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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0046%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 919

## Text

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 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

B-3

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

B-4

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.

B-6

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

B-7

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

B-8

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.

B-9

“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

B-10

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0046%3A1. Public record. Not legal advice.