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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0046%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 919

## Text

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."

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0046%3A2. Public record. Not legal advice.