Opposition Brief — Jama Construction Corp. v. City of Los Angeles

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term. 1991

JAMA CONSTRUCTION CORPORATION, INC.,

Petitioner,

Vv.

CITY OF LOS ANGELES, et al.,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION TO WRIT

OF CERTIORARI

JAMES K. HAHN, City Attorney

PATRICIA V. TUBERT. Deputy City Attorney

SUSAN D. PFANN, Deputy City Attorney*

200 North Main Street

Room 1700, City Hall East

Los Angeles, California 90012

(213) 485-6393

*Counsel of Record

2 CONTENTS REPRODUCED FROM FURNISHED PRETYPED COPY.

i

TABLE OF CONTENTS

Page

QVESTION PRESENTED . «© «© eee eve

STATEMENT OF JURISDICTION ...... 3

BITATEMEN: OF THE CASE . . - es we ew we so &

Pe > 8 6 47 ele Sie Gk ee eee

I. SNZRODUCTION . «© ws see eee

II. THE NINTH CIRCUIT CORRECTLY

DETERMINED THAT PETITIONER'S

TAKINGS CLAIM WAS NOT RIPE

FOR DECISION BECAUSE

PETITIONER HAD NOT SOUGHT

AND BEEN DENIED JUST

COMPENSATION IN STATE COURT .. 10

A. Petitioner Could Have,

But Did Not, Seek

Compensation in State

DOs « & 6 @¢ «¢ & « 0 6 se 28

B. The Ninth Circuit Opinion

Does Not Preclude Federal

Review of Takings or Due

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III. THE NINTH CIRCUIT OPINION

PRESENTS NO CONFLICT WITH

EXISTING OPINIONS . . .« « « « « 15

[Ves soe 4 ee ee eee eae eS

ii

TABLE OF AUTHORITIES ;

Page

CASES

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

266, 598 P.2d 25, aff'd on other

grounds 447 U.S. 255, 100 S.Ct.

2138, 65 L.Ed.2d 106 (1980) ....11

First English Evangelica] Lutheran

Church v. County of Los Angeles,

482 U.S. 304, 107 S.Ct.

2378, 96 L.Ed. 2d

230 (1967) . s « 2 « Bes Bee aes Oe

orc onstructi a

County, 80] F.2d 1143 (9th Cir.

1966) . 3 ss 6 ese ee

oss oldings

California, 212 Cal.App.3d 642,

659-660, 260 Cal.Rptr. 736 (1989),

cert. denied, U.S. P

110 S.Ct. 1809, 108 L.Ed.2d 940

(1990) .« «sees es © see Oe

Sinaloa Lake Owners Association v.

City of Simi Valley (9th Cir. 1989)

882 F.2d 1398, 1404, cert. denied,

U.S. , 110 S.Ct. 1317,

108 L.Ed.2d 493 (1990) .. 8, 15, 16

Williamson County Regional Planning

Commission v. Hamilton Bank,

473 U.S. 172, i105 S.CE;

3108, 87 L.Ed.2d

26 (13985) «+ « « 5 Bp Cs Bee Bas ae

iii

TABLE OF AUTHORITIES

Page

8 ONS

UNITED STATES CONSTITUTION

Wane Mmerament . . s« + « © «© © « 3, 8

FEDERAL LAWS

28 U.S.C.

0 Sy 7 |

Section 1983 etn @€ 6. s. #24, & 2e ©

TE W

California Government Code

Section 5.1. ee ee ee eee

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

JAMA CONSTRUCTION CORPORATION, INC.,

Petitioner,

Vv.

CITY OF LOS ANGELES, et al.,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION TO WRIT

OF CERTIORARI

QUESTION PRESENTED

Petitioner sought a writ of mandate in

state court to compel approval of its

development project, alleging that

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2

Respondent City improperly required an

environmental assessment of the project

impacts under state law. Petitioner also

sought damages for the delay caused by the

City's requirement. The trial court granted

the writ.

Damages for Fifth Amendment temporary

regulatory takings are recoverable in a

state court proceeding. First English

Vv elic uthe

Los Angeles, 482 U.S. 304, 107 S.Ct. 2378,

96 L.Ed. 2d 250 (1987). California has a

statutory procedure for pursuing damage

Claims for alleged takings. Nevertheless,

petitioner abandoned its damages claim in

the state trial court and instead brought an

action in federal district court under 28

U.S.C. Section 1983 based on the same facts,

Claiming a regulatory taking without just

3

compensation under the Fifth Amendment to

the United States Constitution.

The question presented is:

Whether an action for just compensation

under the Fifth Amendment may be maintained

in federal court where petitioner has

neither pursued nor been denied compensation

under available procedures in state court.

STATEMENT OF JURISDICTION

The decision of the Court of Appeal

that it had no jurisdiction under Williamson

ou j issi

~~

Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108,

87 L.Ed.2d 126 (1985) is correct and should

not be further’ reviewed. Respondent

received the Petition for Writ of Certiorari

Ss

on January 15, 1992, and is timely filing

this Brief in Opposition to Petition for

Writ of Certiorari.

STATEMENT OF THE CASE

In June, 1989, Petitioner filed a

complaint and petition for writ of mandate

in the Los Angeles Superior Court against

Respondent the City of Los Angeles, alleging

that Respondent improperly delayed its

development project by requiring an

environmental impact report. The acts of

which petitioner complained occurred not

earlier than 1988. Opinion of Ninth Circuit

Court of Appeal, Appendix A to Petition, at

page 9, fn. 2.

"References to "lettered" appendices are

to appendices attached to the petition for

writ of certiorari.

5

Petitioner's state court action sought

a writ of mandate, declaratory relief, and

damages. Answering Brief of Appellees in

Ninth Circuit Court of Appeal, dated

September 28, 1990, at pages 10-1C.1. The

trial court granted the writ of mandate.

Petitioner did not further pursue its

damages claim in state court, but instead

brought an action in federal district court,

alleging that Respondent's actions’ in

delaying its development permit constituted

a taking of property without just

compensation in violation of the Fifth

Amendment to the United States Constitution,

and seeking damages. The federal complaint

did not specifically allege a due process

violation.

6

The District Court found that the

wrongs alleged in the federal case involved

the same “primary rights" as the wrongs

alleged in the state case, and that since

petitioner could have, but did not, pursue

its damages claims in state court, the

federal action was barred by res judicata as

determined by state law. Appendix B, page

5, fn. 2, and pages 7-8.

Petitioner's brief to the Ninth Circuit

attacked the District Court ruling, and for

reasons not entirely clear, cited the

Williamson case while acknowledging that

Section 1983 claims for Fifth Amendment

takings damages could be pursued in state

court. Appellant's Opening Brief to Ninth

Circuit, dated August 31, 1990, at pages 14-

“

ie Respondent's Brief countered that the

takings claim was not ripe under Williamson,

since petitioner had not been denied just

compensation. Respondent's Brief in Ninth.

Circuit, dated September 28, 1990, at pages

16-17.

Petitioner raised the alleged due

process violation for the first time in its

Reply brief to the Ninth Circuit. Appendix

A, page 6, fn. 1.

The Ninth Circuit determined that since

petitioner had not sought and been denied

just compensation for the alleged taking in

state court, the action was not ripe for

decision under Williamson, and should be

*Petitioner incorrectly suggests that

the Ninth Circuit deprived it of an

opportunity to brief the Williamson issue

(petition, page 6, fn. 5); petitioner first

cited the case in its opening brief.

“N

8

dismissed for lack of subject matter

jurisdiction, citing Sinaloa Lake Owners

Association v. City of Simi Valley (9th Cir.

1989) 882 F.2d 1398, 1404, cert. denied,

U.S..___—, 110 S.Ct. 1317, 108 L.Ed.2d

493 (1990). Appendix A, page 8. Since the

alleged taking occurred after First English

required payment of damages in California

for regulatory takings, the Ninth Circuit

held the "ripeness" requirement was not

"futile", citing Sinaloa Lake Owners Ass'n,

at page 1402. Appendix A, page 8 and fn. 2.

To the extent. petitioner's federal

action raised a due process claim, the Ninth

Circuit held it barred by ges judicata.

Appendix A, page 6-7, fn. 1.

9

ARGUMENT

I.

INTRODUCTION

Petitioner attempts to persuade this

court that the Ninth Circuit opinion

deserves review by mixing the related but

separate requirements of Fifth Amendment

takings and due process claims, and by.

confusing the requirement for “ripeness" in

takings claims with the doctrine of fres

judicata as applied to all claims.

Petitioner misstates the record, and the

law.

10

II.

THE NINTH CIRCUIT CORRECTLY

DETERMINED THAT PETITIONER'S

TAKINGS CLAIM WAS NOT RIPE

FOR DECISION BECAUSE PETITIONER

HAD NOT SOUGHT AND BEEN DENIED

JUST COMPENSATION IN STATE COURT.

A. Petitioner Could Have, But Did Not,

Beek Compensation in State Court

The Ninth Circuit correctly determined

that petitioner's failure to pursue its

takings claim for damages in state court

rendered its federal action unripe under

Williamson, since petitioner had not sought

and been denied just compensation.

Petitioner's argument that there was no

state court yemedy is incorrect. Prior to

the Supreme Court decision in First English,

11

California law precluded a landowner from

seeking the remedy of damages in an inverse

condemnation action for a temporary

regulatory taking. Agins v. City of

Tiburon, 24 Cal.3d 266, 598 P.2d 25, aff'd

on other grounds 447 U.S. 255, 100 S.Ct.

2138, 65 L.Ed.2d 106 (1980). In First

English, the Supreme Court held that a

landowner was entitled to damages for a

regulatory taking.Since petitioner's cause

of action arose after the decision in First

English, the Ninth Circuit correctly

determined in this case that petitioner was

not excused from first seeking compensation

in state court before pursuing its federal

action. Appendix A, page 8-9, fn. 2.

Petitioner's argument that no state

procedures exist to pursue this remedy also

misstates the law. In ssco dings c.

12

v. State of California, 212 Cal.App.3d 642,

659-660, 260 Cal.Rptr. 736 (1989), cert.

denied, __—SXU.S.__, 110 S.Ct. 1809, 108

L.Ed.2d 940 (1990), decided after First

English, the state court held that an action

for inverse condemnation may be procedurally

joined with an administrative mandamus

action, and that no showing had been made

that such a procedure would be ineffective.

Since state procedures and remedies for

seeking and recovering compensation for

regulatory takings existed at the time of

the alleged taking, the Ninth Circuit

correctly determined the federal action was

not ripe inder Williamson.

*In fact, such actions are expedited in

California, with no requirement for prior

presentation and rejection of a claim to the

- local agency. California Government Code

section 5.1. Appendix l.

Petitioner implies that the Ninth

Circuit opinion would completely preclude

Fifth Amendment takings (or due process)

Claims from federal review under the

doctrine of res judicata. Petition, pages

15-16.

The Ninth Circuit did not determine

that petitioner's takings claims were barred

in federal court by the doctrine of fFes

judicata; it held them unripe. Appendix A,

page 6. Even if the Ninth Circuit had held

that petitioner's takings claims were barred

by res judicata (as the District Court had,

Appendix B), that decision would not support

petitioner's proposition that regulatory

14

takings claims are never federally

reviewable in California.

Petitioner could have pursued its

federal constitutional claims in its state

court action. Rossco Holdings, Inc. vy.

State of California 212 Cal.App.3d 642, 659-

660, 260 Cal.Rptr. 736 (1989), cert. denied,

Wee

a oman 9

110 S.Ct. 1809, 108 L.Ed.2d

940 (1990). Had petitioner pursued its

takings claims in state court, properly

raised the federal constitutional issues,

and been denied compensation by a final

decision of the state court of last resort,

petitioner could have sought review of the

federal takings issues by this Court under

28 U.S.C. Section 1257. Similarly, had

petitioner pursued and properly preserved

its due process claims in state courts,

federal review would be available under the

15

same procedure.” Therefore, further review

of this case is unwarranted.

Iit

THE NINTH CIRCUIT OPINION PRESENTS

WO CONFLICT WITH EXISTING OPINIONS

Petitioner asserts that the Ninth

Circuit opinion holding its due process

claims barred by res judicata conflicts with

two Ninth Circuit opinions: Norco

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

1143 (9th Cir. 1986) and Sinaloa Lake Owners

ssociation v. City o imi V ey, 882 F.2d

‘The Ninth Circuit, in holding

petitioner's late asserted due process

Claims barred under res judicata, recognized

that the ripeness requirement described in

Williamson did not apply to petitioner's due

process claims, citing Sinaloa. Appendix A,

page 7, fn. 1.

16

1398 (9th Cir. 1989), cert. denied, U.S.

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

As explained in the District Court

opinion, Norco is factually distinguishable,

Since it involved more than one alleged

wrong, or “primary right". In Norco, the

court merely held that a state court

determination of one primary right did not

preclude federal court consideration of a

different primary right. Appendix B, page

8, fn. 3. Thus, Norco presents no conflict.

Similarly, Sinaloa presents no

conflict. Sinaloa involved no issue of res

judicata. Instead Sinaloa held a federal

takings claim unripe absent denial of

compensation in state court, and further

held that the same ripeness requirement did

| not apply to federal due process claims.

864 F.2d 1475 at 1481.

|

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17

CONCLUSION

Based on the foregoing, Respondent

respectfully submits that the decision of

the Ninth Circuit Court of Appeal was proper

and should not be further reviewed.

Respectfully submitted,

JAMES K. HAHN, City Attorney

PATRICIA V. TUBERT, Deputy City Attorney

SUSAN D. PFANN, Deputy City Attorney*

Los Angeles City Attorney's Office

200 North Main Street

Room 1700, City Hall East

Los Angeles, California 90012

(213) 485-6393

DATED: February 13, 1992 *Counsel of Record

APPENDT}

Fil i siN LJ p 4

APPENDIX 1

California Government Code § 905.1

Inverse condemnation; claim

unnecessary to maintain action;

procedure if claim filed.

"No claim is required to be filed to

maintain an action against a public entity

for taking of, or damage to, private

property pursuant to Section 19 of Article I

of the California Constitution.

However, the board shall, in accordance

with the provisions of this part, process

any claim which is filed against a public

entity for the taking of, or damage to,

private property pursuant to Section 19 of

Article I of the California Constitution."