Opposition Brief — Ohai v. Community Development Commission

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

No. 93-806

OF THE SLBRE ‘

Supreme Court of th the Uniter § States

OCTOBER TERM, 1993

REYNOLDS K. OHAI,

Petitioner,

vs.

COMMUNITY DEVELOPMENT COMMISSION

OF THE CITY OF SANTA FE SPRINGS, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL

SECOND APPELLATE DISTRICT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STEVEN N. SKOLNIK

Counsel of Record

2001 Wilshize Boulevard, Suite 600

Santa Monica, California 90403-5690

(310) 829-9843

Attorney for Respondents

COMMUNITY DEVELOPMENT COMMISSION

OF THE CITY OF SANTA FE SPRINGS and

CITY OF SANTA FE SPRINGS

Bids

i |

headend

—

7. —

——)

—_

i —-«

headhead

cS)

Lawyers Brief Service + Appellate Brief Printers + (213) 613-1013 + (714) 720-1510 4

Sr Cosh

Leyte, Sy ,

No. 93-806

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

REYNOLDS K. OHAI,

Petitioner,

vs.

COMMUNITY DEVELOPMENT COMMISSION

OF THE CITY OF SANTA FE SPRINGS, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL

SECOND APPELLATE DISTRICT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STEVEN N. SKOLNIK

Counsel of Record

2001 Wilshire Boulevard, Suite 600

Santa Monica, California 90403-5690

(310) 829-9843

Attorney for Respondents

COMMUNITY DEVELOPMENT COMMISSION

OF THE CITY OF SANTA FE SPRINGS and

CITY OF SANTA FE SPRINGS

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.............0.c0cceccecceccecceceecee cn. V

RESPONDENT’S BRIEF IN OPPOSITION ...............0c00000.. l

OPENING SUMMARY OF UIT isc ics vtcinacicccccadcce.. l

STATEMENT OF THE CASE........................ paesaweeedians 3

sas wiinciss se capninscsesuounascoeecocvcicccxc: 7

1. The Petition Should Be Denied For Failure

To Comply With This Court’s Rules..................... 7

A. The Petition Fails To Discuss Why

Certiorari Should Be Granted

Pursuant To The Reasons In Rule 10.1 .............. 7

B. The Petition Fails To Show Proper

Presentation Of Any Federal Question

In The State Court System ............................. 8

I]. The Petition Should Be Denied, Because

This Case Does Not Satisfy Any Of

The Criteria For Granting Certiorari...................... 9

A. Dismissal of Petitioner’s Suit Does Not

Conflict With The First English I Decision......... 10

(i)

B. The Dismissal Of Petitioner’s Suit

Presents No Unsettled Federal Question ........... 13

1. No Federal Question Is Raised By

The Application of California’s Pleading

Rules To Petitioner’s Complaint................. 13

a. Dismissal Of A Technically Insufficient

Pleading Involves No Federal Question .... 13

b. Application Of Local Pleading Rules

Is Strictly A Matter Of State Law............ 13

2. Petitioner's Attack On The Pleading Rules

Themselves Presents No Federal Question..... 14

a. Dismissal Of A Technically Insufficient

Pleading Involves No Federal Question .... 14

i. It Is Settled That Such A Dismissal

Does Not Offend The Takings Clause.. 14

ii. Dismissal On The Pleadings

Has No Implications For Any

Federal Right To A Jury Trial ........... 16

ili. Such Dismissal Does Not Offend

The Due Process Clause.................. 17

(ii)

b. No Unsettled Federal Question Is

Presented By The Rule Requiring

Submission Of Proposed Amendments

Prior To Oral Argument On Appeal ......... 18

i. The Petition Fails To Show

That The Rule As Applied

Offends The Takings Clause............. 18

li. It Is Settled That The Rule

As Applied Does Not Offend

The Due Process Clause.................. 18

ii1. The Rule On Its Face Does Not

Offend The Due Process Clause......... 19

. No Federal Question Is Presented

By The Rule Requiring A Pleader

To Explain Allegations In Amended

Pleadings That Contradict

Admissions In Prior Pleadings............... 21

1. The Rule Is A State Law

Matter Over Which This

Court Has No Jurisdiction ............... 21

il. In Any Event, The Petition’s

So-Called “Explanation”

Is Tardy And Inadequate ................. aa

(111)

Page

C. The Dismissal Of Petitioner’s Suit

Implicates No Decisional Conflict Between

California And Other Jurisdictions .................. 23

1. There Is No Conflict Between

California And South Carolina................... 24

a. Both States Employ The

Same Rules Of Pleading ...................... 24

b. There Is No Conflict In The

Treatment Given On Remand To

The First English And Lucas Cases........ 25

2. There Is No Conflict Between

California And The Ninth Circuit................ 27

a. Both Jurisdictions Rely On

The Same Federal Precedents ................ 27

b. The Dismissal Of Petitioner’s

Suit Does Not Conflict With

The Golden Gate Decision.................... 27

3. Because No Interjurisdictional Conflict

Exists, The Petition Fails To Present

Any Equal Protection Questions................. 28

III. Certiorari Is Inappropriate, Because The

Trial Court’s Order Can Be Sustained

On Independent State Grounds .......................05. 29

CARING AIIIIINE 0 iskcccestasissceonssesscacesdussene 29

CUES III oc inscinvivnsocsocendasaeunscustiuaseeeniavecanas 30

(iv)

TABLE OF AUTHORITIES

Supreme Court Cases Page

Aetna Insurance Co. v. Hyde,

BED Gre FP CP iiirnnsnssssccsnseccvnceeusconin 14,15

Agins v. Tiburon,

447 U.S. 255 (1980)..............000000000. 12, 13, 16, 22

Armstrong v. United States,

Pe EP Se ED aiicatstanaceieatavccnsamucciseretaee 16

Atlas Roofing Co. v. Occupational Safety Comm’ n,

Se Whetc ROT Oiivthikecennisctnncocdieccecdacnnces 17

Backus v. Fort Street Union Depot Co..,

ee Sees ey. ED icriacasawinsaneucsuntvoasesacsenael 17

Bauman v. Ross.

BT Weaeic - WE CEE Riicthcstesgsirenctiodecetssduioens 17

Beaumont, S. L. & W. Ry. v. U.S.,

BE Soe: HP COE ona cktis scddcekacuarentancercceduaces .14

Chicago, Burlington &c. R'd v. Chicago,

FEE. Shey WEEE CUI Macdscoscannncecsacvaxtaqcctecséuncteces 17

Commercial Bank v. Rochester.

ee hetis WN CATED Sinks naveuniiccccecasesnosevasccesasns 13

Crane v. Hahlo,

Se ne nn 17

(v)

Denver Stock Yard Co. v. U.S.,

EE nS 1 ee - EE ists in a tn anedundadnanaseneaienvenis 14

Dohany v. Rogers,

Se as | EE Te nedtetidnciuinseasseinecinkninanaaeins 17

First Lutheran Church v. Los Angeles County,

482 U.S. 304 (1987)............ 2, 10-12, 16, 25-27, 29

Glick Brothers Lumber Co. v. Bowles, Price Administrator,

325 U.S. 877,

rehearing denied,

oR ee ios ces id as pink dandanceuaicn 8

Hiawassee Power Co. v. Carolina-Tenn. Co..,

BE ER CE Petictanibtatadasecienncctiiinnnigeuinens 9

Hodel v. Irving,

ee ie Pe eT Bi disenanscant ede xaadinnbenbastoipens 16

Kennemer v. Billington,

a Be Ce Ricki tanaaslcalicibdedusdivasesmasaceans 8

Long Island Water Supply Co. v. Brooklyn,

Spe Se et. 5) SRR ee tem mn oer 17

Louis. & Nash. R. R. v. Higdon,

SE a ii icsnndoniNesnantebietalenas 18

Lucas v. South Carolina Coastal Council,

505 U.S. _, 112 S.Ct. 2886,

ee oS Be wy. ° s Serene 16, 25, 26, 27

(vi)

Lynum Vv. Illinois,

ee Rds IE NN Biccsncatacdsanievaxcactais iseodeacerseets 8

MacDonald, Sommer & Frates v. Yolo County,

477 U.S. 340,

rehearing denied,

BIG UB. 1GSS (198) occ sccccncccesscces ba, 1 86,22

Mental Hygiene Dept. v. Kirchner,

ee RP OE ier dager ceased rien at 9

Missouri Pacific R. Co. v. Norwood,

283 U.S. 249,

modified,

202 UB. GOD (1931). .occvcscscsess: ishipatcaneceleves ees 14

Pacific States Co. v. White,

ee PFE Pic trtttes nncococassisanataccssiciariacs 14

Paschall v. Christie-Stewart, Inc..,

414 U.S. 100 (1973) (per curiam),

rehearing denied,

te I a oka sas cau cluganauvasecceuen 29

Penn Central Transp. Co. v. New York City,

438 U.S. 104, :

rehearing denied,

re I A as sabe cseei tia ccis essence. 16

Price v. Johnston,

334 U.S. 266 (1948), criticized in part in

McCleskey v.Zant,499 U.S. __, _,

111 S.Ct. 1454, 1464, 113 L.Ed.2d 517, 537,

rehearing denied, U.S. _, 111 S.Ct. 2841,

DEF Bee I CRP ED oi de ndscndvisispatseiaatstecenes 20

(vii)

Rockford Life Ins. Co. v. Ill. Dept. of Rev.,

Mee Ve. Bee C19ST bivincs aa cenaneee cents aration 10

Roller v. Murray,

RO Rs | FO MEO Oi cicnacastdsmnsseysceadigasdsacoeanssss 19

United States v. Jones,

OP Whee, ER TR hice kiase on encevarnics sacdanclindonios 17

United States v. Reynolds,

FE ee EE AG Aaa ER baR a bow cs deennauskes 17

Webb v. Webb,

ee Re gon nso acco ead incswaeas 9

Yee v. Escondido,

W5 US. , 112 504. 1522,

RES LeBeG.20- 153 CHOI ZD vociciccsccces.s. 8, 9, 10, 14, 15

Circuit Court of Appeals Cases

Chamberlain v. Ericksen,

744 F.2d 628 (CA8 1984),

cert. denied, 470 U.S. 1008 (1985).....0.e. 20

Coker v. Monaghan Mills,

ee ee | eT ar 24

George W. B. Bryson & Co., Ltd.

v. Norton Lilly & Co., Inc.,

EE Fe AE IA BPO i vs cdavcsdcistnccsenacevscces 20

(vili)

Page

Magnesium Casting Co. v. Hoban,

401 F.2d 516 (CA1 1968),

cert. denied, 393 U.S. 1065 (1969).........00.cccc000. 20

N.L.R.B.v. Local No. 42,

Int. Ass'n of Heat & F.1. & A. Wkrs.,

476 F.2d 265 (CA3 1973)

(op’n sur pet’n for rehearing in banc)................... 20

Shaw v. Boney,

695 F.2d 528 (CA11 1983) (per og) 20

Toquero v.1.N.S.,

956 F.2d 193 (CA9 1992)... ccccccccccccesccees. 20

United States v. Marines,

Doe Fe O82 (CAI 1976) oii ccicccccscsas Sern ne 20

State Court Cases

Ad + Soil, Inc. v. County Comm’ rs,

307 Md. 307, 513 A.2d 893 (1986) ............000000. 21

Bauscher v. City of Freeport,

103 Ill.App.2d 372, 243 N.E.2d 650 (1968).......... 16

Belmar Drive-In Theatre v. Hgw. Com.,

34 Ill.2d 544, 216 N.E.2d 788 (1966) ............ ee

Bentley v. State,

415 So.2d 849 (Fla.App. 1982)......0.0.0..cccece cece. 20

(ix)

Page

Berlin v. Nathan,

64 Ill.App.3d 940, 21 Ill.Dec. 682,

381 N.E.2d 1367 (1978),

appeal denied, 72 Ill.2d 581,

cert. denied, 444 U.S. 828,

rehearing denied, 444 U.S. 974 (1979) ................ 15

Brabham v. City of Sumter,

BEd kes Se, BPO ee 207 CUIGN) ovis cccacconcces 24

Brown vy. Leverette,

£91 BA. O46, 333 S.5-26 GFF C1967) ono scccsesensexs 25

Brown v. School Dist. of Greenville Cty.,

251 SAC. 2a, 105 S26 BIS (19GB) oi ic ssc ccdiesees 24

County of Champaign v. Anthony,

33 Ill.App.3d 466, 337 N.E.2d 8 (1975),

affirmed, 64 Il].2d 532, 1 Ill.Dec. 373,

ae Ee ee EP retkicndedccesscteinnctecns 15

Deasey v. City of Chicago,

412 Ill. 151, 105 N.E.2d 727 (1952).......... 15, 18, 19

Delis v. Sepsis,

9 Ill.App.3d 217, 292 N.E.2d 138 (1972),

overruled in part in

Costello v. Capital Cities Communications,

125 Ill.2d 402, 415-16, 126 IIl.Dec. 919, 924-25,

SS Pe Fas FOOTIE) cesses nscsdcccasscaaris > Ia ip

DiSanto vy. City of Warrenville,

59 Ill.App.3d 931, 17 Ill.Dec. 289,

376 N.E.2d 288, appeal denied,

Ti BRAG GR BEG ei etnticninmiadiscumine 15

(x)

Page

First English Evangelical Lutheran Church

v. County of Los Angeles,

210 Cal.App.3d 1353, 258 Cal.Rptr. 893 (1989),

cert. denied, 493 U.S. 1056 (1990)............ 12, 26, 27

Gasque v. Town of Conway,

194 S.C. 15, 8 S.E.2d 871 (1940),

overruled in part in

McCall v. Batson, 285 S.C. 243, 249,

329 S.E.2d 741, 744 (1985)... 0c ecececcceeeecee. 24

Gilbert v. State of California,

218 Cal.App.3d 234, 266 Cal.Rptr. 891 (1990)...... re

Harvey v. Brewer,

166 Ill.App.3d 253, 116 Ill.Dec. 724,

am eee oe C19B7).............0.0........000. 15, 17

Harvey v. Mackay,

109 Ill.App.3d 582, 65 Ill.Dec. 167,

440 N.E.2d 1022 (1982),

appeal denied, 92 IIl.2d 574 (1983)................ 15,17

In re: Carl G. Smith,

145 Me. 174, 74 A.2d 225 (1950)................. 20, 21

McGann v. Mungo,

287 S.C. 561, 340 S.E.2d 154 (App. 1986)..... 24, 25

Moore v. Spangler,

401 Mich. 360, 258 N.W.2d 34 (1977)................ 21

New Hanover County D.S.S. v. Gore,

288 S.C. 138, 341 S.E.2d 631 (1986)................. 25

(xi)

People ex rel. Hamer v. Bd. of Education,

22 Ill.App.3d 130, 316 N.E.2d 820 (1974),

appeal denied, 57 II1.2d 609 (1975)...............

People v. Ashley,

59 Cal.2d 339, 29 Cal.Rptr. 16,

379 P.2d 496, cert. denied

sub nom. Ashley v. California,

WP SR ae LO VO top eke incs acco tinckcapnerie teas

Richards vy. Leimbacher,

131 [ll.App.2d 775, 267 N.E.2d 523,

appeal denied, 47 I]].2d 592 (1971)...............

Sabatinelli v. Travelers Ins. Co.,

369 Mass. 674, 341 N.E.2d 910 (1976)........

State v. Lewis,

104 N.M. 218, 719 P.2d 445 (App. 1986).....

State v. Smith,

199 Neb. 368, 259 N.W.2d 16 (1977)..........

State v. Smith,

139 Vt. G53, 427 A.2d 383 (198))..............

State v. Warner,

594 So.2d 397 (La.App. 1991)..ccccccccccseees

State Bk. of Lombard vy. Segovia,

49 Ill.App.3d 682, 7 Ill.Dec. 527,

SOG TBO Ge CURT iiisioeciseseinencce

(xii)

Page

saayae 20

eee ener “~

Page

State ex rel. Reed v. Schwab,

287 Ore. 411, 600 P.2d 387,

24 A.L.R.4th 422 (1979), cert. denied sub nom.

Reed v. Schwab, 444 U.S. 1088,

rehearing denied, 445 U.S. 955 (1980) ...........0.... 21

Vaughan v. Kalvas,

288 S.C. 358, 342 S.E.2d 617 (App. 1986) .......... 24

Webb vy. State,

3a) 0.W.20 700 (lex.Crim. 1976)................00c.. 21

Whaley v. Lawton,

eR gee See sR RO OL Eg Lt S| ne 24

Zamouski v. Gerrard,

1 Ill.App.3d 890, 275 N.E.2d 429 (1971)............. 16

Federal Constitution

ee | 1, 3, 10, 11, 14, 30

Fourteenth Amendment ................... Lap ee a ee

Federal Statutes

po OR? cae Se | er ree REnGre ens eee ee ee 9

Supreme Court Rules

PN Ste cac cu en cies. tou oneal ics bases 2, 7, 8,9, 10

I eo eC rea kr ee 28

Ee RAE RIED SS Ay MN ar to Me AEM NET Pes 10

REESE 28 RRO Ee, See TS ay ere tol ai cP 8

NE WE I ake Gacuware canena se sixaliasees a opuad aaa a 7

eS RRS Bilge Ase AS ar ANN (TEE cas 7 NN eg Cae aU 8

RESPONDENTS’ BRIEF IN OPPOSITION

TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE

JUSTICES OF THE UNITED STATES SUPREME COURT:

Respondents COMMUNITY DEVELOPMENT COMMISSION

OF THE CITY OF SANTA FE SPRINGS and CITY OF SANTA

FE SPRINGS (hereafter “Respondents”) respectfully request

denial of the petition for ceitiorari filed herein by petitioner

REYNOLDS K. OHAI (hereafter Petitioner’).

OPENING SUMMARY OF ARGUMENT

Petitioner asks this Court to review a unanimous,

unpublished decision of the California Court of Appeal. The

decision affirms a trial court order which dismissed

Petitioner’s inverse condemnation suit at the pleadings stage.

In the Court of Appeal, Petitioner argued that his

pleadings state a cause of action for monetary damages

arising from a temporary regulatory taking of his land. The

Court of Appeal rejected that argument in a written opinion.

As the opinion explains, Petitioner’s pleadings contain only

one allegation of government action that deprived him of

Substantially all use of his land, but that allegation is an

obvious sham.

Petitioner asserts that California’s disposition of his case

raises issues under the Fifth and Fourteenth Amendments to

the federal Constitution. On that basis, he now petitions this

Court for certiorari. There are a variety of reasons why his

petition should be denied.

First, it fails to comply with this Court’s rules

governing the contents of such petitions. It lacks any

discussion as to why certiorari is appropriate given the

criteria set forth in this Court’s Rule 10.1. Pages 7-8 of this

brief, post. The petition also omits the required showing

that Petitioner raised federal questions at some stage of the

California appellate process. Pages 8-9 of this brief, post.

In addition to being procedurally flawed, the petition is

substantively unmeritorious in every respect. For example,

there is no validity to Petitioner’s claim that the disposition

of his suit conflicts with this Court’s decision in First

Lutheran Church v. Los Angeles County, 482 U.S. 304

(1987) (First English I). Instead, the two cases are readily

distinguishable. In First English I, this Court granted

certiorari because the Court of Appeal rejected a landowner’s

“temporary taking” theory of monetary damages without first

considering whether a regulatory taking had occurred. In the

present case, however, the Court of Appeal did not dispose

of Petitioner’s suit until after it expressly determined that

there was no regulatory taking of Petitioner’s land. Pages _

10-12 of this brief, post.

Petitioner challenges the Court of Appeal’s

determination that no regulatory taking occurred. He admits,

however, that this determination resulted from the

insufficiency of his allegations under California’s “technical”

rules of pleading. The Court of Appeal’s determination thus

fails to present any federal question, because it involves only

matters of state pleeding practice. Page 13 of this brief,

post. Similarly, no federal question is implicated by

Petitioner’s contention that the California courts failed to

follow their own pleading rules when evaluating his case.

Page 13 of this brief, post.

Petitioner also attacks the California rules of pleading

themselves. This attack presents no unsettled federal

questions, though. It is well established that a takings suit

can be dismissed at the pleadings stage without offending

either the Fifth or Fourteenth Amendments. Pages 14-17 of

this brief, post. The petition also fails to show that

California courts deprived Petitioner of any federally

protected right when they denied him leave to amend his

pleadings for a third time. Pages 18-21 of this brief, post.

And no federal question arises from California courts’

refusal to accept the truth of Petitioner’s sham allegations.

Pages 21-23 of this brief, post.

The Petition fails to demonstrate any conflict between

California takings jurisprudence and that of other

jurisdictions such as South Carolina and the Ninth Circuit.

Pages 23-28 of this brief, post. The instant case thus

provides no vehicle for addressing Petitioner’s arguments

that such conflict would contravene the Equal Protection

Clause and lead to undesirable forum shopping. Page 28 of

this brief, post.

Granting certiorari would be inappropriate even if the

petition did raise an unsettled federal question. At most, the

proper disposition would be a remand to the Court of

Appeal, so that it can determine whether to dispose of

Petitioner’s suit on alternative state grounds which the trial

court employed to dismiss the case. Page 29, post.

STATEMENT OF THE CASE

Respondents are a California city and its community

development commission. Petitioner owns land in the city.

Pet. for Cert. 3-5; App. to Pet. for Cert. 1, 3, 11, 47-48.

In 1973, Respondents adopted a redevelopment plan for

the part of town where Petitioner’s property is located.

Respondents later amended the plan twice. As amended, the

plan neither restricted, diminished nor in any way limited the

uses which Petitioner could lawfully make of his land.

Pet. for Cert. 2-5; App. to Pet. for Cert. 11, 48, 101-11.

The amended redevelopment plan announced that

Gardner Avenue (a Street adjoining Petitioner’s land) was

intended to be vacated at some unspecified future date. That

date has yet to come, though: Gardner Avenue remains an

open thoroughfare even to this day, albeit in a poorly

maintained condition. Pet. for Cert. 3-6, 13, 16-18, 22;

App. to Pet. for Cert. 4, 12, 34-35, 37-38.

The most recent amendment to the redevelopment plan

occurred in 1976. Nearly a dozen years later, Petitioner filed

this suit against Respondents. Pet. for Cert. 2, 7; App. to

Pet. for Cert. 11-12, 48, 101.

In his initial pleading, Petitioner alleged that

Respondents had taken his land, without compensation, by

their act of vacating Gardner Avenue “on paper.” In that

same pleading, however, Petitioner also alleged that

Respondents had taken “... no action to officially close

Gardner Avenue, which is still a public street which fronts

the subject property....” Petitioner verified that

pleading, i.e., he affirmed the truth of its allegations under

penalty of perjury. Pet. for Cert. 7-8, 17-18; App. to Pet.

for Cert. 11-12, text & n. 2.

Respondents demurred to Petitioner’s original pleading.

The trial court sustained that demurrer with leave to amend.

Pet. for Cert. 9.

Petitioner then submitted a first amended complaint.

Like its predecessor, it alleged that Respondents had taken

“...M0 action to officially close Gardner Avenue, which

is still a public street which fronts the Subject property

.” Pet. for Cert. 9, 18-19; App. to Pet. for Cert. 11-

12, text & n. 2.

Respondents again demurred. The trial court sustained

that demurrer, again with leave to amend, on the ground that

the first amended complaint failed to state a cause of action.

Pet. for Cert. 9-10.

Two years later, Petitioner filed a second amended

complaint. This time he tried a different tack. He alleged

that he “...was informed and believes that Gardner

Avenue was officially closed and abandoned by

[Respondents] ..., which action had the effect of

landlocking [his] property.” Pet. for Cert. 11, 20-21: App.

to Pet. for Cert. 11.

Respondents again demurred. The trial court sustained

that demurrer as well. The trial court reasoned that

Petitioner’s second amended complaint was barred by

(1) admissions in his prior pleadings, (2) the statute of

limitations, (3) a failure to exhaust administrative remedies.

and (4) principles of res judicata. Pet. for Cert. 11-12:

App. to Pet. for Cert. 24, 33-34, 40.

This time the trial court denied leave to amend and

dismissed the case. Petitioner appealed. Pet. for Cert. 12:

App. to Pet. for Cert. 9, 14—15, 41.

The Court of Appeal undertook a de novo review of

Petitioner’s second amended complaint. In so doing, it

applied the long settled rule which California appellate courts

use in reviewing suits dismissed at the pleading stage.

Specifically, the Court of Appeal assumed the truth of all

properly pleaded material facts tm Petitioner’s second

amended complaint. App. to Pet. for Cert. 9.

The Court of Appeal invoked a California exception to

this rule, though. The exception is designed to prevent sham

pleading. It applies when a litigant files an amended

pleading which directly and inexplicably contradicts

allegations in an earlier pleading. In such a case, the

reviewing court takes the prior pleading’s allegations into

consideration when ruling on a demurrer to the amended

pleading. App. to Pet. for Cert. 11-12.

The Court of Appeal applied that exception as follows:

Petitioner’s original and first amended pleadings both alleged

that Gardner Avenue had never been closed. On the other

hand, his second amended complaint did allege the closure

of Gardner Avenue. Because Petitioner failed to explain the

inconsistency, the Court of Appeal disregarded the second

amended complaint’s unexplained allegation that Gardner

Avenue was closed. App. to Pet. for Cert. 12.

Stripped of that sham allegation, the second amended

complaint failed to allege any government action which

deprived Petitioner of substantially all use of his property.

The Court of Appeal accordingly held that Petitioner had

failed to plead a cause of action for inverse condemnation.

On that basis, the Court of Appeal upheld the trial court’s

decision to sustain Respondents’ demurrer. App. to Pet. for

Cert. 10, 12-13.

The Court of Appeal next considered whether the trial

court had erred in denying Petitioner leave to file a third

amended pleading. Under well settled rules of California

appellate procedure, the burden of showing such error is on

the pleader. To meet his burden, the pleader must explain,

at some point prior to oral argument on appeal, how his

complaint can be amended to state a cause of action.

Because Petitioner never offered such an explanation, in

either the trial or appellate court, the Court of Appeal

affirmed the trial court’s denial of leave to amend. App. to

Pet. for Cert. 10, 13-14.

California’s seven-member Supreme Court unanimously

denied Petitioner’s request for discretionary review. Pet. for

Cert. 2; App. to Pet. for Cert. 7. The instant petition for

certiorari followed. Via this suit, Petitioner evidently hopes

to lever a settiement wherein Respondents’ taxpayers will

assume the cost of (1) testing his land for toxic waste, and

(2) installing off-site improvements for his property's

benefit. Pet. for Cert. 10-11.

ARGUMENT

I. The Petition Should Be Denied For Failure

To Comply With This Court’s Rules.

A. The Petition Fails To Discuss Why

Certiorari Should Be Granted

Pursuant To The Reasons In Rule 10.1.

Under this Court’s Rule 14.1(j), a certiorari petition

must include direct and concise argument explaining why a

case fits the Rule 10.1 criteria for granting certiorari.

Despite these rules, the petition in the instant litigation

rambles at length without ever mentioning even one of the

Rule 10.1 criteria. The petition can and should be denied on

this basis alone. U.S.Sup.Ct. Rule 14.5; see, e.g., Glick

Brothers Lumber Co. v. Bowles, Price Administrator, 325

U.S. 877, rehearing—denied, 326 U.S. 804 (1945);

Kennemer v. Billington, 323 U.S. 709 (1944).

B. The Petiti_a Fails To Show Proper Presentation Of

Any Federal Question In The State Court System.

In reviewing state court judgments, this Court, with

very rare exceptions, has refused to consider claims that

were neither raised nor addressed in the state court system.

Yee v. Escondido, 503 U.S. __, _, 112 S.Ct. 1522, 1531,

118 L.Ed.2d 153, 168-69 (1992). To guard against

improvident grants of certiorari, this Court’s Rule 14.1(h)

therefore requires state court certiorari petitions to specify

when and how the pertinent federal questions were presented

in the state appellate courts.

The petition in the present case disregards this rule

altogether. At no point in his lengthy petition or voluminous

appendix does Petitioner indicate raising any federal claims

before the California Court of Appeal. This omission by

itself is sufficient reason to deny certiorari. See Lynum v.

Illinois, 368 U.S. 908, 909, 912 (1961) (FRANKFURTER,

J., dissenting).

Significantly, the Court of Appeal never addressed any

federal questions, App. to Pet. for Cert. 9-14, as Petitioner

himself acknowledges. Pet. for Cert. 12. Petitioner also

states that the trial court dismissed his suit without ruling on

any federal questions. Pet. for Cert. 11.

When a State appellate court fails to pass upon a federal

question, it is assumed, absent a contrary showing, that the

failure was due to want of proper presentation in the state

courts. Webb v. Webb, 451 U.S. 493, 496-97 (1981). In

such circumstances, this Court ordinarily refuses to consider

the federal claim, even if it was presented in the trial court,

Hiawassee Power Co. v. Carolina-Tenn. Co., 252 U.S.

341, 343-44 (1919), or asserted in an unsuccessful state

Supreme court petition for discretionary review. Yee v.

Escondido, supra, 503 U.S., at__, 112 S.Ct., at 1531, 118

L.Ed.2¢, at 168-69.

It should be noted that Petitioner neglected to assert

most of his “federal” claims at any stage of the California

court proceedings. For example, he never claimed in state

court that California’s rules of pleading are unconstitutional,

or that they are so hopelessly in conflict with other

jurisdictions’ rules as to pose an Equal Protection issue.

The petition should accordingly be denied for failing to

show proper presentation of any federal question in the state

court system.

II. The Petition Should Be Denied, Because

This Case Does Not Satisfy Any Of

The Criteria F or Granting Certioran.

This Court lacks jurisdiction to review a state court

decision unless it necessarily presents a federal question.

28 U.S.C. § 1257(a); Mental Hygiene Dept. v. Kirchner,

380 U.S. 194, 197 (1965). Even when a federal issue is

involved. this Court will deny certiorari, unless the issue is

either (1) a particularly important but unsettled question, or

(2) one that has divided lower courts. U.S.Sup.Ct. Rule

10.1; Yee v. Escondido, supra, 503 U.S. _, _, 112 S.Ct.

1522, 1533, 118 L.Ed.2d 153, 170-71; Rockford Life Ins.

Co. v. Ill. Dept. of Rev., 482 U.S. 182, 184, n. 3 (1987).

As explained below, the instant case meets none of the

foregoing criteria.

A. Dismissal of Petitioner’s Suit Does Not

Conflict With The First English I Decision.

This Court’s Rule 10.1(c) authorizes certiorari where a-

State court has decided a federal question in a way that

conflicts with this Court’s decisions. In apparent reliance on

that rule, Petitioner claims that the Court of Appeal’s

disposition of his case conflict with this Court’s holding in

First English I, supra, 482 U.S. 304. Pet. for Cert. 7-9,

21, 24. Petitioner is mistaken.

In First English I, the plaintiff landowner pleaded that a

county ordinance had denied it all use of its property. On

that basis, the landowner sued the county and its flood

control district for monetary damages. 482 U.S., at 308-09.

The tral court entered an order striking the landowner’s

allegation that it had been denied all use of its property. The

California Court of Appeal affirmed that order. Both courts

reasoned that such an allegation was immaterial to a cause of

action for monetary damages. They reached this conclusion

by assuming that the Fifth and Fourteenth Amendments do

not require monetary compensation as a remedy for

temporary regulatory takings. As a result, the California

courts rejected the landowner’s inverse condemnation cause

of action without even bothering to determine whether the

landowner had adequately pleaded a denial of all use of its

land. 482 US., at 306-13, 321-22.

The landowner appealed to this Court. At that juncture,

the California Court of Appeal had disposed of the

landowner’s takings claim without considering whether the

landowner had pleaded a taking. The landowner’s appeal

thus came within this Court’s jurisdiction by presenting a

federal constitutional question, namely, whether the Fifth

and Fourteenth Amendments require payment of

compensation when a land use regulation temporarily

deprives a landowner of all use oy his property. 482 U.S.,

at 306-07, 310-13.

This Court answered that question in the affirmative.

It therefore remanded the case to the California Court of

Appeal to determine, among other things, whether the

challenged ordinance actually denied the landowner all use of

its property. 482 U.S., at 306-07, 310-13, 321-22.

In essence, the First English I Court held that it was

constitutional error to dismiss a temporary regulatory takings

claim without first determining whether the challenged

regulation denied the landowner all use of its property. The

instant case does not share that constitutional vice, however.

In the present case, the Court of Appeal expressly

determined that Respondents’ regulation has nor deprived

Petitioner of substantially all use of his property. App. to

Pet. for Cert. 10-11, 12-13. It is on that basis that the

Court of Appeal rejected Petitioner’s takings claim, id., at

10, 13, not out of some misapprehension as to federal

constitutional requirements. The Court of Appeal’s holding

in the present case is therefore distinguishable from, rather

than in conflict with, this Court’s decision in First English 1.

It is instructive to examine the subsequent history of the

First English I case. The California Court of Appeal

considered the case on remand in First English Evangelical

Lutheran Church v. County of Los Angeles, 210

Cal.App.3d 1353, 258 Cal.Rptr. 893 (1989), cert. denied,

493 U.S. 1056 (1990) (First English IJ). On that remand,

the Court of Appeal specifically reached the question of

whether the challenged ordinance denied the landowner all

use of its property. The Court of Appeal held that it did not.

For that reason, the court reaffirmed its original decision

dismissing the landowner’s inverse condemnation claim.

210 Cal.App.3d, at 1356, 1359-61, 1367-72, 1374, 268

Cal.Rptr., at 894, 896-98, 902-07. The landowner then

petitioned for certiorari, and this Court denied the petition.

493 U.S. 1056.

Certiorari should likewise be denied in the present case.

Like the First English II court, the Court of Appeal in the

instant case has determined that the challenged regulation

does not ceny Petitioner substantially all use of his property.

Because there was no taking, the question decided in First

English I—whether the federal constitution mandates

compensation for temporary regulatory takings—simply

does not arise. Agins v. Tiburon, 447 U.S. 255, 263

(1980); cf. First English 1, supra, 482 U.S., at 311

(distinguishing Agins, supra).

There is no conflict whatsoever between the outcome of

the present case and First English I.

B. The Dismissal Of Petitioner’s Suit

Presents No Unsettled Federal Question.

1. No Federal Question Is Raised By

The Application of California’s Pleading

Rules To Petitioner's Complaint.

a. Dismissal Of A Technically Insufficient

Pleading Involves No Federal Question.

Petitioner appears to attack the Court of Appeal’s

determination that Respondents never deprived him of

substantially all use of his property. He complains that the

Court of Appeal should not have reached this determination

by requiring “... strict compliance with technical rules of

pleading ....” Pet. for Cert. 22-23.

This presents no federal question. When a state court

decides a case on the technical insufficiency of a pleading,

that is a state law matter over which this Court lacks

jurisdiction. Commercial Bank v. Rochester, 82 U.S. 639,

642 (1872); Agins v. Tiburon, supra, 447 U.S., at 260, n. 6.

b. Application Of Local Pleading Rules

Is Strictly A Matter Of State Law.

Petitioner also complains that the California courts

misapplied their own pleading rules when deciding his case.

Pet. for Cert. 11-16, text & n. 14. This, too, presents a

State law matter, as opposed to a federal question over which

this Court can exert jurisdiction: This Court must respect the

California Court of Appeal’s opinion on matters of local

pleading law. MacDonald, Sommer & Frates v. Yolo

County, 477 U.S. 340, 352, n. 8, § 1, rehearing denied,

478 U.S. 1035 (1986).

2. Petitioner’s Attack On The Pleading Rules

Themselves Presents No Federal Question.

Petitioner next seems to attack the constitutionality of

California’s pleading rules themselves. As discussed below,

this challenge raises no unsettled federal question.

a. No Unsettled Federal Question Is Presented

By The Rule Permitting Takings Claims

To Fe Dismissed At The Pleadings Stage.

i. ItIs Settled That Such A Dismissal

Does Not Offend The Takings Clause.

Petitioner seems to argue that an inverse condemnation

Suit cannot be dismissed via demurrer to the pleadings

without invading nights protected by the Fifth Amendment’s

Takings Clause. Pet. for Cert. 12, 14, 22-23, 29. This

claim fails to present an unsettled federal question, though.

Instead, the law is settled to the contrary of Petitioner’s

claim. This Court has repeatedly held that a complaint, to

invoke the constitutional protection of the Takings Clause,

must specifically allege facts showing a deprivation of

property without just compensation. See, e.g., Beaumont,

S.L. & W. Ry. v. U.S., 282 U.S. 74, 88-89 (1930); Aetna

Insurance Co. v. Hyde, 275 U.S. 440, 447-48 (1928): see

also Denver Stock Yard Co. v. U.S., 304 U.S. 470, 484-85

(1938); cf. Missouri Pacific R. Co. v. Norwood, 283 U.S.

249, 250, 254-55, 258, modified, 283 U.S. 809 (1931);

Pacific States Co. v. White, 296 U.S. 176, 184-85 (1935).

Indeed, despite Petitioner’s belief to the contrary, Pet. for

Cert. 14, this Court has frequently affirmed California court

judgments that dismissed takings cases via demurrer to the

pleadings. See, e.g., Yee v. Escondido, supra, 503 U.S.,

_, _» _» 112 S.Ct. 1522, 1526, 1527, 1534, 118

ies LEd. 2d 153, 762, 164, 172; MacDonald, Sommer & Frates

v. Yolo County, supra, 477 U.S. 340, 342, 353; Agins v.

Tiburon, supra, 447 U.S. 255, 257, 258, 263.

Numerous lower court decisions recognize that

constitutional rights are nor infringed when an insufficient or

defective complaint is dismissed. Belmar Drive-In Theatre

v. Hgw. Com., 34 Ill.2d 544, 549, 216 N.E.2d 788, 792

(1966); Deasey v. City of Chicago, 412 Ill. 151, 155, 105

N.E.2d 727, 729 (1952); Harvey v. Brewer, 166 Ill.App.3d

253, 259, 116 Ill.Dec. 724, 728, 519 N.E.2d 939, 943

(1987); Harvey v. Mackay, 109 Ill.App.3d 582, 589, 65

Ill.Dec. 167, 172, 440 N.E.2d 1022, 1027 (1982), appeal

denied, 92 Ill.2d 574 (1983); Berlin v. Nathan, 64

Ill.App.3d 940, 951, 21 Ill.Dec. 682, 690, 381 N.E.2d

1367, 1374 (1978), appeal denied, 72 Il].2d 581, cert.

denied, 444 U.S. 828, rehearing denied, 444 U.S. 974

(1979); DiSanto v. City of Warrenville, 59 Ill.App.3d 931,

940, 17 Ill.Dec. 289, 295, 376 N.E.2d 288, 294, appeal

denied, 71 Ill.2d 607 (1978); State Bk. of Lombard v.

Segovia, 49 Ill.App.3d 682, 685, 7 Ill.Dec. 527, 529, 364

N.E.2d 688, 691 (1977); County of Champaign v.

Anthony, 33 Ill.App.3d 466, 468, 337 N.E.2d 85, 89

(1975), affirmed without discussion of this point, 64 I1].2d

532, 1 Ill.Dec. 373, 356 N.E.2d 561 (1976); People ex rel.

Hamer v. Bd. of Education, 22 Ill.App.3d 130, 136, 316

N.E.2d 820, 826 (1974), appeal denied, 57 IIl.2d 609

(1975); Delis v. Sepsis, 9 Ill.App.3d 217, 222, 292 N.E.2d

138, 142-43 (1972), overruled on another point in Costello

v. Capital Cities Communications, 125 Ill.2d 402, 415-16,

126 Ill.Dec. 919, 924-25, 532 N.E.2d 790, 796 (1988);

Zamouski v. Gerrard, | Ill.App.3d 890, 898, 275 N.E.2d

429, 434 (1971); Richards v. Leimbacher, 131 Ill.App.2d

775, 780, 267 N.E.2d 523, 526, appeal denied, 47 IIl.2d

592 (1971); Bauscher v. City of Freeport, 103 Ill.App.2d

372, 376, 243 N.E.2d 650, 652 (1968).

There is nothing to the contrary in any of the cases from

this Court which Petitioner cites. In First English I, the

Court specifically distinguished cases where takings claims

had been dismissed for failure to withstand demurrer. 482

U.S., at 311, distinguishing MacDonald, supra, and Agins,

supra. The remaining Supreme Court cases cited in the

petition do not involve dismissals at the pleadings stage,

Lucas v. South Carolina Coastal Council, 505 U.S. _,_,

112 S.Ct. 2886, 2890, 120 L.Ed.2d 798, 808-09 (1992);

Hodel v. Irving, 481 U.S. 704, 710 (1987); Penn Central

Transp. Co. v. New York City, 438 U.S. 104, 119-20,

rehearing denied, 439 US. 883 (1978); Armstrong v. United

States, 364 U.S. 40, 45, n. 3 (1960), and one of them

actually held that there was no compensable taking. Penn

Central Transp. Co., supra, 438 U.S., at 138.

In sum, Petitioner’s central thesis is directly contrary to

well established case law emanating from this Court.

It presents no unsettled federal question.

ii. Dismissal On The Pleadings

Has No Implications For Any

Federal Right To A Jury Trial.

Petitioner intimates that dismissal of his suit on the

pleadings wrongly deprived him of his right to a jury trial on

a takings claim. Pet. for Cert. 26. There are two reasons

why this fails to present a federal question.

First, it has long been settled that the federal constitution

grants no right to a jury trial in condemnation cases. United

States v. Reynolds, 397 U.S. 14, 18 (1970); see also Atlas

Roofing Co. v. Occupational Safety Comm'n, 430 U.S.

442, 458 (1977); Dohany v. Rogers, 281 U.S. 362, 369

(1930); Crane v. Hahlo, 258 U.S. 142, 147 (1922); Backus

v. Fort Street Union Depot Co., 169 U.S. 557, 569 (1898);

Bauman v. Ross, 167 U.S. 548, 593 (1897); Long Island

Water Supply Co. v. Brooklyn, 166 U.S. 685, 694-695

(1897); Chicago, Burlington &c. R’dv. Chicago, 166 U.S.

226, 244-45 (1897); United States v. Jones, 109 U.S. 513,

519 (1883).

Second, there is no infringement of any constitutional

right to a jury trial where an insufficient or defective

complaint is dismissed. Belmar, supra, 34 IIl.2d 544, 549,

216 N.E.2d 788, 792; Harvey v. Brewer, supra, 166

Ill.App.3d 253, 259, 116 Ill.Dec. 724, 728, 519 N.E.2d

939, 943; Harvey v. Mackay, supra, 109 Ill.App.3d 582,

589, 65 Ill.Dec. 167, 172, 440 N.E.2d 1022, 1027; Delis,

supra, 9 Ill.App.3d 217, 222, 292 N.E.2d 138, 142-43.

iii. Such Dismissal Does Not Offend

The Due Process Clause.

Petitioner seems to claim that dismissal of his suit on the

pleadings improperly deprived him of his right to trial on the

merits. Pet. for Cert. 23. If he is claiming a denial of some

Fourteenth Amendment right, then he is mistaken. There is

no infringement of any Due Process Clause right to trial

where an insufficient or defective complaint is dismissed.

Harvey v. Mackay, supra, 109 Ill.App.3d 582, 589, 65

Ill.Dec. 167, 172, 440 N.E.2d 1022, 1027; Delis v. Sepsis,

supra, 9 Ill.App.3d 217, 222, 292 N.E.2d 138, 142-43.

b. No Unsettled F ederal Question Is

Presented By The Rule Requiring

Submission Of Proposed Amendments

Prior To Oral Argument On Appeal.

i. The Petition FailsToShow

That The Rule As Applied

Offends The Takings Clause.

Petitioner also criticizes the Court of Appeal’s refusal to

permit him to file a third amended complaint. Pet. for Cert.

16. It is unclear whether he contends that this infringes

upon his rights under the Takings Clause.

If so, the petition fails to show any such infringement.

That is because Petitioner never explains what amendments

he would make to his pleading if given an opportunity to do

so. It is thus impossible to determine whether a further

amended pleading would show any violation of rights

protected by the Takings Clause. Accordingly, the petition

fails to make any showing that the Court of Appeal deprived

Petitioner of nghts under the Takings Clause by denying him

leave to file yet another pleading. Louis. & Nash. R. R. v.

Higdon, 234 U.S. 592, 596, 598-600 (1914); Deasey v.

City of Chicago, supra, 412 Ill. 151, 156-57, 105 N.E.2d

727, 729-30.

ii. It Is Settled That The Rule

As Applied Does Not Offend

The Due Process Clause.

If Petitioner is claiming that the denial of leave to amend

presents a federal question under the Due Process Clause,

then he is wrong on that score as well.

Petitioner proceeds from the mistaken premise that the

Court of Appeal denied him any opportunity to amend. Pet.

for Cert. 16. That most assuredly was not the case.

The true facts are as follows: The trial court permitted

Petitioner to file a total of three different pleadings during a

period extending from 1988 through 1991. The Court of

Appeal would have considered any additional proposed

amendments, as long as Petitioner submitted them prior to

oral argument on appeal, which took place in 1993. The

Court of Appeal denied Petitioner further leave to amend

only when he failed to offer any proposed amendments in a

timely fashion. Pet. for Cert. 9-11, 16; App. to Pet. for

Cert. 10-11, 12, 13-14.

On strikingly similar facts, this Court long ago held that

such a denial of leave to amend is not inconsistent with the

Fourteenth Amendment’s Due Process Clause. Roller v.

Murray, 234 U.S. 738, 745-46 (1914); accord, Deasey v.

City of Chicago, supra, 412 Ill. 151, 156-57, 105 N.E.2d

727, 729-30. The Court of Appeal’s denial of leave to

amend thus raises no unsettled federal question vis-a-vis the

Due Process Clause. Instead, the question has already been

settled contrary to Petitioner’s apparent contention. !

iii. The Rule On Its Face Does Not

Offend The Due Process Clause.

The Court of Appeal employed the following rule of

California appellate procedure in denying Petitioner leave to

amend: To overturn a trial court ruling denying leave to

1 It is perhaps significant that Petitioner never submitted any

proposed amendments to the Court of Appeal, timely or otherwise.

Moreover, his certiorari petition contains none.

amend following the sustaining of a demurrer, the pleader

must show abuse of discretion by explaining how his

pleading can be successfully amended. Moreover, his

explanation must come some time prior to oral argument on

appeal. App. to Pet. for Cert. 10, 13,

This simple procedural rule is not inimical to the Due

Process Clause. After all, as this Court held over 45 years

ago, “Oral argument on appeal is not an essential ingredient

of due process....” Price v. Johnston, 334 U.S. 266,

286 (1948), criticized on another point in McCleskey v.

Zant,499 U.S. , ,111 S.Ct. 1454, 1464, 113 L.Ed.2d

517, 537, rehearing denied, U.S. _, 111 S.Ct. 2841,

115 L.Ed.2d 1010 (1991).

Consistent with that pronouncement, numerous lower

courts have held that the Due Process Clause does nor

require oral argument on appeal. See, e.g., Magnesium

Casting Co. v. Hoban, 401 F.2d 516, 518 (CA1 1968),

cert. denied, 393 U.S. 1065 (1969); N. L. R. B. v. Local

No. 42, Int. Ass'n of Heat & F.1. & A. Wkrs., 476 F.2d

265, 276 (CA3 1973) (op’n sur pet’n for rehearing in banc);

George W. B. Bryson & Co., Ltd. v. Norton Lilly & Co.,

Inc., 502 F.2d 1045, 1050 (CA5 1974); Chamberlain vy.

Ericksen, 744 F.2d 628, 630 (CA8 1984), cert. denied, 470

U.S. 1008 (1985); Toquero v.1.N.S., 956 F.2d 193, 196,

n. 45 (CA9 1992); United States v. Marines, 535 F.2d 552,

556 (CA10 1976); Shaw v. Boney, 695 F.2d 528, 531

(CA11 1983) (per curiam); People v. Ashley, 59 Cal.2d

339, 361, 29 Cal.Rptr. 16, 29, 379 P.2d 496, 509, cert.

denied sub nom. Ashley v. California, 374 U.S. 819

(1963); Bentley v. State, 415 So.2d 849, 850 (Fla.App.

1982); State v. Warner, 594 So.2d 397, 402 (La.App.

1991); In re: Carl G. Smith, 145 Me. 174, 179, 74 A.2d

225, 228 (1950); Ad + Soil, Inc. v. County Comm'rs, 307

Md. 307, 318-19, 513 A.2d 893, 899 (1986); Sabatinelli v.

Travelers Ins. Co., 369 Mass. 674, 677-78, 341 N.E.2d

910, 911 (1976); Moore v. Spangler, 401 Mich. 360, 369-

70, 258 N.W.2d 34, 37-38 (1977); State v. Smith, 199

Neb. 368, 373, 259 N.W.2d 16, 18 (1977); State v. Lewis,

104 N.M. 218, 220-21, 719 P.2d 445, 447-48 (App.

1986); State ex rel. Reed v. Schwab, 287 Ore. 411, 414-16,

600 P.2d 387, 390, 24 A.L.R.4th 422, 425-27 (1979),

cert. denied sub nom. Reed v. Schwab, 444 U.S. 1088,

rehearing denied, 445 U.S. 955 (1980); Webb v. State, 533

S.W.2d 780, 784-85 (Tex.Crim. 1976); State v. Smith, 139

Vt. 653, 427 A.2d 383 (1981).

It unavoidably follows that California courts do not run

afoul of the Due Process Clause by requiring appellants to

Submit proposed pleading amendments prior to oral

argument. Petitioner’s facial challenge to that requirement

raises no federal question regarding the Due Process Clause.

c. No Federal Question Is Presented By The

Rule Requiring A Pleader To Explain

Allegations In Amended Pleadings That

Contradict Admissions In Prior Pleadings.

i. The Rule Is A State Law Matter Over

Which This Court Has No Jurisdiction.

Petitioner seems to contend that the Court of Appeal

erred by disregarding one of the allegations in his second

amended complaint. In that allegation, Petitioner pleaded

that Respondents had officially closed and abandoned

Gardner Avenue, which is a street adjoining his property.

Pet. for Cert. 16, 20-21, 22.

oOo

The Court of Appeal disregarded that allegation only

because it was an obvious sham. It directly contradicted a

fatal admission contained in both Petitioner’s original and

first amended pleadings.

To be specific, both those prior pleadings explicitly

alleged that Respondents had taken “... no action to

officially close Gardner Avenue, which is still a public street

which fronts the subject property....” In his original

pleading, Petitioner even affirmed the truth of that allegation

under penalty of perjury. Pet. for Cert. 7-8, 17-18; App. to

Pet. for Cert. 11-12, text & n. 2.

In opting to disregard the contradictory allegation in

Petitioner’s second amended complaint, the Court of Appeal

relied on an elementary rule of California pleading practice:

Where a verified complaint contains allegations destructive

of a cause of action, the defect cannot be cured in

subsequently filed pleadings by simply omitting the

allegations without explanation. App. to Pet. for Cert. 11-

12. Petitioner’s objection to the Court of Appeal’s

application of this California pleading principle does nor

raise a federal question appropriate for review by this Court.

Agins v. Tiburon, supra, 447 U.S. 255, 259-60, n. 6;

cf. MacDonald, Sommer & Frates v. Yolo County, supra,

477 U.S. 340, 352, n. 8, 41.

= ii. In Any Event, The Petition’s So-Called

“Explanation” Is Tardy And Inadequate.

On page 22 of his petition, Petitioner claims to explain

the inconsistency in his allegations. His explanation comes

too late: It should have been presented in the state courts.

Moreover, the so-called “explanation” does nothing to

resolve Petitioner’s inconsistency in pleading. In his first

two pleadings, Petitioner alleged that Gardner Avenue had

not been closed. In his second amended complaint, he

alleged that Gardner Avenue was officially closed and

abandoned. Pet. for Cert. 7-8, 17-18; App. to Pet. for

Cert., 11-12, text & n. 2.

Petitioner’s purported “explanation” is that Gardner

Avenue was opened to every member of the public as a street

except for him. Pet. for Cert. 22. This obviously does not

explain the allegation in Petitioner’s second amended

complaint, though. Instead, i actually confesses the

allegation’s falsity. If anything, this shows the wisdom

behind the California pleading rule which led the Court of

Appeal to ignore the contradictory allegations in Petitioner’s

second amended complaint.

C. The Dismissal Of Petitioner’s Suit

Implicates No Decisional Conflict Between

California And Other Jurisdictions.

Petitioner also seems to argue that a conflict of authority

exists between California and other jurisdictions with respect

to takings jurisprudence. As explained below, no such

conflict exists, much less one that can be resolved by

granting certiorari in the instant case.

2 Not unsurprisingly, Petitioner's “explanation” is itself far-

fetched. As Respondents understand it, Petitioner is Claiming that

Gardner Avenue is open as a Street to every member of the public

except for him. Pet. for Cert. 22. Petitioner cannot seriously suggest

that Respondents have set up full-time roadblocks on Gardner Avenue

to prevent him and him alone from passing.

1. There Is No Conflict Between

California And South Carolina.

a. Both States Employ The

Same Rules Of Pleading.

Petitioner seems to imply that South Carolina state

courts treat inverse condemnation suits more favorably than

California courts treated his suit. Pet. for Cert. 15, n. 16,

24, n. 17. He is wrong. South Carolina courts employ the

same pleading rules which California used in the instant case.

For example, South Carolina courts, like their California

counterparts, have not hesitated when appropriate to dismiss

inverse condemnation suits via demurrer at the pleadings

stage. See, e.g., Brabham vy. City of Sumter, 275 S.C.

597, 274 S.E.2d 297 (1981); Brown v. School Dist. of

Greenville Cty., 251 S.C. 220, 225, 161 S.E.2d 815, 817

(1968); Gasque v. Town of Conway, 194 S.C. 15, 18-25,

8 S.E.2d 871, 872-75 (1940), overruled on another point in

McCall v. Batson, 285 S.C. 243, 249, 329 S.E.2d 741, 744

(1985); McGann v. Mungo, 287 S.C. 561, 571-73, 340

S.E.2d 154, 159-60 (App. 1986). Also, appellate courts in

South Carolina, like those in California, require an appellant

to show abuse of discretion before they will reverse a trial

court’s refusal to permit amendment after sustaining a

demurrer to a defective pleading. Vaughan v. Kalvas, 288

S.C. 358, 362-63, 342 S.E.2d 617, 619-20 (App. 1986).

And South Carolina joins California in frowning on

pleadings amendments which seek to cure fatal defects by

directly contradicting prior allegations that defeated the

plaintiff’s cause of action. Whaley v. Lawton, 57 S.C. 256,

264-67, 35 S.E. 558, 561-62 (1900); Coker v. Monaghan

Mills, 119 F. 706, 708-09 (C.C’S.C. 1902).

(Although some of the foregoing cases were decided

prior to a mid-1985 recodification of South Carolina’s

pleading rules, they remain good authority, inasmuch as one

of the new rules replaced and performs the same function as

the old p’eading rules regarding demurrers. Brown v.

Leverette, 291 S.C. 364, 366, 353 S.E.2d 697, 698 (1987);

New Hanover County D.S.S. v. Gore, 288 S.C. 138, 139,

n. 1, 341 S.E.2d 631, 632, n.1 (1986); McGann v.

Mungo, supra, 287 S.C., at 571, n. 1, 340 S.E.2d, at 159.)

b. There Ils No Conflict In The

Treatment Given On Remand To

The First English And Lucas Cases.

As “evidence” of a supposed takings jurisprudence

conflict between California and South Carolina, Petitioner

points to the contrasting results which state court remands

yielded in the First English and Lucas cases. Pet. for Cert.

15, n. 16, 24, n. 17. Petitioner’s analysis is faulty,

however. The differing results were the product of factual

and procedural distinctions between the two cases, nor the

product of disparate legal standards between the two states.

Lucas v. South Carolina Coastal Council, supra, 505

U.S. _, 112 S.Ct. 2886, 120 L.Ed.2d 798, reached this

Court following a bench trial. The trial court had found that

the subject land use regulation rendered the plaintiff’s land

valueless, since it deprived him of any reasonable economic

use of his property. This Court held that such a finding

required the state to pay just compensation for a taking,

unless the regulation could be sustained on the basis of

principles of state property and nuisance law. The Court

remanded the case to South Carolina to determine whether

such state law principles authorized the regulation in question.

505 U.S.,at_._, _, _, 112 S.Ct., at 2889-90, 2892,

2896, 2899-2902, 120 L.Ed.2d, at 807-09, 811, 815-16,

820-23.

This highly limited remand posed little difficulty for the

South Carolina Supreme Court. It was unable to identify

any common-law basis for upholding the pertinent

regulation. It accordingly remanded the case for a trial to

determine the amount of damages. Lucas v. South Carolina

Coastal Council, 424 S.E.2d 484, 486 (S.C. 1992).

In stark contrast, First English I came before this Court

on the pleadings. At that stage, the California courts had yet

to consider whether the subject regulation actually denied the

landowner all use of his land. This Court therefore remanded

First English for determination of that issue, and for a

determination as to whether the regulation could be upheld

on state common-law principles. First English 1, supra,

482 U.S. 304, 308-13, 321-22.

On remand, the California Court of Appeal closely

scrutinized the challenged regulation, as well as a variety of

related county ordinances affecting the landowner’s

property. The Court of Appeal held that the subject

regulation did not effect an uncompensated taking, because

(1) it did not deny the landowner all use of its property,

(2) it was justifiable as a temporary moratorium, and

(3) its enactment was motivated by compelling public safety

concerns. First English I], supra, 210 Cal.App.3d 1353,

1356, 1365-74, 258 Cal.Rptr. 893, 894, 901-07.

Significantly, the regulation challenged in First English

was promulgated for the specific purpose of preventing

human death and injury. /d., at 1370, 258 Cal.Rptr., at

904. No remotely comparable concern was connected to the

land use regulation struck down in Lucas. See 503 U.S., at

_ -_, text & nn. 10-11, 112 S.Ct., at 2896-98, text &

nn. 10-11, 120 L.Ed.2d, at 816-19, text & nn. 10-11.

In sum, California and South Carolina courts reached

differing results in the First English and Lucas remands due

to marked differences between the cases’ challenged

regulations and procedural postures. The contrasting

dispositions do not evidence any conflict in authority

between the two States.

2. There Is No Conflict Between

California And The Ninth Circuit.

a. Both Jurisdictions Rely On

The Same Federal Precedents.

Petitioner next implies that a conflict of authority exists,

with respect to takings cases, between the California state

court system and the Ninth Circuit Court of Appeals. Pet.

for Cert. 25, n.18. Not so. California takings

jurisprudence often relies on federal precedent. Gilbert v.

State of California, 218 Cal.App.3d 234, 253-54, 266

Cal.Rptr. 891, 902-03 (1990). Obviously that is the same

body of law which guides the Ninth Circuit.

b. The Dismissal Of Petitioner's Suit Does Not

Conflict With The Golden Gate Decision.

Petitioner seems to believe that the disposition of his

case is inconsistent with a Ninth Circuit district court

decision in a case entitled Golden Gate Hotel Assn. v. City

and County of San Francisco. Pet. for Cert. 27, text &

n. 20. Petitioner once again is mistaken.

sa |

Although the Golden Gate opinion is evidently

unpublished, an account of it appears on pages 25 through

28 of the petition. Apparently it involves a challenge to an

ordinance which severely restricts the ability of residential

hotel owners to convert their property to other uses.

That stands in marked contrast to the regulation

Petitioner has attacked in the instant case. Respondents’

redevelopment plan neither restricts, diminishes nor in any

way limits the uses which Petitioner can lawfully make of

his land. App. to Pet. for Cert. 101-11.

The present case and Golden Gate are thus readily

distinguishable, rather than in conflict. In any event, this

Court ordinarily grants certiorari to resolve a conflict

between a State court of last resort and a federal court of

appeals, not between an intermediate state appellate court and

a federal district court. U.S.Sup.Ct. Rule 10.1(b).

3. Because No Interjurisdictional Conflict

Exists, The Petition Fails To Present

Any Equal Protection Questions.

Petitioner seems to assert that a conflict of inverse

condemnation case law between jurisdictions would both

violate the Equal Protection Clause and lead to undesirable

forum shopping. Pet. for Cert. 24-25, text & nn. 17-18.

The instant case fails to present these questions, however.

That is because, as noted on pages 23-28 of this brief,

the petition fails to show any conflict of authority among

lower courts, much less a conflict that can be resolved by

granting certiorari in this case.

Ill. Certiorari ls Inappropriate, Because The Trial Court’s

Order Can Be Sustained On Independent State Grounds.

Review by this Court would be inappropriate even if the

petition did present a federal question. That is because the

trial court order dismissing Petitioner’s suit can be sustained

on independent state grounds.

As Petitioner correctly notes, the trial court did not rely

solely on his failure to plead a cause of action when it

dismissed his suit. It also relied on state law precepts such

as (1) the statute of limitations, (2) the doctrine of

exhaustion of administrative remedies, and (3) principles of

res judicata. The Court of Appeal’s opinion, on the other

hand, fails to address the applicability of any of those state

law grounds. Pet. for Cert. 12-13

This Court should therefore decline review even if it

does conclude that the petition raises a significant federal

question. Instead, the Court should remand the case to the

Court of Appeal to determine whether Petitioner preserved

the right to challenge the trial court’s application of the

various state doctrines and, if so, whether those doctrines

provide a state law bar to Petitioner’s suit independent of any

federal questions. Paschall v. Christie-Stewart, Inc.,

414 U.S. 100, 100-02 (1973) (per curiam), rehearing

denied, 414 U.S. 1138 (1974).

CLOSING ARGUMENT

The dismissal of Petitioner’s suit does not share the

constitutional vice that necessitated reversal in First English I.

Petitioner’s suit was not dismissed in an erroneous belief

that temporary takings are per se noncompensable.

Instead, his case was dismissed because California

courts determined that Respondents’ regulation did not

deprive him of substantially all use of his property. The

California courts made this determination after giving

Petitioner four opportunities during a five-year period to

plead or state facts showing such a deprivation. Six

California judges scrutinized Petitioner’s pleadings for such

facts, and they unanimously agreed that there were none.

In examining Petitioner’s pleadings, California courts

applied common sense rules of pleading that are employed in

other jurisdictions as well. It is already settled that those

pleading rules are entirely permissible under the Fifth and

Fourteenth Amendments.

The plain truth is that Petitioner’s case presents no

unsettled federal question. Nothing in the constitution

requires subjecting this protracted and meritless litigation to

further judicial scrutiny.

CONCLUSION

For all of the foregoing reasons, the petition for a writ

of certiorari should be denied.

DATED: December 17, 1993

Respectfully submitted,

STEVEN N. SKOLNIK

Counsel of Record for Respondents

COMMUNITY DEVELOPMENT COMMISSION

OF THE CITY OF SANTA FE SPRINGS

and CITY OF SANTA FE SPRINGS

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