 18.98.030 permits zone change
applications to include non-owned property only if it includes
the written consent of the owner of record of legal title to make
such application.

44. Petitioner’s June 30, 1976, zone change application did
not include the written consent of the owner of record of legal
title to either the privately-owned property ‘Mrs. Pierson) or
the City property in Sheridan Avenue.

45. Petitioner’s June 30 zone change application did not re-
quest a hearing date before the Commission until August 25,
1976.

46. Aimost nine years elapsed from the date Petitioner com-
pleted the four-story building on August 17, 1967, to August
11, 1976, when it submitted a request for a three-year exten-
sion of the Phase 2 deadline of October 31, 1976, contained in
the PC Development Schedule in Ordinance No. 2224 and
Resolution No. 4113.

47. On August 25, 1976, the Commission adopted a motion
recommending to the Council that the three-year request be
denied. This procedure followed the provisions of PC District
Regulations set forth in Zoning Ordinance §18.68.080D. Fol-
lowing the Commission’s recommendation of denial, Petitioner
withdrew its three-year request and, instead, filed an application
for a use permit for Phase 2 on August 30, 1976.

A-12

48. On August 31, 1976, Petitioner submitted an applica-
tion for a building permit for the six-story addition based upon
the building plans for which a permit had been issued in 1970.
These plans had not been revised to meet current code require-
ments. The City, subsequent to the expiration of the 1970
building permit for the six-story addition, had adopted the
1970 and 1973 editions of the Uniform Building Code and
other construction codes. The August 31, 1976, application for
a building permit for Phase 2 did not comply with those codes.

49. The City building inspector refused to issue a building
permit for the six-story addition on three grounds: (1) the plans
submitted did not conform to then existing codes; (2) no use
permit had been issued for the six-story addition as required by
§18.68.040 of the PC District Regulations and (3) Petitioner's
zone change application of June 30, 1976 (for parking and new
uses) and August 11, 1976) for time extension) were then
pending.

50. On September 8 and September 21, 1976, respectively,
at Petitioner’s request, City staff members met with Petitioner
and its architect to discuss Phase 2. On September 8, 1976, City
staff members advised Petitioner to resubmit revised building
plans to conform to current codes. No revised plans were sub-
mitted until October 15, 1976, 16 days before the October 31,
1976, deadline for start of construction.

City staff members further advised Petitioner that City would
submit the revised plans to the International Conference of
Building Officials (ICBO) in Whittier, California, for plan check
because (1) there were numerous building code changes that re-
quired extensive review, (2) the revisions were complex, and
(3) under then existing time constraints the City building in-
spector could not undertake the review and approval.

51. On October 1, 1976, Petitioner filed a request with the
Commission to amend the Development Schedule by requesting

ee ee SE

RRA DOM at nei e M 08 Mei Reon

IRS CAPO

A-13

a one-year extension for start of construction of the six-story
addition.

52. On October 20, 1976, Petitioner submitted an extensive
letter to the Commission in support of its one-year extension
request.

53. On October 27, 1976, the Commission held a public
hearing in which all relevant issues were discussed by Petitioner,
its counsel, members of the public, the City staff and the Com:
mission (Exhibit 48). At the conclusion of the hearing, the
Commission passed a motion recommending to the Council
that the one-year request be denied.

54. On October 28, 1976, the City building inspector
denied Petitioner’s request for an interim building permit on the
grounds that no use permit had yet been issued for Phase 2 and
that no plans for construction of a parking structure had been
submitted.

55. On December 7, 1976, the Counci) held a public hearing
on Petitioner’s one-year request. The reque*t for extension was
submitted to lengthy debate in which all relevant issues were
discussed and in which Petitioner and its counsel, members of
the public, members of the City STaff and Council: members
fully participated. The Chairperson of the Planning Commission
described the Commission’s reasons for denying the extension.
These were: the unresolved parking problem, the ten-year
length of time for completing the development, the advantage
over others in granting an extension, the changed conditions of
the area and height limitations that could be considered. Coun-
cil members discussed and considered such subjects as the im-
pact of the County condemnation action on the parking re-
quirements, the economics of the project, building height limits,
environmental impact reports, delays in completing the project,
the interests of the community, the general changes in the
city’s comprehensive plan. The pros and cons from public

A-14

participants discussed added jobs and taxes to be derived from
the building’s construction on the one hand to the need for an
environmental report and general opposition to the building and
its proposed height on the other.

56. The Council thoroughly considered Petitioner’s request
at its meeting. The discussions and deliberations were complete
and unhurried. The factual data the Council had before it fairly
represented both sides of the issues. Petitioner was asked on
two separate occasions if it had been dealt with in good faith by
City. Both times the answer was affirmative.

57. On December 7, 1976, the Council following the hearing
and its deliberations, denied Petitioner’s request for a one-year
extension. Pursuant to PC District Regulations §18.68.070(a)
and 18.68.080, the Development Schedule is part of the De-
velopment Plan which, in itself, is the PC zoning. Any request
to change to the Development Schedule is a request for a re-
zoning or an amendment to the PC zoning as established by

Ordinance No. 2224.

58. At the time the Council denied Petitioner’s one-year
request, no building permit had been issued for construction of
the six-story addition or the parking structure. The previously
issued building permit expired on July 1, 1970, and the use
permit on March 30, 1972.

59. There was never any act or intent on the part of any of
Respondents to obstruct, hinder or delay Petitioner.

60. There was no deliberate or willful attempt to delay,
hinder or obstruct Petitioner in the completion of either Phase
1 or Phase 2.

61. Petitioner did not commence construction on Phase2by
virtue of expending money to overbuild Phase 1 to accommo-
date it.

62. Respondents have acted conscientiously and in good

A-15

faith with Petitioner at cll times.

63. None of Respondents’ actions have been unreasonable,
unlawful, arbitrary or discriminatory.

CONCLUSIONS OF LAW
From the foregoing findings of act, the Court makes the fol-
lowing conclusions of law:

1. Ordinance No. 2224 was a proper legilsative exercise of
the police power through zoning. Zoning is not a contract.

2. Ordinance No. 2224 established a specially enacted zoning
for the subject property which, from its effective date, pre-
scribed a fixed, limited time period for start of construction
for both Phase 1 and Phase 2.

3. There is nothing in Ordinance No. 2224, or law in general,
which provided that the completion of Phase 1 guaranteed or
vested any right to complete Phase 2.

4. The appropriate and applicable form of mandamus in this
action is under California Code of Civil Procedure §1085. The
City’s actions in passing Ordinance No. 2224, Resolutions 3860
and 4055, and in considering Petitioner’s requests for time ex-
tensions were legislative functions, not administrative orders or

decisions which latter functions are reviewable under Code of
Civil Procedure §1094.5.

5. The City Council in considering and deciding upon the
request in this case to extend the ordinance was not acting in a
quasi-judicial capacity but was performing a legislative function
subject only to traditional mandamus review.

6. The decision regarding staff issuance of use permits under
the City’s PC zoning regulations is both ministerial in character
and supplements the PC legislative process reviewable under
Code of Civil Procedure §1085. |

7. The decision whether or not to issue a building permit

A-16

involves a ministerial act reviewable under Code of Civil Pro-
cedure §1085.

8. The scope of review by the trial court in traditional man-
damus actions (section 1085) requires only an examination into
whether the action taken was arbitrary, capricious or entirely
lacking in evidentiary support.

9. A city council in amending a zoning ordinance is not re-
quired to make express findings of fact as to the public purpose
of the ordinance or its relation to the police power. Council
members are not required to articulate for the record all of the
reasons and motives behind their decisions.

10. No fundamental vested right was ever acquired by Peti-
tioner. Absent such a right, the test of the City Council’s action
was whether there was substantial evidence to support it.

11. The action taken by the Council in denying the one-year
request was supported by more than substantial evidence.

12. Petitioner did not acquire vested rights to construct
Phase 2 by virtue of overbuilding Phase 1 to accommodate it
or in any other respect.

13. Petitioner had not at any time acquired vested rights to a
building permit to construct Phase 2; therefore, the Council’s
denial of the one-year extension did not constitute a depriva-
tion of vested rights.

14. There is no basis for application of the doctrine of
estoppel against Respondents.

15. None of Respondents’ actions have been unreasonable,
unlawful, arbitrary, discriminatory, malicious nor void, nor have
such resulted in any denial of due process or equal protection of
the laws.

LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: July 6, 1978.

JUDGE JOHN R. KENNEDY
Judge of the Superior Court

ewe es

OIE PLO AP AP a BE, OS A EN ESET ONS halts bor SIO me I aa BN

Appendix B

Oniginal
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-81-+4537 SC
)
Plaintiff, )
-Vs— )
) ORDER GRANT-
THE CITY OF PALO ALTO, a ) ING MOTION TO
municipal corporation, et al., ) DISMISS
)
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

i

A-18

of action: federal and state constitution “taking’’ claims (in-
verse condemnation): federal and state constitution equal
protection and due process claims; a federal civil nghts claim;
and a declaratory judgment claim. The latter two claims rest
on the constitutional 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 claum 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 clairns here are based on the same alleged wrongful
acts which formed the basis of plaintiff's 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. vi a

Plaintiffs 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. Plaintiff's 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-19

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 tmal 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. Citv 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 v. Schrunk, 522
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 $29, 536 (9th Cir. 1981). Such claims
should be dismissed for want of federal jurisdiction. Hodge
v. Mountain States Tel. & Tel. Co., 555 F. 2d 254, 261 (9th
Cir. 1977).

In accordance with the foregoing, it is hereby ordered that
defendants’ motion to dismiss plaintiff's complaint is granted.

Dated: June 4, 1982

SAMUEL CONTI
United States District Judge

Appendix C
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COURT HOUSE PLAZA COMPANY,a_)
limited partnership,

Plaintiff-Appellant,
v. No. 82-4393
THE CITY OF PALO ALTO, a DC #CV-81- .
municipal corporation, STANLEY 4537-SC
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,

ee ee ee ee ee ee ee Le ee a Le, ee ee ee, ee ee ed

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.

Appendix D

Ropers, Majeski, Kohn, Bentley, Wagner & Kane

A Professional Corporation

Crocker Plaza, Suite 820

84 West Santa Clara Street

San Jose, California 95113

(408) 287-6262

Attorneys for defendants The City of Palo Alto and
each individually named defendant

In the Superior Court of the State of California
in and for the County of Santa Clara

Civil No. P33070

Court House Plaza Company, a limited partnership,
Plaintiff,
vs.

The City of Palo Alto, a municipal corporation,
Stanley L. 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. Carpenter, Mary K. Gordon,
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 G. Green, Assistant City Attorney,
Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEMURRERS AND MOTION
TO STRIKE

Date: Monday, April 26, 1982
Time: 9:30 a.m.

Dept: One

Kst. Length of Hearing: 30 Mins.

A-22

MEMORANDUM OF POINTS AND AUTHORITIES

Page

XUI. SINCE AN ACTUAL CONTROVERSY NO
LONGER EXISTS, PLAINTIFF IS NOT EN-

TITLED TO DECLARATORY RELIEF ........ 21
XIV. CONCLUSION 21
EXHIBITS
A. Claim against City of Palo Alto, March 3, 1977.
B. Complaint for Damages, filed September 22,
1977, Action Number P33070.
C. Petition for Writ of Mandamus, filed May 23,
1977, Action Number P32449.
D. Memo of Decision, Action Number P32449.
E. Findings of Fact and Conclusions of Law,
Action Number P32449.
F. Judgment Denying Peremptory Writ of Man-
date, Action Number P32449.
G. Court House Plaza vs. City of Palo Alto (1981)
117 C.A.3d 871.
H. Denial of Petition for Rehearing in Court of
Appeals.
L. Denial of Hearing by California Supreme
Court.
J. Notice of Appeal to U.S. Supreme Court.

Dismissal of Appeal and Denial of Certiorari
by United States Supreme Court.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0610%3A2. Public record. Not legal advice.