Preview
1 ALLEN MATKINS LECK GAMBLE
MALLORY & NATSIS LLP
2 ANDREW A. WOOD (BAR NO. 279403)
KELLY C. SMITH (BAR NO. 308013)
3 RACHEL A. ROSENBLUM (BAR NO. 341011)
2010 Main Street, 8th Floor
4 Irvine, California 92614-7214
Phone: (949) 553-1313
5 Fax: (949) 553-8354
E-Mail: awood@allenmatkins.com
6 ksmith@allenmatkins.com
rrosenblum@allenmatkins.com
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Attorneys for Plaintiff and Petitioner
8 JP Biane Farms
9 SUPERIOR COURT OF CALIFORNIA
10 FOR THE COUNTY OF KERN
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12 JEAN-PIERRE BIANE, doing business as JP Case No. BCV-22-103359 (TMS)
BIANE FARMS,
13 ASSIGNED FOR ALL PURPOSES TO
Plaintiff, Judge T. Mark Smith, Dept. T-2
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vs. PLAINTIFF JEAN-PIERRE BIANE’S
15 NOTICE OF LODGING HEARING
COUNTY OF KERN, and DOES 1 through 50, TRANSCRIPT OF DEFENDANT COUNTY
16 inclusive, OF KERN’S DEMURRER TO PLAINTIFF’S
SECOND AMENDED PETITION HEARING
17 Defendants.
Date: February 22, 2024
18 Time: 8:30 a.m.
Div.: T-2
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Complaint Filed: Dec. 13, 2022
20 Amended Complaint Filed: June 15, 2023
Trial Date: None Set
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22 PLEASE TAKE NOTICE that Plaintiff and Petitioner Jean-Pierre Biane, doing business as JP
23 Biane Farms (“Biane”), hereby lodges with the Court the certified hearing transcript of Defendant
24 County of Kern’s Demurrer to Plaintiff’s Second Amended Petition Hearing, which took place on
25 February 22, 2024.
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LAW OFFICES
Allen Matkins Leck Gamble
Mallory & Natsis LLP -1-
4858-6911-9145.1 NOTICE OF LODGING HEARING TRANSCRIPT
1 Dated: February 26, 2024 ALLEN MATKINS LECK GAMBLE
MALLORY & NATSIS LLP
2 ANDREW A. WOOD
KELLY C. SMITH
3 RACHEL A. ROSENBLUM
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By:
5 ANDREW A. WOOD
Attorneys for Plaintiff
6 Jean-Pierre Biane
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LAW OFFICES
Allen Matkins Leck Gamble
Mallory & Natsis LLP -2-
4858-6911-9145.1 NOTICE OF LODGING HEARING TRANSCRIPT
1 PROOF OF SERVICE
2 I am employed in the County of Orange, State of California. I am over the age of eighteen
(18) and am not a party to this action. My business address is 2010 Main Street, 8th Floor, Irvine,
3 California 92614-7214.
4 On February 26, 2024, I served the within document(s) described as:
5 PLAINTIFF JEAN-PIERRE BIANE’S NOTICE OF LODGING HEARING
TRANSCRIPT OF DEFENDANT COUNTY OF KERN’S DEMURRER TO
6 PLAINTIFF’S SECOND AMENDED PETITION HEARING
7 on the interested parties in this action as stated below:
8 P. Randolph Finch Jr., Esq. Attorneys for Defendant
Andrea L. Petray, Esq. County of Kern
9 Thomas E. Diamond, Esq.
Finch, Thornton & Baird, LLP
10 4747 Executive Drive, Suite 700
San Diego, California 92121-3107
11 Telephone: (858) 737-3100
Facsimile: (858) 737-3101
12 pfinch@ftblaw.com
apetray@ftblaw.com
13 tdiamond@ftblaw.com
14 Natasha L. Horn, Sr. Paralegal
nhorn@ftblaw.com
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Heidi Baeza-Rivas
16 hbaeza-rivas@ftblaw.com
17 BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on and in accordance with a
court order or agreement of the parties to accept service by e-mail or electronic transmission,
18 I caused a true copy of the document to be sent to the persons at the corresponding electronic
address as indicated above on the above-mentioned date. My electronic notification address
19 is kspake@allenmatkins.com. I am readily familiar with this firm’s Microsoft Outlook
electronic mail system and did not receive any electronic message or other indication that
20 the transmission was unsuccessful.
21 I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
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Executed on February 26, 2024, at Irvine, California.
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Kimberly A. Spake
25 (Type or print name) (Signature of Declarant)
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LAW OFFICES
Allen Matkins Leck Gamble
Mallory & Natsis LLP -3-
4858-6911-9145.1 NOTICE OF LODGING HEARING TRANSCRIPT
Transcript of Proceedings
February 22, 2024
· · · · · · · SUPERIOR COURT OF THE STATE OF CALIFORNIA
· · · · · · · · · · IN AND FOR THE COUNTY OF KERN
· · · · · · · · · · · · METROPOLITAN DIVISION
· · · · · · · ·HON. T. MARK SMITH, JUDGE, DEPARTMENT T2
·
· · ·_________________________
· · ·JEAN-PIERRE BIANE DBA· · ·)
· · ·JP BIANE FARMS,· · · · · ·)
· · · · · · · · · · · · · · · ·)
· · · · · · · · · · · · · · · ·)
· · ·PETITIONER,· · · · · · · ·) PAGES 1 - 41
· · · · · · · · · · · · · · · ·)
· · · · · · · ·VS.· · · · · · ·) CASE NO. BCV-22-103359
· · · · · · · · · · · · · · · ·)
· · ·COUNTY OF KERN,· · · · · ·)
· · · · · · · · · · · · · · · ·)
· · ·RESPONDENT.· · · · · · · ·) FEBRUARY 22, 2024
· · ·_________________________ )
·
·
· · · · · · · · ·REPORTER'S TRANSCRIPT OF PROCEEDINGS
·
· · · · · · · · · · · · · · ·APPEARANCES:
·
· · · ·FOR THE· · · · · · · ALLEN MATKINS
· · · ·PETITIONER:· · · · · BY:· ANDREW WOOD, ESQUIRE
· · · ·(VIA REMOTE)· · · · ·BY:· PAIGE GOSNEY, ESQUIRE
· · · · · · · · · · · · · · 2010 Main Street, 8th Floor
· · · · · · · · · · · · · · Irvine, California 92614
· · · · · · · · · · · · · · (949) 851-5421
· · · · · · · · · · · · · · awood@allenmatkins.com
· · · · · · · · · · · · · · pgosney@allenmatkins.com
·
· · · ·For the· · · · · · · FINCH, THORNTON & BAIRD
· · · ·RESPONDENT:· · · · · By:· THOMAS DIAMOND, Esquire
· · · · · · · · · · · · · · 4747 Executive Drive, Suite 700
· · · · · · · · · · · · · · San Diego, California 92121
· · · · · · · · · · · · · · (858) 737-3100
· · · · · · · · · · · · · · tdiamond@ftblaw.com
·
· · · ·Also Present:· · · · BRIAN VAN WYK, ESQUIRE
· · · ·(VIA REMOTE)
·
· · · ·Reported By:· · · · ·Cindy R. Bowden, CSR 12962
· · · · · · · · · · · · · · Registered Merit Reporter
· · · · · · · · · · · · · · Official Pro Tem Court Reporter
·
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February 22, 2024
·1· · · · · · · · · · · · · · ·SESSIONS
·2· · · · · · · · · · · · · · · · · · · · · · · · · · · · PAGE
·3· · THURSDAY, FEBRUARY 22, 2024
· · · · MORNING SESSION· · · · · · · · · · · · · · · · · · · 3
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· · · · Demurrer Hearing· · · · · · · · · · · · · · · · · · ·3
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Transcript of Proceedings
February 22, 2024
·1· · · · · ·BAKERSFIELD, CA; THURSDAY, FEBRUARY 22, 2024
·2· · · · · · · · · · · · ·MORNING SESSION
·3· · · · · · DEPARTMENT T2· · · · T. MARK SMITH, JUDGE
·4· · · · · · · · · · · · · ·---oo0oo---
·5· · · · · · · THE COURT:· We will call the matter of Biane
·6· · ·vs. County of Kern, Case No. BCV-22-103359.
·7· · · · · · · THE CLERK:· We do have a court reporter,
·8· · ·Your Honor.
·9· · · · · · · MR. WOOD:· Good morning, Your Honor.· This is
10· · ·Andrew Wood for petitioner.
11· · · · · · · MR. GOSNEY:· Good morning, Your Honor.· Paige
12· · ·Gosney on behalf of petitioner Biane.
13· · · · · · · THE COURT:· Mr. Wood, can you try your
14· · ·microphone again?· We are having difficulty picking it
15· · ·up.
16· · · · · · · MR. WOOD:· Sure.· Is this better, Your Honor?
17· · · · · · · THE COURT:· That's a little better.· Okay.
18· · ·And we do have a reporter for purposes of the hearing.
19· · ·The Court will appoint reporter Cindy Bowden as reporter
20· · ·Pro Tem for the purposes of this proceeding.
21· · · · · · · MR. DIAMOND:· Thomas Diamond on behalf of the
22· · ·County of Kern and Mr. Van Wyk is here as well to watch
23· · ·the proceedings.
24· · · · · · · MR. VAN WYK:· Good morning, Your Honor.
25· · ·Brian Van Wyk from the County of Kern.
26· · · · · · · THE COURT:· Good morning.· All right.· This is
27· · ·on for a -- the County of Kern's demurrer to the second
28· · ·amended petition for writ of mandate and complaint.
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February 22, 2024
·1· · ·It's also on for further case management conference.· We
·2· · ·will take up the demurrer first.· The Court has reviewed
·3· · ·the papers filed in connection with the demurrer.· The
·4· · ·Court does not have a tentative at this point.· The
·5· · ·Court does have some thoughts and would like to hear
·6· · ·argument.· The prior demurrer was overruled as to the
·7· · ·first cause of action, so the County -- as to the second
·8· · ·amended petition demurrers to the second through the
·9· · ·fifth causes of action.· The second -- the second and
10· · ·the fifth causes of action were -- the demurrers were
11· · ·sustained with the need to amend the third and fourth
12· · ·causes of action are new to this petition.
13· · · · · · · As to the Court's substantive thoughts, the
14· · ·second cause of action is a writ under CCP 1085
15· · ·directing the County to perform obligations under the
16· · ·Kern County code of ordinances and an initial issue on
17· · ·this cause of action is whether the ordinances are
18· · ·ministerial or discretionary.· The Court would like
19· · ·counsel to focus on the language particularly in 19.104
20· · ·and 19.102.020 as to the language of the ordinances that
21· · ·would indicate whether they are, in fact, discretionary
22· · ·or ministerial.
23· · · · · · · As to the third cause of action, paragraph 141
24· · ·of the second amended petition pleads that the County
25· · ·has violated petitioner's first amendment rights to
26· · ·speech and petition by failing to prevent and thus
27· · ·knowingly permitting Granite and its truckers from
28· · ·threatening, intimidating and costing Mr. Biane from
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February 22, 2024
·1· · ·documenting this lawsuit.· The question then becomes to
·2· · ·what extent the County has a duty to prevent or control
·3· · ·the third parties' actions in the context of the
·4· · ·allegations.· As to the fourth cause of action for
·5· · ·inverse condemnation, the Court would like to hear
·6· · ·arguments as to the issue of whether plaintiff has
·7· · ·adequately planned a causal relationship between the
·8· · ·government electivity and the property cross complained
·9· · ·of, so with those comments being made, the Court would
10· · ·like to hear argument.· We will start with the moving
11· · ·party.
12· · · · · · · MR. DIAMOND:· Thank you, Your Honor.
13· · · · · · · At the outset, I did notice that Mr. Gosney is
14· · ·present again.· And we would just object to the extent
15· · ·they are intending to have multiple lawyers argue the
16· · ·motion and I think Mr. Wood is more than capable of
17· · ·representing Mr. Biane in arguing this motion and I
18· · ·think it's inequitable to have two lawyers argue on
19· · ·behalf of Mr. Biane and one lawyer argue on behalf of
20· · ·the County.· Mr. Van Wyk is here simply to supervise and
21· · ·to observe and then we would request that the Court have
22· · ·the latitude and who should be arguing on their behalf.
23· · · · · · · THE COURT:· I think that's a reasonable
24· · ·request.· The Court -- in a prior argument -- did allow
25· · ·comments from both lawyers representing plaintiff in
26· · ·that case, petitioner in this case.· However, it is the
27· · ·Court's custom to generally allow only one lawyer to --
28· · ·to argue and the Court did note at that hearing that --
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February 22, 2024
·1· · ·in that case, Granite's attorney was getting to some
·2· · ·degree double teamed in the argument, so I would ask --
·3· · ·I assume that the petitioner has designated Mr. Wood as
·4· · ·the -- as the arguer and let's -- let's keep it to that.
·5· · ·All right.
·6· · · · · · · MR. WOOD:· I'm sorry, Your Honor.· I need to
·7· · ·be heard on that, please.
·8· · · · · · · THE COURT:· Mr. Wood?
·9· · · · · · · MR. WOOD:· Yeah, so -- Your Honor, I have two
10· · ·to three issues with -- again, the second time -- you
11· · ·know, you might remember that the presiding --
12· · · · · · · · ·(Clarification by the reporter.)
13· · · · · · · THE COURT:· Mr. Wood, the court reporter is
14· · ·having difficulty taking down -- so taking down what
15· · ·you're saying, so it -- there is a little bit of
16· · ·interference with the line.· It's not too bad, but it
17· · ·would be better if you slow down.
18· · · · · · · MR. WOOD:· Sure.· So, you know, I will just
19· · ·note again that, you know, last time around Mr. Diamond
20· · ·tried to catch this version on -- on Mr. Biane having
21· · ·their represent -- having their -- have himself
22· · ·represented by our firm, first of all, and the Court did
23· · ·take issue with that.· I will note Mr. Biane is entitled
24· · ·to representation.· He's entitled to representation by
25· · ·the people who are qualified to represent him.· I'm not
26· · ·aware of anything in the Court's local rules that talks
27· · ·-- you know, that speaks to this issue.· We weren't on
28· · ·notice of this issue and perhaps would have prepared it
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February 22, 2024
·1· · ·differently for this hearing.· The fact we are being
·2· · ·sandbagged here at the last second by plaintiff's
·3· · ·frankly inequitable request is -- Mr. Biane.
·4· · · · · · · With that said, our intent certainly on a
·5· · ·couple of things, Mr. Diamond or the firm or the company
·6· · ·that's represented.· Our intent was to split the
·7· · ·argument between, you know, Mr. Gosney who is going to
·8· · ·speak to one or two causes of action and speak to the
·9· · ·other.· Again, neither of us will be jumping in on top
10· · ·of each other, so you know, I just would respectfully
11· · ·request that, you know, that the Court -- that the Court
12· · ·offer some guidance on that end.
13· · · · · · · THE COURT:· All right.· If there is a split in
14· · ·the arguments, the Court will allow that, but the Court
15· · ·-- and I believe Mr. Diamond's concerns were that if you
16· · ·have multiple lawyers arguing on the same issues.· And
17· · ·so when we get to your argument or petitioner's
18· · ·arguments, please tell us at the outset then what -- how
19· · ·the split is going to proceed.· All right.
20· · · · · · · Mr. Diamond?
21· · · · · · · MR. DIAMOND:· Thank you, Your Honor.· And I
22· · ·will just note that there doesn't seem to be any rhyme
23· · ·or reason as to when Mr. Gosney's arguing, had that been
24· · ·disclosed to us in advance that we're going to have both
25· · ·lawyers arguing, I could have divided our arguments up
26· · ·and have two lawyers present and have been able to focus
27· · ·more so.· You know, I would have objected had I known
28· · ·that there was the intention to have two parties argue
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February 22, 2024
·1· · ·the lawsuit, but it's fine, Your Honor.· I'm prepared to
·2· · ·discuss all the issues and I think the law is clear and
·3· · ·that the County's motion -- the demurrer should be
·4· · ·granted without the need to amend.
·5· · · · · · · So first the ministerial duty question under
·6· · ·the second cause of action.· You know, it's important to
·7· · ·recognize as the Court did that this is being brought
·8· · ·pursuant to Chapter 19, Section 100 and 104.
·9· · · · · · · Mr. Biane has a separate cause of action for
10· · ·CEQA and the MMRP.· The opposition quickly moves away
11· · ·from discussing the language of the statutes upon which
12· · ·they rely and focusing back on the CUP language and the
13· · ·MMRP language.· Now, we disagree with the interpretation
14· · ·of both documents.· But if you look at the statutes with
15· · ·Chapter 19, it's riddled with the use of may and may and
16· · ·may and may, because there's a limited amount of
17· · ·resources that the County has to make these enforcement,
18· · ·prosecutorial decisions.· And just because Mr. Biane
19· · ·files a lawsuit against the County doesn't mean that he
20· · ·now gets to decide how the County is directing those
21· · ·resources.
22· · · · · · · There is also just substantial compliance
23· · ·language in the CUP itself and then I think what's
24· · ·important, and I don't want to just reiterate what's in
25· · ·the brief.· And on page 9 of the motion, there's a nice
26· · ·summary of how 19100 is using that -- that discretionary
27· · ·type of language.· And then before I go on, I will just
28· · ·note that Section 104 is about the application process,
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February 22, 2024
·1· · ·so I think now that the mine is in operation, 104 is
·2· · ·applicable, but I think what hasn't been covered in the
·3· · ·papers, so I kind of want to bring it to the forefront
·4· · ·here.
·5· · · · · · · You can look at what the ask is to determine
·6· · ·that it's not a ministerial duty.· You know, it is in
·7· · ·the -- it's the Monterey Coastkeeper's case that's cited
·8· · ·in the papers.· It's a '22 case and has a nice
·9· · ·discussion about discretionary ministerial duties.· And
10· · ·in that case, it discusses two other cases, the Timmons
11· · ·case and the common case where there was discussion of
12· · ·whether, you know, a temporary guardian was supposed to
13· · ·obtain some benefits, whether it -- the reimbursement
14· · ·was supposed to be issued, very concrete, clear, these
15· · ·facts have been met, the County must take this action or
16· · ·the agency must take this action.· Here Mr. Biane is
17· · ·here asking for the mine to be -- activities to be
18· · ·suspended until there's compliance or the County should
19· · ·take, quote, specific actions necessary.
20· · · · · · · THE COURT:· Mr. Diamond, I'm just going to
21· · ·interrupt you briefly.· I know our court reporter is
22· · ·working hard.
23· · · · · · · MR. DIAMOND:· I apologize.
24· · · · · · · THE COURT:· You may be working her a little
25· · ·too hard, so slow down just a little.
26· · · · · · · MR. DIAMOND:· So just to back up.· The case
27· · ·law has this hallmark of ministerial duties where it's a
28· · ·very clear action.· The County just goes and takes -- it
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February 22, 2024
·1· · ·issues the payment.· It issues the permit.· The ask here
·2· · ·is for the County to take some undefiance specific set
·3· · ·of actions, but whose going to determine what those
·4· · ·actions are?· Who decides when they are back in
·5· · ·compliance?· Who decides whether the County's action so
·6· · ·far are already satisfied?· So you could just look at
·7· · ·the statutory language and then ask to see that the
·8· · ·hallmark of ministerial duties is just not present here.
·9· · ·And to the extent that Mr. Biane would like to shift the
10· · ·focus away from the ordinances that he relies on to look
11· · ·at the CUP itself.
12· · · · · · · In the CUP, there's substantial conformance
13· · ·language.· No project is going to be perfect.· And under
14· · ·their argument, apparently if one grain of dirt is out
15· · ·of place, you know, there's a ministerial duty for the
16· · ·Court or for the County to shut down the mine and that's
17· · ·just not the law.· It requires judgment.· It's not a --
18· · ·it's not the prescribed manner dictated in the statute.
19· · ·The County must evaluate the circumstances, evaluate its
20· · ·resources and determine what actions to take and
21· · ·Mr. Biane is simply not allowed to serve that discretion
22· · ·because he has his own personal preferences of about how
23· · ·these things should be enforced.
24· · · · · · · Again, the language of the ordinance is
25· · ·replete with may language because the County must
26· · ·determine whether or not it's going to move forward with
27· · ·those actions and Mr. Biane should not be allowed to
28· · ·serve that discretionary authority.· I can move on to
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February 22, 2024
·1· · ·the next topic, so I would like to handle this and clear
·2· · ·it up for everybody which is Cause of Action No. 5 --
·3· · ·out of order here because they are related.· I will note
·4· · ·that Judge Foley right out of the gate and the last
·5· · ·number noted that the gravamen of the complaint sounds
·6· · ·in mandamus, sustained the demurrer.· The only things
·7· · ·that were added is that the Court shall now find that
·8· · ·these new causes of action are, you know, declared that
·9· · ·they are rightfully these new causes of action, but then
10· · ·the underlying -- the underpinning of the case is still
11· · ·the same as it was the last time around and so it should
12· · ·be sustained again.
13· · · · · · · The opposition seems to say, well, you know,
14· · ·it doesn't really neatly fit into a challenge of a
15· · ·policy or a challenge of the application of the policy
16· · ·so we get to do both, but that's -- that's not true.
17· · ·The -- it's clear that Mr. Biane is upset in how the
18· · ·County is enforcing its laws against the mind is the
19· · ·application of the law to this situation, not a
20· · ·challenge to the law itself, but the allegation 178 says
21· · ·that the County has breached its obligation under the
22· · ·statutes and I'm challenging the statutes to say that
23· · ·the County is not doing what it's supposed to do under
24· · ·the statutes and under Sheets' sole and proper remedy to
25· · ·do that is under administrative mandamus, under 1085 or
26· · ·1094 and that has its own separate set of procedural
27· · ·elements that this then fits into.
28· · · · · · · The case is cited to by Mr. Biane in his Saman
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February 22, 2024
·1· · ·(phonetic) case -- Meredith, Clovis.· They are all
·2· · ·challenging policies overarching SUAA legislative
·3· · ·policies.· There's no allegation against the County that
·4· · ·they have some policy of not enforcing the MMRP.· They
·5· · ·can't allege that because there isn't one, so the --
·6· · ·it's clear here this is a one off application of the
·7· · ·laws to the situation.· And in that situation,
·8· · ·administrative mandamus is the sole and proper remedy
·9· · ·under Sheets.· Again, that was originally sustained and
10· · ·there should not be leave to amend yet again, because it
11· · ·cannot be remedied.
12· · · · · · · Moving on to the civil rights cause of action.
13· · ·Excuse me.
14· · · · · · · THE COURT:· And the Court will note as to
15· · ·causes of action three and four that those are again new
16· · ·causes of action.· It will be within the Court's
17· · ·discretion to -- to strike those causes of action as
18· · ·being beyond the scope of the permitted amendment in the
19· · ·prior order.· The Court's inclined to not do that and to
20· · ·-- since we would simply be, you know, back here for a
21· · ·motion for a leave to amend to add those.· And the Court
22· · ·is inclined to -- to consider the third and fourth
23· · ·causes of action and the County's -- the County's
24· · ·demurrer.
25· · · · · · · MR. DIAMOND:· Your Honor, the County had
26· · ·stipulated with opposing party to allow these to be
27· · ·added in to avoid the unnecessary need to amend in that
28· · ·process.
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·1· · · · · · · THE COURT:· Okay.· I appreciate that.
·2· · · · · · · MR. DIAMOND:· Yeah.· I might as well get
·3· · ·through these now.· So the civil rights cause of action,
·4· · ·you know, at the outset -- this is discussed in the
·5· · ·Stubberfield case that we cite.· You know, not every --
·6· · ·not every disagreement with the government arises to a
·7· · ·civil rights -- arises to a civil rights cause of
·8· · ·action.· That's why the court's often apply for an
·9· · ·extension doctrine to refrain from turning a simple land
10· · ·use dispute into a civil rights cause of action, and so
11· · ·there's two kind of theories they have here, a due
12· · ·process theory and a first amendment theory.· The crux
13· · ·of the due process claim is that by failing to enforce
14· · ·the MMRP, he's been deprived properly without due
15· · ·process and so here -- and we've discussed this with
16· · ·Your Honor in the past.· The whole claim turns on a
17· · ·reading of mitigation under 413-3.
18· · · · · · · And the idea that you can just disregard the
19· · ·temporal elements of that -- of that mitigation measure
20· · ·which rendering anything applicable to the complaint is
21· · ·not how the Court should read the measure.· It's clear
22· · ·on its face that the repair had to occur prior to
23· · ·commencement of operations, so if his complaints are
24· · ·about trucks going by during operation, the mitigation
25· · ·measure simply doesn't apply, so the opposition says,
26· · ·Well, we should look at the intent, and the intent was
27· · ·to videotape all the roads for the project.· That means
28· · ·Granite was somehow required to videotape all the
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February 22, 2024
·1· · ·hundreds of roads that these trucks will drive on
·2· · ·throughout the course of the 30-year project.
·3· · · · · · · That can't be the intention and it's not what
·4· · ·the mitigation measure says on its face, so it's
·5· · ·inapplicable that the due process violation cause of
·6· · ·action fails.· And because there's no -- because there's
·7· · ·no way to change the language of the MMRP, there's no
·8· · ·reason to grant leave to amend to -- to try to satisfy
·9· · ·this unavailable or try to make a viable claim for due
10· · ·process.· On the first amendment side, the 1983 claim,
11· · ·the Price v. Hawaii case that we cited too at 707708,
12· · ·it's very clear that inclusory unsupported allegations
13· · ·will be rejected as an insufficient stated claim of the
14· · ·Civil Rights Act.
15· · · · · · · That case is specifically about whether
16· · ·someone is acting under government state law.· There's
17· · ·no allegation the County has ever spoken to one of these
18· · ·hollers.· Just because some hollers are taking issue
19· · ·with the evidence collections methods of Mr. Biane and
20· · ·the County is simultaneously interpreting the MMRP is
21· · ·not prohibiting traffic on Rancho Road doesn't mean
22· · ·those things are happening in concert or in
23· · ·coordination.· There's no evidence of that.· There's no
24· · ·allegation that substantiates that conclusion.· It's
25· · ·just that there's appearance of coordination.· And while
26· · ·you may believe that to be true, there's no underlying
27· · ·factual allegations to support that conclusion of
28· · ·coordination and so I'm impressed.· We think that that
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February 22, 2024
·1· · ·fails.
·2· · · · · · · Now, the opposition also takes this position
·3· · ·as Your Honor mentioned, that the County's failure to
·4· · ·act is somehow actionable that they are required to go
·5· · ·police these third parties.· Now, certainly the County
·6· · ·can't -- doesn't have the resources, the manpower to
·7· · ·stop every altercation that occurs in the County.· And
·8· · ·so the Park v. Honolulu case is under the Ninth Circuit
·9· · ·case in 2020 cited in the papers says, if you're going
10· · ·to try to pursue an agency or the government for
11· · ·inaction, you have to be alleging some sort of policy
12· · ·and that that policy amounts to a delivery indifference
13· · ·to the rights of the plaintiff and that the policy was a
14· · ·moving force in the violation, so there's no policy
15· · ·alleged that we're going to go allow hollers to harass
16· · ·me.
17· · · · · · · There's no allegation and it cannot be an
18· · ·allegation that these hollers are doing it because
19· · ·the County told them to.· These are nonstate actors.
20· · ·The third parties that are getting into altercations on
21· · ·the roads outside of Kern County.· Obviously, the County
22· · ·would prefer that not to be occurring, but it doesn't
23· · ·arrive to a first amendment violation because it is.
24· · · · · · · Then, finally, moving on to the fourth cause
25· · ·of action in first condemnation, I think -- and this
26· · ·kind of runs throughout -- a few of the causes of
27· · ·action.
28· · · · · · · The Court can think about this cause of action
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·1· · ·is not containing any limited principal.· The state
·2· · ·action that they are saying that occurs here is that,
·3· · ·well, the County approved the project and they are
·4· · ·required to maintain the roads.· And if that's all
·5· · ·that's necessary for taking this cause of action, then
·6· · ·if the County approves it in and out, everybody around
·7· · ·the -- around the in and out has the inverse
·8· · ·condemnation cause of action, because the traffic levels
·9· · ·increased on a pre-existing road.
10· · · · · · · All the cases I cited to are about roads being
11· · ·built, land taken for the construction of the road.
12· · ·Certainly, that will be a taking, but the road is
13· · ·already there and an increased level of traffic on that
14· · ·road doesn't make it -- doesn't constitute a taking.
15· · · · · · · And if that were the case, like I said, there
16· · ·would be dozens and dozens of actionable takings all
17· · ·around the project and every time the County approved
18· · ·any sort of business permit, so I think that's not what
19· · ·the law is.· The Dina case, a 2017-case, you know,
20· · ·there's three kind of pathways for the taking -- the
21· · ·physically evaded -- physically taking.· It's been
22· · ·damaged where there's been some sort of intangible
23· · ·intrusion, but it has to be peculiar.
24· · · · · · · So although they seem to take the position
25· · ·that they are not pursuing the intrusion, the intangible
26· · ·intrusion theory, it would fail regardless because
27· · ·there's no peculiarity.· The burden placed on
28· · ·Mr. Biane's farm is identical to the burden placed on
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February 22, 2024
·1· · ·every other farm along Rancho Road, every other farm
·2· · ·along Sebastian Road which was in the traffic study that
·3· · ·Mr. Biane likes to refer to as the only approved access
·4· · ·route.
·5· · · · · · · Those people would all have the same interest
·6· · ·in this cause of action.· There's no peculiarity.· The
·7· · ·whole point of that element is so that you can't just
·8· · ·have a wide swap of neighborhoods all claiming that
·9· · ·their land has been condemned.· They say they are now
10· · ·pursuing that in the -- intangible intrusion theory. I
11· · ·think most of the safety arguments they are making would
12· · ·have fallen into that category.· But like I said, it
13· · ·would fail because of peculiarity.· And then on the
14· · ·damages side, the law is clear that trucks -- the lawful
15· · ·cars traveling down the highway are not actual damages.
16· · ·The Simons case, it didn't quite follow the analysis in
17· · ·the opposition.
18· · · · · · · There was land actually taken from Simons
19· · ·which she was compensated for and then he made an
20· · ·argument that the additional traffic near his road
21· · ·amounted to an additional taking and the Court rejected
22· · ·that argument, so Simons is very clear on that point and
23· · ·I can quote you a provision of that or the section of
24· · ·that if the Court would like.· And then also the
25· · ·Lombardi case, a 1968 case.· I don't think it's cited in
26· · ·the papers, so I will just say it's 266 Cal.App.2nd 605.
27· · ·We've discussed it in previous hearings.· But the
28· · ·general take away from Lombardi is that all households
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·1· · ·in the vicinity of crowded freeways suffer from noise,
·2· · ·smoke and fumes.
·3· · · · · · · While they are obnoxious to all persons, they
·4· · ·must be endured about -- address.· Again, I sympathize
·5· · ·with Mr. Biane.· You know, the increase in traffic near
·6· · ·his farm.· It's annoying I'm sure, but it is not an
·7· · ·actionable lawsuit.· It is part of being in a growing
·8· · ·society.· He's not entitled to the volume of trucks and
·9· · ·the volumes of traffic on Rancho Road remaining constant
10· · ·from 1989 to 2025.· That's just not -- that's not
11· · ·entitlement under the law that he's allowed to pursue.
12· · ·I'm happy to answer any questions and respond to
13· · ·Mr. Wood.
14· · · · · · · THE COURT:· Thank you, Mr. Diamond.
15· · · · · · · Mr. Wood, how is it that you folks would like
16· · ·to divide up the argument?
17· · · · · · · MR. WOOD:· Certainly, Your Honor.
18· · · · · · · Mr. Gosney will speak to the second and
19· · ·fourth, third and fifth cause of action and in response
20· · ·to the cause of action.
21· · · · · · · THE COURT:· Okay.· The second and fourth and
22· · ·third and fifth.· All right.· Who is starting?
23· · · · (Reporter reported proceedings to the best of her
24· · · · · ability as remote connection was distorted.)
25· · · · · · · MR. WOOD:· I will start, Your Honor, with the
26· · ·third and fourth cause of action to civil rights.· And
27· · ·the reason I would like to do that, Your Honor, is that
28· · ·the way the third cause of action approach is better
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·1· · ·than diplomatic of the way the Granite -- I'm sorry, the
·2· · ·County approaches the -- it's been approaching to this
·3· · ·date.· I would like to encourage the Court to focus on
·4· · ·what this actually says instead of what the County
·5· · ·wishes to say, because what seems to be happening here
·6· · ·and what the case in the merge papers are replete with
·7· · ·is a lot of strong argument and added certain -- where,
·8· · ·you know, they are taking -- they are taking something
·9· · ·that we don't allege, claiming we allege it.· And then,
10· · ·you know, produce it to absurdity.· This is just not
11· · ·what's happening and then, you know, it's curious that
12· · ·what's really concerning is that there's a lot of
13· · ·accusation that, Oh, we don't find any law or fact.
14· · · · · · · If you carefully look to their reply in their
15· · ·opposition.· Well, it's noted that except in one or two
16· · ·cases, there's not a single case cited in their reply --
17· · ·it discusses any cases that we discuss in our opposition
18· · ·and there's not a single case in their opposition.· The
19· · ·reply is just a retribution of again what the County
20· · ·wishes the case is about and we caution the Court about
21· · ·that in their opposition and we encourage you to
22· · ·maintain that caution.· And what -- and in the cases
23· · ·that they do cite, Your Honor, very, very concerning
24· · ·that there is -- it's just a completeness instruction
25· · ·and I'm sure it's misleading of what one of the cases
26· · ·they cite in their -- in just the Honolulu case that
27· · ·they cite.· They try to -- they describe what they claim
28· · ·it says.· But if Your Honor looks at the actual
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·1· · ·language, it doesn't say that, so I would like to
·2· · ·actually read that portion of the case for you.· The
·3· · ·quote -- the quote is the remaining question is whether
·4· · ·Park is possibly alleged in the claim against
·5· · ·the County.
·6· · · · · · · · (Clarification by the reporter.)
·7· · · · · · · THE COURT:· Mr. Wood, your connection is not
·8· · ·great.· As I mentioned earlier, there's -- there's a
·9· · ·little bit of static.· It's just -- I think the court
10· · ·reporter can get most or almost all of what you're
11· · ·saying, but you do have to slow down particularly when
12· · ·you're reading, so if you can start over with that.
13· · · · · · · MR. WOOD:· Sure.· So the concern I was
14· · ·expressing, there's a case that was cited in the reply
15· · ·regarding civil rights and this was Park v. City and
16· · ·County of Honolulu, Ninth Circuit 2020 952 F.3d 1136,
17· · ·1142 and the concern is that the opposition, I'm sorry,
18· · ·the reply, that's one thing, but the language of the
19· · ·case itself is different.
20· · · · · · · So what the case itself says, quote, a
21· · ·municipality may be held liable as a person under 42 USC
22· · ·Section 1983, when it maintains a policy or custom that
23· · ·causes the deprivation of a plaintiff's federally
24· · ·protected claim.· There's another cite to the Supreme
25· · ·Court case.· To state such a claim, plaintiff must
26· · ·allege either that one, a particular municipal action
27· · ·itself by the law and go back to the employee to do so.
28· · ·Or, two, municipality through an action fails to
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·1· · ·implement adequate policies or procedures, the state
·2· · ·charges either be met federally protected right.· And,
·3· · ·again, there's some citation.· When adhered, a plaintiff
·4· · ·pursues liability based on a failure to act, she must
·5· · ·allege that the municipality exhibited, very indifferent
·6· · ·by a federally protected right.
·7· · · · · · · And then it says, we agree with the District
·8· · ·Court that as far as Monell, that's M-o-n-e-l-l.· Claim
·9· · ·must be dismissed because she does not follow the
10· · ·alleged county's action reflected with indifferent
11· · ·report defendant -- the deliberate and indifferent is a
12· · ·stringent standard of policy requiring the municipal
13· · ·factors disregarded a known or obvious action and that,
14· · ·Your Honor, is what the petition alleges.
15· · · · · · · The petition alleges that the County is well
16· · ·aware of Mr. Biane's concern regarding what's happening
17· · ·to them on the road and that he's being threatened and
18· · ·that rights are being interfered.· The County --
19· · ·the County is also aware through the very fact that this
20· · ·litigation that that's not available.· Allegations
21· · ·regarding the events that happened in March of 2023 were
22· · ·provided to county or counsel that close in time when it
23· · ·happened and the actions that are described for
24· · ·September and October of 2023 were described in the
25· · ·motion for preliminary injunction that was provided to
26· · ·-- that was provided to the County counsel and -- at
27· · ·that time -- at that time as well.· The complaint was
28· · ·also replete with allegations that throughout this time
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·1· · ·-- throughout 2021, 2022 and until the case was filed,
·2· · ·plaintiff was in constant communication with the County
·3· · ·about an issue on the road and the County simply failed
·4· · ·to do anything about it.
·5· · · · · · · And the reality, Your Honor, is that had --
·6· · ·were the County enforcing its policies, were the County
·7· · ·enforcing the mitigation measures that it put in place,
·8· · ·this would not be happening because these people would
·9· · ·not be on the road.· And because these people are on the
10· · ·road and using this route incessantly in violation of
11· · ·it, and the County deliberately decided to do nothing
12· · ·about it and that was issued in the complaint too.
13· · · · · · · That is what is leading to the violation.· And
14· · ·it's important that the Court keep in mind and not give
15· · ·a short trip that the County wants to give.· The fact
16· · ·that the Court previously overruled the demurrer, the
17· · ·first cause of action.· The demurrer is the first cause
18· · ·of action.· I'm sorry, the Court in overruling --
19· · ·merging the first cause of action essentially found that
20· · ·we have pled adequate facts now, granted we need to
21· · ·prove it down the road, the existing demurrer provided
22· · ·adequate facts to establish an entitlement to a writ of
23· · ·mandate based on the failure to follow the language that
24· · ·the MMRP.· And now I understand Counsel is taking
25· · ·issue --
26· · · · · · · MR. DIAMOND:· Your Honor, I thought Mr. Gosney
27· · ·was going to be discussing the MMRP in CEQA.
28· · · · · · · MR. WOOD:· Okay.· Because this is coming up,
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·1· · ·I'm just noting the time limits on the civil rights
·2· · ·cause of action and certainly Mr. Gosney can speak to
·3· · ·that, but because Mr. Diamond has blended these two
·4· · ·issues, I'm trying to be respectful to the Commissioner,
·5· · ·but the premise of the first cause of action on the MMRP
·6· · ·that has been overruled, that is a viable claim right
·7· · ·now.
·8· · · · · · · And one of the premises for our civil rights
·9· · ·cause of action is that very violation, but that
10· · ·continues, that cause of action is repleting which is
11· · ·because that demurrer was overruled and the premise for
12· · ·this cause of action date and the County's refusal at
13· · ·this stage to act as pled to the nonestablished and
14· · ·deliberate and different under the actual language that
15· · ·the Park v. City of Honolulu case states.
16· · · · · · · Now, there's a lot of discussion in the reply
17· · ·and the moving paper that says, well, gosh, you know,
18· · ·you said it appears with the County and the people
19· · ·aren't reporting anything.· It certainly, you know, is
20· · ·noted what the pleading standards are and we truthfully
21· · ·state on the information that's available to us at that
22· · ·time.· Certainly, the causes of action need to be more
23· · ·specifically flushed out from some of the things that I
24· · ·had just explained to, Your Honor, that we believe that.
25· · · · · · · But it's important to remember that we're at
26· · ·demurrer of this stage.· And at this stage, we would
27· · ·have to take over what we're saying is true.· And what
28· · ·we're saying is true to explain.· And, frankly, it is.
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1 ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP 2 ANDREW A. WOOD (BAR NO. 279403) KELLY C. SMITH (BAR NO. 308013) 3 RACHEL A. ROSENBLUM (BAR NO. 341011) 2010 Main Street, 8th Floor 4 Irvine, California 92614-7214 Phone: (949) 553-1313 5 Fax: (949) 553-8354 E-Mail: awood@allenmatkins.com 6 ksmith@allenmatkins.com rrosenblum@allenmatkins.com 7 Attorneys for Plaintiff and Petitioner 8 JP Biane Farms 9 SUPERIOR COURT OF CALIFORNIA 10 FOR THE COUNTY OF KERN 11 12 JEAN-PIERRE BIANE, doing business as JP Case No. BCV-22-103359 (TMS) BIANE FARMS, 13 ASSIGNED FOR ALL PURPOSES TO Plaintiff, Judge T. Mark Smith, Dept. T-2 14 vs. PLAINTIFF JEAN-PIERRE BIANE’S 15 NOTICE OF LODGING HEARING COUNTY OF KERN, and DOES 1 through 50, TRANSCRIPT OF DEFENDANT COUNTY 16 inclusive, OF KERN’S DEMURRER TO PLAINTIFF’S SECOND AMENDED PETITION HEARING 17 Defendants. Date: February 22, 2024 18 Time: 8:30 a.m. Div.: T-2 19 Complaint Filed: Dec. 13, 2022 20 Amended Complaint Filed: June 15, 2023 Trial Date: None Set 21 22 PLEASE TAKE NOTICE that Plaintiff and Petitioner Jean-Pierre Biane, doing business as JP 23 Biane Farms (“Biane”), hereby lodges with the Court the certified hearing transcript of Defendant 24 County of Kern’s Demurrer to Plaintiff’s Second Amended Petition Hearing, which took place on 25 February 22, 2024. 26 27 28 LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP -1- 4858-6911-9145.1 NOTICE OF LODGING HEARING TRANSCRIPT 1 Dated: February 26, 2024 ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP 2 ANDREW A. WOOD KELLY C. SMITH 3 RACHEL A. ROSENBLUM 4 By: 5 ANDREW A. WOOD Attorneys for Plaintiff 6 Jean-Pierre Biane 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP -2- 4858-6911-9145.1 NOTICE OF LODGING HEARING TRANSCRIPT 1 PROOF OF SERVICE 2 I am employed in the County of Orange, State of California. I am over the age of eighteen (18) and am not a party to this action. My business address is 2010 Main Street, 8th Floor, Irvine, 3 California 92614-7214. 4 On February 26, 2024, I served the within document(s) described as: 5 PLAINTIFF JEAN-PIERRE BIANE’S NOTICE OF LODGING HEARING TRANSCRIPT OF DEFENDANT COUNTY OF KERN’S DEMURRER TO 6 PLAINTIFF’S SECOND AMENDED PETITION HEARING 7 on the interested parties in this action as stated below: 8 P. Randolph Finch Jr., Esq. Attorneys for Defendant Andrea L. Petray, Esq. County of Kern 9 Thomas E. Diamond, Esq. Finch, Thornton & Baird, LLP 10 4747 Executive Drive, Suite 700 San Diego, California 92121-3107 11 Telephone: (858) 737-3100 Facsimile: (858) 737-3101 12 pfinch@ftblaw.com apetray@ftblaw.com 13 tdiamond@ftblaw.com 14 Natasha L. Horn, Sr. Paralegal nhorn@ftblaw.com 15 Heidi Baeza-Rivas 16 hbaeza-rivas@ftblaw.com 17 BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on and in accordance with a court order or agreement of the parties to accept service by e-mail or electronic transmission, 18 I caused a true copy of the document to be sent to the persons at the corresponding electronic address as indicated above on the above-mentioned date. My electronic notification address 19 is kspake@allenmatkins.com. I am readily familiar with this firm’s Microsoft Outlook electronic mail system and did not receive any electronic message or other indication that 20 the transmission was unsuccessful. 21 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 22 Executed on February 26, 2024, at Irvine, California. 23 24 Kimberly A. Spake 25 (Type or print name) (Signature of Declarant) 26 27 28 LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP -3- 4858-6911-9145.1 NOTICE OF LODGING HEARING TRANSCRIPT Transcript of Proceedings February 22, 2024 · · · · · · · SUPERIOR COURT OF THE STATE OF CALIFORNIA · · · · · · · · · · IN AND FOR THE COUNTY OF KERN · · · · · · · · · · · · METROPOLITAN DIVISION · · · · · · · ·HON. T. MARK SMITH, JUDGE, DEPARTMENT T2 · · · ·_________________________ · · ·JEAN-PIERRE BIANE DBA· · ·) · · ·JP BIANE FARMS,· · · · · ·) · · · · · · · · · · · · · · · ·) · · · · · · · · · · · · · · · ·) · · ·PETITIONER,· · · · · · · ·) PAGES 1 - 41 · · · · · · · · · · · · · · · ·) · · · · · · · ·VS.· · · · · · ·) CASE NO. BCV-22-103359 · · · · · · · · · · · · · · · ·) · · ·COUNTY OF KERN,· · · · · ·) · · · · · · · · · · · · · · · ·) · · ·RESPONDENT.· · · · · · · ·) FEBRUARY 22, 2024 · · ·_________________________ ) · · · · · · · · · · ·REPORTER'S TRANSCRIPT OF PROCEEDINGS · · · · · · · · · · · · · · · ·APPEARANCES: · · · · ·FOR THE· · · · · · · ALLEN MATKINS · · · ·PETITIONER:· · · · · BY:· ANDREW WOOD, ESQUIRE · · · ·(VIA REMOTE)· · · · ·BY:· PAIGE GOSNEY, ESQUIRE · · · · · · · · · · · · · · 2010 Main Street, 8th Floor · · · · · · · · · · · · · · Irvine, California 92614 · · · · · · · · · · · · · · (949) 851-5421 · · · · · · · · · · · · · · awood@allenmatkins.com · · · · · · · · · · · · · · pgosney@allenmatkins.com · · · · ·For the· · · · · · · FINCH, THORNTON & BAIRD · · · ·RESPONDENT:· · · · · By:· THOMAS DIAMOND, Esquire · · · · · · · · · · · · · · 4747 Executive Drive, Suite 700 · · · · · · · · · · · · · · San Diego, California 92121 · · · · · · · · · · · · · · (858) 737-3100 · · · · · · · · · · · · · · tdiamond@ftblaw.com · · · · ·Also Present:· · · · BRIAN VAN WYK, ESQUIRE · · · ·(VIA REMOTE) · · · · ·Reported By:· · · · ·Cindy R. Bowden, CSR 12962 · · · · · · · · · · · · · · Registered Merit Reporter · · · · · · · · · · · · · · Official Pro Tem Court Reporter · U.S. Legal Support | www.uslegalsupport.com · YVer1f Transcript of Proceedings February 22, 2024 ·1· · · · · · · · · · · · · · ·SESSIONS ·2· · · · · · · · · · · · · · · · · · · · · · · · · · · · PAGE ·3· · THURSDAY, FEBRUARY 22, 2024 · · · · MORNING SESSION· · · · · · · · · · · · · · · · · · · 3 ·4 · · · · Demurrer Hearing· · · · · · · · · · · · · · · · · · ·3 ·5 ·6 ·7 ·8 ·9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U.S. Legal Support | www.uslegalsupport.com 2 YVer1f Transcript of Proceedings February 22, 2024 ·1· · · · · ·BAKERSFIELD, CA; THURSDAY, FEBRUARY 22, 2024 ·2· · · · · · · · · · · · ·MORNING SESSION ·3· · · · · · DEPARTMENT T2· · · · T. MARK SMITH, JUDGE ·4· · · · · · · · · · · · · ·---oo0oo--- ·5· · · · · · · THE COURT:· We will call the matter of Biane ·6· · ·vs. County of Kern, Case No. BCV-22-103359. ·7· · · · · · · THE CLERK:· We do have a court reporter, ·8· · ·Your Honor. ·9· · · · · · · MR. WOOD:· Good morning, Your Honor.· This is 10· · ·Andrew Wood for petitioner. 11· · · · · · · MR. GOSNEY:· Good morning, Your Honor.· Paige 12· · ·Gosney on behalf of petitioner Biane. 13· · · · · · · THE COURT:· Mr. Wood, can you try your 14· · ·microphone again?· We are having difficulty picking it 15· · ·up. 16· · · · · · · MR. WOOD:· Sure.· Is this better, Your Honor? 17· · · · · · · THE COURT:· That's a little better.· Okay. 18· · ·And we do have a reporter for purposes of the hearing. 19· · ·The Court will appoint reporter Cindy Bowden as reporter 20· · ·Pro Tem for the purposes of this proceeding. 21· · · · · · · MR. DIAMOND:· Thomas Diamond on behalf of the 22· · ·County of Kern and Mr. Van Wyk is here as well to watch 23· · ·the proceedings. 24· · · · · · · MR. VAN WYK:· Good morning, Your Honor. 25· · ·Brian Van Wyk from the County of Kern. 26· · · · · · · THE COURT:· Good morning.· All right.· This is 27· · ·on for a -- the County of Kern's demurrer to the second 28· · ·amended petition for writ of mandate and complaint. U.S. Legal Support | www.uslegalsupport.com 3 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·It's also on for further case management conference.· We ·2· · ·will take up the demurrer first.· The Court has reviewed ·3· · ·the papers filed in connection with the demurrer.· The ·4· · ·Court does not have a tentative at this point.· The ·5· · ·Court does have some thoughts and would like to hear ·6· · ·argument.· The prior demurrer was overruled as to the ·7· · ·first cause of action, so the County -- as to the second ·8· · ·amended petition demurrers to the second through the ·9· · ·fifth causes of action.· The second -- the second and 10· · ·the fifth causes of action were -- the demurrers were 11· · ·sustained with the need to amend the third and fourth 12· · ·causes of action are new to this petition. 13· · · · · · · As to the Court's substantive thoughts, the 14· · ·second cause of action is a writ under CCP 1085 15· · ·directing the County to perform obligations under the 16· · ·Kern County code of ordinances and an initial issue on 17· · ·this cause of action is whether the ordinances are 18· · ·ministerial or discretionary.· The Court would like 19· · ·counsel to focus on the language particularly in 19.104 20· · ·and 19.102.020 as to the language of the ordinances that 21· · ·would indicate whether they are, in fact, discretionary 22· · ·or ministerial. 23· · · · · · · As to the third cause of action, paragraph 141 24· · ·of the second amended petition pleads that the County 25· · ·has violated petitioner's first amendment rights to 26· · ·speech and petition by failing to prevent and thus 27· · ·knowingly permitting Granite and its truckers from 28· · ·threatening, intimidating and costing Mr. Biane from U.S. Legal Support | www.uslegalsupport.com 4 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·documenting this lawsuit.· The question then becomes to ·2· · ·what extent the County has a duty to prevent or control ·3· · ·the third parties' actions in the context of the ·4· · ·allegations.· As to the fourth cause of action for ·5· · ·inverse condemnation, the Court would like to hear ·6· · ·arguments as to the issue of whether plaintiff has ·7· · ·adequately planned a causal relationship between the ·8· · ·government electivity and the property cross complained ·9· · ·of, so with those comments being made, the Court would 10· · ·like to hear argument.· We will start with the moving 11· · ·party. 12· · · · · · · MR. DIAMOND:· Thank you, Your Honor. 13· · · · · · · At the outset, I did notice that Mr. Gosney is 14· · ·present again.· And we would just object to the extent 15· · ·they are intending to have multiple lawyers argue the 16· · ·motion and I think Mr. Wood is more than capable of 17· · ·representing Mr. Biane in arguing this motion and I 18· · ·think it's inequitable to have two lawyers argue on 19· · ·behalf of Mr. Biane and one lawyer argue on behalf of 20· · ·the County.· Mr. Van Wyk is here simply to supervise and 21· · ·to observe and then we would request that the Court have 22· · ·the latitude and who should be arguing on their behalf. 23· · · · · · · THE COURT:· I think that's a reasonable 24· · ·request.· The Court -- in a prior argument -- did allow 25· · ·comments from both lawyers representing plaintiff in 26· · ·that case, petitioner in this case.· However, it is the 27· · ·Court's custom to generally allow only one lawyer to -- 28· · ·to argue and the Court did note at that hearing that -- U.S. Legal Support | www.uslegalsupport.com 5 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·in that case, Granite's attorney was getting to some ·2· · ·degree double teamed in the argument, so I would ask -- ·3· · ·I assume that the petitioner has designated Mr. Wood as ·4· · ·the -- as the arguer and let's -- let's keep it to that. ·5· · ·All right. ·6· · · · · · · MR. WOOD:· I'm sorry, Your Honor.· I need to ·7· · ·be heard on that, please. ·8· · · · · · · THE COURT:· Mr. Wood? ·9· · · · · · · MR. WOOD:· Yeah, so -- Your Honor, I have two 10· · ·to three issues with -- again, the second time -- you 11· · ·know, you might remember that the presiding -- 12· · · · · · · · ·(Clarification by the reporter.) 13· · · · · · · THE COURT:· Mr. Wood, the court reporter is 14· · ·having difficulty taking down -- so taking down what 15· · ·you're saying, so it -- there is a little bit of 16· · ·interference with the line.· It's not too bad, but it 17· · ·would be better if you slow down. 18· · · · · · · MR. WOOD:· Sure.· So, you know, I will just 19· · ·note again that, you know, last time around Mr. Diamond 20· · ·tried to catch this version on -- on Mr. Biane having 21· · ·their represent -- having their -- have himself 22· · ·represented by our firm, first of all, and the Court did 23· · ·take issue with that.· I will note Mr. Biane is entitled 24· · ·to representation.· He's entitled to representation by 25· · ·the people who are qualified to represent him.· I'm not 26· · ·aware of anything in the Court's local rules that talks 27· · ·-- you know, that speaks to this issue.· We weren't on 28· · ·notice of this issue and perhaps would have prepared it U.S. Legal Support | www.uslegalsupport.com 6 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·differently for this hearing.· The fact we are being ·2· · ·sandbagged here at the last second by plaintiff's ·3· · ·frankly inequitable request is -- Mr. Biane. ·4· · · · · · · With that said, our intent certainly on a ·5· · ·couple of things, Mr. Diamond or the firm or the company ·6· · ·that's represented.· Our intent was to split the ·7· · ·argument between, you know, Mr. Gosney who is going to ·8· · ·speak to one or two causes of action and speak to the ·9· · ·other.· Again, neither of us will be jumping in on top 10· · ·of each other, so you know, I just would respectfully 11· · ·request that, you know, that the Court -- that the Court 12· · ·offer some guidance on that end. 13· · · · · · · THE COURT:· All right.· If there is a split in 14· · ·the arguments, the Court will allow that, but the Court 15· · ·-- and I believe Mr. Diamond's concerns were that if you 16· · ·have multiple lawyers arguing on the same issues.· And 17· · ·so when we get to your argument or petitioner's 18· · ·arguments, please tell us at the outset then what -- how 19· · ·the split is going to proceed.· All right. 20· · · · · · · Mr. Diamond? 21· · · · · · · MR. DIAMOND:· Thank you, Your Honor.· And I 22· · ·will just note that there doesn't seem to be any rhyme 23· · ·or reason as to when Mr. Gosney's arguing, had that been 24· · ·disclosed to us in advance that we're going to have both 25· · ·lawyers arguing, I could have divided our arguments up 26· · ·and have two lawyers present and have been able to focus 27· · ·more so.· You know, I would have objected had I known 28· · ·that there was the intention to have two parties argue U.S. Legal Support | www.uslegalsupport.com 7 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·the lawsuit, but it's fine, Your Honor.· I'm prepared to ·2· · ·discuss all the issues and I think the law is clear and ·3· · ·that the County's motion -- the demurrer should be ·4· · ·granted without the need to amend. ·5· · · · · · · So first the ministerial duty question under ·6· · ·the second cause of action.· You know, it's important to ·7· · ·recognize as the Court did that this is being brought ·8· · ·pursuant to Chapter 19, Section 100 and 104. ·9· · · · · · · Mr. Biane has a separate cause of action for 10· · ·CEQA and the MMRP.· The opposition quickly moves away 11· · ·from discussing the language of the statutes upon which 12· · ·they rely and focusing back on the CUP language and the 13· · ·MMRP language.· Now, we disagree with the interpretation 14· · ·of both documents.· But if you look at the statutes with 15· · ·Chapter 19, it's riddled with the use of may and may and 16· · ·may and may, because there's a limited amount of 17· · ·resources that the County has to make these enforcement, 18· · ·prosecutorial decisions.· And just because Mr. Biane 19· · ·files a lawsuit against the County doesn't mean that he 20· · ·now gets to decide how the County is directing those 21· · ·resources. 22· · · · · · · There is also just substantial compliance 23· · ·language in the CUP itself and then I think what's 24· · ·important, and I don't want to just reiterate what's in 25· · ·the brief.· And on page 9 of the motion, there's a nice 26· · ·summary of how 19100 is using that -- that discretionary 27· · ·type of language.· And then before I go on, I will just 28· · ·note that Section 104 is about the application process, U.S. Legal Support | www.uslegalsupport.com 8 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·so I think now that the mine is in operation, 104 is ·2· · ·applicable, but I think what hasn't been covered in the ·3· · ·papers, so I kind of want to bring it to the forefront ·4· · ·here. ·5· · · · · · · You can look at what the ask is to determine ·6· · ·that it's not a ministerial duty.· You know, it is in ·7· · ·the -- it's the Monterey Coastkeeper's case that's cited ·8· · ·in the papers.· It's a '22 case and has a nice ·9· · ·discussion about discretionary ministerial duties.· And 10· · ·in that case, it discusses two other cases, the Timmons 11· · ·case and the common case where there was discussion of 12· · ·whether, you know, a temporary guardian was supposed to 13· · ·obtain some benefits, whether it -- the reimbursement 14· · ·was supposed to be issued, very concrete, clear, these 15· · ·facts have been met, the County must take this action or 16· · ·the agency must take this action.· Here Mr. Biane is 17· · ·here asking for the mine to be -- activities to be 18· · ·suspended until there's compliance or the County should 19· · ·take, quote, specific actions necessary. 20· · · · · · · THE COURT:· Mr. Diamond, I'm just going to 21· · ·interrupt you briefly.· I know our court reporter is 22· · ·working hard. 23· · · · · · · MR. DIAMOND:· I apologize. 24· · · · · · · THE COURT:· You may be working her a little 25· · ·too hard, so slow down just a little. 26· · · · · · · MR. DIAMOND:· So just to back up.· The case 27· · ·law has this hallmark of ministerial duties where it's a 28· · ·very clear action.· The County just goes and takes -- it U.S. Legal Support | www.uslegalsupport.com 9 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·issues the payment.· It issues the permit.· The ask here ·2· · ·is for the County to take some undefiance specific set ·3· · ·of actions, but whose going to determine what those ·4· · ·actions are?· Who decides when they are back in ·5· · ·compliance?· Who decides whether the County's action so ·6· · ·far are already satisfied?· So you could just look at ·7· · ·the statutory language and then ask to see that the ·8· · ·hallmark of ministerial duties is just not present here. ·9· · ·And to the extent that Mr. Biane would like to shift the 10· · ·focus away from the ordinances that he relies on to look 11· · ·at the CUP itself. 12· · · · · · · In the CUP, there's substantial conformance 13· · ·language.· No project is going to be perfect.· And under 14· · ·their argument, apparently if one grain of dirt is out 15· · ·of place, you know, there's a ministerial duty for the 16· · ·Court or for the County to shut down the mine and that's 17· · ·just not the law.· It requires judgment.· It's not a -- 18· · ·it's not the prescribed manner dictated in the statute. 19· · ·The County must evaluate the circumstances, evaluate its 20· · ·resources and determine what actions to take and 21· · ·Mr. Biane is simply not allowed to serve that discretion 22· · ·because he has his own personal preferences of about how 23· · ·these things should be enforced. 24· · · · · · · Again, the language of the ordinance is 25· · ·replete with may language because the County must 26· · ·determine whether or not it's going to move forward with 27· · ·those actions and Mr. Biane should not be allowed to 28· · ·serve that discretionary authority.· I can move on to U.S. Legal Support | www.uslegalsupport.com 10 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·the next topic, so I would like to handle this and clear ·2· · ·it up for everybody which is Cause of Action No. 5 -- ·3· · ·out of order here because they are related.· I will note ·4· · ·that Judge Foley right out of the gate and the last ·5· · ·number noted that the gravamen of the complaint sounds ·6· · ·in mandamus, sustained the demurrer.· The only things ·7· · ·that were added is that the Court shall now find that ·8· · ·these new causes of action are, you know, declared that ·9· · ·they are rightfully these new causes of action, but then 10· · ·the underlying -- the underpinning of the case is still 11· · ·the same as it was the last time around and so it should 12· · ·be sustained again. 13· · · · · · · The opposition seems to say, well, you know, 14· · ·it doesn't really neatly fit into a challenge of a 15· · ·policy or a challenge of the application of the policy 16· · ·so we get to do both, but that's -- that's not true. 17· · ·The -- it's clear that Mr. Biane is upset in how the 18· · ·County is enforcing its laws against the mind is the 19· · ·application of the law to this situation, not a 20· · ·challenge to the law itself, but the allegation 178 says 21· · ·that the County has breached its obligation under the 22· · ·statutes and I'm challenging the statutes to say that 23· · ·the County is not doing what it's supposed to do under 24· · ·the statutes and under Sheets' sole and proper remedy to 25· · ·do that is under administrative mandamus, under 1085 or 26· · ·1094 and that has its own separate set of procedural 27· · ·elements that this then fits into. 28· · · · · · · The case is cited to by Mr. Biane in his Saman U.S. Legal Support | www.uslegalsupport.com 11 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·(phonetic) case -- Meredith, Clovis.· They are all ·2· · ·challenging policies overarching SUAA legislative ·3· · ·policies.· There's no allegation against the County that ·4· · ·they have some policy of not enforcing the MMRP.· They ·5· · ·can't allege that because there isn't one, so the -- ·6· · ·it's clear here this is a one off application of the ·7· · ·laws to the situation.· And in that situation, ·8· · ·administrative mandamus is the sole and proper remedy ·9· · ·under Sheets.· Again, that was originally sustained and 10· · ·there should not be leave to amend yet again, because it 11· · ·cannot be remedied. 12· · · · · · · Moving on to the civil rights cause of action. 13· · ·Excuse me. 14· · · · · · · THE COURT:· And the Court will note as to 15· · ·causes of action three and four that those are again new 16· · ·causes of action.· It will be within the Court's 17· · ·discretion to -- to strike those causes of action as 18· · ·being beyond the scope of the permitted amendment in the 19· · ·prior order.· The Court's inclined to not do that and to 20· · ·-- since we would simply be, you know, back here for a 21· · ·motion for a leave to amend to add those.· And the Court 22· · ·is inclined to -- to consider the third and fourth 23· · ·causes of action and the County's -- the County's 24· · ·demurrer. 25· · · · · · · MR. DIAMOND:· Your Honor, the County had 26· · ·stipulated with opposing party to allow these to be 27· · ·added in to avoid the unnecessary need to amend in that 28· · ·process. U.S. Legal Support | www.uslegalsupport.com 12 YVer1f Transcript of Proceedings February 22, 2024 ·1· · · · · · · THE COURT:· Okay.· I appreciate that. ·2· · · · · · · MR. DIAMOND:· Yeah.· I might as well get ·3· · ·through these now.· So the civil rights cause of action, ·4· · ·you know, at the outset -- this is discussed in the ·5· · ·Stubberfield case that we cite.· You know, not every -- ·6· · ·not every disagreement with the government arises to a ·7· · ·civil rights -- arises to a civil rights cause of ·8· · ·action.· That's why the court's often apply for an ·9· · ·extension doctrine to refrain from turning a simple land 10· · ·use dispute into a civil rights cause of action, and so 11· · ·there's two kind of theories they have here, a due 12· · ·process theory and a first amendment theory.· The crux 13· · ·of the due process claim is that by failing to enforce 14· · ·the MMRP, he's been deprived properly without due 15· · ·process and so here -- and we've discussed this with 16· · ·Your Honor in the past.· The whole claim turns on a 17· · ·reading of mitigation under 413-3. 18· · · · · · · And the idea that you can just disregard the 19· · ·temporal elements of that -- of that mitigation measure 20· · ·which rendering anything applicable to the complaint is 21· · ·not how the Court should read the measure.· It's clear 22· · ·on its face that the repair had to occur prior to 23· · ·commencement of operations, so if his complaints are 24· · ·about trucks going by during operation, the mitigation 25· · ·measure simply doesn't apply, so the opposition says, 26· · ·Well, we should look at the intent, and the intent was 27· · ·to videotape all the roads for the project.· That means 28· · ·Granite was somehow required to videotape all the U.S. Legal Support | www.uslegalsupport.com 13 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·hundreds of roads that these trucks will drive on ·2· · ·throughout the course of the 30-year project. ·3· · · · · · · That can't be the intention and it's not what ·4· · ·the mitigation measure says on its face, so it's ·5· · ·inapplicable that the due process violation cause of ·6· · ·action fails.· And because there's no -- because there's ·7· · ·no way to change the language of the MMRP, there's no ·8· · ·reason to grant leave to amend to -- to try to satisfy ·9· · ·this unavailable or try to make a viable claim for due 10· · ·process.· On the first amendment side, the 1983 claim, 11· · ·the Price v. Hawaii case that we cited too at 707708, 12· · ·it's very clear that inclusory unsupported allegations 13· · ·will be rejected as an insufficient stated claim of the 14· · ·Civil Rights Act. 15· · · · · · · That case is specifically about whether 16· · ·someone is acting under government state law.· There's 17· · ·no allegation the County has ever spoken to one of these 18· · ·hollers.· Just because some hollers are taking issue 19· · ·with the evidence collections methods of Mr. Biane and 20· · ·the County is simultaneously interpreting the MMRP is 21· · ·not prohibiting traffic on Rancho Road doesn't mean 22· · ·those things are happening in concert or in 23· · ·coordination.· There's no evidence of that.· There's no 24· · ·allegation that substantiates that conclusion.· It's 25· · ·just that there's appearance of coordination.· And while 26· · ·you may believe that to be true, there's no underlying 27· · ·factual allegations to support that conclusion of 28· · ·coordination and so I'm impressed.· We think that that U.S. Legal Support | www.uslegalsupport.com 14 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·fails. ·2· · · · · · · Now, the opposition also takes this position ·3· · ·as Your Honor mentioned, that the County's failure to ·4· · ·act is somehow actionable that they are required to go ·5· · ·police these third parties.· Now, certainly the County ·6· · ·can't -- doesn't have the resources, the manpower to ·7· · ·stop every altercation that occurs in the County.· And ·8· · ·so the Park v. Honolulu case is under the Ninth Circuit ·9· · ·case in 2020 cited in the papers says, if you're going 10· · ·to try to pursue an agency or the government for 11· · ·inaction, you have to be alleging some sort of policy 12· · ·and that that policy amounts to a delivery indifference 13· · ·to the rights of the plaintiff and that the policy was a 14· · ·moving force in the violation, so there's no policy 15· · ·alleged that we're going to go allow hollers to harass 16· · ·me. 17· · · · · · · There's no allegation and it cannot be an 18· · ·allegation that these hollers are doing it because 19· · ·the County told them to.· These are nonstate actors. 20· · ·The third parties that are getting into altercations on 21· · ·the roads outside of Kern County.· Obviously, the County 22· · ·would prefer that not to be occurring, but it doesn't 23· · ·arrive to a first amendment violation because it is. 24· · · · · · · Then, finally, moving on to the fourth cause 25· · ·of action in first condemnation, I think -- and this 26· · ·kind of runs throughout -- a few of the causes of 27· · ·action. 28· · · · · · · The Court can think about this cause of action U.S. Legal Support | www.uslegalsupport.com 15 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·is not containing any limited principal.· The state ·2· · ·action that they are saying that occurs here is that, ·3· · ·well, the County approved the project and they are ·4· · ·required to maintain the roads.· And if that's all ·5· · ·that's necessary for taking this cause of action, then ·6· · ·if the County approves it in and out, everybody around ·7· · ·the -- around the in and out has the inverse ·8· · ·condemnation cause of action, because the traffic levels ·9· · ·increased on a pre-existing road. 10· · · · · · · All the cases I cited to are about roads being 11· · ·built, land taken for the construction of the road. 12· · ·Certainly, that will be a taking, but the road is 13· · ·already there and an increased level of traffic on that 14· · ·road doesn't make it -- doesn't constitute a taking. 15· · · · · · · And if that were the case, like I said, there 16· · ·would be dozens and dozens of actionable takings all 17· · ·around the project and every time the County approved 18· · ·any sort of business permit, so I think that's not what 19· · ·the law is.· The Dina case, a 2017-case, you know, 20· · ·there's three kind of pathways for the taking -- the 21· · ·physically evaded -- physically taking.· It's been 22· · ·damaged where there's been some sort of intangible 23· · ·intrusion, but it has to be peculiar. 24· · · · · · · So although they seem to take the position 25· · ·that they are not pursuing the intrusion, the intangible 26· · ·intrusion theory, it would fail regardless because 27· · ·there's no peculiarity.· The burden placed on 28· · ·Mr. Biane's farm is identical to the burden placed on U.S. Legal Support | www.uslegalsupport.com 16 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·every other farm along Rancho Road, every other farm ·2· · ·along Sebastian Road which was in the traffic study that ·3· · ·Mr. Biane likes to refer to as the only approved access ·4· · ·route. ·5· · · · · · · Those people would all have the same interest ·6· · ·in this cause of action.· There's no peculiarity.· The ·7· · ·whole point of that element is so that you can't just ·8· · ·have a wide swap of neighborhoods all claiming that ·9· · ·their land has been condemned.· They say they are now 10· · ·pursuing that in the -- intangible intrusion theory. I 11· · ·think most of the safety arguments they are making would 12· · ·have fallen into that category.· But like I said, it 13· · ·would fail because of peculiarity.· And then on the 14· · ·damages side, the law is clear that trucks -- the lawful 15· · ·cars traveling down the highway are not actual damages. 16· · ·The Simons case, it didn't quite follow the analysis in 17· · ·the opposition. 18· · · · · · · There was land actually taken from Simons 19· · ·which she was compensated for and then he made an 20· · ·argument that the additional traffic near his road 21· · ·amounted to an additional taking and the Court rejected 22· · ·that argument, so Simons is very clear on that point and 23· · ·I can quote you a provision of that or the section of 24· · ·that if the Court would like.· And then also the 25· · ·Lombardi case, a 1968 case.· I don't think it's cited in 26· · ·the papers, so I will just say it's 266 Cal.App.2nd 605. 27· · ·We've discussed it in previous hearings.· But the 28· · ·general take away from Lombardi is that all households U.S. Legal Support | www.uslegalsupport.com 17 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·in the vicinity of crowded freeways suffer from noise, ·2· · ·smoke and fumes. ·3· · · · · · · While they are obnoxious to all persons, they ·4· · ·must be endured about -- address.· Again, I sympathize ·5· · ·with Mr. Biane.· You know, the increase in traffic near ·6· · ·his farm.· It's annoying I'm sure, but it is not an ·7· · ·actionable lawsuit.· It is part of being in a growing ·8· · ·society.· He's not entitled to the volume of trucks and ·9· · ·the volumes of traffic on Rancho Road remaining constant 10· · ·from 1989 to 2025.· That's just not -- that's not 11· · ·entitlement under the law that he's allowed to pursue. 12· · ·I'm happy to answer any questions and respond to 13· · ·Mr. Wood. 14· · · · · · · THE COURT:· Thank you, Mr. Diamond. 15· · · · · · · Mr. Wood, how is it that you folks would like 16· · ·to divide up the argument? 17· · · · · · · MR. WOOD:· Certainly, Your Honor. 18· · · · · · · Mr. Gosney will speak to the second and 19· · ·fourth, third and fifth cause of action and in response 20· · ·to the cause of action. 21· · · · · · · THE COURT:· Okay.· The second and fourth and 22· · ·third and fifth.· All right.· Who is starting? 23· · · · (Reporter reported proceedings to the best of her 24· · · · · ability as remote connection was distorted.) 25· · · · · · · MR. WOOD:· I will start, Your Honor, with the 26· · ·third and fourth cause of action to civil rights.· And 27· · ·the reason I would like to do that, Your Honor, is that 28· · ·the way the third cause of action approach is better U.S. Legal Support | www.uslegalsupport.com 18 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·than diplomatic of the way the Granite -- I'm sorry, the ·2· · ·County approaches the -- it's been approaching to this ·3· · ·date.· I would like to encourage the Court to focus on ·4· · ·what this actually says instead of what the County ·5· · ·wishes to say, because what seems to be happening here ·6· · ·and what the case in the merge papers are replete with ·7· · ·is a lot of strong argument and added certain -- where, ·8· · ·you know, they are taking -- they are taking something ·9· · ·that we don't allege, claiming we allege it.· And then, 10· · ·you know, produce it to absurdity.· This is just not 11· · ·what's happening and then, you know, it's curious that 12· · ·what's really concerning is that there's a lot of 13· · ·accusation that, Oh, we don't find any law or fact. 14· · · · · · · If you carefully look to their reply in their 15· · ·opposition.· Well, it's noted that except in one or two 16· · ·cases, there's not a single case cited in their reply -- 17· · ·it discusses any cases that we discuss in our opposition 18· · ·and there's not a single case in their opposition.· The 19· · ·reply is just a retribution of again what the County 20· · ·wishes the case is about and we caution the Court about 21· · ·that in their opposition and we encourage you to 22· · ·maintain that caution.· And what -- and in the cases 23· · ·that they do cite, Your Honor, very, very concerning 24· · ·that there is -- it's just a completeness instruction 25· · ·and I'm sure it's misleading of what one of the cases 26· · ·they cite in their -- in just the Honolulu case that 27· · ·they cite.· They try to -- they describe what they claim 28· · ·it says.· But if Your Honor looks at the actual U.S. Legal Support | www.uslegalsupport.com 19 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·language, it doesn't say that, so I would like to ·2· · ·actually read that portion of the case for you.· The ·3· · ·quote -- the quote is the remaining question is whether ·4· · ·Park is possibly alleged in the claim against ·5· · ·the County. ·6· · · · · · · · (Clarification by the reporter.) ·7· · · · · · · THE COURT:· Mr. Wood, your connection is not ·8· · ·great.· As I mentioned earlier, there's -- there's a ·9· · ·little bit of static.· It's just -- I think the court 10· · ·reporter can get most or almost all of what you're 11· · ·saying, but you do have to slow down particularly when 12· · ·you're reading, so if you can start over with that. 13· · · · · · · MR. WOOD:· Sure.· So the concern I was 14· · ·expressing, there's a case that was cited in the reply 15· · ·regarding civil rights and this was Park v. City and 16· · ·County of Honolulu, Ninth Circuit 2020 952 F.3d 1136, 17· · ·1142 and the concern is that the opposition, I'm sorry, 18· · ·the reply, that's one thing, but the language of the 19· · ·case itself is different. 20· · · · · · · So what the case itself says, quote, a 21· · ·municipality may be held liable as a person under 42 USC 22· · ·Section 1983, when it maintains a policy or custom that 23· · ·causes the deprivation of a plaintiff's federally 24· · ·protected claim.· There's another cite to the Supreme 25· · ·Court case.· To state such a claim, plaintiff must 26· · ·allege either that one, a particular municipal action 27· · ·itself by the law and go back to the employee to do so. 28· · ·Or, two, municipality through an action fails to U.S. Legal Support | www.uslegalsupport.com 20 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·implement adequate policies or procedures, the state ·2· · ·charges either be met federally protected right.· And, ·3· · ·again, there's some citation.· When adhered, a plaintiff ·4· · ·pursues liability based on a failure to act, she must ·5· · ·allege that the municipality exhibited, very indifferent ·6· · ·by a federally protected right. ·7· · · · · · · And then it says, we agree with the District ·8· · ·Court that as far as Monell, that's M-o-n-e-l-l.· Claim ·9· · ·must be dismissed because she does not follow the 10· · ·alleged county's action reflected with indifferent 11· · ·report defendant -- the deliberate and indifferent is a 12· · ·stringent standard of policy requiring the municipal 13· · ·factors disregarded a known or obvious action and that, 14· · ·Your Honor, is what the petition alleges. 15· · · · · · · The petition alleges that the County is well 16· · ·aware of Mr. Biane's concern regarding what's happening 17· · ·to them on the road and that he's being threatened and 18· · ·that rights are being interfered.· The County -- 19· · ·the County is also aware through the very fact that this 20· · ·litigation that that's not available.· Allegations 21· · ·regarding the events that happened in March of 2023 were 22· · ·provided to county or counsel that close in time when it 23· · ·happened and the actions that are described for 24· · ·September and October of 2023 were described in the 25· · ·motion for preliminary injunction that was provided to 26· · ·-- that was provided to the County counsel and -- at 27· · ·that time -- at that time as well.· The complaint was 28· · ·also replete with allegations that throughout this time U.S. Legal Support | www.uslegalsupport.com 21 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·-- throughout 2021, 2022 and until the case was filed, ·2· · ·plaintiff was in constant communication with the County ·3· · ·about an issue on the road and the County simply failed ·4· · ·to do anything about it. ·5· · · · · · · And the reality, Your Honor, is that had -- ·6· · ·were the County enforcing its policies, were the County ·7· · ·enforcing the mitigation measures that it put in place, ·8· · ·this would not be happening because these people would ·9· · ·not be on the road.· And because these people are on the 10· · ·road and using this route incessantly in violation of 11· · ·it, and the County deliberately decided to do nothing 12· · ·about it and that was issued in the complaint too. 13· · · · · · · That is what is leading to the violation.· And 14· · ·it's important that the Court keep in mind and not give 15· · ·a short trip that the County wants to give.· The fact 16· · ·that the Court previously overruled the demurrer, the 17· · ·first cause of action.· The demurrer is the first cause 18· · ·of action.· I'm sorry, the Court in overruling -- 19· · ·merging the first cause of action essentially found that 20· · ·we have pled adequate facts now, granted we need to 21· · ·prove it down the road, the existing demurrer provided 22· · ·adequate facts to establish an entitlement to a writ of 23· · ·mandate based on the failure to follow the language that 24· · ·the MMRP.· And now I understand Counsel is taking 25· · ·issue -- 26· · · · · · · MR. DIAMOND:· Your Honor, I thought Mr. Gosney 27· · ·was going to be discussing the MMRP in CEQA. 28· · · · · · · MR. WOOD:· Okay.· Because this is coming up, U.S. Legal Support | www.uslegalsupport.com 22 YVer1f Transcript of Proceedings February 22, 2024 ·1· · ·I'm just noting the time limits on the civil rights ·2· · ·cause of action and certainly Mr. Gosney can speak to ·3· · ·that, but because Mr. Diamond has blended these two ·4· · ·issues, I'm trying to be respectful to the Commissioner, ·5· · ·but the premise of the first cause of action on the MMRP ·6· · ·that has been overruled, that is a viable claim right ·7· · ·now. ·8· · · · · · · And one of the premises for our civil rights ·9· · ·cause of action is that very violation, but that 10· · ·continues, that cause of action is repleting which is 11· · ·because that demurrer was overruled and the premise for 12· · ·this cause of action date and the County's refusal at 13· · ·this stage to act as pled to the nonestablished and 14· · ·deliberate and different under the actual language that 15· · ·the Park v. City of Honolulu case states. 16· · · · · · · Now, there's a lot of discussion in the reply 17· · ·and the moving paper that says, well, gosh, you know, 18· · ·you said it appears with the County and the people 19· · ·aren't reporting anything.· It certainly, you know, is 20· · ·noted what the pleading standards are and we truthfully 21· · ·state on the information that's available to us at that 22· · ·time.· Certainly, the causes of action need to be more 23· · ·specifically flushed out from some of the things that I 24· · ·had just explained to, Your Honor, that we believe that. 25· · · · · · · But it's important to remember that we're at 26· · ·demurrer of this stage.· And at this stage, we would 27· · ·have to take over what we're saying is true.· And what 28· · ·we're saying is true to explain.· And, frankly, it is. U.S. Legal Support | www.uslega