[00:00:00] Speaker 04:
Good morning, Your Honors.

[00:00:02] Speaker 04:
If it may please the Court, Steve Schmidt appearing on behalf of Appellants, and I'd like to reserve five minutes of time for rebuttal.

[00:00:10] Speaker 02:
You may.

[00:00:10] Speaker 02:
Just keep an eye on the clock.

[00:00:12] Speaker 02:
Thank you very much.

[00:00:14] Speaker 04:
As the Court's aware, this was a 12b6 dismissal of a 1983 action brought by me and my wife.

[00:00:25] Speaker 04:
And under the Twombie

[00:00:28] Speaker 04:
and ICBAR standards, the complaint more than adequately alleges that the activities were those of a final decision maker by the county of Sonoma.

[00:00:41] Speaker 04:
It's very, I think, almost over-pled, but we did that out of abundance of precaution in paragraphs seven and eight of the complaint, that Dennis Wick, Dennis Wick, excuse me, Dennis Wick is the director

[00:00:57] Speaker 04:
for the county of Sonoma for its permit issuance division.

[00:01:02] Speaker 04:
He's the man in charge.

[00:01:04] Speaker 04:
That's indisputable, and in fact, it's conceded in the briefing by the other side.

[00:01:10] Speaker 04:
Moreover, even if he were not the final decision maker that issued the offending use permit here that allowed the taking of plaintiff's, excuse me, appellant's property interests,

[00:01:25] Speaker 04:
he definitely ratified the acts of the county by his subsequent acts, and that's likewise pled in those two paragraphs.

[00:01:35] Speaker 04:
So the trial court, the district court, excuse me, seemed to apply an incorrect legal proposition relying on a

[00:01:49] Speaker 04:
un-published district court decision stating that you had to have multiple acts in order to establish a policy.

[00:01:57] Speaker 04:
That is this 100%

[00:01:59] Speaker 04:
incorrect and contrary to well-established law.

[00:02:02] Speaker 04:
The Pembauer case, the United States Supreme Court cited by us, clearly, as does Monell for that matter, the Seminole case, clearly stand for the proposition that a single act, as long as it's done by a person with the requisite authority, as was president here through the acts of Dennis Wick, the director,

[00:02:24] Speaker 04:
is sufficient basis on which to hold a county responsible for the alleged wrongful conduct.

[00:02:38] Speaker 04:
This, reading the, as I say, the district court, I apologize, the district court.

[00:02:45] Speaker 05:
Mr. Schmidt, help me a little bit on county procedure.

[00:02:49] Speaker 05:
Absolutely.

[00:02:51] Speaker 05:
The use permit that allowed them to build a parking lot, who signed that?

[00:02:58] Speaker 04:
It was actually signed by Crystal Acker, at least percent.

[00:03:06] Speaker 04:
But the record is clear that.

[00:03:09] Speaker 04:
It was signed by who?

[00:03:10] Speaker 04:
Crystal Acker.

[00:03:12] Speaker 05:
Chris Acker.

[00:03:13] Speaker 05:
OK.

[00:03:14] Speaker 04:
A-C-K-E-R.

[00:03:15] Speaker 05:
OK.

[00:03:17] Speaker 05:
Now, the record is clear that what?

[00:03:20] Speaker 04:
that she is acting on behalf of the director.

[00:03:25] Speaker 04:
If you look at the notice of so-called notice of hearing waiver, it precisely states in there that the director will issue the permit.

[00:03:36] Speaker 04:
All the activities done here were done on behalf with the full knowledge of tennis wick.

[00:03:44] Speaker 04:
And that is proven by the testimony

[00:03:47] Speaker 04:
a Ms.

[00:03:47] Speaker 04:
Acker in the related state case in which she said that Ms.

[00:03:51] Speaker 04:
Tennis Wick was involved from get go on this case.

[00:03:55] Speaker 04:
And also it's proved by the allegations in paragraphs seven and eight that I personally spoke to Tennis Wick about this matter.

[00:04:04] Speaker 04:
And he confirmed his knowledge of it.

[00:04:07] Speaker 04:
And not only that, he engaged in numerous emails with me pertaining to the matter in which he unequivocally

[00:04:16] Speaker 04:
was on top of and knew about the issuance and therefore the fact that Ms.

[00:04:23] Speaker 04:
Acker nominally signed it under the Sonoma statute

[00:04:28] Speaker 04:
And for that matter, California state law, a use permit has to be either issued by the Board of Zoning Adjustments and or by a zoning director.

[00:04:39] Speaker 04:
In this case, the zoning director is, in fact, Dennis Wick.

[00:04:45] Speaker 05:
What's the role of the Board of Supervisors in the county as to the use permits?

[00:04:52] Speaker 04:
They have no role other than perhaps an appeal, Your Honor.

[00:04:59] Speaker 04:
And that, of course, as the Court's well aware, is actually, ironically enough, dealt with in a case that

[00:05:10] Speaker 04:
was not cited, because I don't think it's necessarily applicable, but the Pendell versus City of San Francisco case, 141 Supreme Court, 2020, excuse me, 2021, and 141 Supreme Court at page 20, I'll get it right, 2226.

[00:05:32] Speaker 04:
The point being, in that case, the Supreme Court

[00:05:36] Speaker 04:
It seems as though, Judge, that you might be inferring that somehow the board of supervisors was the ultimate power here.

[00:05:44] Speaker 04:
But that case held that you don't have to go through all the administrative channels.

[00:05:49] Speaker 04:
You only have to get a final decision.

[00:05:51] Speaker 04:
That case is very clear on that point.

[00:05:53] Speaker 03:
That case being the- Right, but I don't think that case deals with who's the final decision maker.

[00:05:59] Speaker 04:
Well, it says a final decision.

[00:06:02] Speaker 03:
Yeah, I mean, they're talking about what you have to do.

[00:06:06] Speaker 03:
Is it true that you can take an appeal to the zoning commission from the director's decision?

[00:06:12] Speaker 04:
No.

[00:06:13] Speaker 03:
So I'm looking at county code 2693040.

[00:06:19] Speaker 03:
Any interested person may appeal any permit issued by the planning director to the Board of Zoning Adjustments or the Planning Commission.

[00:06:28] Speaker 03:
Is that not true in Sonoma?

[00:06:29] Speaker 04:
That's not the way I understand it.

[00:06:31] Speaker 04:
The appeal would be to the Board of Supervisors.

[00:06:35] Speaker 03:
And you allege in your complaint, paragraph 7, that

[00:06:41] Speaker 03:
the Mr. Wick reports directly to the board of supervisors.

[00:06:46] Speaker 04:
That's absolutely correct to my understanding.

[00:06:49] Speaker 03:
I mean, he's subordinate to it, correct.

[00:06:50] Speaker 03:
So help me out squaring about who's the final decision maker.

[00:06:54] Speaker 04:
Well, in this scenario, it's Tennyson Wick.

[00:06:56] Speaker 04:
I mean, because what the court's Judge Thomas's question is imparting is that the appellants here had to

[00:07:07] Speaker 04:
exhaust administrative remedies, which, getting back to the Pickdell case, says, no, we're not required to do that.

[00:07:15] Speaker 03:
And it would be a... I understand your point on exhaustion.

[00:07:18] Speaker 03:
I think the issue here is a little bit different, which is, who's the final decision maker?

[00:07:24] Speaker 03:
And your contention is the fact that he directly reports to somebody else is irrelevant to the fact that whether he's the final decision maker for Monell purposes.

[00:07:35] Speaker 04:
In this scenario, for sure, Your Honor.

[00:07:37] Speaker 04:
And if I might add, the time to appeal such a final decision maker was such that that was not even possible when this whole issue arose.

[00:07:53] Speaker 04:
But if I can further add to that, Your Honor, it is clear that

[00:07:58] Speaker 04:
Dennis Wick did, and the county subsequently has confirmed the activities by the issuance of the use permit.

[00:08:07] Speaker 04:
There's no question here that the use permit constitutes the official written policy here.

[00:08:12] Speaker 02:
I just feel like there's some daylight, and I want to make sure that I'm understanding you correctly.

[00:08:16] Speaker 02:
Sure.

[00:08:16] Speaker 02:
Yeah, correctly.

[00:08:17] Speaker 02:
So you've said several times what the sequence of events was, and I think that's pretty clear from the briefing.

[00:08:23] Speaker 02:
But today, I'm not sure that I'm following you.

[00:08:26] Speaker 02:
So in addition to you saying that Wick was the one who inked the deal or made the decision, in fact, your position is that he had the authority to do that unilaterally.

[00:08:39] Speaker 04:
Unequivocally, yeah.

[00:08:40] Speaker 04:
I mean, under the statute that they rely on, the local ordinance that they rely on, the director can issue a use permit.

[00:08:51] Speaker 04:
in this instance, without a hearing.

[00:08:53] Speaker 04:
And California state law provides that either the Board of Zoning Adjustment issues they use permit or the director issues they use permit.

[00:09:03] Speaker 04:
In this scenario, the county has chosen to use the director.

[00:09:06] Speaker 04:
So the fact that ultimately the

[00:09:11] Speaker 04:
or legally, ultimately, the Board of Supervisors could maybe change that.

[00:09:17] Speaker 04:
That's not the final decision.

[00:09:21] Speaker 04:
The final decision was made when the use permit was actually issued.

[00:09:24] Speaker 02:
That was it.

[00:09:25] Speaker 02:
Well, again, that goes back to the other channel.

[00:09:28] Speaker 02:
One question is who actually took action, and you're not denying that the Board of Supervisors could have taken action, but I think what you're saying is that they didn't, so that Wick was in fact the final decision maker, and again, I'm trying to figure out whether you are also, that part I understand in your argument.

[00:09:43] Speaker 02:
I'm trying to make sure that I understand that your position is that he could have taken that action unilaterally.

[00:09:50] Speaker 02:
He had the authority to do that.

[00:09:52] Speaker 04:
yes he did absolutely under state under state law and under under the local ordinance and in fact more importantly he did do it and more importantly he approved it by subsequent events over the ensuing

[00:10:07] Speaker 04:
year, basically, when I corresponded with him, and on top of which, the county has judicially admitted in related state action that he was fully authorized to do that, and that's also alleged in the relevant paragraph sevens and eights.

[00:10:21] Speaker 02:
Okay, it wasn't a trick question, and you've answered it, and I appreciate that.

[00:10:25] Speaker 02:
You wanted to reserve, I think, five minutes, and you've got four and a half.

[00:10:29] Speaker 01:
Oh, okay.

[00:10:29] Speaker 01:
Time goes quickly when you have it fun, your honor.

[00:10:30] Speaker 02:
It does.

[00:10:31] Speaker 02:
Why don't we hear from opposing counsel, please, and then we'll reserve your time for rebuttal.

[00:10:44] Speaker 00:
May it please the court, Michael King appearing on behalf of the County of Sonoma.

[00:10:49] Speaker 00:
If I could go right to the point that you were talking about.

[00:10:53] Speaker 00:
The final decision can be made by the director if there's no public hearing requested.

[00:11:01] Speaker 00:
If a public hearing is requested, then it would go to

[00:11:05] Speaker 00:
another body, whether it be the Board of Zoning Adjustments or eventually the Board of Supervisors.

[00:11:11] Speaker 02:
On that point, are those hierarchical or is that a fork in the road?

[00:11:14] Speaker 02:
It could go either way?

[00:11:16] Speaker 00:
It would go to the Board of Zoning Adjustments first on an appeal from this decision.

[00:11:23] Speaker 00:
And then it would go to the Board of Supervisors if that was overturned.

[00:11:26] Speaker 00:
So that would be hierarchical in that fashion.

[00:11:29] Speaker 02:
All right.

[00:11:30] Speaker 00:
Thank you.

[00:11:32] Speaker 00:
And it depends upon all the circumstances.

[00:11:34] Speaker 00:
But what's pleaded in this case is a single use permit being issued in a discretionary way by a planner, Ms.

[00:11:44] Speaker 00:
Acker, and then also overseen.

[00:11:48] Speaker 00:
And the ordinance does allow for the director to issue a notice that

[00:11:59] Speaker 00:
goes out to all the local residents, nearby residents, waving a public hearing unless somebody requests one.

[00:12:08] Speaker 00:
And that's what occurred in this case.

[00:12:10] Speaker 00:
And so therefore, the use permit gets issued by

[00:12:16] Speaker 00:
the director at that point.

[00:12:18] Speaker 00:
So that's no question that he's involved in a final decision at that point.

[00:12:23] Speaker 00:
But no one requested a public hearing to Schmitz who had actual notice of it.

[00:12:28] Speaker 00:
And Mr. Schmitz alluded to the fact that there's evidence now, actual evidence, in testimony in trial court.

[00:12:36] Speaker 00:
We have now had the occasion to start

[00:12:39] Speaker 00:
uh, the proceedings in a trial involving not the same issues, but similar issues in the superior court of the state of California, uh, in Sonoma County arising from the same project.

[00:12:51] Speaker 00:
It's on the same issue, the same case, the same project, the same parties, uh, except for two rock fire department is, uh, the main participant in that action.

[00:13:05] Speaker 00:
It's actually multiple actions.

[00:13:06] Speaker 00:
And the first part, which was a court trial only on the issuance of the use permit, took place on January 16 to 18 of this year in Department 19 of the Superior Court.

[00:13:19] Speaker 00:
So some of the things that Mr. Schmidt has said as facts are in fact what transpired at the trial.

[00:13:27] Speaker 00:
So I just want the court to be aware of that.

[00:13:29] Speaker 00:
And he alluded to it, so I'm happy to agree with him on that.

[00:13:35] Speaker 00:
I think the point that

[00:13:37] Speaker 03:
Well, what impact does the state litigation have on us?

[00:13:42] Speaker 03:
I mean, does it have ... I guess I'm thinking about if there's parallel litigation going on, then abstention comes into play.

[00:13:53] Speaker 00:
Absolutely, Your Honor, and we would have made that more clear at the trial court level if

[00:14:01] Speaker 00:
the proceedings had been in a different phase as they were.

[00:14:04] Speaker 00:
We're talking about the first motion to dismiss was 2021, and the second motion to dismiss was 2022.

[00:14:12] Speaker 03:
And so ultimately, the decision in the second order was... Well, I guess what I'm asking is, in your view, are the state court proceedings determinative of

[00:14:31] Speaker 03:
the question of whether or not this was a lawful act?

[00:14:36] Speaker 00:
Of the whether or not it's a violation of due process?

[00:14:39] Speaker 00:
Absolutely.

[00:14:40] Speaker 00:
That claim is being made in the state court proceeding, not under the federal constitution.

[00:14:45] Speaker 00:
No, I understand.

[00:14:47] Speaker 00:
So the same general concept is being made in that.

[00:14:50] Speaker 00:
And so therefore, yes, I would have raised that issue if we had been in a different position.

[00:15:00] Speaker 00:
And obviously, if this matter goes back to the district court, I probably will make that point to the court.

[00:15:10] Speaker 00:
My understanding is that the argument is that the policy is being developed in some way and established in some by one single act, which is the issuance of the use permit.

[00:15:21] Speaker 00:
And my understanding as well is that the court, which the reference is the Prevish case,

[00:15:28] Speaker 00:
But there are several citations in that case.

[00:15:31] Speaker 00:
And the court relied upon those citations, such as Trevino against Gates and

[00:15:41] Speaker 00:
against the county of Los Angeles in deciding that a single act does not establish a policy.

[00:15:48] Speaker 00:
And that's really what I think the issue here is, does a single act of the decision maker, Mr. Wick, or in this case, the employee who issued the use permit that Mr. Wick later learned about, does that establish a policy?

[00:16:04] Speaker 00:
A single act, I do not believe, does establish a policy.

[00:16:09] Speaker 00:
A single or even a few isolated or sporadic incidents of unconstitutional conduct are not enough to impose municipal liability under Section 1983, citing Gantt against County of Los Angeles.

[00:16:23] Speaker 00:
7-7-2, 5-3, 6-0-8, 6-18, and that's Ninth Circuit decision.

[00:16:32] Speaker 00:
If there's other questions, I mean, I have other comments that I could make, but most of them were in the briefings, and I don't really have a lot more than that.

[00:16:40] Speaker 00:
I think that the decision, one of the problems here was the claims were combined in one count, and so it was confusing, I think, to deal with them.

[00:16:50] Speaker 00:
But I believe the court made the right decision based upon what was briefed.

[00:16:54] Speaker 00:
I'm sorry, go ahead.

[00:16:59] Speaker 02:
No, I didn't mean to cut you off.

[00:17:00] Speaker 02:
I thought you were done.

[00:17:01] Speaker 00:
I'm done.

[00:17:01] Speaker 00:
Thanks.

[00:17:01] Speaker 02:
Go ahead and finish up.

[00:17:02] Speaker 02:
Did I cut you off?

[00:17:02] Speaker 02:
I didn't mean to.

[00:17:03] Speaker 00:
I'm done.

[00:17:03] Speaker 02:
Thanks.

[00:17:04] Speaker 05:
Do you want to discuss at all the issue of whether the actual parking lot constitutes a taking of private property?

[00:17:14] Speaker 00:
Well, a parking lot on somebody else's property doesn't constitute a taking on my property, as far as I'm aware.

[00:17:21] Speaker 00:
The concept about, first of all, just to be clear, we know this now.

[00:17:25] Speaker 00:
This is undisputed.

[00:17:28] Speaker 00:
Setbacks do not apply to parking lots, driveways, et cetera.

[00:17:33] Speaker 00:
They apply to buildings, and they are not an easement on somebody else's property.

[00:17:40] Speaker 00:
is a provision for a building to be set back a certain distance from a property line.

[00:17:49] Speaker 00:
And in this case, that was waived for the building by the Schmitz themselves.

[00:17:55] Speaker 00:
That's clear.

[00:17:55] Speaker 00:
That's even in the complaint, I believe.

[00:17:58] Speaker 00:
But it's certainly in evidence in the Superior Court.

[00:18:00] Speaker 02:
I just started.

[00:18:01] Speaker 02:
Let me interrupt you there.

[00:18:02] Speaker 02:
You said we know this now about the setback.

[00:18:05] Speaker 02:
Are you speaking about facts that were just deduced or established in the Superior Court?

[00:18:09] Speaker 00:
Well, I mean, I was aware of us what a setback is, you know, back in 2021.

[00:18:15] Speaker 00:
But a setback is a I know, sir.

[00:18:18] Speaker 02:
But my question is focused on I'm trying to figure out whether there's an abstention issue here.

[00:18:22] Speaker 02:
So when you just said we know this now, are you speaking was the setback

[00:18:27] Speaker 02:
and the operative effect at issue in the Superior Court action?

[00:18:30] Speaker 00:
Yes, as well.

[00:18:31] Speaker 02:
Okay.

[00:18:32] Speaker 02:
All right.

[00:18:33] Speaker 02:
Judge Baird?

[00:18:34] Speaker 02:
Anything further, Judge Thomas?

[00:18:36] Speaker 02:
Thank you so much for your presentation and for your patience with our questions.

[00:18:40] Speaker 00:
I appreciate it.

[00:18:41] Speaker 00:
Thank you.

[00:18:48] Speaker 04:
To address the last issue that Judge Baird posed,

[00:18:52] Speaker 04:
To the extent there's a legal question whether or not there's a protected interest on the 14th Amendment,

[00:19:00] Speaker 04:
I believe the law cited the Topanga Canyon case, the Horn v. Ventura case, California Supreme Court cases, and the Riley case clearly established under Roth v. Regency, there is protected 14th Amendment interest at issue here.

[00:19:16] Speaker 04:
But that being said, if this court disagrees or has questions about it, I think that issue should be certified to the California Supreme Court for decision on that issue.

[00:19:26] Speaker 02:
What's the status of the Superior Court action?

[00:19:29] Speaker 02:
Is it completed?

[00:19:30] Speaker 04:
It is far from complete.

[00:19:36] Speaker 04:
One part is bifurcated, one part is under submission in front of Judge Pardo, and he is expected to issue what's called a tentative ruling in the state court.

[00:19:47] Speaker 04:
that gets batted back and forth between the parties until there's an ultimate decision.

[00:19:52] Speaker 02:
But that's only part of the case?

[00:19:53] Speaker 02:
You said it was bifurcated?

[00:19:54] Speaker 04:
Yes.

[00:19:57] Speaker 04:
Yeah, it was bifurcated, Your Honor.

[00:19:58] Speaker 04:
And some of the issues, admittedly, are attended there in a sense.

[00:20:04] Speaker 01:
Excuse me, I missed your word.

[00:20:05] Speaker 01:
It's a little echoey in here.

[00:20:06] Speaker 01:
I'm sorry.

[00:20:07] Speaker 01:
Some of the issues are what?

[00:20:08] Speaker 04:
admittedly tendered there in the sense, I disagree with Council, the setback is completely wrong.

[00:20:15] Speaker 04:
Setback is defined in the code and it does not only limit, it's not limited to buildings, it's limited to structures and structures are defined in the code as anything that's made or built on the ground.

[00:20:28] Speaker 02:
I want to ask a more basic question rather than the fine definitions that you're explaining for me.

[00:20:34] Speaker 02:
My question is more basic.

[00:20:36] Speaker 02:
What's at issue in the Superior Court action?

[00:20:41] Speaker 04:
We're trying to invalidate the issuance of the use permit, Your Honor, in essence, and also to have the parameters of the use permit defined.

[00:20:52] Speaker 01:
Okay.

[00:20:55] Speaker 02:
That's been bifurcated.

[00:20:57] Speaker 02:
But there's not two matters pending in the state court.

[00:20:59] Speaker 02:
There's just one bifurcated matter.

[00:21:01] Speaker 04:
No, there's multiple matters pending in the state court related to this because of subsequent events.

[00:21:07] Speaker 04:
But the primary case that counsel was talking about is the bifurcated action honor.

[00:21:14] Speaker 04:
All right.

[00:21:15] Speaker 04:
And on the issue to Judge Thomas's question,

[00:21:21] Speaker 04:
Even a temporary taking under First English, which we have here, we're entitled to proceed here, regardless of what happens in the state court.

[00:21:30] Speaker 03:
Because until the state court... No, my question was more of, if the state court action resolves issues here, then an abstention might be proper.

[00:21:42] Speaker 04:
I understand that, Your Honor.

[00:21:45] Speaker 04:
The only point I was trying to make, maybe it wasn't directly to your question, but under First English, whatever taking has occurred, whether it's temporary or forever, we're entitled to compensation.

[00:21:59] Speaker 04:
And I want to add one point, or two, actually two points, Your Honors.

[00:22:05] Speaker 04:
The only issue, I mean, the issue here is not only setbacks, but it's lot coverage.

[00:22:11] Speaker 04:
So there's two issues here that constitute the taking of a property interest, we contend.

[00:22:19] Speaker 03:
Mr. Schmidt, what do you want out of this?

[00:22:21] Speaker 03:
I mean, what are you really trying to seek?

[00:22:23] Speaker 03:
I know your legal theory, but I'm trying to get practical about this and determine whether this is suitable or not.

[00:22:32] Speaker 04:
The what what we want your honor is the deal we cut with with the county and the fire department They get to put a building on there for storage and everything else beyond that was You're not amenable to give him a little parking

[00:22:47] Speaker 04:
We you know, we had a settlement in which we agreed that we had but for whatever reasons The fire department and the county in our opinion torpedoed that settlement.

[00:22:57] Speaker 04:
We had a settlement reached over a year ago in front of judge Doesn't really matter but she's a retired judge competent judge and she had a settlement is on the record and

[00:23:10] Speaker 04:
But anyhow.

[00:23:12] Speaker 03:
Okay, you've answered my question.

[00:23:13] Speaker 04:
Thanks.

[00:23:14] Speaker 04:
But the fact of the matter is we want to be good neighbors.

[00:23:16] Speaker 04:
We would not have given the setback that we did for the building if we were against this.

[00:23:21] Speaker 04:
This is not a NIMBY situation.

[00:23:24] Speaker 04:
This is a situation where we were told one thing and got something completely different.

[00:23:30] Speaker 04:
So I just briefly on the Menell.

[00:23:33] Speaker 02:
Sorry, your time is up, sir.

[00:23:35] Speaker 02:
You're over your time.

[00:23:36] Speaker 02:
Oh, OK.

[00:23:37] Speaker 04:
On just the Menell thing, though, it's clear that you don't have to have the final decision made.

[00:23:43] Speaker 04:
It has to be an act that constitutes a final decision.

[00:23:47] Speaker 02:
Sir, you're out of time.

[00:23:48] Speaker 02:
Thank you very much.

[00:23:48] Speaker 02:
Thank you both for your advocacy.

[00:23:50] Speaker 02:
We'll take that case under advisement, and we'll move on, please.