Hardesty v. Sacramento Metro. Air Quality Mgmt. Dist.
This text of 307 F. Supp. 3d 1010 (Hardesty v. Sacramento Metro. Air Quality Mgmt. Dist.) is published on Counsel Stack Legal Research, covering District Court, E.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
After a lengthy jury trial, the Hardesty and Schneider plaintiffs obtained a verdict *1020exceeding $100 million against defendant Sacramento County and three defendant county officials based on defendants' actions the jury determined caused the closure of the Hardestys' sand and gravel mine and violated plaintiffs' constitutional rights under the First, Fourth and Fourteenth Amendments. Defendants' Renewed Motion for Judgment as a Matter of Law ("Renewed JMOL Mot."), ECF No. 537, and Motion for a New Trial ("New Trial Mot."), ECF No. 538, are before the court. Plaintiffs oppose the motions, ECF Nos. 547-48, and defendants have replied, ECF Nos. 550-51. The court heard oral argument on the motions on October 31, 2017, and then submitted the matters. See ECF No. 554. After careful consideration, for the reasons below, the court DENIES both motions.
I. BACKGROUND
A. Factual Background
Between 2008 and 2012, California and Sacramento County regulators investigated reports that the Hardesty family was operating a sand and gravel mine illegally on the Schneider family's ranch. As a result of the investigations, regulators ordered the Hardesty and Schneider families to cease the mining operation; the Hardesty and Schneider families eventually complied. What happened during the four years from initial reports to closure of the mine forms the core of the case that went to trial.
According to plaintiffs, after a long period of regulatory disinterest, government officials were spurred to action not by their discovery of any actual legal violations, but by their desire to appease plaintiffs' competitors as well as state legislators and local politicians motivated by campaign contributions. Plaintiffs centrally allege the County recognized the Schneiders' historical right to continue mining on their property, also called a "vested right," as early as 1994, but that defendants then revoked that right in 2009 without any process and in violation of the Schneiders' procedural and due process rights. The regulatory action that followed culminated in the permanent shutdown of the mining operation. The Schneiders also allege defendants retaliated against them by dramatically increasing in 2012 the financial deposit necessary to continue operating the mine, after they filed this case in 2010.
Defendants' theory of the case was that the County never revoked plaintiffs' vested right, if they had any such right. Instead, in a series of hearings in 2010 and 2011, defendants merely determined that plaintiffs had expanded the mining operation beyond its permissible scope. The subsequent regulatory action, including requiring an amended reclamation plan and greater financial assurances, were required under state law and none of these actions were improperly motivated.
B. Procedural Background
Following extensive summary judgment practice, plaintiffs' case proceeded to trial against the following defendants: Sacramento County; Robert Sherry, a former Planning Director for the County; Roger Dickinson, a former member of the Sacramento County Board of Supervisors; and Jeff Gamel, a former Sacramento County Senior Planner and Aggregate Resources Manager. After a sixteen-day trial held from February 16 to March 16, 2017, the jury returned a unanimous verdict on plaintiffs' Fourteenth Amendment procedural and substantive due process claims and the Schneiders' additional claim resting on the First Amendment's right to petition clause. See Jury Verdict, ECF No. 469. The jury found the County, but not the individual defendants, violated plaintiffs' procedural due process rights, and awarded nominal damages of $1 to each *1021set of plaintiffs on these claims. Id. at 2-3. The jury found all defendants violated plaintiffs' substantive due process rights, and awarded $75 million to the Hardestys and $30 million to the Schneiders. Id. at 4-5. The jury found the County, but not the individual defendants, violated the Schneiders' right to petition the government for redress, and awarded the Schneiders $30,000 on this claim. Id. at 6. The jury also found each individual defendant's conduct was "malicious, oppressive, or in reckless disregard" of plaintiffs' rights, and awarded punitive damages in the following amounts: $25,000 against Dickinson, $1 million against Gamel, and $750,000 against Sherry, with Sherry's payment broken down as $500,000 for the Hardestys and $250,000 for the Schneiders. Id. at 7-8.
After plaintiffs had rested their case but before the jury returned its verdict, defendants filed three motions for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). ECF Nos. 350, 353, 443. In the first motion, defendants asserted they were entitled to judgment as a matter of law because plaintiffs failed to pursue relief by way of writ in state court, the County Board of Supervisors' decision and Board of Zoning Appeals ("BZA") decisions had preclusive effect, the Hardesty plaintiffs were not entitled to notice related to the Hardestys' procedural due process claims, the Board of Supervisors' hearings complied with procedural due process, and plaintiffs' substantive due process claims failed. ECF No. 350 at 2-20.
In the second motion, defendants asserted defendants Dickinson and Sherry were not liable for conduct after 2010 and Dickinson was entitled to absolute immunity for his legislative acts and qualified immunity for his executive acts. ECF No. 353 at 2-4.
In the third and final Rule 50(a) motion, defendants contended plaintiffs lacked a federally protected property interest, plaintiffs received procedural due process, adequate state process precluded finding a violation of procedural due process, the only remedy for a due process violation was to order the process due, the Hardestys were not entitled to notice or alternately received actual notice of certain hearings, plaintiffs failed to exhaust remedies in state court, board determinations were entitled to preclusive effect, plaintiffs' substantive due process claims failed, all defendants were entitled to qualified immunity and Dickinson was entitled to absolute immunity for some of his conduct, no evidence permitted a reasonable jury to conclude defendants retaliated against plaintiffs, no evidence supported awarding punitive damages, and defendants are entitled to judgment as a matter of law on a Williamson Act Claim. ECF No. 443 at 17-88. These three motions preserved defendants' right to file a renewed motion for judgment as a matter of law. See Fed. R. Civ. P. 50(a)-(b).
On July 7, 2017, defendants filed a renewed motion for judgment as a matter of law and, in the alternative, for a new trial. See Renewed JMOL Mot., ECF No. 537; New Trial Mot., ECF No. 538. As noted, plaintiffs jointly opposed the motions. Renewed JMOL Opp'n, ECF No. 547; New Trial Opp'n, ECF No. 548. Defendants filed replies. Renewed JMOL Reply, ECF No. 550; New Trial Reply, ECF No. 551. On October 31, 2017, the court heard both motions: Derek P. Cole, Gregory P. O'Dea and Mark O'Dea appeared for defendants; R. Paul Yetter, Christian J. Ward and George D. Robertson appeared for the Hardestys; and Glenn W. Peterson appeared for the Schneiders. H'rg Mins., ECF No. 554; see Hr'g Tr., ECF No. 556.
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After a lengthy jury trial, the Hardesty and Schneider plaintiffs obtained a verdict *1020exceeding $100 million against defendant Sacramento County and three defendant county officials based on defendants' actions the jury determined caused the closure of the Hardestys' sand and gravel mine and violated plaintiffs' constitutional rights under the First, Fourth and Fourteenth Amendments. Defendants' Renewed Motion for Judgment as a Matter of Law ("Renewed JMOL Mot."), ECF No. 537, and Motion for a New Trial ("New Trial Mot."), ECF No. 538, are before the court. Plaintiffs oppose the motions, ECF Nos. 547-48, and defendants have replied, ECF Nos. 550-51. The court heard oral argument on the motions on October 31, 2017, and then submitted the matters. See ECF No. 554. After careful consideration, for the reasons below, the court DENIES both motions.
I. BACKGROUND
A. Factual Background
Between 2008 and 2012, California and Sacramento County regulators investigated reports that the Hardesty family was operating a sand and gravel mine illegally on the Schneider family's ranch. As a result of the investigations, regulators ordered the Hardesty and Schneider families to cease the mining operation; the Hardesty and Schneider families eventually complied. What happened during the four years from initial reports to closure of the mine forms the core of the case that went to trial.
According to plaintiffs, after a long period of regulatory disinterest, government officials were spurred to action not by their discovery of any actual legal violations, but by their desire to appease plaintiffs' competitors as well as state legislators and local politicians motivated by campaign contributions. Plaintiffs centrally allege the County recognized the Schneiders' historical right to continue mining on their property, also called a "vested right," as early as 1994, but that defendants then revoked that right in 2009 without any process and in violation of the Schneiders' procedural and due process rights. The regulatory action that followed culminated in the permanent shutdown of the mining operation. The Schneiders also allege defendants retaliated against them by dramatically increasing in 2012 the financial deposit necessary to continue operating the mine, after they filed this case in 2010.
Defendants' theory of the case was that the County never revoked plaintiffs' vested right, if they had any such right. Instead, in a series of hearings in 2010 and 2011, defendants merely determined that plaintiffs had expanded the mining operation beyond its permissible scope. The subsequent regulatory action, including requiring an amended reclamation plan and greater financial assurances, were required under state law and none of these actions were improperly motivated.
B. Procedural Background
Following extensive summary judgment practice, plaintiffs' case proceeded to trial against the following defendants: Sacramento County; Robert Sherry, a former Planning Director for the County; Roger Dickinson, a former member of the Sacramento County Board of Supervisors; and Jeff Gamel, a former Sacramento County Senior Planner and Aggregate Resources Manager. After a sixteen-day trial held from February 16 to March 16, 2017, the jury returned a unanimous verdict on plaintiffs' Fourteenth Amendment procedural and substantive due process claims and the Schneiders' additional claim resting on the First Amendment's right to petition clause. See Jury Verdict, ECF No. 469. The jury found the County, but not the individual defendants, violated plaintiffs' procedural due process rights, and awarded nominal damages of $1 to each *1021set of plaintiffs on these claims. Id. at 2-3. The jury found all defendants violated plaintiffs' substantive due process rights, and awarded $75 million to the Hardestys and $30 million to the Schneiders. Id. at 4-5. The jury found the County, but not the individual defendants, violated the Schneiders' right to petition the government for redress, and awarded the Schneiders $30,000 on this claim. Id. at 6. The jury also found each individual defendant's conduct was "malicious, oppressive, or in reckless disregard" of plaintiffs' rights, and awarded punitive damages in the following amounts: $25,000 against Dickinson, $1 million against Gamel, and $750,000 against Sherry, with Sherry's payment broken down as $500,000 for the Hardestys and $250,000 for the Schneiders. Id. at 7-8.
After plaintiffs had rested their case but before the jury returned its verdict, defendants filed three motions for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). ECF Nos. 350, 353, 443. In the first motion, defendants asserted they were entitled to judgment as a matter of law because plaintiffs failed to pursue relief by way of writ in state court, the County Board of Supervisors' decision and Board of Zoning Appeals ("BZA") decisions had preclusive effect, the Hardesty plaintiffs were not entitled to notice related to the Hardestys' procedural due process claims, the Board of Supervisors' hearings complied with procedural due process, and plaintiffs' substantive due process claims failed. ECF No. 350 at 2-20.
In the second motion, defendants asserted defendants Dickinson and Sherry were not liable for conduct after 2010 and Dickinson was entitled to absolute immunity for his legislative acts and qualified immunity for his executive acts. ECF No. 353 at 2-4.
In the third and final Rule 50(a) motion, defendants contended plaintiffs lacked a federally protected property interest, plaintiffs received procedural due process, adequate state process precluded finding a violation of procedural due process, the only remedy for a due process violation was to order the process due, the Hardestys were not entitled to notice or alternately received actual notice of certain hearings, plaintiffs failed to exhaust remedies in state court, board determinations were entitled to preclusive effect, plaintiffs' substantive due process claims failed, all defendants were entitled to qualified immunity and Dickinson was entitled to absolute immunity for some of his conduct, no evidence permitted a reasonable jury to conclude defendants retaliated against plaintiffs, no evidence supported awarding punitive damages, and defendants are entitled to judgment as a matter of law on a Williamson Act Claim. ECF No. 443 at 17-88. These three motions preserved defendants' right to file a renewed motion for judgment as a matter of law. See Fed. R. Civ. P. 50(a)-(b).
On July 7, 2017, defendants filed a renewed motion for judgment as a matter of law and, in the alternative, for a new trial. See Renewed JMOL Mot., ECF No. 537; New Trial Mot., ECF No. 538. As noted, plaintiffs jointly opposed the motions. Renewed JMOL Opp'n, ECF No. 547; New Trial Opp'n, ECF No. 548. Defendants filed replies. Renewed JMOL Reply, ECF No. 550; New Trial Reply, ECF No. 551. On October 31, 2017, the court heard both motions: Derek P. Cole, Gregory P. O'Dea and Mark O'Dea appeared for defendants; R. Paul Yetter, Christian J. Ward and George D. Robertson appeared for the Hardestys; and Glenn W. Peterson appeared for the Schneiders. H'rg Mins., ECF No. 554; see Hr'g Tr., ECF No. 556. II.
*1022LEGAL STANDARD
A. Motion for Judgment as a Matter of Law
Federal Rule of Civil Procedure 50(b) governs renewed motions for judgment as a matter of law ("JMOL"), which may be raised only after the court denies a Rule 50(a) motion for judgment made during trial. Rule 50(b) provides in pertinent part that the court may: "(1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law." Fed. R. Civ. P. 52(b)(1)-(3). In rendering a Rule 50 motion decision, the court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving party. Krechman v. Cty. of Riverside ,
A Rule 50(b) motion for JMOL is not treated as a separate motion; instead, it is a renewed Rule 50(a) motion. Go Daddy Software ,
"The test applied is whether the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict." Josephs v. Pac. Bell ,
B. Motion for New Trial
The court may grant a motion for a new trial for any historically recognized grounds for permitting a new trial. Fed. R. Civ. P. 59(a)(1)(A) ; Zhang v. Am. Gem Seafoods, Inc. ,
Courts hold movants to a lower standard of proof on motions for a new trial than they do on motions for judgment as a matter of law. Thus, even if the court declines to grant judgment as a matter of law, it may order a new trial under Rule 59 ; in other words, a verdict may be supported by substantial evidence, yet still be against the clear weight of the evidence. Landes Const. Co., Inc. v. Royal Bank of Canada ,
However, a motion for new trial should not be granted "simply because the court would have arrived at a different verdict." Pavao v. Pagay ,
Because defendants move both for renewed judgment as a matter of law and a new trial on many of the same issues, the court applies the standards applicable to each motion respectively, with its analysis organized by each claim implicated by the defense motions.
III. SUBSTANTIVE DUE PROCESS
Defendants contend plaintiffs did not offer sufficient evidence to prove they possessed *1024any liberty or property interests protected by the substantive due process clause of the Fourteenth Amendment. Renewed JMOL Mot. at 5-9. Defendants also contend the County's actions were rational, and plaintiffs failed to produce sufficient evidence to permit the jury to find the County's actions lacked a rational basis, a necessary finding to establish a substantive due process violation. Id. at 10-30.
The Due Process Clause prohibits government officials from arbitrarily depriving a person of her constitutionally protected liberty or property interests. See, e.g. , Action Apartment Ass'n, Inc. v. Santa Monica Rent Control Bd. ,
In their motions, defendants dispute: (1) the existence of a protected liberty interest; (2) the existence of some property interests; (3) the sufficiency of the evidence to support a finding that these two interests are present in this case; and (4) the existence of a vested right to conduct surface mining operations. The court addresses these four disputes below.
A. Liberty Interest and Waiver
Defendants contend no plaintiff possessed a liberty or property interest. Renewed JMOL Mot. 6-9. Plaintiffs contend defendants have waived this argument. Renewed JMOL Opp'n at 5-7. The court agrees; defendants waived this argument as explained below.
The right to "follow a chosen profession free from unreasonable governmental interference comes within the 'liberty' and 'property' concepts of" substantive due process. Greene v. McElroy ,
Because defendants addressed only a substantive due process interest in a vested right to mine in one of their Rule 50(a) motions, ECF No. 443 at 17-30, defendants have waived the claim that plaintiffs lacked any cognizable liberty interest, including one based on their right to pursue a chosen occupation. Defendants had notice at summary judgment that the court specifically found the Constitution protects two rights the plaintiffs asserted: "The Hardestys and Schneiders claim the County defendants stripped them of their *1025vested right to operate a surface mine, which deprived them of their right to pursue their chosen profession and to devote their land to a legitimate use. The Constitution protects both of these interests." ECF No. 283 at 65. Further, defendants filed three Rule 50(a) motions, supported by more than 100 pages of briefing. See ECF Nos. 350, 353, 443. Defendants had ample opportunity to raise and preserve any issues in their Rule 50(a) motions and the record reflects they took full advantage of that opportunity. Defendants did not claim in their Rule 50(a) motions that plaintiffs lacked any protectable liberty interests. See ECF Nos. 350, 353, 443 at 17-30 (asserting only that plaintiffs have no "federally protected property interest"). Accordingly, defendants have waived the argument that plaintiffs lacked any cognizable liberty interest.
In reply, defendants cite Thompson v. Runnels ,
Defendants themselves proposed instructing the jury that "the Constitution protects plaintiffs' interests in the right to pursue their chosen profession," further evincing defendants' waiver of this argument. ECF No. 317 at 8. Their proposed instruction also stated "plaintiffs allege that defendants...deprived them of their Substantive Due Process Rights under the Fourteenth Amendment to the Constitution by stripping them of their right to operate a vested mine, which deprived them of their right to pursue their own chosen profession."
Because the court instructed the jury using wording that was substantively similar to that defendants proposed, defendants have waived their argument based on liberty interest under Rule 50 as well as the invited error doctrine.
B. Property Interest and Waiver
Defendants also contend no plaintiff possessed a protected property interest. Renewed JMOL Mot. 6-9. Plaintiffs contend defendants also have waived this argument. Renewed JMOL Opp'n at 5-8. Generally, '[t] he right of [an owner] to devote [his] land to any legitimate use is properly within the protection of the Constitution.' " Harris v. Cty. of Riverside ,
Defendants have waived their claim that the Hardestys lacked a property interest independent of the Schneiders. Defendants argued in their Rule 50(a) motion only that the Hardestys were not entitled to notice under the Surface Mining and Reclamation Act (SMARA) based on the Hardestys' inability to cure a zoning violation. ECF No. 443 at 55-59. Defendants' claims, that plaintiffs lacked a property interest because they "have not applied for and been denied a conditional use permit" or otherwise failed to comply with zoning laws, ECF No. 443 at 17-30, do not logically extend to the claim that the Hardestys lacked a property interest independent of the Schneiders because contending only one party can have that property interest is distinct from contending only one party could have had a property interest. Contending neither party had a property interest in the Rule 50(a) motion would not have "call[ed] to the court's and parties' attention" the "alleged deficiencies in the evidence" about the Hardestys' lacking a separate property interest distinct from the Schneiders that defendants now raise. Freund ,
But defendants have not waived their claim that the Schneiders lacked a property interest absent lead agency approval. Defendants raised the following argument in their Rule 50(a) motion: "Plaintiffs' claim of a vested right does not create an entitlement to mine without complying with zoning laws." ECF No. 443 at 17-19. This argument logically extends to defendants' Rule 50(b) argument that the Schneiders not only exceeded the scope of any vested right they might have, but also that the Schneiders could not act upon such a right until a lead agency approved their reclamation plan, meaning the Schneiders lacked a property interest absent that approval. Renewed JMOL Mot. at 18-22. Thus, the court will address the merits of this argument.
That said, defendants' claim fails on the merits. Defendants assert the Schneider plaintiffs "could not have demonstrated a valid right to mine in any manner contrary to" their reclamation plan because "even vested-right mining operations are subject to [a statutory] prohibition on substantially deviating from a reclamation plan until lead agency approval is obtained." Renewed JMOL Mot. at 7 (original emphasis, citing
C. Evidence of Liberty or Property Interests
Even assuming waiver of some of its Rule 50 arguments, defendants maintain "the [c]ourt does still have authority to rule" given defendants' motion for a new trial. Hr'g Tr.at 20:1-15. The court therefore examines whether the verdict respecting plaintiffs' liberty or property interests was against the clear weight of the evidence. Passantino ,
1. Liberty Interest in Pursuing a Chosen Occupation
The clear weight of the evidence admitted at trial supports the conclusion plaintiffs had liberty interests in pursuing their chosen occupations. Evidence shows the Hardestys had a liberty interest in their chosen occupation as SHM mine operators, e.g. , Rep.'s Tr. (RT)1672:13-1675:13, 1677:20-24, 1678:3-6 (Hardesty Test.), and the Schneiders had a liberty interest in their occupation of owning and maintaining their ranch property and selling aggregate from their land to the mining operator and customers. See, e.g. , RT 1266:8-1267:6; 1272:23-1274:5 (Schneider Test.). As part of pursuing their occupation, the Schneiders handled issues such as establishing recognition of their vested right to mine, negotiating the reclamation plan and filing annual reports. E.g. , JX021; JX099; RT 1294:18-22, 1373:20-1374:20, 1443:25-1444:1, 1499:11-16 (Schneider Test.). The jury heard unrebutted testimony that selling mining aggregate to a mining operator has been the Schneiders' family plan "since 1935." RT 1273:14-1274:4 (Schneider Test.). And that sale of aggregate was "fundamental to the survival of the ranch" because "the mining income supplemented the income of the older generation and put the infrastructure back into the ranch to keep the building and the roads and everything repaired." Id. 1285:2-22.
The court finds the clear weight of the evidence supports a jury determination that plaintiffs had liberty interests in pursuing their chosen occupations. See ECF No. 469 at 4 (jury verdict finding violation of Hardesty and Schneider plaintiffs' substantive due process rights, which requires finding a federally protected liberty or property interest); ECF No. 461 at 23-24 *1028(final jury instructions requiring a finding of either a "liberty or property interest protected by the Constitution").
2. Property Interest as Operators and Landowners
The clear weight of the evidence also supports plaintiffs' claim to have property interests in the land as mine operators and for the Schneiders also, as landowners. For instance, the Hardestys invested 30 years and millions of dollars into conducting their mining operations, re-investing earnings, at times millions of dollars, back into the operation. RT 1673:9-1674:8, 1684:4-18 (Hardesty Test.); 1351:18-24, 1354:11-14 (Schneider testifying to the "well developed financial relationship" between the Schneiders and the Hardestys and the Schneiders' informed belief that the Hardestys would have continued their mining operation well into the future). California Public Resources Code section 2776 supports the existence of a property right belonging to the Hardestys because that statute recognizes vested rights for any person "to conduct surface mining operations," not just landowners, and it vests that right in a person who has "diligently commenced surface mining operations and incurred substantial liabilities for work and materials necessary for the surface mining operations." See Calvert ,
The court finds the clear weight of the evidence supports plaintiffs' claim to hold property interests as mine operators, and the Schneiders' additional claim to a property interest as landowners.
3. Property Interest in Goodwill of Mining Business.
The clear weight of evidence shows the Hardestys also had a property interest in the goodwill of their mining operation. "The goodwill of one's business is a property interest entitled to protection; the owner cannot be deprived of it without due process." Soranno's Gasco, Inc. v. Morgan ,
4. Property Interest in Devoting Land to Legitimate Uses
The clear weight of the evidence cited above supports the finding of a property interest in devoting land to legitimate uses as well-notably here, mining operations. Courts have long recognized a property interest in devoting one's land to a legitimate use. See, e.g. , *1029Washington ex rel. Seattle Title Trust Co. v. Roberge ,
D. Meaning of Vested Right, Nonconforming Use, and Scope of Right
Defendants contend they had a legitimate government objective in addressing an impermissibly expanding nonconforming use at the SHM. Renewed JMOL Mot. at 17-19. Plaintiffs contend substantial evidence supports and the clear weight of the evidence is not against the finding that plaintiffs had a vested right to mine the entire SHM tract, and that vested right did not limit method or production levels. Renewed JMOL Opp'n at 23-29. Plaintiffs are correct. As the first step in explaining this conclusion, the court explains the nature of a vested right to mine under California law.
In California, a person has a "vested right to conduct surface mining operations" if, "prior to January 1, 1976, the person has, in good faith and in reliance upon a permit or other authorization, if the permit or other authorization was required, diligently commenced surface mining operations and incurred substantial liabilities for work and materials necessary for the surface mining operations."
As recognized by the California Court of Appeals, "In light of the state and federal constitutional takings clauses, when zoning ordinances or similar land use regulations are enacted, they customarily exempt existing land uses (or amortize them over time) to avoid questions as to the constitutionality of their application to those uses." Id. at 623,
Here, in 1994, the Sacramento County Senior Planner, Richard Maddox, accepted evidence of a vested right to mining on the SHM from Jay Schneider. JX021. The county did not require Schneider to obtain a permit, but it did require a reclamation plan and financial assurances for all mining activities that had occurred since January 1, 1976. JX025; see JX072 (inter-department correspondence, dated December 28, 2001, from Environmental Coordinator Dennis Yeast stating, "Due to a long established practice of mining the County and State have formally recognized Schneider's vested right to mine without approval of a Use Permit."); JX071 (inter-department correspondence, dated November 13, 2001, from the Office of the County Counsel to Mr. Yeast, the Environmental Coordinator, stating, "Because the Schneider mine has a vested right to conduct mining, a use permit is not required under the Surface Mining and Reclamation Act (SMARA).").
The County Board of Supervisors approved a final reclamation plan for SHM November 2002, and the plan has not been amended since. JX099.
The reclamation plan describes the mining operation this way:
*1030Material is excavated and classified, processed and stockpiled in anticipation of market demand and seasonal considerations. When the stockpiles are sufficiently diminished to justify further excavation or when there is an actual or anticipated market demand for a particular material, then such material is excavated, classified or processed as necessary and prudent, thus avoiding unnecessary excavation.
Defendants contend they had a legitimate government objective in addressing nonconforming use at the SHM based on three impermissibly expanding uses: (1) "mining outside areas intended to be mined when the use became nonconforming"; (2) "employing new mining methods or activities not used at the inception of the nonconforming use"; and (3) "increasing production levels." Renewed JMOL Mot. at 17. The court addresses these three contentions below.
1. Mining Outside the Area of the Original Nonconforming Use
Defendants contend plaintiffs impermissibly expanded their nonconforming use by mining outside areas intended to be mined when the use became nonconforming-that is, when the use no longer was inconformity with a zoning restriction. Renewed JMOL Mot. at 17-18; see Hansen Bros. ,
Defendants concede that "the historical record concerning what was determined with respect to SHM in 1994 was, at best, ambiguous." Renewed JMOL Mot. at 17. Against this backdrop, this is precisely the type of determination a jury was entitled to make as the factfinder. Although defendants observe that a 1994 letter from Richard Maddox to Jay Schneider (JX021) referenced only two of the SHM parcels, comprising "only 300 acres of the much larger SHM property," Renewed JMOL Mot. at 17-18, the 1994 letter also refers broadly to the "Gravel Mining Operation and "the mining operation." The jury was entitled to read this letter as encompassing all mining activity at SHM. On cross-examination, defendant Jeff Gamel acknowledged *1031the lack of limitations in the 1994 letter, discussed more fully below. See RT 2060:25-2061:11 (agreeing that nothing in 1994 letter limited amount of production at SHM, the quantity of ore or gravel SHM could develop, the type of excavation or mining operation at SHM, or nothing that would limit the various kinds of aggregate, sand, gravel, pebbles, etc.). His testimony as to a lack of limitations also permitted the jury to conclude the vested right here extended to the entirety of SHM.
Additionally, the approved 2002 reclamation plan arguably contemplates expansion into new areas at the time the mining uses became nonconforming. See JX099. Jay Schneider testified to his understanding that the County "completely acknowledged our vested rights." RT 1319:4-15. Evidence before the jury reflected the County's understanding was similar. E.g. , JX141 (e-mail from Aggregate Resources Manager Mike Winter describing 2002 reclamation plan proceeding as "the hearing to declare the mine's vested status and to approve the reclamation plan"); PX568 at 145:21-24 (BZA hearing transcript in which County Counsel stated the "Reclamation Plan and that issue of what is vested pursuant to SMARA was decided at the time that the current Reclamation Plan was approved by the Board of Supervisors in 2002.").
Maps attached to the 2002 reclamation plan also permitted the jury to infer plaintiffs' vested right to mine at the SHM encompassed the entire tract, including expansion into new areas. These maps featured a bold-dotted line for the entire "PERIMETER OF THE SCHNEIDER HISTORIC MINING TRACT" and show areas covering almost all land within the perimeter of the SHM tract. JX099, Exs. A-G. Additionally, other maps show areas where mining was projected to occur in the future.
Defendants' own lack of clarity about the maps associated with the 2002 reclamation plan supports the conclusion that a jury finding that plaintiffs' vested right encompassed the entire SHM tract was not against the clear weight of the evidence. For instance, defendant Dickinson testified that "[i]t looks like a good portion of that map has been shaded" when asked if the shaded areas of the map looked limited to Dickinson. RT 1196:19-21. Although Dickinson testified that he "would eyeball it at less than half," Dickinson also testified that he did not know "what it [the shading] means." Id. 1196:22-1197:1. Defendant Gamel testified the maps were "very confusing because of the color overlay." RT 2063:17-19. And defendant Sherry testified that he "can't tell" and did not "know what the colors mean" in reference to maps with legends indicating estimates as to where mining likely would occur in the next 20, 40, and 100 years at the time the plan was adopted. RT 701:6-704:20.
To support their contention that plaintiffs impermissibly expanded their nonconforming use, defendants refer to evidence that County staff had referred to SHM as a "small scale operation." Renewed JMOL Mot. at 19 (citing JX084 at 6:22). But the jury also heard and saw evidence that the *1032Hardesty mining operation remained a relatively "small operation" compared with competitors such as Teichert, Vulcan and Granite. Compare, e.g. , JX 484 at 24 (reported tonnage level for SHM at above 610,000 tons per year), with JX671 at 31-33 (describing Teichert quarry in Sacramento County producing 135 million tons from pits up to 200 feet deep and Granite quarry producing 354 million tons from a pit up to 400 feet); RT 508:9-509:1, 515:2-516:6 (Gamel Test.); RT 551:6-16 (Wheatley Test.). Thus, the jury could reasonably infer the SHM mining operation was still a relatively small-scale operation despite any expansion within the SHM tract.
In support of their impermissible expansion contention, defendants also observe "[t]he historical information Jay Schneider had provided the County prior to the 1994 letter did not expressly reference any intent to mine" the area near the Cosumnes River, "well north of Meiss Road," or "to mine the area to the extent it was being excavat[ed] by 2010." Renewed JMOL Mot. at 18. Defendants also point to evidence of plaintiffs' excavating new pits near the Cosumnes River, north of Meiss Road. Id. (citing JX 484 at 22, showing no pit near the river in 2004, and JX 484 at 23, showing pit as of 2007). Defendant Gamel also testified to his opinion that some of plaintiffs' mining in 2009 was not located in the area set out for mining between 2002 and 2022 in the 2002 Reclamation plan. RT 2164:18-2165:17; see JX099 at 15-16. But none of this evidence necessarily undercut the substantial evidence elsewhere in the record-notably, the 2002 reclamation plan maps and related testimony-, as discussed above, that plaintiffs' vested right included the areas plaintiffs mined in 2009 at the time they were mining. Nor are Gamel's opinion combined with a lack of historical evidence originally submitted by Schneider against the clear weight of the evidence in support of the verdict here: the County's 1994 letter spoke broadly about the SHM tract, the 2002 reclamation plan and its various maps were before the jury as evidence, and defendants themselves testified to a lack of clarity about the various maps in the 2002 reclamation plan. In sum, the evidence defendants cite does not shift the clear weight of the evidence.
Altogether, there was substantial evidence to support a jury finding that the plaintiffs' vested right to mine encompassed the entire SHM tract. And in light of defendants' own uncertain testimony and the other evidence of record, it is not for this court to override the jury's verdict given that the jury's finding that the vested right to mine encompassed the mining plaintiffs engaged in at the time was not against the clear weight of the evidence.
2. Employing New Mining Methods
Defendants rely on Endara v. City of Culver City ,
As noted above, Sacramento County's 1994 letter stated that information submitted by Jay Schneider "has been accepted as evidence of vested interest and therefore, we are not requiring a use permit for the mining operation." JX021. That letter does not impose any limitations on production methods.
3. Increasing Mining Production Levels
Substantial evidence supports the jury's finding that plaintiffs' vested right included varying production levels based on demand. The defendants' argument that plaintiffs' increased production in subsequent years was an impermissible expansion of a nonconforming use is unavailing. See Renewed JMOL Mot. at 18-19.
According to defendants, "nonconforming mining uses are only entitled to 'gradual and natural' increases in production" to "meet the demands of population growth." Renewed JMOL Mot. at 17 (citing Hansen Brothers ,
Yet other substantial evidence supported a jury finding that the production increase was limited to meeting population increases such that the increase remained within the scope of plaintiffs' vested right. Much of the evidence shows no volume-based limitation on the vested interest. For instance, as noted above as well, evidence permitted the jury's finding that the vested right was not limited in production levels except by the boundaries of the SHM tract. The 1994 letter from the County's Richard Maddox describing the vested right says nothing at all about production volume. JX021. Defendant Gamel conceded it was correct that nothing in the 1994 letter limited the amount of production from the SHM, nothing limited the quantity of ore or gravel that the mine could develop and nothing would limit the various kinds of aggregate. RT 2060:25-2061:11. Schneider testified that the historical *1034use of SHM showed variation in how much "material was excavated in a short period of time." RT 1302:22-25. Intensity in mining also varied over time. Id. 1308:6-15, 1314:7-1315:23. Even the 2002 reclamation plan does not state a limit on the quantity of production. JX099. In fact, the reclamation plan specifically observes, " "Material is excavated and classified, processed and stockpiled in anticipation of market demand and seasonal considerations." JX099, Ex.099, at 5.
Furthermore, as stated in Hansen Brothers ,
This substantial evidence supports the implicit jury finding that the vested right included varying production levels based on demand, and the clear weight of the evidence is not against such a finding. See ECF No. 469 at 4 (jury verdict finding violation of Hardesty and Schneider plaintiffs' substantive due process rights, which requires finding a federally protected liberty or property interest); ECF No. 461 at 14 (final jury instruction stating "[t]he Schneiders' claimed right to mine or allow mining on their land is based on their ownership of the land and the history of mining on the land, which they say gave rise to the vested right to mine").
Because substantial evidence supports a jury finding that plaintiffs had a vested right to mine the entire SHM tract without limitation as to method or production levels, defendants' argument they had a legitimate government objective in addressing an impermissibly expanding nonconforming use also is unavailing.
The court now turns to the parties' contentions regarding defendants' violation of plaintiffs' substantive due process rights.
E. Violation of Substantive Due Process Rights
As discussed above, substantial evidence supported the conclusion that plaintiffs had a vested right to mine the SHM tract without limits on methods or production. A substantive due process claim requires a showing of government officials' arbitrarily depriving a person of her constitutionally protected liberty or property interests-here, the vested right to mine. See, e.g. , Ass'n, Inc. v. Santa Monica Rent Control Bd. ,
1. Improper Motivation
Defendants contend improper motivation alone is insufficient to establish lack of a legitimate governmental purpose. Renewed JMOL Mot. at 27 n.32; Renewed JMOL Reply at 8. The court disagrees. Numerous cases detail the relevance of improper motivations in the context of substantive due process claims. For instance, in Del Monte Dunes v. City of Monterey ,
In Lockary v. Kayfetz,
Ninth Circuit case law also details a violation of substantive due process rights where a defendant singles out "one individual to be treated discriminatorily." Bateson v. Geisse ,
Contrary to defendants' contentions, Renewed JMOL Mot. at 20-26, acting "simply to ensure compliance with all the applicable rules" may not be sufficient on its own to defeat claims the defendants acted "in an arbitrary and unreasonable manner" and with "improper" motives, especially where demands and burdens placed on the plaintiff "were unique to that plaintiff." David Hill Dev., LLC v. City of Forest Grove , No. 3:08-CV-266-AC,
Defendants still contend any conceivable basis for their legitimate conduct defeats plaintiff's substantive due process claims as a matter of law. Renewed JMOL Mot. at 19. Defendant relies on Shanks v. Dressel ,
Defendant also cites Squaw Valley Development Co. v. Goldberg ,
2. Evidence of Improper Motivation
Because defendants argue in their motion for a new trial that plaintiffs "failed to offer sufficient evidence that the County and individual [d]efendants acted arbitrarily," New Trial Mot. at 3, the court addresses the clear weight of the evidence as to defendants' improper motivation. The court finds the clear weight of evidence of improper motivation does not run counter to the jury's finding of defendants' liability for substantive due process violations.
Upon careful review, the trial record is replete with evidence that permitted the jury to conclude defendants ceased to recognize plaintiffs' vested right based on improper motivation, and not a legitimate governmental interest. For instance, the jury could reasonably have concluded this decision was based on an improper motivation in the form of political pressure from donors. As part of a funding contract negotiated with a select few, competitor Teichert and two other large mining competitors committed large sums of money to finance the County's regulation of mining, including funding the salary and benefits of a full-time Aggregate Resources Manager to inspect all mining operations in the County; this full-time position was ultimately filled by defendant Jeff Gamel. E.g. , JX508; RT 341:23-343:7, 370:11-19 (Winter Test.). No other mining company could join the funding contract without the consent of all parties, including the large mining companies who were original signatories. JX508 at 6, § 9. Evidence also shows Teichert's taking concerted steps to inform various government officials and agencies about Hardesty, one of its competitors. E.g. , JX507 (Teichert Strategy Matrix about Hardesty Sand and Gravel and including Teichert interactions with the County); JX375 at 2 (detailing importance of County, which, as lead agency, "ha[d] the biggest handle," and stating that "everything else will pile on top of it"; see also, e.g. , RT 438:2-6 (Gamel testifying that County, as lead agency, governs mining operations within County). The jury did receive in evidence in an email from Teichert employee John Lane to defendant Gamel, copying Teichert attorney Kate Wheatley, stating Teichert's motivation was simply "a call for fairness and level playing field." JX143. Wheatley testified she had the same understanding as to Teichert's intentions with respect to the SHM. RT 622:2-11. It was for the jury to weigh this evidence, and the jury was entitled to disregard it and credit the other evidence before it.
Evidence also permitted the jury's implicit finding that political pressure was applied through multiple meetings involving Teichert, Dickinson, Gamel, Sherry and others from 2009 through 2010. E.g. , JX363; JX392; JX487; JX507. Counsel for Teichert even informed County counsel of its view that the Hansen Brothers decision "did not sanction the substantial increase in production" occurring at SHM in response to County counsel's concerns that HansenBrothers prevented the County from requiring a permit. JX356 (December 2009 email chain). Gamel also acknowledged having "heard something like that" in connection with Teichert's lawyers drafting findings and providing them confidentially to the BZA staff for the Board of Supervisor's ruling on the SHM. RT 534:15-23. Gamel acknowledged a conflict of interest if Teichert provided draft findings for the Board to use in rejecting the appeal of the SHM, even if the final findings did not track Teichert's proposed language. Id. 2082:12-19. The clear weight of *1038this evidence does not run counter to a jury finding of political pressure exerted by Teichert.
A conclusion that Teichert exerted political pressure may also have been supported by evidence of the timing of campaign contributions to Dickinson and funding contributions to the County. RT 1229:9-1232:6 (Dickinson Test.). Although Dickinson testified he did not pay attention to when contributions were made and did not know immediately if a contribution was made, Dickinson did confirm an entry in his campaign finance records, which "are a matter of public record," showed Teichert made a contribution to him the day before the September 28, 2010 hearing at which the Board rejected the Schneiders' appeal. Id. 1231:8-19. On a separate note, the day after that hearing denying the SHM appeal, Teichert signed a renewed funding contract with the County for the Aggregate Resources Manager position. Id. 1232:7-1233:13; see JX506; JX508.
The jury also could have given weight to additional evidence in finding that County decisions were based on personal or political loyalties to Teichert. For instance, after the first full-time Aggregate Resources Manager, Mike Winter, took another position within Sacramento County, defendant Gamel replaced Winter. RT 370:11-19. Before Winter took his new position, he had conferred with Teichert's attorney and asserted the SHM was a vested mine. RT 369:6-25; JX141; JX143. Gamel, Winter's replacement, had already engaged in communication with Teichert about the SHM: Before attaining the Aggregate Resources Manager position, Gamel had responded to Teichert's complaint that "[t]he Hardesty operation continues to expand its [sic] operations and sales without any federal, state, or local permits and operate under the thinly veiled guise of vested rights," by informing Teichert, "We will see what we can do." JX143 (September 2007 e-mail chain).
Evidence of other close communications with Teichert is not scarce in this record. For instance, in the same e-mail in which he thanked Teichert for the holiday gifts of cookies and olive oil, to which he "look[ed] forward each year," Gamel informed Teichert he was working with the Office of Mining and Reclamation (OMR) to partner on the site inspection of the SHM and stated, "We will let you know of any new developments." PX676. Soon after, on December 23, 2008, OMR inspected the mine, looking for potential violations. PX676; RT 457:20-459:25, 546:3-24 (Gamel Test.); RT 1769:21-1770:12 (Hardesty Test.).
The jury also may have given weight to Gamel's at times conflicting testimony about his interactions with Teichert. He denied, in his deposition before trial, of any 2007 communications with Teichert. RT 463:12-16 (Gamel Test.). At trial, Gamel did not "recall any conversations in 2007" with Teichert about the SHM, and he stated, "I don't know why I would be" when asked if he should not have been talking to Teichert about SHM. Id. 464:18-24. Yet an email chain and Gamel's testimony eventually revealed Teichert's sending Gamel aerial photographs of the SHM and complaining about Hardesty Sand & Gravel while telling Gamel to be discrete-all before Gamel was appointed as Aggregate Resources Manager. JX143; RT 465:3-467:18 (Gamel Test.). As noted, Gamel had informed Teichert, "We will see what we can do." JX143; RT 468:10-14 (Gamel Test.). Contrary to his earlier deposition testimony, Gamel eventually admitted at trial that he had been talking with Teichert about Hardesty Sand & Gravel since 2007. RT 468:1-20. By 2008, Gamel had called the Army Corps of Engineers and told them about Teichert's interest in the Hardesty mining operation.
*1039JX152. While the jury was reminded in standard jury instructions that naturally people sometimes forget things, it also was charged with ultimately making decisions regarding credibility. ECF No. 461 at 8 (Final Jury Instruction No. 7, instructing the jury in part that "You may believe everything a witness says, or part of it, or none of it" and instructing the jury it may account for "the witness's memory"). Gamel's vacillating about his communications with Teichert permitted the jury to infer some level of improper motivation in the context of the other evidence of political ties and pressure reviewed above.
Teichert communicated with other County employees as well. Even if those communications in themselves were a common practice of a large company doing business in the County, the jury was entitled them to consider them in the context of all the evidence presented in resolving plaintiffs' claims. As noted, Teichert communicated its concerns about competition from Hardesty to the County. E.g. , JX507 at 9-11 (Teichert Strategy Matrix detailing contacts with County officials); RT 580:1-20, 587:4-589:4 (Wheatley Test. about Teichert Strategy Matrix, including "tactics or developments" to pursue for "the [SHM]" and list including Dickinson, Gamel, and Sherry as contacts); RT 585:7-15 (Wheatley Test. of multiple meetings between Teichert and the County, including Gamel); JX132 (John Lane complaining that Hardesty was "now attempting to steal our customers through the sale of very cheaply priced product"); JX141 (August 2007 e-mail chain between Winter and Teichert lawyer Wheatley about vested status of Hardesty Sand & Gravel operation at SHM); JX143; JX234 (January 2009 e-mail chain setting up meeting between Gamel, Winter, and lawyers for Teichert); JX392; JX434. Defendants Dickinson, Sherry and Gamel were among the "primary contacts" between Teichert and the County. JX507; RT 587:16-588:11 (Wheatley Test.). These regular contacts and the open communication lines between Teichert, County employees and defendants themselves demonstrate the clear weight of the evidence is not against a jury finding of defendants having an improper motivation in determining plaintiffs lacked a vested right.
The jury's conclusion was further supported by the County's repeatedly ordering plaintiffs to stop mining altogether despite an increased demand for mining aggregate in Sacramento County. Compare JX287, JX421, JX447, RT 528:10 (Gamel acknowledging the April 2010 letter "does say shut down" if plaintiffs do not get a use permit and rezone), RT 714:17-20 (Sherry acknowledging "[w]e did not" tell plaintiffs they could scale back their mining operation to their original vested right and continue mining), and RT 1461:9-14 (Schneider testifying about an order saying "cease mining operations immediately, initiate an application for an amended reclamation plan within seven days, initiate reclamation of pits"), with JX131, JX139, JX157, JX230, JX341, JX671 (Gamel presentation on shortage of local supply), RT 395:11-396:2 (Bly-Chester Test.), and RT 505:1-24 (Gamel Test.). In his presentation discussing a shortage of local supply, Gamel specifically urged the County to prioritize huge quarries operated by Teichert, Granite and other participants in the funding agreement with the County to meet the critical need for local aggregate. JX671 at 30-32; RT 507:1-10 (Gamel Test.). But on cross-examination during trial, Gamel was asked: "But the last thing you want to do is lose an actual existing source of sand and gravel in Sacramento County, true?" He answered: "I would say that's true, yes." RT 514:8-10. Yet significantly, neither Gamel nor Sherry ever suggested-or apparently considered suggesting-the option of plaintiffs'
*1040paring back their mining during a permitting process to some smaller scale tied to the County's initial recognition of their vested right, consistent with Hansen Brothers ,
Taken together, the evidence reviewed here provided substantial support for a conclusion that defendants operated with an improper motive. It is not the only conclusion the jury could have reached, but it is not the court's job to reweigh the evidence and superimpose its own conclusions after the fact. When considered together with the substantial evidence supporting the conclusion that plaintiffs had a vested right to mine and did not impermissibly expand that vested right, the court cannot rule as a matter of law that defendants should have prevailed on plaintiffs' substantive due process claims because defendants had a legitimate governmental objective. Nor can the court find the clear weight of the evidence above weighs against the jury verdict in favor of plaintiffs on substantive due process claims. See ECF No. 469 at 4 (jury verdict finding County and Sherry liable for violation of Hardesty plaintiffs' substantive due process rights and County, Sherry, Dickinson and Gamel liable for violation of Schneider plaintiffs' substantive due process rights).
3. Complete Deprivation
Notwithstanding the evidence that could have supported the jury's conclusion of an improper motivation, defendants contend there was no "complete" or "total" substantive due process violation and the verdict therefore conflicts with Dittman v. California ,
Here, substantial evidence supported the jury's finding the plaintiffs experienced a complete deprivation of their substantive due process rights. Although defendants contend the County's later permit requirement was not a complete or "total prohibition on their ability to engage in the occupation of mining," Renewed JMOL Mot. at 6-7, case law is clear that "[a] mineral extractive operation is susceptible of use and has value only in the place where the resources are found, and once the minerals are extracted it cannot again be used for that purpose." Hansen Bros. ,
The April 2009 letter sent to plaintiffs evinces a complete deprivation because the letter did not provide the option for plaintiffs to scale back their mining operations to "its former level," with the County then "seek[ing] an injunction if the owner does not obey" as dictated by Hansen Brothers .
The deprivation stemming from the April 2009 letter remained a complete or total deprivation because subsequent hearings about the SHM did not permit adjudication of plaintiffs' claim to an underlying vested right. E.g. , RT 2081:9-11 (Gamel testifying that vested right "was not the issue before the Board of Supervisors"); RT 2257:14-19 (Derby testifying that hearings before Board of Supervisors and BZA concerned the notices of alleged zoning violations, not reaffirmation of the vested right); RT 1214:8-24 (Dickinson testifying that 2010 appeal to Board was about a violation of the zoning code and "was not focused or directed to whatever vested right there may have been"); RT 999:12-19 (Storelli testifying that if one needs a conditional use permit, one by definition would not be in possession of a vested right). In the County hearings, Dickinson proclaimed his view that the vested right simply did not exist. E.g. , JX483-101:17. During trial, however, as noted above, a County official testified, she had "never heard of [a vested mine] that lost its vested right." RT 999:23-25 (Storelli Test.).
Hardesty's own testimony about the dismantling of his mining business and his loss of livelihood provided strong evidence from which the jury could have concluded the Hardestys in particular suffered a complete and total deprivation. Hardesty testified that defendants' conduct forced him to sell off his expensive, handcrafted equipment for scrap, let all his employees go and incur $5 million in debt, borrowed from family and friends. RT 1739:6-17, 1746:15-24, 1748:19-1752:10. Hardesty explained his equipment was "not so movable" because it included "big conveyor belts," so he felt he had no choice but to have "sold and scrapped it." Id. 1789:16-1790:3.
Schneider's testimony also provided the jury with information it could reasonably have relied on to conclude he suffered a complete deprivation. Schneider testified he attempted to have another mine operator take over after defendants shut down the Hardesty operation. RT 1140:22-25 (Light Test.); 1333:7-1336:4 (Schneider Test.). But it was not feasible for another operator to resume mining in light of the County's refusal to continue recognizing the vested right and its requirement that Schneider obtain a conditional use permit, rezone his land, and post a large bond before allow mining to continue, a process that witnesses testified could take ten years and cost millions of dollars. E.g. , RT 1140:22-25 (Light Test.); 1333:7-1336:4, 1337:25-1338:3 (Schneider Test.); 1707:21-1708:5 (Hardesty Test.); 2255:22-25 (Derby Test.).
The evidence reviewed above is substantial and supports the jury's determination that Hardesty and Schneider each experienced a complete deprivation of their vested right to operate the SHM, resulting in the destruction of their respective leasehold interest, mining operation and livelihoods connected with the mine. Based on *1042the above, the clear weight of the evidence also does not run counter to the jury's verdict finding substantive due process violations.
F. Jury Instructions on Vested Right
At hearing defendants asserted the court cannot find that the jury properly found a vested right without the court's having provided a jury instruction clarifying that the Hansen Brothers case "allow[s] a local public entity to make a decision" about the impermissible expansion of the vested right, "which is allowed to have some degree of expansion by its very nature." Hr'g Tr. at 55:20-56:4. Defendants did not raise this issue in their briefing. See Renewed JMOL Mot.; Renewed JMOL Reply; New Trial Mot.; New Trial Reply. Nevertheless, the court addresses this argument because the vested rights issue is at the heart of this case.
Defendants' belated contention conflicts with their objection at trial "to any instructions to the jury on procedural and substantive due process that are in any way premised on the theory that the defendants improperly and impermissibly revoked plaintiffs' alleged vested right to mine." ECF No. 427 at 1. Defendants in fact proposed striking an entire set of proposed instructions on "California Mining Law and Vested Rights," including instructions on the Hansen standard. Id. at 29-32. The court ultimately did not instruct the jury on the Hansen Brothers case, though the court did instruct the jury that the Schneiders claimed a "vested right to mine." ECF No. 461 at 14. The court finds defendants have waived this argument under the invited error doctrine.
Regardless, the jury did not need instruction on the Hansen Brothers case to understand the factual dispute between the parties about a vested right to mine, and the law applicable to it. Resolving that factual dispute based on the instructions the court did give permitted the jury to make the legal determination about the existence of a legitimate governmental interest asserted by defendants-that the plaintiffs' lack of vested right, or expansion beyond that vested right, permitted the assertion of a legitimate governmental interest in regulating mining activity and avoiding environmental damage and attendant costs shouldered by the public. The jury found, based on the evidence before it, that this asserted interest was not a legitimate interest. Defendants' own testimony on the confusing nature of the 2002 reclamation plan maps and the County's prior 1994 determination of plaintiffs' rights provided the jury with a factual basis to disbelieve defendants' assertion of having only a legitimate interest, offered in the face of plaintiffs' claims; the jury was free to weigh the County's position along with the totality of the evidence, including the evidence that could support the conclusion of improper motive. It was, as noted elsewhere, for the jury to make credibility determinations among conflicting narratives. On the trial record, the jury was entitled to determine whether the County staff actually concluded the SHM nonconforming use had impermissibly expanded or if County staff instead reached that conclusion pretextually in response to political pressure from plaintiffs' competitor.
G. Excessive Damages
Defendants also contend a new trial must be granted because the jury's award of $105 million for substantive due process violations was based on an improper measure of damages. New Trial Mot. at 4-5. According to defendants, "The proper measure of damage should have taken into account the difference in the fair market value of the SHM property as a result of the [p]laintiffs' loss of the right to continue their mining operation."Id. Additionally, defendants contend plaintiffs relied on the *1043inherently unreliable testimony of expert witness Gilbert Coleman to justify asking for excessive substantive due process damages. Id. at 5-6.
At hearing, defendants conceded their excessive damages challenge was limited to "[their] Rule 59 motion" and was "not a basis for [their] Rule 50(b) motion...." Hr'g Tr. at 46:9-21. The court therefore addresses defendants' excessive damages claims under Rule 59 only. Courts "will not disturb an award of damages on appeal unless it is clearly unsupported by the evidence." Chalmers v. City of Los Angeles ,
1. Proper Measure of Damages
According to defendants, as noted, "The proper measure of damage should have taken into account the difference in the fair market value of the SHM property as a result of the [p]laintiffs' loss of the right to continue their mining operation." New Trial Mot. at 4-5. The court disagrees.
The jury was instructed that "[d]amages means the amount of money that will reasonably and fairly compensate the plaintiffs for any injury or loss you find was caused by the defendants." ECF No. 461 at 28. Lost profits and business expenses, a form of injury or loss, are an appropriate measure of damages in cases involving violations of due process rights. For instance, in Chalmers , plaintiff was entitled to a damages award including "initial cost" and "net profit" when the defendant city violated plaintiff's due process rights by preventing her from operating her T-shirt vending business.
Here, plaintiffs face a situation not unlike that of the plaintiff in Chalmers although the size of the two businesses appears quite different. Here, municipal defendants violated plaintiffs' due process rights by shutting down and preventing operation of the SHM. See also Benigni v. City of Hemet ,
Defendants instead cite to Herrington v. Sonoma County ,
2. Reliable Expert Testimony
Defendants contend the substantive due process damages were excessive, in part because they were based on Gilbert Coleman's "inherently unreliable" expert testimony. New Trial Mot. at 5-6. Here as well, the court disagrees. The substantive due process damages are supportable by evidence before the jury, including Coleman's testimony. Although defendants correctly identify problems with Coleman's testimony, including Coleman's contradictions in relying on different sets of tax returns, defendants themselves highlight Coleman's other testimony that supports the jury verdict.
Coleman's testimony bore some indicia of reliability. For instance, Coleman testified that he determines value by looking at profitability and other factors. RT 1521:4-24. Coleman considers the track record of a business to make his calculations, which here included Hardesty Sand & Gravel's success for 30 years as a profitable business with a strong local demand for aggregate. RT 2369:2-23; see also JX671 (Gamel presentation on critical shortage of aggregate in Sacramento County).
Although Coleman's testimony about his reliance on tax returns was not reliable (see RT 1622:24-1623:21, 1624:12-1626:20, 1627:21-1628:3, 1628:4-1634:18), the jury was exposed to the unreliability and able to weigh it subject to proper instruction. Defendants admit Coleman provided a revised valuation based on a $1-per-ton payment the Schneiders were supposed to receive. RT 1654:1-25, RT 2104:14-23. Moreover, Coleman testified that, based on the information he had seen, he had no doubt there was enough sand and gravel at the SHM to last for the next 100 years at the production levels he had observed. RT 1576:1-5. Coleman based this testimony on discussions with Hardesty and Schneider. RT 1575:19-22. Coleman's conclusion is consistent with Hardesty's testimony, based on Hardesty's excavating "hundreds of test holes on th[e] [Schneider] ranch," that he "could easily mine at the rate of pace that [he] was for another 75 or 100 years real easy." RT 1747:1-20, 1748:2-5 (Hardesty Test.); see also JX11; JX 13 (test holes excavated by Schneider family); Silver Sage ,
Schneider's testimony also supports Coleman's conclusion about the quantity of sand and gravel at the SHM. For instance, Schneider testified there were at least "27 *1045million tons of material that we know is in reserves," which has "been mapped out" and known "for years and years and years." RT 1348:18-21. And Schneider also testified that one can sell aggregate to purchasers "from stockpiles...or from reserve areas that haven't been mined yet." RT 1273:11-13. Those stockpiles have existed since the 1930s, with "[a] great deal of them in the Forties and early Fifties." RT 1309:25-1310:3.
Contrary to defendants' suggestion, Coleman was not restricted to the testimony of expert Jeff Light as the basis for forming his conclusions about the aggregate reserves and their ability to sustain the Hardesty mining business over the coming decades. Light testified only as to certain areas, comprising only a part of the total acreage of the Schneider ranch, and not the entire SHM tract. See RT 1117:21-1121:8. The jury was entitled to assess the testimony of Hardesty and Schneider independently, as well as Coleman's reliance on their testimony in his calculations.
Observing all of these facts, the court does not find the substantive due process damages awarded to the Schneiders excessive or against the clear weight of the evidence. If the jury applied the $1-per-ton price for the Schneiders, considered by Coleman during his testimony, to Schneiders' testimony of at least 27 million tons in reserves, the jury would have arrived at a calculation of $27 million in damages, discounted to $21.6 million using Coleman's methodology of multiplying $27 million by 0.8. See RT 2383:15-21 (Coleman Test.). After adding the $6.43 million in past losses deemed admitted by the court (RT 2392:10-13), a total damages calculation for the Schneiders' substantive due process claim would be $28.03 million. In light of Schneider's testimony and Hardesty and Coleman's testimony on mining for another 75-100 years, a jury crediting those statements and calculating damages based on 30 million tons-establishing a total of $30.43 million in damages after discounting-is not excessive. Defendants' own suggested average tax return values for the Schneider family-$404,776 per year, New Trial Mot. at 7 n.2, and an alternative measure from the $1-per-ton measure of damages-would still permit a jury award of $30,716,560 after discounting Coleman's methodology and including the $6.43 million in past losses, if the jury credited as it could have at least 75 more years of operation of the SHM based on the collective testimony of Hardesty, Schneider, and Coleman.
IV. PROCEDURAL DUE PROCESS
Defendants contend plaintiffs were provided procedural due process as a matter of law, and insufficient evidence supported the jury verdict that the County violated the due process rights of the Hardesty and Schneider plaintiffs. Renewed JMOL Mot. at 30; New Trial Mot. at 18. The court disagrees.
Due process requires not just notice but also, crucially, the "opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge ,
California law requires agencies to resolve claims of vested rights to conduct a surface mining operation through public hearings. Calvert ,
A. Initial Vested Right Determination
Because the procedural due process violation here involves a claim of deprivation of plaintiffs' right to due process before the County deprived plaintiffs of their vested right to mine, the court first addresses the evidence establishing plaintiffs' vested right.
As discussed previously, the evidence at trial permitted the jury to find that the County recognized a broad-ranging vested right in a 1994 letter and reaffirmed it in the 2002 reclamation plan. See JX021; JX099. Approval of the vested right determination involved a formal proceeding in connection with approving the reclamation plan in 2002. See, e.g. , JX141 (August 2007 e-mail from Winter to Teichert lawyer Wheatley describing 2002 reclamation plan proceeding as "the hearing to declare the mine's vested status and to approve the reclamation plan"). County counsel later advised the BZA that the scope of the vesting had been determined by the Board of Supervisors in 2002 and could not be revisited: "That Reclamation Plan and that issue of what is vested pursuant to SMARA was decided at the time that the current Reclamation Plan was approved by the Board of Supervisors in 2002." PX568 at 145:21-24. In its 2002 adoption of the reclamation plan, at a noticed public hearing, the Board of Supervisors expressly noted the reclamation plan's appealability. JX71 at 2. No one ever appealed the 2002 reclamation plan approval. Substantial evidence therefore permitted the jury to infer plaintiffs' vested right existed as early as 1994 or at least by 2002, and the clear weight of the evidence is not against a finding that plaintiffs had a vested right to mine at SHM by 2002.
B. Deprivation without Process: The April 2009 Letter
Defendants contend the County's April 2, 2009 letter asserting plaintiffs' mining was "not protected by [plaintiffs'] vested right" (JX 287) was not self-executing and therefore did not deprive plaintiffs of a vested right. Renewed JMOL Reply at 22-23; Hr'g Tr. at 13:1-3. Substantial evidence permitted the jury to infer the opposite-that the April 2, 2009 letter deprived plaintiffs of their vested right to mine without any hearing-and the clear weight of the evidence is not against such a finding.
Substantial evidence supports the conclusion the letter did not contemplate any process related to a determination of plaintiffs' vested right. As defendant Gamel testified, *1047the 2009 letter informed Schneider and Hardesty they did not have a vested right to mine on the Schneider property. RT 526:21-527:1 (Gamel Test.). The letter, penned by defendant Gamel and signed by defendant Sherry (JX287; RT 685:11-20, 687:7-19, 687:24-25), stated the County had found that "the mining that is presently occurring on your property is not protected by your vested right, and the only remedy to permit you to continue mining on the property is to file for and receive approval of a conditional use permit and rezone." JX287.
Defendants direct the court to Sherry's testimony that the April 2009 letter, instead of being a unilateral deprivation of a vested right, was a request for plaintiffs "to contact Jeff Gamel" for a "further dialogue...about this situation." RT 691:18-19. However, when asked about the 2009 letter's content with respect to an enforcement action, Sherry responded "[t]here was no specific enforcement action intended." Id. 752:5-14. Sherry contended the letter only threatened an enforcement action for failing to file a permit within 30 days "to convey to Mr. Schneider that it was important to respond to this letter." Id. 752:15-19. That no one from the County replied to a response letter sent by Schneider's counsel reinforces Sherry's testimony that no enforcement action, with attendant procedures, was intended based on the April 2009 letter. See JX302; RT 752:22-755:7 (Sherry Test.). Thus, this letter and the related testimony permitted the jury to infer the County made a vested rights determination prior to sending the letter, without any form of hearing. Such a determination was in direct conflict with the holding in Calvert .
Defendants also suggest a September 14, 2010 presentation by Gamel and Derby to the Board of Supervisors is evidence that the April 2009 letter was not self-executing. There, Gamel and Derby characterized "Code Enforcement" zoning violation notices issued in April and May 2010 as enforcing the "April 2009" determination by the "Planning Director...that a Use Permit and a Re-zone was required" and the "continuing operation" of the Mine following that April 2009 determination as "in violation of the Sacramento Zoning Code." JX484 at 4. This evidence was before the jury; the jury reasonably could have found it lended further support to a determination that the April 2009 letter communicated a decision that plaintiffs no longer had any vested right to mine and had no way to contest the decision.
Additional testimony supports the conclusion the County made its vested rights determination without any form of process. Gamel, who authored the letter, testified that he and others "came to a conclusion that it was not" "still a vested operation" before April 2, 2009. RT 524:16-18 (Gamel Test.). Gamel further testified that this determination was entirely unilateral, with no notice or hearing to plaintiffs: "We did not have a hearing. This was an internal matter." Id. 525:6. Gamel agreed that, with no public hearing, the County simply told Schneider and Hardesty they no longer had a vested right. RT 525:10-15. Gamel confirmed the County "did not give them any advance notice," explaining "[t]his was our first letter to them regarding that issue." RT 526:19-20.
The jury was therefore entitled to infer that defendants never had any intention of opening a dialogue and that the April 2, 2009 letter operated as a deprivation of plaintiffs' vested right to mine without any form of process, much less the process prescribed by Hansen Brothers ,
C. Opportunity to Be Heard
Defendants contend plaintiffs had sufficient opportunity to be heard at Board of Supervisors hearings in 2010. Renewed JMOL Mot. at 30-36. But this argument is unavailing because those hearings pre-supposed plaintiffs' lack of a vested right to mine at the SHM tract.
Substantial evidence permitted the jury to conclude that the Board of Supervisors hearings in 2010 did not involve a vested rights determination. For instance, when asked whether the Board in September 2010 "affirmed the vested rights of the Schneider Historic Mine," Gamel testified, "That was not the issue before the Board of Supervisors." RT 2081:9-11. Similarly, Tammy Derby testified that the hearings before the Board and BZA concerned notices of alleged zoning violations, not reaffirmation of the vested right. RT 2257:14-19. Defendant Dickinson testified that the 2010 appeal to the Board was about a violation of the zoning code and "was not focused or directed to whatever vested right there may have been." RT 1214:8-24. Additionally, Cindy Storelli testified that if one needs a conditional use permit, one by definition is not vested. RT 999:12-19. In the course of the hearings, Jay Schneider "asked more than once why the board would not deal with the issue of" the vested right. RT 1495:6-10 (Schneider Test.). In response to his questions, "They would say things like, you just lost it. They would say things-Mr. Dickinson would say things like, I don't know if you had that vested right. The same one he voted for....The different staff members would have different reasons to say we're not recognizing it. You lost it." Id. 1495:11-19. And "all of the hearings...based on...alleged zoning violations" followed because of the County's position that the vested right it had recognized in 1994 and reaffirmed in 2002 no longer existed. Id. 1498:4-13. This evidence permitted the jury to infer that the Board of Supervisors hearings did not address at all plaintiffs' vested rights. Thus, these hearings could not serve as an opportunity to be heard as required to satisfy due process and Calvert .
Substantial evidence from the County hearing transcripts themselves supports a jury finding that the 2010 hearings did not provide post-deprivation process addressing the County's vested right determination. Supervisor Notolli and County counsel clarified the September 14, 2010 hearing was "not on a vested right determination...just on whether a zoning code violation" occurred," and County counsel informed the Board of Supervisors that Schneider would need to "go across the street to the courts" to argue the vested right determination. JX483 at 69:14-70:23. County counsel also informed the BZA during its hearings that the vested rights determination was not at issue there: "That Reclamation Plan and that issue of what is vested pursuant to SMARA was decided at the time that the current Reclamation Plan was approved by the Board of Supervisors in 2002." PX568 at 145:21-24. Despite this staff report and the transcripts of past proceedings, defendant Dickinson stated in the hearings his view that the vested right simply did not exist. E.g. , JX483-101:17. Although plaintiffs presented some discussion at the hearings through counsel about vested rights and the effect of HansenBrothers , (e.g. PX 568 at 17-18, 100-02, 140, 170, 418), their counsel's statements were not considered on the merits. The court does not find the clear weight of the evidence is against a jury finding that the 2010 hearings did *1049not provide a form of post-deprivation process addressing the County's deprivation of plaintiffs' vested right to mine.
Evidence from the hearing transcripts themselves also supports a finding that plaintiffs did not have an opportunity to be heard in other ways during these hearings. See, e.g. , PX 568 at 364-367 (Board of Supervisors voting without permitting testimony from plaintiffs); see also RT 1341:16-1342:20 (Schneider Test.); RT 1344:11-1345:2 (Schneider testimony that his attorneys were denied opportunities to cross-examine other witnesses or ask their own witnesses questions at a hearing); RT 1450:19-23 (Schneider testimony that they were not allowed to answer the County's argument). At other times, evidence showed plaintiffs did not have access to notice of the charges or relevant documentary evidence. See, e.g. , RT 811:1-3, 811:17-812:4 (Carl Simpson, code enforcement official, testifying Schneider was unable to obtain file underlying a violation notice despite other cases having such a file); JX289 at 12:21-23; see also JX289 at 13:19-14:2; JX 469 at 8:10-21 (Dickinson stating "all those things in the record..will be made available to you" when they were not available at that time to plaintiffs). The jury therefore had substantial evidence to infer plaintiffs were denied procedural due process rights throughout the 2010 hearings, and the clear weight of the evidence is not against such a finding.
D. Remedy
1. Waiver
According to plaintiffs, defendants waived argument as to the appropriate remedy for a procedural due process violation because they "conceded that a procedural due process violation can support an award for compensatory 'damages for the actual injury occasioned by the violation of plaintiffs' right to due process.' " Renewed JMOL Opp'n at 64 (citing ECF No. 443 at 13, 16). However, defendants expressly asserted "[e]ven if plaintiffs were not provided due process, the remedy is for plaintiffs to be provided the process they were due." ECF No. 443 at 13, 16. Defendants have therefore preserved their argument as to the appropriate remedy for a procedural due process violation here.
2. Appropriate Remedy
Defendants contend the remedy for a procedural due process violation is to order the process due, not to present the case to the jury for an award of damages. Renewed JMOL Mot. at 48-49. But the Supreme Court authority defendants cite underscores that nominal damages are a correct result, if not the automatic minimum, when a plaintiff proves denial of procedural due process but not actual injury resulting from the procedural denial itself. Carey ,
V. FIRST AMENDMENT RETALIATION
Defendants contend "undisputed evidence shows that the demand for [a] greater *1050financial assurance [from plaintiffs to fund reclamation at their mining operation] was the result of a process that had begun almost two years before" the Schneider plaintiffs first brought this case. Renewed JMOL Mot. at 56. Defendant asserts that process was based on inspections indicating plaintiffs "had substantially deviated from the SHM reclamation plan."
A First Amendment retaliation claim has three elements: (1) plaintiff was engaged in protected activity; (2) defendant's actions injured plaintiff in a way that would chill a person of ordinary firmness from further protected activities; and (3) defendant's actions were a response to plaintiff's exercise of constitutionally protected conduct. Corales v. Bennett,
Substantial evidence supported the jury's finding that the County took action against the Schneider Plaintiffs in response to the plaintiffs' filing suit, and that the action came in the form of dramatically increasing a Financial Assurance Cost Estimate (FACE) that plaintiffs would need to provide to maintain their mining activity. The FACE for SHM was historically low until June 10, 2011, when it briefly was increased from $164,223 to $830,490 before being reduced again to $177,942 in February 2012. Compare PX568 at 165:9, and JX463 with JX559 at 3, and JX 589 at 7. Specifically, the BZA lowered the FACE back to historic levels after a BZA hearing on December 21, 2011, at which the County presented testimony from its consulting geologist, although plaintiffs were not given a chance to present their case. Compare PX568 at 309:21-310:3, 303:23-306:5, with id. at 364:19-365:10. Nonetheless, after the December 2011 hearing, the BZA set the FACE at $177,942 as adequate to reclaim the mine based on its order to fill mine pits to no more than 30 feet deep. PX568 at 87:2-9, 382:10; JX 589 at 7. Defendants' consulting geologist even suggested plaintiffs might receive some money back at their next inspection. PX568 at 401:11.
But the FACE dramatically increased after the Schneider plaintiffs filed suit on September 27, 2012. Despite defendants' delivering a letter on October 9, 2012 to the Schneiders notifying them their required FACE deposit of $177,942 was final and approved (JX604 at 41; JX 605 at 9), defendants conducted an annual inspection of the mine the next day. JX605. Defendants then issued an inspection report increasing the FACE deposit to $8,817,074 or in the alternative $901,336 if the plaintiffs filled their mine pits with fill from the SHM property itself. JX604; JX 605 at 21. The jury heard testimony from Schneider that even the $901,336 alternative would *1051have involved using "several million dollars of [their] stockpile material." RT 1338:18-21.
Substantial evidence provided support for the jury's inference that the increase in the FACE was not justified. Although the October 2012 inspection report states the BZA "ruled that final reclamation of the pit area would require the pits to be [completely] backfilled," JX 605 at 18, the BZA actually had ordered the pits filled to 30 feet or less. JX589 at 7. Additionally, defendants' consulting geologist testified at trial that the SHM reclamation plan required only 30-foot pits, RT 2181:18-2182:3 (Bieber Test.), and plaintiffs' consulting engineer testified as well that filling the pits completely was inconsistent with both the reclamation plan and common mining practice. RT 963:1-967:20. Additionally, defendants' consulting geologist testified at trial there had been no change in conditions at the SHM despite the inspection report's stating its ruling was based on "changes in condition" between the 2011 and 2012 inspections of the closed mine. RT 2206:9-10; JX 605 at 21; see also RT 950:11-20 (Olsen testimony that "[b]ecause there hadn't been any mining activities done...the site really hadn't changed.").
Substantial evidence also supported a jury inference that defendants themselves caused the unjustified FACE increase. Defendants approached their consulting geologist and asked him to "determine what the cost would be if we have to import material to bring the site into...substantial conformity to surrounding topography" based on a BZA determination "that the 30-foot does not apply to the depths of the pits." RT 2207:14-2208:2 (Bieber Test.). Yet defendants knew the mine had material on hand to use as fill, and the BZA had not determined the 30-foot standard did not apply. PX568 at 379:3. The consulting geologist testified that, had the County not directed him to calculate the costs of completely refilling pits, he would have continued interpreting the reclamation plan to allow 30-foot deep pits. RT 2210:25 (Bieber Test.).
The clear weight of the evidence here does not run counter to the jury verdict finding a First Amendment violation by the County. Although defendant Gamel testified the BZA had ordered the pits needed to be refilled if the reclamation plan was not amended, RT 2090:17-2092:22, a compliance table adopted by that Board on December 12, 2011 mentions only filling pits to 30 feet deep. JX589 at 6-8. Gamel's statements made in his letter of November 28, 2012, which was attached to an inspection report, that the BZA ordered the pits completely filled, JX605, simply are not consistent with the record of the Board's actions in December 2011, at a hearing Gamel attended. PX 568 at 302. Additionally, this evidence, along with the timeline of events cited above, permitted while not requiring the jury to infer that the County intentionally took action against the Schneiders for filing suit.
Defendants' reliance on plaintiffs' refusal to file an amended reclamation plan, Renewed JMOL Mot. at 60-61, does not shift the clear weight of the evidence either. First, an amended reclamation plan is needed only where there is a substantial deviation from the previously approved reclamation plan.
VI. MANDAMUS AND PRECLUSION
Defendants contend plaintiffs' due process claims are barred as a matter of law for two reasons. First, they say this court must give preclusive effect to the Board of Supervisors' and BZA's determinations. Renewed JMOL Mot. at 50-54. Second, plaintiffs did not first pursue or conclude state-court mandamus actions as required by California Code of Civil Procedure § 1094.5. Renewed JMOL Mot. at 49, 52-53 The court rejects both contentions.
Preclusion law "is, of course, subject to due process limitations." Taylor v. Sturgell ,
Because plaintiffs lacked an adequate opportunity to litigate, the court need not give preclusive effect to the Board of Supervisors' or BZA's decisions. The court has already discussed the evidence on plaintiffs' opportunity to litigate and declines to repeat it here. See supra , at IV.C. In any event, the court instructed the jury that it was not to consider the correctness or incorrectness of the Board of Supervisors' or BZA's determinations. ECF No. 461 at 25. And of course "[a] jury is presumed to follow its instructions." Weeks v. Angelone ,
Even if plaintiffs had a full opportunity to litigate in the Board of Supervisors and BZA hearings, the court does not find any preclusion of plaintiffs' due process claims. As the court has discussed above, the County's deprivation of plaintiffs' vested right to mine occurred without the required Calvert hearing, and the subsequent 2010 hearings did not permit plaintiffs to put defendants' deprivation at issue. See supra , at IV.B-C. For this same reason, defendants' reliance on California Code of Civil Procedure § 1094.5 fails. See Embury v. King ,
VII. REMAINING ISSUES
A. Inconsistent Verdicts
Defendants argue a new trial must be granted because the jury verdicts are inconsistent. New Trial Mot. at 14-15. Defendants cite Jury Instruction 22, which addressed damages for procedural due process violations and explained "only nominal damages are recoverable for a deprivation of a property interest determined to be otherwise justified." JI 22. According to defendants, because the jury awarded nominal damages for a violation of procedural due process, the jury necessarily determined the deprivation was "otherwise justified." And because the procedural due process violation was otherwise *1053justified, the jury's verdict regarding procedural due process thus conflicted with the jury's verdict finding a substantive due process violation based on an "arbitrary" violation of plaintiffs' liberty or property interests. New Trial Mot. at 15 ("Thus, on the procedural due process claim, the Jury found that the deprivation of Plaintiffs' property interest was justified, and in the substantive due process claim, the Jury found the deprivation of Plaintiffs' property interest was unjustified, in that it was arbitrary. These two verdicts are inconsistent, and cannot be reconciled.").
The court has a duty to reconcile the jury's special verdict responses on any reasonable theory consistent with the evidence. Pierce v. S. Pacific Transp. Co. ,
Upon careful review, the court finds the record provides a reasonable interpretation for the jury's actions: the jury could have found plaintiffs were unjustifiably deprived of their protected interests in violation of procedural due process, the unjustified deprivation did not proximately cause them actual damages, but defendants' subsequent conduct violating their substantive due process rights did. Indeed, that is what plaintiffs asserted in closing argument. RT 2493:5-24 (asking only for "nominal damages" after asserting that procedural due process "is not the claim we believe all of the damages came from, but the county has to be called for that. They have to know what they did was wrong."). Plaintiffs asserted they believed both substantive and procedural due process rights were violated, one "carried enormous consequences," and "that the core issue in this case is substantive due process." RT 2466:8-9, 2496:21-22. When discussing substantive due process damages, plaintiffs asserted "the county refused to recognize the vested right, it shut the mine down." RT 2498:3-4. This view, which takes account of the jury instructions as a complete package, makes the two verdicts consistent, and so they must be resolved this way. Duk ,
B. Immunity
1. Absolute Immunity
Defendant Dickinson contends he is entitled to absolute immunity for his legislative acts and qualified immunity for his executive acts. Renewed JMOL Mot. at 64.
Courts in the Ninth Circuit examine four factors to determine whether an act may qualify for legislative immunity: (1) "whether the act involves ad hoc decisionmaking, or the formulation of policy"; (2) "whether the act applies to a few individuals, or to the public at large"; (3) "whether the act is 'formally legislative [in] in character' "; and (4) "whether it bears *1054'all the hallmarks of traditional legislation.' " Bechard v. Rappold ,
In Kaahumanu v. Cty. of Maui ,
Like the council's decision in Kaahumanu , defendant Dickinson's voting decisions in this case are not entitled to legislative immunity: they were ad hoc, they affected the Hardestys and the Schneiders as individuals, and they were based on the particular circumstances involving the SHM. Thus, Dickinson is not entitled to absolute immunity.
2. Qualified Immunity
Defendants also contend they are entitled to qualified immunity. As to Dickinson, defendants contend "[p]laintiffs offered no evidence that he acted in bad faith or with the knowing intention to violate their constitutional rights." Renewed JMOL Mot. at 65. As to defendants Sherry and Gamel, defendants contend "there is no evidence" that these defendants "violated any constitutional rights of the [p]laintiffs." Id. at 62-63. In part, defendants contend Sherry and Gamel could not violate substantive due process because these defendants "did not make any final determination regarding either vested rights or the requirement for a conditional use permit and a rezone." Id. at 63 (original emphasis). Defendants also contend plaintiff's due process claims "do not implicate clearly established constitutional rights of which a reasonable person would have known." Renewed JMOL Mot. at 63.
a) Standard
Qualified immunity "protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Pearson v. Callahan ,
A right is "clearly established," if under case law existing at the time of the conduct at issue, a reasonable official would have understood that what he is doing violates that right. Mullenix v. Luna , --- U.S. ----,
b) Clearly Established Law
Here, plaintiffs' constitutional rights were clearly established at the time of the alleged misconduct, which began in 2009. California Public Resources Code § 2776(a) has been in place since 1975 and in its current form since January 1, 2007. See Stats. 1975, c. 1131, p. 2793, § 11; Stats. 2006, c. 538 (S.B. 1852), § 560. The Hansen Brothers decision was decided in 1996.
Additionally, at least since 1990, it has been clearly established in this Circuit that action by government officials may be found to be arbitrary and irrational when it "was motivated, not by legitimate regulatory concerns, but by political pressure" or an improper motivation. Del Monte Dunes ,
c) Dickinson
Defendants contend "[p]laintiffs offered no evidence that [Dickinson] acted in bad faith or with the knowing intention to violate their constitutional rights." Renewed JMOL Mot. at 65. But this is not the test for qualified immunity. Because clearly established law existed at the time of the violation of plaintiffs' substantive due process rights, the court need only address whether or not Dickinson participated in the violation the jury found.
Substantial evidence supported the conclusion Dickinson engaged in affirmative acts causing deprivation of plaintiffs' substantive due process rights-namely, the deprivation of their vested right to mine. See Lacey v. Maricopa Cty. ,
d) Sherry and Gamel
Defendants contend "there is no evidence" that Sherry or Gamel "violated any constitutional rights of the [p]laintiffs." Id. at 62-63. In part, defendants contend Sherry and Gamel could not violate substantive due process rights because these defendants "did not make any final determination regarding either vested rights or the requirement for a conditional use permit and a rezone." Id. at 63 (original emphasis).
First, the court notes Sherry and Gamel would not be entitled to qualified immunity for acts in their official capacity, which qualify as acts of the County. Owen v. City of Independence, Mo. ,
Regardless, both Sherry and Gamel engaged in affirmative acts that the jury could find caused a deprivation of plaintiffs' substantive due process rights. For instance, Sherry transmitted to plaintiffs the April 2009 letter, which was drafted by Gamel and copied to Dickinson. JX287; JX288. Gamel communicated via email with Teichert lawyer Wheatley about SHM two weeks before the April 2, 2009 letter was issued, and Gamel met with Wheatley a week before sending the e-mail. JX275; 649:12-650:10. Gamel had also responded to a complaint by Teichert about the SHM operating without permits under vested rights by stating to Teichert, "We will see what we can do." JX143. Gamel then provided updates to Teichert, including in a "Teichert goodies" email to Teichert's John Lane. PX676. From this substantial evidence, the jury was permitted to infer that Sherry and Gamel's actions in communicating with Dickinson and Teichert about SHM, and in issuing the letter to plaintiffs declaring plaintiffs' mining was "not protected by [plaintiffs'] vested right," caused the deprivation of plaintiffs' vested right to mine. To the extent a factual dispute remained as to the parties' motives, a threshold resolution of that dispute *1057remained an appropriate task of the jury in the context of a claim of qualified immunity. See Lolli v. County of Orange ,
C. Punitive Damages
Defendants argue the punitive damages awarded against the individual defendants are excessive and a new trial must be granted. New Trial Mot. 11-13. Defendants' argument lacks merit.
At hearing, defendants conceded excessive damages "would have to be reserved for [their] Rule 59 motion" and was "not a basis for [their] Rule 50(b) motion...." Hr'g Tr. at 46:9-21. The court therefore addresses defendants' excessive damages claims under Rule 59 only.
When reviewing a punitive damages award for constitutional excessiveness a court should "consider three guideposts: (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases." State Farm Mut. Auto. Ins. Co. v. Campbell ,
Here, the jury awarded punitive damages against Dickinson of $25,000, Gamel of $1,000,000 and Sherry of $250,000, all to Schneider plaintiffs. ECF No. 469 at 7-8. The jury also awarded $500,00 in punitive damages against Sherry to Hardesty plaintiffs, for a total of $750,000 in punitive damages awarded against Sherry.
Substantial evidence permitted the jury to infer a significant degree of reprehensibility of defendants' misconduct. First, as previously discussed, ample evidence shows defendants communicating and coordinating with Teichert about the investigation of SHM's vested right. E.g. , JX363; JX392; JX487; JX507. Campaign reporting records show Dickinson's campaign fund received a contribution the day before his vote to close SHM, and Teichert agreed to help fund the County's aggregate enforcement program the day after that hearing. RT 1231:15-24, 1232:9-1233:13 (Teichert Test.). Gamel authored the April 2009 letter, and Sherry signed it, declaring plaintiffs' mining was "not protected by [plaintiffs'] vested right." JX287. Sherry signed this letter despite acknowledging the County never told plaintiffs they could scale back their mining operation to some "original" vested right. RT 714:17-20. Sherry also signed this letter apparently without understanding the maps attached to the 2002 reclamation plan. See RT 701:6-704:20 (testifying he "can't tell" and did not "know what the colors mean" in reference to maps with legends indicating estimates as to where mining likely will occur in the next 20, 40, and 100 years). And Gamel testified to the County's unilateral determination without a hearing. RT 524:16-18, 525:6. The sum total of this conduct resulted in the closure of SHM and plaintiffs' loss of livelihood. This evidence supports a jury finding that defendants' conduct involved targets who "had financial vulnerability," involved "repeated actions," was "the result of intentional malice, trickery, or deceit," or involved a "callous indifference to the *1058constitutional rights of others." State Farm ,
Examining the disparity between the actual harm suffered by plaintiffs and the punitive damages awarded reveals the punitive damages were not constitutionally excessive. The largest multiplier here is 3.33 percent-the value of Gamel's punitive damages award divided by the substantive due process damages awarded to Schneider plaintiffs. The remaining punitive damages awards as to each defendant, when divided by their respective compensatory damages awards, do not reach even a single-digit multiplier. See State Farm ,
The court finds the punitive damages awarded here were not excessive as to any defendant, given the applicable legal standards.
D. Williamson Act Claim
Defendants also contend the court must enter judgment as a matter of law as to a Williamson Act claim. Renewed JMOL Mot. at 72-74. But plaintiffs made no such claim or any related "disguised breach of contract claim," Renewed JMOL Mot. at 72, and no claim of this kind was before the jury. See ECF Nos. 74 (Second Amended Complaint), 461 (final jury instructions). Only claims for violations of procedural due process, substantive due process, and right to petition the government were submitted to the jury. ECF No. 461 at 15, 21-24, 26-27 (final jury instructions 14, 18, 19, 21). The court DENIES defendants' request for renewed judgment as a matter of law on a non-existent claim.
VIII. CONCLUSION
For the reasons above, the court DENIES defendants' motions for renewed judgment as a matter of law and for a new trial. This order resolves ECF Nos. 537 and 538.
IT IS SO ORDERED.
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