1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 VILLAGE COMMUNITIES, LLC, et al., Case No.: 20-cv-01896-AJB-DEB 10 Plaintiffs, ORDER GRANTING SUMMARY 11 v. JUDGMENT 12 COUNTY OF SAN DIEGO; BOARD OF SUPERVISORS OF COUNTY OF 13 SAN DIEGO; and DOES 1–20, 14 Defendants. 15 16 17 18 19 On April 18, 2023, the Court ordered supplemental briefing as to Plaintiffs’ takings 20 claim as the Court sua sponte found no evidence in support of their remaining takings 21 claim. (Doc. No. 123.) Plaintiffs filed their supplemental brief on May 1, 2023, (Doc. No. 22 125), to which the County responded on May 8, 2023, (Doc. No. 127). The Court finds this 23 matter suitable for determination on the papers and without oral argument in accordance 24 with Local Civil Rule 7.1.d.1. After considering the papers submitted, supporting 25 documentation, the evidence on the record, and applicable law, the Court GRANTS 26 summary judgment, sua sponte, in Defendants’ favor as Plaintiffs have failed to submit 27 evidence of a violation of the takings clause under the Fifth Amendment. 28 /// 1 Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, “[a]fter giving notice 2 and a reasonable time to respond, the court may . . . consider summary judgment on its 3 own after identifying for the parties material facts that may not be genuinely in dispute.” 4 Fed. R. Civ. P. 56(f)(3); see also Celotex Corp. v. Catrett, 477 U.S. 317, 326 (noting a 5 district court’s power to enter sua sponte motions under Rule 56). The Ninth Circuit’s 6 guidance on Rule 56’s notice requirements states, “[b]efore sua sponte summary judgment 7 against a party is proper, that party must be given reasonable notice that the sufficiency of 8 his or her claim will be in issue: Reasonable notice implies adequate time to develop the 9 facts on which the litigant will depend to oppose summary judgment.” Albino v. Baca, 747 10 F.3d 1162, 1176 (9th Cir. 2014) (internal quotation marks and citation omitted). 11 On July 1, 2022, the Court denied Plaintiffs’ motion for partial summary judgment 12 and granted in part and denied in part Defendants’ motion for summary judgment. (Doc. 13 No. 55.) While Plaintiffs’ takings claim remained in this case, the Court, sua sponte, issued 14 an Order Requesting Supplemental Briefing as to whether Plaintiffs have evidence in 15 support of their takings claim. (Doc. No. 123.) 16 Plaintiffs argue evidence of a taking exists under the Fifth Amendment because 17 (1) the easement condition was an extortionate demand for money, burdening their Fifth 18 Amendment rights; (2) the demand for assignment/conveyance of easement constitutes an 19 extortionate demand for applicant’s property; and (3) the easement condition was a taking 20 of plaintiffs’ right to process the permit application. (Doc. No. 125 at 8, 11–17.) Plaintiffs 21 additionally assert they have evidence of damages because Section 1983 provides a federal 22 damages remedy for Koontz project denial/failed condition, wherein the measure of 23 damages should be the value lost as a result of the imposition of the unconstitutional 24 condition. (Id. at 18–21.) The County responds the Final Pre-Trial Conference Order does 25 not claim a taking from either a “refusal to process” the Project or from a plan to assign the 26 fuel modification easements if Plaintiffs first obtained them. (Doc. No. 127 at 9–10, 13– 27 14.) 28 /// 1 I. THE FINAL PRETRIAL CONFERENCE ORDER CONTROLS 2 The Ninth Circuit has “consistently held that issues not preserved in the pretrial 3 order” are “eliminated from the action.” S. Cal. Retail Clerks Union & Food Emps. Joint 4 Pension Trust Fund v. Bjorklund, 728 F.2d 1262, 1264 (citing U.S. v. Joyce, 511 F.2d 1127, 5 1130 n.1 (9th Cir. 1975)). “The very purpose of the pretrial order is to narrow the scope of 6 the suit to those issues that are actually disputed and, thus, to eliminate other would-be 7 issues that appear in other portions of the record of the case.” Id. Once signed, “[a] pretrial 8 order has the effect of amending the pleadings and controls the subsequent course of action 9 of the litigation.” Nw. Acceptance Corp. v. Lynwood Equip., Inc., 841 F.2d 918, 924 (9th 10 Cir. 1988) (internal quotations and citations omitted). However, the pretrial conference 11 order need only implicitly include a theory of damages in order to preserve an issue for 12 trial. Apple, Inc. v. Samsung Elecs. Co. Ltd., 2014 WL 6687122, at *3-4 (N.D. Cal. Nov. 13 25, 2014). 14 Here, the Pre-Trial Order (“PTO”) makes no reference to Plaintiffs’ takings claim 15 based on either (1) an interference with Plaintiffs’ right to process its permit application or 16 (2) an impermissible demand for an assignment/conveyance of the easements. (See 17 generally Doc. No. 86.) Rather, the PTO explicitly states: 18 Plaintiffs contend that the County Board of Supervisors denied the project because of Plaintiffs’ failure to acquire the 50 offsite fuel modification 19 easements; and that the County Board’s easement condition required Plaintiffs 20 to expend money in exchange for obtaining the easements and as such, the condition resulted in an unconstitutional taking of property or money under 21 the Takings Clause of the Fifth Amendment to the Constitution. 22 23 (Id. at 4.) Plaintiffs had multiple opportunities to include their additional theories in their 24 PTO but chose to pursue their claim based solely on the above theory. The purpose of the 25 pretrial order is to narrow the scope of issues at trial, and a party waives the issues not 26 raised in the pretrial order. As such, Plaintiffs’ claims for a taking based on (1) an 27 interference with Plaintiffs’ right to process its permit application or (2) an impermissible 28 demand for an assignment/conveyance of the easements are barred. 1 II. PLAINTIFFS’ TAKINGS CLAIM FAILS 2 Plaintiffs assert the “County’s imposition of the easement condition was a 3 constitutionally cognizable injury under Koontz [v. St. Johns River Water Management 4 District, 570 U.S. 595 (2013)] because the condition was an extortionate demand for 5 money, which lacked the nexus and rough proportionality required under the 6 unconstitutional conditions doctrine.” (Doc. No. 125 at 11.) As stated in Koontz, 7 “[e]xtortionate demands for property in the land-use permitting context run afoul of the 8 Takings Clause not because they take property but because they impermissibly burden the 9 right not to have property taken without just compensation.” 570 U.S. at 607. The Ninth 10 Circuit has held that the “starting point to [the] analysis of exactions claims is . . . whether 11 the substance of the condition . . . would be a taking independent of the conditioned 12 benefit.” Ballinger v. City of Oakland, 24 F.4th 1287, 1300 (9th Cir. 2022) (internal 13 quotation marks omitted) (citing Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2073 14 (2021); and Koontz, 570 U.S. at 612). 15 First, Defendants’ argument that Plaintiffs’ takings claim fails because “it is 16 undisputed that Defendants never promised Project approval even if Plaintiffs had obtained 17 the easements” is unavailing. (Doc. No. 127 at 14.) In the PTO, Defendants do not raise 18 this argument as a defense to Plaintiffs’ claim. (See Doc. No. 86 at 4–7); S. Cal. Retail 19 Clerks Union, 728 F.2d at 1264. As such, this defense is barred.
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 VILLAGE COMMUNITIES, LLC, et al., Case No.: 20-cv-01896-AJB-DEB 10 Plaintiffs, ORDER GRANTING SUMMARY 11 v. JUDGMENT 12 COUNTY OF SAN DIEGO; BOARD OF SUPERVISORS OF COUNTY OF 13 SAN DIEGO; and DOES 1–20, 14 Defendants. 15 16 17 18 19 On April 18, 2023, the Court ordered supplemental briefing as to Plaintiffs’ takings 20 claim as the Court sua sponte found no evidence in support of their remaining takings 21 claim. (Doc. No. 123.) Plaintiffs filed their supplemental brief on May 1, 2023, (Doc. No. 22 125), to which the County responded on May 8, 2023, (Doc. No. 127). The Court finds this 23 matter suitable for determination on the papers and without oral argument in accordance 24 with Local Civil Rule 7.1.d.1. After considering the papers submitted, supporting 25 documentation, the evidence on the record, and applicable law, the Court GRANTS 26 summary judgment, sua sponte, in Defendants’ favor as Plaintiffs have failed to submit 27 evidence of a violation of the takings clause under the Fifth Amendment. 28 /// 1 Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, “[a]fter giving notice 2 and a reasonable time to respond, the court may . . . consider summary judgment on its 3 own after identifying for the parties material facts that may not be genuinely in dispute.” 4 Fed. R. Civ. P. 56(f)(3); see also Celotex Corp. v. Catrett, 477 U.S. 317, 326 (noting a 5 district court’s power to enter sua sponte motions under Rule 56). The Ninth Circuit’s 6 guidance on Rule 56’s notice requirements states, “[b]efore sua sponte summary judgment 7 against a party is proper, that party must be given reasonable notice that the sufficiency of 8 his or her claim will be in issue: Reasonable notice implies adequate time to develop the 9 facts on which the litigant will depend to oppose summary judgment.” Albino v. Baca, 747 10 F.3d 1162, 1176 (9th Cir. 2014) (internal quotation marks and citation omitted). 11 On July 1, 2022, the Court denied Plaintiffs’ motion for partial summary judgment 12 and granted in part and denied in part Defendants’ motion for summary judgment. (Doc. 13 No. 55.) While Plaintiffs’ takings claim remained in this case, the Court, sua sponte, issued 14 an Order Requesting Supplemental Briefing as to whether Plaintiffs have evidence in 15 support of their takings claim. (Doc. No. 123.) 16 Plaintiffs argue evidence of a taking exists under the Fifth Amendment because 17 (1) the easement condition was an extortionate demand for money, burdening their Fifth 18 Amendment rights; (2) the demand for assignment/conveyance of easement constitutes an 19 extortionate demand for applicant’s property; and (3) the easement condition was a taking 20 of plaintiffs’ right to process the permit application. (Doc. No. 125 at 8, 11–17.) Plaintiffs 21 additionally assert they have evidence of damages because Section 1983 provides a federal 22 damages remedy for Koontz project denial/failed condition, wherein the measure of 23 damages should be the value lost as a result of the imposition of the unconstitutional 24 condition. (Id. at 18–21.) The County responds the Final Pre-Trial Conference Order does 25 not claim a taking from either a “refusal to process” the Project or from a plan to assign the 26 fuel modification easements if Plaintiffs first obtained them. (Doc. No. 127 at 9–10, 13– 27 14.) 28 /// 1 I. THE FINAL PRETRIAL CONFERENCE ORDER CONTROLS 2 The Ninth Circuit has “consistently held that issues not preserved in the pretrial 3 order” are “eliminated from the action.” S. Cal. Retail Clerks Union & Food Emps. Joint 4 Pension Trust Fund v. Bjorklund, 728 F.2d 1262, 1264 (citing U.S. v. Joyce, 511 F.2d 1127, 5 1130 n.1 (9th Cir. 1975)). “The very purpose of the pretrial order is to narrow the scope of 6 the suit to those issues that are actually disputed and, thus, to eliminate other would-be 7 issues that appear in other portions of the record of the case.” Id. Once signed, “[a] pretrial 8 order has the effect of amending the pleadings and controls the subsequent course of action 9 of the litigation.” Nw. Acceptance Corp. v. Lynwood Equip., Inc., 841 F.2d 918, 924 (9th 10 Cir. 1988) (internal quotations and citations omitted). However, the pretrial conference 11 order need only implicitly include a theory of damages in order to preserve an issue for 12 trial. Apple, Inc. v. Samsung Elecs. Co. Ltd., 2014 WL 6687122, at *3-4 (N.D. Cal. Nov. 13 25, 2014). 14 Here, the Pre-Trial Order (“PTO”) makes no reference to Plaintiffs’ takings claim 15 based on either (1) an interference with Plaintiffs’ right to process its permit application or 16 (2) an impermissible demand for an assignment/conveyance of the easements. (See 17 generally Doc. No. 86.) Rather, the PTO explicitly states: 18 Plaintiffs contend that the County Board of Supervisors denied the project because of Plaintiffs’ failure to acquire the 50 offsite fuel modification 19 easements; and that the County Board’s easement condition required Plaintiffs 20 to expend money in exchange for obtaining the easements and as such, the condition resulted in an unconstitutional taking of property or money under 21 the Takings Clause of the Fifth Amendment to the Constitution. 22 23 (Id. at 4.) Plaintiffs had multiple opportunities to include their additional theories in their 24 PTO but chose to pursue their claim based solely on the above theory. The purpose of the 25 pretrial order is to narrow the scope of issues at trial, and a party waives the issues not 26 raised in the pretrial order. As such, Plaintiffs’ claims for a taking based on (1) an 27 interference with Plaintiffs’ right to process its permit application or (2) an impermissible 28 demand for an assignment/conveyance of the easements are barred. 1 II. PLAINTIFFS’ TAKINGS CLAIM FAILS 2 Plaintiffs assert the “County’s imposition of the easement condition was a 3 constitutionally cognizable injury under Koontz [v. St. Johns River Water Management 4 District, 570 U.S. 595 (2013)] because the condition was an extortionate demand for 5 money, which lacked the nexus and rough proportionality required under the 6 unconstitutional conditions doctrine.” (Doc. No. 125 at 11.) As stated in Koontz, 7 “[e]xtortionate demands for property in the land-use permitting context run afoul of the 8 Takings Clause not because they take property but because they impermissibly burden the 9 right not to have property taken without just compensation.” 570 U.S. at 607. The Ninth 10 Circuit has held that the “starting point to [the] analysis of exactions claims is . . . whether 11 the substance of the condition . . . would be a taking independent of the conditioned 12 benefit.” Ballinger v. City of Oakland, 24 F.4th 1287, 1300 (9th Cir. 2022) (internal 13 quotation marks omitted) (citing Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2073 14 (2021); and Koontz, 570 U.S. at 612). 15 First, Defendants’ argument that Plaintiffs’ takings claim fails because “it is 16 undisputed that Defendants never promised Project approval even if Plaintiffs had obtained 17 the easements” is unavailing. (Doc. No. 127 at 14.) In the PTO, Defendants do not raise 18 this argument as a defense to Plaintiffs’ claim. (See Doc. No. 86 at 4–7); S. Cal. Retail 19 Clerks Union, 728 F.2d at 1264. As such, this defense is barred. 20 Next, Plaintiffs fail to provide evidence that Defendants ever demanded that 21 Plaintiffs pay money for the easements. Although Plaintiffs repeatedly contend that the 22 “County’s easement condition was an extortionate demand for money,” Plaintiffs fail to 23 provide evidence as such. (See Doc. No. 125 at 9, 11.) However, the Court’s Order 24 requesting supplemental briefing on this issue explicitly instructed Plaintiffs to explain 25 “what evidence of a taking exists under Koontz . . . .” (Doc. No. 123.) Plaintiffs have not 26 done so. Plaintiffs’ supplemental brief is silent as to what evidence exists of an 27 “extortionate demand for money,” and while Plaintiffs’ attached exhibits indicate that 28 money could have been requested in exchange for easements, they have failed to show that 1 ||any demand was actually made. (See Deposition of Mark Wardlaw, Doc. No. 125-1 at 28 2 || (“However [Plaintiffs] chose to acquire the easements was up to them. Whether it was for 3 ||a fee, whether it was for some mutual benefit, that was not - - it’s really not germane to the 4 ||requirement of the easement.”); Deposition of David Nissen, id. at 30-32 (stating West 5 ||Lilac Road property owners could “conceivably” request money in return for the 6 || casement); Deposition of Mark Slovick, Doc. No. 125-1 at 35 (stating the county easement 7 || form contemplated that Plaintiffs would pay money to the property owners in exchange for 8 || the grant of easements); Deposition of David Sibbet, id. at 39 (affirming that it was possible 9 || that “one or more of [the] property owners could literally extort money from the landowner 10 || that needs that easement’).) 11 Based on the foregoing, the Court finds no taking has occurred. Plaintiffs fail to 12 demonstrate that Defendants’ request for easements “would be a taking independent of the 13 ||conditioned benefit,” as Plaintiffs do not show they were required to pay money in 14 || exchange for the easements. Accordingly, the Court sua sponte grants summary judgment 15 ||in Defendants’ favor. Fed. R. Civ. P. 56(f)(3). The Motions in Limine filed in the case are 16 || herewith denied as moot. 17 18 IT IS SO ORDERED. 19 Dated: May 15, 2023 © Ser : 20 Hon. Anthony J.@Battaglia 21 United States District Judge 22 23 24 25 26 27 28