Opposition Brief — Inglewood Residents' Protective Ass'n v. City of Los Angeles

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SUBJECT INDEX

I 8 at be? fas Sipe a

A. Petitioner Has Made No Showing That the

Instant Case Comes Within the Purview of

ye 6) eee

1. The Validity of a Treaty, United States

Statute or State Statute Has Never, at

Any Time, Been Drawn Into Question

2. The Only Question Before the Cali-

fornia Courts Was the Non-Federal

Question of Whether This Action May

Proceed as a Class Action ....................

a a acexnchuseniarpsidnbnssaieuenwe

Reasons for Refusing the Writ ................................

as canncasanbapiaieee

B. The Denial of Class Action Treatment in

the Instant Case Is neither a Denial of

Constitutional and Civil Rights nor a De-

nial of Due Process and Equal Protection

ea ascii aie gins dditvAdnarhandicshes

C. It Is Not Necessary to Review Griggs v. Alle-

gheny in Connection With Class Action Liti-

RESETS Sigs Ne et ae ee

D. There Is No Denial of “Just Compensation”

Merely Because a Class Action May Not

BSE ERE EC ne

E. The Jurisdictional “Power” of the City of

Los Angeles Is Properly Not an Issue Which

Has Been Decided Herein, nor Is It Relevant

to a Determination of the Class —..............

Ne eS eeasindas a

11

12

14

15

CDE

ii.

TABLE OF AUTHORITIES CITED

Cases Page

Aaron et al. v. City of Los Angeles (1974) 40 Cal.

Fe acini plage canteen 8, 9, 13,

Albert, et al. v. City of Los Angeles, Los Angeles

Superior Ct. Case No. C20144 ...........................-

American Railway Exp. Co. v. Kentucky, 273

US. 269, 47 S.Ct. 353, 71 L.Ed. 639 (1927) ....

Archdiocese of Los Angeles Education and Welfare

Corp. v. City of Los Angeles, Los Angeles Su-

ge SS, Rt ee

Bermudez v. United States Department of Agricul-

ture (D.C. Cir. 1973) 490 F.2d 718, cert. den.

414 U.S. 1104, 94 S.Ct. 737, 38 L.Ed. 2d 559 ....

Carter v. Butz (3rd Cir. 1973) 479 F.2d 1084,

cert. den. 414 U.S. 1103, 94 S.Ct. 737, 38 L.

BE I I daitisdssire cicintadiisat dion cahaienichtscountakenncaicnenen

Central Vermont R. Co. v. White, 238 U.S. 507,

ao BAA. Ber, Je Lee. 14395 (1915) ..................

Chance v. Superior Court (1962) 58 Cal.2d 275 ..

City of Los Angeles, v. Japan Air Lines Co., Ltd.

Cree Pe Se GO sic ities

City of San Jose v. Superior Court (1974) 12 Cal.

3d 447 13,

Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695 ....

Derr v. City of Los Angeles, Los Angeles Superior

OT ee

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.

Ce. 2366, 40 La: 26 7a2 (1974). .................. 3,

Enterprise Irrig. District v. Farmers Mut. Canal

Co., 243 U.S. 157, 37 S.Ct. 318, 61 L.Ed. 644

(1917)

ee ee eee eee eee eee eee ee ee ee ee

14

9

4

11

11

12

14

Page

First Nat. Bank v. Anderson, 269 U.S. 341, 46

me ee. My bet "ee, s ) ee

Greater Westchester Homeowners Ass’n v. City of

Los Angeles, 1i Av. Cas. 18374 (Cal. Super. Ct.

id) ee Ne EST IE TYR OS Be el er ea TE 8,

Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct.

os Nie ge ie Ad, 4 nel nD

Harris v. Palm Springs Alpine Estates, Inc. (9th Cir.

ba gD kA ee S,

Honeyman v. Hanan, 300 U.S. 14, 57 S.Ct. 350, 81

BR Fe... fe aR Se rae ere

Irwin, et al. v. City of Los Angeles, Los Angeles Su-

OE TR. SOUND FOG TR mac ckcsesincntinessccseinternes

Los Angeles Unified School Dist. v. City of Los

Angeles, Los Angeles Superior Ct. Case No. 965,-

BE icici ipuntebatiasirstnapectatd aia ersasebeovhesccnedentcalennasios

Madisonville Traction Co. v. St. Bernard Min. Co.,

196 U.S. 239, 25 S.Ct. 251, 49 L.Ed. 462

Eo _, MUS RRC Rae LRT encore toe enc ee

Milk Wagon Drivers U. v. Meadowmoor Dairies,

312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836 (1941)

Se eee eee eee ee eee errr rrr rr eee

Montgomery Ward & Co. v. Langer (8th Cir. 1948)

REE GIN WUE ccornctthesinkaratctoncncewmcnsscnneedtininndngnstibias

Munger, et al. v. City of Los Angeles, Los Angeles

Superior Court Case No. 931,315 .....................---

Nestle v. City of Santa Monica (1972) 6 Cal.3d

SIO AT EF: SO ELI CEA ed RON 11,

Parker, et al. v. City of Los Angeles (1974) 43

RI UE chit allel ssi Soblahitainnitniltaacsheahigatctes

FRUIT LOL RET YEE CELIO POE LI LEE OE IEE MPAA

11

14

14

iv.

Page

Pioche Mines Consolidated, Inc. v. Dolman (9th

Cir. 1964) 333 F.2d 257, cert. denied 380 U.S.

956, 85 S.Ct. 1081, 13 L.Ed. 2d 972 ................ 5

Stone v. Southern Illinois & M. Bridge Co., 206

U.S. 267, 27 S.Ct. 615, 51 L.Ed. 1057 (1907) .. 14

United Gas Public Service Co..v. Texas, 303 U.S.

123, 58 S.Ct. 483, 82 L.Ed. 702 (1938) ............ 4

Vasquez v. Superior Court (1971) 4 Cal.3d 800

Ss RE ERT MS AOD AL ICP INN. PORTE. 5, 6, 10, 14

Weaver v. Pasadena Tournament of Roses (1948)

32 Cal.2d 833

PEAS ASL Hea POET ETC 4

Young v. Ragen, 337 U.S. 235, 69 S.Ct. 1073, 93

Rs. WOE RO “Gilet ee 5

Rules

Federal Rules of Civil Procedure, Rule 23 ...... ©

Statutes

California Constitution, Art. I, Sec. 14 2.022000... 10

California Constitution, Art. I, Sec. 19 2.002.000... 10, 13

GR SIN HI Re wali Getinreitcenesdnchdniininednnsens 2, 5, 10

Code of Civil Procedure, Sec. 382 .......... mae 5

United States Code, Title 28, Sec. 1257(3) ........

diesen sicsceiichieeindicielnsicliabbaitpiiaiaedbuanationsiinidintiahiaie a= 8

Textbook

7 Wright & Miller, Federal Practice and Procedure

(1972) Civil, Sec. 1751, p. 507

IN THE

Supreme Court of the United States

October Term, 1975

No. 75-65

INGLEWOOD RESIDENTS’ PROTECTIVE ASSOCIATION,

et al.,

Petitioner,

VS.

City oF Los ANGELES, a municipal corporation,

a Respondent.

Respondent’s Brief in Opposition to Petition for

Writ of Certiorari.

Respondent City of Los Angeles prays that the Writ

of Certiorari sought by Petitioner not be issued and that

the decision and opinion of the Court of Appeal (Sec-

ond Appellate District) of the State of California re-

main undisturbed.

JURISDICTION.

A. Petitioner Has Made No Showing That the In-

stant Case Comes Within the Purview of 28 USC

1257(3).

1. The Validity of a Treaty, United States Statute or State

Statute Has Never, at Any Time, Been Drawn Into Question.

Petitioner has not questioned the validity of a treaty

or statute of the United States. Petitioner has failed to

identify or allege any state statute which may be “. . .

repugnant to the Constitution, treaties or laws of the

United States... .”

a

Class actions in California are governed by the pro-

visions of Code Civ. Proc., §382' and (as to consumer

class actions since 1970) Civ. Code, §1781.?

Although Petitioner’s only grievance is that the in-

stant action cannot be maintained as a class action

under California law, the applicable California statu-

tory law has not been drawn into question. Rather, Pe-

titioner claims that the mere denial of class treatment

is a denial of due process and equal protection of the

law. Therefore, it would appear that Petitioner’s only

basis for invoking the jurisdiction of this Court, under

28 USC 1257(3), is that such denial infringes upon a

“... title, right, privilege or immunity . . . claimed under

the Constitution, treaties or statutes of . . . the United

1Code Civ. Proc., §382 provides as follows:

“If the consent of any one who should have been joined

as piaintiff cannot be obtained, he may be made a defend-

ant, the reason thereof being stated in the complaint; and

when the question is one of a common or general interest,

of many persons, or when the parties are numerous, and

it is impracticable to bring them all before the court, one or

more may sue or defend for the benefit of all.”

2Civ. Code, §1781 provides in pertinent part, as follows:

“(a) Any consumer entitled to bring an action under Sec-

tion 1780 may, if the unlawful method, act, or practice has

caused damage to other consumers similarly situated, bring

an action on behalf of himself and such other consumers to

recover damages or obtain other relief as provided for in

Section 1780.

“(b) The court shall permit the suit to be maintained on

bebalf of all members of the represented class if all of the

foliowing conditions exist:

“(1) It is impracticable to bring all ‘members of the class

before the court.

“(2) The questions of law or fact common to the class are

substantially similar and predominate over the questions

affecting the individual members.

“(3) The claims or defenses of the representative plaintiffs

are typical of the claims or defenses of the class.

“(4) The representative plaintiffs will fairly and adequately

, rotect the interests of the class.”

Be Ws

States.” Thus, Petitioner seeks to raise a Federal ques-

tion sufficient to hurdle the jurisdictional issue. As

will be shown, Petitioner fails to clear this first hurdle.

2. The Only Question Before the California Courts Was the

Non-Federal Question of Whether This Action May Pro-

ceed as a Class Action.

Petitioner has consistently failed to differentiate be-

tween the bases for its various causes of action and the

procedural remedy by which it may pursue such ac-

tions. While the various causes of action alleged by

Petitioner may be founded in part upon Federal law,

no decision on the merits of such claims has yet been

rendered by a California court in the instant case. As

will be shown herein, there was in fact no Federal

question presented to or decided by the California court.

Consistently over the years it has veen stated by this

Honorable Court that it has no power to review local

law as applied by local courts. Thus, in Enterprise Irrig.

District v. Farmers Mut. Canal Co., 243 U.S. 157,

165, 37 S.Ct. 318, 61 L.Ed. 644, 649 (1917) it was

stated:

“The claim that the court, in disposing of some

of the questions, including that of estoppel, miscon-

ceived or misapplied the statutory and common

law of the state, and ‘hereby infringed the due

process and equal protection clauses of the 14th

Amendment, requires but brief notice. The due

process clause does not take up the laws of the

several states and make all questions pertaining

to them constitutional questions, nor does it enable

this court to revise the decisions of the state

courts upon questions of state law. (Citations omit-

ted.)” ‘

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sellin

That it is not the function of the United States Su-

preme Court to decide local questions has been pointed

out in the following cases, among many others: First

Nat. Bank v. Anderson, 269 U.S. 341, 346, 46 S.Ct.

135, 70 L.Ed. 295, 302 (1926); American Railway

Exp. Co. v. Kentucky, 273 U.S. 269, 272, 47 S.Ct. 353,

71 L.Ed. 639, 641 (1927); United Gas Public Service

Co. v. Texas, 303 U.S. 123, 139, 58 S.Ct. 483, 82 L.

Ed. 702, 714 (1938).

Not only must a Federal question be properly pre-

sented to the state court, but it must appear that the

state court’s decision of the Federal question was neces-

sary to the determination of the case. Honeyman v. Han-

an, 300 U.S. 14, 18, 57 S.Ct. 350, 81 L.Ed. 476, 479

(1937).

Respondent submits that the California court did

not have to decide a Federal question necessary to the

determination of this case for the following reasons:

1. The only question presented to the California

court was whether or not the instant action may proceed

as a class action. Code Civ. Proc., §382, relating to

joinder of parties and class suits, is based on the equi-

table doctrine of virtual representation which rests

on considerations of necessity and paramount conveni-

ence, and was adopted to prevent a failure of justice.

Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 703,

704; Chance v. Superior Court (1962) 58 Cal.2d 275,

291; Weaver v. Pasadena Tournament of Roses (1948)

32 Cal.2d 833, 837. The decision in the instant case

was limited to a matter of procedure under California

law.

2. <A state may choose the procedure it deems ap-

propriate for the vindication of Federal rights. Young

otllind.

v. Ragen, 337 U.S. 235, 238, 69 S.Ct. 1073, 93 L.

Ed. 1333, 1336 (1949). Due regard for the rightful in-

dependence of state government requires that proce-

dural matters not foreclosing or affecting Federal rights

be maintained. These general principles have long

been recognized by this Court as indicated in the fol-

lowing quotation from Central Vermont R. Co. v. White,

238 U.S. 507, 511, 35 S.Ct. 865, 59 L.Ed. 1433, 1436

(1915):

“There can, of course, be no doubt of the gen-

eral principle that matters respecting the remedy—

such as the form of the action, sufficiency of the

pleadings, rules of evidence, and the statute of

limitations—depend upon the law of the place

where the suit is brought.”

In Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 185,

94 S.Ct. 2140, 40 L.Ed. 2d 732, 753 (1974) Justice

Douglas, in a separate opinion, clearly identifies class

actions as “legal remedies.” The class action is an “in-

vention of equity” (Montgomery Ward & Co. v. Langer,

[8th Cir. 1948] 168 F.2d 182, 187) and is governed

in the Federal Courts by rules (i.e., Federal Rules Civ.

Proc., 23) and in state courts by statutes and rules

(e.g., Code Civ. Proc., §382, Civ. Code, §1781). In

California, the State Supreme Court has suggested that

Federal Rules Civ. Proc., 23 may be utilized by trial

courts in resolving the procedural problems facing a

court in the trial of a class action. Vasquez v. Superior

Court (1971) 4 Cal.3d 800, 821. The Federal Courts

have held that Rule 23 is a rule of procedure. Pioche

Mines Consolidated, Inc. v. Dolman (9th Cir. 1964)

333 F.2d 257. 265. cert. denied 380 U.S. 956, 85 S.Ct.

1081, 13 L.Ed. 2d 972; Harris v. Palm Springs Alpine

a om

Estates, Inc. (9th Cir. 1964) 329 F.2d 909, 912-913.

Similarly, a state determination of the allowability of a

class action in specific instances is merely the invoca-

tion of a local rule of procedure. This is especially true

in California where the Supreme Court of California

has not only encouraged innovative procedural devices

to expedite the handling of class actions, but has specif-

ically referred the trial courts to Federal Rules Civ.

Proc., 23 as a basis for establishing and resolving such

procedural problems. Vasquez v. Superior Court, supra,

4 Cal.3d at 821.

That state class actions have their genesis in equity

and not the Constitution or Federal law is clear from

the following statement in 7 Wright & Miller, Federal

Practice and Procedure (1972), Civil $1751, p. 507:

“The equity class action practice was incor-

porated into the procedural codes of numerous

states and was made applicable to actions at law

as a result of the law—equity fusion that typically

occurred at the time these codes were adopted.”

(Emphasis added. )

It was not necessary to reach any Federal question to

determine the viability of a class action in this instance,

nor was any Federal question in fact decided. Further,

other more appropriate means of redress by the class,

as individuals, has not been foreclosed by the California

court’s decision in this case. Appropriate constitutional

guaranties have not in any way been thwarted—they

merely have not yet reached a point of final adjudica-

tion. In such a case this Honorable Court lacks revisory

—.

power over state practice. Milk Wagon Drivers U. v.

Meadowmoor Dairies, 312 U.S. 287, 297, 61 S.Ct. 552,

85 L.Ed. 836, 843 (1941).

STATEMENT OF THE CASE.

While generally correct, Petitioner’s Statement of the

Case omits certain significant facts. For this reason,

Respondent presents the following in order for this

Court to have a complete factual statement.

The instant lawsuit seeks damages for injury to prop-

erty and person allegedly incurred from jet aircraft

operations at Respondent’s Los Angeles International

Airport. The complaint prays for an amount of $15,-

000.00 per property and person. In addition to the

class, the complaint contains individually named plain-

tiffs (not affected by the class action ruling) numbering

in the hundreds. Within the City of Inglewood (the

geographical area generally encompassed within the

complaint) are approximately 90,000 persons. Ostensi-

bly, this number of persons comprised the “class.” The

real properties within the “class” area are as generally

diverse as one might expect in a city the size of Ingle-

wood. Such diversity includes size, use, zoning, improve-

ments, age and location. Little need be said concerning

the individual physical and emotional differences among

some 90,000 persons. Against this factual background,

the Court of Appeal of the State of California decided

that a class action was inappropriate. The California

Supreme Court subsequently denied a hearing.

—

REASONS FOR REFUSING THE WRIT.

A. Introduction.

Respondent has heretofore demonstrated that Peti-

tioner has failed to show circumstances permitting it

to invoke jurisdiction under 28 USC 1257(3).

The following points, keyed to Petitioner’s Reasons

for Granting the Writ, discuss the reasons for refusing

the writ.

B. The Denial of Class Action Treatment in the

Instant Case is Neither a Denial of Constitutional

and Civil Rights nor a Denial of Due Process and

Equal Protection of the Law.

Petitioner's reason number 1 (Petition, p. 8) pre-

sents a somewhat rambling and garbled argument con-

taining misstatements of fact and law. By inference,

Petitioner seems to claim that the denial of class action

treatment somehow denies the individual members of

the “class” access to the courts to seek redress from

certain alleged wrongs. Both from a practical and legal

standpoint, nothing could be further from the truth.

Experience has shown that literally hundreds of

named plaintiffs have instituted lawsuits claiming dam-

ages from Respondent because of jet aircraft operations

at Los Angeles International Airport.* And, the vast

8See, e.g., Los Angeles Unified School Dist. v. City of Los

Angeles, Los Angeles Superior Ct. Case No. 965,067; Arch-

diocese of Los Angeles Education and Welfare Corp. v. City of

Los Angeles, Los Angeles Superior Ct. Case No. 998,331; Aaron

v. City of Los Angeles (1974) 40 Cal.App.3d 471; Greater

Westchester Homeowners Ass'n v. City of Los Angeles, 11 Av.

ness Smee Fp. :

eo a

— a

majority of those individually named plaintiffs has ob-

tained recovery. The practicalities of bringing this type

of lawsuit certainly have not deterred numerous other

individuals from successfully pursuing their legal reme-

dies in the courts of California. In the case of Aaron,

et al. v. City of Los Angeles (1974) 40 Cal.App.3d

471, a case involving approximately 750 parcels of

real property where damages were awarded to 520

property owners in the total amount of $650,000.00,

this Respondent sought a Petition for Writ of Certiorari

which was denied by the United States Supreme Court

(419 U.S. 1122). This Court is therefore well aware

that such actions are being and have been successfully

pursued in California without resort to class action

treatment.

The prayers involved in the instant case do not repre-

sent minuscule individual claims for damages, but run

into the thousands of dollars per person. The plaintiffs

are not small claimants who, but for the procedural

device of the class action, would be denied access to

the courts. The concerns expressed by Justice Douglas

in Eisen v. Carlisle & Jacquelin, supra, 417 U.S. 156,

186 concerning small claimants who would go begging

for justice without the class action are not present in

the instant case.

Cas. 18374 (Cal. Super. Ct. 1970): Albert, et al. v. City of

Los Angeles, Los Angeles Superior Ct. Case No. C20144; Derr

v. City of Los Angeles, Los Angeles Superior Ct. Case No.

944,461: Irwin, et al. v. City of Los Angeles, Los Angeles Su-

perior Ct. Case No. 985,929; Munger, et al. v. City of Los

Angeles, Los Angeles Superior Court Case No. 931,315; Parker,

et al. v. City of Los Angeles (1974) 43 Cal.App.3d 976,

LIGATED, ANE GY SE LPP FOL IAI LIE A ES ak, igh

— =

Adequate state safeguards of Constitutional rights

are available to individual plaintiffs in the instant case.

These include, inter alia:

1. California Constitution, Article I, Section 19

(formerly Article I, Section 14), which pro-

vides in pertinent part:

“Private property may be taken or damaged

for public use only when just compensation,

ascertained by a jury unless waived, has first

been paid to, or into court for, the owners.”

2. Code Civ. Proc. §382 and Civ. Code §1781

which authorize class actions in certain specified

instances.

3. Decisions of the California Supreme Court

which elaborate on the guidelines for maintain-

ing class actions under specific factual circum-

stances. As the California Supreme Court stated

in Vasquez v. Superior Court, supra, 4 Cal.3d

800, 821:

“If the class action is to prove a useful tool

to the litigants and the court, pragmatic pro-

cedural devices will be required to simplify

the potentially complex litigation while at the

same time protecting the rights of all of the

parties.”

Fairness to the litigants and expediency in serving

the judicial process has been the hallmark of the de-

velopment of class action law in California. This con-

cern for the rights of the parties insures that Consti-

tutional rights of every individual remain inviolate.

Petitioner’s reference on page 12 of its Petition to the

cases of “Burbank v. Lockheed, 411 U.S. 624; Air

PR IES Ret re

=)

Transport Assn. v. Crotti, 389 F.Supp. 58, (1975);

American Airlines v. Hempstead, 272 F.Supp. 266,

398 F2 369 (sic); Airline Pilots Assn. v. D.O.T., 11

Avi 18,251” is confusing and misleading. None of these

cases involves a class action. Little more need be said.

Just as the Federal Courts have recognized that

whether a class action may be maintained is discretion-

ary with the trial court (see, e.g., Bermudez v. United

States Department of Agriculture [D.C. Cir. 1973]

490 F.2d 718, 724, cert. den. 414 U.S. 1104, 94 S.Ct.

737, 38 L.Ed. 2d 559; Carter v. Butz [3rd Cir. 1973]

479 F.2d 1084, 1089, cert. den. 414 U.S. 1103, 94

S.Ct. 737, 38 L.Ed. 2d 559), so must it be held that

the maintenance of class actions in state courts is a

matter of state discretion and concern.

C. It Is Not Necessary to Review Griggs v. Allegheny

in Connection With Class Action Litigation.

After convoluted argument, Petitioner boldly pro-

nounces that “The limited right of redress articulated

by the Griggs case no longer satisfies recognized

societal needs.” (Petition, p. 15.) Griggs v. Allegheny

County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed. 2d 585

(1962) basically held that it was the owner and oper-

ator of the airport (as opposed to the airlines or the

United States) which was required to compensate the

plaintiffs in that case (369 U.S. 84, 89-90).

Griggs does not stand for the proposition (appar-

ently advanced by Petitioner) that inverse condemna-

tion is the sole legal theory upon which a plaintiff

allegedly aggrieved by airport operations may sue. Nor

does California law purport to limit such plaintiffs to

inverse condemnation. In Nestle v. City of Santa Monica

(1972) 6 Cal.3d 920, an airport case involving over

PEPE LIE LMI LO RAINE Ie

ae ae

700 plaintiffs suing the City of Santa Monica, the Cali-

fornia Supreme Court specifically recognized the exist-

ence of a nuisance cause of action and very clearly

did not foreclose the proper pleading of negligence,

zoning violations and theories of dangerous and defec-

tive conditions of public property. One is left to wonder

what point Petitioner is trying to make.

While not crucial to the issues herein, Respondent

finds it necessary to correct Petitioner’s misstatement

that “. . . the California Appellate Court notes that

in 1967 the airlines agreed to fund $300,000,000 in

bonds for further expansion of LAX and the necessity

for acquisition of ‘airspace or air easements or similar

interest in land.’” (Petition, p. 14.) The airlines at

no time agreed to “fund” these bonds. The true fact,

as stated in City of Los Angeles v. Japan Air Lines

Co., Ltd. (1974) 41 Cal.App.3d 416, 423 is that

“. . each of the airlines executed an amendment to

its basic lease whereby it agreed to pay the City such

additional landing fees as might from time to time be

necessary to service up to $300,000,000 of any bonded

indebtedness so incurred by the City.” The airlines did

not “fund” such bonded indebtedness. Further, the City

of Los Angeles has not yet incurred a bonded indebted-

ness in the total anticipated amount of $300,000,000

through the issuance of Airport Revenue Bonds.

D. There Is No Denial of “Just Compensation”

Merely Because a Class Action May Not Be

Maintained.

In an argument bordering on the frivolous, Petitioner

somehow claims that just compensation is denied by the

holding that a class action may not be maintained.

How and why this occurs is not demonstrated by Peti-

—

tioner. California Constitution, Article I, Section 19

guarantees the payment of just compensation when

there is a taking or damaging of private property for

public use. The California courts have established that

just compensation must be paid where there is a taking

or damaging of private property by a municipal airport

operator. In Aaron v. City of Los Angeles, supra, 40

Cal.App.3d 471, 493 it is stated:

“In summary we hold that the municipal oper-

ator of an airport is liable for a taking or dam-

aging of property when the owner of property in

the vicinity of the airport can show a measurable

reduction in the market value resulting from the

operation of the airport in such manner that the

noise from aircraft using the airport causes a sub-

stantial interference with the use and enjoyment of

the property, and the interference is sufficiently

direct and peculiar that the owner, if uncompen-

sated, would pay more than his proper share to

the public undertaking.”

The Aaron case, as does the case of City of San

Jose v. Superior Court (1974) 12 Cal.3d 447 recog-

nizes that land is unique. Aaron directs what must be

shown in order to establish a claim for just compen-

sation. San Jose holds that a case such as the instant

one is inappropriate for class action treatment. Neither

case forecloses the payment of just compensation when

required by the California Constitution or the United

States Constitution. Other than the recitation of numer-

ous Cases not on point, Petitioner makes no showing

of any denial or potential denial of just compensation.

= oe

E. The Jurisdictional “Power” of the City of Los

Angeles Is Properly Not an Issue Which Has Been

Decided Herein, nor Is It Relevant to a Determina-

tion of the Class.

Respondent will attempt to respond to this issue

raised by Petitioner, but Respondent candidly admits

its confusion in attempting to unravel the mysteries of

this circuitous argument. Preliminarily, Respondent

understands the law to be that the question of the

power or right to acquire property as well as the amount

of compensation to be paid does not ordinarily involve

a Federal right. Madisonville Traction Co. v. St.

Bernard Min. Co., 196 U.S. 239, 252, 25 S.Ct. 251,

49 L.Ed. 462, 468 (1905); Stone v. Southern Illinois

& M. Bridge Co., 206 U.S. 267, 273, 27 S.Ct. 615,

51 L.Ed. 1057, 1060 (1907). In Madisonville, it was

stated:

“Speaking generally, it is for the state, primarily

and exclusively, to declare for what public pur-

poses private property within its limits may be

taken upon compensation to the owner, as well

as to prescribe a mode in which it may be con-

demned and taken.” (196 U.S. at 252.)

Other than certain unsupported conclusions coupled

with a reference to some dark “dilemma” (Petition,

p. 19), Petitioner fails to connect its arguments co-

herently with the issue of a class action. Clearly, the

Madisonville and Stone cases, considered in light of the

aforementioned California cases (i.e., Aaron, San Jose,

Nestle, Vasquez, etc.) foreclose the necessity of further

discussion of this issue. The question of Respondent’s

authority or “power” is one to be decided by the Cali-

fornia court, if and when the issue is properly presented.

=

CONCLUSION.

For the reasons stated herein, Respondent respect-

fully urges that the writ prayed for by Petitioner be

denied.

Respectfully submitted,

Burt PINEs,

City Attorney,

MILTON N. SHERMAN,

Chief Assistant City Attorney,

RONALD J. EINBODEN,

Deputy City Attorney,

Attorneys for Respondent,

City of Los Angeles.