Opposition Brief — Mission Oaks Mobile Home Park v. City of Hollister

4 , 3 >

No. 93-756 | DEC 13 1993

Oiiiie CF THe Gia

In the Supreme Cougt” aes

OF THE

United States

OCTOBER TERM, 1993

MISSION OAKS MOBILE HOME PARK,

a California General Partnership,

Petitioner,

vs.

City OF HOLLISTER, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States Court

of Appeals fer the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

DONALD R. LINCOLN

(Counsel of Record)

HENRY E. HEATER

LINDA B. REICH

ENDEMAN, LINCOLN, TUREK & HEATER

600 B Street, Suite 2400

San Diego, California 92101

(619) 544-0123

WILLIAM H. JENNINGS

City Attorney

City of Hollister

375 Fifth Street

Hollister, California 95023

(408) 636-4306

Attorneys for Respondents

City of Hollister, et al.

Bowne of Los Angeles, Inc., Law Printers (213) 627-2200

i

QUESTIONS PRESENTED

1. Whether the Ninth Circuit was correct in affirming the

dismissal of a federal suit on Younger abstention grounds where

the park owner had filed challenges to a mobilehome park space

rent control ordinance in state court alleging the same violations

prior to filing the federal suit?

2. Whether the Ninth Circuit was correct in concluding that a

purported reservation of federal claims filed in the state court over

a year after the state action was commenced was inapplicable to

prevent abstention on Younger grounds?

ii

LIST OF PARTIES

The parties to the proceeding below were the Peti-

tioner, Mission Oaks Mobile Home Park, a California general

partnership and Respondents City of Hollister, Hollister City

Council and Hollister Mobilehome Rent Commission.

TABLE OF CONTENTS

QUESTIONS PRESENTED. .........cccsccccccccees

IE inns 5.9.66 ¥as0 ca ccdncaccccccsecsoce

EE iae x bonccdvacccsscectscssceuneen

Pe SiG x oda Wale np sdesvnicesevaicvees.

CONSTITUTIONAL AND STATUTORY PROVI-

SEUMEUME PAR MIPRIRS nots ccs pecccscccccccee a0 cases

STATEMENT OF THE CASE .........ccccccceccess

L

THE NINTH CIRCUIT'S DECISION FULLY CON-

SIDERED AND CORRECTLY DECIDED THE AB-

RM, SEIS 562s 6.5.60 u F040 ses c0devccccccecs

A. This Case Meets The Criteria For Younger Abstention

Set Forth In This Court’s Decisions ...............

B. The Ninth Circuit’s Ruling Is In Accord With Its Prior

Rulings — Any Contrary Circuit Rulings Are Distin-

SCR Edis ads th de cweacSl ssdse vodsbn dec

iv

II.

THE NINTH CIRCUIT DECISION FULLY CONSID-

ERED AND CORRECTLY DECIDED THE EFFECT

OF THE PURPORTED STATE COURT RESERVA-

A. The State Court “Reservation” Did Not Meet The

Criteria Set Forth In This Court’s Decisions ........ 17

B. The Ninth Circuit Ruling Is In Accord With Its Prior

Rulings And The Majority Of Circuits — Any Contrary

Circuit Rulings Are Distinguishable ................ 18

COINS ov cb uh Sauu 00 sG5h eb epeceteenedanecnes 23

ints do

Vv

TABLE OF AUTHORITIES

Cases

Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598,

OG SOE WEE CIDTOD io vivcsteiceitnnscncan cao cs on 15

Alleghany Corp. v. Haase, 896 F.2d 1046 (7th Cir. 1990)

vacated as moot, sub nom., Dillon v. Alleghany, 499

U.S. 933, 111 S.Ct. 1383, 113 L.Ed.2d 441 (1991)... 17

Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d

MND SRE b sbA be etacraKbdaeeses cick 18, 21

American Int'l Underwriters, Inc. v. Continental Ins. Co.,

843 F.2d 1253 (9th Cir. 1988) ........ maaan ta a 14

Ankerbrandt v. Richards, 504 U.S. —_, 112 S.Ct. 2206,

SED: Ru DG OS CIGGS) ooo os bbc cee cecccul cc... 11

Barnes v. McDowell, 848 F.2d 725 (6th Cir. 1988), cert.

denied, 488 U.S. 1007, 109 S.Ct. 789, 102 L.Ed.2d 780

GRP thie sc enwiedeks Sede csschicthciekncrcwikc. 20

Beltran v. State of California, 871 F.2d 777 (9th Cir.

Ee hide idan sebedvadecudencka saree so) 16, 18

Bradley v. Pittsburgh Board of Education, 913 F.2d 1064

CI oid is lei ere foe. Oaks hk 19, 20

Brillhard v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173,

etcg cog cae eg ae) WERT ey a ae is

Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87

WON £60825 backs ivecccet ealk. 14

Colorado River Water Conservation Dist. y. United States,

424 US. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)

Se kr oR eee Eye Oy oy ee Pp eee 10, 14, 15

Crawley v. Hamilton County Commissioner, 744 F.2d 28

CO Se ois U5 i a de 16

Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct.

1146, 67 L.Ed.2d 287 SEO: Gheastekalvecicnlsis. 15

District of Columbia Court of Appeals v. Feldman, 460

U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (iveay.... 8

vi

TABLE OF AUTHORITIES

CASES

Page

Duty Free Shop, Inc. v. Administracion de Terrenos, 889

P.26 1261 Clot Cit: 19GB) oi ccsceccccavecivetetss: 19

England v. Louisiana State Board of Medical Examiners,

375 US. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964) ..

onsdacseubane ccccccccccccccccccedy Oy Py 18, 19, 20, 21, 22

Fields v. Sarasota Manatee Airport Authority, 953 F.2d

RDS CER Cle TOs c ccccceseccenssatcedacwacews 21

Fresh International Corp. v. Agricultural Labor Relations

Board, 805 F.2d 1353 (9th Cir. 1986) .............. 15

Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306 (ist Cir.

WSO c cre cdvandduectesondcasvedecvonserdevetsake 19

Growe v. Emison,. 507 U.S. ——~, 113 S.Ct. 1075, 122

Les SUP CEE caccckdcesaasasnnacnéesaacaas 15

Hall v. City of Santa Barbara, 833 F.2d 1270 (9th Cir.

1986), cert. denied, 485 U.S. 940, 108 S.Ct. 1120, 99

LMG BE SBE CIGDE) so cc cccccccsccceeescccscasese 13, 14

Hinrichs v. Whitburn, 975 F.2d 1329 (7th Cir. 1992) ... 16

Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d

FIO CEP eED wanbeckeckeuansshsec bodnansenkndaenss 9

Huffman v. Pursue Lid., 420 U.S. 592, 95 S.Ct. 1200, 43

Cab ee REOWUD acne dhecdnncus eae anneh een tes 9

Kentucky West Virginia Gas Co. v. Penn. Public Util.

Comm'n, 791 F.2d 1111 (3rd Cir. 1986) ............ 16

Kercado-Melendez v. Aponte-Roque, 829 F.2d 255 (ist

Cir. 1987), cert. denied, 486 U.S. 1044, 108 S.Ct. 2037,

96D Lateee GE: REDUEE ch eve ncoccevessebaneseaee> 16, 17

Middlesex County Ethics Committee v. Garden State Bar

Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116

CORI 0c nbaxdcksdonbincassausranasennatneneess 9, 10

Mission Oaks Mobile Home Park v. City of Hollister, 788

- FSupp. 1117 (ND. Cal. 1992)... ccccccccccssccecs 1,8

vii

TABLE OF AUTHORITIES

CASES

Page

Mission Oaks Mobile Home Park v. City of Hollister, 989

Ped MED arn oo bn oan cceiscc ccnc,... 2,8

Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59

ee EE ae 18

Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d

SP NE Ait ade 5 0 BUSES c 6% viakls CoeSe kc ihn. 9

Moses H. Cone Memorial Hospital v. Mercury Construc-

tion Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765

CEP news eck abidedkal sich aka heknede 40-00 9

New Orleans Public Service Inc. v. Council of the City of

New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d

SPE iis 11,12

Nollan v. California Coastal Comm'n, 483 U.S. 825, 107

S.Ct. 3141, 97 L.Ed.2d 677 (1987) ................ 7

Ohio Civil Rights Comm'n v. Dayton Christian Schools

Inc., 477 US. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512

GU ORT Ot Bde nuk be 6s 6 b.0< 5444 k bs 6 oéc 606 nc 10

Palomar Mobilehome Park Ass'n v. City of San Marcos,

969 F.2d 362 (9th Cir. 1993) .............000005e 20, 21

Peduto v. City of North Wildwood, 878 F.2d 725 (3rd Cir.

ER otk aati b.a6-0600 185 laN cb 21

Pennell v. City of San Jose, 485 U.S. 1, 108 S.Ct. 849, 99

a fo a ie aa a so dhl, cna vk nins 13

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519,

Sir 10, 11, 22

Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496,

61 S.Ct. 643, 85 L.Ed. 971 (1941) .........0.... 11, 17, 18

Samuels v. Mackell, 401 U.S. 66,91 S.Ct. 764, 27 L.Ed.2d

News < bow « bea UNC hei wkk a ved 8

Schuster v. Martin, 861 F.2d 1369 (5th Cir. 1988), reh’g

denied, 866 F.2d 1417 (Sth Cir. 1989) .............. 19

TABLE OF AUTHORITIES

CASES

Page

Sierra Lake Reserve v. City of Rocklin, 938 F.2d 951 (9th

Cir. 1991) vacated sub nom City of Rocklin v. Sierra

Lake Reserve, ...— US. ...., 113 $C. 31, 121

L.Ed.2d 4 (1992), on remand Sierra Lake Reserve v.

City of Rocklin, 987 F.2d 662 (9th Cir. 1993)...... 7, 14, 22

Temple of Lost Sheep, Inc. v. Abrams, 930 F.2d 178 (2nd

Cir. 1991) cert. denied, US. ——, 112 S.Ct. 193,

SS Re OED oi kdb cine ces csenngcessccas 19

Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 4941, 52

SE nds ot chatdnn baedbeghassaeces

Wicker v. Board of Educ., 826 F.2d 442 (6th Cir. 1987) 20

Williamson County Regional Planning Comm'n v. Hamil-

ton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108,

\o

OF Ree BD SO ab adc cit cecdvecaticdins 13, 21, 22

Yee v. City of Escondido, 503 U.S. —__., 112 S.Ct. 1522,

SP See Ee REED one cnedes ech vbsdancown 12, 14, 15

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d

Gy CRED Fs i ce db wade cede bed we bb ekb 2 ve 4K das Se Passim

Constitutions

California Constitution

IRE 5 0.45 Wade ceuhasnpass sducas os 2,5

ond obs abece seca sthiues nokaas a3

United States Constitution

I cis whcannee cence ssnsiedec baats

Fourteenth Amomdmont ........ccccccccsccccccces 5

Rules

United States Supreme Court

Be EE CER eine diekdentaedasdinewankekins

B08 0S 0 () See

ix

TABLE OF AUTHORITIES

Statutes

California Government Code

ee ainsi s ck cdebecddehaaves

anos banc kans dpsncdeapececsaca

California Civil Code

United States Code, Title 28

CE

United States Code, Title 42

MS Goa Wie kv aki ody nce ns cos daneneedncnrs

Textbooks

GSMOL Mobilehome Rent Stabilization Ordinance Hand-

book, (Golden State Mobilehome Owners League, Inc.,

ist Eid; 1993), Appendix B.... 5. cc ccccccccccsvcces

Hirsch & Hirsch, “Legal Economic Analysis of Rent

Controls in a Mobilehome Context: Placement Values

and Vacancy Deconirol,” 35 U.C.L.A. L. Rev. 399

ee SNe ab ois cARGSAS ba Cikc dd cca eo a ck con

4,12

3, 12

13

ee r.

> is y

a Oe a a

No. 93-756

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1993

MISSION OAKS MOBILE HOME PARK,

a California General Partnership,

Petitioner,

vs.

City OF HOLLISTER, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents, City of Hollister, et al. (“City”) respectfully

request that this Court deny Mission Oaks Mobile Home Park’s

(“Mission Oaks”) Petition for Writ of Certiorari (“Petition”)

seeking review of the United States Court of Appeals for the

Ninth Circuit (“Ninth Circuit”) opinion in this case.

OPINION BELOW

On March 30, 1992, the United States District Court for the

Northern District of California issued its Order granting City’s

Motion to Dismiss and dismissing Mission Oaks’ action. See,

Mission Oaks Mobile Home Park v. City of Hollister, 788 F.Supp.

1117 (N.D. Cal. 1992); see also, Order, Petition at D1-16.

On March 30, 1993, the Ninth Circuit issued its opinion

affirming the Judgment of Dismissal. See, Mission Oaks Mobile

2

Home Park v. City of Hollister, 989 F.2d 359 (9th Cir. 1993); see

also, Slip Opinion, Petition at Al-12.

On August 13, 1993, the Ninth Circuit issued an unpublished

Order denying Mission Oaks’ Petition for Rehearing and rejecting

the Suggestion for a Rehearing En Banc. See, Petition at B1-2.

JURISDICTION

The Ninth Circuit decision was filed March 30, 1993. On or

about April 13, 1993 Mission Oaks filed a Petition for Rehearing.

On August 13, 1993 the Ninth Circuit denied the Petition for

Rehearing. Mission Oaks’ Petition for Certiorari was docketed

with the United States Supreme Court on November 12, 1993.

The jurisdiction of the United States Supreme Court was invoked

under 28 U.S.C. Section 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS AT

ISSUE

The Fifth Amendment to the United States Constitution pro-

vides in pertinent part:

“[N Jor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.”

Title 42, United States Code, Section 1983, provides in perti-

nent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State... subjects, or

causes to be subjected, any citizen of the United States . . . to

the deprivation of any rights, privileges, or immunities se-

cured by the Constitution and laws, shall be liable to the

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

proper proceeding for redress.

The California Constitution, Article I, Section 7, provides in

pertinent part: :

A person may not be deprived of life, liberty, or property

without due process of law or denied equal protection of the

laws...

3

The California Constitution, Article I, Section 19, provides in

pertinent part:

Private property may be taken or damaged for public use

only when just compensation, ... has first been paid to, or

into court for, the owner.

The California Mobilehome Residence Law (Cal. Civ. Code,

Section 798 et seq.) governs many aspects of the relationship

between a mobilehome park owner and a mobilehome owner

residing on a rented space in a mobilehome park. Civil Code,

i 798.55(a) contains legislative justification for the unique

restrictions on terminating a space tenancy (e.g., Civil Code,

Sections 798.55(b), 798.56) and restrictions preventing a park

owner from interfering with or preventing a homeowner from

selling his home to a new purchaser as long as the prospective

homeowner has the financial ability to pay the space rent and does

not have a prior history indicating that he or she will not comply

with the rules and regulations of the park. (E.g., Civil Code,

Section 798.74).

California Government Code Section 50,075 et seq. authorizes

California cities to impose “special taxes” if they are approved by

California Government Code, Section 65,300 et seq. requires

that each city must adopt a comprehensive long term general plan

for the physical development of the City. Among the items which

must be included in the general plan is a housing element.

Government Code, Section 65,580 et seq.

In May 1989, the City of Hollister enacted Ordinance No. 728

establishing mobilehome park space rent stabilization. The Ordi-

nance permits a park owner to automatically increase space rent

annually by 80% of the CPI increase or 8% whichever is less.

Ordinance, Sec. 13B-5. In addition, the park owner has the

4

opportunity to seek additional rent increases in order to ensure

that he receives a “just and reasonable return.” Ordinance, Sec.

13B(1) (F); see e.g., Sec. 13B-30 (Adjustments to Net Operating

Income NOI).

STATEMENT OF THE CASE

A. Background.

The City of Hollister (“City”) is the County seat of rural San

Benito County located approximately 50 miles south of the City

of San Jose in the State of California. City has a population of

approximately 19,000 of which approximately 400 reside in the

mobilehome parks located within its boundaries. Mission Oaks is

by far the largest park with 235 spaces.

In February 1988, the homeowners at Mission Oaks, dissatis-

fied with recent space rent increases asked the City to intervene

and establish some type of rent stabilization. After several months

investigating various alternatives (including long term leases) on

May 1, 1989, the City Council adopted Ordinance No. 728

(“Ordinance”) in order to “produce stability in rent increases for

mobilehome park tenants while recognizing the rights of

mobilehome park owners to receive a just and reasonable return

on their property.” Ordinance, Section 13B-1F.'

Ordinance Section 13B-5 permits a park owner to automati-

cally increase his space rent annually by 80% of the CPI increase,

or 8% whichever is less. It also permits the park owner to apply to

the Rent Commission to further increase rents if necessary to

assure that his annual Net Operating Income increases by at least

40% of the CPI increase rate. Ordinance, Section 13B-30.

Thin Chenin taningis patie sities: thane tea ene tute (e.g.,

homeowner owned parks) and parks with 20 or fewer spaces. Ordinance,

Section 13B-9A. Since the other parks have 16 or fewer spaces, Mission

Oaks is the only park subject to the Ordinance.

B. Procedural History.

1. The Initial State Court Case.

On September 28, 1990, Mission Oaks filed a Complaint in the

state court challenging the constitutionality and legality of Ordi-

nance 728. Mission Oaks Mobile Home Park v. City of Hollister,

et al., San Benito Superior Ct. No. 17362. In addition to alleging

the Ordinance violated Article I, Sections 7 and 19 of the

California Constitution, the Complaint alleged violations of the

Fifth and Fourteenth Amendments of the United States Constitu-

tion and 42 U.S.C. Section 1983 and sought attorneys fees

pursuant to 42 U.S.C. Section 1988. The challenges to the

Ordinance included: (1) inverse condemnation on the grounds

that the Ordinance has no rational basis and is confiscatory;

(2) denial of due process because the Ordinance was allegedly

enacted in the absence of facts required for such enactment, has

no rational basis, and fails to provide procedural due process;

(3) violation of equal protection because the Ordinance fails to

regulate other parks in the City; (4) preemption by the State

Mobilehome Residency Law because the Ordinance purports to

add requirements to a notice of termination; (5) allegations that

the registration fee is an unconstitutional special tax; (6) allega-

tions that the Ordinance violates 42 U.S.C. Section 1983 (federal

taking, due process and equal protection); and (7) allegations

that the Ordinance is invalid because the City’s General Plan fails

to meet statutory requirements. For relief, Mission Oaks sought

injunctive, declaratory relief, and $1,000,000 in damages, attorney

fees and costs.

On January 24, 1991, City answered denying the major allega-

tions and raising various affirmative defenses. Following substan-

tial discovery, in July 1991, Mission Oaks moved for Summary

Judgment.

On October 1, 1991 during the hearing on Mission Oaks’

Motion, but prior to a Court ruling, Mission Oaks filed a docu-

ment entitled “Reservation to Litigate Federal Claims in the

United States District Court” purporting to reserve its rights to

raise and litigate its federal claims in the United States District

Court pursuant to England v. Louisiana State Board of Medical

6

Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).

See, “Reservation,” Petition at C1-2.?

On October 22, 1991 the Superior Court denied Mission Oaks’

Summary Judgment Motion, City’s Cross-Motion for Judgment

on the Pleadings and City’s Motion to strike the purported

“Reservation.” The Superior Court did not rule on the legal effect

of the “Reservation.”

Following additional proceedings, in April 1992 City moved to

stay the proceedings (trial had been set for May 13, 1992)

pending an appellate ruling in a pending state writ proceeding

(discussed infra) which City contended would dispose of the bulk

of Mission Oaks’ claims. On May 7, 1992, the parties entered into

a Stipulation to stay this State Court matter pending appellate

court rulings on the state writ and federal court matters. See,

Stipulation and Order, Petition E1-4.

2. The State Court Writ Proceeding.

In January 1991, Mission Oaks filed a Petition with the City

Rent Commission contending that the 80% CPI permissive space

rent increase was insufficient and seeking a monthly rent increase

of $59 per month. Following hearings in April and May 1991 the

Rent Commission granted Mission Oaks a monthly space rent

increase of $15.86 plus an additional increase of $3.82 per month

for 36 months.

On July 12, 1991, Mission Oaks filed a Petition for Writ of

Mandate in state court challenging the rent increase. Mission

Oaks Mobile Home Park v. City of Hollister, et al., San Benito

Superior Court No. 18223.’ On December 20, 1991 the Superior

On or about October 16, 1991, Mission Oaks filed an “Amended

Reservation” describing in more detail the federal claims it desired to

“reserve.”

*The “Residents of the Mission-Oaks Mobilehome Park” were also

named as real parties-in-interest. The Mission Oaks Homeowners Asso-

ciation answered on the residents’ behalf and participated throughout

the Writ proceeding. Although not named in No. 17362, the Mission

Oaks Homeowners Association also participated in that proceeding.

>

Court denied the Writ finding substantial evidence supported the

Commission’s decision. Mission Oaks appealed and the State

Court of Appeal affirmed in an unpublished decision. Mission

Oaks Mobile Home Park v. City of Hollister, Cal. Ct. of App. 6th

Dist. No. H009622 (Slip Op., June 7, 1993). The California

Supreme Court denied Mission Oaks’ Petition for Review in an

unpublished order. Mission Oaks Mobile Home Park vy. City of

Hollister, Cal. Supreme Ct., No. S033928 (September 1, 1993).*

3. This Federal Action.

On October 30, 1991, Mission Oaks filed suit in federal court

challenging the Ordinance on essentially the same grounds that it

had previously advanced in the state court actions.>

The City moved to dismiss on grounds of abstention pointing

out that the identical issues were being litigated by the same

parties in two prior filed and pending state proceedings. On

return” relying in part on federal law and cases. E.g., Sierra Lake

“The federal suit included all nine claims set forth in state Court

No. 17362 (e.g., inverse condemnation (state — first cause of action;

federal — fourth claim); due process (state — second cause of action;

federal — second claim); equal protection (state — third cause of ac-

tion; federal — third ciaim); preemption (state— fourth cause of

action; federal — sixth claim); unconstitutional special tax (state —

fifth cause of action; federal — seventh claim); violation of 42 U.S.C.

Section 1983 (state — sixth cause of action; federal — fifth claim);

preliminary and permanent injunction relief (state — seventh cause of

action; federal — eighth claim); declaratory relief (state — eighth cause

of action; federal — ninth claim); general plan invalidity (state — ninth

cause of action; federal — tenth claim). In addition, the federal action

included as its first claim Mission Oaks’ claim that the action of the

Rent Commission (the subject of the state writ proceeding No. 18223)

was a violation of Procedural Due Process.

March 30, 1992, the District Court (Hon. James Ware, United

States District Judge) issued its opinion dismissing the complaint

on Younger [Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27

L.Ed.2d 669 (1971)] abstention grounds. See, Mission Oaks

Mobile Home Park v. City of Hollister, supra, 788 F.Supp. 1117;

Petition at D1-16. The Ninth Circuit affirmed (Mission Oaks

Mobile Home Park v. City of Hollister, supra, 989 F.2d 359,

Petition at Al-12) and also denied Mission Oaks’ Petition for

Rehearing and er for Rehearing En Banc. Petition

at B1-2.

WHY THIS WRIT SHOULD BE DENIED

Mission Oaks apparently bases its argument for granting a Writ

of Certiorari on Supreme Court Rule 10.1(a) and (c) contending

that the Ninth Circuit decision conflicts with several other Circuit

rulings. In fact the Ninth Circuit decision is consistent with this

Court’s prior rulings and the other Circuit rulings are cither

clearly distinguishable or based upon erroneous reasoning.

I

THE NINTH CIRCUIT’S DECISION FULLY CONSID-

ERED AND CORRECTLY DECIDED THE ABSTEN-

TION ISSUE .

A. This Case Meets The Criteria For Younger Abstention

Set Forth In This Court’s Decisions.

In Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 27 L.Ed.2d

669 (1971), this Court held that a federal suit seeking to enjoin®

state criminal proceedings would violate “the national policy

forbidding federal courts to stay or enjoin pending state court

proceedings except under special circumstances.”

‘In an accompanying footnote, this Court held that in such circum-

stances declaratory relief is also improper. 401 U.S. at 41n.2. See also,

Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971).

9

Over the past two decades this Court has extended Younger to

also prevent federal court interference with pending state civil

cases. See, ¢.g., Huffman v. Pursue Lid., 420 US. 592, 604, 95

S.Ct. 1200, 43 L.Ed.2d 482 (1975) (State nuisance action which

was described as being “in aid of and closely related to” a

criminal proceeding); Juidice v. Vail, 430 U.S. 327, 334, 97 S.Ct.

1211, 51 L.Ed.2d 376 (1977) (Civil contempt for failure to

appear for state court deposition emphasizing a state’s interest in

its contempt process); Trainor v. Hernandez, 431 U.S. 434, 444,

97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (Civil action to return

fraudulently obtained welfare payments indicating “the principles

ence by a federal court with an ongoing civil enforcement ac-

tion”); Moore v. Sims, 442 U.S. 415, 435, 99 S.Ct. 2371, 60

L.Ed.2d 994 (1979) (State proceeding concerning the custody of

abused children, emphasizing the compelling state interest in

The importance of the state interest in its proceeding was

further stressed in Middlesex County Ethics Committee v. Garden

State Bar Ass'n, 457 US. 423, 431-32, 102 S.Ct. 2515,

73 L.Ed.2d 116 (1982), when this Court applied Younger to bar a

federal court injunction against a pending state proceeding to

discipline an attorney and stated:

[w]here vital state interests are involved a federal court

should abstain ‘unless state law clearly bars the interposition

of the constitutional claims’... ‘{TJhe . . . pertinent inquiry

is whether the state proceedings afford an adequate opportu-

nity to raise the constitutional claims.

This Court then set forth a three pronged test:

first, do [the] state [proceedings] ... constitute an ongoing

state judicial proceeding; second, do the proceedings impli-

cate important state interests; and third, is there an adequate

opportunity in the state proceedings to raise constitutional

challenges.’ 457 U.S. at 432.

"See also, Moses H. Cone Memorial Hospital v. Mecury Construction

Corp., 460 U.S. 1, 26, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (This

il

10

In Ohio Civil Rights Comm’ v. Dayton Christian Schools Inc.,

477 US. 619, 627, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), this

Court applied Younger to state administrative proceedings charg-

ing Dayton with sex discrimination holding Younger applies

“to state administrative proceedings in which important state

interests are vindicated, so long as in the course of the

proceedings the federal plaintiff would have a full and fair

opportunity to litigate his constitutional claims.”*

This Court also noted that the state administrative proceedings

“began before any substantial advancement in the federal action

and involve an important state interest.” 477 U.S. at 627n.2.

In Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 107 S.Ct. 1519, 95

L.Ed.2d 1 (1987), Younger was further extended to civil disputes

between two private parties. Pennzoil sued Texaco in the state

courts for alleged interference with a contract to purchase Getty

Oil Co. After Pennzoil received a jury verdict, but before Judg-

ment was entered, Texaco filed a civil rights suit in federal district

court seeking to enjoin the Judgment.

This Court reversed a federal court injunction, pointing out that

Younger applied “not only when the pending state proceeding are

criminal, but also when certain civil proceedings are pending, if

the State’s interest in the proceeding are so important that

exercise of the federal judicial power would disregard the comity

Court indicated that the adequacy of the state court proceeding to

protect the federal plaintiff rights was also an important factor under a

Colorado River [Colorado River Water Conservation Dist. v. United

States, 424 U.S. 800, 817-818, 96 S.Ct. 1236, 47 L.Ed. 2d 483 (1976) ]

abstention analysis).

*This Court pointed out that even if the constitutional claims could

not be raised directly in the administrative action it would be sufficient if

“constitutional claims may be raised in state-court judicial review of the

administrative proceeding.” 477 U.S. at 629.

aia

ll

between the States and the National Government.” 481 U.S. at

11.

In Pennzoil, this Court also pointed out that abstention may

avoid unwarranted determination of federal constitutional ques-

tions because the state courts may resolve the issue on state

statutory or constitutional grounds.’ 481 U.S. at 11-12. After

reemphasizing the importance of the state interest in enforcing its

judgments (481 U.S. at 13-14) this Court held that Texaco had

not met the burden of showing the inadequacies of the Texas state

court procedural protection. 481 U.S. at 14-15.

In New Orleans Public Service Inc. v. Council of the City of

New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298

(1989), this Court further explained when Younger abstention is

appropriate. The case involved a city utility rate order which was

allegedly preempted by federal law. This Court pointed out that

Younger applies even if there is a federal preemption claim

(491 U.S. at 365), that the state clearly had a substantial interest

in the pending proceedings (Ibid) and that there was no showing

that the City’s rate order was “flagrantly” unlawful. 491 U.S. at

367. However, it explained that Younger did not extend to

proceedings not “judicial in nature” (491 U.S. at 370), and found

the rate making proceeding to be “legislative” rather than “judi-

cial” and therefore not the type of proceeding to which Younger

applies (because there was no interference with an ongoing

judicial proceeding).'' 491 U.S. at 372.

*While relying on Younger, this Court pointed out “[tJhe various

types of abstention are not rigid pigeon holes into which federal courts

must try to fit cases.” 481 U.S. at 110.9.

“The Court recognized that this consideration is very similar to that

raised in Pullman [Railroad Comm'n of Texas v. Pullman Co.,

312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) } abstention cases. See,

481 USS. at. 11n9.

"'See also, Ankerbrandt v. Richards, 504 U.S. ____, 112 S.Ct. 2206,

119 L.Ed.2d 468, 485 (1992), this Court reaffirmed in a child abuse

case that Younger abstention was inapplicable “when no state proceed-

ing was pending nor any assertion of important state interests made.”

12

Applying the criteria set forth in this Court’s Younger deci-

sions, it is apparent that the Ninth Circuit correctly affirmed the

District Court’s abstention:

1. There is no question that the state court proceedings

here were both “judicial” and “ongoing” at the time of the

abstention. ~

2. Both state court actions were filed prior to this federal

action. The state Complaint in No. 17362 was filed in

September 1990 and the state Writ proceeding in No. 18223

was filed in July 1991. This federal action was not filed until

October 1991.

3. At the time the abstention decision was made (March

30, 1992), there has been no activity in the federal action

other than the filing of the Complaint and the Motion to

Dismiss. In contrast by that time in state No. 17362, the

Court had already ruled on various motions including Sum-

mary Judgment and Judgment on the Pleadings, substantial

discovery had occurred and the case had been set for a May

1992 trial. Meanwhile, in state No. 18223 the Court had held

a hearing on Mission Oaks’ Writ Petition, denied the Writ,

and Mission Oaks had already appealed the result to the

state intermediate appellate court.

4. Several of the claims in the federal suit were based on

alleged violations of state laws (¢.g., Sixth Claim — preemp-

tion by State Mobilehome Residency Law, California Civil

Code Sections 798 et seq.; Seventh Claim — “special tax”

under California Government Code Section 50,077; Tenth

Claim — General Plan under California'Government Code

Sections 65,300 et seq.). Clearly these issues might be

mooted by the state court’s determination of pertinent state

law.

5. The State of California clearly believes that

mobilehome park regulation is important. See, Cal. Civ.

Code Sections 798 et seq. (Mobilehome Residency Law);

see also, Yee v. City of Escondido, 5303 US. ——

112 S.Ct. 1522, 118 L.Ed.2d 153, 163 (1992) (This Court

pointed out California’s legislature had recognized the need

13

of mobile home owners for “unique protection from actual or

constructive eviction”).

Mobilehome space rent control is manifestly an important

issue in California. See, ¢.g., Hirsch & Hirsch, “Legal Eco-

nomic Analysis of Rent Controls in a Mobilehome Context:

Placement Values and Vacancy Decontrol,” 35 U.C.L.A.

L. Rev. 399, 407-411 (1988), indicating mobilehome rent

control exists in over 75 California jurisdictions. '?

In contrast, there is no specific federal statutory law

governing mobilehome parks and mobilehome space rent

control. While federal courts have been involved in several

cases challenging the validity of local mobilehome rent

control ordinances (see ¢.g., Hall v. City of Santa Barbara,

833 F.2d 1270 (9th Cir. 1986), cert. denied, 485 U.S. 940,

108 S.Ct. 1120, 99 L.Ed.2d 281 (1988)), there is no ques-

tion that the bulk of the cases have been brought in the state

courts and therefore the state courts may have developed

more expertise in dealing with these issues. See, ¢.g., Yee v.

City of Escondido, supra, (affirming state court mobilehome

rent control decision and disapproving Hall, supra); see also,

Pennell v. City of San Jose, 485 U.S. 1, 108 S.Ct. 849, 99

L.Ed.2d 1 (1988) (Upholding state court rent control

ruling).

6. There is little question that the state court proceedings

provide Mission Oaks with an adequate opportunity to raise

the federal issues. In fact, Mission Oaks itself chose to raise

all’? the federal issues in its original state court action and

'? A more recent listing The GSMOL Mobilehome Rent Stabiliza-

tion Ordinance Handbook, (Golden State Mobilehome Owners League,

Inc. ist Ed. 1993), Appendix B, identifies some 92 local jurisdictions in

California with mobilehome rent control.

Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126

(1985), fails to adequately explain why it also initially filed its federal

due process and equal protection claims in state court.

as

writ proceeding. Mission Oaks’ purported reliance on Sierra

Lake Reserve v. City of Rocklin, 939 F.2d 951, 955 (9th Cir.

1991), to establish the inadequacy of the state court proce-

dures, fails to emphasize that this Court vacated that deci-

sion in light of Yee v. City of Escondido, supra. See, City of

Rocklin v. Sierra Lake Reserve, 503 U.S__, 113 S.Ct. 31,

121 L.Ed.2d 4 (1992)."

Here where all the relevant factors’ support abstention, it is

clear that the Ninth Circuit was correct in ordering abstention.

‘On remand, the Ninth Circuit admitted that in fact the “[t]wo

recent state court opinions [that] refused to follow our decision in Hall .

. . have proved prescient.” Sierra Lake Reserve v. City of Rocklin, 987

F.2d 662, 663 (9th Cir. 1993).

'SOther factors which have been utilized by this Court under other

abstention doctrines also support the decision to abstain. For example, it

could also be argued that since both Mission Oaks and City are located

in Hollister the federal forum in San Jose is more “inconvenient.” See,

Colorado River Water Conservation Dist. v. United States, supra, 424

U.S. at 819 (Inconvenience of federal forum is a factor in abstention

under that analysis). Similarly abstention in favor of the state courts will

judicial administration. See, Colorado River, supra, 424 U.S. at 819

(Avoidance of piecemeal litigation is also a relevant factor). To the

extent this case seeks declaratory relief (see ninth claim) where there is

a pending adequate state court proceeding and/or would be disruptive of

state efforts to establish a coherent policy with respect to matters of

substantial public concern (e.g., “fair return”), abstention is also re-

quired under Brillhard v. Excess Ins. Co., 316 U.S. 491, 495, 62 S.Ct.

1173, 86 L.Ed. 620 (1942), and Burford v. Sun Oil Co., 319 U.S. 315,

63 S.Ct. 1098, 87 L.Ed. 1424 (1943). Finally, as the District Court

pointed out (see, 788 F.Supp. at 1122, Petition at D14), Younger

abstention is appropriate in cases where state court plaintiffs are at-

tempting to “shield themselves” from state court enforcement efforts or

are anticipating adverse state court rulings. See also, American Int'l

Underwriters, Inc. v. Continental Ins. Co., 843 F.2d 1253, 1259 (9th Cir.

1988) (“forum shopping may be considered as one of the relevant

factors in deciding whether to abstain under Colorado River).

15

B. The Ninth Circuit’s Ruling Is In Accord With Its Prior Rul-

ings — Any Contrary Circuit Rulings Are Distinguishable.

In a valiant attempt to create the appearance of a conflict

among the Circuits, Mission Oaks contends that several Circuits

have refused to apply Younger to cases where the federal plaintiff

also initiated the state proceedings. Petition at 13-16.

Initially it should be pointed out that Mission Oaks never raised

this issue before the Ninth Circuit and therefore it is respectfully

submitted this Court should not entertain it. See, e.g., Adickes v.

S.H. Kress & Co., 398 U.S. 144, 147n.2, 90 S.Ct. 1598, 26

L.Ed.2d 142 (1970); Delta Air Lines, Inc. v. August, 450 U'S.

346, 362, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981). Cf., Yee v. City

of Escondido, supra, 118 L.Ed.2d at 168-170 (This Court refused

to consider a due process challenge because it was not raised or

addressed below but did consider a regulatory taking challenge

stating it was not a separate claim but merely a separate argument

relating to taking).

While this Court may not yet have explicitly applied Younger

abstention to a case where the prior pending state action was also

initiated by the federal plaintiff, it has applied abstention in

similar circumstances. For example, in Growe v. Emison, 507

U.S. ——, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1992), this Court

reviewed the propriety of a federal district court pursuing reappor-

tionment of state legislative and federal congressional districts in

the face of prior filed state court litigation seeking similar relief.'*

Albeit without specifically citing Younger (see, 122 L.Ed.2d at

399) this Court ruled that the federal court had erred in not

deferring to the state court’s plan. See, 122 L.Ed.2d at 401.

In any event, the Ninth Circuit has interpreted Younger to

apply where the prior state action was also initiated by the federal

plaintiff. See, e.g., Fresh International Corp. v. Agricultural Labor

Relations Board, 805 F.2d 1353, 1355 and 1360n.8 (9th Cir.

1986) (Court applied Younger abstention in case where the

‘Although the federal suit was originally filed by a separate group of

plaintiffs, the original state plaintiffs intervened. See, 122 L.Ed.2d at

396-97.

16

federal plaintiff had initiated state court review prior to filing the

federal action).

Beltran v. State of California, 871 F.2d 777 (9th Cir. 1988), is

even clearer. There the federal plaintiffs first filed a declaratory

action in state court alleging that a state statute was unconstitu-

tional (871 F.2d at 779) and then “[i]n the midst of the state

ings” filed a second declaratory judgment action in federal

court. Jd. at 781. On these facts, the Court, after noting the state

proceedings were “ongoing” at the time the federal complaint was

filed, ruled the trial court erred when it failed to abstain on

Younger grounds.

In contrast to these Ninth Circuit cases, the bulk of the cases

relied upon by Mission Oaks (Petition at 14-15) involved situa-

tions where Younger abstention was clearly inapplicable and

therefore any statements concerning its inapplicability to prior

state suits brought by the federal plaintiff were dicta.

In Kercado-Melendez v. Aponte-Roque, 829 F.2d 255 (ist Cir.

1987), cert denied, 486 U.S. 1044, 108 S.Ct. 2037, 100 L.Ed.2d

621 (1988), the federal plaintiff never initiated a state court

action (see, 829 F.2d at 259) and therefore there was no ongoing

state action to which Younger could apply. In Kentucky West

Virginia Gas Co. v. Penn. Public Util. Comm'n, 791 F.2d 1111

(3rd Cir. 1986), the primary issue was whether the Natural Gas

Act (15 U.S.C. Section 717 et seq.) or the Natural Gas Policy

Act of 1978 (15 U.S.C. Section 3301 et seq.) preempted the local

state law. In that context the state’s interest was overwhelmed by

the federal interest in regulating interstate natural gas rates. 791

F.2d 1116. In Crawley v. Hamilton County Commissioner, 744

F.2d 28 (6th Cir. 1984), while there had been a prior state court

case it had been inactive for almost a year when the federal suit

was filed, therefore again there was no “ongoing” state suit. See,

744 F.2d at 31.

In Hinrichs v. Whitburn, 975 F.2d 1329 (7th Cir. 1992), the

central issue (see, 975 F.2d 1333) was whether the federal

plaintiff had exhausted her state administrative remedies, and the

case was dismissed on ripeness grounds. The Court denied ab-

stention because “no prosecution had been initiated against plain-

ea

17

tiff.” Ibid.'” To the extent this language indicates that Younger

only applies to a criminal proceeding it is clearly wrong.

In summary, it is clear that Mission Oaks is precisely the type

of case to which Younger abstention should apply. Abstention

here is totally consistent with the notion of “comity,” “Our

Federalism,” and “avoid[s] a duplication of legal proceedings and

legal sanctions where a single suit would be adequate to protect

the rights asserted.” Younger v. Harris, supra, 401 U.S. at 44.

THE NINTH CIRCUIT DECISION FULLY CONSIDERED

AND CORRECTLY DECIDED THE EFFECT OF THE

PURPORTED STATE COURT RESERVATION

A. The State Court “Reservation” Did Not Meet The Criteria

Set Forth In This Court’s Decisions.

In Railroad Comm’n of Texas v. Pullman Co., supra, 312 U.S.

496, this Court held that a federal district court should refrain

from deciding a case in which a state action is challenged in

__ federal court as contrary to the federal constitution if there are

unsettled questions of state law that may be dispositive of the case

and therefore avoid the need for the federal court deciding the

federal constitutional question. This abstention doctrine became

known as “Pullman abstention.”

One potential problem with “Pullman abstention” is that a

plaintiff who wants a federal district court to decide his federal

"The Hinrichs Court indicated that in denying abstention it had

relied (see, 975 F.2d at 1333) upon language in Alleghany Corp. v.

Haase, 896 F.2d 1046, 1053 (7th Cir. 1990), vacated as moot, sub nom.,

Dillon v. Alleghany, 499 U.S. 933, 111 S.Ct. 1383, 113 L.Ed.2d 441

(1991). The facts of Alleghany are similar to Kercado-Melendez, supra,

when the insurance commissioners-of Wisconsin and Indiana refused to

allow it to acquire stock in another insurance company, Alleghany could

have chosen to seek review in the state courts but did not do so. See, 896

F.2d at 1049. Under the circumstances, Younger was inapplicable

because there was no pending state court proceeding.

18

claims may be compelled under Pullman to have these claims

first adjudicated in the state court.

In England v. Louisiana State Board of Medical Examiners,

supra, 375 U.S. at 419-21, this Court addressed the problem by

providing that such a plaintiff could with a proper reservation in

the subsequent state court action preserve his right to have his

federal claims adjudicated by the federal court after the state

court had made its decision.

From the beginning this Court has limited “England reserva-

tions” to cases where a prior filed federal court action was stayed

under a Pullman abstention ruling pending the resolution of the

later filed state action. See, e.g., District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 480n.14, 103 S.Ct. 1303, 75

L.Ed.2d 206 (1983) (Court applied res judicata effect of state

decision to later filed federal action despite plaintiff's notice that

he was prepared to pursue federal claims in federal court if his

petition was denied); Allen v. McCurry, 449 U.S. 90, 101n.17, 101

S.Ct. 411, 66 L.Ed.2d 308 (1980) (Court held decision of state

court on federal constitutional claim was res judicata and distin-

guished England by pointing out that it involved a prior federal

court abstention); see also, Montana v. United States, 440 U.S.

147, 163, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (Court indicated

the England doctrine is limited to cases where there has been a

prior federal court abstention and a federal litigant is compelled to

seek state court determination of claims).

Clearly under this Court’s prior rulings Mission Oaks purported

“Reservation” in a prior filed state action does not meet the

England criteria. —

B. The Ninth Circuit Ruling Is In Accord With Its Prior

Rulings And The Majority Of Circuits — Any Contrary

Circuit Rulings Are Distinguishable.

Both the District Court (788 F.Supp. at 1122-23, Petition at

D15-16) and the Ninth Circuit (989 F.2d at 362, Petition at

All) concluded that the state court “Reservation” was inappro-

priate in the context of Younger abstention. Again their decision

accords with prior Ninth Circuit decisions. See, e.g., Beltran v.

State of California, supra, 871 F.2d at 783n.8 (“When Younger

19

abstention applies, federal plaintiffs cannot reserve their federal

claims from state court adjudication for later decision by the

federal courts”).

Most circuits clearly agree with the Ninth Circuit’s approach.

See, e.g., Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306, 311-12

(ist Cir. 1986) (The fact that the defendant in a state court

action had continually stated that it was reserving a federal

question was of no avail. Court held England federal claims

reservation is available only “by properly invoking the jurisdiction

of the federal court in the first instance”); Schuster v. Martin, 861

F.2d 1369, 1373-74 (Sth Cir. 1988), reh’g denied, 866 F.2d 1417

(Sth Cir. 1989) (Court determined that plaintiff's filing of a state

court document purporting to reserve all his federal claims under

England was ineffective in a case “where the plaintiff voluntarily

chooses to pursue the state action-first”); Duty Free Shop, Inc. v.

Administracion de Terrenos, 889 F.2d 1181, 1183 (1st Cir. 1989)

(England state court federal claims reservation is ineffective if the

federal court abstention is not on Pullman grounds, ¢.g., Younger

abstention);"* Temple of Lost Sheep Inc. v. Abrams, 930 F.2d

178, 182-83 (2nd Cir. 1991), cert denied, tt EES Fb

S.Ct. 193, 116 L.Ed.2d 153 (1991) (In a case where ‘the C Court

abstains under Younger a federal plaintiff may not avoid preclu-

sion by reserving in the state court its federal claims following

Younger abstention).

The cases relied upon by Mission Oaks (Petition at 21) are

distinguishable. In Bradley v. Pittsburgh Board of Education, 913

F.2d 1064 (3rd Cir. 1990), a teacher dismissal case, Bradley filed

suit in federal court while the local Board was considering the

issue and before initiating state court proceedings. See, 913 F.2d

at 1068. In that context and with the federal suit already on file,

Bradley was dismissed by the Board. In order to utilize the

administrative procedure provided by state law, Bradley was

required to appeal the dismissal to the Secretary of Education.

Before the Secretary and later in state court, Bradley expressly

"In Duty Free Shop the purported England Reservation had been

made nine days before the scheduled hearing (see, 889 F.2d at 1182)

not on the day of the hearing as here.

20

reserved under England his right to litigate his federal claims in

federal court. Ibid. Bradley is distinguishable because (1) Brad-

ley first filed in federal court; (2) defendants did not object to

Bradley’s express reservation; and (3) the Secretary expressly

honored the reservation. 913 F.2d at 1072.

In Barnes v. McDowell, 848 F.2d 725 (6th Cir. 1988), cert.

denied, 488 U.S. 1007, 109 S.Ct. 789, 102 L.Ed.2d 780 (1989),

the primary issue was whether a prior state judgment foreclosed a

later filed federal action. The Court applying Kentucky state law

preclusion rules!? held that because the causes of action in the

two suits were not the same the district court erred in granting

summary judgment.

The Court discussed abstention only in passing, noting that the

District Court had ordered “the federal litigation to be held in

abeyance” until the state court proceedings were resolved. 848

F.2d at 728. It discussed the “Reservation” of federal claims only

in connection with its discussion of another case (Wicker v. Board

of Educ., 826 F.2d 442 (6th Cir. 1987)) where it explained that

after the federal plaintiff in Wicker had first filed suit in federal

court he had filed suit in state court and after the federal

abstention order had filed an England Reservation in state court.

848 F.2d at 731. The Court pointed out that it had reversed the

dismissal of the Wicker suit on res judicata grounds because “it

was Clear from the record in that case that the state courts never

reached the constitutional issue.” 848 F.2d at 732.

''In general, Kentucky courts apply the doctrine of issue preclusion or

collateral estoppel “only as to matters which were necessarily involved

and determined in the former action, and is not conclusive on matters

which were immaterial or unessential to the determination of the prior

action or which were not necessary to uphold the judgment.” 848 F.2d at

730-731.

In contrast, under California law issue preclusion applies not only to

those claims actually litigated in a prior proceeding, but also those which

could have been litigated as part of that cause of action. See, Palomar

Mobilehome Park Ass'n v. City of San Marcos, 989 F.2d 362, 365 (9th

Cir. 1993).

21

Here, of course, the suits were first filed in state court and there

is no showing that state courts have not or will not decide the

C. Mission Oaks’ Reliance On The Fields Case Is Misplaced.

In a final attempt to create a cognizable conflict, Mission Oaks

argues that its England Reservation should nevertheless apply

because it was not voluntarily in state court.

Initially, it should be pointed out that in regard to the applica-

tion of the doctrine of res judicata to involuntary plaintiffs, this

Court in Allen v. McCurry, supra, stated:

There is, in short, no reason to believe that Congress in-

tended to provide a person claiming a federal right an

unrestricted opportunity to relitigate an issue already decided

in state court simply because the issue arose in a state

proceeding in which he would rather not have engaged at all.

449 US. at 104.

See also, Peduto v. City of North Wildwood, 878 F.2d 725, 729

(3rd Cir. 1989) (The fact that a federal plaintiff was forced to

exhaust state court taking remedies pursuant to Williamson

County Regional Planning Comm. v. Hamilton Bank of Johnson,

473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), does not

mean they were denied due process when the federal court then

dismissed their claims based on res judicata); Palomar

Mobilehome Park Ass'n v. City of San Marcos, supra, 989 F.2d at

365 (Court held that a mobilehome park was barred by res

judicata from bringing a federal action when it had received a full

and fair adjudication of its constitutional claims in a prior state

action).

The case cited by Mission Oaks (Petition at 23-24) as being in

conflict with these rulings (Fields v. Sarasota Manatee Airport

Authority, 953 F.2d 1299 (11th Cir. 1992), is clearly distinguish-

able. In Fields the plaintiffs first filed in state court but raised only

state law issues. See, 953 F.2d at 1302. After the state court

proceedings were over, Fields filed in federal court raising federal

claims. Ibid. The Eleventh Circuit affirmed the District Court’s

22

dismissal because Fields had not adequately preserved his federal

claims. In the course of its discussion, the Court pointed out that

under Eleventh Circuit law a would be federal litigant may

preserve access to a federal forum “despite being unable to rely on

England” (953 F.2d at 1305) by making a formal reservation in

the state court of their intent to bring their federal claims in

federal court. [bid.-The Court indicated that such a reservation is

effective only if (1) the litigant was precluded from filing his or

her suit in federal court in the first instance; and (2) the litigant is

in state court “involuntarily.” Jd. at 1306.

Here, while Mission Oaks may have been forced by the

operation of Williamson County to file its “taking” claim in state

court, nothing required it to do so with all its due process and

equal protection claims. In fact is clear that the Mission Oaks

voluntarily first chose the state court to bring all its claims and

changed its mind only after Sierra Lake was decided and it

perceived it would be more successful in federal court. This is not

the type of decision which an England Reservation is designed to

protect.” The Circuit Court was therefore clearly correct in its

treatment of the purported England “Reservation.”

*This is especially true here, since as in Pennzoil Co. v. Texaco Inc.,

supra (see Justice Marshall’s concurring opinion, 481 U.S. at 23), the

“odor of impermissible forum shopping pervades this case.”

23

CONCLUSION

After initially filing its challenges to the Hollister Ordinance in

State Court, Mission Oaks changed its mind and apparently

believing the federal courts would provide a more favorable forum

refiled the same claims in Federal Court. Under the circum-

stances, this Court should deny Mission Oaks Petition seeking

review of the dismissal of its federal claims on abstention grounds

because it is clear that these decisions were properly made and

this case otherwise fails to warrant review by this Court.”

DATED December 1993.

Respectfully: submitted,

Donald R. Lincoin

(Counsel of Record)

Henry E. Heater

Linda B. Reich

Endeman, Lincoln, Turek &

Heater

600 B Street, Suite 2400

San Diego, California 92101

Telephone: (619) 544-0123

William H. Jennings

City Attorney

City of Hollister

375 Fifth Street

Hollister, California 95023

Telephone: (408) 636-4300

2119 upholding the Commission’s rent decision in the state writ

proceedings the state court necessarily determined that the Ordinance

was valid and did not deprive Mission Oaks of its right to a just and

reasonable return. Since a federal court would have to apply res

judicata/collateral estoppel principles in accord with applicable state law

(see, ¢.g., Allen v. McCurry, supra, 449 U.S. at 95-96), many, if not all,

of Mission Oaks’ claims would be barred.