Appendix — Mass v. City of Carlsbad
Supreme Court brief1995
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Supreme Court, U.8.
FILED
N 941018 DE 219%
‘\ J
_—
OFFICE OF THE CLERK
No.
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1994
THOMAS A. MASS, pro se and JANET A. MASS,
Petitioners,
v.
CITY OF CARLSBAD, a Municipal Corporation;
FIELDSTONE/LA COSTA ASSOCIATES LIMITED
PARTNERSHIP, a California Limited Partnership,
Respondents.
On Petition for a Writ of Certiorari to the Court of
Appeal of California, Fourth Appellate District,
Division One
APPENDIX VOLUME II
THOMAS A. MASS
Counsel of Record
2851 Torry Court
Carlsbad, CA 92009
Tel: (619) 931-0100
Fax: (619) 438-7850
CHRISTOPHER LIEF MASS
Of Counsel
Pacific Bay Towers
2035 Fourth Street, Suite 107-C
Santa Monica, CA 90405
Tel: (310) 399-3050
5 |
No.
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1994
THOMAS A. MASS, pro se and JANET A. MASS,
Petitioners,
Vv.
CITY OF CARLSBAD, a Municipal Corporation;
FIELDSTONE/LA COSTA ASSOCIATES LIMITED
PARTNERSHIP, a California Limited Partnership,
Respondents.
On Petition for a Writ of Certiorari to the Court of
Appeal of California, Fourth Appellate District,
Division One
APPENDIX VOLUME II
THOMAS A. MASS
Counsel of Record
2851 Torry Court
Carlsbad, CA 92009
Tel: (619) 931-0100
Fax: (619) 438-7850
CHRISTOPHER LIEF MASS
Of Counsel
Pacific Bay Towers
2035 Fourth Street, Suite 107-C
Santa Monica, CA 90405
Tel: (310) 399-3050
APPENDIX II
Table of Contents
PART ONE
Constitutions, Statutes and Ordinances........... 1
PART TWO
Docket Entries for the following courts
Trial Court, Court of Appeal, and the
Califomia Supreme Court .................... 18
PART THREE
Lengthy quotations in support of jurisdictional
aspects of the federal question involved 39
I. Inverse Condemnation. .............. 40
Ii. Statute of Limitations................ 76
lil. Denial Of The Civil Rights Cause Of
Action §1983 Including Inverse
Condemnation And The Cause Of
Action For A Writ Of Mandate
Ee 92
IV. If Proceedings, Decisions And Laws
Upon Which They Are Based Are
Void For Any Reason, They Are
Subject To Being Collaterally Attacked.
In Such Cases, The Statute Of
Limitations Is Not A Defense, Laches
Maybe, Not The Statute Of Limitations
eo ee 122
VY. Indemnity, Immunity And Intention..... 134
i SE 6A 5A en es Gree ke 142
Wee. Fe NE kn 0 bis ew dane 143
VIII. Amended And Supplemental Complaint... 146
IX. Constitution Of The United States
Is The Supreme Law Of The Land....... 148
ii
PART ONE
CONSTITUTIONS, STATUTES AND CODES
CONSTITUTION FOR THE UNITED STATES
ARTICLE SIX
This Constitution and the laws of the United States which shall
be made in pursuance thereof and all treaties made, or which
shall be made under the authority of the United States, shall be
the supreme law of the land; and the judges in every State shall
be bound thereby, anything in the Constitution or laws of any
State to the contrary notwithstanding.
AMENDMENT ARTICLE FIVE
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces, or
in the militia, when in actual service in time of war or public
danger; nor shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use, without just
compensation.
AMENDMENT ARTICLE SEVEN
In suits at common law, where the value of controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise
reexamined in any court of the United States, than according to
the rules of the common law.
AMENDMENT ARTICLE FOURTEENTH
Section 1. All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the Unites
States and of the State wherein they reside. No state shall make
or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.
FEDERAL STATUTES
42 U.S.C. § 1983. Civil action for deprivation of rights.
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. For the purposes of this
section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the
District of Columbia.
42 U.S.C. § 1985. Conspiracy to interfere with civil rights
Obstructing justice; intimidating party, witness, or juror
(2) If two or more persons in any State or Territory
conspire to deter, by force, intimidation, or threat, any party or
witness in any court of the United States from attending such
court, or from testifying to any matter pending therein, freely,
fully, and truthfully, or to injure such party or witness in his
person Of property on account of his having so attended or
testified, or to influence the verdict, presentment, or indictment
of any grand or petit juror in any such court, or to injure such
juror in his person or property on account of any verdict,
presentment, or indictment lawfully assented to by him, or of his
being or having been such juror; or if two or more persons
conspire for the purpose of impeding, hindering, obstructing, or
defeating, in any manner, the due course of justice in any State
or Territory, with intent to deny to any citizen the equal
protection of the laws, or to injure him or his property for
lawfully enforcing, or attempting to enforce, the right of any
person, or class of persons, to the equal protection of the laws:
Depriving persons of rights or privileges
(3) If two or more persons in any State or Territory
conspire or go in disguise on the highway or on the premise of
another, for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection
of the laws, or of equal privileges and immunities under the
laws; or for the purpose of preventing or hindering the
constituted authorities of any State or Territory from giving or
securing to all persons within such State or Territory the equal
protection of the laws; or if two or more persons conspire to
prevent by force, intimidation, or threat, any citizen who is
lawfully entitled to vote, from giving his support or advocacy in
a legal manner, toward or in favor of the election of any
lawfully qualified person as an elector for President or Vice
President, or as a Member of Congress of the United States; or
to injure any citizen in person or property on account of such
support or advocacy; in any case of conspiracy set forth in this
section, if one or more persons engaged therein do, or cause to
be done, any act in furtherance of the object of such conspiracy,
whereby another is injured in his person or property, or
deprived of having and exercising any right or privilege of a
citizen of the United States, the party so injured or deprived may
have an action for the recovery of damages occasioned by such
injury or deprivation, against any one or more of the
conspirators.
42 U.S.C. § 1986. Action for neglect to prevent
Every person who, having knowledge that any of the wrongs
conspired to be done, and mentioned in section 1985 of this
title, are about to be committed, and having power to prevent or
aid in preventing the commission of the same, neglects or
refuses so to do, if such wrongful act be committed, shall be
liable to the party injured, or his legal representatives, for all
damages caused by such wrongful act, which such person by
reasonable diligence could have prevented; and such damages
may be recovered in an action on the case; and any number of
4
persons guilty of such wrongful neglect or refusal may be
joined as defendants in the action; and if the death of any party
be caused by any such wrongful act and neglect, the legal
representatives of the deceased shall have such action therefor,
and may recover not exceeding $5,000 damages therein, for the
benefit of the widow of the deceased, if there be one, and if
there be no widow, then for the benefit of the next of kin of the
deceased. But no action under the provisions of this section
shall be sustained which is not commenced within one year after
the cause of action has accrued.
42 U.S.C. § 1988. Proceedings in vindication of civil rights;
attorney's fees; expert fees
(a) Applicability of statutory and common law.
The jurisdiction in civil and criminal matters conferred on
the district courts by the provisions of this Title, and of Title
"CIVIL RIGHTS,” and of Title "CRIMES," for the protection of
all persons in the United States in their civil rights, and for their
vindication, shall be exercised and enforced in conformity with
the laws of the United States, so far as such laws are suitable to
carry the same into effect; but in all cases where they are not
adapted to the object, or are deficient in the provisions necessary
to furnish suitable remedies and punish offenses against law, the
common law, modified and changed by the constitution and
Statutes of the State wherein the court having jurisdiction of such
civil or criminal cause is held, so far as the same is not
inconsistent with the Constitution and laws of the United States,
shall be extended to and govern the said courts in the trial and
disposition of the cause, and, if it is of a criminal nature, in the
infliction of punishment on the party found guilty.
(b) Attorney's fees
In any action or proceeding to enforce a provision of
sections 1981, 1981a, 1982, 1983, 1985, and 1986 and of this
title, title IX of Public Law 92-318, or title VI of the Civil Rights
Act of 1964, the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney's fee as
part of the costs.
(c) Expert fee
In awarding an attorney's fee under subsection (b) of this
section in any action or proceeding to enforce a provision of
section 1981 or 1981a of this title, the court, in its discretion,
may include expert fees as part of the attorney's fee.
CALIFORNIA GOVERNMENT CODE
§ 65091. Notice by mail or delivery
(a)(3) Notice of the hearing shall be mailed or delivered
at least 10 days prior to the hearing to all owners of real
property as shown on the latest equalized assessment roll within
300 feet of the real property that is the subject of the hearing.
In lieu of utilizing the assessment roll, the local agency may
utilize records of the county assessor or tax collector which
contain more recent information than the assessment roll. If the
number of owners to whom notice would be mailed or delivered
nursuant to this paragraph or paragraph (1) is greater than
1,000, a local agency, in lieu of mailed or delivered notice, may
provide notice by placing a display advertisement of at least one
eighth page in at least one newspaper of general circulation
within the local agency in which the proceeding is conducted at
least 10 days prior to the hearing.
(c) In addition to me notice required by this section, a
local agency may give notice of the hearing in any other
manner it deems necessary or desirable.
§ 65351. Opportunities for community involvement; Public
hearings
During the preparation or amendment of the general plan, the
planning agency shall provide opportunities for the involvement
of citizens, public agencies, public utility companies, and civic,
6
education, and other community groups, through public
hearings and any other means the city or county deems
appropriate.
§ 66451.4 Notice of application to owners within 300 feet
(a) In addition to the notice required by Section 66451.3,
whenever approval of a tentative map will constitute a substantial
or significant deprivation of the property rights of other
landowners, the local agency shall provide notice of the
application to all persons, including businesses, corporations, or
other public or private entitics, shown on the last equalized
assessment roll, as owning real property within 300 feet of the
property which is the subject of the application.
(b) The notice shall be given by at least one of the
following methods:
(1) Direct mailing to me owners.
(2) Posting of notice by the local agency on and off the
Site in the area where the project is to be located.
(3) Delivery of notice by any means other than mail to the
owners.
(4) Any other method reasonably calculated by the local
agency to provide actual notice of the hearing.
(c) Nothing contained in this section shall preclude a local
agency from providing additional notice by other means, nor
shall the requirements of this section preclude the local agency
from providing the necessary notice at the same time and in the
same manner as public notice otherwise required by law for
such project.
(Added by Stats.1980, c. 1154, p. 3808, §1, eff. Sept. 26, 1980.)
§ 66451.4. [Added by Stats 1980 ch 1151, §2, ch 1154 §1,
effective September 29, 1980, Stats 1982 ch 87 §14, effective
March |, 1982 and repealed by Stats 1984 ch 1009 §§31, 32.]
§ 66458. Approval
(a) The legislative body shall, at the mecting at which it receives
the map or, at its next regular meeting after the meeting at which
it receives the map, approve the map if it conforms to all the
requirements of this chapter and any local subdivision
ordinance applicable at the time of approval or conditional
approval of the tentative map and any rulings made thereunder.
If the map docs not conform, the Icgislative body shall
disapprove the map.
(b) If the legislative body does not approve or disapprove the
map within the prescribed time, or any authorized extension
thereof, and the map conforms to all requirements and rulings, it
shall be deemed approved, and the clerk of the legislative body
shall certify its approval thereon.
(c) The mecting at which the legislative body receives the map
shall be the date on which the clerk of the legislative body
receives the map.
§ 66473. Disapproval for noncompliance
A local agency shall disapprove a map for failure to meet or
perform any of the requirements or conditions imposed by this
division or local ordinance enacted pursuant thereto; provided
that a final map shall be disapproved only for failure to meet or
perform requirements or conditions which were applicable to
the subdivision at the time of approval of the tentative map; and
provided further that such disapproval shall be accompanied by
a finding identifying the requirements or conditions which have
not been met or performed. Such local ordinance shall include,
but need not be limited to, a procedure for waiver of the
provisions of this section when the failure of the map is the
result of a technical and inadvertent error which, in the
determination of the local agency, does not materially affect the
validity of the map. '
§ 66473.5. Required findings
No local agency shall approve a tentative map, Or a parcel map
for which a tentative map was not required, unless the legislative
body finds that the proposed subdivision, together with the
provisions for its design and improvement, is consistent with the
general plan required by Article 5 (commencing with Section
65300) of Chapter 3 of Division 1, or any specific plan adopted
pursuant to Article 8 (commencing with Section 65450) of
Chapter 3 of Division 1.
A proposed subdivision shall be consistent with a general
plan or a specific plan only if the local agency has officially
adopted such a plan and the proposed subdivision or land use is
compatible with the objectives, policies, general land uses, and
programs specified in such a plan.
§ 66474. Denial of approval of map upon certain findings
A legislative body of a city or county shall deny approval of a
tentative map, or a parcel map for which a tentative map was not
required, if it makes any of the following findings:
(a) That the proposed map is not consistert with
applicable general and specific plans as specified in Section
65451.
(b) That the design or improvement of the proposed
subdivision is not consistent with applicable general and specific
plans.
(c) That the site is not physically suitable for the :ype of
development.
(d) That the site is not physically suitable for the proposed
density of development.
(ce) That the design of the subdivision or the proposed
improvements are likely to cause substantial environmental
damage or substantially and avoidably injure fish or wildlife or
their habitat.
(f) That the design of the subdivision or type of
improvements is likely to cause serious public health problems.
(g) That the design of the subdivision or the type of
improvements will conflict with easements, acquired by the
public at large, for access through or use of, property within the
proposed subdivision. In this connection, the governing body
may approve a map if it finds that alternate easements, for access
or for use, will be provided, and that these will be substantially
- equivalent to ones previously acquired by the public. This
subsection shall apply only to easements of record or to
casements established by judgment of a court of competent
jurisdiction and no authority is hereby granted to a legislative
body to determine that the public at large has acquired
easements for access through or use of property within the
proposed subdivision.
§ 66474.1. Approval of final or parcel map complying with
previously approved tentative map
A legislative body shall not deny approval of a final or parcel
map if it has previously approved a tentative map for the
proposed subdivision and if it finds that the final or parcel map
is in substantial compliance with the previously approved
tentative map.
§ 66474.9 Indemnification as condition for map application
or approval
(a) Except as provided in subdivision (b), a local agency may
not require, as a condition for a tentative, parcel, or final map
application or approval, that the subdivider or an agent of the
subdivider, defend, indemnify, or hold harmless the local
agency or its agents, officers, and employees from any claim,
action, or proceeding against the local agency as a result of the
action or inaction of the local agency, advisory agency, appeal
board, or legislative body in reviewing, approving, or denying
the map.
10
(b)(1) A local agency may require, as a condition for a
tentative, parcel, or final map application or approval, that the
Subdivider defend, indemnify, and hold harmless the local
agency or its agents, officers, and employees from any claim,
action, or proceeding against the local agency or its agents,
officers, or employees to attack, set aside, void, or annul, an
approval of the local agency, advisory agency, appeal board, or
legislative body concerning a subdivision, which action is
brought within the time period provided for in Section
66499.37. [Remainder of section omitted in printing. }
§ 66499.37. Limitation period
Any action of proceeding to attack, review, set aside, void or
annul the decision of an advisory agency, appeal board or
legislative body concerning a Subdivision, or of any of the
proceedings, acts or determinations taken, done or made prior to
such decision, or to determine the reasonableness, legality or
validity of any condition attached thereto, shall not be
maintained by any person unless such ection or proceeding is
commenced and service of summons effected within 90 days
after the date of such decision. Thereafter all persons are
barred from any such action or proceeding or any defense of
invalidity or unreasonableness of such decision or of such
proceedings, acts or determinations. Any such proceeding shall
take precedence over all matters of the calendar of the court
except criminal, probate, eminent domain and forcible entry and
unlawful detainer proceedings.
CALIFORNIA VEHICLE CODE
§ 21. Uniformity of code
Except as otherwise expressly provided, the provisions of this
code are applicable and uniform throughout the State and in all
counties and municipalities therein, and no local authority shall
enact or enforce any ordinance on the matters covered by this
code unless expressly authorized herein.
CALIFORNIA CIVIL CODE
§ 3482. Acts under statutory authority not a nuisance
WHAT IS NOT DEEMED A NUISANCE. Nothing which is
done or maintained under the express authority of a statute can
be deemed a nuisance.
(Enacted 1872.)
CALIFORNIA CODE OF CIVIL PROCEDURE
§ 338
(j) An action to recover for physical damage to private
property under Section 19 of Article I of the California
Constitution.
§ 1094.5
(a) Where the writ is issued for the purpose of inquiring
into me validity of any final administrative order or decision
made as the result of a proceeding in which by law a hearing is
required to be given, evidence is required to be taken, and
discretion in the determination of facts is vested in the inferior
tribunal, corporation, board, or officer, the case shall be heard
by the court sitting without a jury... .
(b) The inquiry in such a case shall extend to the
questions whether the respondent has proceeded without or in
excess of jurisdiction; whether there was a fair trial; and whether
there was any prejudicial abuse of discretion. Abuse of
discretion is established if the respondent has not proceeded in
the manner required by law, the order or decision is not
supported by the findings, or the findings are not supported by
the evidence.
[Balance of section omitted in printing.}
12
§ 1094.6
(f) In making a final decision as defined in subdivision
(ce), the local agency shall provide notice to the party that the
lime within which judicial review must be sought is governed by
this section.
CARLSBAD MUNICIPAL CODE
§ 1.16.010 Time limits for judicial review.
(a) Judicial review of any decision of the city or of any
commission, board, officer, or agent of the city may be had
pursuant to Code of Civil Procedure, Section 1094.5, only if the
petition for writ of mandate pursuant to such section is filed
within the time limits specified in this section.
(b) Any such petition shall be filed not later than the
ninetieth day following the date on which the decision becomes
final. If there is no provision for reconsideration of the decision
in any applicable provision of any Statute, charter, ordinance, or
rule, for the purposes of this section, the decision is final on the
date it is made. If there is such provision for reconsideration,
the decision is final for the Purposes of this section upon the
expiration of the period during which such reconsideration can
be sought; provided, that if reconsideration is sought pursuant to
any such provision, the decision is final for the purposes of this
section on the date that reconsideration is rejected.
(c) The complete record of the proceedings shall be
prepared by the city or its commission, board, officer, or agent
which made the decision and shall be delivered to the party
requesting such record within ninety days after he has filed a
written request therefor, A request for the preparation of the
record of the proceedings shall be filed with the person
designated in the final decision. Such person shall, within ten
days of such request, notify the party of the estimated costs of
the preparation of the requested record. The party requesting
Such record shall, within ten days of such notification, deposit
with the person designated in the decision an amount sufficient
13
to cover the cstimated cost. If during the preparation of the
record it appears that additional costs will be incurred, the party
requesting such record may be notified and, if requested, shall
deposit such additional amounts before the record will be
completed. If the cost of the preparation of the record exceeds
the amount deposited, the party requesting such record shall pay
this additional amount. If the amount deposited exceeds the
cost, the difference shall be returned to the party requesting
such record. Upon receiving the required deposit, the person
designated in the decision shall promptly prepare such record in
accordance with the request. Such record shall include the
transcript of the proceedings; all pleadings; all notices and
orders; any proposed decision by a hearing officer; the final
decision; all admitted exhibits; all rejected exhibits in the
possession of the city or its commission, board, officer, or agent;
all written evidence; and any other papers in the case.
(d) If the party files a request for the record as specified
in subsection (c) of this section within ten days after the date the
decision becomes final as provided in subsection (b) of this
section, the time within which a petition pursuant to Code of
Civil Procedure, Section 1094.5, may be filed shall be extended
to not later than the thirtieth day following the date on which the
record is cither personally delivered or mailed to the party or his
attorney of record, if he has one.
(ec) As used in this section, “decision” means any
adjudicatory administrative decision made, after hearing,
suspending, demoting, or dismissing an officer or employee,
revoking or denying an application for a permit or a license, or
denying an application for any retirement benefit or allowance.
(f) In making a final decision as defined in subsection (ec)
of this section, the city shall provide notice to the party that the
time within which judicial review must be sought is governed by
this section. Upon giving notice of any decision subject to this
section, the person responsible to issue such decision shall
include in the decision a statement substantially as follows:
The time within which judicial review of this decision must
be sought is governed by Code of Civil Procedure, Section
14
1094.6, which has been made applicable in the City of
Carlsbad by Carlsbad Municipal Code Chapter 1.16. Any
petition or other paper seeking judicial review must be filed
in the appropriate court not later than the ninctieth day
following the date on which this decision becomes final;
however, if within ten days after the decision becomes final a
request for the record of the proceedings accompanied by
the required deposit in an amount sufficient to cover the
estimated cost of preparation of such record, the time within
which such petition may be filed in court is extended to not
later than the thirtieth day following the date on which the
record is either personally delivered or mailed to the party,
or his attorney of record, if he has one. A written request
for the preparation of the record of the proceedings shall be
filed with
(name and address of designated person)
As used in this section, “party" means an officer or
employee who has been suspended, demoted, or dismissed; a
person whose permit or license has been revoked or whose
application for a permit or license has been denied; or a person
whose application for a retirement benefit or allowance has been
denied. (Ord. 1203 § 1, 1977)
CARLSBAD SUBDIVISION ORDINANCE
§20.20.010 Maps to conform to requirements of planning
commission or city council.
All final and parcel maps for major subdivisions shall
conform to the requirements of the Subdivision Map Act and
this title and also shall conform to the requirements specified in
the planning commission or city council resolution approving
or conditionally approving the tentative map. (Ord. 9602 § 15,
1981; Ord. 9417 § 2 (part), 1975)
15
RE”
§20.20.020 City council to approve maps.
(a) The city council shall not consider a final map unless
there is a valid tentative map for the subdivision.
(b) No final map shall be filed in he office of the county
recorder until approved by the city council, but such map shall
be disapproved only for failure to meet or perform
requirements or conditions which were applicable to the
subdivision at the time of approval of the tentative map,
providing that any such disapproval shall be accompanied by a
finding identifying the requirements or conditions which have
not been met or performed. The city council may waive any
failure of the map to meet such requirements and conditions if
such failure is a result of a technical and inadvertent error which,
in the determination of the city council, doesn't materially affect
the validity of the map.
§20.20.040 Grant of open space easement.
In the event that a grant of an open space easement is to be
made over any portion of the subdivision, the final map shall
contain a certificate signed and acknowledged by those parties
having any record title interest in the subdivided land granting
such open space easement and stating the conditions of the
grant. (Ord. 9417 § 2 (part), 1975)
§21.54.060 Notices.
Notice of public hearing shall be given as follows:
(c) Notice of the hearing shall be mailed or delivered at
least ten days prior to the hearing to all owners of real property
as shown on the latest equalized assessment roll within six
hundred feet, or three hundred feet for variance applications, of
the real property that is the subject of the hearing. In lieu of
utilizing the assessment roll, records of the county assessor or
tax collector which contain more recent information than the
assessment roll may be usec. If the number of owners to whom
16
notice would be mailed or delivered pursuant to this
subparagraph is greater than one thousand in lieu of mailed or
delivered notice, the city manager may permit notice to be given
by placing a display advertisement of at least one-eighth page
in at least two newspapers of general circulation within the City
at least ten days prior to the hearing.
§21.54.064 Applicant's responsibilities. .
(a) The applicant for any action requiring a noticed
public hearing shall provide the city with a list of persons or
entities to whom notice must be given and the addresses of such
persons. The applicant shall also provide stamped, addressed
envelopes for mailing notice. The list and the envelopes, if
required, shall be provided to the city not more than forty-five
nor less than thirty days prior to the time the matter is scheduled
for hearing. If the number of persons to whom notice would be
mailed exceeds one thousand the applicant may, in lieu of
providing the stamped, addressed envelopes, provide an
appropriate display advertisement. The applicant shall verify
the accuracy of the list and the addresses. The secretary of the
planning commission or the city clerk shall be responsible for
informing the applicant of the date a matter is scheduled for
hearing.
(b) The applicant shall pay the cost of providing the
notice required by this chapter. (Ord. 9758 § 19, 1985)
§21.54.120 General plan amendments.
All provisions of this chapter applicable to the amendm:nt
of zone classifications shall also apply to amendments to the
general plan or to any of the elements thereof.
If the hearings for general plan amendments are held at the
same time as hearings for zone amendments under Chapter
21.52, the notice of such hearings may be combined with those
required for general plan amendments under this section. (Ord.
NS-44 § 2, 1988; Ord. 9379 § 2, 1974)
17
PART TWO
COURT DOCKET ENTRIES
CHRONOLOGICAL INDEX TO
IOINT APPENDIX IN LIEU OF CLERK'S TRANSCRIPT
VOL. PAGE
COMPLAINT FOR INVERSE
CONDEMNATION AND NUISANCE
REQUESTING DECLARATORY RELIEF
AND IN THE ALTERNATIVE A WRIT
OF MANDATE, ALL CAUSES ARE
CLASS ACTIONS, FILED 10/18/91. ] 1
CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA ASSOCIATES'
DEMURRER AND NOTICE OF HEARING
ON DEMURRER TO COMPLAINT OF
“THOMAS A. MASS, JANET A. MASS,
ON BEHALF OF THEMSELVES AND
ALL OTHER SIMILARLY SITUATED",
FILED 12/2/91. 1 44
CITY OF CARLSBAD'S AND FIELD-
STONE/LA COSTA'S NOTICE OF MOTION
AND MOTION TO STRIKE PORTIONS OF
COMPLAINT OF "THOMAS A. MASS,
JANET A. MASS, ON BEHALF OF
THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED," FILED 12/2/91. 1 47
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEMURRER AND MOTION TO STRIKE
BY THE CITY OF CARLSBAD AND
FIELDSTONE/LA COSTA ASSOCIATES
LIMITED, FILED 12/2/91. 1 51
18
VOL. PAGE
NOTICE OF LODGMENT IN
SUPPORT OF CITY OF CARLSBAD'S
AND FIELDSTONE/LA COSTA
ASSOCIATES LIMITED PARTNERSHIP'S
DEMURRER AND MOTION TO STRIKE,
FILED 12/2/91. | 73
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
DEFENDANTS' DEMURRER AND
MOTION TO STRIKE AND IN
SUPPORT OF PLAINTIFFS’ +
COMPLAINT, FILED 1/8/92. I 75
NOTICE OF LODGMENT IN SUPPORT
OF PLAINTIFFS' MEMORANDUM OF
POINTS AND AUTHORITIES OBJECTING
TO DEFENDANTS’ DEMURRER AND
MOTION TO STRIKE PORTIONS OF
PLAINTIFFS’ COMPLAINT (INCLUDING
AS AN EXHIBIT A COPY OF PLAINTIFFS’
PROPOSED SUPPLEMENTAL
MEMORANDUM OF POINTS AND
AUTHORITIES), FILED 1/8/92. ] 99
SUPPLEMENTAL MEMORANDUM OF
POINTS AND AUTHORITIESIN
OPPOSITION TO DEFENDANTS"
DEMURRER AND MOTION TO STRIKE
AND IN SUPPORT OF PLAINTIFFS’
COMPLAINT, LODGED WITH CLERK
OF COURT 1/8/92. | 102
19
CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA ASSOCIATES'
REPLY MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT
OF DEMURRER AND MOTION TO
STRIKE, FILED 1/17/92.
MINUTES/ORDER OF THE COURT,
HEARING DATE - 3/17/92
MINUTES/ORDER OF THE COURT,
HEARING DATE - 3/27/92.
NOTICE OF RULING ON DEMURRER
AND MOTION TO STRIKE FILED BY
CITY OF CARLSBAD AND
FIELDSTONE/LA COSTA ASSOCIATES
LIMITED PARTNERSHIP, FILED 4/1/92.
FIRST AMENDED COMPLAINT FOR
INVERSE CONDEMNATION AND
NUISANCE REQUESTING DECLARA-
TORY RELIEF AND IN THE
ALTERNATIVE A WRIT OF MANDATE,
ALL CAUSES ARE CLASS ACTIONS,
FILED 4/1/92.
CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA ASSOCIATES'
DEMURRER AND NOTICE OF HEARING
ON DEMURRER TO FIRST AMENDED
COMPLAINT OF "THOMAS A. MASS,
JANET A. MASS, ON BEHALF OF
THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED," FILED 4/16/92.
20
VOL. PAGE
I 123
1 133
] 134
| 135
] 137
1 185
VOL. PAGE
CITY OF CARLSBAD'S AND FIELDST ONE/
LA COSTA'S NOTICE OF MOTION AND
MOTION TO STRIKE PORTIONS OF FIRST
AMENDED COMPLAINT OF "THOMAS A.
MASS, JANET A. MASS, ON BEHALF OF
THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED," FILED 4/16/92. 1 188
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEMURRER AND MOTION TO STRIKE
BY THE CITY OF CARLSBAD AND
FIELDSTONE/LA COSTA ASSOCIATES
LIMITED, FILED 4/16/92. | 192
NOTICE OF LODGMENT IN SUPPORT
OF CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA ASSOCIATES
LIMITED PARTNERSHIP'S DEMURRER
AND MOTION TO STRIKE,
FILED 4/16/92. H 211
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
DEFENDANTS' DEMURRER AND
MOTION TO STRIKE PLAINTIFFS’
FIRST AMENDED COMPLAINT,
FILED 5/4/92. l 213
NOTICE OF LODGMENT IN SUPPORT
OF PLAINTIFFS' MEMORANDUM OF
POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANTS'
DEMURRER AND MOTION TO STRIKE
PLAINTIFFS' FIRST AMENDED
COMPLAINT, FILED 5/4/92. 2 235
21
VOL. PAGE
CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA ASSOCIATES'
REPLY MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEMURRER AND MOTION TO STRIKE,
FILED 5/8/92. 2 238
MINUTES/ORDER OF THE COURT,
HEARING DATE - 5/12/92. 2 248
MINUTES/ORDER OF THE COURT,
HEARING DATE - 5/22/92. 2 249
SECOND AMENDED COMPLAINT FOR
INVERSE CONDEMNATION, NUISANCE
AND/OR NEGLIGENCE, REQUESTING
DECLARATORY RELIEF, AND IN THE
ALTERNATIVE A WRIT OF MANDATE,
FILED 5/22/92. 2 250
CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA ASSOCIATES'
DEMURRER TO AND NOTICE OF
HEARING ON DEMURRER AND TO
SECOND AMENDED COMPLAINT OF
THOMAS A. MASS AND JANET A.
MASS, FILED 6/15/92. 2 301
CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA'S NOTICE OF
MOTION AND MOTION TO STRIKE
PORTIONS OF SECOND AMENDED
COMPLAINT, FILED 6/15/92. 2 304
22
VOL. PAGE
CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA ASSOCIATES’
LIMITED PARTNERSHIP'S MEMORANDUM
OF POINTS AND AUTHORITIES IN
SUPPORT OF THEIR DEMURRER TO
AND MOTION TO STRIKE PORTIONS
OF THE SECOND AMENDED
COMPLAINT, FILED 6/15/92. 2
NOTICE OF LODGMENT IN SUPPORT
OF CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA ASSOCIATES
LIMITED PARTNERSHIP’S DEMURRER
TO AND MOTION TO STRIKE PORTIONS
OF SECOND AMENDED COMPLAINT,
FILED 6/15/92. 2
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
DEFENDANTS' DEMURRER AND
MOTION TO STRIKE PLAINTIFFS’
SECOND AMENDED COMPLAINT,
FILED 7/20/92. 2
NOTICE OF LODGMENT IN SUPPORT
OF PLAINTIFFS’ MEMORANDUM OF
POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANTS’
DEMURRER AND MOTION TO STRIKE
PLAINTIFFS' SECOND AMENDED
COMPLAINT (WITH EXHIBIT
T - MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
DEFENDANTS' DEMURRER AND
MOTION TO STRIKE PLAINTIFFS’
SECOND AMENDED COMPLAINT),
RECEIVED 7/20/92 2
23
308
327
329
362
CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA ASSOCIATES'
LIMITED PARTNERSHIP'S REPLY
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF THEIR
DEMURRER TO AND MOTION TO
STRIKE PORTIONS OF THE SECOND
AMENDED COMPLAINT, FILED 7/23/92.
MINUTES/ORDER OF THE COURT,
HEARING DATE - 7/27/92.
MINUTES/ORDER OF THE COURT,
HEARING DATE - 8/7/92.
THIRD AMENDED COMPLAINT FOR
PLAINTIFFS' THIRD CAUSE OF
ACTION FOR A WRIT OF MANDATE
IN THE ALTERNATIVE, FILED 8/6/92.
CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA ASSOCIATES'
DEMURRER TO AND NOTICE OF
HEARING ON DEMURRER TO
THIRD AMENDED COMPLAINT
OF THOMAS A. MASS AND JANET A.
MASS, FILED 9/3/92.
CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA'S NOTICE OF
MOTION AND MOTION TO STRIKE
PORTIONS OF THIRD AMENDED
COMPLAINT AND ALL OF PLAINTIFFS'
AMENDED AND SUPPLEMENTAL
COMPLAINT, FILED 9/3/92.
VOL. PAGE
2 381
2 391
2 392
2 393
2 438
2 441
VOL. PAGE
NOTICE OF REQUEST FOR
SANCTIONS, FILED 9/3/92. 2 445
CITY OF CARLSBAD'S AND
FIELDSTONE LA COSTA ASSOCIATES'
LIMITED PARTNERSHIP'S MEMORAN-
DUM OF POINTS AND AUTHORITIES
IN SUPPORT OF THEIR DEMURRER
TO AND MOTION TO STRIKE PORTIONS
OF THE THIRD AMENDED COMPLAINT
AND MOTION TO STRIKE ALL OF THE
AMENDED AND SUPPLEMENTAL
COMPLAINT, FILED 9/3/92. 2 447
DECLARATION OF RICHARD A.
SCHULMAN IN SUPPORT OF CITY
OF CARLSBAD'S AND FIELDSTONE/
LA COSTA ASSOCIATES LIMITED
PARTNERSHIP'S REQUEST FOR
SANCTIONS, FILED 9/3/92. 3 467
NOTICE OF LODGMENT IN SUPPORT
OF CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA ASSOCIATES
LIMITED PARTNERSHIP'S DEMURRER
TO AND MOTION TO STRIKE,
FILED 9/3/92. 3 469
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
DEFENDANTS' DEMURRER TO AND
MOTION TO STRIKE PORTIONS OF
PLAINTIFFS' THIRD AMENDED
COMPLAINT AND MOTION TO
STRIKE ALL OF THE AMENDED AND
SUPPLEMENTAL COMPLAINT,
FILED 10/8/92. 3 471
25
VOL. PAGE
DECLARATION OF THOMAS A. MASS
IN OPPOSITION TO DEFENDANTS'
MOTION FOR AWARD OF EXPENSES,
COSTS AND ATTORNEY'S FEES AS
SANCTIONS, FILED 10/8/92. 3 494
NOTICE OF LODGMENT IN SUPPORT
OF PLAINTIFFS’ MEMORANDUM OF
POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANTS'
DEMURRER TO AND MOTION TO
STRIKE PORTIONS OF PLAINTIFFS'
THIRD AMENDED COMPLAINT AND
MOTION TO STRIKE ALL OF THE
AMENDED AND SUPPLEMENTAL
COMPLAINT (WITH ATTACHMENTS:
CARLSBAD CITY ORDINANCE
§1.116.010; §1.16.020; PLAINTIFFS’
CHART OF RULINGS ON DEMURRERS
WITH ORDERS ATTACHED),
FILED 10/8/92. 3 498
CITY OF CARLSBAD'S AND FIELD-
STONE/LA COSTA ASSOCIATES’ LIMITED
PARTNERSHIP'S REPLY MEMORANDUM
OF POINTS AND AUTHORITIES IN
SUPPORT OF THEIR DEMURRER TO
AND MOTION TO STRIKE PORTIONS
OF THE THIRD AMENDED COMPLAINT
AND MOTION TO STRIKE ALL OF
THE AMENDED AND SUPPLEMENTAL
COMPLAINT, FILED 10/13/92. 3 510
VOL. PAGE
SUPPLEMENTAL DECLARATION OF
RICHARD A. SCHULMAN IN SUPPORT
OF CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA ASSOCIATES
LIMITED PARTNERSHIP'S REQUEST
FOR SANCTIONS, DATED 10/13/92. 3 520
SUPPLEMENTAL NOTICE OF
LODGMENT IN SUPPORT OF CITY
OF CARLSBAD'S AND FIELDSTONE/
LA COSTA ASSOCIATES LIMITED
PARTNERSHIP'S DEMURRER TO AND
MOTION TO STRIKE, FILED 10/13/92. 3 522
MINUTES/ORDER OF THE COURT -
HEARING DATE - 10/15/92. 3 524
MINUTES/ORDER OF THE COURT -
HEARING DATE - 10/23/92. 3 525
NOTICE OF RULING ON DEMURRER
AND MOTION TO STRIKE FILED BY
DEFENDANTS CITY OF CARLSBAD
AND FIELDSTONE/LA COSTA
ASSOCIATES LIMITED PARTNERSHIP,
DIRECTED TOWARD PLAINTIFFS’
THIRD AMENDED COMPLAINT
AND AMENDED AND
SUPPLEMENTAL COMPLAINT,
FILED 10/27/92. 3 526
NOTICE OF MOTION AND MOTION TO
SET ASIDE AND VACATE RULING OF
DISMISSAL, FILED 10/28/92. 3 528
27
VOL. PAGE
NOTICE OF MOTION AND MOTION
FOR ORDER GRANTING LEAVE TO
FILE PLAINTIFFS' AMENDED AND
SUPPLEMENTAL COMPLAINT, FILED
10/28/92. 3
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
TO SET ASIDE AND VACATE RULING
OF DISMISSAL AND MOTION FOR
LEAVE TO FILE AMENDED AND
SUPPLEMENTAL COMPLAINT,
FILED 10/28/92. 3
NOTICE OF LODGMENT IN SUPPORT
OF MOTION FOR LEAVE TO FILE
AMENDED AND SUPPLEMENTAL
COMPLAINT, FILED 10/28/92. 3
AMENDED AND SUPPLEMENTAL
COMPLAINT FOR PLAINTIFFS' CAUSE
OF ACTIONS BASED ON THE
DEPRIVATION OF THEIR RIGHTS
SECURED BY THE UNITED STATES
CONSTITUTION, REQUESTING
MONEY DAMAGES, DECLARATORY
RELIEF AND EQUITABLE RELIEF
INCLUDING AN INJUNCTION, FILED
8/31/92, LODGED 10/28/92. 3
DECLARATION OF THOMAS A. MASS
IN SUPPORT OF MOTION TO SET
ASIDE AND VACATE RULING OF
DISMISSAL AND MOTION FOR
LEAVE TO FILE AMENDED AND
SUPPLEMENTAL COMPLAINT,
FILED 10/28/92. 3
530
532
540
542
577
VOL. PAGE
CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA ASSOCIATES
LIMITED PARTNERSHIP'S EX PARTE
APPLICATION FOR APPROVAL OF
ORDER SUSTAINING DEMURRER
WiTHOUT LEAVE AND DISMISSING
ACTION, FILED 11/5/92. 3 579
DECLARATION OF RICHARD A.
SCHULMAN IN SUPPORT OF EX PARTE
APPLICATION OF CITY OF CARLSBAD
AND FIELDSTONE/LA COSTA
ASSOCIATES LIMITED PARTNERSHIP
FOR APPROVAL OF ORDER
SUSTAINING DEMURRER WITHOUT
LEAVE AND DISMISSING ACTION,
FILED 11/5/92. 3 583
ORDER GRANTING DEMURRER FILED (
BY DEFENDANTS CITY OF CARLSBAD
AND FIELDSTONE/LA COSTA ASSOCIATES
LIMITED PARTNERSHIP WITHOUT
LEAVE TO AMEND, WITH ORDER (
DISMISSING ACTION [CCP §472d, E
§581(f(1), §581d] DISPOSES OF E
ENTIRE CASE AS TO ALL PARTIES, t
FILED 11/5/92. 3 586
CITY OF CARLSBAD'S AND
FIELDSTONE/LA COSTA ASSOCIATES' |
MEMORANDUM OF POINTS AND qf
AUTHORITIES IN OPPOSITION TO
MOTION TO SET ASIDE AND VACATE
RULING OF DISMISSAL AND MOTION
FOR LEAVE TO FILE AMENDED
AND SUPPLEMENTAL COMPLAINT,
FILED 11/20/92. 3 590
29
VOL. PAGE
DEFENDANTS’ OBJECTIONS TO
EVIDENCE OFFERED IN SUPPORT
OF MOTION TO SET ASIDE AND
VACATE RULING AND MOTION
FOR LEAVE TO FILE AMENDED AND
SUPPLEMENTAL COMPLAINT, FILED
11/20/92. 3 607
DECLARATION OF RICHARD A.
SCHULMAN IN OPPOSITION TO
MOTION TO SET ASIDE AND
VACATE RULING OF DISMISSAL
AND MOTION FOR LEAVE TO FILE
AMENDED AND SUPPLEMENTAL
COMPLAINT, FILED 11/20/92. 3 609
NOTICE OF LODGMENT (WITH
REQUEST FOR JUDICIAL NOTICE)
IN OPPOSITION TO MOTION TO
SET ASIDE AND VACATE RULING
AND MOTION FOR LEAVE TO FILE
AMENDED AND SUPPLEMENTAL
COMPLAINT, RECEIVED 11/20/92. 3 611
THOMAS A. MASS'S AND JANET A.
MASS'S REPLY MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF THEIR MOTION TO
SET ASIDE AND VACATE RULING
OF DISMISSAL AND MOTION FOR
ORDER GRANTING LEAVE TO FILE
PLAINTIFFS’ AMENDED AND
SUPPLEMENTAL COMPLAINT,
FILED 11/25/92. 3 614
NOTICE OF LODGMENT (WITH
ATTACHMENTS: PLAINTIFFS' CHART
OF RULINGS ON DEMURRERS
WITH ORDERS ATTACHED), FILED
11/25/92.
MINUTES/ORDER OF THE COURT,
HEARING DATE - 12/2/92.
JUDGMENT, FILED 11/30/92, ENTERED
12/2/92, JUDGMENT BOOK 2237,
PAGE 249.
NOTICE OF RULING ON
PLAINTIFFS' MOTION TO SET ASIDE
AND VACATE RULING OF DISMISSAL
AND MOTION FOR LEAVE TO FILE
AMENDED AND SUPPLEMENTAL
COMPLAINT, FILED 12/8/92.
ORDER DENYING MOTION TO SET
ASIDE AND VACATE RULING OF
DISMISSAL AND DENYING MOTION
FOR LEAVE TO FILE AMENDED
AND SUPPLEMENTAL COMPLAINT,
FILED 12/14/92.
NOTICE OF ENTRY OF JUDGMENT,
FILED 12/16/92.
MEMORANDUM OF COSTS
(SUMMARY), FILED 12/16/92.
NOTICE OF APPEAL COMBINED WITH
NOTICE OF ELECTION TO PROCEED
UNDER CALIFORNIA RULES OF COURT,
RULE 5.1, FILED 1/4/93.
31
VOL.
PAGE
629
641
642
644
646
648
650
651
VOL. PAGE
STIPULATION RE JOINT APPENDIX
IN LIEU OF CLERK'S TRANSCRIPT
PER CALIFORNIA RULE OF COURT
5.1(b), DATED JANUARY 23, 1993. 3 654
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOR THE FOURTH APPELLATE DISTRICT
DIVISION: 1
Case No, D0O18305
TITLE
Mass, Thomas A.
v.
City of Carlsbad
SUPERIOR COURT INFORMATION
County: SAN DIEGO CIVO
Superior Court No.: N53303
Superior Court Judge: Murphy
Notice of Appeal Date: January 4, 1993
ATTORNEYS - LITIGANTS
Mass, Thomas A.
2851 Torry Court
Carlsbad, CA. 92009
Mass, Thomas A. PLAINTIFF-APPELLANT
Mass, Janet A.
2851 Torry Court
Carlsbad, CA. 92009
Mass, Janet A. PLAINTIFF-APPELLANT
32
Mc Donald, Hecht & Solberg
Schulman, Richard A. 619-239-3444
600 W. Broadway, 8th F1.
San Diego, CA. 92101
Fieldstone Company DEFENDANT-RESPONDENT
Office of City Attorney
Biondo Jr., Vincent F. 619-434-289]
1200 Carlsbad Village Dr.
Carlsbad, CA. 92008
City of Carlsbad DEFENDANT-RESPONDENT
DOCKET ENTRIES
1 January 28, 1993
Notice of Appeal Lodged/Received.
Filed January 4, 1993 By Thomas and Janet Mass
2 January 28, 1993
Notice Per Rule S 1 - With Reporter’S Transcript.
3 January 28,1993
Appellate Package Sent
4 January 28, 1993
Docketing Statement Filed :
5 March 9, 1993 |
70 Day Letter Sent (Rule 5.1).
70 Day Date Is March 14, 1993
6 March 15, 1993
Joint Appendix Filed.
3 Volumes of Joint Appendix
33
10
11
12
13
14
15
16
March 15, 1993
Appellant's Opening Brief Filed
April 13, 1993
Respondents Brief Filed.
As To Both Respondents
April 13, 1993
a ae he ee To Be Assigned a A ae ke ok
May 3, 1993
Appellant’S Reply Brief Filed.
B L C - Local Rule 8 - End Notes In Brief
May 4, 1993
Case Fully Briefed.
May 4, 1993
Oral Argument Waiver Notice Sent.
May 14th
May 14, 1993
Request For Oral Argument Filed By:
Appellant - 15 Min
May 17, 1993
Request For Oral Argument Filed By:
Respondent - 10 Min (City of Carlsbad)
March 29, 1994
Change of Address Filed For:
Counsel For Appellants
April 4, 1994
On June Calendar.
34
17
18
19
20
21
22
23
24
April 4, 1994
Work, J.
WTN
April 28, 1994
Calendar Notice Sent. Calendar Date:
Wednesday, June 8, 1g94 @ 1:30 p.m.
WTN
May 3, 1994
Received Letter From:
Firm of Mc Donald, Hecht & Solberg - Richard A.
Schulman of the Firm Handling Appeal
June 8, 1994
Cause Argued and Submitted.
WTN
June 13, 1994
Change of Address Filed For:
Thomas and Janet Mass
June 17, 1994
Opinion Filed.
We Affirm the Judgment, Except We Reverse the
Court’S Grant of the Demurrer To That Part of
June 17, 1994
Previous Entry Continued.
The Second Cause of Action Which Alleges A
Continuing and Temporary Nuisance Against
June 17, 1994
Previous Entry Continued.
Fieldstone During the Construction Phase of the
Development, and We Remand This Matter For
35
25
26
27
28
30
31
32
June 17, 1994
Previous Entry Continued.
Further Proceedings Consistent With This Opinion.
The Parties To Bear Their Own Costs of Appeal.
June 17, 1994
Previous Entry Continued.
Work, Acting P. J., Todd, J., Nares, J.
July 1, 1994
Rehearing Petition Filed.
By Appellants
July 6, 1994
Order Denying Rehearing Petition Filed.
July 6, 1994
Answer To Rehearing Petition Filed.
(moot)
July 27, 1994
Record Transmitted To Supreme Court.
1 Volume
July 28, 1994
Copy of Petition For Review Received
August 8, 1994
Answer To Petition For Review Received
33 August 17, 199A
34
Telephone Conversation With
Supreme Court - Jurisdiction Date Is Sept. 23, '94
August 18, 1994
Received Copy of
Reply To Answer To Petition For Review
36
35 September 7, 1994
Petition For Review Denied In Supreme Court.
Appellants Petition For Review Denicd.
Order File Din This Court Onseptember 9, 1994
36 September 15, 1994
Record Retumed From Supreme Court.
37 September 26, 1994
Remittitur Issued.
CASE DISPOSITION INFORMATION
Disposition Date: June 17, 1994
Disposition: Affirmed/Part, Rev/Part, Remanded W/ Direction
Opinion Type: Sign Npub
Disposition Final: (Y = Yes - Blank = No) Y
Notation: Work, Acting P. J., Todd, J., Nares, J.
JUDGES PANEL INFORMATION
Judge Name: Work, Don (J)
Role: Active
Judge Name: Todd, William L. (J)
Role: P
Voted: C
Judge Name: Nares, Gilbert (J)
Role: P
Voted: C
CASE NOTE INFORMATION
NOTES: /
F-6
37
FINANCIAL TRANSACTION INFORMATION
1 Receipt No:R405521
Void: Fee Type: F Filing Date: January 4, 1993
Attomey Sequence No: 1 Fee Status: A
Pay/Waive Date: January 28, 1993
Debit Amount: .00 Credit Amount250.00
Pay Type: K Check No: 16-66/1220
NOTE:
END OF DOCKET CARD INFORMATION
FOR CASE NUMBER D018305
SUPREME COURT OF THE STATE OF CALIFORNIA
ABSTRACT OF COURT DOCKET
July 26, 1994
Petition for Review Filed
August 8, 1994
Answer to Petition for Review Filed
August 15, 1994
Reply to Answer to Petition for Review Filed
September 7, 1994
In Bank - Appellants’ Petition for Review Denied, Justice
Mosk, Acting Chief Justice
38
PART THREE
LENGTHY QUOTATIONS IN SUPPORT OF
JURISDICTIONAL ASPECTS OF THE F EDERAL
Ill.
IV.
QUESTION INVOLVED
Inverse Condemnation
Statute of Limitations
Denial Of The Civil Rights Cause Of
Action §1983 Including Inverse
Condemnation And The Cause Of
Action For A Writ Of Mandate
Based Thereon
If Proceedings, Decisions And Laws
Upon Which They Are Based Are
Void For Any Reason, They Are
Subject To Being Collaterally Attacked.
In Such Cases, The Statute Of
Limitations Is Not A Defense, Laches
Maybe, Not The Statute Of Limitations
As A Bar, Never
Indemnity, Immunity And Intention
Conflicts
. Facts And Issues
Amended And Supplemental Complaint
Constitution Of The United States
Is The Supreme Law Of The Land
39
I. INVERSE CONDEMNATION
APPELLANTS' OPENING BRIEF
At pages 2-26:
Til. DISCUSSION
A. THE TRIAL COURT ERRONEOUSLY
SUSTAINED DEFENDANTS’ DEMURRER TO
PLAINTIFFS’ FIRST CAUSE OF ACTION FOR INVERSE
1. THE COURT'S RULING (JA. 391) THAT
"PLAINTI VIN
RISE TO A CLAIM FOR INVERSE CONDEMNATION”
THE CITY OF AN INVASIVE SERVITUDE PERMITTING
ON ATION: D AIR T
RENDER PLAINTIFFS’ HOME UNTENANTABLE.
The United States Constitution, Amendment V, provides,
"No person shall be . . . deprived of . . . property, without due
process of law; nor shall private property be taken for public use
without just compensation." The California Constitution, Article
I, §19 provides, "Private property may be taken or damaged for
public use only when just compensation . . . has first been paid
to . . . the owner." The basic issues under these provisions
involve three questions: has private property been "taken" or
"damaged;” was it for a public use; and what is the value of the
property so "taken" or "damaged" so as to provide the owner
"fair compensation?” The constitutional policy is that injuries
caused by public improvements should be spread throughout
40
the community rather than becoming a burden on the
individual. It should be noted that the California Constitution
requires compensation not only for "taking" of property, but
also for the "damages to property.
In general, the governmental activities which can interfere
with or damage property interest are divided into two broad
categories: those which are actually physical "taking", including
constructive physical invasion or interference with property
rights (nuisance-trespass, e.g., low-flying aircraft); and those
which cause damage by excessive or improper restriction on
property interest by regulations that go “too far" (e.g., economic
effect).
California cases have placed less emphasis on the technical
aspect of the source of the invasion or interference of property
and more emphasis on the nature and extent of the actual harm
suffered by the particular plaintiffs relating to their loss of the
use and enjoyment of their property and its diminution of value.
The appellants have alleged in all of their complaints by well
pleaded facts, all of the essential allegations necessary to state a
good cause of action against the respondent-City for inverse
condemnation. The complaints make clear that there has been a
constructive physical "taking" or "damage" to appellants’
protectible property interest. That this "taking" or "damage" was
the result of the respondent-City's activity, which was for a
public use and purpose, which caused the physical invasion or
interference with appellants’ property rights.
The test to determine if the physical "damage" or "taking,"
constructive or actual, has been alleged, may from the cases
herein identified be fairly summarized as follows:
(a) substantial impairment or interference with the use and
enjoyment of appellants’ property and a diminution in its value:
or
(b) substantial interference with appellants’ use and
enjoyment OR a direct, peculiar and substantial burden on their
property and an impairment of its value.
The general rule announced in Holtz v. Superior Court of
San Francisco, 3 Cal.3d 296, 303, 304 (1970) is that a property
Owner may recover damages in an inverse condemnation case
41
where the physical damage is caused to his or her property by
public improvements as deliberately planned and built, without
proof of negligence, and whether or not such damage is
foreseeable. There are two exceptions to the Holtz rule of
absolute liability: "emergency use of police power" and a
common law "right to inflict damages." Neither of these
exceptions are applicable to the case at bar.
In Varjabedian v, City of Madera, 20 Cal.3d 285 (1977) the
Supreme Court states with respect to odorous air pollution in
connection with inverse condemnation damages said, at p. 294:
"{I)f the premises were uninhabitable and hence
saleable only to an absentee farmer, it appears this
factor would appropriately be considered by a
prospective purchaser and could properly be
included in the estimated decline in market value.”
Similarly, a willing and informed buyer would be keenly
aware of damage to market value brought about by the impact
of the invasive noise, dirt, and noxious air due to the City's
change of gate location.
In Varjabedian the trial judge had given as his reason for
denying just compensation the plaintiffs’ failure to allege
"physical damage to the property" or a "trespass". In assessing
whether the plaintiffs’ allegations served as a basis for inverse
liability the Court, at pp. 296-297 (citing more than 15 separate
authorities) used the following language which we set forth with
citations eliminated:
"In assessing whether plaintiffs’ allegations may
serve as a basis for inverse liability, we note that
physical damage to property is not invariably a
prerequisite to compensation. Rather the
determination of the scope of the just compensation
clause rests on its construction "as a matter of
interpretation and policy". The contending policies
which guide that construction have often been
described as follows: "on the one hand the policy
42
underlying the eminent domain provision in the
Constitution is to distribute throughout the
community the loss inflicted upon the individual by
the making of public improvements...On the other
hand, fears have been expressed that compensation
allowed too liberally will seriously impede, if not
stop, beneficial public improvements because of the
greatly increased cost."
"Several factors present militate in favor of a
distribution throughout the relevant community of
the type of loss involved here. Plaintiffs' claim stems
from the recurring violation of their property by a
gascous effluent. As such, the injury is not far
removed from those core cases of direct physical
invasion which indisputably require compensation.
Thus damage from invasions of water or other liquid
effluents often provides the basis for inverse
liability. Moreover, plaintiffs’ complaint which
includes, inter alia, the claim that their land was
made "untenantable for residential purposes” is
Clearly sufficient to depict a permanent and
“substantial impairment” in their use of the land."
Of particular significance is the recent case of Harding y.
iforni »» 159 Cal.App.3d 359 (1984).
This Court dealt with the unique damages involved in a situation
similar to the facts in the case at bar. In this case the Court of
Appeal affirmed the judgment dismissing the nuisance cause of
action against the City but reversed the summary judgment as to
the cause of action for inverse condemnation. The Court held
that the owners alleged unique damage to their property from
the noise, dirt, dust, and debris, caused by the construction of a
highway, and that therefore they should have been allowed to
establish that they suffered a peculiar and substantial burden as
a result of their proximity to the highway. On page 367 the
Court concluded as follows:
43
"Thus, California Courts have extended the peculiar
and substantial burden standard to airport noise
cases and noxious odor cases. Both these classes of
cases at one time required physical taking before
compensation was allowed. People suffering
damages from their proximity to a highway should
not be unequally required to allege and prove a
physical invasion." [Citations omitted.]
At page 364 the court states:
"No taking is required, rather, an action for inverse
condemnation requires and invasion of property
which directly, substantially, and peculiarly burdens
plaintiff to his detriment. (Selby Realty Co. v, City
of San Buenaventura (1973) 10 Cal.3d 110, 119-
120 [109 Cal.Rptr. 799, 514 P.2d 111].)"
The court pointed out at page 365:
Plaintiffs’ complaint stated that the prevailing winds
collect all of the flotsam of the freeway and deposit
it on plaintiffs’ property, this being the first open
area along the easterly side of the embankment, and
that plaintiffs are subjected to dirt, dust, debris and
noise, and have lost their access to air, light and view,
all making their property virtually untenable. (sic.)"
After reviewing City of Yakima v. Dahlin (1971) 5 Wn.App.
129 [485 P.2d 628], the court stated at page 366:
"The court found that even though there was no
appropriation of property, construction of the
overpass would create an echo chamber that would
elevate noise levels on Dahlin's property to an
intolerable degree.”
In the
Dairy, Inc. (imposition of a servitude together with
construction), 77 Cal.App.3d 742 (1978), the Court, after
reviewing the policy consideration on which inverse
condemnation rests and what damages are not contemplated by
the Constitution, states on page 756: "But where there has been a
substantial impairment of the use which diminishes the market
value of the property, compensation is constitutionally
compelled." [Citations omitted. ]
In Barnhouse y, City of Pinole (damage caused by the
construction of a drainage system), 133 Cal.App.3d 171 (1982)
the Court at page 197 states the following:
“With regard to what a plaintiff must show in such a
suit, the California Supreme Court has made the
following comments: ‘The right assured to the owner
by this provision of the constitution is not restricted
to the case where he is entitled to recover as for a
tort at common law. If he is consequently damaged
by the work done, whether it is done carefully and
with skill or not, he is still entitled to compensation
under this provision.” [Citations omitted. ]
The case of Smart v, City of Los Angeles (air craft noise),
112 Cal.App.3d 232 (1980), held that:
“Plaintiff, although of course entitled to only one
recovery, is entitled to several ‘bites off the apple’
and may proceed with various legal theories in his
attempt to prove the City's liability for his damages.
Likewise, damages recoverable by a plaintiff in a
successful nuisance action for injuries to real
property include diminution of the land's value as
well as damages for annoyance, inconvenience and
discomfort." [pages 239-240] [Citations omitted]
The Court also stated that in inverse condemnation, each
action must be examined on its own to determine what results
45
"justice and fairness" requires; and this is done by focusing on
the actual impact of the govemmental activity upon the property
owner's actual use to determine a taking [citations omitted]
{pages 238-239].
Smith vy. County of Los Angeles (construction of road
caused landslide), 214 Cal.App.3d 266 (1989), is authority for
alleging a cause of action for nuisance and inverse
condemnation based on the same facts and that damages should
include plaintiffs' costs and that the Holtz exception has an
extremely limited application.
In Aaron y, City of Los Angeles (1974) 40 C.A.3d. 471;
115 Cal.Rptr. 161, the plaintiffs’ evidence proved a measurable
reduction in the market values of their homes when noise from
aircraft using the City airport caused substantial interference
with the use and enjoyment of their property. The Court in
commenting upon a landmark United States Supreme Court
case, United States v, Causby (1946) 328 U.S. 256, 66 S.Ct.
1062, 90 L.Ed. 1206, said at 477:
"Although the flights did not completely destroy the
enjoyment and use of the land, they were held to be
so low and frequent as to constitute a direct and
immediate interference with the full enjoyment of
the land, limiting the utility of the land and causing
a diminution in its value, and therefore constituted a
taking under the Fifth Amendment."
The Aaron Court then continued:
"In Martin the court held that where the flights in
question caused such interference with the use and
enjoyment of the property as to result in a
measurable diminishment in market value, the
government and not the individual homeowner
should be required to bear that burden."
When the federal or state governments actually physically
take private property and fail to provide the owner with just
46
compensation, the Courts historically have always provided the
Owner a remedy. That body of law has not changed but has
been extended to apply to a taking that is only a discreet part of
the whole even if only temporary, and further, has extended
recovery to include cases of "effective" physical appropriation,
occupation, invasion of or interference, including air pollution,
and thus constitutes a constructive “taking.” Loretto y,
«+» 458 U.S. 419 (1982);
Kaiser-Acina vy. US., 444 U.S. 164 (1979); First English
Evangelical Lutheran Church, 107 S.Ct. 2378 (1987); Nollan vy,
iforni ission 483 U.S. 825 (1987); U.S. y.
Causby, 328 U.S. 256 (1946).
The Harding case, infra, set forth the requirements for a
cause of action at page 367.
The allegations in Plaintiffs’ complaint as summarized in the
above Summary Of Material Facts state a cause of action under
the Fifth and Fourteenth Amendments to the U.S. Constitution
and Article I, Section 19 of the Califomia Constitution.
No regulatory taking such as is involved in zoning
ordinances restricting the use of land is involved in the case now
before the Court.
every State shall be bound thereby, anything in the Constitution or laws
of any State to the contrary notwithstanding.” The Supremacy of the
federal Constitution is acknowledged and confirmed by the California
Constitution in Article III §1.
47
The language of the Constitutions prohibits the taking of
private property for public use without payment of just
compensation. The moment private property has been taken
whether by formal condemnation proceedings, by physical
invasion, regulation or occupancy -- the landowner has suffered
a constitutional violation if compensation is not paid.
2. THE COURT'S HOLDING (J.A. 391) THAT
PLAINTIFFS FAILED TO ALLEGE FACTS SHOWING THE
LOSS OF THE PRIMARY USE AND VALUE OF THEIR
PROPERTY WAS PATENTLY ERRONEOUS, IN ADDITION
TO OTHER ALLEGATIONS THE PLAINTIFFS ALLEGED
THAT THEIR HOME WAS RENDERED UNTENANTABLE.
The court erroneously assumes that this is a regulatory
"taking" case. Between the respondents it is. However, out of
these proceedings "The City" effected a physical "taking" of the
plaintiffs’ property. Accepting arguendo that the “taking” of
plaintiffs’ property was effected by a regulation it still could pass
that test and be a compensable "taking."
The articulated guiding principles underlying the courts’
"taking" doctrine has been consistent and deceptively simple.
The Court has repeatedly stated that the ultimate issue in a
"taking" case is whether "fairness and justice" require that
compensation be paid for economic injuries caused by the
government. Pennsylvania Central Transport Co, v, New York
City, 438 U.S. 104, 124 (1978) (Penn. Central).
The court has formulated a series of tests to determine
whether considerations of "fairness and justice" require that
compensation be paid. These tests are used to provide a
structure to review the particular facts of the regulatory "taking"
to determine if there has been a compensable "taking" of a
protected “property” right or rights. This doctrine requires the
court to apply one of three major tests to determine whether
governmental action other than a formal exercise of eminent
domain power constitutes a taking: the three-factor Penn Central
case; the two-part Agins test; and the Loretto per se rule.
Between 1980 and 1987 in a number of taking cases that
followed Agins, the court used a one factor test for a land use
48
a
regulation that effects a taking on its face and that factor was
whether the law "denies the owner economically viable use of his
land..." The use of the "denial of economically viable use" test
as the sole test was short lived. In 1987 the Keystone case
"revived" the two-part Agins test.
The use of the single factor test that the trial court used,
would result in doing away with the concept of providing
compensation for regulatory taking, and even physical taking,
unless the claimant alleged loss of all use and value. The trial
court with the use of this test would have even denied the
Nollans recovery because they could not show the loss of their
primary value and use by virtue of public lateral access between
their sea wall and the high tide line. In effect, the use of the one
factor test, would result in the California Courts retuming to
their pre-1978 holdings that the owner's remedy was to declare
the regulation invalid and not permitting an action for "just
compensation," a result prohibited by our Constitutions.
In addition, it was erroneous for the court to rule that it has
not been pled that plaintiffs lost the primary use and value of
their property when those actual words were used in the second
amended complaint and supported by the facts alleged in the
first cause of action (J.A. 256: 11-24) (J.A. 253: 14-18) (J.A.
255: 9,10) (J.A. 258: 5-9; 21-23).
Referring to plaintiffs’ first cause of action in the second
amended complaint, the court ruled (J.A. 391) "A temporary
injury resulting from actual construction of public
improvements is generally noncompensable" (Citing, People ex
i (1960) 54 Cal.2d 217,
228].
In reviewing the allegations contained in the complaint and
cause of action referenced, we have found not one allegation
49
asserting a temporary injury resulting from the public
improvements referred to in the court's ruling.
It is true that at page 228 of the opinion in the Ayon case
the court clearly states that "Temporary injury resulting from
actual construction of public improvements is generally
noncompensable.” However, on the same page the court points
out "It is true that damages resulting from unnecessary and
substantial temporary interference with the property owner's
rights in the property may be compensable.”
Regardless of this quoted language there is no issue raised in
the first cause of action which has to do with this question.
The "taking" which results from "The City's” traffic
management plan to divert traffic was not even considered by
the respondents or the lower court. It must be patently apparent
that the injuries caused by the traffic diversion plan will be
continuing and permanent (J.A. 265).
In any event, in light of the First English Evangelical
Lutheran Church v. County of Los Angeles (107 S.Ct. 2378,
482 U.S. 304 (1978)) holding that even a temporary taking
must be compensable, the Ayon case is suspect and must be
reexamined.
The sole function of a demurrer is to test the sufficiency of
the pleading it challenges. A general demurrer admits the truth
of all factual material allegations properly pleaded, as well as the
facts essential to a cause of action which the facts alleged supply
by implication or inference. Harvey vy. Holtville, 271
Cal.App.2d 816, 819 (1969).
The defense that an action is barred by the statute of
limitation may be raised only when the ground of the objection
appears affirmatively on the face of the pleading or from
matters of which the court must or may take judicial notice.
CCP. _§430.30(a); Basi nt of
Water and Power, 199 Cal.App.3d 819, 821-823 (1988).
A full and fair reading of the inverse condemnation cause of
action demonstrates that nowhere therein does it appear
affirmatively on the face of the complaint, or from matters of
which the court must or may take judicial notice that the right of
action is necessarily barred (J.A. 1: 1-42). Pulver v. Avco
Financial Services, 182 Cal.App.3d 622, 635 (1986); Valvo v.
i i ia. 67 Cal.App.3d 887, 895
(1977).
On the facts alleged, no way does it appear affirmatively that the
cause of action for inverse condemnation is necessarily barred
by the statute of limitations contained in
§66499.37. Because of this fact it was not necessary for
appellants to anticipate defenses in avoidance and in bar of the
appropriate statute of limitations. Sullivan v. Shannon, 25
Cal.App.2d 422 (1938); Heyer v. Flaig, 70 Cal.2d 223, 230
(1969).
(b) That_based on the facts well pleaded and the clear
iudiciall lied 1 Terry
(1) Objections to defendants' legal argument
hict | thi he fi f the j
condemnation cause of action
In an inverse condemnation cause, the action must be filed
within three years of the discovery of the damage <CP.
§338(j), while an action based upon a taking of property
generally is to be filed within five years of the taking (C.C_P,
§§318, 319).
If the “taking” is regulatory, the land owner ordinarily, if a
party, must challenge the agency's action through the
administrative mandamus procedure :
In the "taking" in our case, the plaintiffs are not a party and it is
not regulatory but a physical "taking" by “The City" affecting an
51
involuntary traffic servitude and by invading and interfering
with plaintiff's protected, vested property interest and therefore
neither C.C.P, §§1094,5, 1094.6, or Government Code
§66499.37 are applicable (J.A. 257: 13-20). The statute of
limitation provided for in Government Code §66499.37 is
clearly in connection with a regulatory taking under the
"S.M.A." and as such is designed to apply to applicants and not
non-parties who suffered a physical “taking.”
The determination of the applicable statute of limitations
period in an administrative mandamus proceeding is complex.
However in the inverse condemnation cause standing on its own,
it is a clear-cut cause for a physical “taking” of private property
by "The City" for a public purpose and should not be confused
by going outside the four corners of the inverse condemnation
cause of action, and getting involved in the complexities of
"statute selection." The trial court assumed facts improperly in
selecting and applying the wrong statute of limitations.
The plaintiffs’ first cause of action for inverse condemnation
has assumed for said action that "The City's" deliberate acts were
for the purpose of fulfilling a public object which resulted in
"taking" plaintiffs’ private property in furtherance of a public
Objective (J.A. 253; 4-8; 23-28; 254; 27-28; 255; 1-3). That
the public improvement, being the traffic diversion plan, was the
proximate cause of plaintiffs’ injuries (J.A. 253; 23-28; 254; 1-
2). "The City" accomplished its intended public purpose of
diverting traffic by relocating the access to the new subdivision
(at plaintiffs’ expense) (J.A. 256; 11-24). The plaintiffs were
not parties in the "S.M.A." proceeding only witnesses-objectors.
Further, plaintiffs didn't and don't now object to the subdivision
itself, but rather avers that the traffic diversion plan implemented
by the relocation of the access to the subdivision is the
gravamen of their objections.
Accepting arguendo that said §66499.37 is the correct
statute of limitations, it does not apply to the plaintiffs' cause of
action for inverse condemnation because nowhere (directly or
indirectly) in that thirty-two page cause of action does it
"challenge" the decision (J.A. 250-262). Yee v. Saualito, 141
Cal.App.3d 917, 920-922 (1983).
52
When the cause of action "attacks" the proceedings and/or
decision said §66499.37 normally would apply. However, if the
cause of action "attacks" the decision and also seeks
compensation, its application is far from clear. But if, as in the
Case at bar, the cause of action for inverse condemnation is
devoid of any "challenge," directly or indirectly, but merely
seeks just compensation, the unambiguous statute Clearly is
inapplicable. C.C.P. §1858 states as follows:
"In the construction of a statute or instrument, the
Office of the judge is simply to ascertain and declare
what is in terms or in substance contained therein,
not to insert what has been omitted, or to omit what
has been inserted; and where there are several
provisions or particulars, such a construction is, if
possible, to be adopted as will give effect to all.”
(2) Objections to defendants’ legal argument
The above defenses to the bar of the statute of limitations
can be decided on the facts set forth in the inverse
condemnation cause of action (J.A. 1-42) and the clear
language of the statute (Gov, Code §66499,37) only. In
addition, the plaintiff-appellants assert that the following
defenses in bar, avoidance and suspension of said statute should
also be considered: equitable estoppel; equitable tolling; special
relationship; rule of discovery; fraudulent concealment and
judicial suspension. The first two rulings the court stated at the
end, it "appeared" that the cause of action was barred. In its last
ruling it stated that the cause of action "is" barred (J.A. 631).
Appellants read the words “appear” as the same as "seems" or
“looks like." That based on the law that "it must appear
affirmatively on the face of the complaint that the right of
action "is barred, saw no reason to plead anticipatory defenses to
the statute of limitations that may be barred. Upon the court
making it clear that it thought that the statute of limitations did
apply, all subsequent pleadings alleged facts to Support defenses
in avoidance and in bar of the statute of limitations (J.A. 542).
53
Plaintiffs’ cause of action for a writ of mandate from the
beginning, set forth these facts (J.A. 15; 154; 271; 393). The
subsequent pleading was not the result of "creative pleading.”
The reason they were not included in the inverse condemnation
cause was because there was no need to do so. It was an abuse
of discretion in light of the record not to permit the plaintiffs
leave to file an amended complaint. It was the first time the
court ruled that the cause was barred. Although the court is not
permitted to consider the allegations in the other causes of
action in ruling on the demurrer, it certainly should have viewed
the whole record to determine if it was not only probable but
was it possible that plaintiffs could cure their complaint.
The plaintiffs-appellants will identify these other defenses
and key them into the subsequent pleadings where appropriate:
(i) Because of the deception and misrepresentation of
the respondents as alleged in the complaint they are "equitably
estopped" from pleading the bar of the statute of limitations
(J.A. 555; 3-28; 556; 1-5). Kleinecke v, Montecito Water
District, 147 Cal.App.3d 240, 245-247 (1983); Neel v. Olney.
etc, et al, 6 Cal.App.3d 176, 189 (1971).
(ii) In addition to the doctrine of equitable estoppel,
the complaints also set forth facts to support the doctrine of
"equitable tolling" and is also applicable. Appellants gave
prompt notice and made informal and formal claims upon "The
City;" and said respondent was not prejudiced by the delay, and
appellants’ conduct was in good faith and reasonable (J.A. 258:
15-20). Addison v, State of Califomia, 21 Cal.3d 313, 319
(1978).
(iii) | The plaintiffs’ complaint alleges facts to show the
"special relationship” that existed between the appellants and the
respondents. The duty to be imposed on the defendants should
be analogous to that of a "fiduciary relationship" (J.A. 555; 3-
28; 556; 1-22). Sanchez v, South Hoover Hospital, 18 Cal.3d
93, 101, 102 (1976); Evans v, Eckelman, 216 Cal.App.3d 1609,
1613-15 (1990).
(iv) The “rule of discovery” is applicable to this case
and is supported by the facts alleged in the Complaint as
aforesaid (J.A. 556; 23-28; 557; 1-6). Leaf vy. City of San
54
Mateo, 140 Cal.App.3d 398, 406-9 (1980); Manguso vy,
Oceanside Unified School District, 88 Cal.App.3d 725 (1979).
(v) The doctrine of "fraudulent concealment" is also
applicable based on the facts in the complaints and the law (J.A.
557, 16-28; 558; 1-11). Pashley v. Pacific Electric Railway Co.,
25 Cal.2d 226, 229, 230, 231 and 236 (1944).
(vi) The long and well established "judicial suspension
exception" to the bar of the statute of limitation was articulated
by the Court in Pierpont Inn Inc. v, State of California, 70 Cal.
282, 293 (1969). The case is on "all fours" with the case at bar
(J.A. 258: 15-20) and deserves special consideration.
Plaintiffs' complaints read as a whole set forth well plead
facts to support anyone or all of the above identified defenses to
the statute of limitations. It was an abuse of discretion not to
allow plaintiffs to amend their complaint at least once after
ruling that the statute is a bar.
(3) Objections to defendants’ legal argument based
he fact that t r fecisi 1 i and
tl , ked ;
Related but being dealt with separately because they are not
only different in degree but in kind (III E, pp. 42-47). These
objections relate to proceedings and/or decisions that are null
and void as being without or in excess of jurisdiction, as well as
unconstitutional deprivations and laws that render them null and
void; accordingly the defenses based on the doctrines of res
judicata, collateral estoppel, and statute of limitations are
inapplicable.
55
APPELLANTS' REPLY BRIEF
At pages 10-21:
Ill. DISCUSSION
ACTION FOR INVERSE CONDEMNATION THAT IS NOT
BARRED BY THE STATUTE OF LIMITATIONS.
1. Respondents ignore or misread the admitted
allegation of facts stating that appellants’ private property was
" " " "
The respondents raise only one substantive defense to
appellants first cause of action, inverse condemnation. They
claim that the taking was not for "public use."
The record in this case shows beyond any doubt that the
cause of the “taking” is based on "The City's” traffic diversion
plan and was accomplished by requiring "The Developer" to
locate the sole access to the 132 home subdivision across the
street from appellants’ home.
Appellants think proper to emphasize that "The City"
certainly has no protection in the present litigation from the rule
Stating that "where a city's sole affirmative action is the mere
approval of a subdivision map and the issuance of permits it will
not be held liable to a claim of inverse condemnation."
In Ullery v, County of Contra Costa, 202 Cal.App.3d 562 at
p. 569 (1988), the court indicates a range of liability for inverse
condemnation by contrasting the Yox case with other cases.
In the case now here "The City" went far beyond the sole
affirmative action referred to in Yox.
"The City" dictated the access change "for traffic safety
purposes," 2(J.A. 252, 292). The entire system was a public
improvement, for a public use, on publicly maintained property.
The respondents were successful in persuading the trial court of
many of their arguments. However, the trial court in the order
appealed from did not use appellants’ defense of "no public use"
as a reason for sustaining the demurrer.
56
eat Se
pee
bie RR AES ei gnccena ea heii cre tore: see oitaaetnd
vt.
The respondents base their argument on a false premise.
They assumed their facts and not the facts as alleged in the
complaint. Further, if they raised them in their answer as they
Should, the facts would be refuted by those alleged in the
complaint.
The complaint alleges that the cause of the appellants’
injuries were "The City's" traffic diversion plan, and locating the
access was merely a means to accomplish their end. This is
clearly a public purpose and use. "The City" was unconcemed
about the private entryway, only its location to control traffic.
The trial court used the wrong standard of review in
determining that the statute of limitation contained in
Government Code §66499.37 applied to the case stated in the
complaint (A.O.B. 18-26) (infra pp. 1-4).
3. " "
the law in regulatory "taking" confirms that appellants state a
Appellants have stated that: "Accepting arguendo that the
‘taking’ of the plaintiffs' property was effected by a regulation, it
still could pass that test and constitute a compensable ‘taking'"
(A.O.B. 15). The appellants thereafter reviewed the law of
regulatory taking (A.O.B. 15-17).
From the above summary it is fair to say that in regulatory
taking law the general rule is that when the government takes
property for public purposes the private landowner is entitled to
just compensation. In Lucas y. South Carolina Council, 505
U.S.--, 120 L.Ed2d 798, 112 S.Ct. 2886 (1992), the court
narrows the longstanding "police power" exception to this rule.
The opinion also makes clear that if the landowners can
prove that their distinct and reasonable investment-backed
expectations were substantially invaded or interfered with by a
57
public entity, or a public entity permitting others to do so, the
public entity will be constitutionally compelled to pay for the
taking.
It is beyond argument that California has a long tradition of
protecting a person's right to exclusive possession, use and
disposition. Gregory v. San Juan Capistrano, 142 Cal.App.3d
72, 87-90 (1983). Two out of the three principle protected
property interests have been taken and the right of alienation
significantly affected.
The plaintiffs in the case at bar have vested protected
property interests. The factual allegations in the complaint
support the conclusion that their reasonable investment-backed
expectations as to their use and enjoyment of them were all
taken from them.
The United States Supreme Court's definition of property in
the great bulk of the cases where the definition of property is at
issue, has defined “property” as economically valuable rights
created by positive law. For example, in United States v.
General Motors Corp., 323 U.S. 373 (1945), the Court stated
that property for "taking" clause purposes consists not of the
tangible thing itself, but rather of certain "rights recognized by
law" with respect to that thing. The following is a passage that is
frequently cited in the Court's “taking” decisions (pp. 377-8):
It is conceivable that [the term ‘property’ in the
taking clause] was used in its vulgar and untechnical
sense of the physical thing with respect to which the
citizen exercises rights recognized by law. On the
other hand, it may have been employed in a more
accurate sense to denote the group of rights inhering
in the citizen's relationship to the physical thing, as
the right to possess, use and dispose of it. In point
of fact the construction given the phrase has been
the latter."
This definition was quoted with approval in Agins v.
Tiburon, 24 Cal.App.3d 266, 273 (1979). In a procedural due
process case (as distinguished from a taking clause case) the
58
Court states that "[p]roperty interests . . . are not created by the
Constitution. Rather, they are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law." Board of Regents vy.
Roth, 408 U.S. 564, 577 (1972).
The Lucas opinion makes explicit what has been
acknowledged time and again by the Court that the economic
impact of the regulation on the claimant and the extent to which
the regulation has interfered with the distinct "investment-
backed expectations” are keenly relevant to takings analysis.
The key is that you musi look at the property being regulated,
rather than the property as a whole, and this, from the claimant's
point of view. In this connection the court will take judicial
notice that it is possible to live in an untenantable house.
Thus in both types of cases the Court has treated intangible,
economically discrete interests as protectable property rights
and compensable if "taken." The Lucas court in its footnote 7
on pages 813 and 814 focuses on the definition of property. It
States:
“Regrettably, the rhetorical force of our ‘deprivation
of all economic feasible use’ rule is greater than its
precision, since the rule does not make clear how the
‘property interest’ against the loss of value is to be
measured."
“The answer to this difficult question may lie in how
the owner's reasonable expectations have been
shaped by the State law of property, i.e., whether and
to what degree the State's law has accorded legal
recognition and protection to the particular interest
in land with respect to which, the takings claimant
alleges a diminution in (or elimination of) value."
On a different but related issue is the question of property as
a vested right. It is clear that when the government grants a
legal right it can be subject to expressly or implicitly reserved
power to change the law. Under those circumstances, if the
59
goverment takes that right back, the claimant has not lost any
"vested right."
Respondents’ argument that appellants’ property rights are
not "vested rights" is misplaced. Appellants’ rights to possession
and use of their property is based upon the positive law of
California and is not subject to any express or implied power in
the government to take those rights away. C.C. §654; Gregory
y. San Juan Capistrano, 142 Cal.App.3d 72, 87-90 (1983). Any
such effort to do so would be in violation of the Constitutions
based on the positive law as well as our normative standards.
"The City" together with "The Developer" created an
environment which the plaintiffs relied on and with justification.
The name of the street was changed to Corte de la Vista, "the
street of the view." The plaintiffs invested substantial sums into
their home to make maximum use of their location and make it
adaptable especially to their lifestyle. The primary use and
value of their property has been destroyed by air pollution
caused by the diversion of traffic. The plaintiffs' protected,
valuable property interests were taken from them in violation of
the United States Constitution and its laws and the California
Constitution and its laws.
Appellants anticipated prior to buying and improving their
home that the adjacent property would be subject to a residential
subdivision. They do not claim that the development was
unexpected. However, their claim is not directed to the fact of
the subdivision itself, but rather avers that the particular details
of the existing traffic control plan, specific plan, and the general
plan, were all relied on by appellants.
In Topanga v. County of Los Angeles, 11 Cal.3d 506, 517,
the court states:
"A zoning scheme, after all, is similar in some
respects to a contract; each party foregoes rights to
use its land as it wishes in retum for the assurance
that the use of neighboring property will be
similarly restricted, the rationale being that such
mutual restriction can enhance total community
welfare." (Citations omitted.)
60
Appellants have sustained damages by the unjustified,
"unexpected and unconstitutional variance of the traffic control
plan. The funneling of the traffic to a 132-home subdivision
into one access located across the street from their home,
subverts the critical reciprocity upon which community
planning regulations rests. The traffic diversion plan also
effected a compensable "taking" of a traffic servitude.
Civil Code §654: "The ownership of a thing i is the right .
to possess and use it to the exclusion of others . ; Duckett v.
¥2 Cal. 2d 263, 265
(1935). "The landowner's property right to exclude the use and
possession by others is one of the most essential sticks in the
bundle of rights that are commonly characterized as property."
-» 458 U.S. 419,
435 (1982).
The respondents cite Avyco Community Developers, Inc. v.
South Coast Regional Commission, 17 Cal.3d 785 (1976) to
support their argument that "appellants have no vested rights in
zoning." They confuse appellants’ rights in “possession and use"
with a claim for a "vested right in zoning.”
Next respondents confuse appellants’ reliance on their
reasonable investment-backed expectations, "as reliance on
zoning." Appellants have not claimed a “vested right in zoning."
Appellants’ complaint alleges that they did rely on "The City's"
general and "The Developer's" specific plan as well as the
existing ideal residential environment of their location, 2(J.A.
254; 926). This is not reliance on zoning, as a vested right, but
it does constitute a major element of their reasonable
investment-backed expectations. "The City's” traffic control
plan was designed and implemented in violation of the general
plan, 2(J.A. 400: 26-29; 408: 10-14). It also was beyond "The
City's" authority and jurisdiction (A.O.B. 42).
Lastly, respondents confuse the distinction between
traditional "vested rights" in property, and a developer's "vested
rights" which is based on the principles of estoppel. The
respondents’ Avco case on pages 791-793, dealt with "The
Developer's" species of “vested rights" and has no application on
this point. (It does however have application to show that "The
61
J :
Developer" never acquired a vested right until after the hearing
on the final map and even after this lawsuit was filed, 2(J.A. 407:
11-18).)
This small selection from respondents’ brief, on this one
point, is in microcosm the technique used throughout their
briefs and pleadings. It must be obvious that it contains:
respondents’ "facts" and not the facts alleged in the complaints;
Spurious arguments that obfuscate the real issues; and cite cases
of two kinds, those that are clearly distinguishable, and those
that have some relevancy. In the latter category it will be found
that those cases support appellants’ case and not theirs. Because
this has been a pattem, it is difficult to explain as a lack of
knowledge.
Appellants have attempted to restrain themselves from
littering their brief with like examples. This for two practical
| reasons: One, they wished to use the space available to develop
their case in a positive manner; and two, the courts
understandably don't approve. Accordingly, appellants will not
pursue this further, unless the Court so orders.
If the landowners can prove that all of a discrete part of their
property was “taken,” they may have a compensable "taking"
under the Constitution if this discrete part was (a) a vested, |
protected property right, and (b) denies "economically viable |
use and/or their reasonable “investment-backed expectations,” |
and (c) that it destroys or substantially damages the landowner’s
interest in their property. The primary consideration is the
effect on the individual's use of the property from his
perspective.
"The City" improperly appropriated a traffic servitude on |
plaintiffs’ property. The plaintiffs' vested, protected property
interests have been invaded and interfered with. The right to
possess and use, to the exclusion of others, has been destroyed.
The loss of the "personal sanctuary" aspect of their home is both
a substantial and significant loss to appellants and also destroyed
their reasonable investment-backed expectations.
"The plaintiffs purchased their home to enjoy the
out-of-doors living and comfortable indoor living
62
without air-conditioning, and both features have
been substantially and significantly damaged and/or
destroyed by the defendants and each of them as
herein alleged." 2(J.A. 258: 5-9)
"The plaintiffs have incorporated a group of
photographs into their group Exhibit B1-20 which
demonstrates in a tangible and concrete manner that
what has been alleged as the reason for their
purchase and subsequent improvements was not an
after-thought but was a distinct investment-backed
expectation.” 2(J.A. 258: 10-14)
. 159 Cal. App.3d
359 (1984) has substantially the same facts and issues as the
case at bar. It held on page 367 that:
"Thus, California courts have extended the peculiar
and substantial burden standard to airport noise
cases and noxious odor cases. Both these classes of
Cases at one time required physical taking before
compensation was allowed. People suffering
damages from their proximity to a highway should
not be unequally required to allege and prove a
physical invasion (see Comment, The Highway
Cases: Noise as a Taking or Damaging of Property
in California (1980) 20 Santa Clara L.Rev. 425).
Plaintiffs in this case have alleged unique damage to
their property from dust, debris and highway noise.
As the court held in Varjabedian, they should be
allowed to establish that they suffered a peculiar and
substantial burden as a result of their proximity to
the highway. The substantiality of the interference
may be determined by use of modern measurement
techniques as in airport noise cases or by testimony
regarding the actual physical invasion of their
property by dust and debris as in Varjabedian.
63
ER reer ese a
Thus, compensation must be rationally related to the
degree of harm suffered and will not be dependent
upon an arbitrary standard that is tied to a physical
appropriation or chance location of plaintiffs’
property.”
"The City's” constitutionally improper appropriation of a
traffic servitude effected an out and out "physical taking”
without paying just compensation. The cost must be divided
equally and paid for by the entire community.
We are told that dissenting opinions are enlightening but are
not to be cited in briefs. Effective Appellate Advocacy, by
Frederick Bernays Wiener, 1950, Prentice-Hall Inc. Because
Justice Brennan's unique 25 page dissenting opinion in San
Diego Gas & Electric v. San Diego, 450 U.S. 621 (1981) was,
when rendered, the "constructive" majority opinion on the merits
of the case, and further, because it was the precursor of First
English and Nollan, infra, and their progeny, which have been a
self-fulfilling prophesy, an exception to the rule is defensible.
(Justice Brennan's opinion).
"Police power regulations such as zoning ordinances
and other land use restrictions can destroy the use
and enjoyment of property in order to promote the
public good just as effectively as formal
condemnation or physical invasion of property.”
(Page 652.)
"In my view, once a court establishes that there was a
regulatory ‘taking,’ the Constitution demands that the
government entity pay just compensation for the
period commencing on the date of the regulation
first effected the ‘taking,’ and ending on the date the
government entity chooses to rescind or otherwise
amend the regulation.” (Page 653.)
“Nothing in the Just Compensation Clause suggests
that ‘takings’ must be permanent and irrevocable."
(Page 657.)
“That guarantee was not designed to bar the govemment from
forcing some individuals to bear burdens which, in all fairness,
should be bom by the public as a whole.” (Page 656.)
APPELLANTS’ PETITION FOR REHEARING
At pages 5-13:
L
DUE TO THE RESPONDENTS’ WRONGFUL USE
OF ITS “SPEAKING” DEMURRER, THEY HAVE
DEVELOPED THEIR OWN SCENARIO THAT IS
INCONSISTENT WITH THE FACTS IN THE
COMPLAINT. THIS INDUCED THE COURT’S
MISUNDERSTANDING OF THE FACTS. THIS IS THE
MAJOR ERROR AND ALL OTHER ERRORS STEM
FROM THIS FALSE PREMISE. THIS IS TRUE OF
THE COURT’S RULING ON APPELLANTS’
INVERSE CONDEMNATION CAUSE OF ACTION
The root cause of all the Court’s errors can be traced to the
scenario that Respondents have fabricated. The proceedings in
the lower court were all in the motion court and were presided
over by the Honorable Thomas R. Murphy. This court, more
than most courts, carries an extraordinarily heavy case load.
Based on many appearances before Judge Murphy, it is clear
that he is by nature well suited to perform the judicial functions
of this Court and his demeanor manifests it. It was also apparent
from his questions and statements that he possesses an honest
bias for government in connection with claims like the
Appellants are making.
Because of the trial court’s seeming predisposition in favor
of the City in cases like this, together with the heavy case load, it
65
may be susceptible to being persuaded to adopt Respondents’
scenario of the facts as an honest mistake. This error would
have the added advantage of leading to the conclusion desired.
It is readily admitted that to read the voluminous pleading,! is
most time-consuming, tedious and boring. Add to this, all of
the motions and briefs associated with ruling on these pleadings,
it is understandable that Courts may consciously or
unconsciously rely on “facts” presented by the party they
believe to be right.
Under the rules, for the purposes of reviewing a complaint, it
must be assumed that all facts alleged are true. The Court
cannot permit itself to be wrongfully influenced by the
Respondents’ “facts” and must be vigilant that they do not fall
into this trap. This is all the more important when to rely on
Respondents’ “facts” will result in doing an irreparable
injustice.
Respondents’ techniques of repeated clichés, based on
generalities of facts and laws that are inconsistent with the facts
and law in Appellants’ case (and also not true in fact) is
reminiscent of the technique used by Joseph Goebbels. For
those lucky enough not to be that old, he was Hitler’s
propaganda minister and confidante. His policy was based on
the notion “that a lie, repeated often and forcibly, gains the
legitimacy of truth.” Appellants fear that the trial Court was
victimized by the use of this technique and that this Court may
be also, if not called to their attention.
A few examples of Respondents’ “clichés” should suffice
to demonstrate and identify their use in their briefs. These are
not quotations but merely fair paraphrased generalities of
Respondents’ “clichés.”
1. You had notice and you had a hearing and you are
barred because you failed to seek judicial review.
2. That all your common law, statutory and constitutional
Causes of Action are barred because they are based on the city’s
1 Appellants Second Amended Complaint for Counts I and II and the Third
Amended Complaint for Count III as well as the Amended and Supplemental
Complaint.
66
approval of the proposed subdivisions and you failed to seek
judicial review in a timely fashion.
3. Appellants do not have recognized property rights or
constitutional rights.
4. Plaintiff expected no interference with their view.
5. Plaintiffs cannot rely on zoning.
6. Plaintiffs are obstructing “land use planning” by the
misuse of defenses in bar of the statute of limitations.
7. Plaintiffs objected to the subdivision.
These and like statements are inconsistent with the facts in
the Complaints. Where cases are cited in support of the
Statements, they are not applicable to our case and the few that
may be applicable, support Appellants’ case.
Appellants respect the Court’s reluctance to be involved in
disputes like this between attorneys. Be assured, Appellants also
find it most distasteful. Further, it has not been motivated out of
malice or a desire for retribution. We know of no other way to
alert this Court of Appellants’ fears that they may also be
unknowingly misled.
The Court’s opinion, on page 7 states in part:
. .that the action causing the alleged taking or
damage to the Masses’ property is the private
property development by Fieldstone.
With all due respect, Appellants believe that this statement
misstates the material facts as alleged in their complaint. More
particularly, without limiting the generality of the foregoing, the
Court’s attention is called to the Planning Commission’s
meeting of October 3, 1990, page two, third paragraph 2 (J.A.
292) which provides as follows:
The project is proposed as a gated community. The gate
design is single access off Corté de la Vista and it provides a
turnaround area at the entrance. The location of the single
access was dictated by staff. The original proposal came in with
an access off Alicante Road; however, for traffic safety purposes,
staff requested that the entrance be moved to Corté de la Vista.
67
The relocation of the access gate to the proposed
subdivision was merely the means to accomplish the City’s
objective of regulating traffic for “public safety purpose” and
this on its publicly owned, constructed and maintained streets 1
(J.A. 33). The diverting and funneling all this high volume of
traffic (from 132 single, family homes) just across the street
from the Appellants’ residence, resulted in a public taking, for a
public purpose, for a public use and all on public property as
alleged in their Complaint 2 (J.A. 250-300).
Fieldstone’s proposed subdivision, including the access gate,
is indeed private property. However, if the Complaint is given a
reasonable interpretation, reading it as a whole and its parts in
their context, then Fieldstone caused no inverse condemnation
taking or damages. (The Appellants’ claim against Fieldstone is
limited to two Causes of Action based on negligence, causing
nuisance-type damages as set forth in Count II of their
Complaint 2(J.A. 260-270).) The Complaint also makes clear
that Appellants had no objection to the proposed subdivision.
Nor does the Complaint allege that private property, including
the gate, caused the taking.
The substantial, immediate, direct and proximate cause of
Appellants’ damage is the diversion and funneling of the traffic
which was accomplished by the city by “requesting” that the
entrance be moved to Corté de la Vista 1 (J.A. 33).
Respondents’ demurrer admits all material facts properly
plead and in addition, the city has removed all doubt by
explicitly admitting that “the location of the single access was
dictated by staff “for traffic safety purposes....” 2 (J.A. 292).
The traffic diversion was the “public improvement” for
traffic safety purposes for the benefit of the public as a whole.
Thus, the admitted facts show that the City, acting in furtherance
of public objectives, took and/or damaged Appellants’ private
property without just compensation. The Appellants should not
be made to suffer a disproportionate burden for the benefit of
the public as a whole.
The case of Yee y, City of Sausalito (1983) 141 Cal.App.3d
917, is, by compelling analogy, opposite to our case and is most
persuasive.
68
In the Yee case, the property owner brought an action
against the City for inverse condemnation alleging that, a public
improvement, namely, a storm drain system for diverting rain
water and used as deliberately planned and designed, was the
proximate cause of the taking of their property. The trial Court
granted the City’s motion for summary judgment and the Court
of Appeal reversed.
The Court held that the Appellants had stated a valid cause
of action for inverse condemnation since the public safety
purpose of the plan was served. In so holding, the Court applied
the rule that inverse condemnation is the remedy for injury to
private property where the damages are proximately caused by a
public improvement used as planned.2
In our case, the city’s traffic diversion plan, adopted for a
“public safety purpose” and this public safety improvement
being used as planned and designed is the proximate cause of
Appellants’ injury. The fact that the traffic diversion was not
designed or planned to take Appellants’ property is irrelevant.
It fulfilled the objective of public safety and at the same time
was the proximate cause of Appellants’ injury. The Yee Court
States on page 920:
The fundamental justification for inverse liability is
that the government, acting in furtherance of public
objectives, is taking a calculated risk that private
property may be damages. (Citations omitted.)
In our case, the public purpose served by the traffic
diversion plan was to “collect and convey” the traffic from
Alicante Road and funnel it to a point across the street of
Appellants’ home. The injury is occurring in increasing
increments as the development is being constructed and
occupied. The traffic diversion for public safety is also
2 The record in the Yee case is not clear but it can reasonably be presumed
that the collection of rain water included run offs from private evelopments.
Based on Respondents’ reasoning, they would argue that the private
developments were the proximate cause.
69
functioning as deliberately planned and designed. The
Appellants are being injured as a proximate cause of the public
improvement.
The fact that our case arises out of acts and conduct taken
by the City in connection with its land regulation duties does not
nor can it be constitutionally construed that the Subdivision
Map Act (S.M.A.) supplants the common law remedy of
“inverse condemnation” or provides a governmental
immunity.?
Lacher vy, The Superior Court of Orange County (1991) 230
Cal.App.3d 1038, 1050, 1051 (Lacher). Nor did it amend the
constitution, prohibiting the taking of private property for a
public use or purpose without full and fair compensation.
Further, neither the Planning and Zoning Laws (Government
Code, §65000 et seq.) nor the S.M.A. (Government Code,
§66410 et seg.) which cover governmental approval of real
estate development apply to physical taking cases but only to
regulatory taking.
The complaint alleges a physical taking case. The
complaint in the Yee case for inverse condemnation is
substantially the same in all material respects and the Yee Court
ended its opinion by stating on page 923:
Based on the record before us, the Appellants have
stated a valid cause of action for inverse
condemnation and should be allowed to proceed to
trial on the merits, subject to all available defenses.
Because of the law and logic of the Yee case, this Court is
respectfully urged to follow its holding.
The Court’s reliance on the Ullery v, County of Contra
Costa (1988) 202 Cal.App.3d 562 (Ulery) and Yox y, City of
Whittier (1986) 182 Cal.App.3d 347 (Yox), as being opposite to
our case does not bear up upon close scrutiny. The Court’s
statement on page 7 of its opinion that:
3 Under the umbra of its duties relating to the approval of subdivisions,
there is no governmental immunity for inverse condemnation liability.
70
If Fieldstone’s initially proposed map had reflected
the access gate location on Corté de la Vista and the
City had merely given broad approval of the map
without requiring any changes, the rule of the Ullery
and Yox cases would undoubtedly apply as the City
would have merely approved the subdivision map.
The Court’s statement tacitly admits that the cases are
distinguishable. In extending the Ullery-Yox holding, the Court
has created a new and huge immunity to governmental agency.
The Court, in its opinion on page 8, concludes that, any and all,
“conditions or requirements” imposed by the government in
connection with approval of subdivision maps, do not constitute
“public” uses or purposes which would subject the government
to inverse condemnation liability. It was an error to rule on this
issue because that issue was not proposed or briefed by the
parties. The Subdivision Map Act (S.M.A.) cannot bar a
homeowner’s action for inverse condemnation even if provided
for by the legislature explicitly. Lacher, supra, and Horn, infra.
Both Harding, infra and Yee, sufra, would find that the
Complaint herein states a good cause of action. 1 (J.A. 33), 2
(J.A. 398).
The following statements, made by the Court in its opinion,
are errors Owing to a mistake of law and/or a misunderstanding
of the facts:
(a) Private property caused the taking and the damages.
(Not so; it was the traffic diversion.)
(b) The City cannot be liable for inverse condemnation
for merely relocating the access gate on private property.
(Under the Constitution, the City cannot take private property
for a public purpose without just compensation.)
(c) The only alleged involvement of the City was its
approval of the subdivision map. (Not true; it adopted and
approved a traffic diversion plan for public purposes that took
and damages Appellants private property, without
compensation.)
71
There is a close nexus between the traffic diversion plan and the
injuries sustained by the Appellants. For the Court to hold that
“the City’s conditions” was not a “public taking” is to
confuse means and ends. The end was traffic diversion for the
public safety. The means used was the relocation of the access
gate. The tail does not wag the dog.
It is prejudicial error for this Court to affirm the trial
Court’s order, sustaining the Respondents’ Demurrer to the
Complaint for inverse condemnation, based on the reasons
advanced by the trial Court and its own independent reasons.
SUPPLEMENTAL PETITION FOR REHEARING
AND/OR REPLY BASED ON EGREGIOUS
MISSTATEMENTS OF FACTS AND TO BRING TO THE
COURT’S ATTENTION THE U.S. SUPREME COURT
OPINION FILED ON JUNE 24, 1994
At pages 1-4:
I,
SUPPLEMENTAL JUSTIFICATIONS FOR
THIS FILING AND GRANTING A REHEARING
1. RESPONDENTS’ NOTORIOUS EGREGIOUS
MISSTATEMENTS OF FACT.
Respondents’ misstatements of facts are so substantial and
significant that the Court will find the attached “index” helpful
to ferret them out. This should set the record straight.
2. NEWLY DISCOVERED CONTROLLING
AUTHORITY.
The decision in the Dolan v, City of Tigard (“Dolan”), 94
D.A.R. 8803 (6-24-94), was entered only days prior to
Appellants’ filing their Petition for Rehearing. Appellants’
inverse condemnation case is based on a “physical” taking,
however, in this context it is a distinction without a difference.
A copy of the opinion is attached hereto for the Court’s
72
convenience. Appellants respectfully submit that it is
controlling in this case.
3. RESPONDENTS SUGGEST SANCTIONS
AGAINST APPELLANTS IN THEIR ANSWER.
The Appellants deny that they reinserted material that the
court had ordered removed. The trial court denied
Respondents’ request for sanctions. The Respondents did not
appeal that order and that matter is res judicata and it is
improper to raise the issue.
IL.
ARGUMENT
The points and authorities in support of Appellants have
been completely and clearly, covered in their complaints and
briefs and will not be repeated here. The nature and extent of
the Respondents’ misstatements of fact have only recently been
discovered. Respondents’ answer, with its tangential issues have
compounded and aggravated the situation. In addition to the
authority cited in the Petition, indemnification contract, even if
otherwise legal, cannot extend to damages in inverse
condemnation. Kramer y, City of Los Angeles, (1972) L.A.S.C.
993, 728 and Greater Westchester Homeowners Association v.
City of Los Angeles (1970) L.A.S.C. 931, 989. The
justification for bringing the Dolan case to the Court’s attention
is self-evident.
iil.
CONCLUSION
Time limitations prevented a more detailed index. No guide
will be a substitute for reading the complaints. Only then will it
become apparent that Respondents “facts” are inconsistent with
the facts alleged by Appellants. If the facts are given the
maximum of judicial review, with independent judgment, as a de
novo proceeding it will show that Appellants’ contentions are
supported by the law.
73
The Second Amended Complaint, the Third Amended
Complaint for the Third Cause of Action and the Amended and
Supplemental Complaint 3(J.A. 542-576) are all part of the
record and set forth all the facts in this case. Given “...a
reasonable interpretation, reading it as a whole and its parts in
their context, constitutes the ‘facts’ in this record.” They will
speak for themselves.
The record shows that the executive branch of the City and
its legislative branch together with the state legislature have
failed in protecting Appellants’ property and civil rights under
our constitutions. If the judiciary fails to protect the Appellants
and other contiguous homeowners from the wrongful
deprivation of their property and constitutional rights, to whom
do they tum?
Developers believe it is expedient to crush any neighbor
homeowners that challenge their proposed subdivision. The
merits or the size of the claim is irrelevant to them. They feel
they must punish “NIMBYS,” seek sanctions every step of the
way, and make them sorry they ever dare to file a suit against
them and make an example of them. The understandable result
of this policy is that it is financially inexpedient for these
homeowners to seek a judicial remedy. As a practical matter,
the courthouse doors are closed to them.
We are inherently vulnerable and unrepresented in our
government. The votes of this group are not substantial and
significant enough to have any effect. Are we to merely suffer
silently, these injustices? Or do we join the growing number
who are cynical and distrustful of our government and have a
contempt for all government? Are these the types of
deprivations and humiliations that Thomas Jefferson had in
mind when he drafted these words:
But, when a long train of abuses and usurpations,
pursuing invariably the same object, evinces a design
to reduce them under absolute despotism, it is their
right, it is their duty to throw off such government,
and provide new guards for their future security.
The Declaration of Independence, July 4, 1776.
74
oC ee. ~~ Te
PETITION FOR REVIEW OF DECISION
BY THE COURT OF APPEAL
FOURTH APPELLATE DISTRICT [DIVISION ONE]
FILED JUNE 17, 1994
At pages 5-13:
A. THE COMPLAINT STATES A GOOD CAUSE OF
ACTION AGAINST THE CITY FOR INVERSE
CONDEMNATION.
1. The Complaint alleges the taking of private property
for a public use and purpose, without compensation.
2. SMA defenses, including the statute of limitations are
not applicable to non-parties, non-regulation taking.
3. Taking that results from legislative and quasi-
legislative action has a more restrictive test than those that arise
out of adjudicatory proceedings.
4. The test for a regulatory taking is also stricter than a
physical taking.
5. There is also a distinction between a use restriction and
the taking of a protccted interest in property.
6. Both federal and state law support the allegations of
the Complaint that Appellants have protected valuable property
rights that have been taken by the traffic easement.
Authority in support of this heading and its subheadings are
grouped together for the convenience of the Court‘.
4 Holtz v, Superior Court of San Francisco (1970) 3 Cal.3d 296,
303,304; Varjabedian, infra; Harding, infra; United States v, Causby,
States v. Orito (1973) 413 U.S. 139, 142 ("The Constitution extends
special safeguards to the privacy of the home.")
75
Il. STATUTE OF LIMITATIONS
APPELLANTS' OPENING BRIEF
At pages 38-47:
D. IRUNCATED LIMITATION PERIODS
REQUIRED NOTICE TO PLAINTIFFS TO BE
CONSTITUTIONAL.
"The City" had no intent and made no effort to afford the
plaintiffs a C.C.P. §1094.5 type of hearing. This is confirmed
by the trial court's conclusion that plaintiffs’ writ of mandate
action is not an administrative mandamus action but an ordinary
mandamus action pursuant to C,C.P. §1085. In that case,
plaintiffs as non-parties to the proceeding between the
respondents would not be bound by the ninety day statute of
limitations contained in C,.C.P, §1094.6(b) or the statute of
limitation period contained in Government Code §66499.37 of
the "S.M.A." Thus plaintiffs’ actions would be controlled by the
three year or five year statute of limitations.
C.C.P. §1094.6 provides for judicial review of a decision by
a local agency pursuant to C.C.P, §1094.5. Plaintiffs do not
appear to be within the class of persons who are subject to either
the benefits or limitations therein provided for. However, in
light of the recent holding in El Dorado Palm Springs, Ltd. v.
Rent Review Commission, 230 Cal.App.3d 335, 344-348 (1991)
("El Dorado") and on analogy to its reasoning, it has an impact
on issues subject to this Court's review.
The parties in the El Dorado case agreed that C.C.P.
§ 1094.6 governs the timeliness of filing the cause of action for
a writ of mandate ("W.0O.M."), that the "W.0O.M." was filed more
than ninety days after the written decision was issued and that
the respondent never gave El Dorado direct notice of the time
within which judicial review must be sought. The parties did
disagree as to whether the cause was filed in a timely manner
under the set of circumstances before the El Dorado Court. The
court held that the period was tolled by failure of the respondent
to comply with the notice requirement of C.C.P. §1094.6(f.
76
The El Dorado court held that the writ of mandate cause of
action was not barred by the ninety day statute of limitations set
forth in C.C.P, §1094.6(b). In arriving at their decision they
reviewed the background of the legislation and quoted liberally
from Hi i i
Assn, 39 Cal.3d 374, 386-387 (1985) and Cummings y. City of
Vernon, 214 Cal.App.3d 919, 922-923 (1989). They found
that prior to the enactment of §1094.6, judicial review of
administrative mandamus was subject to the general statutes of
limitations and that was three or five years unless otherwise
specified. For good and valid reasons the Legislature gave local
agencies the option of adopting a ninety day limitation period.
However, the Legislature considered it vitally important that
parties be notified that a ninety day period is applicable, instead
of a three or five year period. Since §1094.6 benefits local
agencies by reducing the statute of limitations, it requires local
agencies to assume the “burden” and give notice of this fact. At
page 346 of its opinion, the El Dorado court concluded that the
ninety day statute of limitations provision be read so that the
said limitation period be tolled until such time as the
"subdivision (f) notice" is given. Considerations of faimess and
constitutional due process dictates that direct notice be given to
the aggrieved persons of the truncated statute of limitation
resulting in a drastic reduction of time from three or five years
to three months. The Legislature required local agencies to give
notice of the truncated statute of limitations, the Courts should
require the Legislature to do the same.
The case at bar provides this Court the opportunity to
provide remedial relief from the limitation period in
\ Government Code §66499,37 of the "S.M.A." It can find that
j the Legislature impliedly intended to toll the ninety day
: limitation period until such time as notice of it was given. It
could, in the alternative, hold the truncated statute of limitations
to be unconstitutional because the Legislature failed to expressly
provide for direct notice of the drastically reduced period (see
supra, denial of due process III C 1 (a) and (b)). Also, the court
could instead steer a middle course and apply any one or more
of the plaintiffs’ defenses to the ninety day statute of limitation
77
set forth herein under III A 4 (a) and (b). The respondents
never gave the plaintiffs-appellants notice of the time within
which judicial review must be sought (J.A. 401; 10-25). This is
all the more egregious because "The City” gave this notice to
other persons who had Icss substantial and significant interest at
risk (J.A. 409: 1-10; 500; 501), and also because the plaintiffs-
appellants requested this information and never received an
answer (J.A. 401: 8-25). The fundamental basis of "The City's"
duty to notify plaintiffs is the fact that they knew that plaintiffs’
vested and substantial rights were involved. They also knew that
the plaintiffs were entitled to proceedings that were adequate to
meet constitutional standards including notice of the decision
and the time within which to seek judicial review and the
consequences for failure to do so in a timely manner. This
constitutes a flagrant denial of plaintiffs’ due process and equal
protection constitutional rights and treats plaintiffs and
contiguous property owners as (NIMBY's)* and second class
citizens (J.A. 404: 25-28; 405: 1-2) (J.A. 407: 1-6) (J.A. 409:
1-10) (J.A. 411: 3-12) (J.A. 415: 16-26).
Today, in light of contemporary judicial approval of the
doctrine of “tolling,” in truncated statute of limitation cases and
by the Legislature's intent implicitly as well as explicitly being
expressed by the amendments of 1991, recognizing these cases;
and based on analogy to the reasoning for the requirements of
§1094.6(f) that the local agency shall provide notice to the
aggrieved person that the time within which judicial review must
be sought, this Court should apply the same standard to
§66499.37 of the "S.M.A.", and a fortiori to a non-party
contiguous Owner- objector who gave notice of their interest
even before the hearings and the decision and were eclipsed
from all their property and constitutional rights.
4an uncomplimentary nickname used by land developers and land-use
governmental agencies; an acronym consisting of the first letter in “not in my
back yard.”
78
E. STATUTE OF LIMITATIONS DEFENSE IS NOTA
BAR TO NULL_AND VOID PROCEEDINGS, DECISIONS
AND LAWS.
The plaintiffs have alleged that their constitutional rights to
due process was denied to them by "The City” (J.A. 416: 7-24)
and by the provisions of Government Code §66499,37 of the
"S.M.A.”" containing a truncated statute of limitations (infra, III
D, pp. 38-42). Plaintiffs have also alleged that "The City” in
diverting the traffic by the means of relocating the gate engaged
in traffic management (J.A. 412: 1-12) and thus acted without
jurisdiction (J.A. 484: 16-26). In cases where the government
denies procedural or substantive due process or acts without
jurisdiction, its acts are a nullity and the statute of limitation
cannot be raised as a bar. Proceedings, decisions and laws that
are null and void can be collaterally attacked in any proceeding
and at any time subject only to the defense of laches. City and
County of San Francisco v, Padilla, 23 Cal.App.3d 388, 400
(1972).
Even if the government required as a condition, certain
procedural limitations to challenge unconstitutional laws and
they are reasonable, these limitations will not prevent an
aggrieved person from pursuing them if it is reasonable under
the circumstances of the case, that notice of them be given or if
the reason for the untimely filing is the essence of the
complained of constitutional deprivations.
The Fourteenth Amendment to the federal Constitution
provides that no state shall "deprive any person of life, liberty, or
property, without due process of law." The California
Constitution also contains due process guarantees (Art. I, §§7,
15).
The Due Process Clause has been interpreted as a limitation
upon the legislative as well as the judicial and executive
branches of the government, thus preventing arbitrary and
unreasonable legislation. This aspect of the subject is known as
substantive due process, to distinguish it from procedural due
process. Adamson vy. California, 332 U.S. 46 (1947).
The Horm y. Ventura (24 Cal.3d 605 (1979)) case involved
proceedings between a contiguous land owner and the County
79
in which the owner objected to the approval of a new
subdivision because it would in part increase both traffic
congestion and air pollution. The court held at page 616
“whenever approval of a tentative subdivision map
will constitute a substantial or significant deprivation
of property rights of other landowners, the affected
persons are entitled to a reasonable notice and an
Opportunity to be heard before the approval occurs."
The Hom court went on to say at page 617
"However, where, as here, prior notice of a
potentially adverse decision is constitutionally
required, that notice must, at a minimum, be
reasonably calculated to afford affected persons the
realistic opportunity to protect their interests"
(citations omitted).
The Horn court responded to the defendant's argument
based on provisions of the "S.M.A." on page 616 in part as
follows:
"It is a sufficient response to note that the due
process requirements discussed herein are not rooted
in the statute but are compelled by the stronger
force of constitutional principle.”
It should be noted at this point that it would not have
imposed an insupportable additional administrative burden on
"The City" to add to the “notice” they mailed out to contiguous
owners, the truncated time limits for judicial review, as provided
for in their own ordinance (§1.16.010(f)) (S.A. 500; 501) to
persons with interest much less substantial and significant than
plaintiffs-appellants.
"The City's" "notice and hearing" were inadequate to meet
due process standards where plaintiffs’ fundamental vested and
constitutional rights are substantially and significantly affected.
80
The process did not provide for a meaningful notice or a fair
pre-deprivation hearing nor post hearing due process.
The "notice" received and the “hearing" provided obviously
led to no satisfaction of plaintiffs’ due process rights.
Thus, when governmental agencies adjudicate or make
binding determinations which directly affect the legal rights of
individuals, it is imperative that those agencies use procedures
which have been traditionally associated with the judicial
process. The considerations of what procedures due process
may require must be determined by examining the precise
nature of the government function involved as well as the private
interests that have been affected by the governmental action.
Mathews v, Eldridge, 424 U.S. 319 (1976).
In the recent case of Traverra* v. People ex rel Dept. of
Transportation, 9 Cal.App.4th 477, 1647d, modified (1992), the
Court determined that a statute failing to provide for any pre or
post hearing to owners of billboards is unconstitutional. A
petition for review is currently pending in the California
Supreme Court. [Case was reversed by the Califomia Supreme
Court on grounds that are not applicable to the case at bar.]
It is clear from the record in the case at bar: the nature of
the proceedings that plaintiffs were subjected to, the substantial
and significant interest plaintiffs were deprived of, and the
minimal burden that remedial procedures would have caused,
that the plaintiffs were denied their procedural and substantive
due process and equal protection rights.
The most limited standard of judicial review must look into
the matters of fundamental authority and abuse of discretion,
and based on the Superior Court's ruling, it did neither. A
person aggrieved has a right to a judicial determination of
constitutional questions and of other questions of law.
17
Cal.2d 321, 325 (1941). Where a constitutional right is involved
in the factual determination, the courts must make an
independent examination. Ohio Valley Water Co, v. Ben Avon
Borough, 253 U.S. 287 (1920).
[*Case was reversed by the California Supreme Court on
grounds that are not applicable to the case at bar.]
81
Where the facts relate to the jurisdiction or fundamental
authority of the administrative agency, either under the
constitution or the statute, judicial review of that determination is
also required. Westem Air Lines v, Sobieski, 191 Cal.App.2d
399, 406 (1961).
The Superior Court assumed that plaintiffs’ W.O.M. action
was to be reviewed on the basis of a quasi-legislative standard.
The proceedings between the defendants-respondents is without
question quasi-judicial. Where "The City” simultaneously acts in
a quasi-judicial and quasi-legislative capacity, even ordinary
facts must be reviewed under the substantial evidence test.
Mountain Defense League v. Board of Supervisors, 65
Cal.App.3d 723, 729 (1977). Plaintiffs’ identified private
interests were never noticed, or even considered at the hearing
involving "The Developer's” application for a new subdivision.
As to plaintiffs’ interest, there was never any notice or hearing!
How can the defendants claim that plaintiffs had a
constitutionally adequate pre-deprivation hearing? It is beyond
any doubt that the decision as to plaintiffs is null and void and
therefore is subject to collateral attack.
"The City's" action relating to its traffic management
decision transgresses "The City's” authority, which under Vehicle
Code §21 has been preempted by the state and any delegation
of this power must be expressly, and not impliedly, authorized
by the state Legislature. "The City's" action was without
jurisdiction and is yoid. In such a case, the court does not
review the action for abuse of discretion because there is no
discretion to abuse. Association for Retarded Citizens v.
Department of Developmental Services, 38 Cal.3d 384, 391
(1985). Because "The City” acted without jurisdiction, its
decision is subject to collateral attack. City and County of San
Francisco vy. Padilla, 23 Cal.App.3d 388, 400 (1972). The
Padilla case also holds that the agency may act in excess of its
jurisdiction by the way it proceeds to or during the hearing
resulting in a prejudicial abuse of discretion because it had not
proceeded as required by law. “Conduct of the proceeding” can
result in the agency acting in excess of its jurisdiction to the
same effect of the agencies acts without jurisdiction in its
82
,
fundamental sense. In either case, the agency's decision would
be subject to collateral attack. Any proceedings attacking a void
decision can be made at any time, and will not be subject to the
bar of the statute of limitations, only to laches.
APPELLANTS' REPLY BRIEF
At pages 36-43:
D. TRUNCATED LIMITATION PERIODS WITH A
NONCLAIM CLAUSE REOUIRE NOTICE TO
APPELLANTS TO BE CONSTITUTIONAL.
The SMA provides for notice to adjacent landowners
“whenever approval of a tentative map will constitute a
substantial or significant deprivation of the property rights."
Government Code §66451.4. The nonclaim provision of said
§66499.37 provides in substance the barring of all claims but,
by its literal terms, does not bar claims for “damages or
compensation." The SMA does not contain any provision which
provides the same type of notice contained in C.C.P.
§1094.6(f). "The City's" ordinance for the "Time Limits for
Judicial Review," Section 1.16.010, provides notice to the party
of the time within which judicial review must be sought.
However, said section only applies to officers or employees of
"The City" and applicants for permits, licenses and retirement
benefits, but not for adjacent landowners, 3(J.A. 500, 501).
Appellants did not receive a predeprivation notice or
hearing, notice of the decision, a notice as to the time in which
to seek judicial review, nor a notice of the nonclaim provision.
As known adjacent landowners, their federal and state due
process and equal protection rights were denied them, as well as
their rights to just compensation.
“The City" was under an affirmative duty by virtue of the
federal and state constitutions, statutes and case law to provide
appellants with actual and meaningful notice of their rights
including a fair predeprivation hearing. People v. Swink, 150
83
i as
Cal.App.3d 1076, 1079, 1101, 1102 (1984); Minor v. The
Municipal Court, 219 Cal.App.3d 1541, 1549, 1550, 1551
(1990).
In 1988 the Supreme Court of the United States held in a 8
to 1 decision that a nonclaim statute violated the due process
clause. Where the creditor was known to have a protected
property interest and his location was known or reasonably
ascertainable, they were entitled to actual notice of the fact that
the statute could adversely affect a creditor's protected property
interest. Tulsa Professional Collection Services. Inc, v. Pope,
485 U.S. 478 (1988).
A vested right of action is property in the same sense in
which tangible things are property, and is equally protected
against arbitrary interference. James vy, Oakland Traction Co.,
10 Cal. 785 (1909).
The modem view as to the validity, under the Federal
Constitution, of prejudgment attachment, gamishment, replevin
and like procedures authorizing summary possession of
property, is represented by the Fuentes v. Shevin case at 407
U.S. 67 (1972) and the Tulsa case. Courts in a number of cases
have held that the state statutes authorizing the prejudgment
seizure of personal property without notice to the owner, and
without affording him an opportunity to be heard prior to the
seizure, violated procedural due process standards under the
federal Constitution. There are exceptions but none are
applicable in the case at bar.
Prior to an action that will affect an interest in life, liberty, or
property, a State must provide "notice" reasonably calculated,
under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to
present their objections. Mennonite Board of Missions v.
Adams, 462 U.S. 791 (1983).
For further application of these principles see: Probate Code
§9001(a) and §9050; Adams vy. Egley, 338 F.Supp. 614 (1972)
(summary repossession under Commercial Code); Randone vy.
Appellate Department, 5 Cal.3d 536 (1971) (attachment - C.C.P.
§537 held unconstitutional); Blair v. Pitchess, 5 Cal.3d 258
(1971) (claim and delivery law violated due process).
Rd
BS
23)
If Miranda is required to be warned, why not the adjacent
landowners? Miranda y. Arizona, 384 U.S. 436 (1966).
Even a strong public policy in favor of the building industry
and land planners still requires them to accomplish their
laudable goals commensurate with the constitutional rights of
the adjacent owners.
Respondents’ confidence in the recent case of Patrick Media
Group. Inc, vy, Califomia Coastal Commission, 9 Cal.4th 592
(1992), is misplaced. The Patrick Media Group (PMG) was in
privity with applicant and the lessee-assignor and also made a
demand for compensation and was notified of the denial. PMG
was thus a party and had notice of the predeprivation
proceedings. Further, the Public Resources Code and §§13106,
30801 of the California Coastal Commission Regulations,
provide for a post-hearing procedure.
The case is decided on the bases of res judicata and the
balance of the opinion contains dictum. It also should be noted
that the PMG court would in all fairness permit PMG to file
within the period allowed for judicial review, starting not with
the decision, but from the time they received actual notice. Also
the court expressly states that United States v. Dickinson, 331
U.S. 745 (1947) and Pierpont Inn vy. State of California, 70
Cal.2d 282 (1969) would be followed if, as in the case at bar, the
tolling, or suspension, of the statute and the estoppel of a
defendant to raise the statute was a defense. On page 615 the
PMG court indicated “where the plaintiff, without fault, is
unaware of a cause of action or of its extent, or where fraud or
other misconduct by the defendant has caused the plaintiffs’
inaction, they would permit the ‘late filing.”
Presenting Jamul v. Board of Supervisors, 231 Cal.App.3d
665 (1991) and Califomia Coastal Commission v. Superior
Court (Ham), 210 Cal.App.3d 1488 (1989), are also sound
decisions but are not authority for the respondents’ arguments
because they are also distinguishable from the case at bar for the
same reasons that the Rossco and PMG cases are distinguishable.
The non-claim provisions of the SMA and "The City's"
subdivision ordinance are unconstitutional for their failure to
85
ee eee hs)
4
provide for actual notice for a predeprivation adjudicatory
proceeding.
There is no contest in balancing the policy considerations in
support of the statute of limitations, against the policy
considerations of an individual's rights guaranteed by the
Constitutions. Constitutional rights prevail.
DECISIONS AND LAWS.
That based on the facts alleged in the complaint, appellants
have provided the citations to authority that support their
contentions that proceedings, decisions and laws that are void
may be collaterally attacked (A.O.B. 42-47). The respondents
in their responses and on the admitted facts cite only one case to
refute appellants’ authority and that case is not applicable to the
facts, and by implication is support for appellants’ position.
In the case at bar, the complaint alleges that "The City” was
without fundamental jurisdiction of both the person and the
subject matter; that the proceedings and the decision were void;
and that the statute and ordinance in question were
unconstitutional and void. These allegations are supported by
facts.
In Hawkins v, County of Marin, 54 Cal.App.3d 586, 593
(1976), the court cites authority with approval, that involved
judgments that were void due to jurisdictional defects apparent
on the face of the record. The court then went on to say that:
"The doctrine of these cases should not be extended to those
involving the review of conditional use permits allegedly not
issued in conformity with statutory requirements." Again, the
court was right, but those are not the facts alleged in the
complaints, and on the face of the record. The record shows
that the tribunal was without jurisdiction in the fundamental
since, and just that they made an error.
The respondents cite two other cases as support for their
argument in unrelated sections of their brief. They do relate to
the issue of the inapplicability of the statute of limitations as a
bar to a void proceeding and thus will be dealt with. They cite
86
the case of Allis-Chalmers vy, City of Oxnard, 105 Cal.App.3d
876 (1980) for the proposition that a “short statute of limitations
even against the civil rights claim" is a bar (R.B. 31-32). Allis-
Chalmers received notice of the assessment proceedings,
attended and made objections. The taxing tribunal had
jurisdiction, and Allis-Chalmers had notice and a hearing.
Because the facts alleged in the complaint at bar are totally
distinguishable on all significant facts, the case does not support
respondent's argument.
The Respondents in another section of their brief cite the
case of City of Baldwin Park v, Stouskus, 8 Cal.3d 563 (1972),
for the proposition that: “may not untimely attack special
assessment in later proceedings” (R.B. 14). They fail to point
out that the claimant in that case had notice of the proceedings,
attended the hearing, and made an objection on the ground of
disproportionality between the tax benefit and the tax burden.
The court correctly held that the claimant under those
circumstances could not collaterally attack the assessment, even
under the new ground based on the Constitution.
In Justice Brennen's opinion he captures the essence of "due
process" in land regulation cases as follows:
"After all, if a policeman must know the constitution,
then why not a planner.?" (Page 621, FN 26.)
The record in the case at bar shows that the proceedings,
decision and laws were null and void, thereby depriving the
tribunal of fundamental jurisdiction. Accordingly, the statute of
limitations cannot be a defense in this case.
APPELLANTS' PETITION FOR REHEARING
At pages 31-33:
VI.
ASSUMING, ARGUENDO, THAT THE PROCEEDINGS,
DECISIONS AND LAWS ARE SUBJECT TO THE
STATUTE OF LIMITATIONS DEFENSE, THE
APPELLANTS HAVE RAISED NUMEROUS
REASONS, ANY ONE OF WHICH WILL BAR ITS USE
The Appellants’ Opening and Reply Briefs set forth in detail
the substantive and procedural bars of suspension, estoppel and
tolling. It also demonstrates the limitations of the statute of
limitations defense being raised by demurrer rather than by an
answer. These will not be repeated, except to call the Court’s
attention to our Supreme Court’s premier case of Pierpont Inn
y. State of California (1969) 70 Cal.2d 282 (Pierpont). Because
of the continuing and accelerating nature of the damages and
the City having full knowledge of Appellants’ asserted rights
even prior to their decision and thereby not be prejudiced,
makes that case a perfect one to apply the doctrine of “judicial
suspension” (claims based on nuisance-type damages also
frequently employ this concept). Curiously, the Court failed to
address these issues, probably because of a misunderstanding of
the facts. The Court’s failure to address these issues as well as
the other bars covered in their briefs has resulted from a
misunderstanding of the facts as alleged in the Complaint and
does an injustice to Appellants.
The City approved and adopted a traffic regulation for
public safety in relation with its approval of Fieldstone’s
subdivision.» Under the Vehicle Code and the Subdivision Map
5 The mere fact that the City approved and adopted a traffic regulation, (not
within the subdivision) on its public roads and for the laudable purpose of
public safety, contemporanecously with its subdivision land regulation and
zoning proceedings does not nor can it be claimed as an immunity under the
S.M.A. In certain cases the Courts can require compliance with the act as
88
Lu | sd
Act, this required a minimum of at least two more notices and
hearings. No such notice was given and no such hearing was
had. The City traffic regulation, was adopted by stealth, it is
“D.0.A.!”
That being the case, it would be unnecessary to develop the
basis for the necessity for at least two more notices required by
the Constitution (also they were addressed in Appellants “Fatal
Constitutional Flaws” infra). Accordingly, Appellants will
merely identify them for the Court’s convenience.
The facts alleged require a predisposition proceeding; notice
and hearing that are mandatory. For an explanation of the
constitutional basis of this requirement and the criteria that must
be adhered to, see the Horn case, supra.
The United States Supreme Court in 1988 held in an 8 to 1
decision that the employment of a truncated statute of
limitations, (e.g. Government Code §66499.37) requires actual
notice to be constitutional. Tulsa v. Pope, supra.
It should also be noted that the City, in its own ordinance
(§1.16.010(f)), provides for notice of the entry of the decision
and the time limits for judicial review for a class of persons with
interests much less substantial then Appellants. Also, the Code
of Civil Procedure §1094.6, in like situation, required the same
type of notice (Appellants’ Opening Brief at 38-42; Appellants’
Reply Brief at 36-40).
procedural condition to raising the constitutional issue such as the Rossco
Holding, Inc. v. State of California (1989) 212 Cal.App.3d 642 (Rossco).
(Appellants’ Reply Brief 30-31, 40). These cases are all distinguishable on
the material facts, which stated briefly are: (1) Appellants are not applicants
or parties; (2) no notice of a pre-deprivation hearing; (3) no waiver; (4)
excused from exhausting administrative remedies; (5) excused from filing for
judicial review; (6) the taking was not a regulatory “taking” but a “physical
taking”; (7) Appellants filed for judicial review in a timely fashion from an
adjudication proceeding; (8) the proceedings were constitutionally flawed and
thus null and void; (9) Appellants raised good and valid defenses as a bar to the
statute of limitations defense; (10) the record and the applicable law make it
just unfair to bar Appellants’ meritorious constitutional claims.
89
The fact that the City is required to provide all these notices
does not impose upon them an insupportable administrative
burden or cost. They merely add to the notice of public
hearing, whatever additional notices, that are required by the law
(and also in all fairness). This is “duck soup” with today’s
word processors. The Subdivision Map Act even provides for
the developer to pick up the cost, if any.
It is manifest from the record herein that this Court owing to
a mistake of law and a misunderstanding of the facts, affirmed
the trial Court’s sustaining of the demurrer to the three Causes
of Action in Count III of the Complaint. The injustice done to
Appellants is profound. This is particularly painful because it is
seriously doubted that the original decision is correct.
PETITION FOR REVIEW OF DECISION
BY THE COURT OF APPEAL
FOURTH APPELLATE DISTRICT [DIVISION ONE]
FILED JUNE 17, 1994
At page 23:
F. ASSUMING, ARGUENDO, THAT THE PROCEEDING,
DECISIONS AND LAWS ARE SUBJECT TO THE
STATUTE OF LIMITATIONS DEFENSE, THE
APPELLANTS HAVE RAISED NUMEROUS
REASONS, ANY ONE OF WHICH WILL BAR ITS
USE.
1. Without waiving the other "bars" to the statute of
limitations defense, the Appellants call the Court's attention to
Pierpont, infra. The material facts and issues are the same as in
the case at bar, and the doctrine of "judicial suspension” being
based on good logic and reason, the case is dispositive of the
putative defense of the statute of limitations!!.
11 Footnote omitted in printing.
90
2. The Nestle case, infra, had earlier held "that every
repetition of the wrong may create further liability,” thereby
indicating that in continuing injury cases that statute of
limitations may never be a defense so long as they are
continuing.
91
Ill. DENIAL OF THE CIVIL RIGHTS CAUSE
OF ACTION §1983 INCLUDING INVERSE
CONDEMNATION AND THE CAUSE OF ACTION
FOR A WRIT OF MANDATE BASED THEREON
APPELLANTS' OPENING BRIEF
At pages 33-34:
1. THE TRIAL COURT ERRONE
SUSTAINED DEFENDANTS’ DEMURRER BY FAILING TO
APPLY FEDERAL LAW TO DETERMINE WHETHER THE
COMPLAINT ALLEGES A GOOD CAUSE OF ACTION
UNDER THE FEDERAL CIVIL RIGHTS ACT.
In the case of Gomez vy. Toledo, 446 U.S. 635 (1980) the
court stated on page 577,
"By the plain terms of §1983, two -- and only two --
allegations are required in order to state a cause of
action under the statute. First, the plaintiff must
allege that some person has deprived him of a
federal right. Second, he must allege that the person
who has deprived him of that right acted under color
of state or territorial law. See Monroe v. Pape, 365
LE OO? bas
Plaintiffs-Appellants have made both of the required allegations
(J.A. 416: 7-17). Further, there is no basis to impose on the
plaintiffs an obligation to anticipate "matters constituting an
avoidance or affirmative defense." The Gomez court in its
unanimous opinion also stated at page 576,
"Section 1983 provides a cause of action for ‘the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws’ by any person
acting ‘under color of any statute, ordinance,
regulation, custom, or usage of any State or
Territory.’ This statute, enacted to aid in ‘the
preservation of human liberty and human rights’. . .
reflects a congressional judgment that a ‘damages
remedy against the offending party is a vital
component of any scheme for vindicating cherished
constitutional guarantees.’ As remedial legislation,
§1983 is to be construed generously to further its
primary purpose.” (Citations omitted.)
In the case of Bach v. County of Butte, 147 Cal.App.3d 554
(1983), the court held that the state courts of California should
apply federal law to determine whether a complaint pleads a
cause of action under the federal Civil Rights Act sufficient to
survive a gencral demurrer. The headnotes 1 to 8 both inclusive
contain a succinct summary of the applicable law the California
courts should use in passing on a general demurrer to a cause of
action under the federal Civil Rights Act.
In light of the clear statement of law and the facts alleged in
the pleading in question (J.A. 393-437), plaintiffs-appellants
have pleaded a cause of action.
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APPELLANTS' REPLY BRIEF
At pages 24-29:
C. THE APPELLANTS HAVE BEEN DENIED THEIR
FEDERAL AND STATE RIGHTS AND THE TRIAL
COURT ERRONEOUSLY SUSTAINED THE
DEFENDANTS' DEMURRER. THE TRIAL COURT ALSO
ERRED BY FAILING TO APPLY THE CORRECT
STANDARD OF JUDICIAL REVIEW TO EXAMINE THE
MANDAMUS ACTION AND ABUSED ITS DISCRETION
BY NOT ALLOWING LEAVE TO AMEND.
The public hearing conducted by "The City" was three
hearings in one. The first related to the action taken by "The
City” to control traffic. These acts were beyond their authority
and jurisdiction.
The Subdivision Map Act, Government Code §§66410-
66499.37, SMA does indeed provide for the regulation, control
of the design and improvement of subdivisions with
consideration for their relation to the adjoining areas. It is
obvious that these and other physical requirements in the plan
of the subdivision are intended for intramural application only
(§66411). Additionally, the SMA cannot be used to emasculate
the Vehicle Code §21 which has preempted the field of traffic
control unless “expressly provided" by the Legislature. The
Vehicle Code does provide for legal means to engage in limited
traffic control under certain conditions. However "The City"
neglected or elected not to do so and it was not done in
accordance with requirements of the law. Further, traffic control
requires a general plan amendment to implement it and
Govemment Code §§65351, 65357, requires "The City" to
provide notice and an opportunity for the public to become
involved in amendments to the general plan. No such notice
was given to appellants. "The City's" decision relating to traffic
control is void. City of Poway v. City of San Diego, et al., 229
Cal.App.3d 847 (1991).
The second hearing was appellants’ “pre-deprivation
hearing,” and this also being without jurisdiction, notice, or a
hearing is void. Horn v. County of Ventura, 24 Cal.3d 605
(1979); Tulsa v. Pope, etc., 485 U.S. 478 (1988).
The third hearing was the public hearing on "The
Developer's" application for approval of the tentative map.
Plaintiffs-appellants were strangers to those proceedings and
appeared as "witnesses" for the tribunal, to better enable them to
make an informed decision. This hearing was the culmination
of years of negotiations between "The Developer's" staff and
"The City's" staff. The staffs, in lock-step then gave a
choreographed presentation. It was an impressive show, 2(J.A.
399: 1-22). The public had been duly notified of this hearing
and appellants attended as part of a "S.R.O." audience. Both the
respondents by their staff made a lengthy and extravagant
presentation, 2(J.A. 399: 1-9).
The public then was permitted to provide the hearing
officers their opinions as to the new subdivision. These
presentations were limited and tightly controlled, 2(J.A. 399:
10-28; 400: 1-18). Thereafter the respondents were given
unlimited time to answer the public objections, 2(J.A. 400: 19-
22). At no time were the appellants given an opportunity to
cross-examine the witnesses of the respondents, nor any time to
even argue in reply, 2(J.A. 400: 22-25). No notice of the
decision or of anything else was ever given to appellants, 2(J.A.
403: 9-25; 404: 8-19).
The hearing, as a "Town Hall” public hearing, has not been
objected to by appellants except as effected by the perverted use
of: (a) the adoption of a traffic management plan; and (b) used
in lieu of a pre-deprivation proceeding, together with the effect
of the nonclaim statute of limitations. As to these matters the
hearings "were a sham and a fraud on the plaintiffs," 2(J.A. 405:
3-26). The allegations in the complaint present a classic case of
arbitrary adjudicative proceeding violative of both the federal
and state constitutions.
;
b
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"From a pleading standpoint, plaintiffs have thus adequately
described a deprivation sufficiently to require procedural duc
process protection.” Horm v. City of Ventura, 24 Cal.3d 605,
615 (1979).
Where prior notice of a potentially adverse decision is
constitutionally required, that notice must at a minimum be
reasonably calculated to afford affected persons the realistic
opportunity to protect their interests.
Justice Brennan's opinion expresses this thought in the
following quotations:
"The States should be free to experiment in the
implementation of this rule (procedures or form of
remedy) provided that their chosen procedures and
remedies comport with fundamental constitutional
command." (Parenthesis added and citations
omitted.) (Page 660.)
"But the applicability of express constitutional
guarantees is not a matter to be determined on the
basis of policy judgments made by the legislative,
executive or judicial branches." (Page 661.)
"That guarantee was not designed to bar the
government from forcing some individuals to bear
burdens which, in all fairness, should be bom by the
public as a whole." (Page 656.)
1. The complaint alleges a good cause of action under
the Federal Civil Rights Act.
Respondents do not take issue with the points and authorities
in appellants’ opening brief (pp. 33-34) in support of their
position that under federal law, appellants state a good cause of
action. However, they now argue that appellants do not have a
protected vested interest, and even if they did, it is barred by the
statute of limitations.
The appellants have a cognizable, protected, vested interest.
The respondents cite Love v. Navarro, 262 F.Supp. 520 (C.D.
96
Cal. 1967), as being "remarkably similar.” Nothing could be
further from the truth. The Love case holding is a pure and
simple matter of the complaint in that case not alleging any
infringement of the federal Constitution.
Appellants’ case does not rest on a "vested right in zoning"
but on the fact that they have a vested right in possession and
use of their property, infra pp. 13-18. There is no need to claim
a vested right in zoning when land regulation decisions cause
physical interference or invasion of your protected vested
property rights. The airport, highway, noxious odors and other
actual and constructive physical "taking" cases are examples of
not needing a vested right in zoning to recover compensation if
there is a “taking.”
The reason why the statute of limitations is not a bar to
appellants’ civil rights action are the same as has been set forth
in particularity in their opening brief, pages 15-26, and infra 1-
4, and supra 34-43, and does not merit further discussion or
authority.
Thus, neither of respondents’ arguments have any legal or
factual support. The appellants have alleged a good cause of
action that is not barred under the federal Civil Rights Act.
At pages 35-36:
3. The complaint alleges a good cause of action in
mandamus.
The appellants’ mandamus action is an alternative remedy to
the causes of action I and II. It also served as a procedural
device to challenge the constitutionality of the
proceeding and decision of "The City,” 2(J.A. 410: 7-15). The
mandamus action, per se, is based on the allegations of the
complaint which if true would establish that the final map
proceedings were an adjudicative, discretionary function and
"The City” was not required to approve the tentative map, 2(J.A.
410: 17-28; 411: 1-2; 411: 13-19; 416: 18-24). Appellants
filed their complaint within forty-five days from the approval of
97
the final map, 2(J.A. 408: 25-28). Appellants allege that the
final map was not mandatory, 2(J.A. 401: 26-28; 402: 1-28;
403: 1-8). "The Developer” did not have a "vested right", 2(J.A.
407: 11-28). The SMA provides that a final map shall be
disapproved for the failure of meeting the requirements of the
statute or ordinance, the only qualification being that the
requirements or conditions existed at the time of the approval of
the tentative map, 2(J.A. 408: 1-9). The SMA further provides
that the map shall also be denied if it is ". . . likely to cause
substantial environmental damage", 2(J.A. 408: 10-14). The
complaint alleges that it will cause substantial environmental
damages, 2(J.A. 408: 15-20). Appellants allege that the
mandamus action is necessary to protect their rights, 2(J.A. 406:
9-15) and also that an actual controversy exists, 2(J.A. 419: 4-
7).
The respondents’ objections are based on appellants’ Second
Amended Complaint. The respondents' demurrer to said
complaint was sustained, but the appellants were given leave to
file their Third Amended Complaint, 3(J.A. 631).
All three causes of action stated in the Third Amended
Complaint state good causes of action and none are barred by
the statute of limitations.
ATTACHMENT TO THE SUPPLEMENTAL PETITION FOR
REHEARING:
TOPICAL TABLE, WITH INDEX TO CITATIONS
IN THE JOINT APPENDIX THAT SUPPORT
APPELLANTS’ CAUSES OF ACTION
I.
INVERSE CONDEMNATION VS. CITY
NEGLIGENCE : FIELDSTON
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