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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, REPLY IN SUPPORT OF COUNTY OF
KERN’S DEMURRER TO JEAN-PIERRE
14 BIANE’S SECOND AMENDED VERIFIED
Plaintiff, PETITION FOR WRIT OF MANDATE AND
15 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: 9:30 a.m.
Div.: T-2
19
Complaint Filed: December 13, 2022
20 Trial Date: Not Set
21 I
22 INTRODUCTION
23 Biane’s opposition to the County’s demurrer is devoid of any explanation regarding
24 how the Second Amended Verified Petition for Writ of Mandate (“SAC”) corrected the fatal
25 defects the court already found in Biane’s Second and Fifth Causes of Action when it sustained
26 the County’s demurrer to the First Amended Verified Petition for Writ of Mandate (“FAC”).
27 Biane also largely fails to squarely confront many of the arguments raised in the County’s
28 demurrer, opting instead to restate unsupported factual conclusions and failed legal arguments.
REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 The court was correct in its initial analysis, nothing has changed, and the court should again
2 sustain the County’s demurrer, this time without leave to amend given Biane has already failed
3 twice to fashion actionable claims.
4 With regard to his Third Cause of Action, Biane asks the court to simply ignore words
5 unhelpful to its interpretation of the cited mitigation measures in hopes of turning a California
6 Environmental Quality Act (“CEQA”) land use dispute into a federal due process violation.
7 Similarly, to claim his speech rights have been suppressed, Biane asks the court to accept
8 unsupported speculation that County professionals are engaged in a conspiracy with truck
9 drivers to harass Biane. While Biane may believe this to be true, he has not and cannot allege,
10 in a verified complaint, any facts to support such an outlandish theory. Finally, with regard to
11 his Fourth Cause of Action, Biane asks the court to interpret inverse condemnation law to open
12 the floodgates of litigation by concluding street-legal vehicles driving on a public road near a
13 farm arises to a governmental taking.
14 The court should not permit Biane to proceed with these invalid claims which are
15 unsupported by the law or facts which Biane can truthfully allege. Biane has not met his
16 burden of establishing how these claims can be remedied, and thus the demurrer should be
17 sustained without leave to amend.
18 II
19 BIANE CANNOT STATE A CLAIM FOR WRIT
OF MANDATE BASED ON THE CITED ORDINANCES
20
21 The SAC does not satisfy Biane’s burden to establish a clear, present, ministerial duty
22 in the cited ordinances requiring the County to do as Biane demands and shut down Granite’s
23 mine based on the Conditional Use Permit (“CUP”) or Mitigation Monitoring and Reporting
24 Program (“MMRP”). The court previously determined Biane’s Second Cause of Action failed
25 to state a claim and sustained the County’s demurrer.1 Biane failed to remedy the defects
26 1
Biane suggests “Judge Foley acknowledged in her September 2023 ruling, Granite’s performance and the
County’s enforcement of these County-imposed measures is mandatory and critical to ensuring that the Project’s
27 environmental impacts are appropriately addressed and mitigated.” (Oppo., 9:17-21.) Judge Foley made no such
acknowledgment. Other than finding Biane sufficiently pled his First Cause of action, Judge Foley sustained the
28 County’s demurrer as to all other causes of action.
FINCH, THORNTON &
BAIRD, LLP
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4747 Executive
Drive - Suite 700
San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 because Biane is not permitted to substitute his personal preferences for the County’s
2 enforcement authority and allocation of limited resources. Rather, Biane simply added further
3 legal conclusions that a mandatory duty exists and allegations regarding mitigation measures
4 the court already took judicial notice of when sustaining the original demurrer.
5 Recognizing the relied upon ordinances, Chapters 19.100 and 19.104, are replete with
6 discretionary “may” language, which is sensible given limited County enforcement resources,
7 Biane attempts to shift the focus to a statement in the CUP that operations “shall be in
8 substantial conformance with the approved plan.” (Oppo., 9:22-10:10.) In doing so, Biane
9 essentially concedes the ordinances he relies on do not create the required ministerial duty.
10 Regardless, while highlighting the use of “shall” in the CUP, Biane does not grapple with the
11 immediately following phrase “substantial conformance,” which defeats his position.
12 “A ministerial act is one that a public functionary ‘is required to perform in a
13 prescribed manner in obedience to the mandate of legal authority,’ without regard to his or her
14 own judgment or opinion concerning the propriety of such act.” (Monterey Coastkeeper v.
15 Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 19.) The
16 County must determine, using its judgment, whether Granite is operating in “substantial
17 conformity” with the conditions placed on the permit, including the MMRP. The CUP is void
18 of any reference to required, approved, or prohibited haul routes, and the mitigation measure
19 Biane relies on, discussed further below, is inapplicable on its face. Thus, the County correctly
20 exercised its discretionary authority, and Biane cannot usurp that enforcement power to benefit
21 his own personal preferences.
22 Biane also erroneously argues Chapter 19.100.050 requires the County to hold a
23 hearing over this matter. (Oppo., 10:14-21.) Biane neglects to explain for the court that the
24 cited portion of the ordinance applies only after the “planning director determines that a
25 proposed amendment” to an approved reclamation constitutes a “substantial deviation” (e.g.,
26 “increases in the amount of surface area to be disturbed”). (LOA, Ex. 1, Ord. Code §
27 19.100.050.) Biane does not allege Granite has proposed any amendment. Regardless, the
28 review of such an amendment for a “substantial deviation” would again be discretionary.
FINCH, THORNTON &
BAIRD, LLP
3
4747 Executive
Drive - Suite 700
San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 Biane’s opposition also fails to address the clear law that he cannot force the County to
2 take any particular response. Biane admits the County worked with Granite to install signage,
3 but Biane will not be satisfied until the mine is shut down. Biane is not entitled to direct the
4 County’s discretionary oversight authority as he sees fit. If Biane can prove he has been
5 unlawfully damaged by trucks driving by his farm, his remedy is available in a lawsuit for
6 damages.
7 The Second Cause of Action remains functionally identical to the Cause of Action the
8 court previously sustained in response to the County’s last demurrer. The court should again
9 sustain the County’s demurrer. Given the grounds of the County’s demurrer were provided to
10 Biane prior to his FAC, Biane has already amended twice and failed to remedy this defective
11 Cause of Action. Thus, the court should sustain the County’ demurrer without leave to amend.
12 III
13 BIANE CANNOT STATE A CLAIM FOR DECLARATORY RELIEF
14 As with Biane’s Second Cause of Action, the court has already concluded Biane’s Fifth
15 Cause of Action fails to state a claim because the “proper and sole” vehicle to challenge the
16 County’s application of the law is through administrative mandamus. Again, the opposition is
17 devoid of any explanation of how Biane believes the defect has been cured in the SAC.
18 In addition to simply reiterating the same arguments the court already rejected in
19 sustaining the County’s demurrer to the FAC, Biane now asserts that his claim “does not neatly
20 fit into either” a challenge of a local agency’s application of the law or a challenge to the
21 validity of a statute, regulation, or ordinance. (Oppo., 19:7-13.) But saying as much does not
22 make it so. Nowhere does the SAC allege the invalidity of any ordinance, regulation, statue, or
23 policy. Rather, it is clear Biane seeks to second-guess the manner in which the ordinances
24 have been applied by the County with regard to the Project. Thus, under Sheetz, the “proper
25 and sole remedy,” is through administrative mandamus. (Sheetz v. County of El Dorado
26 (2022) 84 Cal.App.5th 394, 414.)
27 / / / / /
28 / / / / /
FINCH, THORNTON &
BAIRD, LLP
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4747 Executive
Drive - Suite 700
San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 Biane wrongly suggests that his declaratory relief claim should be permitted because
2 the County argues his administrative mandamus Cause of Action is also invalid. In other
3 words, Biane argues that because he has brought two improper causes of action, he should get
4 at least one of them. This is not the law.
5 Judge Foley was correct that the gravamen of Biane’s claim sounds in mandamus.
6 Nothing has changed that fact in the SAC. Again, Biane has now twice amended his complaint
7 to resolve this defective pleading. He has again failed. Thus, the court should sustain the
8 County’s demurrer without leave to amend.
9 IV
10 BIANE CANNOT STATE A CLAIM FOR A CIVIL RIGHTS VIOLATION
11 Biane’s Fourth Cause of Action seeks to morph a land use dispute into two federal civil
12 rights violations. The opposition wrongly concludes 11th Amendment immunity does not
13 apply to the County acting as an arm of the state under these facts. Biane argues he brought a
14 suit against “a County acting within its own jurisdiction, and implementing its own ordinances
15 and regulations,” despite the SAC citing CEQA a dozen times and his First Cause of Action
16 being for “Violation of CEQA.” The County will be prepared to discuss this argument at the
17 hearing on its motion but prefers to use its Reply to confirm Biane’s claim fails regardless of
18 immunity.2
19 First, Biane asks the court to find a due process violation because the road adjacent to
20 his farm was not filmed prior to being used by haul trucks from the Project. This claim
21 requires the court simply ignore the phrase “rebuilt to match existing conditions prior to
22 commencement of operation” in mitigation measure 4.13-3. This phrase cannot be ignored
23 and thus enforcement of the mitigation measure has no bearing on the harm Biane alleges
24 occurred after operations commenced. Second, Biane asserts the County’s failure to prevent
25 2
Biane misinterprets the absence of Kirchmann v. Lake Elsinore Unified Sch. Dist. (2000) 83 Cal.App.4th 1098
from the demurrer. (Oppo., 13:6-8.) During meet and confer efforts, the County cited Kirchmann to rebut
26 Biane’s position of 11th Amendment immunity did not apply in state court. (See Diamond Decl., Ex. 5
[November 14, 2023 Diamond Email] [“Your letter states: ‘Moreover, Eleventh Amendment immunity does not
27 extend to California State Court….’ In Kirchmann…the court, relying on U.S. Supreme Court precedents,
squarely addressed this point specifically with regards to section 1983 claims:…”].) Biane abandoned this
28 argument, conceding the County’s correctly relied on Kirchmann and Biane’s original position was wrong.
FINCH, THORNTON &
BAIRD, LLP
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4747 Executive
Drive - Suite 700
San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 haulers from allegedly taking issue with Biane’s surveillance tactics violates his First
2 Amendment rights. However, even if Biane’s accounts of these supposedly unprovoked
3 altercations were true, the County cannot be sued for failing to prevent the unlawful acts of
4 third parties.
5 A. Biane Fails to State a Claim for a Due Process Violation
6 Given Biane’s total reliance on Mitigation Measure 4.13-3, it is restated again in
7 pertinent part here:
8 Within 1 calendar year of commencing operation of mining, the project proponent
shall improve Sebastian Road from Wheeler Ridge to East End….Any existing
9 roadway segments proposed to be used by the project proponent shall, in
consultation with the Kern County Public Works Department, be videotaped
10 prior to initiation of construction activities and rebuilt to match existing
conditions prior to commencement of operation, except for that portion of
11 Sebastian Road covered by this mitigation measure.
12 (RJN, Ex. 1, pp. 25-26 of 27 [emphasis added]; Ex. 2, p. 4 of 8.)
13 Biane self-servingly reads the measure as containing “no language” that limits its scope
14 to only videotaping roadways intended for Project construction rather than roadways for its
15 future operation. (Oppo., 14:1-5.) This is wrong as the measure has the phrase “prior to
16 commencement of operation,” which provides the critical details regarding when the mitigation
17 measure must be complied with and cannot be ignored in favor of an incomplete but more
18 helpful reading to Biane.
19 Notably, Biane fails to address how his interpretation of the mitigation would result in a
20 requirement that Granite take videos of the thousands of roads Project-related traffic will drive
21 on throughout the region. The court should not entertain an interpretation which is inconsistent
22 with the express language and has no limiting principle. Rather, it is clear the measure’s aim is
23 to repair roads damaged during construction, prior to operation. Biane’s strained, self-serving
24 reading is simply wrong. Granite pays taxes to repair roads and its customers are entitled to
25 use roads just like all other County residents.
26 Biane’s Cause of Action fails because the supposed civil rights violation he alleges
27 arises from trucks traveling down Rancho Road during operation of the mine, not during
28 construction. It makes no sense to read the mitigation measure as applying to haul traffic
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BAIRD, LLP
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4747 Executive
Drive - Suite 700
San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 during operations when any potential repairs, if required, must have occurred “prior to
2 commencement of operation.” Thus, the County has appropriately enforced the MMRP and
3 Biane’s Cause of Action, and multiple lawsuits, largely fail.
4 B. Biane Fails to Allege Facts to Support a First Amendment Violation
5 Biane’s First Amendment Claim fails because there is no allegation to support, or any
6 reason to believe, the County is coordinating with Granite or haulers to allegedly harass Biane.
7 Biane argues paragraphs 141 through 160 of the SAC allege facts sufficient to establish a First
8 Amendment violation. These paragraphs detail an allegedly unprovoked altercation between
9 Biane and private third parties. Biane simply concludes the conduct “appears” to be part of a
10 coordinated effort with the County. (SAC, ¶ 158.)
11 Allegations of the appearance of coordination are insufficient. The County, reading the
12 plain language of the CUP as not prohibiting traffic on Rancho Road, and haulers
13 communicating their displeasure with Biane’s actions on roads near the Project are two
14 independent facts. The two facts occurring simultaneously do not provide evidence that the acts
15 are done in concert.
16 Unable to allege acts by the County, Biane takes the position that the County’s failure
17 to act after Biane has complained of conduct by haulers is a Constitutional violation. This
18 position is not only unreasonable because the County cannot possibly respond to every
19 citizen’s complaint in the County, but also unsupported by the law. The law is clear, to impose
20 liability on a local governmental entity for failing to act to preserve constitutional rights, a
21 section 1983 plaintiff must establish: (1) that he possessed a constitutional right of which he
22 was deprived; (2) that the municipality had a policy; (3) that this policy “amounts to deliberate
23 indifference” to the plaintiff’s constitutional right; and (4) that the policy is the “moving force
24 behind the constitutional violation.” (See Park v City & County of Honolulu (9th Cir 2020)
25 952 F3d 1136, 1142.)
26 Even if Biane could allege he was being deprived of a Constitutional right, as with
27 Biane’s defective declaratory judgment Cause of Action, Biane’s failure-to-act argument fails
28 because Biane does not, and cannot, allege any sort of policy related to the altercations he is
FINCH, THORNTON &
BAIRD, LLP
7
4747 Executive
Drive - Suite 700
San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 having with private third parties. There are no allegations of deliberate indifference, and,
2 regardless, the County is not responsible for the conduct of third-party haulers, and there is no
3 factual allegation the County is the “moving force” behind their conduct. If Biane has been
4 illegally assaulted, his recourse is through law enforcement, not suing the County.
5 The court should not allow Biane to morph his CEQA land use dispute into a federal
6 civil rights claim. Biane has not pled facts sufficient to sustain a Cause of Action for violation
7 of his due process or First Amendment rights. Thus, the court should sustain the County’s
8 demurrer without leave to amend.
9 V
10 BIANE CANNOT STATE A CLAIM FOR INVERSE CONDEMNATION
11 As an initial matter, Biane wrongly asserts that “[w]hen the County approved Granite’s
12 mitigation measures and conditions of approval, it approved the use of access roads along with
13 a set of rules to remediate the access route damage.” (Oppo., 15: 20-21.) As the court
14 discussed with counsel at the hearing on Biane’s motion for preliminary injunction against
15 Granite, the CUP and mitigation measures are completely devoid of any approved or
16 prohibited access routes, a judicially noticeable fact. Thus, the entire basis of Biane’s lawsuits
17 fails.
18 Faced with this reality, Biane attempts to conflate the use of a public road by members
19 of the public with construction or “commandeer[ing]” of the road itself. (Oppo., 15:27-16:1.)
20 Certainly, if Biane’s land was taken to construct Rancho Road, a taking would exist. Here,
21 however, the road itself is preexisting and unchanged. Biane essentially argues he is entitled to
22 the number of users of a public road near his farm to remain unchanged in perpetuity.
23 Regardless, because Biane still has his land, he must either allege the property has been
24 “physically damaged,” or that an “intangible intrusion” onto the property has occurred which
25 has caused no damage to the property but places a burden on the property that is direct,
26 substantial, and “peculiar” to the property itself. (Dina v. People ex rel. Dept. of
27 Transportation (2007) 151 Cal.App.4th 1029, 1048.) The law is clear that dust flowing from
28 / / / / /
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BAIRD, LLP
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4747 Executive
Drive - Suite 700
San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 public improvements onto adjoining property is not actionable damage. (People ex rel.
2 Department of Public Works v. Symons (1960) 54 Cal.2d 855, 860.) Thus, Biane must show a
3 “peculiar” burden on his property to satisfy an “intangible intrusion” theory.
4 Biane attempts to suggest all harm to private property is “in its nature special and
5 peculiar.” (Oppo., 17:12-18.) However, this would defeat the purpose of the limitation of
6 peculiarity rendering the element meaningless. The burden placed on Biane’s farm by an
7 increase in traffic driving down a public road is identical to all property owners adjacent to
8 roads near the Project as well as property owners along Rancho Road.
9 Again, unaddressed in the opposition, if Biane’s argument were true, every time the
10 County approved a business permit that would increase traffic traveling on a road heading to
11 that business, every adjacent landowner would be entitled to compensation. Similarly, every
12 landowner along all roads Project traffic uses would also be entitled to compensation,
13 including those on the roads identified in the traffic study which Biane contends are the only
14 permissible roads traffic may ever use. This is the very situation the particularity element of
15 inverse condemnation seeks to prevent.
16 Biane is facing no more disruption or loss of use than any landowner in any region of
17 the State is facing as populations expand and traffic on once quiet roads increases. This
18 grievance, while sympathetic, is not actionable. Rather, it is a part of living in modern society.
19 The court should sustain the County’s demurrer without leave to amend.
20 VII
21 BIANE HAS NOT MET HIS BURDEN TO
ESTABLISH HOW HE CAN REMEDY LEGAL DEFECTS
22
23 If a pleading is subject to demurrer, the plaintiff bears the burden of showing how it can
24 be amended to remedy the legal defects. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) If
25 there is no “reasonable possibility” that the plaintiff can cure a defective claim by amendment,
26 the court should sustain the demurrer without leave to amend. (Heckendorn v. City of San
27 Marino (1986) 42 Cal.3d 481, 486.)
28 / / / / /
FINCH, THORNTON &
BAIRD, LLP
9
4747 Executive
Drive - Suite 700
San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND
(858) 737-3100
AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT
1 The County met and conferred with Biane on its positions on multiple occasions and
2 Biane has been provided multiple opportunities to try and remedy the defects in his Second and
3 Fifth Causes of Action. Having again failed, the Court should not grant further leave to
4 amend. Biane has not explained in his opposition how he can remedy the defects in his Third
5 and Fourth Causes of Action because his grievances fall well outside the established elements
6 for a civil rights violation and inverse condemnation. Thus, the court should also decline to
7 grant leave to amend.
8 VII
9 CONCLUSION
10 Biane should not be permitted to pursue invalid legal theories. Biane cannot usurp the
11 County’s enforcement authority and fails to allege a clear and present ministerial duty. Biane’s
12 declaratory relief action fails because he is challenging the application of the law, not the law
13 itself. Biane’s civil rights have not been violated because the MMRP relied on has no
14 relevance to the damage he contends he is suffering, and there has been no state action.
15 Biane’s inverse condemnation claim fails because his land has not been taken, and he must
16 come to terms with the natural consequences of the public use of a public road near his farm.
17 Because there is no way for Biane to cure the defects in his causes of action, the court should
18 sustain the County’s demurrer without leave to amend.
19 DATE: February 13, 2024 Respectfully submitted,
20 FINCH, THORNTON & BAIRD, LLP
21
22 By:__________________________________
P. RANDOLPH FINCH JR.
23 ANDREA L. PETRAY
THOMAS E. DIAMOND
24 Attorneys for Defendant County of Kern
25
26
27
28 2206.055/3QP7093.hbr
FINCH, THORNTON &
BAIRD, LLP
10
4747 Executive
Drive - Suite 700
San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S 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, REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE 14 BIANE’S SECOND AMENDED VERIFIED Plaintiff, PETITION FOR WRIT OF MANDATE AND 15 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: 9:30 a.m. Div.: T-2 19 Complaint Filed: December 13, 2022 20 Trial Date: Not Set 21 I 22 INTRODUCTION 23 Biane’s opposition to the County’s demurrer is devoid of any explanation regarding 24 how the Second Amended Verified Petition for Writ of Mandate (“SAC”) corrected the fatal 25 defects the court already found in Biane’s Second and Fifth Causes of Action when it sustained 26 the County’s demurrer to the First Amended Verified Petition for Writ of Mandate (“FAC”). 27 Biane also largely fails to squarely confront many of the arguments raised in the County’s 28 demurrer, opting instead to restate unsupported factual conclusions and failed legal arguments. REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 The court was correct in its initial analysis, nothing has changed, and the court should again 2 sustain the County’s demurrer, this time without leave to amend given Biane has already failed 3 twice to fashion actionable claims. 4 With regard to his Third Cause of Action, Biane asks the court to simply ignore words 5 unhelpful to its interpretation of the cited mitigation measures in hopes of turning a California 6 Environmental Quality Act (“CEQA”) land use dispute into a federal due process violation. 7 Similarly, to claim his speech rights have been suppressed, Biane asks the court to accept 8 unsupported speculation that County professionals are engaged in a conspiracy with truck 9 drivers to harass Biane. While Biane may believe this to be true, he has not and cannot allege, 10 in a verified complaint, any facts to support such an outlandish theory. Finally, with regard to 11 his Fourth Cause of Action, Biane asks the court to interpret inverse condemnation law to open 12 the floodgates of litigation by concluding street-legal vehicles driving on a public road near a 13 farm arises to a governmental taking. 14 The court should not permit Biane to proceed with these invalid claims which are 15 unsupported by the law or facts which Biane can truthfully allege. Biane has not met his 16 burden of establishing how these claims can be remedied, and thus the demurrer should be 17 sustained without leave to amend. 18 II 19 BIANE CANNOT STATE A CLAIM FOR WRIT OF MANDATE BASED ON THE CITED ORDINANCES 20 21 The SAC does not satisfy Biane’s burden to establish a clear, present, ministerial duty 22 in the cited ordinances requiring the County to do as Biane demands and shut down Granite’s 23 mine based on the Conditional Use Permit (“CUP”) or Mitigation Monitoring and Reporting 24 Program (“MMRP”). The court previously determined Biane’s Second Cause of Action failed 25 to state a claim and sustained the County’s demurrer.1 Biane failed to remedy the defects 26 1 Biane suggests “Judge Foley acknowledged in her September 2023 ruling, Granite’s performance and the County’s enforcement of these County-imposed measures is mandatory and critical to ensuring that the Project’s 27 environmental impacts are appropriately addressed and mitigated.” (Oppo., 9:17-21.) Judge Foley made no such acknowledgment. Other than finding Biane sufficiently pled his First Cause of action, Judge Foley sustained the 28 County’s demurrer as to all other causes of action. FINCH, THORNTON & BAIRD, LLP 2 4747 Executive Drive - Suite 700 San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 because Biane is not permitted to substitute his personal preferences for the County’s 2 enforcement authority and allocation of limited resources. Rather, Biane simply added further 3 legal conclusions that a mandatory duty exists and allegations regarding mitigation measures 4 the court already took judicial notice of when sustaining the original demurrer. 5 Recognizing the relied upon ordinances, Chapters 19.100 and 19.104, are replete with 6 discretionary “may” language, which is sensible given limited County enforcement resources, 7 Biane attempts to shift the focus to a statement in the CUP that operations “shall be in 8 substantial conformance with the approved plan.” (Oppo., 9:22-10:10.) In doing so, Biane 9 essentially concedes the ordinances he relies on do not create the required ministerial duty. 10 Regardless, while highlighting the use of “shall” in the CUP, Biane does not grapple with the 11 immediately following phrase “substantial conformance,” which defeats his position. 12 “A ministerial act is one that a public functionary ‘is required to perform in a 13 prescribed manner in obedience to the mandate of legal authority,’ without regard to his or her 14 own judgment or opinion concerning the propriety of such act.” (Monterey Coastkeeper v. 15 Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 19.) The 16 County must determine, using its judgment, whether Granite is operating in “substantial 17 conformity” with the conditions placed on the permit, including the MMRP. The CUP is void 18 of any reference to required, approved, or prohibited haul routes, and the mitigation measure 19 Biane relies on, discussed further below, is inapplicable on its face. Thus, the County correctly 20 exercised its discretionary authority, and Biane cannot usurp that enforcement power to benefit 21 his own personal preferences. 22 Biane also erroneously argues Chapter 19.100.050 requires the County to hold a 23 hearing over this matter. (Oppo., 10:14-21.) Biane neglects to explain for the court that the 24 cited portion of the ordinance applies only after the “planning director determines that a 25 proposed amendment” to an approved reclamation constitutes a “substantial deviation” (e.g., 26 “increases in the amount of surface area to be disturbed”). (LOA, Ex. 1, Ord. Code § 27 19.100.050.) Biane does not allege Granite has proposed any amendment. Regardless, the 28 review of such an amendment for a “substantial deviation” would again be discretionary. FINCH, THORNTON & BAIRD, LLP 3 4747 Executive Drive - Suite 700 San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 Biane’s opposition also fails to address the clear law that he cannot force the County to 2 take any particular response. Biane admits the County worked with Granite to install signage, 3 but Biane will not be satisfied until the mine is shut down. Biane is not entitled to direct the 4 County’s discretionary oversight authority as he sees fit. If Biane can prove he has been 5 unlawfully damaged by trucks driving by his farm, his remedy is available in a lawsuit for 6 damages. 7 The Second Cause of Action remains functionally identical to the Cause of Action the 8 court previously sustained in response to the County’s last demurrer. The court should again 9 sustain the County’s demurrer. Given the grounds of the County’s demurrer were provided to 10 Biane prior to his FAC, Biane has already amended twice and failed to remedy this defective 11 Cause of Action. Thus, the court should sustain the County’ demurrer without leave to amend. 12 III 13 BIANE CANNOT STATE A CLAIM FOR DECLARATORY RELIEF 14 As with Biane’s Second Cause of Action, the court has already concluded Biane’s Fifth 15 Cause of Action fails to state a claim because the “proper and sole” vehicle to challenge the 16 County’s application of the law is through administrative mandamus. Again, the opposition is 17 devoid of any explanation of how Biane believes the defect has been cured in the SAC. 18 In addition to simply reiterating the same arguments the court already rejected in 19 sustaining the County’s demurrer to the FAC, Biane now asserts that his claim “does not neatly 20 fit into either” a challenge of a local agency’s application of the law or a challenge to the 21 validity of a statute, regulation, or ordinance. (Oppo., 19:7-13.) But saying as much does not 22 make it so. Nowhere does the SAC allege the invalidity of any ordinance, regulation, statue, or 23 policy. Rather, it is clear Biane seeks to second-guess the manner in which the ordinances 24 have been applied by the County with regard to the Project. Thus, under Sheetz, the “proper 25 and sole remedy,” is through administrative mandamus. (Sheetz v. County of El Dorado 26 (2022) 84 Cal.App.5th 394, 414.) 27 / / / / / 28 / / / / / FINCH, THORNTON & BAIRD, LLP 4 4747 Executive Drive - Suite 700 San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 Biane wrongly suggests that his declaratory relief claim should be permitted because 2 the County argues his administrative mandamus Cause of Action is also invalid. In other 3 words, Biane argues that because he has brought two improper causes of action, he should get 4 at least one of them. This is not the law. 5 Judge Foley was correct that the gravamen of Biane’s claim sounds in mandamus. 6 Nothing has changed that fact in the SAC. Again, Biane has now twice amended his complaint 7 to resolve this defective pleading. He has again failed. Thus, the court should sustain the 8 County’s demurrer without leave to amend. 9 IV 10 BIANE CANNOT STATE A CLAIM FOR A CIVIL RIGHTS VIOLATION 11 Biane’s Fourth Cause of Action seeks to morph a land use dispute into two federal civil 12 rights violations. The opposition wrongly concludes 11th Amendment immunity does not 13 apply to the County acting as an arm of the state under these facts. Biane argues he brought a 14 suit against “a County acting within its own jurisdiction, and implementing its own ordinances 15 and regulations,” despite the SAC citing CEQA a dozen times and his First Cause of Action 16 being for “Violation of CEQA.” The County will be prepared to discuss this argument at the 17 hearing on its motion but prefers to use its Reply to confirm Biane’s claim fails regardless of 18 immunity.2 19 First, Biane asks the court to find a due process violation because the road adjacent to 20 his farm was not filmed prior to being used by haul trucks from the Project. This claim 21 requires the court simply ignore the phrase “rebuilt to match existing conditions prior to 22 commencement of operation” in mitigation measure 4.13-3. This phrase cannot be ignored 23 and thus enforcement of the mitigation measure has no bearing on the harm Biane alleges 24 occurred after operations commenced. Second, Biane asserts the County’s failure to prevent 25 2 Biane misinterprets the absence of Kirchmann v. Lake Elsinore Unified Sch. Dist. (2000) 83 Cal.App.4th 1098 from the demurrer. (Oppo., 13:6-8.) During meet and confer efforts, the County cited Kirchmann to rebut 26 Biane’s position of 11th Amendment immunity did not apply in state court. (See Diamond Decl., Ex. 5 [November 14, 2023 Diamond Email] [“Your letter states: ‘Moreover, Eleventh Amendment immunity does not 27 extend to California State Court….’ In Kirchmann…the court, relying on U.S. Supreme Court precedents, squarely addressed this point specifically with regards to section 1983 claims:…”].) Biane abandoned this 28 argument, conceding the County’s correctly relied on Kirchmann and Biane’s original position was wrong. FINCH, THORNTON & BAIRD, LLP 5 4747 Executive Drive - Suite 700 San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 haulers from allegedly taking issue with Biane’s surveillance tactics violates his First 2 Amendment rights. However, even if Biane’s accounts of these supposedly unprovoked 3 altercations were true, the County cannot be sued for failing to prevent the unlawful acts of 4 third parties. 5 A. Biane Fails to State a Claim for a Due Process Violation 6 Given Biane’s total reliance on Mitigation Measure 4.13-3, it is restated again in 7 pertinent part here: 8 Within 1 calendar year of commencing operation of mining, the project proponent shall improve Sebastian Road from Wheeler Ridge to East End….Any existing 9 roadway segments proposed to be used by the project proponent shall, in consultation with the Kern County Public Works Department, be videotaped 10 prior to initiation of construction activities and rebuilt to match existing conditions prior to commencement of operation, except for that portion of 11 Sebastian Road covered by this mitigation measure. 12 (RJN, Ex. 1, pp. 25-26 of 27 [emphasis added]; Ex. 2, p. 4 of 8.) 13 Biane self-servingly reads the measure as containing “no language” that limits its scope 14 to only videotaping roadways intended for Project construction rather than roadways for its 15 future operation. (Oppo., 14:1-5.) This is wrong as the measure has the phrase “prior to 16 commencement of operation,” which provides the critical details regarding when the mitigation 17 measure must be complied with and cannot be ignored in favor of an incomplete but more 18 helpful reading to Biane. 19 Notably, Biane fails to address how his interpretation of the mitigation would result in a 20 requirement that Granite take videos of the thousands of roads Project-related traffic will drive 21 on throughout the region. The court should not entertain an interpretation which is inconsistent 22 with the express language and has no limiting principle. Rather, it is clear the measure’s aim is 23 to repair roads damaged during construction, prior to operation. Biane’s strained, self-serving 24 reading is simply wrong. Granite pays taxes to repair roads and its customers are entitled to 25 use roads just like all other County residents. 26 Biane’s Cause of Action fails because the supposed civil rights violation he alleges 27 arises from trucks traveling down Rancho Road during operation of the mine, not during 28 construction. It makes no sense to read the mitigation measure as applying to haul traffic FINCH, THORNTON & BAIRD, LLP 6 4747 Executive Drive - Suite 700 San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 during operations when any potential repairs, if required, must have occurred “prior to 2 commencement of operation.” Thus, the County has appropriately enforced the MMRP and 3 Biane’s Cause of Action, and multiple lawsuits, largely fail. 4 B. Biane Fails to Allege Facts to Support a First Amendment Violation 5 Biane’s First Amendment Claim fails because there is no allegation to support, or any 6 reason to believe, the County is coordinating with Granite or haulers to allegedly harass Biane. 7 Biane argues paragraphs 141 through 160 of the SAC allege facts sufficient to establish a First 8 Amendment violation. These paragraphs detail an allegedly unprovoked altercation between 9 Biane and private third parties. Biane simply concludes the conduct “appears” to be part of a 10 coordinated effort with the County. (SAC, ¶ 158.) 11 Allegations of the appearance of coordination are insufficient. The County, reading the 12 plain language of the CUP as not prohibiting traffic on Rancho Road, and haulers 13 communicating their displeasure with Biane’s actions on roads near the Project are two 14 independent facts. The two facts occurring simultaneously do not provide evidence that the acts 15 are done in concert. 16 Unable to allege acts by the County, Biane takes the position that the County’s failure 17 to act after Biane has complained of conduct by haulers is a Constitutional violation. This 18 position is not only unreasonable because the County cannot possibly respond to every 19 citizen’s complaint in the County, but also unsupported by the law. The law is clear, to impose 20 liability on a local governmental entity for failing to act to preserve constitutional rights, a 21 section 1983 plaintiff must establish: (1) that he possessed a constitutional right of which he 22 was deprived; (2) that the municipality had a policy; (3) that this policy “amounts to deliberate 23 indifference” to the plaintiff’s constitutional right; and (4) that the policy is the “moving force 24 behind the constitutional violation.” (See Park v City & County of Honolulu (9th Cir 2020) 25 952 F3d 1136, 1142.) 26 Even if Biane could allege he was being deprived of a Constitutional right, as with 27 Biane’s defective declaratory judgment Cause of Action, Biane’s failure-to-act argument fails 28 because Biane does not, and cannot, allege any sort of policy related to the altercations he is FINCH, THORNTON & BAIRD, LLP 7 4747 Executive Drive - Suite 700 San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 having with private third parties. There are no allegations of deliberate indifference, and, 2 regardless, the County is not responsible for the conduct of third-party haulers, and there is no 3 factual allegation the County is the “moving force” behind their conduct. If Biane has been 4 illegally assaulted, his recourse is through law enforcement, not suing the County. 5 The court should not allow Biane to morph his CEQA land use dispute into a federal 6 civil rights claim. Biane has not pled facts sufficient to sustain a Cause of Action for violation 7 of his due process or First Amendment rights. Thus, the court should sustain the County’s 8 demurrer without leave to amend. 9 V 10 BIANE CANNOT STATE A CLAIM FOR INVERSE CONDEMNATION 11 As an initial matter, Biane wrongly asserts that “[w]hen the County approved Granite’s 12 mitigation measures and conditions of approval, it approved the use of access roads along with 13 a set of rules to remediate the access route damage.” (Oppo., 15: 20-21.) As the court 14 discussed with counsel at the hearing on Biane’s motion for preliminary injunction against 15 Granite, the CUP and mitigation measures are completely devoid of any approved or 16 prohibited access routes, a judicially noticeable fact. Thus, the entire basis of Biane’s lawsuits 17 fails. 18 Faced with this reality, Biane attempts to conflate the use of a public road by members 19 of the public with construction or “commandeer[ing]” of the road itself. (Oppo., 15:27-16:1.) 20 Certainly, if Biane’s land was taken to construct Rancho Road, a taking would exist. Here, 21 however, the road itself is preexisting and unchanged. Biane essentially argues he is entitled to 22 the number of users of a public road near his farm to remain unchanged in perpetuity. 23 Regardless, because Biane still has his land, he must either allege the property has been 24 “physically damaged,” or that an “intangible intrusion” onto the property has occurred which 25 has caused no damage to the property but places a burden on the property that is direct, 26 substantial, and “peculiar” to the property itself. (Dina v. People ex rel. Dept. of 27 Transportation (2007) 151 Cal.App.4th 1029, 1048.) The law is clear that dust flowing from 28 / / / / / FINCH, THORNTON & BAIRD, LLP 8 4747 Executive Drive - Suite 700 San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 public improvements onto adjoining property is not actionable damage. (People ex rel. 2 Department of Public Works v. Symons (1960) 54 Cal.2d 855, 860.) Thus, Biane must show a 3 “peculiar” burden on his property to satisfy an “intangible intrusion” theory. 4 Biane attempts to suggest all harm to private property is “in its nature special and 5 peculiar.” (Oppo., 17:12-18.) However, this would defeat the purpose of the limitation of 6 peculiarity rendering the element meaningless. The burden placed on Biane’s farm by an 7 increase in traffic driving down a public road is identical to all property owners adjacent to 8 roads near the Project as well as property owners along Rancho Road. 9 Again, unaddressed in the opposition, if Biane’s argument were true, every time the 10 County approved a business permit that would increase traffic traveling on a road heading to 11 that business, every adjacent landowner would be entitled to compensation. Similarly, every 12 landowner along all roads Project traffic uses would also be entitled to compensation, 13 including those on the roads identified in the traffic study which Biane contends are the only 14 permissible roads traffic may ever use. This is the very situation the particularity element of 15 inverse condemnation seeks to prevent. 16 Biane is facing no more disruption or loss of use than any landowner in any region of 17 the State is facing as populations expand and traffic on once quiet roads increases. This 18 grievance, while sympathetic, is not actionable. Rather, it is a part of living in modern society. 19 The court should sustain the County’s demurrer without leave to amend. 20 VII 21 BIANE HAS NOT MET HIS BURDEN TO ESTABLISH HOW HE CAN REMEDY LEGAL DEFECTS 22 23 If a pleading is subject to demurrer, the plaintiff bears the burden of showing how it can 24 be amended to remedy the legal defects. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) If 25 there is no “reasonable possibility” that the plaintiff can cure a defective claim by amendment, 26 the court should sustain the demurrer without leave to amend. (Heckendorn v. City of San 27 Marino (1986) 42 Cal.3d 481, 486.) 28 / / / / / FINCH, THORNTON & BAIRD, LLP 9 4747 Executive Drive - Suite 700 San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT 1 The County met and conferred with Biane on its positions on multiple occasions and 2 Biane has been provided multiple opportunities to try and remedy the defects in his Second and 3 Fifth Causes of Action. Having again failed, the Court should not grant further leave to 4 amend. Biane has not explained in his opposition how he can remedy the defects in his Third 5 and Fourth Causes of Action because his grievances fall well outside the established elements 6 for a civil rights violation and inverse condemnation. Thus, the court should also decline to 7 grant leave to amend. 8 VII 9 CONCLUSION 10 Biane should not be permitted to pursue invalid legal theories. Biane cannot usurp the 11 County’s enforcement authority and fails to allege a clear and present ministerial duty. Biane’s 12 declaratory relief action fails because he is challenging the application of the law, not the law 13 itself. Biane’s civil rights have not been violated because the MMRP relied on has no 14 relevance to the damage he contends he is suffering, and there has been no state action. 15 Biane’s inverse condemnation claim fails because his land has not been taken, and he must 16 come to terms with the natural consequences of the public use of a public road near his farm. 17 Because there is no way for Biane to cure the defects in his causes of action, the court should 18 sustain the County’s demurrer without leave to amend. 19 DATE: February 13, 2024 Respectfully submitted, 20 FINCH, THORNTON & BAIRD, LLP 21 22 By:__________________________________ P. RANDOLPH FINCH JR. 23 ANDREA L. PETRAY THOMAS E. DIAMOND 24 Attorneys for Defendant County of Kern 25 26 27 28 2206.055/3QP7093.hbr FINCH, THORNTON & BAIRD, LLP 10 4747 Executive Drive - Suite 700 San Diego, CA 92121 REPLY IN SUPPORT OF COUNTY OF KERN’S DEMURRER TO JEAN-PIERRE BIANE’S SECOND (858) 737-3100 AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT