Opposition Brief — Robertson v. City of South Gate

Supreme Court, U.S.

F Il LE D

A JUL 22 1997

No. 96-1831 CLERK -

ATS cE RN

In The

Supreme Court of the United States

October Term, 1996

*

DALE ROBERTSON AND CHRISTINE ROBERTSON,

Petitioners,

VS.

THE CITY OF SOUTH GATE, CALIFORNIA, et al.,

Respondents.

+

Petition For Writ Of Certiorari

To The Court Of Appeal Of The State Of California,

Second Appellate District, Division Two

S

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

¢

Grecory M. Kunert, Counsel of Record

RIicHARDS, WaTSON & GERSHON

A Professional Corporation

333 South Hope Street, 38 Floor

Los Angeles, California 90071-1469

(213) 626-8484

Attorneys for Respondents City of South Gate, et al.

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Should Certiorari be granted to review an

unpublished state court decision which may not be cited

or relied upon as precedent by any court or litigant,

where the federal question does not meet this Court’s test

for ripeness? Is a Petition for Writ of Certiorari predicated

on the takings clause of the Fifth Amendment ripe for

review when the state courts have held that the peti-

tioners failed to avail themselves of their opportunities to

utilize the procedures prescribed by the state courts for

obtaining compensation?

2. Should a Petition for Writ of Certiorari be

granted to review an unpublished state court decision

which may not be cited or relied upon as precedent by

any court or litigant, where petitioners are precluded

from maintaining a claim for compensation under the

Fifth Amendment’s takings clause by governing princi-

ples of res judicata?

3. Should a Petition for Writ of Certiorari be

granted to review an unpublished state court decision

which may not be cited or relied upon as precedent by

any court or litigant, to determine whether action enforc-

ing a nuisance abatement resolution constituted a regula-

tory or physical taking, where under the circumstances

the issue is purely a matter of state law, where such

review would require examination and weighing of the

evidence before the lower courts, and where petitioners

voluntarily acquiesced in the lower court’s granting of

summary judgment on such claims?

TABLE OF CONTENTS

Page

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pee gt 2k. pore yr en eee ii

TABLE GR AUITIGIIIOES . oo onc cc ccc cccccucccccce iv

RP MN ss ev nises au cocaine kok ecccuceaae 1

PIR oka 00-60 cd de eee de eee 1

STATUTES AND OTHER PROVISIONS INVOLVED... 1

STATEMENT OF THE CASE.................cc00s. 2

S. SEASGAERNT GP PACTS «ww... i cccecacccce. 2

Sl. PRROOCHEMIRAL BOISTORY q. oo 5 occ ohne cas 9

REASONS FOR DENYING THE WRIT............. 11

I. THERE IS NO FEDERAL QUESTION RIPE

FOR REVIEW: PETITIONERS FAILED TO

EXHAUST AVAILABLE STATE COURT COM-

PENSATION MECHANISMS................. 11

Il. THE CALIFORNIA COURTS PROPERLY

HELD THAT PETITIONERS WERE BARRED

BY THE DOCTRINE OF RES JUDICATA (PRE-

CLUSION) FROM ASSERTING THEIR

CLAIMS FOR COMPENSATION BECAUSE

PETITIONERS FAILED TO CHALLENGE THE

CITY’S DECISIONS BY A PETITION FOR

WRIT OF MANDAMUS..................... 14

A. The California Courts Were the Proper

Forum For Determining the Limits of Cali-

fornia’s Res Judicata Rules; Petitioners’

Present Claim That The Decision Below

Was Wrong Because Petitioners Complain

of City Actions After Adoption of Resolu-

tion 5009 Was Adequately Disposed of By

the Califormia Caarte..05. 5.66 66k cise 17

ili

TABLE OF CONTENTS - Continued

Page

B. The Rule Applied By the California Courts

and The Decision Below Do Not Conflict

With Other Decisions.................... 21

Ili. PETITIONERS’ COMPLAINT THAT THE

CITY’S CONTRACTOR WENT BEYOND THE

SCOPE OF THE NUISANCE ABATEMENT

ORDER WAS ADEQUATELY DISPOSED OF

BY THE CALIFORNIA COURTS............ 23

I os ot aor uk ee ee Fle 28

iv

TABLE OF AUTHORITIES

Unitep States SuPpREME Court CASEs:

Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309,

129 L.BG.2G SOG (1998)... . ccc ccccccccccceccces

First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96

LOE Ge CREME cn 44-0 cnenswes cadeueauden 23,

Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)....

University of Tennessee v. Elliott, 478 U.S. 788, 106

S.Ct. 3220, 92 L.Ed.2d 635 (1986)....14, 15, 16,

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87

LRG 126 (2GBS). 5. sec cccessesses A, 23, 2,

Yee v. City of Escondido, 503 U.S. 519, 112 S.Ct.

1522, 118 L.Ed.2d 153 (1992)............csec00-

OTHER CASEs:

Briggs v. City of Rolling Hills Estates, 40

CGLAGD.GR GOT CIDTI in ooo oo eckcscvesscciccens

California Coastal Comm. v. Superior Court (Ham),

210 Cal.App.3d 1488 (1989)................ 14,

Hensler v. City of Glendale, 8 Cal.4th 1

| Pere PEE fre ye 14, 18, 19, 24, 25,

Kruse v. Village of Chagrin Falls, Ohio, 74 F.3d 694

(6th Cir. 1996), cert. den., _ U.S. __, 117 S.Ct.

ees Be” Be). es

Miller v. County of Santa Cruz, 39 F.3d 1030 (9th

Cir. Cal. 1994), cert. den., __ U.S. __, 115 S.Ct.

2613, 132 L.Ed.2d 856 (1995)...............008.

25, 26

23, 25

17, 18

Vv

TABLE OF AUTHORITIES - Continued

Page

Patrick Media Group, Inc. v. California Coastal

Comm. (PMG), 9 Cal.App.4th 592 (1992)........ 14, 24

Rossco Holdings Inc. v. State, 212 Cal.App.3d 642

RPE src twins (iat Abide ile avie 14, 15, 16, 22

Sinaloa Lake Owners Association v. City of Simi Val-

ley, 882 F.2d 1398 (9th Cir. 1989), cert. den., 494

U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990) ..1, 12

Swartzendruber v. City of San Diego, 3 Cal.App.4th

WO SME fib Rais acaaceninesiidedialdwir ik cc. 14, 17

Takahashi v. Board of Education, 202 Cal.App.3d

Si yak et EE TE AM ih cited ARB las 18

STATUTES:

California Code of Civil Procedure Section ae 22

California Code of Civil Procedure Section 1094.5..... 2

California Government Code Section 905.1.......... 22

Court RuLtes:

California Rules of Court, Rule 976............... 1. 33

California Rules of Court, Rule 977............... 1, 11

1

OPINIONS BELOW

The unpublished opinion of the California Court of

Appeal, Second Appellate District, is set out verbatim in

Appendix A to the Petition. By its terms, the Court of

Appeal Opinion is not certified for publication in the

Official Reports. Under Rules 976 and 977 of the Califor-

nia Rules of Court (set forth verbatim in Appendix I

hereto), it may not be cited or relied upon by any court or

any litigant in any other case, and thus has zero prece-

dential importance.

.

JURISDICTION

There is no jurisdiction over the federal constitu-

tional issues presented, because those issues are not ripe

for adjudication under Williamson County Regional Plan-

ning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct.

3108, 87 L.Ed.2d 126 (1985); Sinaloa Lake Owners Associa-

tion v. City of Simi Valley, 882 F.2d 1398, 1402-1403 (9th Cir.

1989), cert. den., 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d

493 (1990). The California Courts below held that peti-

tioners failed to pursue the available avenues of redress

called for under California law for their “takings” claims.

Petitioners having failed to avail themselves of their state

compensation remedies, their federal constitutional

claims are not ripe for adjudication and there is, accord-

ingly, no jurisdiction to entertain the present petition.

¢

STATUTES AND OTHER PROVISIONS INVOLVED

California Rules of Court, Rules 976 and 977, Appen-

dix I hereto.

2

STATEMENT OF THE CASE

I. STATEMENT OF FACTS

Petitioners were the proprietors of a tire dealership

in the City of South Gate. Pet.App.A, D; AA 1/192.) In

September of 1990, a fire substantially damaged the busi-

ness and the structure in which the business was housed,

including the roof, garage doors, equipment and concrete

block walls. Pet.App.A, D; AA 1/194.

Eleven months later, on August 26, 1991, the City

Council of the City of South Gate duly passed, approved

and adopted Resolution Number 5009, “DECLARING

THE CONDITION OF THE PROPERTY LOCATED AT

5870 IMPERIAL HIGHWAY TO BE A PUBLIC NUI-

SANCE AND ORDERING THE ABATEMENT

THEREOF.” Pet.App.D; AA 1/97-102.? As recited in Reso-

lution 5009, it was adopted following a required public

hearing and submission of testimony and evidence by

petitioners and others. Pet.App.D; AA 1/97. The City

Council rendered factual findings on the evidence pre-

sented (Id.), and rendered a decision embodied in the

resolution. Id.

Neither petitioners nor any other person ever chal-

lenged Resolution 5009, or its findings, its conclusions, or

the proceedings which led to its adoption, by a Petition

for Writ of Administrative Mandamus pursuant to Cali-

fornia Code of Civil Procedure Section 1094.5. As a result,

1 The abbreviation “AA” refers to Appellants’ Appendix

which, together with the Reporter’s Transcript (“RT”)

constituted the record on appeal before the California Court of

Appeal.

2 Resolution 5009 is set out verbatim as Appendix D to the

Petition herein, although it is erroneously titled “RESOLUTION

NO. S009”. Items included in the Appendix to the Petition are

abbreviated herein as “Pet.App.”

3

under governing principles of California law3, the follow-

ing facts were found by the City Council to exist eleven

months after the fire, and were conclusively established in

the courts below:

1. Petitioners’ property at 5870 Imperial Highway in

the City of South Gate is located at the intersection of

Imperial Highway and Amery Way. The rear of peti-

tioners’ property fronts against a number of single-family

residences. The property was improved with a commer-

cial structure that sustained severe fire damage in Sep-

tember of 1990. One wall of the structure was destroyed,

and two other walls were partially damaged. Pet.App.D;

AA 1/98, Ja.

2. Following the fire, City staff sent numerous let-

ters to Mr. Robertson requiring that the structure on the

property be repaired, restored or demolished. Staff sched-

uled meetings with Mr. Robertson to discuss the rebuild-

ing of the property. No plans for the rebuilding of the

property were submitted. Furthermore, Mr. Robertson

refused staff’s requests to inspect the property.

Pet.App.D; AA 1/98, {b.

3. Staff obtained an inspection warrant to allow

entry onto the property. The inspection demonstrated

that the structure’s roof had been totally demolished,

leaving the sixteen foot high masonry walls of the struc-

ture without sufficient lateral support. The wall bracings

were inadequate to provide support for the walls; further,

the masonry blocks on the walls had separated, leaving

the wall subject to further deterioration. Additionally, the

property was strewn with debris, including used vehicle

tires, household furniture and flammable liquids. Thus, it

was a prime candidate for a second fire. Pet.App.D; AA

1/98, Ic.

3 See, “REASONS FOR DENYING THE WRIT”, Part II,

infra.

4

4. The structural engineer who accompanied city

staff on the inspection recommended that the remaining

walls be demolished or braced immediately. He opined

that a moderate earthquake or strong wind could force

the walls to collapse. This could cause heavy property

damage or loss of life due to the proximity of the adjacent

residential buildings and public rights-of-way. Further,

the engineer recommended that if the walls were to be

restored, the owner would have to submit complete plans

and structural calculations to show all building compo-

nents. Such plans would have to be certified, wet signed

and stamped by a structural or civil engineer registered

by the State of California. Further, the owner would have

to test the block walls and reinforcements for fire dam-

age, because the reinforcing bars, once exposed to heat,

could fail. The test would have to include a test for

seismic damage. Pet.App.D; AA 1/98-99, 4d.

5. The Fire Department found that the building was

structurally unsound and constituted a fire hazard

because of the combustible debris located on the prop-

erty. The Fire Department further found that the property

was wired by temporary extension cords rather than per-

manent wiring. Pet.App.D; AA 1/99, Je.

6. The Health Department found that the toilet

facilities on the premises were damaged and in need of

repair to protect against waste water leakage. Pet.App.D;

AA 1/99, ff.

Thus, for more than eleven months following the fire,

petitioners allowed substantial hazards to public safety to

exist on their property.

Resolution 5009 also directed either that petitioners

abate the nuisance conditions by taking certain specified

actions within specific time periods, or that, if petitioners

failed to do so, City staff abate the nuisance by clearing

the property and demolishing the structural ruins.

Pet.App.D; AA 1/100-101. The option was entirely peti-

tioners’. Resolution 5009 allowed petitioners to rebuild,

ET

3

provided all tires, rims and debris were cleared from the

property, proper plans were submitted, hazards abated,

and construction commenced within the specifications

and time limits of the Resolution. Id.

Petitioners never challenged Resolution 5009 or its

findings by a Petition for Writ of Mandamus. Petitioners

never challenged the remedial measures called for in

Resolution 5009, or the time limits for completing those

measures, by a Petition for Writ of Mandamus.

Instead, petitioners made half-hearted efforts to do

less than the Resolution required, while ignoring any

obligation to comply with those provisions with which

they disagreed. When petitioners failed to comply in a

timely fashion, and their failure continued for over two

months, the City took the only course reasonably avail-

able: it applied to the Court for a warrant to abate the

nuisance conditions itself. Pet.App. 5-6; AA 3/779-780.

Even then, the City Prosecutor and the Court offered

petitioners more time with which to comply with the

simplest of the City’s requirements: removal and storage

of personal property, old tires and debris prefatory to

petitioners’ rebuilding. Id.; AA 3/784-793. Instead of

accepting the Court’s offer of additional time to effectuate

the remediation, instead of requesting even more time

than the extensions being offered were that necessary,

and disregarding even their own lawyer’s advice, peti-

tioners elected their own fate:

“THE COURT: Okay. Mr. Robertson, just listen

carefully.

“THE COURT: I can get into that. But, Mr.

Robertson, did you hear and understand and is

that time frame and the conditions, are they

agreeable with you, sir?

“MR. ROBERTSON: Well, I hear it. I under-

stand it. But whether I can comply with it or not

is something -

6

“THE COURT: Well, we are going to give you a

relief valve if you have bad weather or some

misfortune that can’t be avoided. But aside from

that, will you make a good-faith effort to abide

by the terms and conditions?

“MR. ROBERTSON: Well, I hear them. I under-

stand them. But, as Gene [Beckman, the Rober-

tsons’ attorney] knows, I have a boss that tells

me, that small voice, I guess you could say, and

that’s all I go by.

“THE COURT: Well, I mean, if you are telling

me that you don’t want to abide by these terms

and conditions - What you are saying is that

you are not going to abide by these terms and

conditions. Then I am going to issue the order

now.

“MR. ROBERTSON: Well, things come to me

slowly. I have to — I rely on daily prayer and

that’s where I am right now.

* * *

“THE COURT: . . . So in that regard, with that

correction, Mr. Robertson, do you understand

the essence of what we are speaking?

“MR. ROBERTSON: I think I do. If you look, I

don’t think you will find a tire business in the

City of South Gate that doesn’t have outside

storage.

“THE COURT: Well, I am not concerned with

that type of discussion. At this point, Mr. Rober-

tson, the question is: Do you feel you can live

with the agreement that you are making in here?

Because the alternative, sir, is if you tell me you

feel you cannot or you have some other source

giving you information or advice, I will sign the

order tomorrow morning.

“MR. ROBERTSON: The order to bulldoze me

down, sir?

7

“THE COURT: That's right, sir. The people

have - the City of South Gate have sufficiently

shown a concern for fire and safety and, I guess,

the time has come to fish or cut bait.

“MR. ROBERTSON: Yeah.

“THE COURT: I am still willing to work with

you. In fact, this is at my insistence that these

time frames be put in here instead of just issuing

the order today.

* * *

“THE COURT: Well, sir, it is not up to me to go

over your plans. My concern is that the City of

South Gate has followed the law, has a resolu-

tion — a hearing and a resolution was issued, in

effect, requiring that the property be bulldozed.

And it was my discussion with counsel to give

you an opportunity to do things in a little timely

fashion, give you some opportunity to do things

in a more business-like way to protect your

business, too, to see that you come back in, you

know, and flourish.

“Now you want to put the Court in a hard spot.

The Court does, you know, makes orders all day

long. I put people in jail, but that is not — I don’t

get any pleasure out of it, but that is my job. My

job right now is to follow the law.

“MR. ROBERTSON: Well -

“THE COURT: You have that obligation, too,

sir.

“MR. ROBERTSON: Can you - I cannot say

that I have done anything outside of the law. I

proved to the city council that I was not 50-

percent burnt, but that did not matter to them at

all. At that time, if I am not 50-percent gone, I

was supposed to have been able to rebuild.

8

“THE COURT: Well, I am not going to rehear

the City’s matter. They made that determina-

tion, sir. If it is not me, it is somebody else that

is going to make this order.

“MR. BECKMAN [Petitioners’ then attor-

ney]: Your Honor, may I? [addressing his cli-

ent, appellant Dale Robertson] The removal of

the tires and the other personal property is for

the purposes of reconstructing the building and

to clean up the property at that time. I don’t

think the issue of outside storage is a proper one

for this nor is it definitive for your purposes

after the building is reconstructed. That is a

different battle which you might have to fight

with the City of South Gate, but it is to clear off

the premises for construction purposes.

“MR. ROBERTSON: Do what you will, but it

will take the bulldozer to move the tires.”

AA 3/787-792 (Transcript of Municipal Court Hearing on

Abatement Warrant, Appendix J, App. 7-12).

The Municipal Court issued the abatement warrant

directing the City to abate the nuisance, and the City

proceeded to do so. Pet.App. 5-6. On November 14, 1991,

when the City’s contractor arrived at the site to continue

the abatement, their access to the subject property was

barred by appellant Dale Robertson. Id.; RT 4/751-752.

Mr. Robertson refused to move out of the way of the

contractor’s bulldozer, despite repeated requests that he

do so. Id. Mr. Robertson had been told that he had no

right to be on the property by virtue of the City’s Order

to Vacate, posted when the City determined the property

to be a nuisance. Id.; Pet.App.5, 6, 21. Mr. Robertson was

aware of the Order to Vacate, because he had been cited

several times for violating it. Id. The City had permitted

Mr. Robertson to enter the property for the purpose of

abating the nuisance, but Mr. Robertson testified that

abating the nuisance was not his purpose on November

9

14, 1996. When Mr. Robertson continued to refuse to

leave, he was arrested. Id.; RT 4/864-865.

The next day, the Penal Code § 148 charges against

Mr. Robertson were dismissed under Penal Code § 991,

because the Municipal Court Abatement Warrant had

expired the day before Mr. Robertson was arrested. AA

3/796-808. No one alerted the Court at that time of the

Order to Vacate and Mr. Robertson’s violation of that

order. Id.

Il. PROCEDURAL HISTORY

Petitioners brought this action against defendants

City of South Gate (“City”), its City Council, and certain

City employees (collectively, the “City”) for alleged dam-

ages resulting from the City’s determination that peti-

tioners’ fire-gutted property constituted a nuisance which

warranted abatement. On January 20, 1993, the trial court

granted the City’s motion to strike allegations of peti-

tioners’ First Amended Complaint (“first motion to

strike”). Pet.App. E, 33-34; AA 1/182-185. The allegations

stricken were those which challenged Resolution 5009, its

findings, its orders or the process from which that resolu-

tion resulted. Id.; AA 1/77-79. The trial court ruled that

petitioners’ failure to challenge the City’s quasi-adjudica-

tive determination under C.C.P. Section 1094.5 rendered

the decision, and the process by which the City reached

its nuisance determination, res judicata and immune from

collateral attack. Id.; AA 1/182-185.

In granting the City’s first motion to strike, the trial

court granted petitioners leave to amend. Id. Instead of

amending the complaint to attempt to plead a mandamus

cause of action, however, petitioners served the City with

a Second Amended Complaint that merely re-alleged

stricken allegations verbatim. Pet.App. F; AA 1/187-233.

In other instances, petitioners added some verbiage to

make old allegations look new or simply redrafted other

10

stricken allegations. Id. The City therefore filed a second

motion to strike (“second motion to strike”). Id; AA

1/247-280. When petitioners did not attend the hearing,

the motion was granted. Id.; AA 2/338.

Thereafter, the City filed a motion for summary adju-

dication of petitioners’ inverse condemnation causes of

action and petitioners’ declaratory relief causes of action

which were cumulative of the inverse condemnation

claims (“first summary adjudication motion”). AA 2/435,

et seq. The City filed a second motion for summary adju-

dication as to petitioners’ remaining claims against the

City defendants: trespass, conversion and false imprison-

ment (“second summary adjudication motion”). AA

3/710, et seq. The trial court heard both motions on Janu-

ary 6, 1994. The trial court granted the first summary

adjudication motion, on the ground that petitioners’ fail-

ure to challenge the City’s action declaring a nuisance

and ordering abatement in mandamus rendered the

City’s actions res judicata and immune from liability for

damages in inverse condemnation. Pet.App.G; AA

4/1052-1053 (motion granted for reasons stated in

1/20/93 minute order); Pet.App.E (1/20/93 minute

order). The trial court had provided a “tentative” ruling

on the second summary adjudication motion indicating

its inclination to grant it as to the trespass and conversion

causes of action, but deny it as to the false arrest claim.

After petitioners expressly declared that they had no

objections to the trial court’s tentative ruling on the sec-

ond summary adjudication motion (RT 1/57-58), the

court granted the second summary adjudication motion

as to the trespass and conversion causes of action, but

denied it as to the false imprisonment cause of action

asserted by appellant Dale Robertson. Pet.App.G;

Pet.App.A, 18; AA 4/1053-1054. Following those motions,

the only claims remaining to be tried as against the City

were appellant Dale Robertson’s claims of false arrest.

ee

11

Appellant Dale Robertson’s false arrest claims were

tried to a jury, which returned a verdict for the City.

Petitioners appealed the judgment against them to

the California Court of Appeal, Second Appellate District.

Following briefing and argument, the Court of Appeal

issued an unpublished opinion‘ affirming the judgment

in full (Pet App. A). The California Supreme Court

denied petitioners’ Petition for Review. Pet.App.C.

¢

REASONS FOR DENYING THE WRIT

I. THERE IS NO FEDERAL QUESTION RIPE FOR

REVIEW: PETITIONERS FAILED TO EXHAUST

AVAILABLE STATE COURT COMPENSATION

MECHANISMS

Petitioners’ Fifth Amendment claim for just compen-

sation is not ripe for review, because petitioners failed to

seek compensation through the procedures the State of

California provided for doing so. In Williamson County

Regional Planning Commission v. Hamilton Bank, 473 U.S.

172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), this Honorable

Court held:

A second reason the taking claim is not yet

ripe is that respondent did not seek compensa-

tion through the procedures the State has pro-

vided for doing so. [footnote omitted] The Fifth

Amendment does not proscribe the taking of

* Pursuant to California Rules of Court, Rule 976, decisions

of the California Courts of Appeal are not published in the

Official Reports unless a majority of the court rendering the

opinion find that the opinions meets certain specified criteria. In

this case, the Opinion below shows that it was not published in

the Official Reports. Pursuant to Rule 977 of the California Rules

of Court, an unpublished opinion may not be cited as precedent

or relied on by any court or by any party in any other action.

Rules 976 and 977 are reproduced as Appendix I.

12

property; it proscribes taking without just com-

pensation. [citation omitted] Nor does the Fifth

Amendment require that just compensation be

paid in advance of, or contemporaneously with,

the taking; all that is required is that a

“‘reasonable, certain and adequate provision

for obtaining compensation exist at the time of

the taking.’ ”

473 U.S. at 194.

This aspect of the ripeness doctrine applies regard-

less of whether the alleged taking is characterized as

“regulatory” or “physical,” for the policy is the same:

until the property owner utilizes the procedures pre-

scribed by the State and been denied compensation, no

Fifth Amendment violation has occurred. See, Sinaloa Lake

Owners Association v. City of Simi Valley, 882 F.2d 1398,

1402-1403 (9th Cir. 1989), cert. den., 494 U.S. 1016, 110

S.Ct. 1317, 108 L.Ed.2d 493 (1990). In Sinaloa, the Ninth

Circuit held that California’s inverse condemnation

remedies satisfy the Williamson standard and that failure

to utilize California’s remedies is a bar to federal court

relief under the Fifth Amendment. Id.

As the Opinion of the California Court of Appeal in

this case reveals, petitioners failed to utilize the available

California procedures for seeking compensation, because

they did not pursue a petition for writ of mandamus. The

Courts below followed a long line of California cases

which made it plain that such a mandamus petition was

part and parcel of an inverse condemnation claim in

California. The requirement that they pursue mandamus

was made known to petitioners from the outset of this

case, when the City filed its Motion to Strike allegations

of the complaint. In granting the City’s motion, the trial

court expressly held that petitioners were required to

pursue administrative mandamus as part of their quest

for compensation, and granted petitioners leave to amend

their pleading. For reasons unknown, petitioners failed to

13

take that opportunity to plead for mandamus relief in

their amended complaint.

Petitioners argued before the California courts that

the established procedure calling for a petition for writ of

mandamus only applies in cases of alleged “regulatory

takings” and that petitioners were alleging a “physical”

taking.> The correctness of petitioners’ view that Califor-

nia law requires a mandamus proceeding only in “regula-

tory” takings cases is not an appropriate issue for this

honorable Court. The California courts are in the best

position to judge what California procedures were avail-

able to petitioners and/or were required to be pursued.

The several California courts that visited the question in

this case determined that petitioners had not availed

themselves of the procedures which California provided

for doing so. Accordingly, this Honorable Court should

decline certiorari on the simple ground that petitioners

have failed to present a federal claim that is ripe for

review.

> In fact, as shown in Part III, infra, the City’s actions in

conducting a public hearing, finding that a nuisance exists,

directing abatement of the nuisance and ordaining that the City

would abate the nuisance if petitioners failed to do so in a

timely fashion are best characterized as regulatory acts.

Otherwise, virtually every instance of municipal regulation

could be converted to a “physical” taking merely by a land

owner’s refusal to comply with the regulation and forcing the

government to compel compliance by physical means.

14

II. THE CALIFORNIA COURTS PROPERLY HELD

THAT PETITIONERS WERE BARRED BY THE

DOCTRINE OF RES JUDICATA (PRECLUSION)

FROM ASSERTING THEIR CLAIMS FOR COM-

PENSATION BECAUSE PETITIONERS FAILED

TO CHALLENGE THE CITY’S DECISIONS BY A

PETITION FOR WRIT OF MANDAMUS

The California courts applied a long line of California

cases which require that to pursue an inverse condemna-

tion action predicated on adoption or enforcement of a

quasi-adjudicative decision (such as that embodied in

Resolution 5009) land owners must challenge the decision

by a writ of administrative mandamus. Hensler v. City of

Glendale, 8 Cal.4th 1 (1994); California Coastal Comm. v.

Superior Court (Ham), 210 Cal.App.3d 1488, 1496 (1989);

Rossco Holdings Inc. v. State, 212 Cal.App.3d 642, 661

(1989); Patrick Media Group, Inc. v. California Coastal Comm.

(PMG), 9 Cal.App.4th 592, 606 (1992); Swartzendruber v.

City of San Diego, 3 Cal.App.4th 896 (1992). Those cases,

and cases preceeding them, all hold that a failure to

challenge a quasi-adjudicative decision by a petition for

writ of mandamus bars a claim for damages or compensa-

tion for inverse condemnation or violation of civil rights

arising out of the decision. The courts below applied that

rule in determining that petitioners were barred from

pursuing their claims herein.

The South Gate City Council conducted a public

hearing and determined that the burned-out structure

and debris on petitioners’ property was a hazard to pub-

lic health and safety and a nuisance. The City Council

therefore adopted Resolution 5009 in August of 1992,

determining that a nuisance exists and setting forth a

schedule for abating the nuisance. Petitioners’ damages

claims are thus barred by the preclusive collateral estop-

pel aspect of res judicata. Rossco, Ham, Swartzendruber and

PMG, supra; University of Tennessee v. Elliott, 478 U.S. 788,

106 S.Ct. 3220, 92 L.Ed.2d 635 (1986).

15

Ham, Rossco, and PMG involved collateral actions for

damages based upon quasi-adjudicative administrative

decisions. Ham, 210 Cal.App.3d at 1496; Rossco, 212

Cal.App.3d at 660-61; PMG, 9 Cal.App.4th at 607. In Ham,

the Coastal Commission approved the demolition and

rebuilding of a beach-front residence on the condition

that the owner dedicate an easement for public access.

210 Cal.App.3d at 1492. In Rossco, property owners

alleged that the Coastal Commission imposed unreason-

able conditions on development of the land. 212

Cal.App.3d at 648. In PMG, the Coastal Commission con-

ditioned a hotel construction permit on the removal of

billboards from the property. 9 Cal.App.4th at 599. In

each case, the failure to obtain judicial review of the

agency’s discretionary action by administrative mandate

rendered it res judicata and immune from collateral attack.

Ham, 210 Cal.App.3d at 1493; Rossco, 212 Cal.App.3d at

657; PMG, 9 Cal.App.4th at 608.

Moreover, the rule expressly extends to bar peti-

tioners’ claims to compensation under the Fifth Amend-

ment. In University of Tennessee v. Elliott, supra, 478 U.S.

788, 92 L.Ed. 635, this honorable Court held that state law

principles of res judicata are applicable in federal constitu-

tional cases where state law so provides. Quoting from a

previous decision of the Court, the Court in Elliott

observed:

“When an administrative agency is acting in a

quasi judicial capacity and resolves disputed

issues of fact properly before it which the par-

ties have had an adequate opportunity to liti-

gate, the courts have not hesitated to apply res

judicata to enforce repose.” 478 U.S. at 797-98, 92

L.Ed.2d at 645-46.

It is undisputed that the South Gate City Council was

acting in a quasi-judicial capacity when it adopted Reso-

lution 5009 finding petitioners’ property to be a nuisance.

16

Under such circumstances, this honorable Court con-

cluded in Elliott:

“Accordingly, we hold that when a state agency

‘acting in a judicial capacity . . . resolves dis-

puted issues of fact properly before it which the

parties have had an adequate opportunity to

litigate’ . . . federal courts must give the agency's

factfinding the same preclusive effect to which it

would be entitled in the State’s courts.” 478 U.S.

at 799, 92 L.Ed.2d at 646-47 (citation, footnote

omitted; emphasis added).

The holdings of the state courts below that peti-

tioners’ claims were barred under California principles of

res judicata is in accord with - indeed directed by - the

Elliott decision.

Both federal and California courts have relied on

Elliott to bar federal claims similar to petitioners’ on res

judicata grounds. Following Elliott, the Ninth Circuit has

held that the California rule expressed in the Ham and

Rossco decisions and their progeny serves to bar federal

civil rights claims in federal courts. Miller v. County of

Santa Cruz, 39 F.3d 1030 (9th Cir. Cal. 1994), cert. den., eats

U.S. __, 115 S.Ct. 2613, 132 L.Ed.2d 856 (1995). In Miller,

the District Court granted summary judgment for the

defendant on plaintiff’s Section 1983 action on the ground

that the plaintiff's failure to challenge a Civil Service

Commission decision by a petition for administrative

mandamus pursuant to California Code of Civil Pro-

cedure Section 1094.5 rendered the administrative deci-

sion final, binding, res judicata and immune from

collateral attack. 39 F.3d at 1031-1032. The Ninth Circuit

affirmed the summary judgment, holding that the plain-

tiff’s civil rights case was barred under the doctrines of

res judicata and collateral estoppel under California law.

39 F.3d at 1032.

17

Moreover, the Ninth Circuit in Miller, also stated that

it had previously held that California had already incor-

porated the Utah Construction standard reaffirmed in

Elliott, so the only remaining question was “whether the

administrative hearing met the requirements of California

law such that a California court would have accorded the

determination preclusive effect.” 39 F.3d at 1033.

The California Court of Appeal followed Elliott, Mil-

ler, Swartzendruber, and earlier California cases in a case

directly involving a local governmental land use decision

in Briggs v. City of Rolling Hills Estates, 40 Cal.App.4th 637

(1995). In short, the California courts properly invoked

California preclusion rules and determined that peti-

tioners’ claims were barred. Indeed, the courts below

were instructed to do so by the holding of this honorable

Court in Elliott. This Court should not engage in a need-

less exercise in reviewing California’s preclusion rules;

the Ninth Circuit has already determined that the appli-

cable California rules pass federal muster in Miller, in

which this Court denied certiorari and which has never

been questioned or contradicted by other authority.

A. The California Courts Were the Proper Forum

For Determining the Limits of California’s Res

Judicata Rules; Petitioners’ Present Claim That

The Decision Below Was Wrong Because Peti-

tioners Complain of City Actions After Adop-

tion of Resolution 5009 Was Adequately

Disposed of By the California Courts

In claiming that they are not challenging Resolution

5009 itself but the manner in which it was enforced and

applied by the City, petitioners merely repeat an argu-

ment they made to the California courts. The California

courts rejected the argument, holding that the California

rule of preclusion bars their claims for damages predi-

cated on the City’s nuisance abatement activities.

18

The California courts are unquestionably in the best

position to determine the extent of their own preclusion

rules, and the decisions below were unquestionably cor-

rect. See, Takahashi v. Board of Education, 202 Cal.App.3d

1464, 1474, et seq. (1988). In Takahashi, the court explained

that “California courts employ the ‘primary rights’ the-

ory”, in which “ ‘the significant factor is the harm suf-

fered.’” Id. at 1474. Thus, a prior adjudication that an

employee’s termination was for cause barred her subse-

quent suits for common law wrongful discharge, viola-

tion of federal civil rights acts for discrimination in

employment on the basis of race or gender, and inten-

tional infliction of emotional distress, since the harm

suffered, and hence the “primary right” alleged, was

plaintiff’s termination from employment. Id. at 1475-1476.

Likewise, the harm allegedly suffered herein, and hence

the “primary right” involved, was the demolition of peti-

tioners’ fire-decimated structure to abate the public nui-

sance. The only “harm” petitioners’ have ever alleged to

have suffered was that property loss. Regardless of the

theory of recovery they allege, petitioners’ claims involve

the same primary right and are barred and precluded by

the doctrine of res judicata. And, Elliott required that the

lower courts follow California’s rules of res judicata /pre-

clusion with respect to petitioners’ federal claims.

The court below correctly concluded that California

law precluded petitioners’ claims, even in the face of

petitioners’ argument that they were not challenging Res-

olution 5009 itself. In the California Supreme Court case

of Hensler, supra, Hensler argued, as do petitioners here,

that he was not challenging the validity of the city’s

action. Instead, Hensler sought damages on the ground

6 An argument which the California Court of Appeal found

to be factually not supported by the record. Pet. App. A, App.

13, n. 1.

19

that the ordinance effected a taking of his property.

Hensler argued that as a matter of federal constitutional

right, an action in inverse condemnation seeking dam-

ages for a permanent taking may be initiated without a

challenge to the application of the ordinance to the

affected property. Hensler, 8 Cal.4th at 9. Here, similarly,

petitioners argue that an action to recover damages for

abatement of a nuisance can be initiated without a chal-

lenge to the nuisance determination which authorized the

abatement. The California Supreme Court soundly

rejected Hensler’s argument:

“A California landowner who believes that

application of a state statute or local ordinance

limiting development of the owner’s property

works a taking, may not bypass the remedies

the state has made available to avoid the taking.

If he does so, the state may deem the owner to have

waived the ‘taking’ claim.”

Hensler, supra, 8 Cal.4th at 19 (emphasis added).

The Hensler court concluded:

“We therefore reject . . . [Hensler’s] argument

that he need not pursue administrative and judi-

cial remedies as a prerequisite to a suit in

inverse condemnation.”

Hensler, 8 Cal.4th at 13. The California Supreme Court's

statement disposes of petitioners’ argument to the con-

trary, i.e., that they are not challenging the City’s nui-

sance determination and abatement order and therefore

need not have obtained mandamus review of the City’s

decision.

Moreover, petitioners’ claim that they are not contest-

ing the findings and conclusions of Resolution 5009 but

merely the manner in which it was applied and enforced

necessarily assumes that they were willing to comply

with the resolution. Petitioners argue that certiorari

should be granted to determine whether a property

owner can be required to pursue mandamus when the

20

property owner is not challenging the terms of the ordi-

nance itself. Petitioners claim that they “are challenging

the manner in which the City implemented Resolution

5009 and contending the City thwarted their efforts to

comply with the resolution.” Petition, p. 25.

In making that argument, petitioners appear to con-

fuse the federal law principles involved in determining

whether an inverse condemnation claim under the Fifth

Amendment is ripe under Williamson Planning Commis-

sion, supra, with state law rules of preclusion. Indeed,

petitioners cite Williamson Planning Commission and cases

dealing with the ripeness doctrine. But whether the state

has a “reasonable, certain and adequate provision for

obtaining compensation” is simply not relevant to the res

judicata holdings of the lower courts. As noted in Part IIB,

infra, ripeness was never an issue in the courts below,

because the lower courts held that petitioners were

barred from pursuing this action on any grounds under

the California preclusion rules. Thus, petitioners’ second

question presented asks the Court to decide an issue

which would go to a possible defense to their claim

(ripeness), when that defense was not a basis for deciding

in the City’s favor.

Moreover, the California courts properly rejected

petitioners’ argument that they are not challenging the

Resolution but merely its application because the argu-

ment is demonstrably and factually false from the record.

If petitioners are not challenging Resolution 5009 or the

requirements imposed by the resolution, then they had

absolutely no basis for refusing to comply. Petitioners

cannot claim with a straight face that their efforts to

comply with the abatement order were “thwarted,” when

petitioner Dale Robertson stood before the Municipal

Court and declared that he would not comply with the

order, and double-dog dared the City and the Court to

bring on the bulldozer. As the lower courts correctly

found, petitioners failed to comply with any aspect of

21

Resolution 5009 in a timely fashion. And, they openly

declared that they would rely on prayer rather than court

order to guide their actions. All of their rhetoric about

being “thwarted” in their efforts to comply and about

their beef with City actions occurring after adoption of

Resolution 5009, therefore, is a smokescreen.

B. The Rule Applied By the California Courts and

The Decision Below Do Not Conflict With

Other Decisions

Petitioners’ contention that the decisions below con-

flict with the Sixth Circuit’s decision in Kruse v. Village of

Chagrin Falls, Ohio, 74 F.3d 694 (6th Cir. 1996), cert. den.,

__ U.S. __, 117 S.Ct. 71, 136 L.Ed.2d 31 (1996) is wrong

for several reasons.

First, the Kruse decision dealt with the issue of

whether the State of Ohio had a “reasonable, certain and

adequate provision for obtaining compensation” for pur-

poses of determining ripeness under Williamson Planning

Commission v. Hamilton Bank, supra. As discussed in

greater detail in Part I, supra, the ripeness doctrine gener-

ally requires that property owners exhaust available state

law compensation procedures before the federal courts

will entertain a claim for compensation under the Fifth

Amendment. Ripeness was never an issue in the Califor-

nia courts in this case, however. Thus, the unpublished

decisions below cannot conflict with Kruse because the

issue decided in Kruse simply was not litigated below.

Second, the Kruse case is distinguishable on several

key factors. The Court in Kruse concluded that the plain-

tiffs therein had satisfied the ripeness doctrine due to a

variety of factors. In Kruse, the Sixth Circuit observed that

while Ohio’s Appropriations statutes defined the pro-

cedures for the government's exercise of eminent domain

powers and payment of just compensation, the statutes

did not include a provision for owners to initiate inverse

22

condemnation cases. In Kruse, only a single Ohio

Supreme Court case decided after the actions which con-

stituted a taking in Kruse allowed a property owner to

seek a writ of mandate to compel the government to

initiate appropriations proceedings. 74 F.3d at 698-699. In

the present case, California law has several statutes

expressly relating to inverse condemnation cases’, and

California decisional authority clearly required man-

damus challenges to quasi-judicial actions alleged to

amount to takings for many years prior to the events

alleged by petitioners. See, Ham, supra; Rossco; supra.

Moreover, the plaintiffs in Kruse had pursued state

court remedies which resulted in a judgment in their

favor, but which did not include monetary compensation.

Thus, the City in Kruse had admitted that it had “taken”

the plaintiffs’ property and had not paid compensation

for it. Here, of course, petitioners have not prevailed at

any stage of the proceedings and, far from being an

admitted fact, the question of whether there was a com-

pensable taking has not been adjudicated because peti-

tioners steadfastly refused numerous opportunities to

present their case properly.

In addition, finally, the decision below is not pub-

lished in any event, so there can be no concern about

conflicting precedents. Petitioners’ claim that the decision

below somehow conflicts with Kruse is simply untenable.

7 See, e.g., California Code of Civil Procedure Section 1036

(providing for awards of costs, litigation expenses and

attorneys’ fees to prevailing plaintiffs in inverse condemnation

cases); California Government Code Section 905.1 (exempting

inverse condemnation actions from the claims filing

requirements of California’s Tort Claims Act).

23

III. PETITIONERS’ COMPLAINT THAT THE CITY’S

CONTRACTOR WENT BEYOND THE SCOPE OF

THE NUISANCE ABATEMENT ORDER WAS

ADEQUATELY DISPOSED OF BY THE CALIFOR-

NIA COURTS

Petitioners ask this honorable Court to grant cer-

tiorari to decide whether actions by the City’s indepen-

dent contractor which allegedly went beyond the scope of

the nuisance abatement order and warrant were “regula-

tory” takings or “physical” takings. Again, however, the

California courts were best suited to determine how Cali-

fornia rules of preclusion applied to the facts of this case.

Indeed, to the extent California courts have charac-

terized the requirement that a petition for mandamus be

pursued as applicable only in regulatory takings cases,

the distinction between regulatory and physical takings

for that purpose is purely an issue of California preclu-

sion law, and does not present any federal question. True,

the “regulatory takings” and “physical takings” labels

have been employed by the federal courts, including this

honorable Court, for purposes of determining whether a

compensable taking has occurred. E.g., Dolan v. City of

Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304

(1994); Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992); Yee v. City of

Escondido, 503 U.S. 519, 112 S.Ct. 1522, 118 L.Ed.2d 153

(1992); First English Evangelical Lutheran Church v. County

of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250

(1987).

However, to the extent those labels are employed by

the California courts in determining the scope of the

California preclusion rules, their meaning in that context

are matters of state preclusion law for the state court to

resolve. The important fact is that the California courts

held that res judicata barred petitioners’ claims, not what

labels may have been employed in the analysis.

24

Furthermore, the City’s actions in this case were

clearly regulatory under any analysis. According to peti-

tioners, since their refusal to comply with the City’s

regulatory decision forced the City ultimately to resort to

physical means to compel compliance, they were not

required to pursue their mandamus remedies to challenge

the City’s decision.

By petitioners’ reasoning, the fundamental purpose

of the rule requiring a mandamus challenge could be

defeated in every case simply by obstinate defiance. Ulti-

mately, in every case of land use regulation, the only

viable method of enforcement in the face of a recalcitrant

land owner is by physical means. The important public

policies which underlie the rule would be eviscerated if

landowners were allowed to gain an advantage by such

recalcitrance by being relieved of the mandamus require-

ment. Those important policies were in part articulated

by the California Supreme Court in Hensler, supra:

“The purpose of statutes and rules which

require that attacks on land use decisions be

brought by petitions for administrative man-

damus, and create relatively short limitation

periods for those actions, and actions which

challenge the validity of land use statutes, regu-

lations, and/or decisions, is to permit and pro-

mote sound fiscal planning by state and local

governmental entities. As the Court of Appeal

explained in Patrick Media Group, Inc. v. Califor-

nia Coastal Com., supra, 9 Cal.App.4th 592, 612:

‘The requirement that challenges to administra-

tive actions constituting takings be brought ini-

tially by administrative mandamus assures that

the administrative agency will have the alterna-

tive of changing a decision for which compensa-

tion might be required. If no such early

opportunity were given, and instead, persons

25

were permitted to stand by in the face of admin-

istrative actions alleged to be injurious or con-

fiscatory, and three or five years later, claim

monetary compensation on the theory that the

administrative action resulted in a taking for

public use, meaningful governmental fiscal

planning would become impossible.’ ”

8 Cal.4th at 27-28.

Indeed, this Court has repeatedly held that it is the

government’s decision alone whether to exercise the

power of eminent domain and pay compensation; land-

Owners may not force the government to exercise its

eminent domain powers:

“Nothing we say today is intended to abrogate

the principle that the decision to exercise the

power of eminent domain is a legislative func-

tion. . . . Once a court determines that a taking

has occurred, the government retains the whole

range of options already available - amendment

of the regulation, withdrawal of the invalidated

regulation, or exercise of eminent domain.”

First English, supra, 482 U.S. at 319; also see, Lucas, supra.

Nevertheless, petitioners contend that since physical

means were employed to enforce the City’s regulatory

action, they alleged a “physical taking,” not a “regulatory

taking.” If petitioners’ view were accepted, any land-

owner could force government to condemn property

merely by, as petitioners did here, refusing to comply

with regulations, and waiting until the government seeks

to compel compliance therewith by its last resort: physi-

cal intervention.

This is not a case where a landowner ran out of time

and could not find a way to comply with the City’s

abatement order in a timely fashion. Nor is this a case

where a municipal government hastily and summarily

abated a nuisance without regard to the landowner’s

interests. Rather, this is a case where petitioners simply

26

ignored the time requirements contained in the abate-

ment resolution, and made no effort whatsoever to com-

ply with (or challenge by a petition for writ of mandate)

portions of that order. Moreover, both the City and the

Municipal Court Judge offered to give petitioners even

more time to commence remediation efforts, but peti-

tioners made it clear that no amount of time would re-

sult in any change in position. Instead, petitioners

unabashedly declared that it would take bulldozers to

obtain compliance with the City’s abatement resolution.

But that does not change the fact that the City merely

exercised its authority “» regulate land use. The City did

not seek a physical soiution to the nuisance; petitioners

forced that remedy, and brought the result upon them-

selves, by failing and refusing either to abide by the

regulation or challenge it in a Court of Law by a Petition

for Writ of Mandamus. Both this High Court (First

English, supra, 482 U.S. at 319) and the California courts,

have repeatedly held that landowners may not uni-

laterally by their actions force agencies to condemn prop-

erty:

“A complaint in inverse condemnation, even

one which does not expressly attack the validity

of the ordinance or its application, and seeks

only compensation for an alleged taking, must

be deemed a challenge to the local action. This

follows because the constitutional validity of the

governmental action if uncompensated must be

determined in the course of ruling on the claim

that compensation is owed. Moreover, the val-

idity of the action must be determined to afford

the local entity the opportunity to rescind its

action rather than pay compensation for a tak-

ing. A landowner may not, by seeking only compen-

sation, force a governmental agency to condemn the

property.”

Hensler, 8 Cal.4th at 7 (emphasis added).

EnGNNESe emmne

27

“[Hensler] seeks to do what the high [United

States Supreme Cl]ourt says a landowner has no

right to do — to force the city to exercise the

power of eminent domain.”

Hensler, 8 Cal.4th at 12.

Despite that principle, petitioners in the present case

argue that they do have the right to “force the city to

exercise the power of eminent domain” by defying the

City’s regulatory order without mounting any legal chal-

lenge, forcing the City to abate the nuisance, then seeking

compensation for the physical invasion necessitated by

petitioners’ own recalcitrance. But, petitioners cannot

convert the City’s exercise of its regulatory power to a

physical taking by their own stubbornness.

Finally, to the extent petitioners claim that the nui-

sance abatement order was exceeded, it was the indepen-

dent contractor retained by the City that did the work.

The City directed the contractor to carry out the terms of

the abatement order and the contractor did so. If the

contractor erred and went beyond the terms of the order,

that does not constitute governmental action so as to

trigger constitutional concerns.

Petitioners may have had viable remedies for these

allegations in their state law tort claims of trespass and

conversion. But petitioners allowed the contractor to

escape liability by demurrer to the complaint. Petitioners

failed even to appear at the demurrer hearing and failed

to cure the pleading defect even though granted leave to

amend the complaint. Pet. App. F, App. 36. Moreover,

petitioners acquiesced in the trial Court’s tentative ruling

to grant the City’s summary adjudication motion as to the

trespass and conversion claims, and thereby waived any

right to maintain those claims, as the Court of Appeal

found. Pet. App. A, App. 18-19. Of course, any review of

these issues by this Court would require this Court to

engage in factual inquiries and examination of the evi-

dentiary record and pleadings and review the factual

28

findings of the California trial and appellate courts in

issues of State law. This Court should decline petitioners’

invitation to do so.

¢

CONCLUSION

The state courts below followed the precedents of

this Court and applied California preclusions rules to

petitioners’ Fifth Amendment claims for compensation.

In doing so, the lower courts correctly found and held

that petitioners had failed to pursue a writ of administra-

tive mandamus, which well-established California law

required in order to pursue relief for an alleged taking.

Granted leave to amend their complaint several times,

petitioners failed to correct their error. Therefore, peti-

tioners having failed to utilize the procedures for obtain-

ing compensation which California law had provided,

petitioners’ claims under the Fifth Amendment of the

United States Constitution are not ripe for adjudication.

Moreover, petitioners’ various post hoc rationalizations

for their failure to pursue the available procedures for

compensation were patently belied by the record below,

and granting certiorari would require this court to re-

examine the facts, evidence and findings of the lower

courts. The unpublished Opinion of the California Court

of Appeal does not create any conflict with the decisions

of this Court or of the Circuit Courts of Appeals, and in

fact follows the pertinent federal decisions. Petitioners

have presented no important federal questions for review,

and the Petition for Certiorari should be denied.

29

Dated: July 22, 1997

Respectfully submitted,

Grecory M. Kunert

RICHARDS, WATSON & GERSHON

A Professional Corporation

Attorney for Respondents

City of South Gate, California, et al.

ale eee eee Be AB acs ee

App. 1

APPENDIX I

Rule 976(b), California Rules of Court:

“No opinion of a Court of Appeal or an appellate depart-

ment of the superior court may be published in the Offi-

cial Reports unless the opinion:

“(1) establishes a new rule of law, applies

an existing rule to a set of facts significantly

different from those stated in published opin-

ions, or modifies, or criticizes with reasons

given, an existing rule;

“(2) resolves or creates an apparent con-

flict in the law;

“(3) involves a legal issue of continuing

public interest; or -

“(4) makes a significant contribution to

legal literature by reviewing either the develop-

ment of a common law rule or the legislative or

judicial history of a provision of a constitution,

statute, or other written law.”

Rule 976(c)(1), California Rules of Court:

“(1) An opinion of a Court of Appeal or an appellate

department of the superior court shall be published if a

majority of the court rendering the opinion certifies, prior

to the decision’s finality in that court, that it meets one or

n.ore of the standards of subdivision (b).”

Rule 977(a), California Rules of Court:

“(a) An opinion that is not ordered published shall not

be cited or relied on by a court or a party in any other

App. 2

action or proceeding except as provided in subdivision

(b).”

Rule 977(b), California Rules of Court:

“(b) Such an opinion may be cited or relied on:

“(1) when the opinion is relevant under the doc-

trines of law of the case, res judicata, or collateral estop-

pel; or

“(2) when the opinion is relevant to a criminal or disci-

plinary action or proceeding because it states reasons for

a decision affecting the same defendant or respondent in

another such action or proceeding.”

App. 3

APPENDIX J

IN THE MUNICIPAL COURT OF

SOUTHEAST/SOUTH JUDICIAL DISTRICT

COUNTY OF LOS ANGELES STATE OF CALIFORNIA

HON. FRANK GAFKOWSKI, JR., DIVISION III

JUDGE

IN THE MATTER OF THE

APPLICATION OF THE CITY OF

SOUTH GATE FOR A WARRANT

TO DEMOLISH STRUCTURES

AND ABATE NUISANCE AT THE

PROPERTY LOCATED AT 5870

E. IMPERIAL HIGHWAY,

SOUTH GATE, CALIFORNIA

MISC. NO. 1308

ll

TRANSCRIPT OF PROCEEDINGS

October 30th, 1991

REPORTER’S TRANSCRIPT

APPEARANCES:

PROSECUTORS FOR STEVEN H. ROSENBLIT

THE CITY OF DAPEER & ROSENBLIT

SOUTH GATE 2770 East Slauson Avenue

Huntington Park, Ca 90255

For DALE ROBERTSON: GENE W. BECKMAN

Attorney at Law

374 East Avocado

Crest Road

La Habra Heights, Ca 90631

CELIA BERNAL, C.S.R. #3959

OFFICIAL REPORTER

App. 4

[p. 2] SOUTH GATE, CALIFORNIA, WEDNESDAY,

OCTOBER 30th, 1991

THE COURT: The Court is on the record in the

matter of the Application of the City of South Gate with

respect to certain real property located at 5870 East Impe-

rial Highway in the City of South Gate, State of Califor-

nia, Miscellaneous File No. 1308.

The Court has before it certain parties of interest in

this matter: For the City of South Gate, Mr. Steven Rosen-

blit, who is by contract City Attorney in this matter;

correct?

MR. ROSENBLIT: City Prosecutor, Your Honor.

THE COURT: City Prosecutor.

And we have the assistance of Mr. Cervantes.

MR. CERVANTES: Yes.

THE COURT: Encarnacion Cervantes, Director

of Building.

To represent the interest of the property owner, Mr.

Dale Robertson, is attorney Gene W. Beckman.

We are on the record. Now, as I understand there are

certain terms and conditions which will be set forth as to

a time frame; correct?

MR. ROSENBLIT: Yes, Your Honor.

Before I proceed, may I also have the record reflect

that Mr. Robertson and perhaps his wife - she hasn't

identified herself - are also present in the courtroom.

App. 5

[p. 3] THE COURT: Yes. They are present.

Let me do this. I prepared a preamble to this matter

to be of some assistance. And, if you then wish, Mr.

Rosenblit, you can dictate what the terms and conditions

are, just as such.

My order will be as follows. We will have this pre-

pared and the Court will sign it and place it in the file at

the conclusion of these proceedings. In other words, so

you have something in writing if you wish to come back

and look at it.

Anyway, we will start as follows:

The City of South Gate’s application for a warrant to

demolish structures and abate nuisances as ordered by its

Resolution No. 5009 on August 26th, 1991, is approved by

the Court - is approved by the Court and a warrant

forthwith shall issue - pardon me - a warrant shall forth-

with issue authorizing the City of South Gate to demolish

the structures and abate the nuisances relating to the real

property as described in Resolution 5009 and that

respects the property at 5870 East Imperial Highway,

South Gate, California. The execution of this warrant

shall be stayed only on condition that certain acts are

completed by the owners of said real property described

in that Resolution 5009 in accordance with the following

time schedule.

Failing any of the acts to be performed within the

respective times as required, upon the ex parte affidavit

of a responsible City official attesting to the [p. 4] same,

the stay on this warrant shall be removed and this war-

rant may then be immediately executed.

SE Se ee ne ee ee ee

App. 6

Now, if you’d like to relate the terms and conditions.

MR. ROSENBLIT: Yes, Your Honor. I’d be glad

to.

On or before November 14, 1991, at 3:00 p.m., the

property owners must clear this property and remove the

trailer and all other personal property including, without

limitation, all tires, racks, rims and automobiles.

Further, the property owners must obtain City

approval of the abatement of this nuisance in the condi-

tion of this property by November 14, 1991, at 3:00 p.m.

By December 2, 1991, at 4:00 p.m., the property

owners must obtain a building permit from the City and

start construction. Starting construction is defined as hav-

ing building materials on site and filing a construction

schedule with the Building Department of South Gate

and having a contractor or job superintendent at the job

site and working daily.

On or before February 2, 1991 [sic], construction is to

be completed with City approval after final inspections.

THE COURT: Within that time, I presume.

In other words, final inspections and the construction

completed prior to that date; correct?

MR. ROSENBLIT: Right. Prior to February 2,

1991.

Your Honor, I am not familiar if this was in your

preamble or not. I don’t recall.

[p. 5) THE COURT: About the three-day notice?

Te

App. 7

MR. ROSENBLIT: Yes.

THE COURT: I have something to follow, yes.

So let’s just see.

Mr. Robertson, did you hear the terms and condi-

tions? Sir, if you’d like to step forward, you may.

MR. ROBERTSON: I heard part of it.

THE COURT: Okay. Mr. Robertson, just listen

carefully.

Madam Reporter, just those terms and conditions,

please.

(Record read.)

THE COURT: All right. Let’s reword that last.

The construction is to be completed with City

approval for final inspection having been obtained and

filed by February 2nd, 1992, so that the inspection and

approval or completion is within that frame, not to be

open-ended.

MR. BECKMAN: Your Honor, to that point, in

discussing delays, unavoidable delays, we have some

language that was drafted, also, for us.

THE COURT: I can get into that.

But, Mr. Robertson, did you hear and understand and

is that time frame and the conditions, are they agreeable

with you, sir?

MR. ROBERTSON: Well, I hear it. I understand

it. But whether I can comply with it or not is something -—

App. 8

THE COURT: Well, we are going to give you a

relief valve if you have bad weather or some misfortune

that can’t [p. 6] be avoided. But aside from that, will you

make a good-faith effort to abide by the terms and condi-

tions?

MR. ROBERTSON: Well, I hear them. I under-

stand them. But, as Gene knows, I have a boss that tells

me, that small voice, I guess you could say, and that’s all I

go by.

THE COURT: Well, I mean, if you are telling me

that you don’t want to abide by these terms and condi-

tions —

What you are saying is that you are not going to

abide by these terms and conditions. Then I am going to

issue the order now.

MR. ROBERTSON: Well, things come to me

slowly. I have to - I rely on daily prayer and that’s where

I am right now.

THE COURT: Well, let me suggest this. Let’s

just take a moment.

Mr. Beckman, would you just explain to Mr. Robert-

son what I mean by a good-faith effort to comply.

Take a moment.

Let me explain, also, I will dictate this last term so

that Mr. Robertson can keep that in mind, too.

The owners of said real property described in Resolu-

tion 5009 may make application to the Court for relief

from the time requirements of this stay of execution, but

App. 9

not any other performance requirements, upon three

days’ notice to the City of South Gate.

MR. ROSENBLIT: May I inquire, Your Honor?

THE COURT: Yes.

MR. ROSENBLIT: This process of application of

[p. 7] three-day notice, wasn’t that to apply only once

construction has commenced? Because in your preamble

you make reference to an affidavit in the event the first

part of not clearing the property is not completed.

THE COURT: Well, the conditions upon which

this order may be — the stay would be lifted are any of the

things, as far as cleaning the property up, not beginning

construction and so forth.

I think I have to give Mr. Robertson the opportunity

also to have the possibility of a hardship with respect to

cleaning the property up if the weather really turns bad

or we have an earthquake or something. I understand the

problems, but I have to give him that. But, obviously, the

contingencies for cleaning the property would have to be

very, very great to get any kind of relief. I think that

would be fair.

Anyway, Mr. Beckman, take a moment, please.

(Brief recess.)

THE COURT: We are back on the record. Every-

one is present.

I have just had a brief conversation with counsel in

view of the remark I made at the end about the owner’s

seeking relief from some of the time restraints, not the

App. 10

conditions, but the time of any of these conditions’ per-

formance. I think the City’s concern is such that it is

warranted that I limit that application for relief for time

restraints only to the fact of the construction, not from

things to be done prior thereto. This is the cleanup or the

[p. 8] obtaining of permits or the start of construction.

I think when we were discussing matters in cham-

bers, we were talking about the possibility of bad weather

maybe hampering some of the construction work. That

would be very well-taken to have a delay in the require-

ment.

So in that regard, with that correction, Mr. Robertson,

do you understand the essence of what we are speaking?

MR. ROBERTSON: I think I do. If you look, I

don’t think you will find a tire business in the City of

South Gate that doesn’t have outside storage.

THE COURT: Well, I am not concerned with

that type of discussion. At this point, Mr. Robertson, the

question is: Do you feel you can live with the agreement

that you are making in here? Because the alternative, sir,

is if you tell me you feel you cannot or you have some

other source giving you information or advice, I will sign

the order tomorrow morning.

MR. ROBERTSON: The order to bulldoze me

down, sir?

THE COURT: That's right, sir. The people have

- the City of South Gate have sufficiently shown a con-

cern for fire and safety and, I guess, the time has come to

fish or cut bait.

MR. ROBERTSON: Yeah.

App. 11

THE COURT: I am still willing to work with

you. In fact, this is at my insistence that these time frames

be put in here instead of just issuing the order today.

MR. ROBERTSON: Well, I owe the city of — the

people [p. 9] in the City of South Gate to keep selling

used tires. So if you say I cannot sell used tires anymore,

then Imperial Tire is out of business and might as well be

bulldozed. For 25 years you have not seen me in this

courtroom. I have settled every little problem over tires,

over service with the customer.

THE COURT: Well, Mr. Beckman, is that a no?

MR. ROBERTSON: All of a sudden I am a bad

guy.

MR. BECKMAN: I am sorry.

THE COURT: Is that a no answer, that he can’t

make an agreement and live with it and do the best he

can?

MR. ROBERTSON: I cannot remove -— I can pos-

sibly screen the used tires so they are not seen. I wanted

to put landscaping in there. I want to put a front brick

wall on there.

THE COURT: Well, sir, it is not up to me to go

over your plans. My concern is that the City of South

Gate has followed the law, has a resolution - a hearing

and a resolution was issued, in effect, requiring that the

property be bulldozed. And it was my discussion with

counsel to give you an opportunity to do things in a little

timely fashion, give you some opportunity to do things in

a more business-like way to protect your business, too, to

see that you come back in, you know, and flourish.

App. 12

Now you want to put the Court in a hard spot. The

Court does, you know, makes orders all day long. I put

people in jail, but that is not —- I don’t get any pleasure out

of it, but that is my job. My job right now is to [p. 10]

follow the law.

MR. ROBERTSON: Well -

THE COURT: You have that obligation, too, sir.

MR. ROBERTSON: Can you -I cannot say that I

have done anything outside of the law. I proved to the

city council that I was not 50-percent burnt, but that did

not matter to them at all. At that time, if I am not 50-

percent gone, I was supposed to have been able to

rebuild.

THE COURT: Well, I am not going to rehear the

City’s matter. They made that determination, sir. If it is

not me, it is somebody else that is going to make this

order.

MR. BECKMAN: Your Honor, may I?

The removal of the tires and the other personal prop-

erty is for the purposes of reconstructing the building

and to clean up the property at that time. I don’t think the

issue of outside storage is a proper one for this nor is it

definitive for your purposes after the building is recon-

structed. That is a different battle which you might have

to fight with the City of South Gate, but it is to clear off

the premises for construction purposes.

MR. ROBERTSON: Do what you will, but it will

take the bulldozer to move the tires.

App. 13

MR. BECKMAN: Your Honor, I have nothing

else.

MR. ROSENBLIT: Your Honor, I would propose

the abatement warrant in view of the defendant’s com-

ment. May I lodge it with the Court?

THE COURT: Let me see it. If it is an order, I

will sign it.

[p. 11] All right. The Court signs the warrant.

MR. ROSENBLIT: Thank you, Your Honor.

MR. BECKMAN: Thank you, Your Honor.

CERTIFICATE

STATE OF CALIFORNIA )

; oe

COUNTY OF LOS ANGELES )

I, CELIA BERNAL, C.S.R. #3959, do hereby certify:

That the foregoing is a full, true, and correct tran-

script of the testimony given and proceedings had in the

aforementioned action taken on the aforementioned date;

That it is a full, true, and correct transcript of the

evidence offered and received, instructions, acts, and

statements of the Court, also all objections and exceptions

of counsel, and all matters to which the same relate;

That I reported the same in stenotype, being the duly

appointed, qualified, and acting Certified Shorthand

App. 14

Reporter of said court, and thereafter had the same tran-

scribed into typewriting as herein appears.

Dated this 31st day of October

1991.

/s/ Celia Bernal

CERTIFIED SHORTHAND

REPORTER