Petition for Writ of Certiorari — Jama Construction Corp. v. City of Los Angeles

oy, Supreme Court, U.S.

Sl-1150) *''*”

JAN 13 1992

No.

OFFict OF tite CLERK |

In The

Supreme Court of the United States

October Term, 1991

r

JAMA CONSTRUCTION CORPORATION, INC.,

Petitioner,

V.

CITY OF LOS ANGELES, CITY COUNCIL OF THE

CITY OF LOS ANGELES, BOARD OF BUILDING AND

SAFETY COMMISSIONERS OF THE CITY OF LOS

ANGELES, DEPARTMENT OF BUILDING AND

SAFETY OF THE CITY OF LOS ANGELES,

Respondents.

¢

Petition For A Writ Of Certiorari

To The United States Court Of Appeal

For The Ninth Circuit

*

PETITION FOR A WRIT OF CERTIORARI

*

RezNik & REZNIK,

A Law Corporation

BENJAMIN M. REZNIK

(Counsel of Record)

Frep N. GaAINEs

JOHN M. BowMAN

KENNETH A. EHRLICH

15456 Ventura Boulevard

Fifth Floor

Sherman Oaks, California 91403

(818) 907-9898; (213) 872-2900

FAX (818) 907-8465

Attorneys for Petitioner

Jama Construction Corporation, Inc.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

V\

QUESTIONS PRESENTED

Petitioner won a writ of mandate in state court

against the City of Los Angeles and then brought this

action seeking damages for the taking of private property

without just compensation and for the violation of Peti-

tioner’s civil rights pursuant to 42 U.S.C. § 1983. The

District Court dismissed the suit finding the claims to be

barred by the res judicata effect of the state court action.

The Ninth Circuit upheld the dismissal on different

grounds, finding that the court lacked subject matter

jurisdiction as a result of Petitioner’s failure to seek tak-

ings compensation through state procedures as required

by Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985).

The questions presented are:

1. Does Williamson require Petitioner to pursue

damages for regulatory takings through state procedures

when such procedures do not exist and the highest court

of the state involved has specifically rejected the avail-

ability of such relief?

2. Can Petitioner’s claims pursuant to 42 U.S.C.

§ 1983 be barred by the res judicata effect of a state court

judgment in Petitioner’s favor which involved neither

civil rights claims nor any claims for damages?

il

TABLE OF CONTENTS |

Page

QUESTIONS PRESGINS BA? iccss sores ks cheat esaeesen i

TABLE OF CONTENTS.............05 ss seen eens ii

TABLE OF AUTHOR RGSS eisdivsciseed een eee ues iv |

OPINIONS GELIOW |. oi scit ene eee ee 2

JURISOR. TION os 55s sys 65 ch eee 4

CONSTITUTIONAL PROVISION AND STATUTE

INVOLVED oo5 sos sine oe 3

STATEMENT OF THE 4.00650. . +52 eee 4

REASONS FOR GRANTING THE WRIT ........... 6

I. INTRODUCTION, 03-5550 ones oe eee ee 6

Il. IN DISMISSING FOR LACK OF SUBJECT

MATTER JURISDICTION THE NINTH CIR-

CUIT MISCONSTRUED THE SUPREME

COURT’S DIRECTION IN THE WILLIAMSON

CASE oF os nc en ke 8

A. The Williamson Second Prong Test....... 8 |

B. California Law Does Not Provide a “Rea- |

sonable, Certain and Adequate” Procedure

for Obtaining Compensation for Regula-

tory Takings... veers teen eee 9

C. The Ninth Circuit’s Opinion Effectively

Bars All Regulatory Takings Claims From |

The Federal Gory: ..2555 eae e cass 13

II. THE NINTH CIRCUIT MISCONSTRUED THE

LAW IN APPLYING RES JUDICATA TO PETI-

TIONER’S 42 U.S.C. § 1983 CLAIMS ........ 15

ili

TABLE OF CONTENTS - Continued

Page

A. The Ninth Circuit Has Unwittingly Cre-

ated A New Conclusive Presumption Bar-

ring § 1983 Land Use Claims From The

coer in alg eS a a ra nae 15

B. The Ninth Circuit’s Res Judicata Finding Con-

flicts With Settled Law In This Area....... 16

[V. THE GRANTING OF THE WRIT IS APPRO-

PRIATE GIVEN THE IMPORTANT PUBLIC

POLICY ISSUES AT STAKE, THE CONFLICTS

CREATED WITH OTHER CASES AND THE

CONFUSION WHICH EXISTS ON THESE

ROMEO EPRINS BOUTS oc. ce cea c eee 19

A. The Ninth Circuit Must Not Deny Access

To All § 1983 Claims In Takings Cases .. 19

B. The Writ Is Necessary To Provide Consis-

ee Oe OO esis cis acess’ 21

C. The Granting of the Writ Will Serve Judi-

cial Economy By Resolving The Confusion

Which Reigns In This Area Of The Law. 22

Ee ES eS 23

APPENDIX A - Opinion of the Court of

Appeals, dated RE |. HD a A-]

APPENDIX B —- Order of the District Court,

@etea Peoruary 23, 1990..................0..000. B-1

APPENDIX C - Order of the Court of Appeals,

I co po ad Rt C-]

APPENDIX D - Order of the Court of Appeals,

ch ese iit TAR | INTs a ae a D-1

APPENDIX E - Judgment of the Los Angeles

County Superior Court, dated June 5, 1989 ...... E-1

iv

TABLE OF AUTHORITIES

Page |

CASES

Agins v. City of Tiburon, 24 Cal.3d 266, 157

Cal.Rptr. 372, 588 P.2d 25 (1979), aff'd on other

grounds, 447 US. 255 (ISG) . . «6... 0 veg scenes 10, 11

Austin v. City and County of Honolulu, 840 F.2d 678

(9th Cir.), cert. denied, 488 U.S. 852 (1988)....... 9, 11

Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988)........ 9

California Coastal Commission v. Superior Court, 210

Cal.App.3d 1488, 258 Cal.Rptr. 567, rev. denied

Oe I RI cco oc ees bee e ewe Oe ee ek 12

Cassettari v. Nevada County, 824 F.2d 735 (9th Cir.

SE See eke e kL ON ELEN WER RENEE SPAN PEN oaE Ts 9

Chicago, Burlington & Quincy R.R. Co. v. Chicago,

oo ae ty rrr ae eres et er ee 3

Contey v. Gideon, 355 US. 41 (1957)... .....65.555 7, 19

de Botton v. Marple Township, 689 F.Supp. 477 (E.D.

gn Mh SOPOT EET ee eee Ter ee PED eee ye ee 21

First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304 (1987) ............. 10-15 |

|

First English Evangelical Lutheran Church v. County

of Los Angeles, 210 Cal.App.3d 1353, 258

Cal.Rptr. 893, rev. denied (1989), cert. denied, 493

Fi SU EOE ee ROR TVS SORE ase een sie ee en ia eas 22

|

Furey v. City of Sacramento, 780 F.2d 1448 (°th Cir. |

EES DP SESE ete Pee Pasha 2 er ee 9

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

1986), cert. denied, 485 U.S. 940 (1988)............. 18

|

TABLE OF AUTHORITIES - Continued

Hoehne v. County of San Bernardino, 870 F.2d 529

i RT rer ee eet

Hortonville Joint School District v. Hortonville Educa-

tion Association, 426 U.S. 482 (1976)............

Jama Construction Corp. v. City of Los Angeles, 938

ee BED COON Le. BORN i ons oo ccns eeererrees

Lake Country Estates v. Tahoe Planning Agency, 440

Ui Re AUOOOP 5 in leu cdees hve so edund eee

Littlefield v. City of Afton, 785 F.2d 596 (8th Cir.

RD nn kn bos 4a bs gk RW Vee CU ee et eee

Lockary v. Kayfetz, 917 F.2d 1150 (9th Cir. 1990)...

Maine v. Thiboutot, 448 U.S. 1 (1980) .............

Norco Construction, Inc. v. King County, 801 F.2d

2945 (UN CM. ISO)... bs kee eee re

Rossco Holdings, Inc. v. State of California, 212

Cal.App.3d 642, 260 Cal.Rptr. 736 (1989), cert

denied, U.S. _, 110 S.Ct. 1809, 108 L.Ed.2d

POO CIPO ce cchs cen ph naevus 1aneU eee

Scott v. Greenville County, 716 F.2d 1409 (4th Cir.

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

a

(oem Gee EPP. ces kena eee eee

Sinaloa Lake Owners Association v. City of Simi Val-

ley, 882 F.2d 1398 (9th Cir. 1989), cert. denied, _

uo; , 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990)

UR EL ED eR ee ies ee ee 7, 3 30,98; 21

vi

TABLE OF AUTHORITIES - Continued

Page

Southern Pacific Transportation Company v. City o

Los Angeles, 922 F.2d 498 (9th Cir. 1990), cert.

denied, __ ; U.S. __, 112 S.Ct. 382, 116 L.Ed.2d

Doe CUPPED +s vos cncsttiaeweakeeeeee oe eee 9, 10

Williamson County Regional Planning Comm'n v.

Hamilton Bank, 473 U.S. 172 (1985)-;.......... passim

Zamsky v. Hansell, 933 F.2d 677 (9th Cir. 1991)....... 21

STATUTES

ae USL. & LEGG ko ks venue cas canenees tae 2

G2 USA. & TRG is ii ss cee eee kere eee passim

Cat. Cov. Pac. Coste © 10RG6 oc sac ccences terre 19

Ca. Crv. Peoe. Conn § tai cess se ceces eee 9

Cau. Pus. Res. Cone § 21000 ¢f 868... 6.5 661.555 sns ne 4

RULES

Pee.R.Ciw.F. TANG). eos sac ss <b ae aee 2

supreme Court Rule 29. ..6 so .c.ssckesseeeemeueree l

OTHER AUTHORITIES

Comment, Reaping the Fruits of a Ripe Property

Takings Challenge: Eliminating the Ripeness Prob-

lem in Facial Regulatory Takings Cases, 30 Santa

Cieen Rev. O6s (ISR) oo iss5 eres sean 8, 14

U.S. Congress, House Report No. 96-548, October

Bh, TST F oon ev ca vnedend ve 9000 bao ee ee 20

No.

&

In The

Supreme Court of the United States

. October Term, 1991

.

JAMA CONSTRUCTION CORPORATION, INC.,

Petitioner,

v.

CITY OF LOS ANGELES, CITY COUNCIL OF THE

CITY OF LOS ANGELES, BOARD OF BUILDING AND

SAFETY COMMISSIONERS OF THE CITY OF LOS

ANGELES, DEPARTMENT OF BUILDING AND

SAFETY OF THE CITY OF LOS ANGELES,

Respondents.

¢

Petition For A Writ Of Certiorari

To The United States Court Of Appeal

For The Ninth Circuit

° ~

PETITION FOR A WRIT OF CERTIORARI

— *

Petitioner Jama Construction Corporation, Inc.,!

respectfully prays that a writ of certiorari be issued to

review the judgment of the United States Court of

Appeals for the Ninth Circuit, entered in the above-

entitled matter on July 15, 1991 (rehearing denied Octo-

ber 15, 1991).

' Pursuant to Supreme Court Rule 29, Petitioner has no

parent or subsidiary companies.

l

OPINICNS BELOW

Without allowing oral argument or any amendment

to the pleadings, the United States District Court for the

Central District of California granted respondents’

motion to dismiss for failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6). The District

Court’s Order of dismissal of February 23, 1990 is found

at Appendix B.

Petitioner appealed to the United States Court of

Appeals for the Ninth Circuit, which entered judgment

on July 15, 1991. The opinion is reported at 938 F.2d 1045

(9th Cir. 1991). A complete copy of the opinion is found at

Appendix A.

On October 15, 1991, the Court of Appeals denied a

petition for rehearing and rejected the suggestion for a

rehearing en banc. A copy of the order is found at Appen-

dix D.

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit was entered on July 15, 1991. A timely petition for

rehearing, with suggestion of appropriateness of rehear-

ing en banc, was denied on October 15, 1991, and this

petition for a writ of certiorari was filed within 90 days of

that date.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION

AND STATUTE INVOLVED

The Fifth Amendment to the Censtitution of the

United States:

“No person shall be held to answer for a capital

or otherwise infamous crime unless on a pre-

sentment or indictment of a grand jury, except

in Cases arising in the land or naval forces, or in

the militia, when in actual service in time of war

or public danger; nor shall any person be subject

for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any

criminal case to be a witness against himself,

nor be deprived of life, liberty or property with-

out due process of law; nor shall private prop-

erty be taken for public use without just

compensation.”?

Title 42, United States Code

Ҥ 1983. Civil action for deprivation of rights

Every person who, under color of any stat-

ute, ordinance, regulation, custom, or usage, of

any State or Territory or the District of Colum-

bia, subjects, or causes to be subjected, any citi-

zen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured 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. For the

2 The fifth amendment’s taking clause, also known as the

just compensation clause, was made applicable to the states

through the fourteenth amendment in Chicago, Burlington &

Quincy R.R. Co. v. Chicago, 166 U.S. 226, 239 (1897).

ee

purposes of this section, any Act of Congress

applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the

District of Columbia.”

STATEMENT OF THE CASE

On June 5, 1989, the Los Angeles Superior Court

issued a Writ of Mandate against the City of Los Angeles

as a result of the City’s failure to properly apply the

California Environmental Quality Act (“CEQA”)? to Peti-

tioner’s building project. See, Appendix E. The parties

limited the issue litigated in state court to whether the

City could require an Environmental Impact Report to

remove dirt from the building site. On September 13,

1989, Petitioner filed this action seeking damages under

two theories: (1) that the City’s actions amounted to a

temporary regulatory taking of property without just

compensation; and (2) that various actions of the City and

others had resulted in violations of Petitioner’s civil

rights pursuant to 42 U.S.C. § 1983.4 The City moved to

dismiss for failure to state a claim under Rule 12(b)(6) of

the Federal Rules of Civil Procedure. On February 26,

1990, without allowing oral argument or any amendment

to the pleadings, the District Court dismissed Petitioner’s

entire suit, ruling that Petitioner’s claims were barred by

the res judicata effect of Petitioner’s state court mandamus

victory. See, Appendix B. On March 28, 1990, Petitioner

3 Cat. Pus. Res. Cove § 21000 et seg. (West 1989).

4 The statutory basis of subject matter jurisdiction of the

District Court in this action is based on 42 U.S.C. § 1983.

appealed to the Ninth Circuit of the United States Court

of Appeals.

After the parties filed their appellate briefs, all focus-

ing on the correctness of the District Court’s res judicata

finding, the Ninth Circuit notified the parties just ten (10)

days prior to the oral argument that:

“Counsel shall be prepared at oral argument to

discuss whether subject matter jurisdiction is

lacking because Jama Construction Corp. did

not first seek compensation through California

procedures for the alleged regulatory taking

before bringing its federal suit. See Williamson

County Regional Planning Comm'n v. Hamilton

Bank, 473 U.S. 172, 194 (1985).”

See, Appendix C. At the May 16, 1991 hearing before the

Ninth Circuit, oral argument was consumed almost

entirely by a discussion of the Williamson jurisdictional

issue.

The Ninth Circuit, in its brief decision of July 15,

1991, determined that the District Court should have

dismissed Petitioner’s action for lack of subject matter

jurisdiction as a result of Petitioner’s failure to seek tak-

ings compensation “through the procedures the State has

provided for doing so.” See, Appendix A, at 7. As the

Court stated, “we have no reason to decide whether the

action would be barred by res judicata as well.” Id. at 6.

The Ninth Circuit failed to refer the parties to any source,

either inside the record or out, as to what procedure the

State of California has provided for seeking just compen-

sation for a temporary regulatory taking. In addition,

despite its previous statement to the contrary, the Ninth

Circuit dismissed in a footnote Petitioner’s separate

claims under 42 U.S.C. § 1983 as barred by res judicata. Id.

at 6-7, n.1. On October 15, 1991, the Petitioner’s petition

for rehearing was denied by the Court of Appeals (see,

Appendix D).

REASONS FOR GRANTING THE WRIT

I.

INTRODUCTION

The United States Supreme Court should grant this

writ because the Ninth Circuit’s opinion, which upholds

the dismissal of Petitioner’s constitutional taking claim,

rests On a misunderstanding of Williamson County

Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172

(1985) and is contrary to prior decisions of the Ninth

Circuit and other courts. Williamson does not require a

property owner to pursue damage remedies created by

federal law in state court. This Court’s ruling requires

only the pursuit of “reasonable, certain and adequate”

procedures for obtaining compensation as created by

state law. Williamson, 473 U.S. at 194. In California, no

such procedures are available to Petitioner or to any other

litigant seeking compensation for a temporary regulatory

taking of private property.°

> The Court must consider that the Williamson issue on

which the Ninth Circuit relies in dismissing Petitioner’s entire

suit for lack of jurisdiction was never briefed by any party. This is

the result of the fact that the District Court dismissed the case

on other grounds and the briefs on appeal addressed the

(Continued on following page)

eatin

In addition, the Ninth Circuit’s holding that res judi-

cata bars Petitioner’s claims under 42 U.S.C. § 1983

directly conflicts with at least two previous decisions of

that Circuit. See, Sinaloa Lake Owners Association v. City of

Simi Valley, 882 F.2d 1398 (9th Cir. 1989), cert. denied, a

U.S. ___, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990); and Norco

Construction, Inc. v. King County, 801 F.2d 1143 (9th Cir.

1986). The Ninth Circuit has held that Petitioner’s pre-

vious state court victory in a mandamus action is res

judicata to Petitioner’s § 1983 claims for violations of due

process and equal protection without making the

required finding that it is “beyond doubt” that no possi-

ble theory could be advanced to support Petitioner’s

separate § 1983 counts. See, Conley v. Gibson, 355 U.S. 41

(1957).

The writ should also be granted because of the

important public policy ramifications underscoring the

Ninth Circuit’s opinion. The Ninth Circuit has seemingly

created a new conclusive presumption that if a writ of

mandate is necessary a land use matter, a state court

petitioner will be barred forever from pursuing any and

all federal claims rightfully possessed by the petitioner.

(Continued from previous page)

correctness of the District Court’s position. The Williamson

jurisdiction issue was raised only at the time of oral argument

before the Ninth Circuit. At the very least, rehearing should be

ordered to allow the Ninth Circuit to decide the jurisdiction

issue with the benefit of full briefing.

Il.

IN DISMISSING FOR LACK OF SUBJECT MATTER

JURISDICTION THE NINTH CIRCUIT MIS-

CONSTRUED THE SUPREME COURT’S DIRECTION

IN THE WILLIAMSON CASE

A. The Williamson Second Prong Test

Williamson, supra, established two tests of ripeness

for a taking claim. See, Comment, Reaping the Fruits of a

Ripe Property Takings Challenge: Eliminating the Ripeness

Problem in Facial Regulatory Takings Cases, 30 Santa Clara

L.Rev. 865 (1990). The first test requires the property

owner to have “obtained a final decision regarding how it

will be allowed to develop its property.” Williamson, 473

U.S. at 190. In the current suit, the Ninth Circuit raises no

issue that Petitioner has failed to meet this prong.

The second prong dictates that the property owner

must have sought compensation “through the procedures

the state has provided for doing so.” Id. at 194. Therefore,

application of the second prong of the ripeness test

requires a determination of whether the property owner

can obtain compensation under state law. Id.; see also Id. at

186 [noting that respondent had not “utilized the statu-

tory procedures Tennessee provides for obtaining just

compensation”]; and Id. at 195 [“if a state provides an

adequate procedure for seeking just compensation,” then

the property owner must use “the procedures provided

by the state.”] Specifically, Williamson requires that a

“reasonable, certain and adequate provision for obtaining

compensation [through state procedures] exist at the time

of the taking.” Id. at 194. Holding the Williamson facts

unripe for adjudication, this Court relied upon specific

Tennessee statutes and case law that “allowed recovery

ee

through inverse condemnation where the ‘taking’ is

affected by restrictive zoning laws or development regu-

lations.” Id. at 196.

B. California Law Does Not Provide a “Reasonable,

Certain and Adequate” Procedure for Obtaining

Compensation for Regulatory Takings

In applying the second prong of Williamson, the

Ninth Circuit consistently inquires whether applicable

state law provides compensation for the particular type

of taking involved. However, the Ninth Circuit’s opinion

& See Norco Construction, Inc. v. King County, 801 F.2d 1143,

1146 (9th Cir. 1986) [District Court should consider “whether

Washington law provides” a damage remedy]; Furey v. City of

Sacramento, 780 F.2d 1448, 1450 n.1 (9th Cir. 1986) [plaintiff

“has no remaining state procedure by which to secure compen-

sation”]; Cassettari v. Nevada County, 824 F.2d 735, 738 (9th Cir.

1987) [taking claim was premature because plaintiff could

obtain damages for precondemnation activities under Section

1245.260 of the California Code of Civil Procedure]; Austin v.

City and County of Honolulu, 840 F.2d 678, 681 (9th Cir.), cert.

denied, 488 U.S. 852 (1988) [plaintiff could seek compensation

under Article I, Section 20 of the Hawaii Constitution]; Bateson

v. Getsse, 857 F.2d 1300, 1306 (9th Cir. 1988) [taking claim was

not ripe because it fell “within the scope of Montana’s inverse

condemnation law”); Sinaloa Lake Owners Association v. City of

Simi Valley, 882 F.2d 1398, 1402-03 (9th Cir. 1989), cert. denied,

__ US. __, 110 S.Ct. 1317, 1108 L.Ed.2d 483 (1990) [plaintiffs

could obtain compensation for physical taking under specific

California cases]; Southern Pacific Transportation Company v. City

of Los Angeles, 922 F.2d 498, 505 (9th Cir. 1990), cert. denied,

U.S. __, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991) [plaintiff could

obtain ¢ damages for precondemnation activities under specific

California cases].

10

in the current suit sharply departs from this established

approach. The opinion fails to identify any California

statute or decision that would permit Petitioner to obtain

compensation and further neglects to refer to “the pro-

cedures the State has provided for doing so.” Id. In fact,

California has no identifiable procedure for seeking com-

pensation for a regulatory taking.

The Ninth Circuit admits that prior to this Court’s

decision in First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987), California, had

no such procedure. See, Appendix A at 8-9, n.2. In First

English, this Court held that a landowner whose property

has been taken has a right to compensation under federal

law. This Court did not, and cannot, establish “a pro-

cedure for seeking compensation” under California law.

To determine whether such procedure exists, the Court

must look to the statutes and case law of the State of

California.”

In Agins v. City of Tiburon, 24 Cal.3d 266, 157 Cal.Rptr.

372, 588 P.2d 25 (1979), aff'd on other grounds, 447 U.S. 255

(1980), the California Supreme Court held that damages

were not an available remedy for regulatory taking,

under either the Fifth Amendment to the United States

Constitutional or Article I, Section 19 of the California

Constitution. See, 24 Cal.3d at 273.8 To the extent that

’ The specific state law remedies identified by the Ninth

Circuit in Cassettari [precondemnation activities], Sinaloa

[physical invasion] and Southern Pacific |precondemnation

activities], see fn.2 supra, are not available to Petitioner here.

8 Article I, Section 19 of the California Constitution pro-

vides in pertinent part that “private property may be taken or

(Continued on following page)

11]

Agins found no right to compensation under federal law,

it was overruled by First English. See, First English, 482

U.S. at 317-18. But, the Agins principle that compensation

for a regulatory taking could not be recovered under

California law remains an authoritative pronouncement

of the law of the State of California. This Supreme Court

had no authority to change that principal of state law,

and did not purport to do so in First English.?

This point is vital because, as explained above, Wil-

liamson does not require a property owner to assert fed-

eral claims in state court. That would amount to a

requirement of exhaustion of remedies, which this Court's

Williamson decision specifically disclaimed. Williamson,

473 U.S. at 192-93, 194, n.13. Moreover, such a require-

ment would ignore the rationale of Williamson, which

(Continued from previous page)

damaged for public use only when just compensation . . . has

first been paid to, or into court for, the owner.” Unlike the

similar provision of the Hawaii constitution in Austin, supra,

which had never been construed by a Hawaii court, see 840

F.2d at 681, the California Constitution has been specifically

held by California’s highest court not to confer a right to

damages for regulatory taking. Agins, 24 Cal.3d at 273.

9 The Ninth Circuit stated in dictum that First English

“disapproved an aspect of California law ... ” Hoehne v.

County of San Bernardino, 870 F.2d 529, 534 (9th Cir. 1989);

Sinaloa, 882 F.2d at 1402; see, also, Lockary v. Kayfetz, 917 F.2d

1150, 1153-54 (9th Cir. 1990). This is correct in the sense that

this Court has held that Agins misinterpreted federal law. It

cannot mean, however, that this Court decided an issue of

California law, for the court is “bound to accept the interpreta-

tion of a state’s law by the highest court of the state.” Horton

ville Joint School District v. Hortonville Education Association, 426

U.S. 482, 488 (1976).

12

dictates that a taking is not “complete” until the state has

denied compensation through its own procedures. Id. at

195. A federal taking claim includes the same substantive

elements, including denial of compensation, whether

asserted in state or federal court. Thus, if a taking

remains incomplete or unripe because no authority has

denied compensation, a federal taking claim is no more

actionable in state court than in federal court.

As the Ninth Court stated, prior to First English it

would have been “futile” for Petitioner to pursue its

takings claim in state court. See, Appendix A, at 8-9, n.2.

So what has happened since 1987 to create the required

“reasonable, certain and adequate” procedure that the

Ninth Circuit in this case now requires? No new statutory

provision exists in California which provides a method of

seeking compensation for a temporary regulatory taking.

In addition, no “reasonable, certain and adequate” pro-

cedure exists in any new California case law. In fact, the

California decisions which have considered First English

agree that First English itself did not create the Williamson

second prong procedure on which the Ninth Circuit

based its decision in this suit. See, Rossco Holdings, Inc. v.

State of California, 212 Cal.App.3d 642, 656, 660, 260 Cal.

Rptr. 736 (1989), cert. denied, __ U.S. __, 110 S.Ct. 1809,

108 L.Ed.2d 940 (1990) [First English, however, did not

address the procedural means by which a claim for inverse

condemnation is asserted.” (Emphasis in original.)

“{E]ven on remand First English does not address pro-

cedural requirements and, in any event, involves an ordi-

nance, not an administrative ruling.”]; and California

Coastal Commission v. Superior Court, 210 Cal.App.3d 1488,

1496, 258 Cal.Rptr. 567, rev. denied and op mod. (1989) [“As

13

we read it, First Lutheran addressed a relatively narrow

issue.” “First Lutheran says nothing, however, about when

such a suit [for inverse condemnation] must be

filed ...”]. There being no contrary authority even the

Ninth Circuit has made clear that it will not require

litigants to trailblaze theories through the state courts in

search of procedures to fulfill the Williamson require-

ments. See, Sierra Lake Reserve v. City of Rocklin, 938 F.2d

951 (9th Cir. 1991).

C. The Ninth Circuit’s Opinion Effectively Bars All

Regulatory Takings Claims From The Federal

Courts

As interpreted by the Ninth Circuit, Williamson forces

all takings claims into state court, regardless of the sub-

Stantive state law.'° Petitioner respectfully submits that

this is a clear misreading of Williamson and a departure

from prior decisions of the Ninth Circuit."

If the term “procedure” as found in Williamson is

determined to include state court inverse condemnation

actions based on federal law, then the combination of

10 Takings claims are actionable under 42 U.S.C. § 1983.

Lake Country Estates v. Tahoe Planning Agency, 440 U.S. 391,

398-400 (1979). Moreover, state courts have concurrent jurisdic-

tion over § 1983 claims. Maine v. Thiboutot, 448 U.S. 1, 2, n.1

(1980). In this sense, a property owner can always seek dam-

ages for regulatory taking in state court, regardless of the

content of the state law. Still, as this Court held in Williamson,

the critical inquiry is to the availability of a damage remedy

under state law. See, n.6, supra.

11 See, e.g. n.6. supra.

14

Williamson and the opinion in this case results in a com-

plete bar to regulatory takings claims in the federal

courts. Any regulatory takings claims filed first in the

District Court would be unripe since compensation is at

least theoretically available in a state court action. If such

a takings claim is made first in the state court and judg-

ment is rendered, any attempt to further litigate in the

District Court would be barred by res judicata.'? If this

Court had meant to bar regulatory takings claims from

the federal courts it would have clearly said so in either

Williamson, First English or both.

A much more reasonable approach would interpret

Williamson in light of the more recent ruling in First

English. At the time Williamson was decided, many states,

including California, did not recognize a damage remedy

for regulatory takings. However, following this Court's

decision in First English, compensation is at least theo-

retically available as a remedy for regulatory takings in

every court in the land. Thus, the second prong of Wil-

liamson, as interpreted by the Ninth Circuit, makes no

sense and would effectively bar all takings claims from

the federal courts. In light of First English, the only rea-

sonable interpretation of the second prong of the Wil-

liamson ripeness doctrine is that it requires only the

12 This paradox is explored in Comment, Reaping the Fruit

of a Ripe Property Takings Challenge: Eliminating the Ripeness

Problem in Facial Regulatory Takings Cases, 30 Santa Clara L.Rev.

865, 886-897 (1990). The article concludes that courts should

further analyze potential administrative futility, the possibility

that specific legislative provision will never be applied, and

the possibility of supplementing the judicial record prior to

holding regulatory takings unripe. Such an analysis would

prevent courts from ruling regulatory takings cases effectively

unripe and moot at the same time.

15

pursuit of specific procedural remedies created by state

law.

In this case, after Petitioner proved in the state court

that the government acted wrongly, the Ninth Circuit

denied it any opportunity to seek recompense for its

damages. Nonetheless under First English, California law

should allow a process for compensation. Practically,

however, no “reasonably, certain and adequate” pro-

cedure exists, and no one has identified or described such

a procedure,'? yet the Ninth Circuit has sent Petitioner

down the yellow brick road in search of this illusive

requirement.

III.

THE NINTH CIRCUIT MISCONSTRUED THE LAW IN

APPLYING RES JUDICATA TO PETITIONER'S 42

U.S.C. § 1983 CLAIMS

A. The Ninth Circuit Has Unwittingly Created A New

Conclusive Presumption Barring § 1983 Land Use

Claims From the Federal Courts

After deciding the case on jurisdictional grounds and

4é

stating clearly that the panel has “no reason to decide

whether the action would be barred by res judicata,” the

Ninth Circuit dismissed Petitioner’s claims for damages

under 42 U.S.C. § 1983 as barred by the res judicata effect

13 At oral argument, the Ninth Circuit carefully asked cach

of the three counsel who spoke the same question: “Does

California have a procedure for obtaining compensation for a

regulatory taking?” Of course, no one could muster any

answer other than to cite First English.

16

of Petitioner’s state court mandamus victory. See, Appen-

dix A, at 6-7, n.1. While the Ninth Circuit held that “a

complaint must be read broadly to determine if the alle-

gations provide for relief from any possible theory” and

that Petitioner “is correct that it need not exhaust its

available state compensation remedies before bringing its

[§ 1983] claim,” the court then makes the giant leap that

Petitioner based its § 1983 claim on the same asserted

wrong as Petitioner’s state court mandamus action and is

therefore barred by res judicata. Id. By failing to conduct

any factually based comparison of Petitioner’s state court

action to the federal court § 1983 claims, and by failing to

allow Petitioner even a single opportunity to amend its

federal complaint to clarify such claims, the Ninth Circuit

has in effect created a new conclusive presumption that

res judicata will apply to all federal Constitutional claims

which might have been brought as part of a state court

mandamus action.

While the Ninth Circuit dismissed Petitioner’s § 1983

claims in a footnote, the District Court found that the

application of res judicata in this instance was “no simple

matter” and that “the law in this area is uncertain and

sufficiently complex to raise the possibility of success for

plaintiff.” See, Appendix B, at 6, 10. Clearly the District

Court begged for guidance on this complicated issue and

the Ninth Circuit denied such a plea in a footnote.

B. The Ninth Circuit’s Res Judicata Finding Conflicts

With The Settled Law In This Area

The Ninth Circuit’s cursory finding on res judicata

conflicts directly with two important cases in this area. In

17

Norco Construction, Inc. v. King County, 801 F.2d 1143 (9th

Cir. 1986) plaintiff originally initiated a state court man-

damus action seeking the approval of a particular subdi-

vision application. After success in the writ action,

plaintiff brought a separate federal action for damages

based on tort theories, inverse condemnation and 42

U.S.C. § 1983. The Court held that res judicata did not bar

Norco’s damage claims in light of the previous state court

mandamus action. Norco, 801 F.2d at 1146-7. The Norco

court found that all Norco could have shown in the

mandamus proceeding was a right to have some particu-

lar action taken on its application, and that it remained

unlikely that it could have shown any substantial damage

caused by the violation of that right alone. Jd. The Court

further ruled that the scope of Norco’s separate claim for

damages based on 42 U.S.C. § 1983 extended beyond

seeking compensation solely for the failure to take some

action on its subdivision application. Id. at 1147. Instead,

such action seeks recompense for the refusal of the

County to permit Norco to subdivide its property and for

other specific acts taken by the County and individual

defendants. Id.

In the current suit, Petitioner followed the exact

course set out in Norco. When the City acted wrongly by

misapplying CEQA, Petitioner sought mandamus on that

state law issue alone. Later, Petitioner properly brought

this action seeking damages pursuant to § 1983 based on

respondents’ illegal conduct to frustrate an approved pro-

ject, their abuse of public proceedings for the purpose of

delay and damage to Petitioner, their discriminatory

application of city and state laws, and their intentional

interference with Petitioner’s use of private property.

18

Similarly, in Sinaloa Lake Owners Association v. City of

Simi Valley, 882 F.2d 1398 (9th Cir. 1989), cert. denied, ___

U.S. ___, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990), the court

allowed the plaintiff association to pursue § 1983 claims

in federal court despite the requirement that it pursue a

state court action on its takings claims. The Ninth Cir-

cuit’s opinion in the present suit conflicts directly with

Sinaloa in that Sinaloa speaks in detail about how a plain-

tiff’s § 1983 claim should be given every opportunity to

survive a Rule 12(b)(6) motion to dismiss. As stated in

Sinaloa, motions to dismiss for failure to state a claim

must be viewed with “particular skepticism” in cases

involving claims of inverse condemnation and due pro-

cess violations involving land use matters. Sinaloa, 882

F.2d at 1401, citing Hall v. City of Santa Barbara, 833 F.2d

1270, 1274 (9th Cir. 1986), cert. dented, 485 U.S. 940 (1988).

In Sinaloa, the Court found that the claim for violation of

substantive due process “goes beyond the taking of plain-

tiffs’ property; plaintiffs claim that government officials

abused the legitimate police powers entrusted to them.”

Sinaloa, 882 F.2d at 1410. In view of the egregious over-

stepping by local authorities in Simaloa, the court

responded by rejecting defendants’ arguments for a sani-

tary disposition of the case based on the pleadings by

stating that “[w]hile defendants dispute these charges,

that dispute cannot be resolved on a motion for judgment

on the pleadings.” /d.

The facts here clearly warrant this Court granting the

same rights to Petitioner. Clearly, the court should not

dispose of Petitioner’s legitimate claims at the pleading

stage. At the very least, Petitioner is entitled to an

opportunity to amend the complaint to clarify the consti-

tutional violations alleged. As this Court has held, in

19

federal court a complaint should not be dismissed

“unless it appears beyond doubt that plaintiff can prove

no set of facts to support its claim which would entitle

him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957)

[footnote omitted]. The Ninth Circuit’s summary dis-

missal of Petitioner’s § 1983 claims directly conflicts with

these overriding principles.

IV.

THE GRANTING OF THE WRIT IS APPROPRIATE

GIVEN THE PUBLIC POLICY ISSUES AT STAKE, THE

CONFLICTS CREATED WITH OTHER CASES, AND

THE CONFUSION WHICH EXISTS ON THESE

IMPORTANT ISSUES

A. The Ninth Circuit Must Not Deny Access To All

§ 1983 Claims In Takings Cases

As a result of the Ninth Circuit’s opinion, the law

now requires a plaintiff to relinquish access to the federal

courts in every instance where state court mandamus is

necessary to correct an inappropriate government action.

When a local government acts improperly and creates a

temporary regulatory taking of property, a plaintiff must

act quickly both to preserve its rights and to mitigate its

damages.'* The California courts have held that a

14 In California, if the government has taken an improper

administrative action plaintiff has only 90 days to seek man-

damus. See Cat. Civ. Proc. Cove § 1094.6. In such an action,

which is heard by the California courts on an expedited basis,

separate and apart from any other claims which a plaintiff

might have, only the issue of the government's inappropriate

action is before the court.

20

property owner must first bring an administrative man-

damus action as a “necessary procedural predicate” to

seeking inverse condemnation damages. See, Rossco Hold-

ings, 212 Cal.App.3d at 657. The court in Rossco Holdings

concluded that a party may bring a mandamus action

“before, or in conjunction with” a claim for inverse con-

demnation or other damage claims. Id. at 662. Given that

the mandamus action must be brought first in state court,

and the Ninth Circuit’s opinion here that related § 1983

claims will be summarily dismissed as res judicata upon a

finding that there was state adjudication of a mandamus

claim involving the same property, then to protect the

right to pursue § 1983 claims in the land use context all

future plaintiffs must forego the possibility of federal

court adjudication of their § 1983 claims.

While this Court has found that litigation of § 1983

claims in the state court is not inherently prejudicial to

plaintiffs, forcing an entire category of § 1983 claims out

of federal court is clearly contrary to Congressional

intent.'° This federal statute deters abuses of process by

state and local governments by keeping access open to

federal courts for due process violations. Under § 1983

“an aggrieved citizen is provided a neutral federal forum

in which to air his complaint, instead of being forced to sue

his state officials in state courts.” '®

15 U.S. Congress, House Report No. 96-548, October 24,

1979, Background as to H.R. 3343.

16 See n.15, supra (emphasis added).

|

21

B. The Writ Is Necessary To Provide Consistency In

The Law

The granting of the writ is also appropriate as a result of

the direct conflicts of the Ninth Circuit’s opinion with other

decisions. The Petitioner has already identified a number of

cases which conflict with the Ninth Circuit's interpretation of

the Williamson second prong requirements in the current suit.

See, n.6, supra; see also, Sierra Lake, 938 F.2d 951. In addition,

Petitioner has discussed direct conflicts between the applica-

tion of res judicata in the opinion and the Ninth Circuit’s own

previous decisions in Norco and Sinaloa, supra. Decisions in

other Circuits regularly allow § 1983 litigation to proceed in

the federal courts regardless of existence of related state

court mandamus or takings claims. See, e.g., Littlefield v. City

of Afton, 785 F.2d 596, 603-8 (8th Cir. 1986); Scott v. Greenville

County, 716 F.2d 1409, 1419 (4th Cir. 1983); and de Botton v.

Marple Township, 689 F. Supp. 477, 481 (E.D. Pa. 1988).

The Ninth Circuit’s recent decision in Zamsky v. Han-

sell, 933 F.2d 677 (9th Cir. 1991), while not directly on

point, decided the issue of the defendants appropriate

level of immunity in a § 1983 action brought against local

land use planners. Because the court must treat ripeness

as a jurisdictional question, it is clear that the appellate

court found jurisdiction in Zamsky to allow a decision on

the merits of the case. If the Ninth Circuit in fact lacked

jurisdiction here because the Petitioner did not first seek

compensation in the state court, then there would have

been no need to reach the immunity~issues which

resulted in the Zamsky decision. Therefore, the Ninth

Circuit's jurisdictional finding in the current suit directly

conflicts with Zamsky.

22

C. The Granting of the Writ Will Serve Judicial Econ-

omy By Resolving The Confusion Which Reigns In

This Area Of The Law

Perhaps most importantly, the granting of the writ

and a definitive decision is necessary, and in the best

interest of judicial economy and the economy of

resources of potential litigants, in order to resolve the

confusion that reigns with regard to the appropriate

method of litigation of these types of actions. As the

District Court stated in this case, the proper place and

order of the litigation of issues arising from improper

government land use actions “is not a simple matter.” See,

Appendix B, at 6. While the Ninth Court’s decision is

based upon the assumption that a “reasonable, certain

and adequate” provision for compensation for temporary

regulatory takings exists in California, no one can

describe such procedure and no one has pursued it. The

Ninth Circuit bases its assumption that such procedure

exists on First English while the California courts inter-

pret First English not to have established any particular

procedural process nor even to apply specifically to any

particular case. Even the plaintiff in First English was

unsuccessful on remand in identifying California’s pro-

cedure for compensation of regulatory takings. See, First

English Evangelical Lutheran Church v. County of Los

Angeles, 210 Cal.App.3d 1353, 258 Cal.Rptr. 893, rev. denied

(1989), cert. denied, 493 U.S. 1056 (1990).

«

23

V.

CONCLUSION

For these reasons, Petitioner respectfully requests

that the Court grant this petition for a writ of certiorari.

RezNIK & REZNIK,

A Law Corporation

BENJAMIN M. REZNIK

(Counsel of Record)

Frep N. Gaines

JoHN M. BowMAN

KENNETH A. EHRLICH

15456 Ventura Boulevard

Fifth Floor

Sherman Oaks, California 91403

(818) 907-9898; (213) 872-2900

FAX (818) 907-8465

Attorneys for Petitioner

Jama Construction Corporation, Inc.

A-1

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMA CONSTRUCTION,

Plaintiff-Appellant, No. 90-55475

V. D.C. No.

City oF Los ANGELES; BOARD OF CV-89-5432-WDK

BUILDING AND SAFETY OPINION

COMMISSIONERS OF THE City oF Los

ANGELES; DEPARTMENT OF BUILDING

AND SAFETY OF THE City OF

Los ANGELES; City CoUNCIL OF THE

City or Los ANGELES,

Defendants-Appellees.

ttl i i i a

Appeal from the United States District Court

for the Central District of California

William D. Keller, District Judge, Presiding

Argued and Submitted

May 16, 1991 — Pasadena, California

Filed July 15, 1991

Before: Harry Pregerson, Melvin Brunetti and

Thomas G. Nelson, Circuit Judges.

Per Curiam

A-2

SUMMARY

Jurisdiction

Affirming a district court judgment, the court of

appeals held that it lacked subject matter jurisdiction

Over an appeal alleging an unconstitutional “taking” of

property where the property owner had not utilized pro-

cedures for obtaining compensation.

Appellant Jama Construction Corporation, Inc.

bought property for development after a city planning

commission had prepared environmental assessment and

negative declaration reports and adoption of zoning

changes. Subsequently, the Board of Building and Safety

Commissioners ordered that an Environmental Impact

Report (EIR) be prepared for the project. Jama then filed

suit in state court, requesting a writ of mandate ordering

the issuance of all clearances and permits necessary to

begin construction without completion of the EIR. The

Board’s response that an EIR was not required was

reversed by the city council. After a hearing, the state

court held that an EIR was not required. Jama then filed

suit in federal district court seeking damages under sec-

tion 1983 and the fifth amendment for a temporary regu-

latory taking of property without just compensation. The

district court granted appellees’ motion to dismiss on the

_ground that, under the doctrine of res judicata, Jama’s

action was barred by the prior state court action.

[1] Although the district court granted appellees’

motion to dismiss “because plaintiff’s claim is barred by

res judicata,” the appeal court could affirm on any

A-3

ground supported by the record. Because the court deter-

mined that the district court should have dismissed

Jama’s motion for lack of subject matter jurisdiction, it

had no reason to decide whether the action would be

barred by res judicata as well. [2] The Supreme Court has

held that a taking of a property interest is not ripe for

judicial review until the government entity charged with

implementing the regulations has reached a final decision

requiring the application of the regulations to the prop-

erty at issue. The Supreme Court has also explained that,

because the fifth amendment proscribes takings without

just compensation, no constitutional violation occurs

until just compensation has been denied. The nature of

the constitutional right therefore requires that a property

owner utilize procedures for obtaining compensation

before bringing a section 1983 action. [3] The court found

this second requirement to be dispositive here. Because

Jama did not seek compensation through state procedures

before bringing its federal action, Jama’s action was not

ripe for decision, and the court dismissed for lack of

subject matter jurisdiction.

COUNSEL

Fred N. Gaines and Benjamin Reznik, Reznik & Reznik,

Sherman Oaks, California, for the plaintiff-appellant

Susan D. Pfann, Assistant City Attorney, Los Angeles,

California, for the defendants-appellees.

A-4

OPINION

PER CURIAM:

The sole issue in this appeal is whether plaintiff Jama

Construction Corporation, Inc.’s (Jama) action in federal

district court under 42 U.S.C. § 1983 is barred by a

previous state court judgment. The district court held that

plaintiff’s § 1983 action is barred by its earlier suit in state

court under the doctrine of res judicata. We affirm, but on

a ground other than that relied on by the district court.

BACKGROUND

This appeal involves property located at 171 Church

Lane, Los Angeles, California (property). In 1983 and

1984, the City Council for the City of Los Angeles (Coun-

cil) initiated a number of suggested zone changes that

would allow multi-unit development on the property. In

1983, and a second time in 1984, the City Planning Com-

mission prepared environmental assessment and negative

declaration reports for the recommended zone changes.

After much debate, the Council passed an ordinance

implementing a zone change with a 66-unit limit.

Plaintiff Jama bought the property after the zone

change ordinance became final. To obtain approval to

develop the property as an apartment building, Jama

needed to obtain a permit to remove dirt from the site.

After a public hearing where considerable public opposi-

tion to the project was expressed, the Board of Building

A-5

and Safety Commissioners (Board) ordered that an Envi-

ronmental Impact Report (EIR) be prepared for the pro-

ject.

On December 29, 1988, Jama filed suit in Superior

Court, requesting a writ of mandate ordering the issuance

of all clearances and permits necessary to begin construc-

tion without completion of the EIR. Jama argued that the

Board had exceeded its authority in requiring the EIR

because there had been no changes to the project since

the prior environmental review.

Apparently in response to the litigation, the Board

decided to reconsider its decision requiring an EIR for the

project. After a public hearing on March 7, 1989, the

Board reversed its earlier decision, concluding that an

EIR was not required. Dissatisfied homeowners and an

adjacent business appealed to the Council. On April 26,

1989, the Council reversed the Board, ordering that all

permits be held in abeyance until completion of an EIR.

On June 5, 1989, the Superior Court held a hearing on

Jama’s request for the writ. It held that “the City had

exceeded its authority when it required an EIR because

there was nothing in the record to show that the circum-

stances required by the California Environmental Quality

Act to trigger environmental review had occurred.” Jama

Construction Corp. v. City of Los Angeles, No. 89-5432, slip

op. at 3 (C.D. Cal. Feb. 26, 1990) (Order).

On September 13, 1989, Jama filed a complaint in the

district court seeking damages under 42 U.S.C. § 1983 and

the Fifth Amendment for a temporary regulatory taking

of property without just compensation. On February 23,

1990, the district court granted defendants’ motion to

EEE

A-6

dismiss on the ground that, under the doctrine of res

judicata, Jama’s action was barred by the prior state court

action.

DISCUSSION

We review de novo a district court’s order granting a

motion to dismiss for failure to state a claim under Fed.

R. Civ.P. 12(b)(6). Kruso v. International Tel. & Tel. Corp.,

872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct.

3217 (1990).

[1] The district court granted defendants’ motion to

dismiss “because plaintiff’s claim is barred by res judi-

cata.” Order at 8-9. We may affirm, however, on any

ground supported by the record. Charley’s Taxi Radio Dis-

patch Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 874 (9th

Cir. 1987). Because we determine that the district court

should have dismissed Jama’s action for lack of subject

matter jurisdiction, we have no reason to decide whether

the action would be barred by res judicata as well.!

' In its complaint, Jama breaks down its action into two

claims: (1) “undue interference with property rights” under

§ 1983 and (2) unlawful taking. The district court reasonably

read the complaint as presenting a single claim for a temporary

regulatory taking of property under § 1983 and the Fifth

Amendment. As discussed in the text, we dismiss this takings

claim as unripe.

In its reply brief and at oral argument, Jama characterizes

its undue interference claim as a due process claim distinct

from its takings claim. On a motion to dismiss, a complaint

must be read broadly “to determine if the allegations provide

(Continued on following page)

A-7

[2] In Williamson County Regional Planning Commission

v. Hamilton Bank, 473 U.S. 172, 105 S. Ct. 3108 (1985), the

Supreme Court enunciated two requirements a plaintiff

must meet before bringing a taking claim in federal court.

First, the Court confirmed that “a taking of a property

interest is not ripe until the government entity charged

with implementing the regulations has reached a final

decision regarding the application of the regulations to

the property at issue.” Id. at 186, 105 S. Ct. at 3116.

Second, a taking claim is premature unless the plaintiff

has sought “compensation through the procedures the

State has provided for doing so.” Id. at 194, 105 S. Ct. at

3120. The Court explained that, “because the Fifth

(Continued from previous page)

for relief on any possible theory.” Electrical Constr. & Mainte-

nance Co. v. Maeda Pacific Corp., 764 F.2d 619, 623 (9th Cir. 1985).

To the extent that Jama’s complaint does allege a due process

claim, Jama is correct that it need not exhaust its available state

compensation remedies before bringing its claim. Sinaloa Lake

Owners Ass’n v. City of Simi Valley, 882 F.2d 1398, 1404 (9th Cir.

1989), cert. denied, 110 S. Ct. 1317 (1990). But Jama’s due pro-

cess claim is barred by the California doctrine of res judicata

because it failed to present the claim in its earlier California

mandamus action. See Sanchez v. City of Santa Ana, No. 85-6504,

slip op. 6577, 6593 (9th Cir. May 24, 1991) (“where a federal

constitutional claim is based on the same asserted wrong as a

state action and the parties are the same, res judicata will bar

the federal constitutional claim, whether or not it was asserted

specifically in state court”); see also Gallagher v. Frye, 631 F.2d

127, 130 (9th Cir. 1980) (§ 1983 claim may be raised in a

California mandamus action). Section 1983 claims for viola-

tions of constitutional rights are not immune from the preclu-

sive effect of res judicata. See Migra v. Warren City School Dist.

Bd. of Educ., 465 U.S. 75, 104 S. Ct. 892 (1984) (state preclusion

law applies to § 1983 claims).

A-8

Amendment proscribes takings without just compensation,

no constitutional violation occurs until just compensation

has been denied. The nature of the constitutional right

therefore requires that a property owner utilize pro-

cedures for obtaining compensation before bringing a

§ 1983 action.” Id. at 194 n.13, 105 S. Ct. at 3120 n.13

(emphasis in original); see also MacDonald, Sommer &

Frates v. Yolo County, 477 U.S. 340, 350, 106 S. Ct. 2561,

2566 (1986) (“a court cannot determine whether a munici-

pality has failed to provide ‘just compensation’ until it

knows what, if any, compensation the responsible admin-

istrative body intends to provide”).

[3] We find this second requirement to be dispositive

here. Jama did not seek compensation through California

procedures before bringing its federal action. Because

Jama’s action is not ripe for decision, we dismiss for lack

of subject matter jurisdiction. Sinaloa Lake Owners Ass‘n v.

City of Simi Valley, 882 F.2d 1398, 1404 (9th Cir. 1989)

(“lack of ripeness deprives the court of subject matter

jurisdiction”), cert. denied, 110 S. Ct. 1317 (1990).

2 If the alleged “taking” of Jama’s property occurred

before the Supreme Court decided First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S. Ct.

2378 (1987), Jama’s failure to seek compensation through state

procedures might be forgiven as “futile.” See Sinaloa Lake

Owners Ass‘n v. City of Simi Valley, 882 F.2d 1398, 1402 (9th Cir.

1989) (“[p]laintiffs need not bring a state court action [seeking

compensation] when it would be futile under existing state

law”), cert. denied, 110 S. Ct. 1317 (1990). Before First English,

California law precluded a landowner from recovering dam-

ages in an inverse condemnation action for a temporary regu-

latory taking. See Agins v. City of Tiburon, 24 Cal.3d 266, 274-77,

(Continued on following page)

A-9

AFFIRMED.

(Continued from previous page)

998 P.2d 25, 29-31, 157 Cal. Rptr. 372, 375-78 (1979), aff'd on

other grounds, 447 U.S. 255, 100 S. Ct. 2138 (1980). Thus, in

Furey v. City of Sacramento, 780 F.2d 1448 (9th Cir. 1986), we

understandably held that plaintiff’s failure to bring a non-

existent inverse condemnation action in the California courts

did not preclude him from bringing suit in federal court. /d. at

1450 n.1. But on June 9, 1987, the Supreme Court in First

English rule that Agins erred in deciding that the Fifth Amend-

ment does not require compensation for a temporary regula-

tory taking of property. Given that the “taking” alleged by

Jama did not begin until 1988 at the earliest, Jama was not

excused from first seeking compensation from the state before

bringing its federal action.

B-1

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JAMA CONSTRUCTION Case No. CV

CORP, INC., a 89-5432-WDK

California corporation (GHKx)

en ORDER GRANTING

¥ DEFENDANTS’

MOTION TO

CITY OF LOS ANGELES,

CITY COUNCIL OF THE

CITY OF LOS ANGELES,

BOARD OF BUILDING AND

DISMISS FOR

FAILURE TO STATE

A CLAIM AND

SAFETY COMMISSIONERS OF a ee

THE

CITY OF LOS ANGELES, ) DEFENDANTS

and DEPARTMENT OF

BUILDING AND SAFETY OF

THE CITY OF LOS ANGELES,

Defendants.

ATTORNEY'S FEES

PURSUANT TO

42 U.S.C. § 1988

(Filed Feb. 23, 1990)

ee ee ee ee ee ee ee ee ee ee ee

Before the Court is defendants’ motion to dismiss

pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure and defendants’ motion for attorney’s fees

pursuant to 42 U.S.C. § 1988. Having reviewed and con-

sidered the submissions of the parties, the Court hereby

GRANTS defendants’ motion to dismiss and DENIES

defendants’ motion for attorney’s fees.

I. Background

Plaintiff, JAMA Construction Corp., Inc, is a Califor-

nia corporation engaged in the buying, development, and

B-2

sale of real property. The present controversy concerns

property located on Church Lane in Los Angeles (“Prop-

erty”).

In 1983 and 1984, the City Council and the City

Planning Commission initiated a series of recommenda-

tions for zoning changes which would have allowed mul-

tiple-unit development on the Property. This zoning

change was eventually adopted in February, 1987. An

environmental assessment and negative declaration had

been prepared in support of the City Council’s actions

during 1983 and 1984. These documents in support of the

1984 actions were adopted by the Council in support of

the 1987 zoning change.

Plaintiff initially attempted to develop the property

as a condominium complex. To do so it had to apply fora

tract map. The City Planning Department decided that

plaintiff would have to complete an Environmental

Impact Report (“EIR”) in support of such an action. Plain-

tiff decided to withdraw this application and simply

develop the lot as an apartment building.

In order to receive a building permit, plaintiff had to

obtain a permit to remove dirt from the site. On Septem-

ber 13, 1988, following the required public hearing on this

permit at which considerable opposition was voiced over

the whole project, the Board of Building and Safety Com-

missioners (“Board”) ordered that an EIR be prepared

with respect to the project.

The Board held a subsequent hearing limited strictly

to the issue of the haul route on March 7, 1989, at which

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the haul route and the project were approved. This deci-

sion was appealed to the City Council by adjacent home-

owners and businesses. On April 26, 1989, the City

Council revoked the Board’s approval, instructed the

Department of Building and Safety to prepare an EIR on

the hauling operation, and ordered all permits held pend-

ing completion of the EIR.

On December 29, 1988, plaintiff filed suit in Superior

Court seeking writ of mandate and declaratory relief

against the City, City Council, and Board asking that the

City be ordered to issue the necessary permits. A hearing

was held on June 5, 1989, and the court ruled for plaintiff,

stating that the City had exceeded its authority when it

required an EIR because there was nothing in the record

to show that the circumstances required by the California

Environmental Quality Act to trigger environmental

review had occurred.

Plaintiff subsequently brought this action seeking

damages under 42 U.S.C. § 1983 and the Fifth Amend-

ment of the Constitution for a temporary unlawful taking

of property without just compensation. Defendants move

to dismiss pursuant to Federal Rules of Civil Procedure

Rule 12(b)(6) stating that plaintiff’s action is barred by

the prior state court action.

II. Discussion

A. Defendants’ Motion to Dismiss

On a motion to dismiss pursuant to Federal Rules of

Civil Procedure Rule 12(b)(6), the court must accept all

factual allegations of the complaint to be true and draw

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all reasonable inferences in favor of the plaintiff. NL

Industries, Inc. v. Kaplan, 792 F.2d 896 (9th Cir. 1986);

Russell v. Landrieu, 621 F.2d 1037 (9th Cir. 1980).

The sole ground for dismissal raised by defendant is

that the present action is barred by res judicata because of

a state court judgment on a prior action.’ “It is well

established that the determination of this question [res

judicata] is one of law for the trial court in the exercise of

its jurisdiction. Baird v. Superior Court, 204 Cal. 408.”

Solari v. Atlas-Universal Service, Inc., 215 Cal. App. 2d 587,

601 (1963).

A state court judgment is given the same preclusive

effect in federal court as it would be given in state court.

Heath v. Cleary, 708 F.2d 1376, 1379 (9th Cir. 1983).

“([W]hen a party seeks relief in the state court for an

alleged wrong, the state court judgment bars the plaintiff

from seeking relief on constitutional grounds from the

same defendant for the same wrong, in federal court.”

Gallagher v. Frye, 631 F.2d 127, 128 (9th Cir. 1980) (citing

Scoggin v. Schrunk, 522 F.2d 436 (9th Cir. 1975), cert. denied,

1 The appropriate method for raising the defense of res

judicata is pursuant to Fed. R. Civ. P. Rule 8(c). See 18 C.

Wright, A. Miller, & E. Cooper, Federal Practice and Procedure

§ 4405 (1981). However, the matter can also be raised by

motion to dismiss pursuant to Rule 12(b)(6) where the com-

plaint clearly indicates the existence of the affirmative defense.

See, e.g. Concordia v. Bandekovic, 693 F.2d 1073 (11th Cir. 1982); 5

C. Wright & A. Miller, Federal Practice and Procedure § 1357 at

609 (1969). In considering such motions, the court may take

judicial notice of prior judgments and pleadings. 5 C. Wright &

A. Miller, Federal Practice and Procedure § 1364 at 672 (1969).

B-5

423 U.S. 1066 (1976)). This rule is applicable to actions

brought pursuant to 42 U.S.C. § 1983. Id.?

Under California law, the doctrine of res judicata

prohibits further litigation by the parties on the same

“cause of action” after a judgment is obtained. See Slater

v. Blackwood, 15 Cal. 3d 791, 795 (1976); Hatch v. Bank of

America, 182 Cal. App. 2d 206 (1960); 7 B. Witkin, Califor-

nia Procedure, Judgments § 243 (1985). To determine

whether the same cause of action is at issue, the Califor-

nia courts employ the “primary rights” theory. As stated

in Eichman v. Fotomat Corp., 147 Cal. App. 3d 1170 (1983),

“if two actions involve the same injury to the plaintiff

and the same wrong by the defendant the same primary

right is at stake even if in the second suit the plaintiff

pleads different theories of recovery, seeks different

forms of relief and/or adds new facts supporting recov-

ery.” Id. at 1174-75. Therefore, the invasion of one

2 The issue is not one of competency of the California

court to hear a 42 U.S.C. § 1983 action or the jurisdiction of that

court to award damages. It is clear that a claim involving

federal constitutional rights may be joined to a California

mandamus action. Gallagher, 631 F.2d at 127 (42 U.S.C. § 1983

claim may be joined to a California mandamus action). In

addition, state courts are competent to hear claims of 42 U.S.C.

§ 1983 violations. Martinez v. California, 444 U.S. 277, 283 n.7

(1980). Last, a California court may grant relief in the form of

damages together with a writ of mandamus regarding the

same action. See Cal. Civ. Pro. Code §§ 1090, 1095 (1990).

Therefore, the claim could have been brought by the plaintiff at

the same time as the writ of mandamus action. Whether this

motion should be granted depends solely on California res

judicata law.

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primary right gives rise to one cause of action. Slater, 15

Cal. 3d at 795.

While the determination of whether one or more

“primary rights” exists is not a simple matter, a number

of cases involve either property rights and zoning regula-

tion or state court actions and subsequent 42 U.S.C.

§ 1983 claims. In California Coastal Com. v. Superior Court,

210 Cal. App. 3d 790, modified, 210 Cal. App. 3d 1488

(1989), plaintiff brought suit for inverse condemnation

where the state required an easement across his land.

Plaintiff had not appealed this administrative decision

during the statutorily defined review period by seeking a

writ of mandamus. The state argued, and the court

agreed, that this failure constituted a judgment against

the plaintiff, and that it barred the subsequent suit

against the state. In so holding, the court must assume

that one primary right would have been at issue in the

writ of mandate action and the inverse condemnation

action.

In Clark v. Yosemite Community College Dist., 785 F.2d

781 (9th Cir. 1986), plaintiff was a teacher in a community

college who was accused of sexual harassment and dis-

crimination by students. His employer maintained a file

on him and allegedly interfered with his teaching and

with outside business contacts. Plaintiff sought, and

obtained, a writ of mandate ordering the employer to

desist from interfering with plaintiff’s teaching and to

remove derogatory materials from his file. Plaintiff then

brought an action in federal court based on 42 U.S.C. 1983

seeking damages for defamation. The court of appeals

upheld the district court decision that this was one “pri-

mary right” and that the action was barred by the prior

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state court proceeding. But see Gallagher, 631 F.2d at 127

(in employment termination case, writ of mandate order-

ing back pay and reinstatement did not bar § 1983 suit for

wrongful conduct).

Likewise, Takahashi v. Board of Trustees of Livingston,

783 F.2d 848 (9th Cir. 1986), cert. denied, 476 U.S. 1182

(1986), involved a teacher’s employment dispute. Plaintiff

was fired and sought a writ of mandate seeking reinstate-

ment. Plaintiff failed and subsequently brought an action

in federal court under 42 U.S.C. § 1983 alleging discrimi-

nation. Again, the court of appeals upheld the district

court’s holding that this was one primary right and that

the state action barred the federal action

In the present case, plaintiff has brought an action

claiming damages resulting from the unauthorized

demand of the city that an EIR be completed on plaintiff's

project. In the prior state court action, plaintiff sought a

writ of mandate forcing the city to retract its

unauthorized demand that an EIR be completed. Given

the above case law, defendants’ motion seems well-based.

Plaintiff has suffered injury to one primary right. The

City acted in an apparently unauthorized fashion and

placed an additional roadblock in plaintiff’s path. Under

present law, plaintiff may recover damages for such

actions as well as force the removal of those roadblocks.

However, in California, where a plaintiff complains of a

taking of land due to governmental action, one primary

right is injured. See Rossco Holdings Inc. v. State of Califor-

nia, 212 Cal. App. 3d 642 (1989) (holding that failure to

seek administrative mandamus precludes suit for inverse

condemnation). Therefore, since plaintiff sought only to

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eliminate the barrier to the construction of its project in

its first action, it cannot now seek the additional remedy

of damages.

Plaintiff offers two arguments in response. First,

plaintiff argues that the issues of damages and 42 U.S.C.

§ 1983 were never pleaded or argued. The fact that plain-

tiff did not plead or argue any damage issue in the prior

action is immaterial to the determination of the res judi-

cata issue. As stated in Slater, 15 Cal. 3d at 791, “a

judgment . . . is a bar to a subsequent action by the

plaintiff based on the same injury to the same right, even

though he presents a different legal ground for relief.” /d.

at 795.

Second, plaintiff argues that the issue of damages

was not ripe for adjudication until such time as the writ

of mandate was issued against the defendants. However,

plaintiff does not demonstrate that damages could not be

computed upon a determination that the writ should

issue. In Rossco, 212 Cal. App. 3d at 642, the court states

in response to the argument that a mandamus require-

ment is out of step with recent Supreme Court cases:

3 The present case can be distinguished from a situation

where more than one primary right is affected. For example, in

Norco Constr., Inc. v. King County, 801 F.2d 1143 (9th Cir. 1986),

applying Washington law, the Court of Appeals held that a

state court writ of mandamus action did not bar a subsequent

federal action seeking damages. In that case, the court pointed

out that in the mandamus action the plaintiff sought to have a

particular development plot approved, while in the damages

action, the plaintiff sought damages for refusal to permit any

kind of subdivision. Therefore, plaintiff claimed injury to more

than one primary right.

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“There has been no showing that a mandamus proceed-

ing joined with an action for inverse condemnation is not

effective.” Id. at 659-60. Allowing plaintiff to go forward

with the present action seems roughly analogous to

allowing a plaintiff to sue once for general damages, and

again for consequential damages.

Therefore, defendants’ motion to dismiss for failure

to state a claim is granted because plaintiff’s claim is

barred by res judicata.

B. Defendants’ Motion for Attorney’s Fees

_ Defendants’ move for an award of attorney’s fees

pursuant to 42 U.S.C. § 1988. Under that statute, the

district court may award attorney’s fees to the prevailing

party at its discretion for any action “properly brought

under § 1983.” Maine v. Thiboutot, 448 U.S. 1, 9 (1980).

u

To prevent the possibility of discouraging prosn °c-

tive plaintiffs, a prevailing defendant should be awardcx.

fees only when the action is “frivolous, unreasonable, or

without foundation, even though not brought in subjec-

tive bad faith.” Hughes v. Rowe, 449 U.S. 5, 14 (1980)

(quoting Christianburg Garment Co. v. EEOC, 434 U.S. 412

(1978)). See also Boatowners and Tenants Ass’n v. Port of

Seattle, 716 F.2d 669 (9th Cir. 1983).

In Boatowners, a district court’s determination that

attorney’s fees should not be awarded to a prevailing

defendant was upheld by the Court of Appeals where the

claims concern complex constitutional issues. Id. at 664.

In the present case, defendants do not show that they

are entitled to an award of attorney’s fees. First, they do

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not cite any authority in support of the proposition that

plaintiff’s action is frivolous. Second, the law in the area

is uncertain and sufficiently complex to raise the possi-

bility of success for plaintiff. Given this, plaintiff’s claim

is not frivolous, unreasonable, or completely lacking in

foundation. Defendants’ motion for attorney’s fees pur-

suant to 42 U.S.C. § 1988 is therefore denied.

For the foregoing reasons, defendants’ motion to dis-

miss for failure to state a claim is GRANTED and defen-

dants’ motion for attorney’s fees pursuant to 42 U.S.C.

§ 1988 is DENIED.

IT IS SO ORDERED.

Dated: February 21, 1990

~~ /s/ William Keller

William D. Keller, Judge

United States District Court

C-1

APENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMA CONSTRUCTION,

Plaintiff-A ppellant,

baa i ria No. 90-55475

VS.

CITY OF LOS ANGELES;

BOARD OF BUILDING AND

SAFETY COMMISSIONERS OF

THE CITY OF LOS ANGELES;

CITY COUNCIL OF THE CITY

OF LOS ANGELES,

D.C. No.

CV-89-5432-WDK

ORDER

(Filed May 6, 1991)

Defendants-Appellees.

ee ee eee ee eI ee ee”

Before: PREGERSON, BRUNETTI, and T.G. NELSON,

Circuit Judges.

Counsel shall be prepared at oral argument to dis-

cuss whether subject matter jurisdiction is lacking

because Jama Construction Corp. did not first seek com-

pensation through California procedures for the alleged

regulatory taking before bringing its federal suit. See

Williamson County Regional Planning Commission v. Ham-

ilton Bank, 473 U.S. 172, 194 (1985).

D-1

APPENDIX D

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMA CONSTRUCTION,

Plaintiff-Appellant,

VS.

)

)

)

)

CITY OF LOS ANGELES; ) No. 90-55475

BOARD OF BUILDING AND ?

SAFETY COMMISSIONERS ?) D.C. No.

OF THE CITY OF LOS ) CV-89-5432-WDK

ANGELES; DEPARTMENT _ ?

OF BUILDING AND SAFETY ?

OF THE CITY OF LOS

ANGELES; CITY COUNCIL ?

OF THE CITY OF LOS

ANGELES, :

)

)

ORDER

(Filed Oct. 15, 1991)

Defendants-Appellees.

Before: PREGERSON, BRUNETTI, and T.G. NELSON,

Circuit Judges.

The panel as constituted above voted to deny the

petition for rehearing and to reject the suggestion for

rehearing en banc.

The full court has been advised of the suggestion for

rehearing en banc, and no judge of the court has

requested a vote on the suggestion for rehearing en banc

Fed. R. App. P. 35(b).

D-2

The petition for rehearing is denied, and the sugges

tion for rehearing en banc is rejected.

E-1

APPENDIX E

BENJAMIN M. REZNIK, ESQ.

SANDRA KAMENIR, ESQ.

REZNIK & REZNIK, A Law Corporation

15456 Ventura Boulevard, 5th Floor

Sherman Oaks, California 91403-3002

(818) 907-9898; (213) 872-2900

Attorneys for Petitioner,

JAMA CONSTRUCTION CORPORATION, INC.

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

JAMA CONSTRUCTION

CORPORATION, a California

corporation,

Petitioner,

and Plaintiff,

VS.

CITY OF LOS ANGELES, a

municipal corporation;

DEPARTMENT OF BUILDING

AND SAFETY OF THE CITY

OF LOS ANGELES; BOARD

OF BUILDING AND SAFETY

COMMISSIONERS OF THE

CITY OF LOS ANGELES; and

DOES 1 through 100,

inclusive,

)

)

)

)

)

)

)

)

)

)

Respondents

and

Defendants.

i i a a a

CASE NO. C 709 806

JUDGMENT

GRANTING

PEREMPTORY WRIT

OF MANDAMUS

AND ON

COMPLAINT FOR

DECLARATORY

RELIEF

1989)

(Filed June 5,

E-2

The above-entitled cause came on for trial on May 22,

1989, in Department 88 of this Court, the Honorable

Miriam Vogel, Judge Presiding, without a jury. Benjamin

M. Reznik, Esq., of Reznik & Reznik, appeared on behalf

of Petitioner and Plaintiff, JAMA CONSTRUCTION COR-

PORATION. James Hahn, City Attorney by and through

William F. Childs, Deputy City Attorney, appeared on

behalf of Respondents and Defendants, CITY OF LOS

ANGELES (hereinafter “CITY”), Department of Building

and Safety of the City of Los Angeles (hereinafter

“DEPARTMENT”), and Board of Building and Safety

Commissioners of the City of Los Angeles (hereinafter.

“BOARD”) (hereinafter collectively referred to as

“RESPONDENTS”).

The Administrative Record having been received into

evidence without objection, the Declarations of Lior

Novik dated December 27, 1988, Benjamin M. Reznik

dated March 6, 1989 and May 1, 1989, William F. Childs,

dated May 17, 1989 and Richard Holguin dated May 16,

1989 having been received into evidence without objec-

tion, and the matter having been briefed, argued and

submitted for decision, and the Court’s Statement of

Decision having been signed and filed:

1. A peremptory writ of mandamus shall issue from

this Court, remanding the proceedings to respondent and

commanding respondent to set aside its decision dated

April 26, 1989, in the administrative proceedings in the

matter of the appeal from the issuance of the haul route,

and to reconsider its action in the light of this court's

Statement of Decision;

E-3

2. In reaching its decision the Court found:

A. The project is not subject to further environmen-

tal review;

B. Petitioner is entitled to building, grading and any

other permits necessary for construction of the project

without being subject to any further environmental

review;

C. The Los Angeles City Council exceeded its

authority pursuant to Public Resources Code § 21166 in

ordering environmental review;

D. The BOARD exceeded its authority in ordering

an Environmental Impact Report prior to issuance of haul

route clearance.

3. The Court will retain continuing jurisdiction over

this matter.

DATED: June 5, 1989

By: MIRIAM A. VOGEL

THE HONORABLE MIRIAM VOGEI

Judge of the Superior Court

APPROVED AS TO FORM AND CONTENT

By /s/ William F. Childs

William Childs

Deputy City Attorney

a