Pending - Other Pending
MEL RED RECANA
MARY H. STROBEL
GLENDALE CITY OF
RUBENS JACK HOWARD
KOHN PHILIP DOUGLASS
GARCIA MICHAEL JOSEPH
11/15/2022: Declaration - DECLARATION OF SARAH A. K. BLITZ IN SUPPORT OF PLAINTIFF FEM TRUSTS OBJECTIONS TO DEFENDANT CITY OF GLENDALES REPLIES IN SUPPORT OF MOTIONS IN LIMINE
11/15/2022: Objection - PLAINTIFF FEM TRUSTS OBJECTIONS TO DEFENDANT CITY OF GLENDALES REPLIES IN SUPPORT OF MOTIONS IN LIMINE
11/14/2022: Minute Order - MINUTE ORDER (COURT ORDER)
11/14/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 11/14/2022
11/10/2022: Reply - REPLY CITY OF GLENDALES REPLY TO F.E.M.S OPPOSITION TO CITYS MOTION IN LIMINE TO EXCLUDE EVIDENCE OF LOST INVESTMENT OPPORTUNITY AND IMPROPER METHODOLOGY USED BY PLAINTIFFS EXPERT DAVID NOLTE
11/10/2022: Reply - REPLY DEFENDANT CITY OF GLENDALES REPLY TO PLAINTIFFS OPPOSITION TO MOTION IN LIMINE TO EXCLUDE EVIDENCE OF ALLEGED DAMAGES BEFORE JANUARY 31, 2017 AND AFTER DECEMBER 3, 2019
11/10/2022: Reply - REPLY CITY OF GLENDALES REPLY TO F.E.M.S OPPOSITION TO CITYS MOTION IN LIMINE TO EXCLUDE EVIDENCE OF TEMPORARY DAMAGES BECAUSE PLAINTIFF CANNOT SHOW INTERFERENCE WITH AN ACTUAL USE OF THE VACA
11/7/2022: Opposition - OPPOSITION TO PLAINTIFFS MOTION IN LIMINE NO. 1 TO EXCLUDE TESTIMONY OF THE CITYS UNDESIGNATED EXPERTS OGANESAYAN, KRAUSE, DENNIS AND BROOKS
11/7/2022: Opposition - OPPOSITION TO THE CITYS MOTION IN LIMINE TO EXCLUDE EVIDENCE OF ALLEGED DAMAGES BEFORE JANUARY 31, 2017 AND AFTER DECEMBER 3, 2019
11/7/2022: Opposition - OPPOSITION TO THE CITYS MOTION IN LIMINE TO EXCLUDE EVIDENCE OF TEMPORARY DAMAGES BECAUSE PLAINTIFF CANNOT SHOW INTERFERENCE WITH AN ACTUAL USE OF THE VACANT PROPERTY
11/7/2022: Declaration - DECLARATION OF ANDRE J. CRONTHALL IN SUPPORT OF PLAINTIFF FEM TRUSTS OPPOSITION TO THE CITYS MOTION IN LIMINE B
11/7/2022: Declaration - DECLARATION OF ANDRE J. CRONTHALL IN SUPPORT OF PLAINTIFF FEM TRUSTS OPPOSITION TO THE CITYS MOTION IN LIMINE C
11/7/2022: Opposition - OPPOSITION TO PLAINTIFFS MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY OF EXPERT RANDY SEALE; DECLARATION OF JOSEPH LARSEN IN SUPPORT THEREOF
11/7/2022: Opposition - OPPOSITION TO THE CITYS MOTION IN LIMINE B
10/27/2022: Request for Judicial Notice - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS MOTIONS IN LIMINE; DECLARATION OF JOSEPH D. LARSEN IN SUPPORT OF THEREOF
10/26/2022: Motion in Limine - MOTION IN LIMINE NO. 2: EXCLUDE TESTIMONY OF RANDY SEALE
10/26/2022: Declaration - DECLARATION OF ANDRE J. CRONTHALL IN SUPPORT OF PLAINTIFF FEM TRUSTS MOTION IN LIMINE NO. 2: EXCLUDE TESTIMONY OF RANDY SEALE
10/26/2022: Trial Brief
Hearing11/29/2022 at 09:00 AM in Department 45 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial[+] Read More [-] Read Less
Hearing11/29/2022 at 09:00 AM in Department 45 at 111 North Hill Street, Los Angeles, CA 90012; Mandatory Settlement Conference (MSC)[+] Read More [-] Read Less
Hearing11/29/2022 at 09:00 AM in Department 45 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference[+] Read More [-] Read Less
DocketPLAINTIFF FEM TRUSTS OBJECTIONS TO DEFENDANT CITY OF GLENDALES REPLIES IN SUPPORT OF MOTIONS IN LIMINE; Filed by FE&M, INC (Petitioner)[+] Read More [-] Read Less
DocketDeclaration (OF SARAH A. K. BLITZ IN SUPPORT OF PLAINTIFF FEM TRUSTS OBJECTIONS TO DEFENDANT CITY OF GLENDALES REPLIES IN SUPPORT OF MOTIONS IN LIMINE); Filed by FE&M, INC (Petitioner)[+] Read More [-] Read Less
Docketat 2:11 PM in Department 45, Mel Red Recana, Presiding; Court Order[+] Read More [-] Read Less
DocketCertificate of Mailing for ((Court Order) of 11/14/2022); Filed by Clerk[+] Read More [-] Read Less
DocketMinute Order ( (Court Order)); Filed by Clerk[+] Read More [-] Read Less
DocketReply (CITY OF GLENDALES REPLY TO F.E.M.S OPPOSITION TO CITYS MOTION IN LIMINE TO EXCLUDE EVIDENCE OF LOST INVESTMENT OPPORTUNITY AND IMPROPER METHODOLOGY USED BY PLAINTIFFS EXPERT DAVID NOLTE TO CALCULATE DAMAGES); Filed by Glendale, City of (Respondent)[+] Read More [-] Read Less
DocketReply (DEFENDANT CITY OF GLENDALES REPLY TO PLAINTIFFS OPPOSITION TO MOTION IN LIMINE TO EXCLUDE EVIDENCE OF ALLEGED DAMAGES BEFORE JANUARY 31, 2017 AND AFTER DECEMBER 3, 2019); Filed by Glendale, City of (Respondent)[+] Read More [-] Read Less
DocketPROOF OF SERVICE ON [CONFORMED] STIPULATION TO EXTEND TIME TO RESPONDE TO PETITION AND COMOPLAINT; AND ORDER[+] Read More [-] Read Less
DocketNOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON[+] Read More [-] Read Less
DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by FE&M, INC (Petitioner)[+] Read More [-] Read Less
DocketSTIPULATION TO EXTEND TIME TO RESPOND TO PETITION AND COMPLAINT; AND ORDER[+] Read More [-] Read Less
DocketStipulation and Order; Filed by Defendant/Respondent[+] Read More [-] Read Less
DocketNOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON[+] Read More [-] Read Less
DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk[+] Read More [-] Read Less
DocketComplaint; Filed by FE&M, INC (Petitioner)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketVERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE; ETC[+] Read More [-] Read Less
Case Number: ****9892 Hearing Date: June 23, 2020 Dept: 82
FE&M, Inc. Employee’s Defined Contribution Plan Trust dated July 10, 1984
City of Glendale,
Judge Mary Strobel
Hearing: June 23, 2020
Status Conference re: Whether Inverse Condemnation Claims Should be Tried in a Writs and Receivers Department
On February 18, 2020, the court ordered Petitioner FE&M, Inc. Employee’s Defined Contribution Plan Trust dated July 10, 1984 (“Petitioner”) to file a brief “on the issue of why the inverse condemnation claim should be tried in the writ court and what order petitioner would seek in that proceeding.” The court has received and considered Petitioner’s brief and the response of Respondent City of Glendale (“Respondent” or “City”).
On June 14, 2017, Petitioner filed a verified petition for writ of mandate pursuant to CCP section 1085, and a complaint for damages and declaratory relief. The petition and complaint sets forth causes of action for (1) writ of mandate – violations of Map Act, City’s Subdivision Ordinance, and Permit Streamlining Act relating to City’s refusal to take action on new tentative map application – “innocent purchaser” exception; (2) writ of mandate – refusal to take action on new tentative map application, regardless of whether “innocent purchaser” exception applies; (3) writ of mandate – unlawful delegation of police power; (4)-(5) writ of mandate – inverse condemnation; (6)-(7) taking without just compensation; (8) denial of substantive due process; (9)-(10) denial of procedural due process; and (11) declaratory relief. On August 14, 2017, City filed an answer to the petition and complaint.
A trial setting conference was held on September 26, 2017. Counsel advised that the writ causes of action were brought under CCP section 1085. The court stayed the fourth through eleventh causes of action. The court set the first, second, and third causes of action for writ of mandate for hearing on July 3, 2018. The court instructed the parties to confer and submit a stipulation regarding a briefing schedule. On April 13, 2018, the court signed an order approving the parties’ stipulation re: stipulated record and briefing schedule.
The first, second, and third causes of action came for hearing on July 3, 2018. After oral argument, the court continued the hearing to September 13, 2018, and requested supplemental briefing on issues of exhaustion of administrative remedies and failure to join indispensable parties.
On September 13, 2018, the court (Judge Mary Strobel) issued its final decision granting the first cause of action for writ of mandate under CCP section 1085 and denying the second and third causes of action for writ of mandate. The court did not rule on the fourth and fifth causes of action for inverse condemnation. Specifically, the court ruled that it would issue a writ directing that City must accept, process, and take action on its application for a new tentative tract map without regard to (1) whether such new tentative map includes or omits any of the other lots illegally created by the 1930 Map; and (2) whether any or all of the other owners of the lots illegally created by the 1930 Map (“1930 Lot Owners”) have consented in writing or otherwise to the filing of any such application for a new tentative map.
On March 14, 2019, Department 1 transferred the remaining causes of action to an independent calendar court for all further proceedings. After a series of continuances in the independent calendar court lasting almost one year, Petitioner now seeks to have the case transferred back to Dept. 82. Specifically, the FEM Trust seeks “a peremptory writ of mandate compelling the City either to (1) accept, process and take action on a New Tentative Map and compensate the FEM Trust for the City's temporary taking of the Mountain Oaks Lots or (2) exercise its right of eminent domain over the Mountain Oaks Lots and pay just compensation for the entire property.” (Petitioner’s supplemental status conference statement, p. 7).
Petitioner contends that “under California law, any claim for an unconstitutional taking must be successfully challenged in a writ of mandate (i.e., mandamus) claim prior to the court's consideration of a damages claim with respect to the taking.” (Pet. Brief (“PB”) 2.) Petitioner contends that “[t]he Fourth and Fifth Causes of Action seek a writ of mandate for inverse condemnation/unconstitutional taking under the U.S. and California Constitutions, while the Sixth and Seventh Causes of Action seek monetary damages as just compensation for the City's unlawful taking of the Mountain Oaks Lots.” (PB 3.) Petitioner contends that “all four Causes of Action relate to inverse condemnation.” (PB 5, fn. 2.) Thus, Petitioner purported to split its inverse condemnation claims into mandamus (fourth and fifth), and damages causes of action (sixth and seventh).
Summary of Relevant Law
Pursuant to the local rules which designate that Department 82 is a specialized Writs and Receivers department and not a general civil department, only a cause of action for writ of mandate is properly assigned to this department. (LASC Local Rules 2.8(d) and 2.9.) As amended in January 2020, Local Rules 2.8(d) and 2.9 do not include a claim for declaratory relief as a special proceeding assigned to the writs departments
Petitioner cites to two cases -- Hensler v. City of Glendale (1994) 8 Cal.4th 1 and Honchiraw v. County of Stanislaus (2015) 238 Cal.App.4th 1 – that held that the 90-day statute of limitations in Government Code section 66499.37 applies to inverse condemnation claims relating to the Subdivision Map Act. Petitioner has combined its mandamus and inverse condemnation causes of action in the same lawsuit, thereby avoiding the statute of limitations problems presented in Hensler and Honchiraw. Nonetheless, these cases provide discussion that may be relevant to the question of whether Petitioner’s fourth and fifth causes of action should be adjudicated by a writs department.
In Hensler, the California Supreme Court provided the following discussion of California administrative and judicial remedies related to claims for inverse condemnation. “[N]ot every land-use restriction which designates areas on which no development is permitted results in a compensable taking. The governing constitutional authority recognizes that the impact of a law or regulation as applied to a specific piece of property determines whether there has been a compensable taking. Compensation need not be paid unless the ordinance or regulation fails to serve an important governmental purpose or ‘goes too far’ as applied to the specific property that is the object of the litigation. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 12.) “Moreover, the responsible governmental entity has the option of exempting the property from the ordinance or regulation, or even repealing the ordinance as an alternative to paying compensation for a permanent taking if it is judicially determined, after administrative remedies have been exhausted, that application of the restrictions to the property will constitute a compensable taking.” (Id. at 11.)
“If the alleged taking is a ‘regulatory taking,’ … the owner must afford the state the opportunity to rescind the ordinance or regulation or to exempt the property from the allegedly invalid development restriction once it has been judicially determined that the proposed application of the ordinance to the property will constitute a compensable taking. The owner may do so, where appropriate, by a facial challenge to the ordinance, but in most cases must seek a variance if that relief is available and then exhaust other administrative and judicial remedies… The latter, an ‘as applied’ challenge to the development restrictions imposed by the administrative agency, may be properly made in a petition for writ of ‘administrative’ mandamus to review the final administrative decision (Code Civ. Proc., ; 1094.5) and that action may be joined with one for inverse condemnation…. Damages for the ‘taking’ may be sought in an administrative mandamus action (Code Civ. Proc., ; 1095), or, if the plaintiff seeks a jury trial, in the joined inverse condemnation action. [Citations.]” (Hensler, supra at 13-14.)
“A property owner is … entitled to a judicial determination of whether the agency action constitutes a taking. Administrative adjudication in the course of exercising an administrative agency's regulatory power, if subject to judicial review, does not deny participants their right to judicial determination of their rights. [Citations.] We agree with the Healing court [cited infra], however, that an administrative agency is not competent to decide whether its own action constitutes a taking and, in many cases, administrative mandate proceedings are not an adequate forum in which to try a takings claim.” (Id. at 15.) “If the administrative hearing is not one in which the landowner has a full and fair opportunity to present evidence relevant to the taking issue, one in which witnesses may be sworn, and testimony presented by means of direct and cross-examination, the administrative record is not an adequate basis on which to determine if the challenged action constitutes a taking.” (Id. at 16.)
“A judicial determination is available in the mandate proceeding, however, if the administrative action is challenged on the basis that it is a compensable taking, the hearing did permit full litigation of the facts relevant to the takings issue, and any additional issues are litigated before the court. Because a taking of property is alleged, the court must accord the owner de novo review of the evidence before the agency in ruling on the taking claim [Citations] and consider any additional evidence admitted at the hearing on the petition for writ of mandate.” (Hensler, supra at 16.)
“If the owner believes the hearing before the administrative agency was not adequate, the owner is assured a full and fair hearing by exercising his right to join an inverse condemnation action with the mandate proceeding. In the inverse condemnation proceeding the owner may both litigate the taking claim, and, if successful, assert the right to jury trial guaranteed by article I, section 19 of the California Constitution. The availability of these procedures satisfies the requirement that a state provide an adequate process for obtaining compensation when property is taken for public use.” (Ibid., emphasis added.)
The Court of Appeal in Honchiraw interpreted Hensler as follows: “In Hensler ..., [the California Supreme Court] held that, if a property owner brings a timely [mandamus] action to set aside or void a regulation [on constitutional grounds], he may but need not join a claim for damages. Instead, he may bring a damages claim separately after successfully challenging the regulation [on constitutional grounds]. [Citation.] Thus, in Hensler [the court] identified an exception to the general rule against splitting claims.” (Honchiraw v. County of Stanislaus (2015) 238 Cal.App.4th 1, 13 [interpreting Hensler].) “As a result, the two-step procedure approved in Hensler allows a plaintiff to postpone bringing a claim for damages caused by an unconstitutional taking until a mandamus proceeding has been completed, provided that the mandamus judgment or order establishes an unconstitutional taking or due process violation.” (Ibid.)
Department 82 has already adjudicated the writ claims challenging City’s failure to process a subdivision application based on City’s position that Petitioner was required to join all 1930 lot owners in its application. In response to the court’s ruling that City’s position was legally erroneous, City has subsequently adopted a Resolution to “authorize and direct the Director of Community Development to accept and process for action any application by F.E.&M., Inc. or its successor-in interest (“Applicant”) for a new tentative tract map to resubdivide all or any portion of the property within Lot A of Tract No. 10156 owned by the Applicant without regard to whether the new tentative map includes any portion of Lot A of Tract No. 10156 not owned by the Applicant, and without regard to whether any or all of the owners of other lots created by the 1930 Licensed Surveyor’s Map have consented in writing or otherwise to the filing of an application for the new tentative map.”
Thus the timing of the ruling on the writ claims satisfies Hensler’s directive that a public entity be given an opportunity to repeal or amend an unlawful ordinance before being required to pay compensation for a permanent taking. As stated above, Petitioner seeks an order that the City process its application and pay for temporary taking, or pay compensation for the entire property. Not only has the court already indicated it would issue a writ requiring the City to process Petitioner’s application, the City has directed its Director of Community Development to accept and process any application for a tentative tract map for the property that Petitioner, or a successor in interest may file. At at this juncture, the fourth and fifth causes of action, as currently pled, are largely moot.
The only issues remaining in this action are whether the City’s initial refusal to process a subdivision application constituted a compensable temporary taking, and the calculation of any damages which flow from that determination. These issues can be fully resolved in an individual calendar court. As stated in Hensler: “In the inverse condemnation proceeding the owner may both litigate the taking claim, and, if successful, assert the right to jury trial guaranteed by article I, section 19 of the California Constitution.” Petitioner has not shown it cannot obtain any relief it seeks from trial of its 6th through 11th causes of action in the individual calendar court. The individual calendar court may issue declaratory relief on whether City’s action constituted a compensable temporary taking, and may adjudicate the amount, if any, of damages suffered by Petitioner as a result.
Hensler identified an exception to the general rule against splitting claims and allows for an alleged unconstitutional taking to be adjudicated in a mandamus proceeding. However, Hensler suggests that the judicial determination of whether the agency action constitutes a taking need not, in all circumstances, be made in a mandamus action. (Hensler, supra at 13-16.) In some circumstances, the question of unconstitutional taking may be, and perhaps must be, litigated in an evidentiary trial that is not based on an administrative record. (See Healing v. California Coastal Com. (1994) 22 Cal.App.4th 1158, 1175-76 [holding that court trial, rather than an administrative mandamus proceeding, is the proper procedure for determining inverse condemnation issues].) An action for declaratory relief is also appropriate in some circumstances.
Petitioner interprets language in Honchiraw to hold that a “threshold writ action must establish that a compensable taking has occurred” in order for the court to consider a damages claim with respect to the taking. (PB 2-3.) As noted above, Petitioner combined its mandamus and inverse condemnation causes of action in the same lawsuit, thereby avoiding the statute of limitations problems presented in Honchiraw. The Honchiraw court did not address the circumstances here, where the court has already determined it would issue a writ of mandate that would set aside the agency action and the inverse condemnation claims are joined in one action. “‘It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.’” (People v. Knoller (2007) 41 Cal.4th 139, 154-55.)
Honchiraw stated that “the reason the mandamus proceeding must include the constitutional taking issue is that the court's determination that a regulatory taking has occurred triggers a range of options for the public entity—it could approve the project as proposed, conditionally approve the project, or exercise the power of eminent domain. (Hensler, supra, .) Which of these options is adopted by the public entity affects the scope of the taking and, thus, the just compensation due to landowner.” (Honchiraw, supra at 13.) This language does not show that Petitioner’s fourth and fifth causes of action, given the procedural posture, must or should be adjudicated as writs. There are several procedural distinctions from Honchiraw, including that the court has already determined that it would issue a writ setting aside the agency’s action, and the City has entered its resolution to set aside the action challenged in the writ claims. Petitioner fails to persuasively address those distinctions from Hensler and Honchiraw.
Moreover, to the extent it is necessary to give City further opportunity to consider its options in light of a judicial determination that any City action constituted a taking, an independent calendar court could do so through injunctive relief or a conditional judgment. (See e.g. Avenida San Juan Partnership v. City of San Clemente (2011) 201 Cal. App. 4th 1256, 1262-67, 1281 [bifurcated writ and inverse condemnation trials; judgment gave the City the choice of either complying with the writ of mandate or paying inverse condemnation damages.].)
The court also notes that there was no administrative proceeding in this matter and no record within the meaning of CCP section 1094.5. The writ claims were brought under CCP section 1085. In the writs departments, evidence for petitions for ordinary mandate “is presented by way of declarations, deposition testimony, and documentary evidence unless a statute expressly provides for a record.” (Local Rule 3.231(h).) “Although the court has discretion to do so, it will rarely permit oral testimony.” (Ibid.) The parties do not indicate whether live testimony would be required for the takings issues. To the extent live testimony would be required, an independent calendar department would be better suited to adjudicate the inverse condemnation claims.
Respondent contends that any remaining writ issues in the fourth and fifth causes of action are moot in light of the City Council’s resolution. (Oppo 3-5.)
“As a general proposition courts will not issue a writ of mandate to enforce an abstract right of no practical benefit to petition, or where to issue the writ would be useless, unenforceable or unavailing.” (Ballard v. Anderson (1971) 4 Cal.3d 873, 876.) The court agrees that there appears to be no practical benefit for a writ in this case. City has already resolved to accept and process Petitioner’s application. The takings issues can be fully adjudicated without issuance of a writ.
Respondent contends that the court should deny the fourth and fifth causes of action as moot “without prejudice to FEM’s ability to pursue an adjudication on the merits of its inverse condemnation claim in the sixth and seventh causes of action.” (Oppo. 3.) The court agrees these claims are either moot or duplicative of the relief sought in Petitioner’s other causes of action.
While Petitioner has labeled his fourth and fifth causes of action as “mandate – inverse condemnation,” the label Petitioner has chosen is not dispositive. Petitioner has already successfully established a right to a writ of mandate directing the City to process its application. The only relief not yet received can be obtained through Petitioner’s declaratory relief and damages claims. Petitioner has not identified any relief it seeks that it cannot obtain in an individual calendar court. Consistent with the court’s power under CCP section 128 to provide for the orderly conduct of proceedings and to promote orderly and efficient resolution of matters, the court declines to conduct new mandate proceedings in the writs and receivers department.
Based on the foregoing, Petitioner does not show that the fourth and fifth causes of action for inverse condemnation should be adjudicated by a writs department. The fourth and fifth causes of action to the extent they seek a writ of mandate, are moot. The remaining issues shall remain in the independent calendar department.
 This case was not cited by the parties. It was cited in the Miller and Starr treatise on inverse condemnation, which was discussed approvingly in Honchiraw. (Miller & Starr, Real Estate 4th, Inverse Condemnation, Exhaustion of Administrative Remedies at ; 23;36; see Honchiraw at 11.)
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