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P. RANDOLPH FINCH JR., SBN 185004
EMAIL: pfinch@ftblaw.com
1 ANDREA L. PETRAY, SBN 240085 Exempt from Filing Fees
EMAIL: apetray@ftblaw.com Government Code section 6103
2 THOMAS E. DIAMOND, SBN 323333
EMAIL: tdiamond@ftblaw.com
3 FINCH, THORNTON & BAIRD, LLP
ATTORNEYS AT LAW
4 4747 EXECUTIVE DRIVE – SUITE 700
SAN DIEGO, CALIFORNIA 92121 -3107
5 TELEPHONE: (858) 737-3100
FACSIMILE: (858) 737-3101
6 Attorneys for Defendant County of Kern
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF KERN
10 METROPOLITAN TRAFFIC DIVISION
11 JEAN-PIERRE BIANE, individually and CASE NO: BCV-22-103359 (TMS)
doing business as JP BIANE FARMS and in (Related Case Nos.: BCV-23-102060 (TMS); and
12 his capacity as Trustee of the J.P. BIANE BCV-23-102113 (TMS))
LIVING TRUST DATED NOVEMBER 24,
13 2021, COUNTY OF KERN’S NOTICE OF
DEMURRER AND DEMURRER TO JEAN-
14 Plaintiff, PIERRE BIANE’S SECOND AMENDED
VERIFIED PETITION FOR WRIT OF
15 MANDATE AND COMPLAINT
v.
16 Assigned to:
COUNTY OF KERN; and Hon. T. Mark Smith, Div. T-2
17 DOES 1 through 50, inclusive,
Date: February 22, 2024
18 Defendants. Time: 8:30 a.m.
Div.: T-2
19
Complaint Filed: December 13, 2022
20 Trial Date: Not Set
21 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
22 PLEASE TAKE NOTICE that on February 22, 2024, at 8:30 a.m., or as soon thereafter
23 as this matter may be heard in Department T-2 of the above-entitled court, located at 3131
24 Arrow Street, Bakersfield, California 93308, defendant County of Kern (“County”) will, and
25 hereby does, pursuant to Code of Civil Procedure section 430.10, demurrer to plaintiff Jean-
26 Pierre Biane, dba JP Biane Farms’ (“Biane”) second amended verified petition for writ of
27 mandate and complaint (“SAC”) as follows:
28 / / / / /
COUNTY OF KERN’S NOTICE OF DEMURRER AND DEMURRER TO JEAN-PIERRE BIANE’S SECOND
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 A. Demurrer to the Second Cause of Action: Writ of Mandamus
2 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the
3 basis of the second cause of action fails to allege facts sufficient to state a cause of action for a
4 writ of mandamus because Biane has not alleged a ministerial duty.
5 B. Demurrer to the Second Cause of Action: Writ of Mandamus
6 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the
7 basis of the second cause of action fails to allege facts sufficient to state a cause of action for a
8 writ of mandamus because the County cannot be enjoined via mandamus to enforce the law in
9 any particular manner.
10 C. Demurrer to the Second Cause of Action: Writ of Mandamus
11 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the
12 basis of the second cause of action fails to allege facts sufficient to state a cause of action for a
13 writ of mandamus because Biane has a plain, speedy, and adequate remedy in the ordinary
14 course of law pursuant to Code of Civil Procedure section 1086.
15 D. Demurrer to the Third Cause of Action: Violation of Civil Rights Act
16 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the
17 basis of the third cause of action fails to allege facts sufficient to state a cause of action for a
18 violation of the Civil Rights Act because Biane relies on a Mitigation Measure inapplicable on
19 its face.
20 E. Demurrer to the Third Cause of Action: Violation of Civil Rights Act
21 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivisions (a) and (e),
22 on the basis of the third cause of action fails to allege facts sufficient to state a cause of action
23 for a violation of the Civil Rights Act, and the court lacks jurisdiction, because the County is
24 immune from liability by virtue of the 11th Amendment as the County is acting as an arm of
25 the State.
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FINCH, THORNTON & 2
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 COUNTY OF KERN’S NOTICE OF DEMURRER AND DEMURRER TO JEAN-PIERRE BIANE’S SECOND
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 F. Demurrer to the Third Cause of Action: Violation of Civil Rights Act
2 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the
3 basis of the third cause of action fails to allege facts sufficient to state a cause of action for a
4 violation of the Civil Rights Act because the Biane has not alleged state action.
5 G. Demurrer to the Fourth Cause of Action: Inverse Condemnation
6 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the
7 basis of the fourth cause of action fails to allege facts sufficient to state a cause of action for
8 inverse condemnation because Biane has not alleged a public use.
9 H. Demurrer to the Fourth Cause of Action: Inverse Condemnation
10 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the
11 basis of the fourth cause of action fails to allege facts sufficient to state a cause of action for
12 inverse condemnation because Biane has not alleged taking of property.
13 I. Demurrer to the Fifth Cause of Action: Declaratory Relief
14 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the
15 basis of the fourth cause of action fails to allege facts sufficient to state a cause of action for
16 declaratory relief because Biane has alleged a proper subject of declaratory relief.
17 J. Demurrer to the Fifth Cause of Action: Declaratory Relief
18 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the
19 basis of the fourth cause of action fails to allege facts sufficient to state a cause of action for
20 declaratory relief because Biane has a plain, speedy, and adequate remedy in the ordinary
21 course of law.
22 The County’s demurrer is based on Code of Civil Procedure section 430.10, this notice
23 of demurrer and demurrer, the concurrently filed memorandum in support, the declaration of
24 Thomas E. Diamond, request for judicial notice, lodgment of authorities, all papers, pleadings,
25 / / / / /
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28
FINCH, THORNTON & 3
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 COUNTY OF KERN’S NOTICE OF DEMURRER AND DEMURRER TO JEAN-PIERRE BIANE’S SECOND
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 proceedings, records, and files in this action, all matters judicially noticeable, and such further
2 oral and documentary evidence that may be presented at the time of hearing on this demurrer.
3 DATE: January 25, 2024 Respectfully submitted,
4 FINCH, THORNTON & BAIRD, LLP
5
6 By:__________________________________
P. RANDOLPH FINCH JR.
7 ANDREA L. PETRAY
THOMAS E. DIAMOND
8 Attorneys for Defendant County of Kern
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FINCH, THORNTON & 4
BAIRD, LLP
4747 Executive
Drive - Suite 700
San Diego, CA 92121 COUNTY OF KERN’S NOTICE OF DEMURRER AND DEMURRER TO JEAN-PIERRE BIANE’S SECOND
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
Preview
P. RANDOLPH FINCH JR., SBN 185004 EMAIL: pfinch@ftblaw.com 1 ANDREA L. PETRAY, SBN 240085 Exempt from Filing Fees EMAIL: apetray@ftblaw.com Government Code section 6103 2 THOMAS E. DIAMOND, SBN 323333 EMAIL: tdiamond@ftblaw.com 3 FINCH, THORNTON & BAIRD, LLP ATTORNEYS AT LAW 4 4747 EXECUTIVE DRIVE – SUITE 700 SAN DIEGO, CALIFORNIA 92121 -3107 5 TELEPHONE: (858) 737-3100 FACSIMILE: (858) 737-3101 6 Attorneys for Defendant County of Kern 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF KERN 10 METROPOLITAN TRAFFIC DIVISION 11 JEAN-PIERRE BIANE, individually and CASE NO: BCV-22-103359 (TMS) doing business as JP BIANE FARMS and in (Related Case Nos.: BCV-23-102060 (TMS); and 12 his capacity as Trustee of the J.P. BIANE BCV-23-102113 (TMS)) LIVING TRUST DATED NOVEMBER 24, 13 2021, COUNTY OF KERN’S NOTICE OF DEMURRER AND DEMURRER TO JEAN- 14 Plaintiff, PIERRE BIANE’S SECOND AMENDED VERIFIED PETITION FOR WRIT OF 15 MANDATE AND COMPLAINT v. 16 Assigned to: COUNTY OF KERN; and Hon. T. Mark Smith, Div. T-2 17 DOES 1 through 50, inclusive, Date: February 22, 2024 18 Defendants. Time: 8:30 a.m. Div.: T-2 19 Complaint Filed: December 13, 2022 20 Trial Date: Not Set 21 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 22 PLEASE TAKE NOTICE that on February 22, 2024, at 8:30 a.m., or as soon thereafter 23 as this matter may be heard in Department T-2 of the above-entitled court, located at 3131 24 Arrow Street, Bakersfield, California 93308, defendant County of Kern (“County”) will, and 25 hereby does, pursuant to Code of Civil Procedure section 430.10, demurrer to plaintiff Jean- 26 Pierre Biane, dba JP Biane Farms’ (“Biane”) second amended verified petition for writ of 27 mandate and complaint (“SAC”) as follows: 28 / / / / / COUNTY OF KERN’S NOTICE OF DEMURRER AND DEMURRER TO JEAN-PIERRE BIANE’S SECOND AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 A. Demurrer to the Second Cause of Action: Writ of Mandamus 2 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the 3 basis of the second cause of action fails to allege facts sufficient to state a cause of action for a 4 writ of mandamus because Biane has not alleged a ministerial duty. 5 B. Demurrer to the Second Cause of Action: Writ of Mandamus 6 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the 7 basis of the second cause of action fails to allege facts sufficient to state a cause of action for a 8 writ of mandamus because the County cannot be enjoined via mandamus to enforce the law in 9 any particular manner. 10 C. Demurrer to the Second Cause of Action: Writ of Mandamus 11 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the 12 basis of the second cause of action fails to allege facts sufficient to state a cause of action for a 13 writ of mandamus because Biane has a plain, speedy, and adequate remedy in the ordinary 14 course of law pursuant to Code of Civil Procedure section 1086. 15 D. Demurrer to the Third Cause of Action: Violation of Civil Rights Act 16 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the 17 basis of the third cause of action fails to allege facts sufficient to state a cause of action for a 18 violation of the Civil Rights Act because Biane relies on a Mitigation Measure inapplicable on 19 its face. 20 E. Demurrer to the Third Cause of Action: Violation of Civil Rights Act 21 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivisions (a) and (e), 22 on the basis of the third cause of action fails to allege facts sufficient to state a cause of action 23 for a violation of the Civil Rights Act, and the court lacks jurisdiction, because the County is 24 immune from liability by virtue of the 11th Amendment as the County is acting as an arm of 25 the State. 26 / / / / / 27 / / / / / 28 FINCH, THORNTON & 2 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 COUNTY OF KERN’S NOTICE OF DEMURRER AND DEMURRER TO JEAN-PIERRE BIANE’S SECOND (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 F. Demurrer to the Third Cause of Action: Violation of Civil Rights Act 2 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the 3 basis of the third cause of action fails to allege facts sufficient to state a cause of action for a 4 violation of the Civil Rights Act because the Biane has not alleged state action. 5 G. Demurrer to the Fourth Cause of Action: Inverse Condemnation 6 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the 7 basis of the fourth cause of action fails to allege facts sufficient to state a cause of action for 8 inverse condemnation because Biane has not alleged a public use. 9 H. Demurrer to the Fourth Cause of Action: Inverse Condemnation 10 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the 11 basis of the fourth cause of action fails to allege facts sufficient to state a cause of action for 12 inverse condemnation because Biane has not alleged taking of property. 13 I. Demurrer to the Fifth Cause of Action: Declaratory Relief 14 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the 15 basis of the fourth cause of action fails to allege facts sufficient to state a cause of action for 16 declaratory relief because Biane has alleged a proper subject of declaratory relief. 17 J. Demurrer to the Fifth Cause of Action: Declaratory Relief 18 Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the 19 basis of the fourth cause of action fails to allege facts sufficient to state a cause of action for 20 declaratory relief because Biane has a plain, speedy, and adequate remedy in the ordinary 21 course of law. 22 The County’s demurrer is based on Code of Civil Procedure section 430.10, this notice 23 of demurrer and demurrer, the concurrently filed memorandum in support, the declaration of 24 Thomas E. Diamond, request for judicial notice, lodgment of authorities, all papers, pleadings, 25 / / / / / 26 / / / / / 27 / / / / / 28 FINCH, THORNTON & 3 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 COUNTY OF KERN’S NOTICE OF DEMURRER AND DEMURRER TO JEAN-PIERRE BIANE’S SECOND (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 proceedings, records, and files in this action, all matters judicially noticeable, and such further 2 oral and documentary evidence that may be presented at the time of hearing on this demurrer. 3 DATE: January 25, 2024 Respectfully submitted, 4 FINCH, THORNTON & BAIRD, LLP 5 6 By:__________________________________ P. RANDOLPH FINCH JR. 7 ANDREA L. PETRAY THOMAS E. DIAMOND 8 Attorneys for Defendant County of Kern 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2206.055/3Q65947.jld 28 FINCH, THORNTON & 4 BAIRD, LLP 4747 Executive Drive - Suite 700 San Diego, CA 92121 COUNTY OF KERN’S NOTICE OF DEMURRER AND DEMURRER TO JEAN-PIERRE BIANE’S SECOND (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT